International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 360 (N.L.R.B. 1986)

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local Union 158 , a/w International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America i and Holt
Cargo Systems , Inc. and International Long-
shoremen's Association Local 1242, Local 1332,
and Local 1566, AFL-CIO
Warehouse Employees Union Local 169, a/w Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Re-
frigerated Distribution Center, Inc. and Interna-
tional Longshoremen's Association Local 1242,
Local 1332, and Local 1566 , AFL-CIO. Cases
4-CD-641 and 4-CD-642
31 January 1986
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
This is a proceeding under Section 10(k) of the
National Labor Relations Act. On 31 December
1984, Employer Refrigerated Distribution Center,
Inc. (RDC) filed a charge in Case 4-CD-642 alleg-
ing that Respondent Warehouse Employees Union
Local 169,' a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America (Teamsters Local 169), violated Section
8(b)(4)(D) of the Act by engaging in proscribed
conduct with an object of forcing RDC to assign
certain work to employees it represents rather than
employees represented by International Longshore-
men's Association, Local 1242, Local 1332, and
Local 1566, AFL-CIO (ILA Locals 1242, 1332,
and 1566). Also on 31 December 1984, Employer
Holt Cargo Systems, Inc. (Holt) filed a charge al-
leging that Teamsters Local Union 158, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Teamsters
Local 158), violated Section 8(b)(4)(D) of the Act
by engaging in proscribed conduct with an object
of forcing Holt to assign certain work to employ-
ees it represents rather than employees represented
by ILA Locals 1242, 1332,, and 1566. An order
consolidating cases and notice of hearing issued 23
January 1985. The hearing was held 5 and 6 March
1985 before Hearing Officer Michael P. Horne.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board finds the hearing officer's rulings free
from prejudicial error. On the entire record, the
Board makes the following findings.
1 The name of this Union appears as amended at the hearing
278 NLRB No. 51
I. JURISDICTION
Employer RDC, a Pennsylvania corporation, op-
erates a cold storage warehouse at 8 East Oregon
Avenue, Philadelphia, Pennsylvania. During the,
12-month period preceding the hearing, it received
gross revenues in excess of $500,000 and provided
services valued at more than $50,000 to customers
located outside the Commonwealth of Pennsylva-
nia. Employer Holt, a Delaware corporation, is en-
gaged in warehousing, trucking, and stevedoring at
its facility in Gloucester City, New Jersey. During
the 12-month period preceding the hearing, it re-
ceived gross revenues in excess of $500,000 and
provided services valued at more than $50,000 to
customers located outside the State of New Jersey.
Based on the above stipulated facts, we find that
the Employers are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The
parties also stipulated, and we find, that Teamsters
Local 169, Teamsters Local 158, and ILA Locals
1242, 1332, and 1566 are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
RDC began operating the cold storage ware-
house at East Oregon Avenue in 1981. RDC signed
a contract with Teamsters Local 169 recognizing it
as the bargaining representative of the warehouse
employees. The warehouse contains a "defrost
room" where imported frozen meat is defrosted for
inspection by USDA inspectors. RDC subcontract-
ed the work of defrosting meat for government in-
spection to Holt. Holt used employees represented
by ILA Locals 1242, 1332, and 1566 to do the de-
frost work. In late 1983, RDC decided' to use its
own warehouse employees and canceled the sub-
contract with Holt. The ILA Locals formerly 'as-
sisting in frozen meat inspection immediately start-
ed picketing RDC, demanding the defrost room
work. At the same time, the ILA requested arbitra-
tion of whether RDC's cancellation of the subcon-
tract violated the ILA's collectivebargaining
agreement with Holt, alleging that Holt and RDC
are alter egos.
The arbitrator's award, to which only Holt and
the ILA were parties, issued 1 November 1984.
The award concluded that the cancellation of the
subcontract was not an "arms length transaction"
and that the Holt-ILA agreement and past practice
of the parties established that ILA labor is entitled
to assist in the inspection at RDC of all frozen
meat coming in over the pier at the Holt Marine
Terminal.
TEAMSTERS LOCAL 158 (HOLT CARGO)
The ILA resumed picketing at RDC after the ar-
bitrator's award issued. By letter dated 20 Decem-
ber 1984, Teamsters Local 169 informed RDC that
if it implemented the arbitrator's award and took
any part of the defrost room work away from the
Teamsters unit, Local 169 might well picket or
strike.
Meanwhile, Holt began construction of a defrost
room in its off-the-pier warehouse complex in
Gloucester City. (The warehouse complex is sepa-
rated from the Holt Marine Terminal by a wall.)
The defrost room was scheduled to be completed
in April 1985. Holt has long recognized Teamsters
Local 158 as the representative of its employees in
the warehouse complex and has a collective-bar-
gaining agreement with Local 158 covering these
employees.
By letter dated 6 November 1984, the ILA in-
formed Holt that ILA Locals 1242, 1332, and 1566
claimed the work of defrost and meat inspection to
be performed in the new defrost room. By letter
dated 20 December 1984, Teamsters Local 158 in-
formed Holt that if the defrost work in the new fa-
cility were not assigned to Local, 158, it would take
"all necessary legal action against [Holt], including
a strike."
B. Work in Dispute
The work in dispute consists of the unpackaging,
defrosting , inspection, and repackaging of merchan-
dise in the defrost room of Holt 's Gloucester City,
New Jersey facility and in the defrost room at
RDC's 8 East Oregon Avenue , Pennsylvania facili-
ty.
C. Contentions of the Parties
Holt and RDC contend that the work in dispute
belongs to employees represented by Locals 158
and 169 of the Teamsters because it is an extension
of the warehousing functions they now perform
under the Teamsters contracts with RDC and Holt
and that the factors usually considered by the
Board in resolving jurisdictional disputes without
question require the award of the work to employ-
ees represented by these two Unions. Teamsters
Local 158 adds that its members now perform
work in connection with the inspection of fruit,
butter, and other commodities under its contract
with Holt similar to the work in dispute . Teamsters
Local 169 argues that article I of its contract with
RDC gives Local 169-represented employees the
right to perform the work in dispute and stresses
that RDC does not have a contract with the ILA.
It emphasizes that the arbitrator 's award in favor of
the ILA is not controlling because Local 169 was
not a party to it and that Local 169-represented
361
employees can perform the disputed work more ef-
ficiently and economically than the ILA. Finally,
the ILA contends generally that the arbitrator's
award establishes that employees represented by
Locals 1242, 1332, and 1566 have a contractual
right to the work in dispute at both Holt and
RDC, that Holt's contention that the ILA cannot
perform defrost work economically is groundless,
and that experience and common sense favor an
award of the work to the employees represented
by the ILA. The ILA also contends that the cur-
rent area practice of using Teamsters for defrost
work should be disregarded and that the hearing
officer erred in excluding certain evidence con-
cerning the applicability of the ILA contract to
RDC. These contentions are set out more fully
below.
D. Applicability of the Statute
Before the Board may proceed under Section
10(k) of the Act to determine a jurisdictional dis-
pute, it must find that there is reasonable cause to
believe Section 8(b)(4)(D) has been violated and
that there is no agreed-upon method for resolving
the dispute binding on all the parties.
It is undisputed that by its 20 December 1984
letter Teamsters Local 169 informed RDC that it
would take "appropriate action . . . immediately"
if RDC took any part of the defrost work away
from the Teamsters unit and gave it to ILA labor,
in compliance with the arbitrator's award. This
action, the letter continued, "may very well" in-
clude picketing or a, strike. It is also undisputed
that by its 20 December 1984 letter Teamsters
Local 158 informed Holt that in its view compli-
ance with the ILA's demand for the new defrost
room work would breach the Teamsters contract,
and stated unequivocally that "in the event that the
work is not assigned to us, we intend to take all
necessary legal action against you including a
strike." Based on the foregoing, we conclude that
there is reasonable cause to believe that Teamsters
Local 169 and Teamsters Local 158 have violated
Section 8(b)(4)(D) of the Act. See Typographical
Union 6 (New York Times), 225 NLRB 1311 (1976)
(expression of, "readiness to strike" sufficient); Li-
thographers, Local 24-P (Beacon Journal), 185
NLRB 464 (1970) (union in possession of work
threatened to resist, reassignment by "appropriate
means, including a strike").
In addition, the parties have stipulated that there
is no mutually agreed-upon method for voluntarily
resolving this dispute. Accordingly, we, conclude
that the dispute is properly before the Board for
determination.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB v. Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573
(1961). The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Employer preference
RDC and Holt prefer to use their warehouse em-
ployees, represented by the Teamsters, to assist in
frozen meat inspection rather than employees rep-
resented by the ILA. Employer preference there-
fore favors an award of the work to the employees
represented by the Teamsters.
2. Employer past practice
RDC was formed in 1981 to operate the defrost
room and warehouse at East Oregon Avenue.
RDC officials testified that the defrost work was
initially subcontracted to ILA labor because the
ILA had had experience doing this work at the site
under a subcontract with the prior owner, but that
this arrangement would last only until RDC
learned the defrost business and felt capable of
doing the work with its own employees. ILA labor
performed the defrost work for approximately 18
months. In view of the provisional nature and rela-
tively short duration of the employment of ILA
labor in the defrost room, we are unable to find
that it establishes a "past practice" in favor of the
ILA. Rather, we find that RDC's past practice
does not favor an award 'of the work to employees
represented by either ILA or the Teamsters. Holt,
of course, has no past practice in that it had not
opened its new defrost room at the time of the
hearing and has never before operated a defrost
room.
3. Area practice
Currently, there are no defrost rooms in the Port
of Philadelphia or the entire Delaware Valley
manned by ILA labor. The record reveals that
unionized defrost rooms in the area are now oper-
ated by employees represented by Teamsters. The
ILA argues that current area practice should not
be counted against an award of the work to ILA
employees, however. It attests without contradic-
tion that prior to 1979, there were no inland de-
.I
frost rooms and the portside facilities were operat- 12, 1979) (order granting injunction), vacated (E D Pa Mar 8, 1983)
ed exclusively by ILA labor. It points out that in
1979 the ILA's container rules were enjoined 2
thus preventing the ILA from preserving the de-
frost room work. The ILA contends that it would
be inequitable to count ILA's relatively recent loss
of defrost work resulting from the container in-
junction against an award to ILA labor because the
Supreme Court has now held that the container
rules are lawful and may be enforced. NLRB v.
Longshoremen ILA, 105 S.Ct. 3045 (1985). We find
merit in this contention. Accordingly, we will not
count the current area practice against an award to
the employees represented by the ILA, but will
view it as a neutral factor favoring neither ILA nor
Teamsters labor.
4. Economy and efficiency
Prior to RDC's cancellation of the subcontract
with Holt, meat inspection was performed as fol-
lows. The palletized boxes of meat were trucked to
RDC and laid out on the warehouse floor by
Teamsters labor. Meat to be inspected was moved
by forklift to the entrance of the defrost room by
employees represented by Teamsters Local 169. An
employee from ILA Local 1332 loaded the boxes
onto a conveyor leading into the defrost room.
Employees represented by ILA Local 1566 took
the boxes off the conveyor and removed the slabs
of frozen meat. An employee represented by ILA
Local 1566 cut the frozen meat into 2-inch thick
slices on a bandsaw. An ILA Local 1566 employee
put the slices in plastic bags and immersed them in
a tub of hot water. When the meat defrosted, an
ILA Local 1566 employee took the meat from the
bags, put each slice in a stainless steel tray, and set
out the trays for the inspector. Once the meat was
inspected and approved, ILA Local 1566 employ-
ees put it back in the boxes, rebanded the boxes for
shipment, and stamped the entire lot with a USDA
stamp. The USDA inspector designated certain lots
of meat "skip" lots. These lots were stamped but
not inspected in the defrost 'room. During this
process, an employee represented by ILA Local
1242 kept track of the lots being inspected and
filled out the necessary paperwork. Once inspected,
the meat was put in storage at RDC or loaded on
trucks by Teamsters Local 169 employees. The
entire inspection process at RDC is now performed
by the Teamsters warehouse employees. The in-
spection process at Holt will be the same as it is at
RDC.
The record supports the Employers' contention
that the defrost work can be done more efficiently
2 Hirsch v Longshoremen ILA Local 1242 No 79-2022 (E D Pa June
TEAMSTERS LOCAL 158 (HOLT CARGO) 363
and economically by the warehouse employees rep-
resented by the Teamsters than by employees rep-
resented by the ILA. Meat inspection is not contin-
uous. The Employers must tell the ILA that a de-
frost crew is needed on the night before a contain-
er of meat is due. The Employers' witnesses testi-
fied without contradiction that each of the three
ILA locals claiming the work will not "turn to"
without the other two. The ILA crew therefore
must-consist of at least three employees. The ILA
crew arrives at 8 a.m. and is guaranteed a minimum
of 4 hours regardless of the volume of work. The
ILA foreman who worked in the defrost room at
RDC corroborated the Employers' assertion that at
times, when fewer containers arrive than expected
or the meat does not arrive promptly at 8 a.m., the
ILA crew is left with idle time. On the other hand,
the warehouse employees represented by the
Teamsters can be cross-utilized. The Employers es-
timate that'the defrost work can be done with one
to four employees, depending on the ratio of "skip"
to inspected lots. Warehouse employees can be
taken from their regular duties whenever- a contain-
er of meat arrives and can be returned to their jobs
loading, unloading, storing, and retrieving goods
whenever toe inspection is finished. RDC officials
testified that the inability to use ILA labor effi-
ciently for defrost work has resulted in a cost to
RDC per container of meat greater than the han-
dling price RDC is able to charge the importer.
Accordingly, we find that the factors of efficiency
and economy favor an award of the defrost work
to the warehouse employees represented by Team-
sters Local 169 and Teamsters Local 158.
5. Relative skills
As indicated above, meat inspection assistance
does not require special, training or expertise. Em-
ployees furnished by ILA Locals 1242, 1332, and
1566 have been doing this work for years. The
warehouse unit represented by Teamsters Local
169 has also been doing this work at RDC since
late 1983. The president of Holt testified without
contradiction that the employees represented by
Teamsters Local 158 could use their present skills
to do defrost work. These employees now assist in
USDA fruit inspection. Fruit to be inspected is
treated the same way, as meat to be inspected
except that it is not sliced on a band saw. Since
both ILA and Teamsters labor is capable of doing
the defrost work, the factor of relative skills does
not favor an award to employees represented by
either Union over employees represented by the
other.
6. Collective-bargaining agreements
Neither the RDC-Teamsters Local 169 contract
nor the Holt-Teamsters Local 158 contract specifi-
cally covers the work in dispute. Article I of the
Teamsters Local 169 contract states that RDC rec-
ognizes Local 169 as the bargaining agent "for the
classifications of employees set forth in Schedule
`A' . . . at the . . . facility located at Oregon and
Delaware Avenues." Schedule A lists various clas-
sifications including forklift operator/checker and
warehouseman. Article II of the Teamsters Local
158 contract states that Holt recognizes Local 158
as the bargaining representative of "the bargaining
unit which shall include those categories of em-
ployees specified in Exhibit 'A."' Exhibit A lists
various classifications including forklift operator,
conveyor loader, and warehouseman.
The Holt-ILA contract, on the other hand, does
specifically mention the work in dispute. Article 1
of the ILA Local 1566 agreement provides that the
work covered by the agreement shall include "(b)
. . . stamping . . . cargo" and "(c) .. . assist[ing]
in the inspection of frozen meat." Article 42 of the
same agreement lists the number of men to be em-
ployed when stamping various amounts of "frozen
or cooked beef or any other commodity in contain-
ers." A clause entitled "Jurisdiction-Work" in the
ILA Local 1242 agreement gives Local 1242 exclu-
sive jurisdiction over all clerking and checking of
freight, including vans, containers, and pallets, at
marine piers and terminals. The ILA Local 1332
agreement does not specifically mention defrost
work. The preamble of that agreement states, inter
alia, that it covers "work pertaining to sorting,
piling, palletizing, and refrigerated warehouses at
the piers and pier terminal." As outlined above,
however, ILA defrost crews have traditionally
consisted of members of all three locals.
Each agreement also contains a clause stating
that:
Employer-[signatories] and, to the extent legal-
ly possible, their related and affiliated compa-
nies . . . will not directly perform work done
on a pier or terminal or contract out such
work which historically and regularly has
been and currently is performed by employees
covered by this Agreement . .. unless such
work on such pier or terminal is performed by
employees covered by I.L.A. agreements.
The ILA asserts that the 1 November 1984 arbi-
trator's award establishes that the ILA agreements
entitle the employees represented by ILA Locals
1242, 1332, and 1566 to the disputed work. The ar-
bitrator cited the above clause appearing in all
three contracts, and concluded that "by practice,
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties have extended the definition of `pier or
terminal' to encompass the RDC defrost room."
He added, however, that a critical component of
his conclusion that the ILA's claim had validity
was the "pipeline aspect" of the inspection process,
i.e., that the meat was received at the Holt Marine
Terminal, sent to RDC, and inspected, all by ILA-
represented employees. He therefore concluded
that RDC was bound to use ILA labor to inspect
meat unloaded by the ILA at the Holt pier but
found "no basis . . . to go beyond that." ,
RDC is not a signatory to the ILA contract. At
the hearing, the ILA tried to present evidence that
Holt and RDC are alter egos in order to show that
the contract nevertheless applies to RDC as well as
Holt. The hearing officer excluded this evidence on
the ground that it was irrelevant. The ILA asserts
that the hearing officer committed prejudicial error
in doing so.
We conclude that the ILA agreements are enti-
tled to little weight. Assuming arguendo they apply
to both Employers, the agreements as interpreted
by the arbitrator entitle employees represented by
the ILA to only some of the disputed work. The
Employers ' witnesses testified without contradic-
tion that only 15 percent of the meat inspected at
RDC arrives through the Holt Marine Terminal.
Meat also arrives at RDC and the Holt warehouse
complex by rail from California ports and other
land-based locations as well as by Teamsters or
nonunion truck from other Port of Philadelphia
marine terminals . ILA labor has never been used in
the Holt warehouse complex, and meat arriving by
rail at both RDC and Holt is unloaded by Team-
sters.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Teamsters
Local 169 and Teamsters Local 158 are entitled to
perform the work in dispute. We reach this conclu-
sion relying on the Employers' preference and effi-
ciency and economy of operation, which outweight
the contractual claim to the work asserted by ILA
Locals 1242, 1332, and 1566. In making this deter-
mination, we are awarding the work to employees
represented by Teamsters Local 169 and Teamsters
Local 158, not to those Unions or their members.
The determination is limited to the controversy
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Refrigerated Distribution Center,
Inc. represented by Warehouse Employees Union
Local 169, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America are entitled to perform unpacking, de-
frosting, inspection, and repackaging of merchan-
dise in the defrost room of RDC's 8 East Oregon
Avenue, Philadelphia, Pennsylvania facility. Em-
ployees of Holt Cargo Systems, Inc. represented by
Teamsters Local Union 158, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America are entitled to per-
form unpackaging, defrosting, inspection, and re-
packaging of merchandise in the defrost room of
Holt's Gloucester City, New Jersey facility.