International Longshoremen, Local 54

National Labor Relations Board - Board Decisions

Mar 28, 1980

248 N.L.R.B. 775 (N.L.R.B. 1980)

INTERNATIONAL LONGSHOREMEN, LOCAL 54 775
International Longshoremen and Warehousemen's
Union Local No. 54 and Hugo Neu & Sons In-
ternational Sales Corporation and the Learner
Company and P & M Trucking and General
Teamsters Local No. 439, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America. Case 32-
CD-37
March 28, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by The Learner Company and
Hugo Neu & Sons International Sales Corporation,
herein called, respectively, Learner and Neu or,
collectively, the Employer, alleging that Interna-
tional Longshoremen and Warehousemen's Union
Local No. 54, herein called Local54, had violated
Section 8(b)(4)(D) of the Act by engaging in cer-
tain proscribed activity with an object of forcing
or requiring the Employer to assign certain work
to its members rather than to employees represent-
ed by General Teamsters Local No. 439, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein
called Local 439.
Pursuant to notice, a hearing was held before
Hearing Officer John D. Meakin on November 20
and December 12, 1979. Local 54, Local 439, Neu,
and Learner appeared and were afforded full op-
portunity to be heard, to examine and cross-exam-
ine 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 Na-
tional Labor Relations Board has delegated its au-
thority 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 af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that The
Learner Company, wholly owned by Hugo Neu &
Sons, Inc., is a California corporation with princi-
pal offices in Oakland, California, with a scrap
P & M Trucking, herein called P & M, was served with a copy of
the notice of hearing, but did not appear at the hearing.
248 NLRB No. 103
yard at 2711 Navy Drive, Stockton, California, the
location of the dispute discussed herein. Learner is
engaged in the nonretail sale of scrap metal.
During a recent 12-month period Learner sold and
delivered goods to Neu, which goods were valued
in excess of $50,000 and were, in turn, shipped di-
rectly from Stockton to customers located overseas
or outside the United States. Hugo Neu & Sons In-
ternational Sales Corporation is located at 380
Madison Avenue, New York, New York, and is en-
gaged in the export of scrap metal. It is wholly
owned by Hugo Neu & Sons, Inc. During a recent
12-month period Neu sold and delivered goods
valued in excess of $50,000 directly located outside
the State of California and/or the continental
United States. We find that Learner and Neu are
both engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will ef-
fectuate the purposes of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATIONS INVOLVED
We find that Local 54 and Local 439 are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In 1971, Learner began shipping scrap metal to
overseas customers from the Port of Stockton.
Learner's yard is located about 1-1/2 miles from
the dock. From 1971 until 1979 Learner used a
vessel (originally named the "Suan" and later the
"Cosmos Gienah") equipped with a magnetic, on-
board crane. In 1971 Learner entered into a con-
tract with Local 54 covering employees who
hauled the scrap metal by truck from the Learner
yard to the dock. The magnetic, onboard crane
would unload the scrap from the truck and dump it
into the ship's hold. This mode of operation contin-
ued for only five shifts. 2 Approximately 4-6 ships
are loaded each year. It takes several days to load
each ship.
From 1972 until 1979 railroad cars rather than
trucks were used to transport the scrap from the
yard to the dock. Again, the onboard magnetic
crane was used to unload the scrap and deposit it
in the hold of the ship. The employees who operat-
ed the railroad cars were represented by several
railway employees' unions. Local 54 did not pro-
test this change in method of hauling the scrap in
2 A witness testifying on behalf of Local 54 explained that a strike in-
volving the "International" union resulted in termination of the trucking
operation.
__
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1972 or claim the work of hauling the scrap from
yard to dock.
In 1977, anticipating the loss of the use of the
vessel equipped with an onboard crane, the Em-
ployer began exploring alternative means of trans-
porting and loading the scrap. These options in-
cluded the possible leasing of storage space at the
dock site and the loading of the ship by means of a
conveyor belt. (This was not the method finally
chosen.) On October 23, 1978, Jack Hecht, execu-
tive vice president of Learner met with representa-
tives of Local 54 to discuss future loading oper-
ations at the Stockton dock. Hecht explained that
the charter on the ship would soon expire and that
the Employer was considering the use of the con-
veyor device described above, with the scrap being
hauled from the yard to the dock by truck. Local
54 representatives stated at that time that all the
work was Local 54 work and that Local 5i4 drivers
would have to drive the trucks. No agreement was
reached at this time.
On July 31, 1979, Hecht and Local 54 represen-
tative Pete Fuller had a telephone conversation. In
response to a comment made to Hecht by a third
party, Hecht explained to Fuller that Learner
never agreed that employees represented by Local
54 would do all the trucking between the yard and
the dock. Fuller referred to the 1971 agreement, 3
and stated that if Local 54 workers did not drive
the trucks, none of Hecht's ships would be loaded.
On October 9, 1979, Fuller telephoned Employer
representative Charles Schupack and asked why
Schupack wanted to have a P & M truck go to the
Port of Stockton. Schupack explained that he
wanted to use the truck to check the capacity of
the steel pan as soon as possible because a ship
would soon arrive to pick up a load of scrap metal.
Fuller said that Local 439 drivers could pick up
the load of scrap as long as they dumped the scrap
on the ground and not in the pan, that employees
represented by Local 54 would have to move the
scrap from the ground into the pan. When Schu-
pack asked what would happen if the Local 439
driver did dump the load into the pan, Fuller ex-
plained, "We would not load the ship, and we
would try to close down the yard."
On October 19, 1979, Hecht gave written notice
that Learner was terminating the 1971 agreement,
in accord with the provisions of that agreement.
On October 22, 1979, Hecht met with Fuller and
other Local 54 representatives. By this time a deci-
sion had been made by the Employer to haul the
scrap from the yard to the dock by end dump
trucks. At the dock, the trucks back into a large
J Hugo Neu & Sons, Inc., purchased Learner in 1976. Hecht stated he
was unaware of the 1971 agreement until Fuller mentioned it.
metal pan approximately 25 feet by 12 feet by 6
feet high and dump the load of scrap into the pan
as the truck drives out. The loaded pan is hoisted
over the hold of the ship by a crane positioned on
the dock and the scrap is then dumped into the
hold by tipping the pan. At the meeting Hecht ex-
plained that neither Learner nor Neu owned any
trucks suitable for the job, that Neu had made an
agreement with P & M to transport the scrap from
the yard to the dock, and that P & M had a con-
tract with Local 439. Fuller responded by saying
that the ship would not get loaded if the Local 439
drivers dumped the scrap into the pan. Fuller men-
tioned that another company, T & T Trucking, had
trucks driven by longshoremen. After Hecht ex-
plained that these were bottom-dump trucks, the
parties agreed that they would not be suitable for
the operation. Fuller then proposed that the Em-
ployer hire "ghost drivers," who would be repre-
sented by Local 54, who would ride in the truck
driven by a P & M employee or simply be carried
on the payroll. Hecht rejected the proposal as une-
conomical. Fuller stated, "We won't work the
ship."
B. The Work in Dispute
The work in dispute involves the transportation
of scrap metal from Learner's yard in Stockton,
California, to dockside at the Port of Stockton in
Stockton, California. The work of loading the ship
is not in dispute.
C. The Contentions of the Parties
Learner and Neu contend that the Employer's
preference, efficiency and economy of operation,
area and industry practice, the collective bargain-
ing between Local 439 and P & M, and the fact
that, unlike P & M, neither Learner nor Neu own
the necessary equipment to haul the scrap, favor an
award of the work to employees represented by
Local 439.
Local 439 argues that the work should be award-
ed to employees whom it represents. Local 439
contends that the history of the work assignment,
economy and efficiency of operation, the collec-
tive-bargaining agreement, and area and industry
practice, favor such an assignment of the work in
dispute.
Local 54, however, contends that no jurisdiction-
al dispute exists and that the notice of hearing
should be quashed.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
INTERNATIONAL LONGSHOREMEN, LOCAL 54 777
cause to believe that Section 8(b)(4)(D) has been
violated and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute. On the basis of the entire record, we con-
clude that the parties have not agreed upon a
method for the voluntary adjustment of the dis-
pute.
Local 54 contends that there is no reasonable
cause to believe that a violation of Section
8(b)(4)(D) has occurred inasmuch as the work had
previously been performed by employees represent-
ed by Local 54 and that any threats to take action
were part of Local 54's attempt to preserve its
work. Local 54 moves that the notice of hearing be
quashed. We find no merit to this contention and
deny the motion. Employees represented by Local
54 performed the work of hauling the scrap from
yard to yard to dock for a brief period of time in
1971. Shortly thereafter, the means for moving the
scrap was changed from truck to rail, and the haul-
ing work was performed by railway employees
represented by another labor organization. The
change was made without protest from Local 54.
Employees represented by Local 54 have not per-
formed the work in dispute since 1971. We find the
current threats to disrupt the Employer's oper-
ations too remote in time to constitute a belated at-
tempt to retrieve work once performed by Local
54 members.4 Accordingly, we find there is reason-
able cause to believe that a violation of Section
8(b)(4)(D) has occurred and that this dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors.5 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.6
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
The Learner Company and Local 54 entered
into a collective-bargaining agreement on March
31, 1971. The agreement provided, inter alia, that
Local 54 members would perform all interport
transfer work from the scrap metal plant to the
4 International Union of Operating ngineers. Local Union No. 12 (.4so-
ciazed Concrete Productsr Inc j 224 NLRB 1069 (197h)
s L.R.B. Radio & Tllevision Broadcast Engineers nion, Local
1212 International Brotherhoiod iif Electrical rorkers. .4FL-(CI [Co lurn-
bia Broadcasting Svtrtin]. 34 LUS 573 (1961h)
s International .4sroiatlon of .M1achonisit. Lodge No. 174 .A-I-. (1 0 J
.4. Jones (Conirructon ornpani). 135 NLRH 14()2 (19h2)
dock. However, the contractor also provided that
either party could terminate the agreement upon 60
days' notice. Such notice was given by Learner on
October 19, 1979; that collective-bargaining agree-
ment is no longer in effect.
There is a collective-bargaining agreement cur-
rently in effect between P & M and Local 439
which covers the work in dispute. This collective-
bargaining agreement favors the award of the work
to employees represented by Local 439.
2. Economy and efficiency of operation
Prior to its decision to contract with P & M to
haul the scrap, the Employer investigated a variety
of means for transporting the scrap from the yard
to dockside. Learner and Neu determined that it
would be uneconomical to buy the heavy duty
trucks used to haul the scrap inasmuch as the
trucks, costing approximately $70,000 each, would
be used about 42 days of each year. There are no
suitable trucks for rent or lease in the area; P & M
supplies the trucks with drivers at a flat hourly rate.
Local 54, during the course of the dispute, suggest-
ed that either employees represented by Local 54
be hired as "ghost drivers" or that the Local 439
drivers dump the scrap onto the ground at the
dock rather than into the pan. Either alternative
was shown at the hearing to be highly uneconomi-
cal. There are no employers in the area, with the
necessary equipment, who have collective-bar-
gainig agreements with Local 54. Thus, economy
and efficiency of operation favor the award of the
work to employees represented by Local 439.
3. Employer preference
The Employer's previous use of rail as a means
of transporting the scrap from yard to dock is no
longer an option. After considering the various al-
ternatives, the Employer decided to use P & M
trucks driven by employees represented by Local
439. Thus, the Employer's preference favors an
award of work to employees represented by Local
439.
4. Area practice
Local 439 has a large number of collective-bar-
gaining agreements with employers in the area to
perform the work of hauling materials by truck
over public roads, including carrying materials into
the Port of Stockton. Except for the brief period of
time in 1971 when employees represented by Local
54 trucked the scrap from the yard to the dock,
employees represented by Local 54 have never
driven trucks over public roads into the Port of
Stockton for any employer. The area practice
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favors an award of the work to employees repre-
sented by Local 439.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by Gen-
eral Teamsters Local No. 439, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America are entitled
to perform the work in dispute. We reach this con-
clusion relying on the assignment of the disputed
work to P & M employees represented by Local
439; the fact that this practice is consistent with the
area practice; the efficiency and economy of oper-
ations which result from such assignment; and the
existence of a collective-bargaining agreement be-
tween Local 439 and P & M. In making this deter-
mination, we are awarding the work in question to
employees who are represented by Local 439, but
not to that Union or its members. The present de-
termination is limited to the particular controversy
which gave rise to this proceeding.
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of P & M Trucking who are repre-
sented by General Teamsters Local No. 439, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
are entitled to perform the transportation by truck
of scrap metal from Learner's Stockton, California,
yard to dockside at the Port of Stockton in Stock-
ton, California.
2. International Longshoremen and Warehouse-
men's Union Local No. 54 is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to
force or require Hugo Neu & Sons International
Sales Corporation or The Learner Company to
assign the disputed work to employees represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Long-
shoremen and Warehousemen's Union Local No.
54 shall notify the Regional Director for Region
32, in writing, whether or not it will refrain from
forcing or requiring the Employer, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign
the disputed work in a manner inconsistent with
the above determination.