International Longshoremen's Association, Local 1329

National Labor Relations Board - Board Decisions

Mar 30, 1977

228 N.L.R.B. 1114 (N.L.R.B. 1977)

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen's Association and its
Local 1329, AFL-CIO and Mohawk Trucking &
Salvage, Inc. and Teamsters Local No. 251, a/w
International Brotherhood of Teamsters , Chauff-
eurs, Warehousemen and Helpers of America.
Case I-CD-494
March 30, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
provides services outside Rhode Island which have
an annual value exceeding $50,000.
The parties further stipulated, and we find, that
Tidewater Terminal Company is a Rhode Island
corporation with its principal place of business in
Providence, Rhode Island, where it is engaged in
providing stevedoring services , having an annual
value exceeding $50,000 to companies that are
directly engaged in interstate commerce.
We find that Mohawk and Tidewater are employ-
ers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and it will effectuate
the purposes of the Act to assert jurisdiction herein.
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Mohawk Trucking & Salvage,
Inc., herein called Mohawk, alleging that Interna-
tional Longshoremen's Association and its Local
1329, AFL-CIO, herein called ILA, had violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring Mohawk to assign certain work to employ-
ees of Tidewater Terminal Company, herein called
Tidewater, who are represented by ILA rather than
to employees of Mohawk who are represented by
Teamsters Local No. 251, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called Teamsters.
Pursuant to notice, a hearing was held before
Hearing Officer Robert C. Rosemere on December
13, 16, and 27, 1976. Representatives of the ILA, ILA
Local 1329, Mohawk, and Teamsters appeared and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to adduce
evidence bearing on the issues . Thereafter, Mohawk,
the ILA, and Teamsters filed briefs.
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 fmds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record 1 in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
The parties stipulated, and we find, that Mohawk
Trucking & Salvage, Inc., is a Rhode Island
corporation with its principal place of business in
Johnston, Rhode Island, where it is engaged in
providing trucking services as an interstate carrier. It
II. THE LABOR ORGANIZATIONS INVOLVED
We find that the ILA, its Local 1329, and the
Teamsters are labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In August 1976,2 Mohawk entered into a contract
with the Diamond Crystal Salt Company, herein
called Diamond. Pursuant to this contract, Diamond
intended to ship several cargoes of rock salt, to be
used by its customers for highway ice and show
control, from its mines in the Bahamas to the Port of
Providence, Rhode Island. Mohawk agreed to
receive and store the salt at its unloading site in
Providence, and thereafter to transport the salt by
truck from the storage area to Diamond's customers
in Massachusetts, Connecticut, and Rhode Island.
Mohawk, which employs no stevedores and is not a
stevedoring company, contacted Tidewater in early
September and orally engaged its services to unload
the shipments of rock salt as they arrived in the Port
of Providence. Tidewater is a member of the
multiemployer Rhode Island Shipping Association,
herein called RISA, and its stevedore employees are
represented by the ILA under the terms of a
collective-bargaining agreement between RISA and
the ILA.
Since Tidewater had no trucks of its own, it was
understood that the salt would be unloaded into
Mohawk's dumptrucks, which would then convey the
cargo approximately a quarter of a mile to Mohawk's
salt storage facility. Mohawk originally intended to
have its own employees, who are represented by the
Teamsters, drive the trucks. Approximately I week
prior to the scheduled arrival of the first salt
shipment, John Campagnone, Mohawk's assistant to
the president, disclosed that intention to Raymond
I The Teamsters unopposed motion to correct typographical errors in the Y Hereinafter all dates are in 1976 unless otherwise stated.
official transcript is hereby granted.
228 NLRB No. 131
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION, LOCAL 1329
Silva , president of ILA Local 1329, at a meeting held
in Tidewater's offices and in the presence of its
superintendent , Walter Vincent . Silva reacted by
insisting that the truckdriving assignment belonged
to Tidewater's longshoremen in accord with the ILA-
RISA collective-bargaining agreement . At the 10(k)
hearing on this matter , Campagnone testified, and
Silva denied , that the ILA representative further
stated that the longshoremen would not unload the
salt ships unless they also drove the dumptrucks to
Mohawk 's storage area.
Campagnone , Vincent , and Silva scheduled and
attended another meeting on September 25 at the
Colonial Hilton Hotel in Cranston , Rhode Island.
John Amaral , president of Teamsters Local 251, was
among those representatives of the interested parties
who were also present at this meeting . Campagnone,
Vincent, and Amaral all testified that Silva repeated-
ly asserted both the contractual claim of the
longshoremen to the work in dispute and the warning
that no salt would be unloaded into trucks driven by
Mohawk's employees . Silva admits reiterating his
contractual claim but denies actually threatening any
refusal to work . It is undisputed , however, that no
resolution to the conflicting work claims was effected
at either the September 25 meeting or a subsequent
discussion between Campagnone and Silva on
September 27.
The first ship carrying Diamond 's salt cargo
arrived at portside in Providence on September 28.
When Silva once again rejected a request that
Mohawk 's employees be allowed to drive the trucks,
the task was assigned to the Tidewater employees
whom the ILA represents. Silva likewise refused to
let the teamsters in Mohawk 's employ , who had
driven the trucks to the dock area, ride along with the
longshoremen drivers in transporting the salt to the
dumping site at Mohawk 's storage facility.
Numerous mechanical breakdowns marred the
transportation of the first shipload of salt from
dockside to the storage area. Several witnesses
attributed the damaged clutches , gears , and brakes in
various Mohawk trucks to inexperienced handling by
the longshoremen drivers. Silva's testimony disputes
this assessment and blames teamster sabotage and
prior ill repair of the trucks for the breakdowns.
However, Silva personally directed the replacement
of several of the original drivers on September 28 in
an attempt to placate Mohawk 's president, Pasco
Izzo, who was furious at the damage for which he
believed the longshoremen were responsible. Silva
also consented to the substitution of teamsters for
longshoremen during the actual dumping of each
truckload of salt. Once again , witnesses at the 10(k)
hearing , with the exception of Silva, testified that
Tidewater's employees were so inexperienced as to
1115
be unable properly to backup the trucks and dump
their loads into the stockpile.
In the interim between the arrivals of the first and
second shiploads of rock salt, Mohawk 's representa-
tives attempted to procure the services of another
stevedoring company in Providence which would
unload the salt into trucks driven by Mohawk's
employees . Since Mohawk's efforts were unsuccess-
ful, Tidewater's employees again drove the dump-
trucks during the unloading of the second ship,
which arrived in port on November 14. Mohawk's
employees continued to operate the trucks when
dumping the salt in the storage area.
Subsequent to the filing of charges in this and a
related proceeding , the Board obtained an injunction
prohibiting the ILA from interfering with Mohawk's
use of its own employees as drivers while unloading
and transporting salt in the Port of Providence. As a
consequence , Mohawk's teamsters thereafter drove
its trucks in conveying salt from a third ship to the
storage area.
B. The Work in Dispute
The work in dispute involves the transportation by
truck of rock salt cargo over a distance of approxi-
mately one-quarter mile from dockside in the Port of
Providence to the salt storage facility maintained by
Mohawk.
C. Contentions of the Parties
Mohawk and the Teamsters both contend that: the
ILA and its Local 1329 have violated Section
8(b)(4)(D) by seeking to compel the assignment of
the disputed work to employees represented by the
ILA; a jurisdictional work dispute within the
meaning of Section 10(k) of the Act is involved
herein ; and the Board should award the work in
dispute to Mohawk's employees who are represented
by the Teamsters on the basis of factors including
Mohawk's current collective-bargaining agreement
with the Teamsters , the Employer's preference and
past practice , area and industry practice , relative
skills, and economy and efficiency of operation.
The ILA denies the existence of either a jurisdic-
tional dispute or reasonable cause to believe Section
8(b)(4)(D) has been violated by its representatives. It
further contends that the employees of Tidewater
whom the ILA represents are entitled to perform the
work in dispute not only because of the current
collective-bargaining agreement between the ILA
and RISA but also in view of past area and industry
practice.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Applicability of the Statute
Before the Board may proceed to a determination
of a dispute under 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 dispute.
The ILA contends that the dispute herein is not a
jurisdictional work dispute but rather one which
involves parallel contractual work claims made by
union representatives on behalf of their employee
units to the respective Employers of these employees.
It is clear from the record, however, that the ILA
sought to force the reassignment of the work in
dispute from Mohawk's employees, who are repre-
sented by Teamsters, to employees who are repre-
sented by the ILA. It is also well established that
"[t]he use of a second employer as a vehicle for
obtaining the work does not change the essential
purpose and impact of the pressure on the employ-
er."3 We therefore find that the ILA's attempt to
have Mohawk assign the disputed work to Tidewa-
ter's employees, rather than to another group of
Mohawk's employees who would be represented by
the ILA, is essentially identical to the jurisdictional
work dispute paradigm wherein competing unions
press adverse claims to a work assignment against a
single employer.
With respect to the alleged 8(b)(4XD) threat, the
ILA emphasizes that its representative, Raymond
Silva, testified that he only told all parties concerned
that the unloading of the salt ships must be done in
strict conformity with the ILA-RISA collective-
bargaining agreement. Silva denied that he expressly
threatened Mohawk with any work stoppage. How-
ever, Mohawk's Campagnone, the Teamsters Amar-
al, and Tidewater's Vincent all testified that on
several occasions during the meetings held prior to
the arrival of the first salt ship Silva told one or more
of them that his men would refuse to unload the salt
cargo unless the task of driving the dumptrucks were
assigned to Tidewater's longshoremen. On the basis
of this testimony and the entire record, we find there
is reasonable cause to believe that Section 8(b)(4)(D)
has been violated.
All parties agreed at the 10(k) hearing that no
voluntary method for resolving the current jurisdic-
tional dispute exists. Accordingly, we find this
dispute is properly before the Board for determina-
tion.
3 Harnischfeger Corporation v. Sheet Metal Workers International Associa-
tion, AFL-CIO, 436 F.2d 351, 353 (C.A. 6, 1970); also see International
Association of Bridge, Structural and Ornamental Iron Workers, Local 10,
AFL-CIO ( Vincent Metal Works), 215 NLRB 153 (1974).
4 N L. R. B v. Radio and Television Broadcast Engineers Union , Local 1212,
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.4 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.5
The following factors are relevant in making the
determination of the dispute before us:
1. Board certification and collective-
bargaining agreements
There is no evidence that Mohawk is failing to
conform to an order or certification of the Board
determining the bargaining representative for the
employees performing the work in dispute.
The current collective-bargaining agreement be-
tween Mohawk and the Teamsters explicitly covers a
unit of all regular and part-time truckdrivers and
contains a clause wherein "the Employer agrees that
no work or services of the kind, nature or type
covered by, presently performed, or hereafter as-
signed to the collective-bargaining unit will be
subcontracted, transferred, leased or conveyed in
whole or in part to any other plant, person or
nonunit employees, unless otherwise provided in this
Agreement." The contract therefore appears to
contemplate generally the task of driving trucks,
although it makes no specific reference to the work in
dispute.
In contrast, Mohawk has no collective-bargaining
agreement with the ILA. Since Mohawk, unlike
Tidewater, is not a member of RISA, it is not bound
in any manner by the terms of the contract between
that multiemployer association and the ILA. Even if
Mohawk were so obligated, it is not clear that either
of the principal contractual provisions relied upon by
the ILA in support of its claim is applicable to the
work in dispute. Part X, 1(d)(8) of the RISA-ILA
contract, which states that "Longshoremen equip-
ment operators must be employed up to the final
place of rest," appears in context to be referring only
to the unloading of ships bearing mixed cargoes of
steel and other products. In addition, the no-subcon-
tracting clause in the RISA-ILA agreement refers to
"work which historically and regularly has been and
currently is being performed" by longshoremen. As
will be more fully discussed below, the specific work
in dispute has not previously been performed in the
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
S International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1329 1117
Port of Providence and longshoremen there have
rarely operated dumptrucks for any purpose.
We find that the terms and coverage of the
collective-bargaining agreements, while not by them-
selves determinative, favor awarding the work in
dispute to the employees represented by the Team-
sters.
2. The Employer's preference and past
practice
It is clear from the record that Mohawk originally
intended and still prefers to assign the work in
dispute to its employees represented by the Team-
sters. Mohawk has no employees represented by the
ILA and has never assigned longshoremen to drive
its trucks. We find this factor favors an award to
employees represented by the Teamsters.
3. Area and industry practice
Prior to the arrival of Diamond's rock salt
shipments in September 1976, salt cargo had never
been handled in the Port of Providence. Numerous
witnesses testified extensively with respect to the
transportation practices involved in the unloading or
loading of various other industrial cargoes in
Providence or in other ports. It is evident from this
testimony that longshoremen working for a stevedore
company have regularly driven flatbed trucks or
forklift equipment while moving these cargoes
between the ships and storage areas.
On the other hand, the record shows that the
specific task of driving dumptrucks has rarely, or
never, been assigned to longshoremen. Since steve-
dore companies in RISA do not own dumptrucks,
they must engage the services of a trucking company
when transportation of materials by dumptruck is
required in conjunction with the loading or unload-
ing of ships. It is not the traditional practice of such
trucking companies to lease their dumptrucks
"bare," i.e., driverless; the companies' own driver
employees, who are often represented by the Team-
sters, drive these vehicles while they are being used
by the stevedores. John J. Orr, president of RISA
member John J. Orr and Son, could recall during his
testimony only one time , 7 or 8 years ago, when the
lessor of dumptrucks permitted his company to use
longshoremen drivers in lieu of the lessor's own
drivers. Moreover, the type of dumptruck used in
that operation was not the trailer type used to
perform the work in dispute herein. In fact, while
there have been several occasions when longshore-
men have been paid "stand by" pay by the
stevedores, John V. Sylvia, an experienced local ILA
official, testified that longshoremen have not actually
driven tractor dumptruck trailers within the last 20
years. We therefore find that the factor of area and
industry practice favors the claim to the disputed
work by employees represented by the Teamsters.
4. Relative skills
Both Mohawk and the Teamsters contend that
longshoremen lack the requisite skills and licenses to
operate the dumptrucks used to perform the work in
dispute. Teamsters Representative Amaral testified,
based upon his own 21 years of truckdriving
experience and his personal observation of Tidewa-
ter's employees driving Mohawk's trucks, that the
longshoremen were clearly unqualified to drive the
vehicles. In addition, John Campagnone and Pasco
Izzo , Mohawk's top executives, each testified that
Tidewater's drivers were so inexperienced that they
mishandled and damaged the trucks and were unable
to execute the backup and dumping maneuvers in the
storage area.
In response to the above allegations, ILA Repre-
sentative Silva disclaimed the responsibility of
longshoremen drivers for the damage to Mohawk's
trucks. As previously noted, he attributed the
numerous mechanical failures which occurred during
the unloading of the first and second shipments of
salt to previously existing faults and to sabotage by
teamster drivers who gave the trucks to the long-
shoremen with high gears and emergency brakes
engaged. Silva further stated that Tidewater's em-
ployees had no difficulty backing up the trucks and
dumping their loads, but he permitted teamsters to
substitute for longshoremen during operations in the
salt storage area in response to Izzo's request to give
some work to his senior standby employees. With
reference to the "Class C" licenses which Mohawk
and the Teamsters contend are required by Rhode
Island law for operators of dumptrucks, Silva both
denied the need of drivers within the port terminal
area for such licenses and introduced some evidence
that at least a few of the Tidewater drivers may have
had such licenses.
Notwithstanding the above testimony by Silva, it is
uncontroverted that longshoremen are not accus-
tomed to driving the particular dumptruck used to
haul Diamond's rock salt from dockside to the
storage area . Furthermore, Silva himself impliedly
admitted the longshoremen 's inexperience by testify-
ing that the teamsters were supposed to instruct
Tidewater's drivers about the trucks' operation and
that the drivers could not recognize the "sabotaged"
gear and brake problems or know how to resolve
them unless they received such instruction. Accord-
ingly, we find that the factor of relative skills favors
an award of the work in dispute to the employees
represented by the Teamsters.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Economy and efficiency of operation
It is clear from the record that Mohawk would
suffer certain diseconomies and inefficiency of
operation if Tidewater's employees were assigned the
work in dispute. In addition to any excessive repair
costs which Mohawk might incur from damage to its
trucks as a result of inexperienced handling, the
contract between Mohawk and the Teamsters re-
quires Mohawk to pay its drivers standby wages
while the longshoremen drive. Mohawk would also
have to expend its resources to train Tidewater's
employees to drive its trucks properly. We therefore
find that this factor favors awarding the disputed
work to Mohawk's teamster employees.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the employees of Mohawk who are
represented by Teamsters Local No. 251, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are entitled
to the work in dispute. We reach this conclusion
relying on the specific factors of the current
collective-bargaining agreement between Mohawk
and the Teamsters, Mohawk's preference and past
practice, area and industry practice, relative skills,
and the economy and efficiency of Mohawk's
operation. In making this determination, we are
awarding the work in question to employees who are
represented by Teamsters Local No. 251, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, but not to
that Union or its members . The present determina-
tion 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 Mohawk Trucking & Salvage,
Inc., who are represented by Teamsters Local No.
251, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
are entitled to perform the transportation by truck of
rock salt cargo over a distance of approximately one-
quarter mile from dockside in the Port of Providence
to the salt storage facility maintained by Mohawk.
2. International Longshoremen's Association and
its Local 1329, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Mohawk Trucking & Salvage, Inc., 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 and its Local 1329, AFL-
CIO, shall notify the Regional Director for Region 1,
in writing, whether or not it will refrain from forcing
or requiring Mohawk, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above
determination.