International Longshoremen's Union, Local 8

National Labor Relations Board - Board Decisions

Sep 21, 1970

185 N.L.R.B. 658 (N.L.R.B. 1970)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's and Warehousemen's
Union Local 8 and Port Services Company. Case
36-CD-68
September 21, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN , AND JENKINS
This is a proceeding pursuant to Section 10(k)
of the National Labor Relations Act, as amended,
following a charge filed by Port Services Company,
hereinafter called Services or the Employer, alleging
that International Longshoremen's and Warehouse-
men's Union Local 8, hereinafter called the Long-
shoremen or Local 8, violated Section 8 (b)(4)(D)
of the Act. The gravamen of the charge is that
the Longshoremen by virtue of threats of picketing
the Employer's premises and adjacent sites, and other
acts, sought to force the Employer to assign certain
work to its members rather than to Services' employees
who are not members of the Longshoremen.' Pursuant
to notice a hearing was held before Hearing Officer
Lewis S. Harris on June 2, 1970.1 All parties were
represented at the hearing and were afforded full
opportunity to be heard, to examine and cross- examine
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
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed. The Employer filed a brief which we have
duly considered.'
Upon the entire record in this case, the Board
makes the following findings:
' On May 22, 1970, a Certification of Representative was issued
to Automotive Employees Council of Portland and Vicinity (herein called
the Council), as collective -bargaining representative for Services' employ-
ees performing the work in dispute Automotive Employees Council
was permited to intervene herein on the basis of its certification, and
it claims the disputed work for the employees it represents
' All dates cited occurred in 1970 , unless otherwise specified
In a letter to the Board dated July 14, Local 8 advised that it
would not file a brief in this proceeding because of its view that the
case is moot. According to Local 8, this is so because, as the letter
asserts, Services "is moving its place of business from the Portland
Public Docks to another location" and no dispute of any kind involving
work assignments now exists between any party to this proceeding or
between parties and others who are not parties . We reject the Longshore-
I. THE BUSINESS OF THE EMPLOYER
The Employer is an Oregon Corporation engaged
in performance of predelivery services upon new auto-
mobiles imported from Europe and Japan. These serv-
ices primarily consist of de-cosmolining and underseal-
ing these automobiles after they have been off-loaded
from ships berthed at the facilities of the Portland
Commission of Public Docks. In the year antedating
the hearing herein, the worth of these operations
exceeded $500,000 derived from the servicing of
approximately 15,000 vehicles. The value of these
automobiles, which were subsequently transshipped
to points within and outside the State of Oregon,
is about $30 million.
In view of the foregoing, we find that Services
is engaged in interstate commerce within the meaning
of Section 2(6) of the Act and that it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Long-
shoremen and the Council are labor organizations
with the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer, as mentioned above, is engaged
at the Portland public docks in performing certain
services upon automobiles of foreign manufacture
shipped to the United States from diverse overseas
points. These automobiles are unloaded at various
docks or wharfs located on the Willamette River
waterfront by stevedoring firms employing members
of Local 8. Services assumes transitory possession
of the various Volkswagen, Opel, Toyota, Peugeot,
Renault , Datsun , Volvo, Subaru , and BMW brand-
named autos after they have come to rest on the
adjacent dock areas. At this juncture, they are parked
and inspected by U.S. Customs agents, representatives
men's view that this proceeding is now moot , particularly in view of
the fact that there is outstanding an order pursuant to Sec . 10(1) of
the Act, issued by the United States District Court for the District
of Oregon, granting a temporary injunction enjoining Respondent ILWU,
Local 8 from "picketing at or in the vicinity of the Terminal 4 or
Sea-Land facilities" where an object thereof is "forcing or requiring
Services to assign the work of cleaning , undercoating and otherwise
servicing foreign vehicles to workmen who are members of, or represented
by Respondent , rather than to its employees who are not members
of or represented by Respondent" As is customary in these cases, by
its terms the Court's injunction is effective " pending the final disposition
of the matters herein before the National Labor Relations Board " Conse-
quently, we do not consider the subject matter herein as being moot
in any sense.
185 NLRB No. 95
INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 8
from the steamship company , the appropriate consign-
ee and an Employer 's representative . The cars are
checked and counted by Dock Commission employees
to ascertain the accuracy of the bills of lading. If
all is in order , the cars are accepted by the consignee-
dealer who then bails them to Services for the accom-
plishment of the designated predelivery tasks. They
are then driven to Services ' shops and yards located
nearby by its employees.
On or about April 13, the Employer relocated
its cleaning and servicing facility from a point near
Terminal 1 to a site adjacent to Terminal 4-both
of these sites being established upon property leased
from the Commission of Public Docks [CPD]. Accord-
ing to the Employer , this move was dictated by
the need to "follow the cargo" because the CPD
had developed a new floating dock and parking area
constituting Terminal 4 to accommodate the growing
influx of imported automobiles being landed at
Portland. On April 15, F. Huntsinger, president of
Local 8, had a conversation with A. Herman, the
Employer ' s president and general manager.
Huntsinger told Herman that Services "should be
hiring longshoremen from the hall and should
discharge our present employees . . . or no
additional auto ships with cars consigned to us would
be discharged in Portland ." Herman responded by
stating that he did not believe that the Employer's
work fell within Local 8 's jurisdiction and that he
rejected the proposal to hire longshoremen for its
accomplishment.
Shortly thereafter, on April 20, the steamship
TAFU docked with approximately 400 Toyota cars
scheduled for servicing by the Employer once they
were unloaded . Local 8 posted pickets at the gate
to Terminal 4 and the gang of Longshoremen dis-
patched to the job refused to cross the picket line.
Consequently, this cargo was not removed at Portland
and the vessel eventually proceeded to Longview,
Washington , where this freight was discharged . Later,
on May 11 , the ship Eastern Diamond , laden with
Honda automobiles , was unloaded at Terminal 4 with
cars earmarked for work by Services. When the
Employer attempted to pick up the consignment,
checkers" at the terminal refused to release them,
stating that the release would be issued only if the
cars were removed directly away from the docks
or serviced by someone other than the Employer.'
Also, on May 11 , the Horai Maru , a ship carrying
Subaru automobiles destined for servicing by the
Employer, was picketed by Local 8. The ship was
' These cargo checkers are CPD employees who belong to the Port
Checker's Union of Local 8
5 Such as Columbia Warehouse Company-another firm operating at the
Port which furnishes the same service as the Employer upon imported new
automobiles Columbia 's employees who move the imported cars off the
dock are represented by Teamsters ' Local 223
659
unable to discharge this cargo because the work gangs
would not cross the picket line. Picket signs were
carried which bore the legend "Longshore Local 8
Picket Line." After laying in Portland for 14 or
15 days, the Horai Maru left with its cargo for
Vancouver, B.C., where it was finally unloaded. On
May 11, 12 , 13, and 14, a similar series of events
happened in connection with the docking of the Con-
stantia freighted with about 400 Volkswagens sched-
uled for undercoating and cleaning by Services. On
these dates pickets appeared with signs reading,
"ILWU Protests CPD Sellout" and consequently the
cargo was not discharged . No gangs were even dis-
patched to this vessel between May 15 and May
30, when it sailed with its cargo to Vancouver, B.C.,
to be unloaded there.
B. The Work in Dispute
This proceeding pertains to the assignment of cer-
tain work related to the predelivery servicing of new
imported cars landed in the United States at the
Portland Public Docks . This servicing includes the
cleaning and de-cosmolining, undercoating, and,
where necessary , making of minor body repairs, and
painting of these automobiles by the Employer prior
to their distribution to various car dealers . The disput-
ed work also involves the driving or moving of the
subject cars from the immediate off-loading dock
areas to Services' facilities , also located on the water-
front, for the performance of these services . Finally,
the work encompasses the eventual loading of these
cars for transport to various inland points.
C. The Contentions of the Parties
The Employer maintains that the disputed work
described above should continue to be performed
by its present group of employees , who are presently
represented by the Automotive Employees Council
of Portland and Vicinity, Intervenor herein. The Long-
shoremen's claim for the work , according to the
Employer, is singularly devoid of merit because there
is no evidence that Local 8 members possess any
particular qualifications to perform the Employer's
work , nor is there any showing of work history or
industry practice which would serve to entitle Local
8 members to the work.
The Longshoremen contend that there is no jurisdic
tional dispute existing between Local 8 and the
Employer but that the only dispute involved lies
between Local 8 and the Commission of Public Docks.
According to Local 8, the CPD breached its interim
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement with the Longshoremen on January 15,
by entering into a new lease with the Employer
relating to the latter 's new car servicing facility at
Terminal 4 . Local 8 also urges that it is entitled
to the specific work of moving the automobiles on
or about the docks by the provisions of certain
sections of the existing Pacific Coast Longshore
Contract between the ILWU and the Pacific
Maritime Association.6
As for the Council, it relies on its recent
certification as bargaining agent for Services'
employees and maintains that the disputed work
should continue to be performed by these employees
in accord with the Employer ' s assignment.
D. Applicability of the Statute
Before the Board may proceed to a determination
of dispute pursuant to Section 10(k) of the Act, it
must be convinced that there is a reasonable cause to
believe that Section 8(b)(4)(D) has been violated.
As demonstrated by the foregoing description of
the background of this dispute , the record contains
ample and uncontroverted evidence that commencing
on April 15, 1970, and at various times during the
month of May Local 8 sought and demanded, by
direct and indirect means, that Services assign the
disputed work to longshoremen rather than to
Services' employees now represented by the Council.
In addition, Local 8 instigated work stoppages
calculated to coerce the Employer by establishing
picket lines which its members would not cross when
dispatched to unload various ships berthed at
Portland laden with new foreign automobiles
destined for servicing by the Employer.
Accordingly, we find that there is reasonable cause
to believe that violations of Section 8(b)(4)(D) have
occurred, and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.7
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work after
giving due consideration to various relevant factors.'
1. Certification and bargaining agreements
There is no Board certification governing the
disputed work so that the claims of Local 8 and the
Council are unaffected by this factor.
As for bargaining agreements , as mentioned
previously, the Longshoremenicontended during the
hearing that a contract between the International
Longshoremen 's and Warehousemen ' s Union and the
Pacific Maritime Association [PMA] validates its
claim to the work which is concerned with "the
movement of cargo on the docks" and until cargo
comes to rest.9 This position is, according to Local 8,
founded upon the fact that CPD became a member
of PMA and, accordingly, Local 8's dispute resides
against CPD rather than Services.10 Although section
1.1 of the PMA Contract does, in general , assign all
labor involved in the movement of cargo on the docks
to longshoremen, it is by its own terms subject to
.,exceptions and enlargements set forth in this
Section 1." Section 1.72, also cited by Local 8, while
it does broadly define the term "dock" as used in the
contract , also restricts the definition of "cargo" to
that "which is loaded to or discharged from
oceangoing vessels or received or delivered by an
employer covered by this Agreement." In the
situation at hand, Services is not an Employer
covered by the Agreement. In this context, the
Employer cites section 1.11 which stipulates inter
alia, that the contract covers "inbound cargo only so
long as it is at a dock and under the control of any
vessel operator , agent , stevedore , or terminal covered
by this Contract Document." As previously shown by
the record evidence, the Employer's first contact with
the imported automobile occurs after it is in control
of the consignee who has received it from the
terminal. Accordingly, we find that under the
circumstances, especially the fact that Services does
not belong to PMA, no evidence has been adduced in
this proceeding affording Local 8 even a colorable
right derivable from the PMA contract which serves
in any legally significant way to justify Local 8's
claim.tt Moreover, we find no merit in Local 8's
position that it was somehow justified in coercing
Services merely because of CPD's alleged breach of
its interim agreement (mentioned , supra) with Local
o when during 1970, CPD leased new facilities to the
Employer on CPD property at terminal 4.
6 On February 5, CPD became a member of the Pacific Maritime
Association thus binding itself to!the terms of thejPacificiCoast Longshore
Contract which runs from July 1, 1966, to July 1, 1971
Although the Longshoremen argue that its "beer' was with the CPD
rather than Services,Fwe note that the record is devoid of any evidence
showing that the Respondent everlabandoned its demand for the disputed
work See Pile Drivers,lMillwrights & Window Erectors Local No 1966,
affiliated with United/Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Raymond/lnternational,/Inc ), 184 NLRB No 88, International
Union of Operating Engineers,, Local 520, AFL-CIO (Home Building
Contractors, Inc ), 168 NLRB No 38
'IN L R B v Radio and,Television Broadcasting Engineers Union
(Columbia Broadcasting System ), 364 U S 573 , International Association
sf Machinists, Lodge No 1743, AFL-CIO (J A. Jones Construction Co ),
135 NLRB 1402 ,
8 It appears from the record, !albeit somewhat ambiguously , that Local 8
during the hearing relmquished ' a portion of its broad claim to have its
members perform all of Services ' lwork when it seemed at one juncture to
restrict its demand only topbtammg for its members the right to perform the
job of moving the imported automobiles around the terminal areas
10 Services is not a memberlof PMA nor is it a signatory to the above-
described master agreement Also, neither PMA nor CPD was represented
at the hearing
11 Accord Pile Drivers , Millwrights & IWindow Erectors Local No 1966.
affiliated with United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Raymond International , Inc ), supra
INTERNATIONAL LONGSHOREMEN 'S UNION, LOCAL 8
2. Company and industry practice
Local 8 presented no evidence concerning any
particular qualifications possessed by its members
which would serve to justify its claim for the disputed
work as opposed to its continued performance by
Services' employees. However, there is un-
controverted evidence to the effect that the work in
question historically and traditionally does not fall
within the province of the longshoremen on the West
Coast. In fact, no evidence was adduced to show that
Pacific longshoremen had ever performed the jobs of
servicing or readying new imported cars at the docks,
or anywhere else for that matter." On the contrary,
Columbia Warehouse Company, a competitor of the
Employer at the Portland docks, performs the same
type of predelivery services for various consignees of
new imported cars, and its employees are represented
by a local of the Teamsters. In view of the foregoing,
we find that existing industry practice on the basis of
this record is a factor which militates against Local
8's claim for the disputed work.
3. Relative skills and efficiency of operation
The Employer showed that most of its production
jobs at least fall within the semiskilled category. In
order for an employee to become proficient as a
steam cleaner to remove cosmoline from the vehicles
being serviced, a minimum of 30 days' on-the-job
training is required. As for becoming a competent
undercoater, approximately 3 months of training
and experience is usually mandatory before one is
enabled to s; ray on the thick undercoat material
underneath the vehicles efficiently. In cars requiring
the installation of certain accessories, or needing
painting or body repairs, progressively more training
and skills are demanded for competent performance.
Local 8 has made no showing that any of its members
possess the necessary skills to accomplish
adequately these tasks. Therefore, we find that the
skill and efficiency factors involved favor the
continued performance of the work in dispute by
Services' employees represented by the Intervenor,
Council.
" Cf International Longshoremen's & Warehousemen', Union Local
No 50 (Brads-Hamilton Stevedore Compam and Wilaniette-Western
Corporation et al ) , I S I NLRB No 51
Conclusion
661
Having considered all pertinent portions of the
record, we conclude that employees of the Employer
represented by the Council are entitled to perform the
disputed work. As set forth above, Local 8 has
adduced no significant evidence in support of its
claim whereas the record demonstrates forcefully
that numerous relevant and material factors support
the existing performance of the work" by Services'
employees represented by the Council. Our
Determination hereunder is limit,,d to the particular
controversy which gave rise to this proceeding.
DETERMINATION O'l 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
hereby makes the following determinatio• of dispute:
1. Employees employed by Port Services Company
and represented by Automotive Employees Council
of Portland and Vicinity are entitled to perform the
disputed work of servicing new imported automobiles
including the cleaning and de-cosmolining,
undercoating, installing certain accessories, painting,
doing body repair work, and moving such
automobiles in and around the Portland Public
Docks once they have come into the possession of the
consignee and the Employer.
2 International Longshoremen's and
Warehousemen's Union Local 8 is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require Port Services Company to assign any
such disputed work to longshoremen who are
represented by that labor organization.
3 Within 10 days from the date of this Decision
and Determination of Dispute, International
Longshoremen's and Warehousemen's Union Local
8 shall notify the Regional Director for Region 19, in
writing, whether it will refrain from forcing or
requiring the Employer, by means proscribed in
Section 8(b)(4)(D), to assign the disputed work to its
members or to longshoremen it represents rather
than to employees represented by the Council.
" See Local 1 9 International Longchoremen ' c 4ccociation . AFL-CIO
(Marine 4 ccocmtion of Chic(go). 151 NLRB 89