IMC Phosphate Terminal Co.

National Labor Relations Board - Board Decisions

Oct 5, 1970

185 N.L.R.B. 864 (N.L.R.B. 1970)

864 DECISIONS OF NATIC NAL LABOR RELATIONS BOARD
International Longshoremen 's Association Local
1402, AFL-CIO and IMC Phosphate Terminal
Company and International Chemical Workers
Union , Local 826 . Case 12-CD-147
October 5, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
This is a proceeding pursuant to Section 10(k)
of the National Labor Relations Act, as amended,
following a charge filed by International Chemical
Workers Union, Local 826,' alleging that International
Longshoremen's Association, Local 1402, AFL-CIO,2
had violated Section 8(b)(4)(D) of the Act by engaging
in certain proscribed activity with an object of forcing
or requiring the Employer, IMC Phosphate Terminal
Company, to assign the work in dispute to the ILA
rather than to the ICWU. Pursuant to notice, a
hearing was held on May 12 and 27, 1970, before
Hearing Officer C. W. Hunt, Jr. All parties participat-
ed in the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing on the issues.
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 made by the
Hearing Officer at the hearing and finds that they
are free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
IMC Phosphate Terminal Company, a corporation
incorporated in the State of Florida, is engaged in
the business of providing terminal facilities for the
storage and shipment of phosphate and phosphate
products at its Port Sutton, Tampa, Florida, facility.
During the previous 12 months, the Employer has
received at its Port Sutton facility products in direct
shipment from points outside the State of Florida
valued in excess of $50,000 and has shipped products
Hereinafter called ICWU
Hereinafter called ILA
directly to points outside the State of Florida from
its Port Sutton facility, which are valued in excess
of $50,000.
The parties have stipulated, and we find, that the
Employer is engaged in commerce within the meaning
of the Act, and that it will effectuate the policies
of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that the ICWU
and the ILA are labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The disputed work involves the assignment of ship-
loading at the Port Sutton, Tampa, Florida, facility
of the IMC Phosphate Terminal Company.
B. Background
As heretofore indicated, the Employer is engaged
in loading phosphate at its Port Sutton, Florida,
phosphate terminal. This phosphate is received in
both a wet and dry state from phosphate mines
in Polk County, Florida, some 40 miles away. The
Employer does not own the ships or barges into
which the phosphate is loaded, nor does it generally
retain ownership beyond dockside.
The Employer loaded approximately 28 vessels per
month, or approximately 1 per day, during the last
fiscal year. The shiploading operation consists of trans-
ferring phosphate rock from railcars and storage silos
into the holds of vessels. The phosphate is transported
by conveyor belt from the silo, or railcar dumping
facility, to the gantry tower which raises it (by convey-
or belt) to a chute which directs it into the ship's
hold. The bulk product of the hold of the ship requires
leveling (or trimming) on approximately 40 percent
of the vessels loaded. The trimming operation is per-
formed by placing a small bulldozer into the ship's
hold with the gantry crane, where the bulldozer is
used to level the bulk phosphate. The disputed work,
which involves the handling of the product aboard
ship, involves the job classifications of loading opera-
tor, bulldozer operator, and laborers.
During the negotiations between the Employer and
the ICWU on the terms of the November 1969 con-
tract, the Employer informed the ICWU, which had
been performing the work, that representatives of
the ILA had contacted it and demanded that employ-
ees represented by ILA be given the shiploading
185 NLRB No. 128
IMC PHOSPHATE TERMINAL CO
work at Port Sutton or the ILA would "close the
window" throughout the world on unloading of ships
carrying products of the Employer. During December
1969, after the current contract between the Employer
and the ICWU was signed, the ILA again repeated
its threat of "closing the window" on the Employer
throughout the world.
On February 2, 1970, during the contract term,
the Employer contracted out the disputed work to
the Pate Stevedoring Company, whose employees are
represented by the ILA. The instant charges were
filed by ICWU on March 12, 1970.
C. The Contentions of the Parties
The ICWU contends that the Employer subcon-
tracted the work in violation of the current contract
that it has with the Employer ; that the subcontracting
out was in response to threats of the ILA; and that
the employees of the Employer represented by it,
who had been performing the work , have suffered
a loss of income . The ILA' s position is not articulated,
since it refused to take a position at the hearing,
and did not file a brief with the Board . The Employer
contends that it had the right , under its contract
with the ICWU to subcontract the disputed work.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause
to believe that Section 8(b(4)(D) has been violated.
In this case, as detailed previously, the work in dispute,
until February 1970, had been assigned to the employ-
ees of the Employer, who are represented by the
ICWU. The ILA had been claiming the disputed
work, and, within the 10(b) period, made threats
that it would "close the window" on the Employer
throughout the world if it was not given the disputed
work. TheEmployer subsequently contracted the work
out to the Pate Stevedoring Company, whose employ-
ees are represented by the ILA. Under these circum-
stances, we find that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has
occurred and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
E. The Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work,
after giving due consideration to various relevant
factors. The Board has held that its determination
865
in a jurisdictional dispute is an act of judgment based
upon common sense and experience, reached by bal-
ancing those factors involved in a particular case.'
The following facts are relevant in making a deter-
mination of the dispute before us:
1. Collective-bargaining contracts
For about 6 years prior to February 1970, the
disputed work was performed by employees of the
Employer represented by ICWU. The current collec-
tive-bargaining agreement runs from November 2,
1969, to November 2, 1972. Under article IV of
the agreement, entitled "Management," the manage-
ment prerogatives include the determination of work
to be contracted out. On the other hand, in a Statement
of Intent and Policy appended to the contract, the
Company stated in pertinent part that:
Regarding all other work which is ordinarily
performed by regular employees under this Agree-
ment, it shall be the policy of the Company
not to let an independent contractor or contrac-
tors work unless such work cannot be performed
as economically or as promptly within the time
limits required by Management by regular
employees with the existing equipment, skills,
and facilities as by such outside contractor or
contractors
In February 1970, the Employer contracted the
disputed work out to the Pate Stevedoring Company,
whose employees are represented by ILA. In this
connection, the record establishes that the subcontract-
ing operation has been more costly to the Employer
than if the work had remained with the Employer's
union employees.
2. Skills and training
Some skill is required to operate the small bulldozer
used to level the phosphate in the hold of the vessels.
The time required to train a bulldozer operator is
estimated at 1 to 2 weeks No skill is required by
the laborers.
3. Efficiency and economy
The shiploading operation of the Employer has
proven to be more expensive on and after February
2, 1970, when Pate Stevedoring Company took over
the operation, than when it was accomplished by
employees of the Employer.
' International Association of Machinists, Lodge No 1743 (J A Jones
Construction Company), 135 NLRB 1402
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Gain or loss of job opportunities
When the Pate Stevedoring Company took 'over
the disputed work , approximately 12 Pate employees,
represented by the ILA, gained job opportunities.
Four nonbargaining unit salaried employees were ter-
minated to create jobs for employees presented by
ICWU. It further appears that the 12 hourly rated
unit employees of the Employer, who are represented
by ICWU, lost the opportunity to work overtime.
5. AFL-CIO Internal Dispute Plan
On August 3, 1967, David L. Cole, impartial
umpire, rendered a decision involving a dispute similar
to the instant one, in which he ruled that, because
of contract and other considerations, the activity of
the ILA against the ICWU at the Employer's Port
Sutton, Florida, terminal was in violation of section
2 of article XXI of the AFL-CIO constitution.
CONCLUSIONS
Upon the record as a whole, and after full consider-
ation of all relevant factors, we believe that the employ-
ees of the Employer, who are represented by the
ICWU, rather than employees of Pate Stevedoring
Company, who are represented by the ILA, are enti-
tled to the work in dispute. In reaching this conclusion,
we rely on the following factors: the Employer's
initial assignment of the disputed work to its own
employees; the fact that, until February 2, 1970,
this assignment was consistent with the Employer's
past practice; the fact that the current contract
between the Employer and the ICWU arguably gives
the ICWU some color of right to the work;4 the
fact that the Employer's employees, represented by
ICWU, possess the requisite skills to perform the
work, and that such assignment promotes efficiency
and economy of operations; and finally, that such
assignment-comports with the decision of the impartial
umpire in the similar dispute referral under the AFL-
CIO Internal Dispute Plan. Accordingly, we shall
determine the dispute before us by awarding the
work task of shiploading at the Employer's Port
Sutton, Tampa, Florida, facility to the Employer's
employees, represented by ICWU, rather than to the
employees of Pate Stevedoring Company, who are
represented by ILA.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
case, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of the Employer, IMC Phosphate
Terminal Company, who are represented by ICWU,
are entitled to perform the work task of shiploading
at the Employer's Port Sutton, Tampa, Florida, facili-
ty.
2. ILA is not entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require
IMC Phosphate Terminal Company to assign the
work in dispute to employees represented by the
ILA.
3. Within 10 days from the date of this Decision
and Determination of Dispute, ILA shall notify the
Regional Director for Region 12, in writing, whether
or not it will refrain from forcing or requiring IMC
Phosphate Terminal Company, by means proscribed
by Section 8(b)(4)(D), of the Act, to assign the work
in dispute in a manner inconsistent with this Determi-
nation.
' Prior to making its unlawful threats, and thereby persuading the
Employer to subcontract the work to Pate, Respondent had no contractual
claim whatever to the work