International Longshoremen'S Association Local Union No. 1329

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1302 (N.L.R.B. 1986)

1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen's Association Local
Union No. 1329 and C. H. Sprague & Son Co.
and State Fuel Handlers Union . Case 1-CD-
761
DECISION AND DETERMINATION OF
DISPUTE
31 July 1986
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
The charge in this Section 10(k) proceeding was
filed 17 December 19851 by the Employer, alleging
that the Respondent, ILA Local 1329, violated
Section 8(b)(4)(D) of the National Labor Relations
Act by engaging in proscribed activity with an
object of forcing the Employer to assign certain
work to employees it represents rather than to em-
ployees represented by Fuel handlers. The hearing
was held on 3, 4, and 18 February 1986 before
Hearing Officer Gerald Wolper.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
fording them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
The Employer is a wholly owned subsidiary of
A. Johnson Energy Marketing Company, Inc., a
Delaware corporation . The Employer is engaged in
the business of the storage, transportation, and/or
sale of petroleum and other products at its Provi-
dence, Rhode Island terminal, where it annually re-
ceives goods directly from points located outside
the State of Rhode Island valued in excess of
$50,000. The parties stipulate, and we ford, that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Local 1329 is a labor organization within the mean-
ing of Section 2(5) of the Act.
Although there is no stipulation concerning the
status of Fuel Handlers as a labor organization, the
record reveals that Fuel Handlers admits employ-
ees into membership and exists for the purpose of
dealing with the Employer concerning the wages,
hours, and other terms and conditions of employ-
ment of its employees . We therefore find that Fuel
Handlers is a labor organization within the mean-
ing of Section 2(5) of the Act.
1 All dates are in 1985 unless otherwise specified.
280 NLRB No. 147
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has operated a terminal in Provi-
dence, Rhode Island, since about 1905. Its employ-
ees at this terminal have been represented by the
Fuel Handlers since at least 1956. The Employer
and Fuel Handlers have been parties to successive
collective-bargaining agreements covering these
employees. The current collective-bargaining
agreement is effective 15 April 1985 to 14 April
1987.
Since 1905 , Sprague employees have been in-
volved in the unloading of ships which arrive at
the terminal with cargos of petrolem products and
bulk cargo of coal, pumice rock, and salt. The last
bulk cargos of salt unloaded at the Providence ter-
minal prior to December 1985 were in 1972. The
last cargos of other bulk materials unloaded prior
to December 1985 were in 1976.2 Prior to 1976 the
unloading of bulk cargos was performed manually
using a system of gantry cranes equipped with grab
buckets which were lowered into the hold of the
vessel to pick up and remove the cargo from the
hold. The cargo was then released from the grab
bucket into a hopper on the gantry crane tower
where it was fed onto a conveyor belt which trans-
ported the cargo along the dock and onto the
ground. The cargo was then stored until it was
loaded onto a truck and delivered to the customer.
During unloadings the Employer 's employees
were assisted by temporary employees, some of
whom were members of Local 1329. These tempo-
rary employees were primarily employed as "trim-
mers" who shoveled or swept the cargo from the
corners of the hold of the vessel to the center so
that the cargo could be removed by the crane. The
majority of these individuals who worked as "trim-
mers" were hired only to unload the vessel and
their employment was terminated when the unload-
ing was finished. These temporary employees were
hired on an as-needed basis either through the
union hall operated by Local 1329 or "off the
street."
In 1977 or 1978, the gantry crane system was
torn down because of deterioration and safety con-
siderations. In the summer of 1985 , the Employer
began constructing a new conveyor belt system at
its Providence terminal to replace the old gantry
crane system.3 The new system was completed in
2 The Employer handled no dry goods bulk cargos at the terminal
from 1976 to 1985.
i The new conveyor belt system was constructed as a result of an oral
agreement and a letter of intent between the Employer and Diamond
Crystal Salt Company in the spring of 1985.
LONGSHOREMEN ILA LOCAL 1329 (SPRAGUE & SON)
the fall of 1985. The Employer's employees were
involved in the construction of this system and
were given the responsibility of operating and
maintaining this system. As a result of the installa-
tion of this new system, the terminal can now
handle only self-unloading vessels. With this
system, the vessel mechanically unloads the bulk
cargo into hoppers on the conveyor belt which
then transports the cargo several hundred feet, at
which point the cargo is deposited on the ground
and stored until customers have the cargo taken
away.
On 22 October the Employer signed an agree-
ment with Diamond Crystal for the unloading of
bulk salt cargo at the Employer's Providence ter-
minal through the use of the new conveyor belt
system. About 14 December a ship arrived at the
Providence terminal containing the first salt cargo
to be unloaded under the agreement between the
Employer and Diamond Crystal. The unloading of
this cargo was the Employer's first use of the con-
veyor belt system. The work of tying and untying
the ship and the operation of the conveyor belt
system to accomplish the unloading of the salt after
it had been deposited into the hoppers were as-
signed by the Employer to its employees represent-
ed by the Fuel Handlers. The cargo was unloaded
on 14 and 15 December and the vessel departed
from the Providence terminal on 15 December.
The Employer's employees stacked and shaped the
pile of salt for loading and delivery by a subcon-
tractor hired by Diamond Crystal.
On 14 December while the vessel was being un-
loaded, Jack Gomes, president of Local 1329,
spoke with Henry Powers, the Employer's presi-
dent and chief executive officer, at the Providence
terminal. Gomes claimed that he had jurisdiction of
the work of unloading the salt cargo and wanted
his people to unload the ship. On 17 December a
similar claim was made by Gomes during a tele-
phone conversation between Gomes and the Em-
ployer's attorney. Gomes was told by Powers and
the Employer's attorney that the work had been
given to the Employer's employees represented by
the Fuel Handlers who had unloaded the vessels in
the past and that there was no need for extra per-
sons.
On 16 December and continuing until approxi-
mately midday on 19 December, a picket line was
set up at the Employer's terminal. The pickets car-
ried signs which read:
C.H. Sprague Co.
Does not conform to Community
Standards for Wages & Fringe Benefits
this sign is not for organizational purposes or
to induce employees not to work.
Local Unions 1329-2001
ILA AFL-CIO
1303
The picket line was removed following an agree-
ment between the Employer and Local 1329 to
seek an award under Section 10(k). The Employer
also agreed not to seek monetary damages for the
picketing that occurred.
B. Work in Dispute
The disputed work involves handling the salt
ship and offloading the salt cargo at the Employ-
er's Providence, Rhode Island terminal.
C. Contentions of the Parties
The Employer contends that the parties stipulat-
ed at the hearing that Local 1329 violated Section
8(b)(4)(D) of the Act by stipulating that the picket-
ing on 16-19 December was for the purpose of
forcing the Employer to assign the salt work to
employees represented by Local 1329. The Em-
ployer additionally contends that the record is re-
plete with evidence that reasonable cause exists to
believe that Local 1329 violated Section 8(b)(4)(D).
In this regard, the Employer cited the testimony of
Local 1329's president's admitting that the purpose
of the picketing was to show the Employer that
the disputed work belonged to employees repre-
sented by Local 1329 . Regarding the merits of the
dispute, the Employer argues that the disputed
work should be awarded to its own employees rep-
resented by the Fuel Handlers based on the factors
of collective-bargaining agreements ; company as-
signment, past practice, and preference; relative
knowledge and skills; economy and efficiency of
operations; and safety considerations.
Local 1329 contended at the hearing that no rea-
sonable cause exists to believe that it has violated
Section 8(b)(4)(D) of the Act. In this regard,
noting that paragraph two of the Employer's 22
October agreement with Diamond Crystal Salt
Company states that Diamond Crystal desires to
enter into an agreement "to allow Diamond Crystal
to accomplish the unloading of vessels as [sic]
Providence, Rhode Island, and storage of salt at
Providence for their own account," Local 1329
argued that the assignment of the disputed work
was not made by the Employer, but rather was
made by Diamond Crystal. Local 1329 also con-
tended that the disputed work should be assigned
to the individuals it represents because they have
performed such work in the past . Finally, Local
1329 argues that the collective-bargaining agree-
ment between the Employer and the Fuel Handlers
does not cover the work in dispute.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Applicability of the Statute
Before the Board may make a determination 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(bX4)(D) has been violated
and that the parties have not agreed upon a
method for voluntary adjustment of the dispute.
We find reasonable cause to believe that Local
1329 had violated Section 8(b)(4)(D) of the Act.4
Initially, it is clear from the record that the Em-
ployer, rather than Diamond Crystal, made the as-
signment of the disputed work. Under the agree-
ment between the Employer and Diamond Crystal,
the Employer was responsible for handling and
storing the salt owned by Diamond Crystal.
Further, although. the record shows that pickets
for Local 1329 appeared at the terminal with "area
standards" picket signs, Local 1329 does not con-
tend, nor does the record support a finding, that
the picketing had only an "area standards" pur-
pose . Although Local 1329's president testified that
the picket line was informational, he also testified
that the picket line was put up "so we would find
out who was in charge of assigning the work
which historically has been our work." Local
1329's president further testified that he felt that
the salt work at the Employer's terminal belonged
to employees represented by Local 1329 and that
the picket line "was caused to be put up because of
our work that was being performed there." Fur-
ther, Local 1329's president admitted that he was
"primarily trying to get any longshore work no
matter where it's at, to assign it to the workers that
are supposed to work it."
Additionally, there is no evidence in the record,
and no party contends, that an agreed-upon
method exists for the voluntary resolution of the
instant dispute . Accordingly, we find that the dis-
pute is properly before the Board for determina-
tion.
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.
4 Contrary to the Employer' s assertion, however, the record is unclear
whether the parties stipulated that Local 1329 violated Sec. 8(bX4)(D) in-
sofar as the Employer conditioned the stipulation upon "additional evi-
dence' because it "couldn't have 100% agreement on all of the language
in it"
Machinists Lodge 1743 Q. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certifications and collective-bargaining
agreements -
Neither labor organization has been certified by
the Board as the collective-bargaining representa-
tive of the Employer's employees in the appropri-
ate unit. Accordingly, this factor is not helpful' in
determining the dispute.
The Employer has no collective-bargaining
agreement with Local 1329. While the Employer
currently has a collective-bargaining agreement
with Fuel Handlers, and while the employees cov-
ered by such agreement have unloaded bulk cargo
at the Employer's terminal in the past, the agree-
ment does not specifically cover the disputed work.
We therefore find that the factor of collective-bar-
gaining agreements is inconclusive.
2. Company preference and past practice
The disputed work was performed for the first
time in December 1985 using the new conveyor
belt system for self-unloading vessels . Although the
record indicated that work similar to the work in
dispute was performed by the Employer's employ-
ees using the old gantry crane system for manual
unloading, the record discloses no past practice by
the Employer with respect to the assignment of
work identical to that in dispute. This factor, there-
fore, is not helpful to our determination.
The Employer, at the hearing and in its brief, ex-
pressed its preference that the disputed work con-
tinue to be performed by its employees represented
by Fuel Handlers because of their familiarity with
the dock and the equipment. The Employer's pref-
erence is also consistent with its assignment of the
disputed work since December 1985. This factor
favors an award of the work to the Employer's em-
ployees represented by Fuel Handlers.
3. Relative skills and safety considerations
The Employer presented undisputed evidence
that its employees represented by Fuel Handlers,
who have an average of 10 years' experience, pos-
sess the requisite skills to handle the lines on ships
and to operate , maintain , and repair the new con-
veyor belt system. Although Local 1329 presented
evidence that its members possess the requisite
skills to handle and unload self-unloading salt ships,
it presented no evidence that its members have op-
erated the type of conveyor belt system currently
utilized by the Employer, nor did it present evi-
dence that its members have the skills to maintain
LONGSHOREMEN ILA LOCAL 1329 (SPRAGUE & SON)
and repair the Employer 's conveyor belt system.
Accordingly, we find the factor of relative skills
favors awarding the disputed work to employees
represented by Fuel Handlers.
The Employer 's vice president testified that the
new conveyor system "could be dangerous" to op-
erate. The Employer also presented evidence that
it had a "very good safety record" at the Provi-
dence terminal . Local 1329 did not present any evi-
dence on this issue and did not otherwise dispute
the Employer's evidence . Accordingly , the factor
of safety considerations favors employees repre-
sented by the Fuel Handlers.
4. Economy and efficiency of operations
The Employer presented undisputed evidence
that its Fuel Handlers -represented employees are
able to repair the conveyor belt system immediate-
ly in the event that it breaks down and that break-
downs have occurred on several occasions. Local
1329 presented no evidence that the employees it
represents would be able to maintain or otherwise
repair the conveyor belt system . The Employer
also presented testimony that the new conveyor
system is automated and requires at most four per-
sons to operate it, whereas the minimum gang size
required by the ILA master agreement consists of
at least six persons for offloading salt . Accordingly,
and because we fmd that Local 1329 presented no
evidence showing that it would be as efficient or
economical to utilize employees represented by it
to perform the disputed work , we find that the
factor of economy and efficiency of operations
favors an award to the Employer 's Fuel Handlers-
represented employees.
1305
Conclusion
Upon the record as a whole , and after full con-
sideration of all the relevant factors , we conclude
that the Employer 's employees who are represent-
ed by Fuel Handlers are entitled to perform the
work in dispute . We reach this conclusion relying
on the Employer's preference ; relative skills and
safety considerations ; and economy and efficiency
of operations . In making this determination, we are
awarding the work to employees represented by
Fuel Handlers, not to that Union or its 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.
1. Employees of C. H. Sprague & Son Co., rep-
resented by State Fuel Handlers Union are entitled
to perform the work of handling the salt ship and
offloading the salt cargo at its Providence, Rhode
Island terminal.
2. International Longshoremen 's Association,
Local Union No. 1329 is not entitled by means pro-
scribed by Section 8(bX4)(D) of the Act to force
C. H. Sprague & Son Co . to assign the disputed
work to employees represented by it.
3. Within 10 days from this date , International
Longshoremen 's Association, Local Union No.
1329 shall notify the Regional Director for Region
1 in writing whether it will refrain from forcing
the Employer, by means proscribed by Section
8(bX4)(D), to assign the disputed work in a manner
inconsistent with this determination.