International Longshoremen's Union, Local 13

National Labor Relations Board - Board Decisions

Oct 25, 1966

161 N.L.R.B. 451 (N.L.R.B. 1966)

INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 13 451
I find that the Respondent in denying the Union financial records and informa-
tion which pertain to the computation of the Christmas bonuses, under the circum-
stances described herein, violated Section 8(a)(1) and (5) of the Act.6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent refused to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act by refusing to furnish financial
records and information pertaining to the computation of Christmas bonuses upon
the request of the Union, it is recommended that it cease and desist therefrom and
that it supply such information to the Union.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and it will effecuate the policies of the Act for jurisdiction to
be exercised in this case.
3. By refusing to bargain in good faith with the Union the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
6 The statutory "obligation to bargain in good faith includes the duty of the employer
to furnish to the Union relevant data to enable the representative effectually to bargain
for the workers." Sinclair Refining Company v. N.L.R.B., 306 F.2d 569, 571 (C.A. 5).
International Longshoremen 's and Warehousemen 's Union, Local
13, and International Longshoremen 's and Warehousemen's
Union and Princess Cruises Co ., Inc. and Marine Cooks and
Stewards Union , Seafarers International Union of North
America, AFL-CIO and Pacific Maritime Association, and
Jones Stevedoring Company, and Sierra Harbor Terminal Com-
pany. Case 21-CD-218. October 25, 1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following the filing of charges by Prin-
cess Cruises Co., Inc.' (hereinafter called the Employer), under
Section 8(b) (4) (D). The charges allege that International Long-
shoremen's and Warehousemen's Union and its Local 13 (hereinafter
collectively called the Respondent) threatened and coerced the
IIt was stipulated that Princess Cruises Co ., Inc., a . Panamanian corporation, and
Princess Cruises Company , a Washington corporation authorized to do business in Cali.
fornia, would be treated as a single entity for the purposes of this proceeding.
161 NLRB No. 49.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer in order to force the Employer to assign certain work to,
longshoremen represented by the Respondent rather than to person-
nel represented by Marine Cooks and Stewards Union.2 A hearing
was held on May 17, 18, 19, 20, 23, 26, and 27, 1966, before Hearing
Officer Barton W. Robertson. All parties appeared and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing on the issues. The rulings of the
Hearing Officer made at the hearing are free from prejudicial error
and are hereby affirmed. Briefs filed by the Respondent, Princess
Cruises, MCS, and PMA and its members Jones and Sierra have
been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
Upon the entire record in this proceeding, the Board makes the
following findings :
1. TIIE EMPLOYER INVOLVED
It was stipulated at the hearing, and we find, that the Employer is
engaged in the business of operating the SS Princess Patricia, a ves-
sel of Canadian registration, under a time charter from the Canadian
Pacific Railway, as a cruise ship between the port of Long Beach,
California, and certain west coast ports of Mexico. It was further
stipulated that in the course and conduct of its business, Princess
Cruises annually receives in excess of $1 million in passenger
revenue.
We find that Princess Cruises is an employer engaged in commerce
within the meaning of the Act, and that it will effectuate the policies
of the Act to assert jurisdiction in this proceeding.'
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Respondent and MCS
are labor organizations within the meaning of the Act.
3 Marine Cooks and Stewards Union, Seafarers International Union of North America,
AFL-CIO ( hereinafter called MCS ), was permitted to intervene and participate in the
hearing Pacific Maritime Association ( hereinafter called PMA) and its members Jones
Stevedoring Company ( hereinafter called Jones ) and Sierra Harbor Terminal Company
(hereinafter called - Sierra ) also sought , and were allowed , to intervene and participate in
the hearing.
3 We take official notice that PMA is an association of employers engaged in the shipping,
stevedoring , and terminal business at ports in California , Washington , and Oregon and
that members of PMA do an annual gross volume of business of $500 , 000 and transport
goods valued in excess of $50,000 annually for firms engaged in interstate commerce
Marine Cooks and Stewards Union ( Matson Terminals , Inc ), 156 NLRB 753. It was stipu-
lated that Jones , which is engaged in the stevedoring business in Long Beach , California,
and Sierra , which is engaged in terminal operations in Long Beach , California , are mem-
bers of PMA.
INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 13 453
III. THE DISPUTE
A. The work in dispute
It is stipulated that the dispute concerns the assignment of the
work tasks involved in the handling of the baggage of passengers
embarking on or debarking from the vessel SS Princess Patricia
between the point in the dock area where such baggage is received
from or turned over to the passenger and the head of the gangway.
B. The background
In 1945 MSC, with the aid and support of the Respondent, obtained
the right to have its personnel handle passenger baggage from and to
the head of the gangway and the clock area on American flag vessels
at the Los Angeles and Long Beach harbor complex,' and that right
was, and is, secured under contract with PIMA. At that time no for-
eign passenger ships had docked at Long Beach harbor. In the early
1950's when foreign passenger ships began to dock there, stevedoring
contractors obtained baggage handlers to unload the passengers' bag-
gage from the Respondent's dispatch hall without objection by MCS.S
Although the TICS personnel were assigned to do this work on
foreign ships in Wilmington harbor (which is part of the Los Ange-
les harbor) on occasion, in all but two cases I the employer reassigned
the work to longshoremen represented by the Respondent after the
area arbitrator found that they were entitled to the work on the
basis of past practice ' or on the basis of its contract with PMA.$
On or about August 26, 1965, 1\ICS, through its agent, Joseph
Goren, telephoned Robert Conners, vice president and general man-
ager of the Employer, and offered to furnish men to handle the bag-
gage of passengers of the SS Princess Patricia when it docked at
Long Beach harbor. Conners suggested that Goren contact its port
agent, Transmarine Navigation Corporation, and Goren did so by a
letter dated August 29. Sometime thereafter the Employer, rather
' We take official notice of our finding in Marine Cools cC Stewards (Matson Terminals),
supia, that Los Angeles harbor and Long Beach harbor should be treated as a single
entity.
5 Marine Cooks cC Stewards (Matson Terminals, Inc ), supra.
6 The work of handling passenger baggage on the SS Kungslaolm and the SS Rotterdam
was assigned to members of MCS in Matson Terminals, Inc , supra.
7 The pork of handling passenger baggage on the SS Caronia was reassigned to long-
shoremen represented by the Respondent after an Interim Award, dated April 20, 1964,
was issued by Area Arbitrator Germain Ilulcke The work of handling passenger baggage
on the SS Seven Seas was reterred b5 Respondent to the Coast Labor Relations Council
for arbitration but an award has not yet issued.
3 The work of handling passenger baggage on the SS Statendam was reassigned to long-
shoremen after an Interim Award, dated November 16, 1964, was issued by the area
arbitrator finding that section 1 11 of the Respondent's contract with PMA, is hich pro-
vided for the exclusive use of longshoremen represented by the Respondent , was applicable
and no past practice of using nonlongshoremen had been established.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than Transmarine, entered into negotiations with MCS, and, although
the record does not reveal their precise conversations, it is clear that
they discussed the possibility that an assignment of this work to per-
sonnel represented by MCS might cause a jurisdictional dispute with
the Respondent.,,
During this period of time, Transmarine entered into an oral con-
tract with Jones to supply stevedores and stevedoring services, and
with Sierra to operate the terminal at Long Beach. As members of
PMA, both Jones and Sierra were obligated by a contract between
PMA and the Respondent to assign longshoremen exclusively to
handle the baggage of passengers embarking on or debarking from
foreign flag vessels. Although a majority of the stock of Sierra is
owned by Transmarine and Jones, Transmarine is not a member of
PMA and has no collective-bargaining agreement with any labor
organization.
On December 2, the SS Princess Patricia arrived in Long Beach,
and MCS personnel were ordered for baggage handling at the request
of the Employer through its port agent, Transmarine. That same
morning the Employer and MCS executed a contract providing for
the exclusive use of personnel represented by MCS for handling
passenger baggage. After the execution of the contract, Conners and
Goren were informed that longshoremen represented by the Respond-
ent were refusing to allow the MCS personnel to unload the passen-
gers' baggage and were doing this work themselves.10 After being
informed of the dispute, Goren agreed to allow longshoremen to do
the work until he could bring his contract with the Employer to
arbitration. Thereafter, longshoremen were ordered to handle pas-
senger baggage on each of the next four occasions when the SS Prin-
cess Patricia docked in Long Beach. On March 10, an arbitrator
chosen by the Employer and MCS found in an oral award that the
contract indeed obligated the Employer to use only MCS personnel
to do this work and the Employer thereupon again reassigned the
work. When the SS Princess Patricia next docked in Long Beach,
MCS personnel unloaded the passengers' baggage. That same day
counsel for the Respondent called the Employer's attorney and
stated that if this work was not returned to longshoremen, the
Y It may also be noted that Mr. Linder, who is vice president of the Employer and
president of Transmarine , had a number of conversations with PMA's counsel concerning
the possibility of avoiding a jurisdictional conflict between MCS and Respondent.
'°Although the evidence is in conflict , the record indicates that the reason for the
presence of longshoremen was that Transmarine had failed to inform Jones that its nor-
mal practice , contractually provided , of ordering longshoremen from'the Respondent's dis-
patch hall was not to be followed in this case . Therefore, Jones' dispatcher merely followed
past practice and requested from the Respondent 's dispatch ball a normal complement of
longshoremen , including swingmen who could act as porters, without qualification, and
when they appeared at the dock , they disputed the right of MCS personnel to do this work.
INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 13 455
Respondent would picket the ship and do whatever else was neces-
sary to regain the work, unless the dispute was submitted to the
National Labor Relations Board for resolution. Respondent's counsel
later sent a confirming letter of intention to the Regional Office of
the Board. The Employer thereupon filed the charges presently before
us. On March 31, 1966, the area arbitrator, in an arbitration brought
by the Respondent against PMA, awarded the work to longshoremen
represented by the Respondent on the ground that Jones and Sierra
had control over the work and they were contractually obligated to
assign the work to longshoremen. Notwithstanding this award, MCS
personnel were assigned to handle passengers' baggage on the next
and final call of the SS Princess Patricia at Long Beach.
C. Contentions of the parties
The Respondent contends that the complaint should be dismissed
because there is no reasonable cause to believe that an unfair labor
practice had been committed within the meaning of Section 8(b) (4)
(D), but if the Board should decide otherwise and make a determina-
tion of the dispute, the work should be assigned to longshoremen on
the basis of past practices. MCS contends that the actions of
Respondent are sufficient to make the statute applicable, and the
Board should assign the work to its personnel on the basis of its
contract with the Employer. The Employer proclaims neutrality on
the issue of which group is entitled to the work, but does contend
that the dispute is properly before the Board. PMA, representing
itself, Sierra, and Jones, contends that an employer who enters into
an established industry cannot make a work assignment that is incon-
sistent with the established practices of that industry; but despite its
contract with the Respondent, it refused to take the position that only
longshoremen represented by the Respondent were entitled to do the
work.
IV. APPLICABILITY OF THE STATUTE
Before the Board proceeds with a determination 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 vio-
lated. On the facts set forth in section III, B, `supra, there appears
to be more than sufficient evidence to establish reasonable cause for
believing that Respondent violated Section 8(b) (4) (D) of the Act.
The Respondent did not dispute that it threatened the Employer
unless it would reassign the work to longshoremen, but contends that
the threat was only pro forma in that it was made at the' request of
the Employer and, therefore, cannot be considered a threat within
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meaning of Section 8(b) (4) (D). The Respondent further con-
tends that even if it did threaten the Employer, it did so because the
Employer induced the threat by serious misrepresentations and when
this was discovered, it withdrew the threat. These contentions, how-
ever, are not supported by the record, for there is no evidence other
than the bare assertions of Respondent's counsel to support them.
Therefore, we find that there is reasonable cause to believe that a
violation of Section 8(b) (4) (D) has occurred and that the dispute
is properly before the Board for determination under Section 10(k)
of the Act."
V. MERITS OF THE DISPUTE
Section 10(k) of the Act requires the Board to make an affirmative
award of disputed work in a jurisdictional dispute case after balanc-
ing all relevant factors in the light of commonsense and experience.12
In the instant case, certain factors which the Board frequently con-
siders are not helpful in determining this dispute. For example,
neither union has been certified as the exclusive bargaining agent of
the employees engaged in performing the disputed work; the work
requires no special skills and has been performed by both longshore-
men and MCS personnel in an efficient manner ; although the
Employer assigned, reassigned, and then restored the work to the per-
sonnel of its original assignment, it has for the purposes of this pro-
ceeding declared itself neutral; and the work in dispute does not
clearly fall within the jurisdiction of either union. In addition,
although both unions have contracts, the Respondent with PMA,
Jones, and Sierra, and MCS with the Employer,',' and arbitrators have
made favorable determinations thereunder, neither the contracts nor
the arbitrators' awards are of assistance in disposing of the dispute, for
these contractual obligations as interpreted by arbitration are wholly
inconsistent with each other.14 Therefore, we must make an affirma-
tive award of the disputed work based on other factors.
The question of whether longshoremen represented by the Respond-
ent or personnel represented by MCS are entitled to the work of hall-
"In light of this finding , it is unnecessary for us to consider whether there is cause to
believe that the Respondent also violated Section 8 ( b) (4) (D) on December 2, by prevent-
ing personnel represented by MCS to handle passenger baggage and force the Employer
to reassign the work to longshoremen.
12 iV.L.R B v Radio and Television Broadcast Engineers Union , Local 1212, IBEW
[ Columbia Broadcasting System], 364 U.S 573.
11 We take official notice of the fact that the Respondent filed a charge with Region 21
on May 27, alleging that the Employer violated Section 8 (a) (3) of the Act by entering
into an illegal prehiring contract with MCS.
iS We take official notice that in Matson, MCS not only admitted that it had an under-
standing with the Respondent and PMA that work was allocated on the basis of past
practice , but argued that this status quo understanding compelled a determination in its
favor.
INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 13 457
dling the baggage of passengers on foreign flag vessels between the
dock area and the head of the gangway is not a novel one. In Marine
Cooks & Stewards (Matson Terminals, Inc.), supra, the same ques-
tion was brought before us by the same labor organizations concern-
ing a dispute in the same harbor complex. There, based on past prac-
tice defined on a vessel-to-vessel basis, we held that the longshoremen
represented by Respondent were entitled to this work, except on two
vessels where MCS's claim based on past practice was undisputed.
However, MCS contends that even this factor is inapplicable for
determining the present dispute, inasmuch as the dispute here arose
on the very day that the ship first entered Long Beach harbor ; the
Employer -had never before used this harbor; and neither Trans-
marine nor Jones nor Sierra had ever handled a foreign flag vessel.
Yet, the absence of past practice on the SS Princess Patricia does not
compel nor even support the conclusion that the Employer can make
a work assignment for baggage handling that is wholly at variance
with the practice noted above of assigning longshoremen represented
by the Respondent to do this work on all foreign flag vessels except
for those two vessels where MCS personnel have always handled pas-
senger baggage. And this is particularly so when the Employer has
attempted to avail itself of the services of Jones, who, as a member of
this established industry, was obligated by contract to adhere to the
past practice of the industry of assigning this work on foreign flag
vessels to longshoremen represented by the Respondent. Under all the
circumstances , we conclude that the desirability of a uniform and pre-
dictable standard that would result from the adherence to the past
practice in the harbor complex requires an award of the disputed
work to the Respondent. In making this determination, we are assign-
ing the controverted work on the SS Princess Patricia, when docked
in Long Beach, California, to longshoremen represented by the
Respondent and not to that union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10 (k) of the Act, and upon the foregoing find-
ings , the Board makes the following determination of dispute.
Longshoremen in the unit represented by International Longshore-
men's and Warehousemen 's Union, Local 13, are entitled to perform
the work of handling of the baggage of passengers embarking on or
debarking from the vessel SS Princess Patricia between the point on
the dock area where such baggage is received from or turned over to
the passenger and the head of the gangway. -