Inland Boatmen's Union

National Labor Relations Board - Board Decisions

Jan 6, 1977

227 N.L.R.B. 713 (N.L.R.B. 1977)

INLAND BOATMEN'S UNION 713
Inland Boatmen 's Union of the Pacific and C . F. Braun
& Company and Laborers International Union of
North America; International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local 959; International Brother-
hood of Carpenters and Joiners of America;
International Association of Bridge and Structural
Iron Workers; United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada ; Interna-
tional Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers, and Helpers; Inter-
national Union of Operating Engineers; and West-
ern Alaska Building and Construction Trades
Council.' Case 19-CD-258
January 6, 1977
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by C. F. Braun & Co., herein called the
Employer, alleging that Inland Boatmen's Union of
the Pacific, herein called IBU, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to employees
represented by IBU, rather than to employees repre-
sented by Laborers International Union of North
America, herein called Laborers; International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 959, herein called
Teamsters; International Brotherhood of Carpenters
and Joiners of America, herein called Carpenters;
International Association of Bridge and Structural
Iron Workers, herein called Iron Workers; United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, herein called Plumbers; Interna-
tional Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers, and Helpers, herein called
Boilermakers; International Union of Operating
Engineers, herein called Operating Engineers; and
the Western Alaska Building and Construction
Trades Council, herein called the Council.2
Pursuant to notice, a hearing was held in Anchor-
age, Alaska, before Hearing Officer Ralph G. Wil-
I At the hearing, the Western Alaska Building and Construction Trades
Council moved to intervene on the grounds that (1) the Council represented
various local unions affiliated with the International unions named in the
charge and the notice of hearing, and (2) the Employer had assigned the
work in dispute to the Council. The Hearing Officer granted the Council's
motion to intervene.
mot, Jr., on June 3, 4, 9, and 10, 1976. All parties
appeared and were afforded full opportunity to be
heard, to examine and .cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereafter,
all parties but Boilermakers filed briefs which have
been duly considered by the Board.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended,, the
National Labor Relations. Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the basis of the entire record in this case, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, a Delaware corporation, is engaged in
general construction throughout the United States
and in foreign countries. During the past 12-month
period, the Employer caused to be shipped to its
construction site in Kenai, Alaska, materials valued
in excess of $50,000 from suppliers located outside
the State of Alaska. Accordingly, we find that the
Employer is engaged in a business affecting com-
merce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the policies of the
Act to assertjurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that IBU,
Laborers, Teamsters, Carpenters, Iron Workers,
Plumbers, Boilermakers, Operating Engineers, and
Council are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is currently involved in the construc-
tion of an addition to a chemical plant in Kenai,
Alaska, for Collier Chemical Co. The construction
site is located approximately 1 mile from a temporary
dock, which the Employer constructed, for its use
2 Employees represented by Laborers, Carpenters, Iron Workers,Plumb-
ers, Boilermakers, and Operating Engineers are also represented by the
Council as these Unions are members of the Council.
3 Laborers, Carpenters, Iron Workers, Plumbers, Operating Engineers,
and the Council filed ajoint brief.
227 NLRB No. 105
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only, to accommodate incoming barges transporting
necessary materials for the construction site.4 Includ-
ed among the materials unloaded at the dock are
prefabricated building modules and general construc-
tion material. The temporary dock is located in Cook
Inlet, North Kenai, and is situated between two
permanent docks.
The barges are unloaded in the following manner:
as each barge arrives, it, is brought alongside the dock
where the air is forced out of the barge and replaced
by water. This results in the barge coming to rest on
the floor of the inlet. Once this has been accom-
plished, the barge and the dock are at the same height
and are contiguous to one another. The unloading
process then involves the movement of the various
materials from the barge immediately to the construc-
tion site for use there.
On March 23, 1976, Greg O'Claray, vice president
for the Alaska region of IBU, telephoned the Em-
ployer's manager for corporate labor relations, Paul
Wechter, and requested that the work of unloading
the barges at the Kenai construction site be given to
employees represented by IBU and that IBU was
reading and willing to negotiate contract terms for
such work. However, the Employer thereafter as-
signed the work of offloading the barges to a
composite crew of employees represented by the
various members of the Council noted above (fn. 2)
and Teamsters. In subsequent conversations, Wecht-
er informed O'Claray of that decision. Thereafter, on
April 15, 1976, members of the Kenai IB-U local set
up picket lines at the Kenai - construction dock,
protesting the assignment of the barge unloading
work to the composite crew. Thereafter, the Employ-
er filed the instant 8(b)(4)(D) unfair labor practice
charge.
B. The Work in Dispute
The parties stipulated that the work in dispute
involves:
All operations associated with the unloading of
goods of whatever nature to be used in the
addition to the Collier Chemical Plant (North
Kenai, Alaska), from water borne vessels at the
dock located between the Union Oil and Phillips
Petroleum docks and North Kenai, Cook Inlet,
Alaska, to the first point of rest, including
ballasting and on-shore docking and undocking
operations, excluding only the movement (includ-
ing winching) of "modules" on and from said
vessels .5
4 The Employer received permission from various Government agencies
to construct this temporary dock . Under the terms of its permit, the
Employer must remove the dock and return the beach to its original
-condition by the spring of 1978
C. Contentions of the Parties
The Employer contends that its assignment of the
work in dispute to employees of the composite crew is
correct and should be upheld. The Employer claims
that by the current assignment it is abiding by the
terms of the contracts it has with the various unions
represented in the composite crew. The Employer
also contends that the area practice involving the
unloading of barges at temporary docks adjacent to
construction sites has traditionally favored perfor-
mance of the work in, dispute by composite crews.
And, finally, the Employer argues that for reasons of
economy and efficiency it is mandatory that the
current assignment remain intact.
Laborers, Carpenters, Iron Workers, Plumbers,
Operating Engineers, and the Council in their joint
brief contend that the various contracts between the
unions represented in the composite crew and the
Employer require the continued assignment of the
work in dispute to composite crew employees. They
contend that in light of the Employer's integrated
operation (as explained below) if IBU personnel were
utilized such would hamper the efficiency of the
Employer's operation. They also contend that area
practice warrants that the present assignment of this
work remain as it is and that the composite crew-
members possess the requisite skills for performing
the work in dispute. Teamsters raises essentially the
same contentions as those set forth by the other
unions.
IBU contends that the Employer has made its
assignment based on erroneous information. IBU
claims that the area practice, contrary to the Employ-
er's contention, is for longshoremen to handle the
offloading of barges where a longshoremen's local is
in the vicinity. IBU also claims that, because of their
vast experience, longshoremen are able to unload the
construction material quicker, more skillfully, and in
a safer manner than employees of the composite
crew. Consequently, IBU claims -that the work in
dispute should be awarded to employees represented
by IBU.
D. Applicability of the Statue
Before the Board may proceed with the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) of the Act has been
violated and that there is no agreed-upon method for
the voluntary adjustment of the dispute.
5 The Employer has subcontracted the work of unloading and transport-
ing the prefabricated budding "modules" to Almas International and that
work is not claimed by IBU and is not in dispute here.
INLAND BOATMEN'S UNION 715
As it appears that IBU picketed the Employer to
force the reassignment of work from employees
represented by the various building trades unions and
Teamsters to employees represented by IBU, we find
that there-is reasonable cause to believe that there has
been a violation of Section 8(b)(4)(D) of the Act in
IBU's picketing. Also, it appears from the record that
there is no agreed-upon method for the settlement of
this dispute. Accordingly, we- conclude that the
dispute is properly before the Board for determina-
tion.
E. Merits of the Dispute
Section 10(k) of the Act requires - that the Board
make an affirmative award of the disputed work after
giving due consideration to all relevant factors
involved .6 The following factors , are relevant in
making a determination of the dispute before us: -
1. Certifications and collective-bargaining
agreements
There is no Board certification determining the
bargaining-representative for the employees assigned
the work in dispute.
The Employer has contracts with the various
unions whose members make up the composite crew.
Each particular agreement has a clause giving to each
respective union the work of unloading from the
Employer's barges the material and equipment that
union will eventually work with.
Specifically, article I of the Alaskan agreement
utilized by Operating Engineers which covers the
Employer provides in relevant part:
The Contractors recognize the Union as exclu-
sive bargaining representative of all engineers,
apprentices and mechanics falling within its
jurisdiction, employed on the Contractors' con-
struction and ' demolition work in the State of
Alaska, and includes the loading and unloading of
barges - or other carriers of the Contractors'
materials and equipment at landing facilities for
the Contractors' work.
Article I of the local agreement between the Alaskan
Chapter of the Association of General Contractors, of
which the Employer is a member, and Carpenters
provides, in pertinent part:
The Contractors recognize the Union as the
exclusive bargaining representative for all jour-
neymen, carpenters and apprentices employed on
all their construction work, and includes the
loading and unloading of barges or other carriers
of the Contractors' materials and equipment at
landing facilities for the Contractors' work.
Similarly, article V of the national agreement be-
tween the Employer and Boilermakers provides:
This agreement . . . covers the working rules and
conditions of employment for all journeymen
boilermakers and blacksmiths, apprentices and
helpers . . . including but not limited to: .. .
unloading and handling of boilermaker material
and equipment.
Article 1, section 1, of the local agreement between
Iron Workers and the Employer states that:
The Contractors recognize the Union's affiliation
with the Building and Construction Trades De-
partment of the AFL-CIO as exclusive bargaining
representatives of all Iron Workers employed on
all their construction work in the State of Alaska
and includes, whenever within this Union's craft
jurisdiction, the loading and unloading of barges
or'other carriers of the Contractors' materials and
equipment at landing facilities- for- the Contrac-
tors' work.
The local Laborers agreement between the Employer
and Laborers contains a clause identical to that
appearing in the Operating Engineers agreement.
Article II of the-national agreement binding the
Plumbers and the Employer provides:
This agreement covers the rates of pay, hours and
working conditions of all. journeymen and appren-
tices engaged in ... servicing and handling,
unloading, distributing, reloading, tieing on, and
hoisting of all piping materials, appurtenances
and equipment, by any method, including all
hangers and supports of every description and all
other work included in the trade jurisdictional
claims of the United Association.
And the local Association of General Contractors-
Teamsters agreement, at article I, states:
It is specifically recognized that this agreement
applies to employees who load and unload barges
or other carriers of the Employer's materials and
equipment at landing facilities serving the employ-
er's projects.
In contrast to these agreements, the Employer has
not entered into any contract with IBU and we note
that the contracts maintained by'IBU which include
6 See N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573(1961).
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the work of unloading barges are generally with
stevedoring companies and freight lines. IBU appar-
ently has not previously contracted with a general
construction contractor, such as the Employer, for
the type of work in dispute.
In view of the above, we conclude that the factor of
relevant collective-bargaining agreements favors an
award of the work in dispute to employees represent-
ed by unions comprising the composite crew.?
2. Efficiency and economy8
The Employer has attempted to functionally inte-
grate the offloading of the barges directly into the
construction phase of its operation. By so doing, the
Employer has sought to minimize delay and maxi-
mize the potential of its present work force by having
the building trades personnel and Teamsters handle
and move their own material from the barge and then
implement it directly into the construction phase of
its operation. Thus, each union of the composite crew
has been primarily responsible for the unloading,
receiving, and immediate utilization of the materials
with which it will work directly. For example,
employees represented by ,Iron Workers, would,, with
the assistance of the entire composite crew, be
responsible for the task of unloading any ironwork-
ers' material and then would accompany that materi-
al to the construction site. Once there, those same
ironworkers would then employ the material in the
construction of the plant extension. The same would
hold true for the remaining unions: each would be
responsible for the continuous flow of material from
the barge directly to actual construction. Further, the
arrival of the barges has been scheduled to coordinate
with certain phases of construction so that the
delivered material has immediate usefulness.
The work sought by IBU is limited to unloading
materials to its first point of rest; i.e., the dock.
Consequently, it is foreseeable that, if the work were
assigned to employees represented by IBU, members
of the composite crew, who would be unable to work
during the period the barges were being unloaded,
would either have to be paid for idle time or be laid
off. And, if layoffs of construction personnel resulted,
it is conceivable, in light of the Employer's overall
scheme of functional integration, that delays in
construction, caused by the sporadic expansion and
deflation of the work force, might occur.
We note also that the Employer has a ready pool of
building trades and Teamsters personnel on hand
r See, eg., Local Union No. 211 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO (Refrigeration Contractors, Inc), 190 NLRB 90, 91-92
(1971).
8 Teamsters and IBU have each contended that the specific hourly wages
of the employees to be assigned the work in dispute is a factor for
from which to draw when any barge work is required.
It is uncertain from the record whether IBU, with 22
registered and 6 semiregistered longshoremen in the
Kenai area, could readily supply the necessary
personnel to perform the required work without
causing the Employer to incur demurrage expenses;
i.e., penalty fees, for, detaining the barge beyond 96
hours.
Consequently, we find that the factors of economy
and efficiency favor an award to employees repre-
sented by the unions comprising the composite crew.
3. Employer preference
The Employer has assigned the work in dispute to
employees represented by the unions constituting the
composite crew. In the past, the Employer has
assigned the work of unloading barges to composite
crews at its construction sites in Illinois, Delaware,
California, and Trinidad, West Indies. Representa-
tives of the Employer testified that on all these
occasions, the composite crew's performance, in
terms of safety, skill, and economics, was more than
satisfactory.
We find the factor of employer preference and past
practice favors an award of the disputed work to
employees who are represented by unions comprising
the composite crew.
4. Area practice
Longshoremen do not unload barges at construc-
tion sites in rural areas of Alaska or in small villages
where there is no longshoring local available. The
work there is performed by composite crews of
construction employees. However, IBU contends that
the practice in Alaska is to use longshoremen to do
the unloading of barges at construction sites in urban
areas where a longshoring local is present. The unions
represented in the composite crew argue that, in the
instances relied on by IBU, longshoremen unloaded
the barges pursuant to a contract with either a
stevedoring company and/or a shipping company
and here the interested employer is a construction
company with contracts with the building trades
unions and Teamsters.
The site of the current dock has, on four occasions
in the past, served as a site for another temporary
landing facility for other construction work. At those
times, longshoremen twice unloaded the construction
barges. However, it is unclear from the record who
performed the unloading work on the remaining
consideration in the determination of the award . It is the Board's practice not
to rely on the differing rates of pay of the employees as a factor in
determining a jurisdictional dispute and, therefore , we have not based our
decision herein on the relative wage rates of either longshore or composite
crew personnel.
INLAND BOATMEN'S UNION 717
occasions. Moreover, the four occasions ranged from
9 to 15 years ago.
The present situation involves the use of a tempo-
rary dock facility by a construction company to
unload construction materials in an urban location.
This admixture of factors apparently renders the
situation somewhat unique . We note that at a private
dock in Valdez, Alaska, an urban area with a
longshoremen local available , a construction compa-
ny is utilizing a composite crew to do its unloading
rather than utilizing longshoremen. This single inci-
dent, however, is not enough to establish a pattern
favoring a composite crew in the circumstances
before us and we, therefore, find the factor of area
practice to favor neither IBU nor the unions repre-
senting the composite crew.
5. Skills
IBU contends that longshoremen possess the requi-
site skills, acquired over a long period of time, to
perform the unloading work. However, the record
indicates that the movement of the cargo at issue here
does not require a level of skill higher than that
possessed by employees currently comprising the
composite crew. Further, the method employed in the
unloading of the barges must be considered in
determining the skills necessary for performing this
operation. As described above, the ballasting method
used has rendered the unloading work comparable to
the movement of material on a stationary land
surface. In such circumstances, we find this factor
ultimately favors neither IBU nor the unions repre-
senting the composite crew.
7. Loss of jobs
IBU contends that the Employer's assignment of
work will result in the loss of jobs for those employees
it represents and that the principles noted in the
Board's decision in Philadelphia Typographical Union,
Local No. 2 (Philadelphia Inquirer) 9 are thus applica-
ble. IBU's reliance on the Board's Philadelphia
Inquirer decision is misplaced . In that case , employ-
ees represented by the Typographers were already
employed by the employer and were in danger of
losing their jobs if the work in dispute was awarded to
employees represented by the Photo Engravers. In
the instant proceeding, IBU has never represented
any of the Employer's employees. Accordingly, we do
not find that this factor favors an award to IBU.
Conclusion
Upon the entire record in this proceeding, and after
full consideration of all the relevant factors, in
particular the various collective-bargaining agree-
ments, the economy and efficiency of the Employer's
operation and its preference, we conclude that the
employees of the Employer who are represented by
the building trades unions and Teamsters are entitled
to perform the work in question and we shall make an
award of work in their favor. In making our present
determination, however, we award the work to
employees who are represented by the building trades
unions and Teamsters, but not to those unions or
their members. Further, our award is limited to the
particular controversy which gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
6. Safety
IBU contends that, because of their experience in
the unloading of water borne vessels, the employees
whom it represents are capable of performing the
work of unloading the barges in a safer fashion than
composite crewmembers. The Employer argues that
the exemplary safety record of the instant composite
crew in performing the disputed work belies the
contention of IBU. We note that evidence was
presented to indicate that the safety standards
governing the working conditions at the temporary
dock are the more stringent standards normally
applied to construction sites rather than the safety
regulations controlling marine operations involving
longshoremen. However, on balance, we find that this
factor favors neither IBU nor the unions represented
in the composite crew.
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of the
foregoing findings and entire record in this proceed-
ing, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of C. F. Braun & Co ., who are
currently represented by Laborers International
Union of North America ; International Brotherhood
of Teamsters , Chauffeurs, Warehousemen , and Help-
ers of America, Local 959; International Brother-
hood of Carpenters and Joiners of America ; Interna-
tional Association of Bridge and Structural Iron
Workers ; United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada ; International
Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers , and Helpers ; International
Union of Operating Engineers; and the Western
9 142 NLRB 36 (1963).
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alaska Building and Construction Trades Council,
are entitled to perform the disputed work of all
operations associated with the unloading of goods of
whatever nature to be used in the addition to the
Collier Chemical Plant (North Kenai , Alaska), from
water borne vessels at the dock located between the
Union Oil and Phillips Petroleum docks and North
Kenai , Cook Inlet , Alaska , to the first point of rest,
including ballasting and onshore docking and un-
docking operations , excluding only the movement
(including winching) of "modules" on and from said
vessels.
2. Inland Boatmen 's Union of the Pacific is not
entitled , by means proscribed by Section 8(b)(4)(D),
to force or require C . F. Braun & Co. to assign such
work to individuals represented by that labor organi-
zation.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Inland Boatmen's
Union of the Pacific shall notify the Regional
Director for Region 19, in writing , whether it will
refrain from forcing C . F. Braun & Co., by means
proscribed by Section 8(b)(4)(D ), to assign the work
in dispute to employees represented by it rather than
to employees represented by the building trades
unions , mentioned above , and Teamsters.
.1 1