ILWUDownload PDFNational Labor Relations Board - Board DecisionsApr 13, 1967163 N.L.R.B. 1039 (N.L.R.B. 1967) Copy Citation 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 ILWU 1041 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 Copy with citationCopy as parenthetical citation