ILA, Local 1291

National Labor Relations Board - Board Decisions

Mar 19, 1971

189 N.L.R.B. 126 (N.L.R.B. 1971)

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's Association and its
Local 1291 , AFL-CIO and Lavino Shipping Com-
pany and Local Lodge 724 of District No. 1 of the
International Association of Machinists and Aeros-
pace Workers, AFL-CIO,' Case 4-CD-235
March 19, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
the filing of a charge by Lavino Shipping Company,
herein called the Employer, alleging that Internation-
al Longshoremen's Association and its Local 1291,
AFL-CIO, herein called ILA, had violated Section
8(b)(4)(D) of the Act by engaging in certain pros-
cribed activity with an object of forcing or requiring
the Employer to assign the work in dispute to
members of ILA rather than to employees of the
Employer represented by Local Lodge 724 of District
No. 1 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, herein called
IAM.
Pursuant to notice, a hearing was held in Philadel-
phia, Pennsylvania, before Hearing Officer Joseph A.
Weston on November 16 and 17, 1970. 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. Thereafter, briefs were filed by the
Employer, ILA, and IAM in support of their
positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds them free from
prejudicial error. They are hereby affirmed. The
Board has considered the entire record in this case,
including the briefs, and hereby makes the following
findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that Lavino
Shipping Company, a Delaware corporation, is
engaged in the conduct of general stevedore opera-
tions in the ports of Philadelphia, Pennsylvania, and
various other sites. The Employer also maintains
I The names of both labor organizations appear as amended at the
heanng
agencies for its stevedore operations in other ports.
In the conduct of its operations, it annually receives
a gross revenue in excess of $1 million and concedes
it is engaged in commerce and is subject to the
jurisdiction of the National Labor Relations Board.
Accordingly, we find that Lavino Shipping Company
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 Interna-
tional Longshoremen's Association and its Local
1291, AFL-CIO, and Local Lodge 724 of District
No. 1 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background Facts
The Employer is engaged in general stevedoring,
agency, and pier and terminal operations in the port
of Philadlephia, Pennsylvania, and elsewhere. In
connection with these operations, the Employer
arranges for the loading or discharging of cargo on
or off vessel, assigns ship berths, and hires labor for
the loading or unloading of cargo. The Employer
owns and operates in excess of 200 pieces of
mechanical equipment, including lift trucks, front-
end loaders, bulldozers, and similar equipment, to
facilitate its cargo-handling operations. The mechan-
ical equipment is typically assigned to one or the
other of the piers owned and/or operated by the
Employer, or a vessel, as needed.
The Employer also operates a facility, consisting of
two buildings, at Dilworth Street and Snyder
Avenue, Philadelphia, Pennsylvania, known as the
Locker. The larger building contains offices and a
shop for mechanical equipment and welding repairs.
The smaller building has a storage area for stevedore
gear, as well as equipment used in the repair of such
gear. An area in this building is used for washing and
steam cleaning mechanical equipment.
The IAM unit of 20 employees is housed in the
larger building. These employees, welders, mechan-
ics, service repairmen, and an electrician, are
responsible for the maintenance and repair of the
Employer's mechanical equipment. It is the
Employer's practice to attempt to perform as much
repair and service work, typically fueling and
preventive maintenance, as possible on the jobsite,
189 NLRB No. 34
ILA, LOCAL 1291
pier, or vessel where the equipment is located. Major
repairs, such as "pulling" motors, changing clutches,
or replacing brake linings , are performed at the
Locker. The employees represented by the IAM
report to the Locker in the morning and are then, as
needed, either directed to piers where the Employer
is conducting operations or remain in the Locker.
Under normal circumstances, at least half of these
employees are assigned to work on the piers.
A unit of seven employees represented by ILA is
located in the Locker's smaller building. These
employees, lockermen, mechanics, and gearmen, take
charge of and repair rope, nets, wires, hooks, and
other stevedore gear. They also splice wires and
make new pallets. They apparently do not repair
motors or otherwise service mechanical equipment.
Testimony indicates that it has been the
Employer's practice, since at least 1946, to have
employees from the Locker perform the tasks of
repairing, servicing, and gassing its mechanical
equipment, both at the jobsite and in the Locker. In
1957, IAM was certified by the Board as the
bargaining agent for
all auto and auto truck mechanics including
welders, gearmen and service men employed at
the Company's "Locker" Snyder Ave. & Dill-
worth [sic] St., Philadelphia, excluding office
clerical employees, truck drivers, guards and
supervisors as defined in the Act.
The certification concerned only the Employer's
employees and was obtained following a consent
election in which only IAM was a participant. The
Employer and IAM have had continued contractual
relationships extending from 1957 to September 30,
1973. These agreements have never made reference,
in the recognition clauses , to the category of gearmen
but have always provided for the performance of
work by the IAM represented employees on or off
the Employer's premises.2
The Employer employs longshoremen and related
crafts represented for purposes of collective bargain-
ing by ILA. That union was certified, in 1960,
pursuant to a consent-election agreement in which it
was the only participant, to a unit including:
All mechanics, lockermen, and gearmen who
work on longshoremens' equipment including
those who do rigging, and truck drivers who haul
longshoremen and stevedoring equipment who
are employed by the Philadelphia Marine Trade
Association . . . but excluding . . . auto and auto
The recognitions clause in the 1967--70 bargaining agreement between2
the Employer and IAM, incorporated by reference into the current
agreement, provides
I The Company recognizes the Union as the sole and exclusive
collective bargaining agent for all auto and auto truck mechanics
including welders, service-repairmen , and electricians employed at the
company's automotive maintenance repair plant located at Snyder
Avenue and Dilworth Street, Philadelphia, but exludmg office clerical
127
truck mechanics including welders and service-
repair men employed by the Lavino Shipping
Company at its automotive maintenance repair
plant located at Dilworth Street and Snyder
Avenue, Philadelphia .. . .
Following certification, ILA and Philadelphia Ma-
rine Trade Association (PMTA) of which the
Employer is a member entered into several collec-
tive-bargaining agreements. The current contract
extends from October 1, 1968, to September 30, 1971.
The recognition clauses of those agreements are
substantially identical to the language describing the
certified unit. Gearmen employed by the Employer
at the Locker have been represented by ILA since
1961.
ILA representatives testified at the hearing that
they first learned of the presence of IAM-represented
mechanics on the piers after the IAM employees
established a picket line when engaged in an
economic strike against the Employer. Shortly after
this discovery, ILA requested a grievance hearing on
October 19, 1970, with PMTA to hear ILA's claim to
all mechanical work performed on the piers. ILA,
PMTA, and a representative of the Employer were
present at the hearing. IAM, which is not a party to a
collective-bargaining agreement with PMTA, was
not represented at the grievance meeting. The
committee's decision, issued on October 20, 1970,
sustained ILA's claim that the PMTA-ILA contract
preserved the disputed work for ILA members. There
is no contention by any party that the committee's
award is binding on IAM. Following this grievance
award, ILA members were dispatched to perform the
Employer's mechanical work at the piers and aboard
ship. The Employer refused to hire them. ILA then
established picket lines at the Locker on October 20
and 21, 1970. These picket lines were voluntarily
withdrawn after the charge was filed in this case on
October 21,1970.
B. Work in Dispute
The work in dispute here is the repairing, servicing,
and gassing of the Employer's mechanical equipment
used in the handling of cargo while operating on
vessels or on shipping piers or terminals owned
and/or operated by the Employer in the Port of the
City of Philadelphia, Pennsylvania. ILA does not
claim the repair, service, and gassing of mechanical
equipment performed at the Locker.
employees , truck drivers, guards and supervisors as defined by the
Labor Management Relations Act
2 Except for the exclusions stated in paragraph 1, the bargaining unit
above described includes all employees engaged in the dismantling
and repairing of industrial lift trucks, tractors, trucks, automobiles,
mobile cranes and loaders, and/or parts thereof, of all descnptions by
the Company , on or off its premises (Emphasis supplied ]
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Contentions of the Parties
The Employer contends that ILA violated Section
8(b)(4)(D) of the Act by placing a picket line at
various locations where the work in dispute was
performed to enforce its demand for assignment of
the work to individuals represented by ILA, and that
there is no agreed-upon method for adjustment of
the dispute. The Employer further contends that the
work has been assigned to employees represented by
IAM; and that such work should properly be
awarded to members of IAM in view of : (a) the
Employer's long practice of assigning the work to
employees based at the Locker and represented by
IAM; (b) collective-bargaining agreements specifi-
cally assigning the work to employees represented by
IAM; (c) considerations of efficiency, flexibility, and
the Employer's satisfaction with the performance of
the IAM-represented mechanics; (d) assignment to
employees represented by IAM will have no impact
upon the job opportunities afforded individuals
represented by ILA; and (e) the grievance settlement
by PMTA and ILA is not relevant in this dispute
IAM has taken a position basically consistent with
that adopted by the Employer regarding the work in
dispute, contending, in addition, that IAM was
certified by the Board to represent the employees
now performing the disputed work, and that factors
of skill and special training also favor the Employer's
assignment.
ILA contends that the work in dispute should be
assigned to its members. In support, ILA argues that
both IAM's certification and its collective-bargaining
agreement with the Employer limit the unit to
employees "at" the Locker. This limitation, when
read in conjunction with the narrow exclusions in
ILA's own certification and the ILA-PMTA bargain-
ing agreement, implies that all work not performed
"at" the Locker is within ILA's certified unit and
bargaining jurisdiction. ILA maintains that this
interpretation is strengthened by the award of the
work in dispute to ILA by the joint ILA-PMTA
grievance committee. ILA's claim is further strength-
ened, in its view, by the Board's policy fostering
single units of similarly interested workers, which
would be attained by placing all individuals working
on piers or vessels under ILA representation.
Mechanics represented by it, ILA argues, are
especially skilled and trained in equipment used in
stevedore operations, and that general custom and
practice in the port of Philadelphia demonstrates that
the work in dispute properly should be awarded to
ILA members. ILA avers that it had no knowledge of
3 Newspaper and Mail Deliveries' Union of New York and Vicinity (News
Syndicate Co, Inc ), 141 NLRB 578', 580
4 N L R B v Radio & Television Broadcast Engineers Union , Local 1212,
any work performed by the Employer's mechanics
on the piers prior to the picketing by IAM mechan-
ics.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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. The
record indicates that ILA established a picket line
around the Employer's facilities after the Employer
refused to hire individuals represented by ILA to
perform the work in dispute. On this evidence, we
conclude that there is reasonable cause to believe
that an object of such action was to force the
Employer to assign the disputed work to individuals
represented by ILA, and that a violation of Section
8(b)(4)(D) has occurred.
In the circumstances of this case, we are not
satisfied that all parties have agreed to be bound by
resolution of grievances involving work jurisdiction
made by a joint grievance committee consisting only
of representatives of ILA and PMTA. It is undisput-
ed that IAM was neither informed of the grievance
nor invited to send a representative. The collective-
bargaining agreement between IAM and the Em-
ployer does not provide for submission of grievances
to PMTA, and IAM is not a party to any other
bargaining agreement with PMTA directly.
The Board has long declined to find that grievance
or arbitration proceedings not involving all parties to
the dispute constitute an adjustment of the dispute
within the meaning of Section 10(k). The voluntary
adjustment must bind all disputing unions as well as
the employer in order to come within the meaning of
voluntary settlement as set out in Section 10(k).3
Thus, at all times material herein, there was no
method for the voluntary adjustment of the dispute
among the parties. Under these circumstances, we
find that it will effectuate the policies underlying
Sections 10(k) and 8(b)(4)(D) for us to determine the
merits of the dispute. Accordingly, we find that this
dispute is appropriate for resolution under Section
10(k) of the Act.
On the basis of the entire record, we find 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 determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to various relevant factors.4
International Brotherhood of Electrical Workers, AFL-CIO (Columbia
Broadcasting System), 364 U S 573, 586
ILA, LOCAL 1291
The Board has held that its determination in a
jurisdictional dispute is an act of judgment based
upon common sense and experience, reached by
balancing those factors involved in a particular case.5
The following factors are relevant in making a
determination of the dispute before us:
1. Certification, collective-bargaining
agreements, and awards
Both labor organizations involved herein have been
certified by the Board, as discussed above. Neither
certification specifically includes the work in dispute.
The Employer has been a party to a series of
collective-bargaining agreements with IAM since
1957. These agreements have consistently included a
description of the scope of the bargaining unit as
covering all mechanical work relevant herein, wheth-
er on or off the Dilworth Street and Snyder Avenue
premises .6 These same agreements have also con-
tained provision for wage premiums for employees
working on mechanical equipment aboard ship. The
most recent agreement, dated October 13, 1970,
retains the premium pay provision and additionally
includes language dealing with the manning and
rotation of pier work by the Employer's IAM-
represented mechanics.
The Employer is a party to a collective-bargaining
agreement with ILA by virtue of the Employer's
membership in PMTA. This agreement recognizes
ILA as the exclusive bargaining agent for a unit of
employees identical to that certified by the Board in
1960, with the exclusions set forth in that certifica-
tion. The certification is set out in detail, supra.
Having read these recognition clauses, and the
related provision of the IAM-Employer agreement,
discussed above, we find that the work in dispute is
more clearly covered by the terms of IAM's
collective-bargaining agreement with the Employer.
We are not persuaded by ILA's contention that the
description of the IAM certification is limited to the
unit "at" the Locker. The more logical and consistent
interpretation of the word, in this context, is that the
phrase is intended only as a geographic description,
without intention to restrict the functional scope of
the IAM-represented unit solely to that location.
Moreover, the employees now performing the work
in dispute do, in fact, operate "at" the Locker; they
report there every morning and some are dispatched
from the Locker to the jobsite. Considerations of the
grievance committee's award to ILA, based upon an
interpretation of the ILA-PMTA bargaining agree-
5 International Association of Machinists, Lodge No 1743, AFL-CIO (J
A Jones Construction Co), 135 NLRB 1402
6 Supra, fn 2
129
ment, are of little consequence here. We note that
only the Employer and ILA were parties to the
proceeding and that the award was not binding on
IAM. Such an award is not binding on the Board 7
and is not a significant element in our consideration.
We conclude that these factors favor an assignment
to employees represented by IAM.
2. Company and area practice
The record shows that the Employer has, since at
least 1946, assigned the work in dispute to its
employees based at the Locker. Employees repre-
sented by IAM have performed the work in dispute
continuously since 1957. The practice on the Philadel-
phia waterfront suggests that the work is often
performed by individuals represented by ILA. ILA
offered no evidence, however, that specifically set
forth the work performed by individuals represented
by ILA on piers and vessels. We conclude, especially
in view of the Employer's longstanding practice of
utilizing a unified complement of employees to
perform the work in dispute at both the Locker and
the jobsites, and the somewhat vague evidence of
area practice, that the Employer's practice favors an
assignment to employees represented by IAM.
3. Skills, efficiency, and economy
Both IAM and ILA maintain that their members
possess sufficient skills to perform the work in
dispute. Testimony from a representative of the
Employer established that many of the Employer's
items of mechanical equipment have beeen specially
constructed or modified by the Employer, utilizing
the IAM mechanics. Testimony also established that
the Employer has on occasion sent its mechanics to
special factory-run schools so that they may be
instructed in the intricacies of new equipment.
4. Gain or loss of employment
The bargaining unit represented by ILA covers the
entire Philadelphia waterfront and is considerably
larger and affords considerably greater work oppor-
tunities than those available to the unit represented
by IAM. It is clear that an award of the work in
dispute to individuals represented by ILA would
entail a substantial reduction in the number of
employees in the IAM unit. Conversely, an award of
the disputed work to IAM will have no discernible
impact on ILA. The Board has in the past considered
the impact of an award upon employment opportuni-
7 New York Mailers' Union Number Six, International Typographical
Union, AFL-CIO (The New York Times Company), 171 NLRB No 119,
supra, In 3.
129A DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties as one of the relevant factors in the proper
assignment of disputed work.8 We find that the
factor of employment impact favors IAM.
CONCLUSIONS
Upon the entire record in this case and the
foregoining consideration of all relevant factors, we
conclude that employees represented by IAM are
entitled to the work in question, and we shall
determine the dispute in their favor. In making this
determination, however, we are assigning the disput-
ed work to the employees of Lavino Shipping
Company who are represented by IAM, but not to
that Union or its members.
entitled to perform the work of repairing, servicing,
and gassing of the Employer's mechanical equipment
used in the handling of cargo on vessels or on
shipping piers or terminals owned and/or operated
by the Employer in the Port of the City of
Philadelphia, Pennsylvania.
2. International Longshoremen's Association and
its Local 1291, AFL-CIO, are not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Lavino Shipping Company to assign the
above work to individuals represented by Interna-
tional Longshoremen's Association and its Local
1291, AFL-CIO.
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 case,
the National Labor Relations Board hereby makes
the following determination of dispute:
1. Employees of Lavino Shipping Company who
are currently represented by Local Lodge 724 of
District No. 1 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, are
3. Within 10 days from the date of this Decision
and Determination of Dispute , International
Longshoremen ' s Association and its Local 1291,
AFL-CIO, shall notify the Regional Director for
Region 4 , in writing , whether or not they will refrain
from forcing or requiring the Employer, by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the work in dispute to individuals represented by
International Longshoremen ' s Association and its
Local 1291, AFL-CIO, rather than to employees of
the Employer represented by Local Lodge 724 of
District No. I of the International Association of
Machinists and Aerospace Workers, AFL-CIO.
8 General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local No
270, Teamsters (W L. Richeson & Sons, Inc.), 166 NLRB 962, 965; Carpenters
District Council of Kansas City and Vicinity and Millwrights Local 1529 (The
Sardee Corporation), 177 NLRB No 96