International Longshoremen's Association

National Labor Relations Board - Board Decisions

May 20, 1980

249 N.L.R.B. 620 (N.L.R.B. 1980)

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen's Association; Interna-
tional Longshoremen's Association #1922; and
International Longshoremen's Association
#1526 and Sea-Land Service, Inc. (Atlantic Di-
vision) and District #1, Pacific Coast District,
Marine Engineers Beneficial Association, AFL-
CIO and Seafarers International Union of
North America, Atlantic, Gulf Lakes and Inland
Waters District. Case 12-CD-262
May 20, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Sea-Land Service, Inc. (At-
lantic Division), herein called the Employer, alleg-
ing that International Longshoremen's Association;
International Longshoremen's Association #1922;
and International Longshoremen's Association
#1526, herein called the Respondent, 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 District #1, Pacific Coast District, Marine
Engineers Beneficial Association, AFL-CIO and
Seafarers International Union of North America,
Atlantic, Gulf Lakes and Inland Waters District,
herein called MEBA and SIU, respectively.
Pursuant to notice, a hearing was held before
Hearing Officer Marvin P. Jackson on December
11, 12, and 13, 1979. All parties appeared and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evi-
dence 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 Respondent has filed a motion asking the Board to accept exhibits
pertaining to the proceedings before United States District Judge Sidney
Aronovitz, which the Hearing Officer rejected, to take administrative
recognition of the contents of these exhibits, and to dismiss the 8(bX4)(D)
charge based on the district court proceeding. We hereby grant the
motion to the extent we take administrative recognition of the contents of
the rejected exhibits, but we deny the motion in all other respects as the
district court proceedings do not address the issues decided herein.
249 NLRB No. 69
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Delaware corporation with a place of
business in Port Everglades, Florida, is engaged in
the containerized ocean transportation business.
During the past year, the Employer purchased and
received at its Port Everglades facility goods and
materials valued in excess of $50,000 directly from
vendors located outside the State of Florida. The
parties also stipulated, and we find, that the Em-
ployer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Re-
spondent, MEBA, and SIU are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
On October 2, 1979,2 the Employer began oper-
ating a Paceco shoreside container crane at its Port
Everglades, Florida, facility. The Paceco crane is
used to load and unload containerized cargo on
and off oceangoing vessels. The Employer assigned
the maintenance work on the Paceco crane to one
MEBA member and two SIU members, the MEBA
member supervising the work of the SIU members
along with performing maintenance duties. The
Employer assigned the actual operation of the
crane to Respondent's members.
On October 2, Respondent's representatives told
the Employer's director of labor relations that it
wanted the Paceco crane maintenance work for its
members; that same day Respondent's members
began picketing the Port Everglades facility. The
parties stipulated that the purpose of the picketing
was to force the Employer to assign the crane
maintenance work to Respondent's members. The
picketing lasted approximately 9 hours until United
States District Judge Sidney Aronovitz granted the
Employer a temporary restraining order halting the
picketing and the resultant work stoppage. On Oc-
tober 23, a preliminary injunction was granted con-
ditioned upon the submission of the dispute to Re-
spondent's grievance process, including arbitration.
In accordance with the court order, Respondent
submitted the dispute to its contractual grievance
committee, the Labor Relations Committee, com-
posed of representatives of Respondent and the
Southeast Florida Ports Employees Association
2 All dates are 1979, unless otherwise stated.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION; ETC. 621
(herein SFPEA.). The Employer's stevedore, Har-
rington and Company, is a member of SFPEA. On
November 1, the Labor Relations Committee, rely-
ing solely on Respondent's collective-bargaining
agreements with SFPEA, particularly article 22 of
the "Clerks and Checkers Agreement," 3 deter-
mined that Respondent had jurisdiction to perform
the crane maintenance work. The Employer was
present at the Committee's hearing and voiced its
objection to the decision, contending it was bound
by its collective-bargaining agreements with
MEBA and SIU to award the disputed work to
their members. Neither MEBA nor SIU participat-
ed in this proceeding and their contracts were not
considered by the Committee.
On November 6 the Employer filed a charge
against Respondent alleging a violation of Section
8(b)(4)(D) of the Act. On November 23, Judge
Aronovitz confirmed the decision of the Labor Re-
lations Committee but ordered the preliminary in-
junction to remain in effect pending a determina-
tion by the Board in this proceeding.
B. The Work in Dispute
The parties agree, and we find, that the work in
dispute involves the maintenance work on the Em-
ployer's Paceco crane in Port Everglades, Florida.
This work basically entails performing repair work;
routinely checking electrical safety equipment, wire
rope, motors, brushes, bearings, and gears; chang-
ing wires; and vacuuming dust.
C. Contentions of the Parties
Respondent contends that the disputed work
should be awarded to employees it represents based
on article 22 of its "Clerks and Checkers Agree-
ment"; the decision of the Labor Relations Com-
mittee finding Respondent had jurisdiction to per-
form the disputed work; industry practice; econo-
my and efficiency of operation; and its members'
skills.
The Employer, the MEBA, and the SIU contend
that the work in dispute should be awarded to em-
ployees represented by the MEBA and SIU on the
basis of the MEBA's and the SIU's collective-bar-
gaining agreements with the Employer covering
the disputed work; the Employer's assignment and
past practice; industry practice; economy and effi-
ciency of operation; and the skills of MEBA or
SIU members.
3 Art. 22 of the "Clerks and Checkers Agreement" provides, "ILA
personnel shall have jurisdiction over maintenance, servicing and repair
of all container equipment either owned or leased including roll-on/roll-
off and all related equipment. The Employer retains the right to send out
for repairs and servicing all equipment under reasonable manufacturers
warranty or beyond the capabilities of ILA repair facilities."
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
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.
As stated above, the parties stipulated that the
object of Respondent's picketing of the Employer's
Port Everglades facility was to force the Employer
to assign the disputed work to employees it repre-
sents. There is no evidence that the parties have
adjusted or agreed upon any method for the volun-
tary adjustment of the work dispute. The Labor
Relations Committee's decision in favor of Re-
spondent is not dispositive of the dispute since nei-
ther the MEBA nor the SIU were parties to the
proceeding.4 Accordingly, we find there is reason-
able cause to believe that Section 8(b)(4)(D) has
been violated and the 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.
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
The collective-bargaining agreements between
the Employer and the MEBA and the SIU, respec-
tively, contain jurisdictional provisions that cover
the work in dispute. Likewise, Respondent's collec-
tive-bargaining agreement with the SFPEA gener-
ally covers maintenance work on container and re-
lated equipment. Accordingly, since both contracts
arguably cover the disputed work, we find that this
factor is not relevant to a determination of this dis-
pute.
4Local 130, Aluminum Workers International Union, AFL-CIO (The
Amaconda Company Aluminum Division), 222 NLRB 809 (1976); Interna-
tional Printing Pressmen and Assistants' Union of North America and
Albany Printing Pressmen and Assistants' Union No. 23 (J. R. Condon
Sons. Inc.), 148 NLRB 356 (1964). On May 31, 1979, in a proceeding pur-
suant to secs. 23, art. XX, of the AFL-CIO constitution, involving the
same unions and the same type of work as here (but pertaining to the
Employer's Portsmouth. Virginia, facility). Impartial Umpire D.Q. Mills
determined that the ILA violated sec. 2, art. XX, by claiming the crane
maintenance work and disrupting the collective- bargaining relationship
between the Employer and the SIU. The MEBA and the SIU argue that
this determination favors an assignment of the disputed work here to em-
ployees represented by their unions. An art. XX proceeding pertaining to
the Employer's Port Everglades facility has been instituted, but no deter-
mination had been made at the time of the 10(k) hearing. In any event
such a determination would not dispose of the issue here because the Em-
ployer is not a party to art. XX proceedings.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Employer's practice
The record reveals that the Employer's standard
practice has been to assign the disputed work to at
least one MEBA employee and two SIU employ-
ees. The Employer has followed this assignment of
work at all its facilities across the country since the
late 1960's, when the cranes used to load and
unload vessels were moved from the ships to the
shore. Accordingly, we find that the Employer's
past practice favors awarding the disputed work to
the employees represented by the MEBA and the
SIU.
3. Employer preference
The Employer has always used employees repre-
sented by the MEBA and the SIU to perform the
disputed work. It is satisfied with the results of its
assignment and prefers that they continue to do
this work. Thus, the Employer's preference favors
an assignment of the disputed work to the employ-
ees represented by the MEBA and the SIU.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the employees represented by the
MEBA and the SIU are entitled to perform the
work in dispute, and shall therefore award the
work in question to them.5
s Since there is no evidence that area or industry practice favors one
group of employees over another, we do not rely on that factor in
making our determination. Since there is no evidence that one group of
employees is more qualified to do the work than the other, we do not
rely on relative skills as a determinative factor. Since there is no evidence
that the use of one group of employees is more efficient or economical
than the use of the other, we do not rely on efficiency and economy of
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 the
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Sea-Land Services, Inc. (Atlan-
tic Division), who are represented by District #1,
Pacific Coast District, Marine Engineers Beneficial
Association, AFL-CIO and Seafarers International
Union of North America, Atlantic, Gulf Lakes and
Inland Waters District, are entitled to perform the
Paceco crane maintenance work at the Sea-Land
Services, Inc., Port Everglades, Florida, facility.
2. International Longshoremen's Association; In-
ternational Longshoremen's Association #1922;
and International Longshoremen's Association
#1526, are not entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require
Sea-Land Services, Inc. (Atlantic Division), 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's Association; International Longshore-
men's Association #1922; and International Long-
shoremen's Association #1526, shall notify the Re-
gional Director for Region 12, in writing, whether
or not it will refrain from forcing or requiring the
Employer, by means proscribed by Section
8(b)(4)(D) of the Act, to assign the disputed work
in a manner inconsistent with the above determina-
tion.
operation as a determinative factor. Finally, there are no joint board de-
terminations that would affect our determination of this dispute.