ILWU

National Labor Relations Board - Board Decisions

Apr 13, 1967

163 N.L.R.B. 1039 (N.L.R.B. 1967)

ILWU
the ink on the rolls, and thereby make the press
ready for the next run.
The printshop operations are coordinated with
those of the beaming and rewinding employees, who
are also in the printing department. These
employees beam (or wind) the cloth on a cylinder,
rewind it if necessary, frame or stretch it, and
inspect it so that it will be in the proper condition for
printing. The printers also come in contact with
engineering and maintenance department
employees who perform maintenance on the
presses.
None of the printers involved was hired as a
journeyman printer, and none has ever served an
apprenticeship. The Employer has no
apprenticeship or training program, and no previous
training or experience is required of these printers.
The printers were promoted on the basis of
departmental seniority and qualifications (such as
ability to read, write, and do arithmetic, a good color
eye, and leadership potential), from printshop reeler
helpers, reeler operators, press supply men, and
press helpers, after varying periods-some less than
1 year-in one or more of those classifications.
The evidence also establishes that there is some
overlap in the job duties of the printers and those of
other members of the printshop crew, as well as
those of other employees in the plant. For example,
reeler operators have filled in for printers during
absences or break periods; printers have filled in for
absent employees of other departments; and 18
employees have worked as printers and now work
elsewhere in the plant or in the printing department
on other than printers' jobs. Such employees
substitute for printers who are absent due to illness
and on other occasions. Other employees who have
been printers are now reeler operators or reeler
helpers, and have also been called upon to fill in for
absent printers.
The Board, upon occasion, has found textile
machine printers to constitute appropriate craft
units.5 However, as stated in E. I. Dupont de
Nemours and Company, 6 "the Board will, in all
cases, regardless of industry, determine the
appropriateness of the craft unit sought in the light
of all factors present in the case." Moreover, in
Mallinckrodt Chemical Works, Uranium Division,'
the Board expressed its dissatisfaction with the
"loose definition of a true craft" applied in prior
decisions. Consistent with these principles, we have
examined all the relevant factors in the instant case,
and have determined that they fail to support a
finding that these printers constitute a skilled craft
group.8
Thus, the Employer has no apprenticeship or
training program, none of the printers has served an
apprenticeship, none was hired as a journeyman
printer, and there is no regular progression to the
printer classifications; printers work as part of a
team with other employees, with whom their duties
1039
overlap, and who are not requested by the
Petitioner; and printers are interchanged and
transferred elsewhere in the plant. In view of these
factors, we find that the senior printers and printers
assistants do not constitute an appropriate craft
unit.9 Nor are these employees shown, on any other
basis, to have interests and functions sufficiently
different from those of other employees of the
Employer to constitute a separate unit appropriate
for collective bargaining. Since the Petitioner has
neither requested, nor made an adequate showing of
interest in, any other appropriate unit, we shall
dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
5 Plastic Film Company, Inc., supra, Southern Bleachery &
Print Works, 115 NLRB 787; Santee Print Works, 111 NLRB
1362 ; Riegel Textile Corp., 87 NLRB 637; American Finishing
Co., 86 NLRB 412; The Celanese Corporation of America, 72
NLRB 1194
6 E. I Dupont de Nemours and Company (May Plant, Camden,
South Carolina), 162 NLRB 413, see second par, sec. entitled
"Unit Finding."
' 162 NLRB 387, fn. 14
8 On November 24, 1965, a consent election was conducted in
the same unit as requested herein (Case 1-RC-8578) However, as
the unit in that proceeding was established pursuant to an
agreement of the parties , and as the election therein did not result
in the selection of a bargaining representative , it is not binding on
the Board. Plastic Film Company, Inc , supra at 1638, Humble Oil
and Ref ning Co., 115 NLRB 1485, 1487.
9 Cf E. I. Dupont de Nemours and Company, etc., supra;
Holmberg, Inc., 162 NLRB 407.
International Longshoremen's and
Warehousemen's Union and Local 4,
International Longshoremen's and
Warehousemen 's Union and Aluminum
Company of America . Case 36-CD-37.
April 13, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 3, 1967, Trial Examiner David F.
Doyle issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and, recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
163 NLRB No. 142
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Decision, the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner. i
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondents, International
Longshoremen's and Warehousemen's Union, and
Local 4, International Longshoremen's and
Warehousemen's Union, their officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order.
' The Trial Examiner's Decision is hereby corrected to read
8(b)(4)(u)(D) rather than 8(b)(4)(u)( B) in the first sentence of
section V and paragraph 3 of Conclusions of Law
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F. DOYLE, Trial Examiner: This proceeding, with
the parties represented by counsel, was heard by me in
Portland, Oregon, on November 3, 1966, on complaint of
the General Counsel and answer of Respondents. The
issue litigated was whether the Respondents had violated
Section 8(b)(4)(ii)(D) and Section 2(6) and (7) of the Act, by
certain conduct more fully described hereinafter.'
At the hearing the parties were afforded full opportunity
to present evidence, to examine and cross-examine
witnesses, to argue orally upon the record, to submit
proposed findings of fact and conclusions of law, and to
file briefs. Counsel for each party has filed an informative
brief, each of which has been carefully considered.
On the record as a whole, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
At the hearing the parties introduced into evidence a
written stipulation setting forth facts concerning the
business operations of the Company. Upon the stipulation,
I find that the Company is a Pennsylvania corporation
engaged in the manufacture of aluminum products at
' In this Decision International Longshoremen's and
Warehousemen's Union and Local 4 thereof will be referred to as
the Respondents or the Unions, Aluminum Company of America
as the Company, the National Labor Relations Board as the
Board, the General Counsel of the Board and his representative at
the hearing, as the General Counsel, and the Labor Management
various locations, including Vancouver, Washington,
During the fiscal year prior to the stipulation, which period
is representative of the Company's annual operations, the
Company in the course and conduct of its business
purchased and caused to be transported to its Vancouver
plant, directly from points outside the State of
Washington, alumina and other materials valued in excess
of $50,000.
Upon this stipulation, and a Decision and Determination
of Dispute of the Board, dated May 20, 1966, of which I
take judicial notice, I find that the Company is, and at all
times material herein has been, an employer within the
meaning of Section 2(2) of the Act, and a person within the
meaning of Sections 2(1) and 8(b)(4) of the Act, and is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Upon the pleadings herein, and the aforementioned
Decision and Determination of Dispute, I find that the
Respondents and Aluminum Trades Council of
Vancouver, Washington, affiliated with the Aluminum
Workers International Union and Local 300, Aluminum
Workers International Union (herein jointly called the
Aluminum Workers and separately called the Council and
Local 300, respectively), are labor organizations within the
meaning of Section 2(5) of the Act
III. THE UNFAIR LABOR PRACTICES
A. The Issue
The complaint alleges in substance that on or about
September 30, 1965, the Unions demanded and at all times
thereafter have continued to demand, that the Company
assign the work of unloading the Company's ships at its
dock at Vancouver, Washington, to employees
represented by the Unions rather than to employees of the
Company in a bargaining unit represented by the
Aluminum Workers and that in furtherance of this
demand, the Unions threatened the Company with work
stoppages and trouble in regard to the handling and
shipping of its materials and products in the port of
Vancouver, Washington, if such an assignment to thy,
Unions was not made. The complaint also alleges that the
Unions have failed to comply with a Decision and
Determination of Dispute by the National Labor Relations
Board, dated May 20, 1966,' wherein the Board required
the Unions to notify the Regional Director, in writing,
whether or not they will force the employer to assign the
disputed work to their members.
The Unions in their answer admitted that they had not
complied with the aforementioned Decision and
Determination of Dispute although they had been afforded
fair opportunity to do so.
However, the Unions contend that the conduct of their
officers did not constitute a violation of the Act In support
Relations Act, as amended, as the Act The charge was filed by
the attorney for the Company on October 20, 1965 The Board
issued a Decision and Determination of Dispute herein on May 20,
1966, the instant complaint was issued by the Regional Director,
Region 19, Seattle, Washington, on September 6, 1966
' Reported at 158 NLRB 1024
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of this contention their counsel presents three principal
arguments. Counsel contends that to find the Unions guilty
of the pleaded unfair labor practice, I must find upon the
record of this proceeding that the Unions (1) have engaged
in the proscribed conduct, and (2) did so for the unlawful
objective.
Section 8(b)(4)(ii)(D) sets forth the proscribed conduct
and the unlawful objective in the following language:
Sec. 8(b) It shall be an unfair labor practice for a
labor organization or its agents-
* * * * *
4 ... (ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is:
* * *
(D) forcing or requiring any employer to assign
particular work to employees in a particular labor
organization or in a particular trade, craft , or class
rather than to employees in another labor organization
or in another trade, craft, or class, unless ... [not
applicable here].
Section 10(k) sets up the procedure for a hearing, prior
to issuance of a complaint in 8(b)(4)(D) cases:
(k) Whenever it is charged that any person has
engaged in an unfair labor practice within the
meaning of paragraph (4)(D) of section 8(b), the Board
is empowered and directed to hear and determine the
dispute out of which such unfair labor practice shall
have arisen, unless, within ten days after notice that
such charge has been filed, the parties to such dispute
submit to the Board satisfactory evidence that they
have adjusted, or agreed upon methods for the
voluntary adjustment of, the dispute. Upon
compliance by the parties to the dispute with the
decision of the Board or upon such voluntary
adjustment of the dispute, such charge shall be
dismissed.
Counsel for the Unions also has a third argument which
is that though there has been a proceeding under Section
10(k) of the Act prior to the instant hearing that the 10(k)
proceeding, resulting in the Board's Decision and
Determination of Dispute, does not relieve me of the
responsibility to make all findings which are relevant and
necessary to the ultimate finding of unfair labor practices
committed by the Unions. This concept would require me
to consider the evidence as to the propriety of the work
assignment and decide de novo the dispute between the
Unions and the Aluminum Workers. The General Counsel
and the Charging Party take the position that absent newly
discovered evidence, I have no authority to consider or
determine the merits of that dispute.
The Proceeding Pursuant to Section 10(k) of the Act
As noted previously, the charge herein was filed by the
attorney for the Company on October 20, 1965. In
substance, this charge stated that James S. Fantz,
International representative of the Unions, had demanded
the assignment to employees represented by the Unions of
all work to be performed incident to the unloading of bulk
alumina from vessels moored at the Employer's
Vancouver, Washington, plant premises, although such
work had been demanded by and assigned to employees of
the Company, represented by Aluminum Trades Council
pursuant to a contract with that Union, and that the Unions
had by threats and coercion sought to force or require the
Company to assign the work in question to employees
represented by the Unions. A notice of charge filed was
duly served upon the Unions and thereafter a Notice of
Hearing was issued notifying the Unions that a Hearing
Officer of the Board would conduct a hearing pursuant to
Section 10(k) of the Act to resolve the question of the
assignment of work. The 10(k) hearing was held on
January 11-12, 1966, with all parties represented either by
counsel or other representative. At the hearing the parties
presented such evidence they desired.
On May 20, 1966, the Board issued a Decision and
Determination of Dispute which made the following
disposition of the dispute [158 NLRB at 1031]:
1. Employees employed in the production and
maintenance unit at the Vancouver Works of
Aluminum Company of America, Vancouver,
Washington, currently represented by Aluminum
Trades Council of Vancouver, Washington, are
entitled to unload ships leased or owned by the
Employer at its Vancouver Work's dock.
2. International Longshoremen's and
Warehousemen's Union, and Local 4, affiliated with
International Longshoremen's and Warehousemen's
Union, are not and have not been lawfully entitled by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require Aluminum Company of America to
assign the unloading of ships leased or owned by it at
its dock at Vancouver, Washington, to longshoremen
who are members of said organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Longshoremen's and
Warehousemen's Union, and Local 4, affiliated with
International Longshoremen's and Warehousemen's
Union, shall notify the Regional Director for Region
36, in writing, whether or not they will refrain from
forcing or requiring Aluminum Company of America
to assign the work in dispute to their members rather
than to employees of the Employer.
The Instant Proceeding
The hearing before me was relatively short, taking
approximately an hour and a half. Counsel for the parties
were in agreement before the opening of the hearing that
the testimony, exhibits, and arguments of counsel made at
the hearing held pursuant to Section 10(k) of the Act would
be admitted in evidence in this proceeding. The written
stipulation which was received in evidence on this point
reads as follows:
1. Subject to the approval of the Trial Examiner,
the testimony adduced and arguments of Counsel
thereon made at hearing held pursuant to Section
10(k) of the Act, as evidenced by the stenographer's
minutes taken on January 11 and 12, 1966, in Case No.
36-CD-37, shall constitute testimony and arguments
before the Trial Examiner and the National Labor
Relations Board in these proceedings with the same
force and effect as if the witnesses personally
appeared and gave such testimony herein, and as if
the same arguments were made herein. Said
testimony shall be understood to include also, all the
documents and papers introduced as exhibits and the
stipulations, admissions and concessions of fact made
at such hearing.
At the hearing a point which occupied considerable time
was the question of the extent or scope of my authority in
this hearing to review the finding made by the Board in the
10(k) proceeding. I stated that, without the authorities
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before me, I was of the opinion that I could not, to any
extent, review the correctness of the Board's Decision and
Determination of Dispute. Counsel for the Charging Party
and counsel for the General Counsel agreed with this
position . However, counsel for the Respondent urged that
the Board's Decision and Determination of Dispute did not
relieve me from making a decision as to the assignment of
work as well as all other essential elements of the unfair
labor practice alleged in the complaint. After considerable
detailed argument I stated that for the purposes of the
proceeding I would rule that I was precluded from any
reconsideration of the question concerning the assignment
of work, except to the extent that counsel for the Unions
would claim and adduce newly discovered evidence, or
evidence previously unavailable which would establish
such changed circumstances or facts as might warrant re-
examination of this question. I stated that I would give all
parties an opportunity to argue this question in their briefs
to me, and if upon review of all the evidence, in the light of
the pertinent legal authorities, I came to the conclusion
that my ruling was in error, I would give a new ruling on
that point. Counsel stated they were satisfied with this
procedure and would cover the question in their briefs,
which all have done. After some further discussion,
counsel for all parties agreed to the stipulation placing in
evidence herein the testimony , exhibits, and arguments of
counsel in the 10(k) proceeding.
Ruling as to the Scope and Extent of the Hearing
The contention of counsel for the Unions that in this
proceeding I must determine de novo the correctness of
the Board's award of disputed work in the 10(k)
proceeding is, for all practical purposes, controlled by the
Board's decision in Pressmen's Unton (New York Times
Company).3 In that case the same contention was made by
the respondent. The Board adopted the Trial Examiner's
Decision which on this point reads as follows:
Respondent contends that when an unfair labor
practice complaint issues, alleging a failure to comply
with the Board's Decision and Determination of
Dispute, following the 10(k) proceeding the
correctness of the Board's award of the disputed work
is to be determined de novo by the Trial Examiner,
subject to review by the Board. Respondent cites no
authority to support this contention, and I am aware
of none. On the contrary , the Board has consistently
held that at least in the absence of material newly
discovered or previously unavailable evidence, an
award of disputed work by the Board in a decision and
determination of dispute, is not open to review by a
Trial Examiner in a proceeding on a 8(b)(4)(D)
complaint. Accordingly, the Board's findings as to
who is entitled to perform the work involved in this
proceeding are, by this reference, adopted as a part of
the findings herein.
In this posture , only two issues are before me;
namely (1) has Respondent complied with the Board's
Decision and Determination of Dispute, and (2) did
Respondent engage in conduct described in Section
8(b)(4), for an objective proscribed by subsection (D)
thereof. On neither of these issues is there any real
3 154 NLRB 1122
' On this point Pressmen's Union , supra , cites these cases
Slane Industrial Painters , 123 NLRB 1, Pennsylvania Sugar
Division , etc, 142 NLRB 257, Central Typesetting and
Electroplating Company, 138 NLRB 231; Northern Metal
dispute. As to (1), Respondent by its answer filed
herein, and at the hearing, admitted that it gave no
notice to the Regional Director of compliance with the
Board's Decision and Determination of Dispute, as
required therein, and that there has in fact been no
such compliance.4
The Testimony as to Proscribed Conduct and Unlawful
Objective
It is undisputed that the Company operates a large
smelter and aluminum fabricating plant on the Columbia
River near Vancouver, Washington. Until October 1965,
the alumina, which is the raw material for the Company's
product was received at this smelter in railroad boxcars.
The boxcars were unloaded by the Company's own
employees who were represented by the Aluminum
Workers. On or about October 1, 1965, the Company
began to receive its raw materials from Surinam, South
America, by direct shipment by ships from Surinam to the
Company's private dock on the Columbia River.
At the 10(k) hearing, Rudolph Anderson, operations
manager of the Company's Vancouver operations, testified
that in the latter part of September 1965, before the arrival
of the first alumina-carrying freighter, James Fantz,
International representative of the International
Longshoremen's and Warehousemen's Union, phoned him
and asked for an appointment to discuss matters of
interest to the Company and the Union. Anderson agreed
to see Fantz and the men met at Anderson's office on
September 30, 1965. Also attending this meeting
were Edward D Andrew, representative of Local 4,
International Longshoremen's and Warehousemen's
Union, and George Stout, production manager of the
Vancouver operation, and George Case, labor relations
and personnel supervisor of the same - operations.
At the meeting Fantz said that he had heard that the
Company was having a shipload of alumina come in and he
wanted the Company to know that the Unions had men
who were available for unloading the cargo. Anderson said
that the Company had been unloading alumina for
approximately 25 years and that this cargo was in a ship
belonging to the Company and was coming to a private
dock belonging to the Company with material for use in
the Company's plant and that the Company had given a lot
of thought and consideration to the Company's own
employees who had been doing this work and who
belonged to the Aluminum Workers. In the course of the
conversation, Fantz referred to an incident which had
occurred at the Harvey Aluminum Company. Fantz said
that Harvey Aluminum Company had first employed
Longshoremen to unload its boats but when they learned
how to unload them, Harvey Aluminum then got rid of the
Longshoremen and did the work with their own
employees. Anderson said that at that time he knew that
the Harvey unloading operation was being picketed by the
Unions. The representatives of the parties then discussed
the fact that the Company wished the ships to be unloaded
on a 24-hour - a-day basis. Fantz said that it was possible to
arrange for this but that all Longshoremen working after 3
o'clock each day would have to be paid at overtime rates.
Th' representatives of the parties also talked about crane
Company, 142 NLRB 1228, Precrete, Inc, 140 NLRB 1, Worcester
Telegram Publishing Co, Inc, 125 NLRB 759, Western Electric
Company, Incorporated, 144 NLRB 1318, Denver Publishing
Company, 147 NLRB 533, Kelly & Jamison, 150 NLRB 842
ILWU
operators who would be required on any unloading job.
The conference came to an end when Anderson told Fantz
and Andrew that the Company felt that the work rightfully
belonged to the Company's employees who were members
of the Aluminum Workers, but in view of the Union's
request, the Company would review the matter and
discuss it with the Aluminum Workers.
Anderson testified that shortly after his discussion with
the representatives of the Unions, he conferred with Lloyd
Hinds, president of the Aluminum Trades Council, and
Bob Nurton, president of Aluminum Workers, Local 300.
Accompanying Anderson at this meeting were Stout and
Case. Anderson told the union representatives of the
demand of the Unions and the Aluminum Workers'
representatives immediately stated that they had been
performing the work for 25 years and that the work was
theirs and they were going to hold on to it. The
representatives of the Aluminum Workers pointed out that
the men employed on unloading alumina were covered in
the labor agreement between the Company and the
Aluminum Workers. Hinds said that he had conferred
about the matter with the president of the Aluminum
Workers International Union and that the position of the
Aluminum Workers was that the work belonged to them
and they would not relinquish it. This ended the meeting.
A few days later, after having considered the problem
and conferred with his associates, Anderson phoned Fantz
and asked him if they could discuss the situation again.
They arranged for a meeting on October 19, 1965. At this
meeting were Fantz, for the Union, and Stout, Case, and
Anderson for the Company. After the amenities, Fantz
said that the work of unloading alumina from ships
belonged to the Unions and that their San Francisco office
had advised him to tell the Company that it was their work,
and they were going to take all means at their disposal to
obtain the work. Anderson said that at that time he was
aware that the Longshoremen were picketing the
unloading of vessels at the Pittsburgh, California, plant of
the United States Steel Company because U.S. Steel was
using its employees to unload cargo from its own vessels.
Anderson informed Fantz that it was the conclusion of the
Company that the work belonged to the Company's
employees who were members of the Aluminum Workers
and that the Company intended to have them do the
unloading of aluminum. Anderson explained that if the
members of Aluminum Workers were not given this work,
the Company would be in violation of its bargaining
agreement with that Union. Anderson at that point asked
Fantz what the Company would do with its employees if it
yielded to the demands of the Unions. Fantz replied
that with an operation as large as the Company's, those
men could be assimilated into the work force. Anderson
then pointed out to Fantz that the Company had always
had friendly relations with the Unions, and that the
Company had shipped aluminum products out of the
docks at Vancouver or Portland for some 20 years and that
in the year 1964 alone, the Company had shipped
something like 30,000 tons over those docks with the
Unions doing the longshore work and that the Company
hoped that these good relations would continue. Anderson
then asked Fantz if he wasn't interested in continuing
these good relations. Fantz replied that he would be very
frank and if the Company assigned this work to the
Aluminum Workers, the Company could expect trouble in
various areas. Anderson asked him specifically what he
meant by that, and if he meant the port of Vancouver and
Fantz replied in the affirmative saying that things could
1043
happen to the Company's cargo and the Company could
have trouble shipping. It is undisputed that the Company
uses the facilities at the port of Vancouver, Washington, to
ship large quantities of its finished products.
In the early part of December, Anderson arranged for
another talk with Fantz and Andrew. When the
representatives of the parties met, Anderson told the
representatives of the Unions that the Company wanted to
load out a thousand tons of cryolite and ship it to Surinam
on the next return voyage of the S.S. Lysland. The
material was to be boxed in plywood boxes weighing about
five thousand pounds and Anderson said that he had been
informed that the Unions had declared that the Lysland
was "hot." Anderson said that the Company wanted to
ship this material out in boxcars to the port of Vancouver
and at that point have the Longshoremen transfer the
boxed material into the Lysland. Anderson said that the
reason for the conference was that he didn't want to ship a
thousand tons of material up there, and have the ship go
there, and find out that the Longshoremen at Vancouver
would not handle the cargo. Fantz replied that "They
wouldn't do it on the next trip," then Fantz said that the
ship was "blacklisted" and upon questioning he explained
that the Longshoremen would refuse to "work the ship."
George R. Stout, production manager of the Company's
facility at Vancouver, testified as to the manner of loading
and unloading alumina on a ship. He also corroborated the
testimony of Anderson as to what occurred at the three
meetings with Fantz and Andrew. His testimony as to what
Fantz said in the nature of threats was only slightly at
variance with the testimony of Anderson. He said that in
the course of the meetings Fantz said, "I will by very frank
with you. If this work is given to the Aluminum Workers, it
will disrupt the harmonious relationship with us and you
can expect trouble in other areas." When Anderson asked
if the port of Vancouver could be considered other areas,
Fantz replied in the affirmative. In discussing the loading
of cryolite, according to Stout, Fantz said that they would
not load the Lysland on this trip. Fantz also said that he
was surprised that the Company would ask his
organization to load the Lysland at the port of Vancouver
when the Company had an unfair labor practice charge
against his Unions. °
In the course of his testimony Fantz said that at the first
meeting with Anderson and other company
representatives he explained how the Longshoremen were
prepared to perform the work. In the course of this
conference, the question came up as to whether work
similar to this was done anywhere on the west coast except
by Longshoremen. At that point Fantz stated that the
Unions had experienced some difficulty with Harvey
Aluminum at Vancouver, Washington, on a similar
question. He said that Harvey Aluminum had hired
Longshoremen to perform the work for a period of time but
after the Company learned how to unload their vessels,
Harvey Aluminum had dismissed the Longshoremen and
performed the work with their own employees. This
caused a dispute between the Unions and Harvey
Aluminum. At that time the Unions were picketing Harvey
Aluminum.
Between the first and second meetings, Fantz discussed
the question with the top people in his Unions. At the
second meeting, according to Fantz, he requested a
specific answer to the question of whether his Unions
would be assigned the work or not since the ship was due
to arrive in a few days. Anderson replied that they had
come to a decision that they would use their own
295-269 0-69-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, belonging to the Aluminum Workers, in the
unloading of the ship. Anderson said these people were
available, had been on the Company's payroll for a long
time, and had performed the work for a long time and the
Company felt that its contract with the Aluminum
Workers obligated the Company to keep them on the
work. Fantz said that at this meeting he told the company
representatives that the Union "would use whatever
methods [they] found at [their] disposal to try to keep the
work" that the Unions considered was properly theirs.
On December 7, 1965, Fantz met with Anderson again at
Anderson's office. Fantz testified that at an earlier
meeting Anderson had told him that the Company did not
intend that the Lysland or other vessels would carry cargo
on their return voyage to Surinam, but at this December
meeting Anderson said the Company had made a decision,
that they would like to load a thousand tons of boxed
cryolite onto the Lysland at the Vancouver port dock and
he had reason to believe that the Unions would not be
willing to do this work. Anderson wanted to find out
whether the Company could have this work done without
any possibility of problems developing. Anderson said he
had heard rumors that the Longshoremen "might not work
the ship." Fantz replied that the Unions were still
interested in doing all longshore work and they felt
competent to perform it, including the unloading of the
Lysland, but he said that if the Company did not use the
Unions on the discharge operation or unloading of this
ship, that "we could not guarantee what the attitude of the
men would be and the extent of their co-operation" in
loading cargo on the ship for its return voyage; "that we
weren't in a position to answer that question at that time."
James H. Price, vice president of the Aluminum
Workers International Union, testified in the 10(k)
proceeding to certain contract provisions in the agreement
between the Company and his Union which supported the
claim of his Union to the disputed work.
In the instant hearing counsel for the Unions called
Anderson, previously referred to as a witness. On his
direct examination Anderson said that the meeting in early
December 1965 ended on the note that Anderson was to be
informed if the Unions would handle the boxed cryolite
that he had inquired about, and that he had not heard from
the Union since that time. He further testified that
subsequent to January 1966, the Lysland had made trips
from Surinam into the Company's facilities at Vancouver
on three or four occasions. On these occasions the ship
was unloaded at Alcoa's dock without any incident or any
interruptions. Anderson also said that the Company had
used the S.S. Raold Jarl in this service also. He said that
on one occasion the Jarl was loaded with wheat for its
outbound voyage from Vancouver; the wheat was loaded
in the port of Portland. It was stipulated by counsel that
Local 8 of the International Longshoremen's and
Warehousemen's Union has jurisdiction in the port of
Portland. It is undisputed that on all occasions when the
Lysland made a delivery to the Company's docks at
Vancouver, the ship returned to Surinam without a cargo.
Counsel stipulated that the Longshoremen who had
participated in loading wheat on the Raold Jarl in
Portland were members of Local $ of the I.L.W.U.
James Fantz recalled and testified that it came to his
knowledge that the ship, Raold Jarl, was loaded with a
shipment of wheat in the port of Portland. He went to
Portland and found that the ship had sailed. He did not
know whether it had been fully loaded or partly loaded.
Concluding Findings
Upon the testimony of Anderson and Stout which is
plausible and consistent with the undisputed facts in the
case I find that about a month before the Lysland was to
arrive at the Company's facilities in Vancouver,
Washington, Fantz, as the representative of the Unions,
informed company officials that the Unions had members
of their Unions available to unload such cargo-carrying
vessels. When the company representatives stated that
they felt they might have to continue to use the members
of the Aluminum Workers with whom the Company had a
contract, and whose members had been doing the work for
many years, the representatives of the Unions reminded
company representatives of the trouble that Harvey
Aluminum was encountering in loading and unloading
their vessels because they were not using members of the
Unions in that work. It is likewise clear that just prior to
the arrival of the S.S. Lysland, the representatives of the
Unions told the representatives of the Company that the
Company might have trouble in various areas, including
shipments of outgoing cargo from the port of Vancouver, if
the Company did not use members of the Unions in the
unloading of these vessels. Thereafter, the S.S. Lysland
delivered its cargoes to the Company's docks and returned
to Surinam empty. This expensive, wasteful operation was
necessary because of the Unions' positive statement that
the Unions would not load the Lysland, if it did [not]
unload it. Again, when the Unions were asked if they
would perform the loading of cryolite at the port of
Vancouver, the Unions' representatives replied flatly that
unless the Unions unloaded the vessel, they wouldn't load
the cryolite, because the ship was blacklisted and the men
would refuse "to work the ship." This is consistent with
the testimony of Fantz, who admitted that he threatened to
use all means at the Unions' disposal to obtain the work in
question and he offered no denial of his threats to cause
trouble and work stoppages in regard to the Company's
shipping of materials out of the port of Vancouver. Fantz
also admitted that if the members of the Unions did not
unload the Lysland, it would not be loaded by I.L.W.U.
longshoremen at the port of Vancouver.
Upon the basis of this testimony, which I credit, I find
that the General Counsel has established by a
preponderance of the evidence that the Respondents have
violated Section 8(b)(4)(ii)(D) in the manner alleged in the
complaint.
The testimony also establishes that the effectiveness of
these threats continue up to the present, as evidenced by
the fact that the Company's vessels continue to return to
Surinam without a return cargo. The fact that the Union
still seeks to force the Company to assign the work to them
is indicated by the fact that the Unions have not notified
the Regional Director that they have abandoned their
claim to the work as required by the Board's order in its
Decision and Determination of Dispute.
The fact that one vessel, the Raold Jarl, was loaded
either fully or partially with wheat by a different local of
the I.L.W.U. in the port of Portland appears to be only a
happenstance. According to Fantz, by the time he got wind
of this occurrence and went to Portland, the vessel had
sailed. The fact that he went to Portland when he heard of
the vessel being there, in itself, is evidence of the Unions'
continued effort to stop the loading of return cargoes in
these vessels. I deem it obvious, that Fantz did not hurry to
Portland to facilitate the loading of wheat on the Raold
Jarl in view of all the other evidence in the case.
ILWU 1045
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the operations of the
Company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead and
have led to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices proscribed by Section 8(b)(4)(ii)(B)
of the Act, my Recommended Order will require them to
cease and desist therefrom and to take the usual af-
firmative action designed to remedy the unfair labor prac-
tices of this nature and to effectuate the policies of the
Act.
Upon the basis of the above findings of fact and upon
the entire record , I make the following:
CONCLUSIONS OF LAW
1. Aluminum Company of America is an employer
within the meaning of Section 2(2) of the Act, and a person
within the meaning of Section 2(1) and 8(b)(4) of the Act,
and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Longshoremen's and Warehousemen's
Union and Local 4, International Longshoremen's and
Warehousemen's Union and the Aluminum Trades
Council of Vancouver, affiliated with the Aluminum
Workers International Union and Local 300, Aluminum
Workers International Union are labor organizations
within the meaning of Section 2(5) of the Act.
3. On or about September 30, 1965, and thereafter,
International Longshoremen's and Warehousemen's
Union and International Longshoremen's and
Warehousemen's Union, Local 4, demanded that
Aluminum Company of America assign the work of
unloading the Company's ships at the Company's dock at
Vancouver, Washington, be assigned to employees
represented by said Unions rather than to employees of
the Company in the bargaining unit represented by the
Aluminum Trades Council of Vancouver, Washington. By
threatening, coercing, and restraining the Company on
September 30, October 19, and December 7, 1965, and
thereafter in regards to the handling and shipping of the
Company's materials and products in the port of
Vancouver, Washington, with an object to force and
require the Company to assign the work of unloading of
the Company's ships at the Company's dock in
Vancouver, Washington, to employees represented by the
aforesaid Respondents rather than to employees of the
Company represented by the Aluminum Trades Council of
Vancouver, Washington, the Respondents have engaged
in and continue to engage in unfair labor practices
proscribed by Section 8(b)(4)(ii)(B) of the Act. The
aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, it is
recommended that International Longshoremen's and
Warehousemen's Union and Local 4, International
Longshoremen's and Warehousemen's Union,
Respondents herein, their officers, agents, successors,
and assigns, shall:
1. Cease and desist from threatening, coercing, or
restraining Aluminum Company of America, or any person
engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or require
Aluminum Company of America to assign the work of the
unloading of the said Company's ships at its dock at
Vancouver, Washington, to employees represented by said
Respondents rather than to employees of the Company in
the bargaining unit represented by the Aluminum Trades
Council of Vancouver, Washington.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at their business offices and meeting halls in
Vancouver, Washington, copies of the attached notice
marked "Appendix."5 Copies of said notice to be
furnished by the Regional Director for Region 19, after
being duly signed by their authorized representatives,
shall be posted by the Respondents immediately on
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to their members are
customarily posted. Reasonable steps shall be taken by
Respondents to ensure that said notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
aforesaid Regional Director for posting by Aluminum
Company of America at its Vancouver, Washington,
facility, it being willing, at all locations where notices to its
employees are customarily posted.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps the
Respondents have taken to comply herewith.°
5 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
6 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 ateps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL
LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION AND
LOCAL 4, INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION AND TO ALL EMPLOYEES OF
ALUMINUM COMPANY OF AMERICA, VANCOUVER,
WASHINGTON, FACILITY
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
Relations Act, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce, or restrain
Aluminum Company of America, or any person
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in commerce or an industry affecting
commerce, where an object thereof is to force or
require Aluminum Company of America to assign the
work of unloading its cargo vessels at its dock at
Vancouver, Washington, to employees who are
members of International Longshoremen's and
Warehousemen's Union and Local 4, International
Longshoremen's and Warehousemen's Union, rather
than to employees of the Company who are members
of or represented by the Aluminum Trades Council of
Vancouver, Washington, affiliated with the
Aluminum Workers International Union and Local
300, Aluminum Workers International Union
INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION
(Labor Organization)
Dated By
(Representative ) (Title)
LOCAL 4, INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN ' S UNION
(Labor Organization)
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 members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington,
Telephone 583-4583.
Filtors, Inc. and Local 411, National
Organization of Industrial Trade Unions.
Case 29-CA-528.
April 13,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On December 22, 1966, Trial Examiner Thomas F.
Maher issued his Decision in the above -entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner ' s Decision. He
' These findings and conclusions are based , in part, upon
credibility determinations of the Trial Examiner , to which the
Respondent has excepted After a careful review of the record, we
conclude that the Trial Examiner's credibility findings are not
contrary to the clear preponderance of all the relevant evidence
Accordingly , we find no basis for disturbing those findings
Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d
362 (C A 3)
163 NLRB No. 143
also found that the Respondent had not engaged in
other unfair labor practices and recommended that
the complaint be dismissed as to them. Thereafter,
the Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision and
supporting briefs.
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 Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the
case, including the exceptions and briefs, and
hereby adopts the Trial Examiner's findings,
conclusions,' and recommendations, except as
modified below.'
THE REMEDY
Having found that by transferring and thereafter
discharging Robert Conklin, Respondent
discriminated against him in violation of Section
8(a)(3) of the Act, thereby interfering with,
restraining, and coercing employees in violation of
Section 8(a)(1) of the Act, we shall order that it cease
and desist from this conduct. We shall also order
that Robert Conklin be reinstated to the position
which he held prior to his unlawful transfer on
January 17, 1966, or to a substantially equivalent
position, without prejudice to his seniority or any
other rights and privileges, and that he be made
whole for any loss of earnings suffered by him
because of Respondent's discrimination against him,
with backpay and interest thereon computed in the
customary manner.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Filtors, Inc.,
East Northport, Long Island, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Delete the word "Discharging" from the
beginning of paragraph 1(a) of the Recommended
2 The General Counsel excepts to the Trial Examiner's failure
to accord proper weight to his own conclusion that Robert Conklin
was transferred to an untenable situation for the purpose of being
fired As it is clear that the transfer was discriminatory, we find
merit in these exceptions and have modified the Trial Examiner's
Remedy, Recommended Order, and notice accordingly
3 F W Woolworth Company, 90 NLRB 289, Isis Plumbing &
Heating Co , 138 NLRB 716