International Woodworkers of America, Local Union No. 3-129, AFL-CIO

National Labor Relations Board - Board Decisions

Nov 11, 1974

214 N.L.R.B. 843 (N.L.R.B. 1974)

INTERNATIONAL WOODWORKERS OF AMERICA , LOCAL UNION NO 3-129, AFL-CIO 843
International Woodworkers of America, Local Union
No. 3-129, AFL-CIO and Port Gardner Timber
Company, Inc. Case 19-CD-227
November 11, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Port Gardner Timber Company,
Inc., (herein Gardner), alleging that International
Woodworkers of America, Local Union No. 3-129,
AFL-CIO (herein IWA), has violated Section
8(b)(4)(D) of the Act. A hearing was duly held in
Seattle, Washington, before Hearing Officer Ralph
G. Wilmot, Jr., on April 23 and June 17, 18, and
19, at which International Longshoremen and
Warehousemen's Union, Local 32 (herein ILWU),
and Pacific Maritime Association (herein PMA) also
made appearances at the hearing.' All parties were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing upon the issues. Thereafter, Gardner, IWA,
ILWU, and PMA filed briefs.
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 rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
Gardner, a Washington corporation, is engaged in
the business of logging through subcontractors, mar-
shaling, sorting, bundling, and shipping logs to vari-
ous ports of call on the west coast. Its annual services
i At the conclusion of the hearing, IWA and Gardner moved that the
Hearing Officer reverse his original ruling permitting PMA to appear as a
party to the proceeding, but the Hearing Officer stood by his ruling This
motion was referred to the Board The record reveals that the disputed work
is done by stevedores employed by companies which are members of PMA
Furthermore, ILWU and PMA have a contract which is incorporated by
reference in the agreement between ILWU and Port of Everett pertaining to
the disputed stevedore activities Thus we conclude that in the interests of
fairness and with the view towards a more complete record and resolution
of the dispute, the Hearing Officer properly permitted the appearance and
intervention by PMA in this proceeding
for shipping companies located outside the State of
Washington are valued in excess of $50,000. The Port
of Everett is a municipal corporation which has,
since 1951, been involved in shipping, leasing indus-
trial property, and operating marinas. Everett Termi-
nal Co., Inc. (herein Terminal), is engaged solely in
the exporting of timber products to foreign ports and
is a separate entity from Gardner, although both
companies are owned by Puget Sound International,
Inc. PMA is an employer association of stevedoring
companies. We find that Gardner is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the IWA
and the ILWU are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of Dispute
When Everett Terminal was incorporated on De-
cember 28, 1971, it had no labor force, dock, or ship-
ping facilities, and conducted no log-handling opera-
tions. For the first year of its operation it was exclu-
sively a broker, buying and selling rafted logs. On
March 23, 1973, Terminal acquired a leasehold inter-
est in the Port of Everett terminal facilities at Hewitt
Avenue, Everett, Washington, consisting of nine
acres used for the storage of logs and access to docks
operated by the Port of Everett.
Since the incorporation of the Port of Everett in
1951, the ILWU has traditionally "serviced the
hook"; that is, brought cargo to the hook of the car-
go-loading crane situated aboard the vessel by which
it is loaded aboard the vessel. Since December 14,
1965, the Port of Everett has had a written agreement
with the ILWU, which, among other things, assigns
work to members of the ILWU.
When Gardner was incorporated on March 22,
1972, it engaged in the subcontracting of logging at
its location at 13th Street, Everett, Washington. At
an election held on August 28, 1972, under the aus-
pices of the Board, the IWA received a majority of
the votes cast by Gardner employees and was certi-
fied by the Board on September 6, 1972. Thereafter,
on October 10, 1972, the IWA and Gardner entered
into an agreement which recognized the IWA as the
exclusive collective-bargaining agent for all Gardner
employees located at Gardner's Everett Washington,
operation excluding office workers and supervisory
employees.
214 NLRB No. 119
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the 13th Street operation became too small
to handle expanding operations, a larger yard at Ar-
lington, Washington, was built. At the Arlington lo-
cation, logs are brought in directly from the woods
and then sorted for marketing. The sorting operation
is performed with the use of stackers, giant machines
weighing approximately 100,000 pounds, which are
designed to pick up logs in their jaws and carry them
to storage areas or, in the case of the Arlington yard,
to trucks which transport the logs to different loca-
tions.
At the time of the Gardner election on August 28,
1972, until the execution of the March 23, 1973, Ter-
minal-Port of Everett lease , sorting operations in-
volving the use of stackers were carried on at the
13th Street location. The stackers were operated by
IWA members, who would pick up the logs with the
stackers and then carry them to the water, into which
they would dump the logs. A booming company was
engaged to raft the logs, and then tugboats operated
by ILWU personnel would tow the logs to the ship's
"hook." The logs would be attached to the "hook" by
which they were then loaded aboard.
After Terminal leased the Hewitt Avenue facility
from the Port of Everett on March 23, 1973, a small
operating force from Gardner's Arlington log-sorting
yard came to Terminal's Hewitt Avenue facility, with
two stackers and other log-handling equipment
around July or August 1973. Until the first ship ar-
rived at the Hewitt Avenue facility in October 1973,
the stackers were operated by Gardner's IWA per-
sonnel to put the logs "in the cold deck," that is, in
bunks serving as the logs' final place of rest before
going to the side of the ship. Since October 1973 the
practice has been for Gardner personnel, represented
by the IWA, to "handle and process" logs; that is, to
truck the logs into the marshaling yard where they
are unloaded, put them into lots for identification,
and then put them "in the cold deck." When a ship
comes to the Hewitt Avenue facility, ILWU mem-
bers employed by stevedoring companies associated
with PMA operate Gardner's stackers to remove the
logs from the storage bunks and move them to the
dock at shipside to the "hook." This practice contin-
ues to the present day.
On rare occasions, logs go directly from the truck
to the ship without going "to the cold deck." A truck
will pull up at the end of the pier, driven by IWA
personnel, and then an ILWU stacker operator will
pick the load off the truck and go to the side of the
ship.
Terminal pays Gardner for the rental of stackers
during the time they are used in the log-handling op-
eration. The cost which Terminal assumes for the
rental of the stackers is charged or computed in the
price of the logs when they are sold to the customers.
Customers are not charged with stevedoring costs be-
cause the customers have the responsibility for desig-
nating the stevedoring company of their choice, and
personally contracting with it after Terminal ar-
ranges for the company and the customer to get to-
gether.
Besides the exporting of logs, Terminal is engaged
in the exporting of cants, partially sawed pieces of
lumber. Terminal buys them and sells them, but the
cants are not stored on the leased premises at Hewitt
Avenue the way logs are stored. An arragement is
made with the Port of Everett for the Port of Everett
to handle them on a published tariff rate. The Port of
Everett will, using ILWU personnel, unload the
trucks, transport the cants by forklift to storage ar-
eas, and then by forklift and straddle truck transport
the cants, again using ILWU personnel, to the side of
the ship. ILWU members then unload the cants
aboard the ship. This process is done in accordance
with the agreement between the Port of Everett and
the ILWU entered into on December 14, 1965.
Members of the ILWU, on September 18, 1973,
began what they called "informational picketing" on
properties adjacent to Terminal's leased premises.
They protested the "leasing of their jobs," specifical-
ly the use of IWA workers to unload trucks, and sort
and assemble cargo. Gardner filed an unfair labor
practice charge against the ILWU on the same day,
but this was withdrawn after a 3-day period of pick-
eting. The result of this union action was an October
4, 1973, "Tentative Understanding" between Termi-
nal and the ILWU which designated specific work
assignments for ILWU members and reserved other
assignments for, presumably, the IWA. The result of
this understanding was that the ILWU would not
claim any work specifically covered in the October
10, 1972, agreement between Gardner and the IWA.
IWA President Franklin Tn's March 7, 1974, letter
to Puget Sound International, Inc., the owner of both
Gardner and Terminal, prompted Gardner's filing of
the 8(b)(4)(D) charge on the same day. The letter
alleged that Gardner breached the October 10, 1972,
Gardner-IWA agreement by allowing non-IWA per-
sonnel to perform what President Tn characterized
as IWA unit work. The letter stated that, "You are
on notice that this union will take all action neces-
sary including economic action and strike, to enforce
this demand to preserve its contractual and certified
bargaining unit and to preserve bargaining unit work
for unit employees."
INTERNATIONAL WOODWORKERS OF AMERICA , LOCAL UNION NO. 3-129, AFL-CIO
B. The Work in Dispute
The disputed work concerns the movement of all
product 2 from Terminal ' s marshaling yard to ship-
side at the Hewitt Avenue facility in Everett, Wash-
ington . This involves the use of stackers which re-
move logs from the "cold deck " bunks in the mar-
shaling yard to shipside bunks. A cable is then
lowered from the ship which is slung around the logs.
The "servicing the hook" process is thus completed.
The ship's gear then lifts the logs aboard.
C. Contentions of the Parties
The Charging Party, Gardner, did not take a posi-
tion at the hearing as to the proper assignment of the
work in dispute. Gardner's contention was that the
work in dispute is not being performed by its em-
ployees, but instead is being performed by employees
of stevedore companies. Although making an ap-
pearance at the hearing on the record, PMA did not
present any witnesses or participate to any extent in
the hearing.
It was the position of IWA that the work in dispute
was within the scope of its collective-bargaining
agreement with Gardner and, therefore, should be
performed by employees represented by IWA.
ILWU argued that its members have traditionally
performed the disputed work, and that it is ILWU-
-represented stevedore company employees, and not
Gardner employees, who now perform the disputed
work.
D. Applicability of the Statute
Before the Board proceeds with 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(b)(4)(D) has been violated.
The record shows that IWA threatened to take
economic and strike action against Gardner unless
Gardner assigned the disputed work to IWA mem-
bers. On the basis of the entire record, we conclude
that there is reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred, and that the
dispute is properly before the Board for determina-
tion under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to the various relevant
2 "Product" refers to cargo consisting of logs and cants
845
factors.' The following factors are relevant to a deter-
mination of the dispute before us:
1. Collective-bargaining agreements
IWA contends that its contract with Gardner as-
signs the disputed work to its members. The contract
provides in pertinent part:
ARTICLE II
RECOGNITION
Section 1-The Employer recognizes the Union
as the exclusive bargaining agent for all employ-
ees located at its Everett, Washington operation,
and agrees to deal with representatives of the
Union for collective bargaining purposes regard-
ing hours of labor, wages, and working condi-
tions, hereinafter mentioned, for all employees
(including temporary and part-time employees
who perform work within the bargaining unit),
except office workers and supervisory employees
of the rank of foreman or higher.
ARTICLE V
Section 2-Employees shall not be required to
do other work than that directly connected with
the dumping, sorting, and bundling of logs, in-
cluding necessary maintenance work as de-
termined by past practice.
The agreement between the Port of Everett and the
ILWU provides in pertinent part:
SECTION 1
Movement of cargo on docks, operated by the
Port of Everett , from place of rest to vessel or
from vessel to place of rest is herein assigned to
longshoremen.
The October 4, 1973, "Tentative Understanding"
between Terminal and ILWU provides in pertinent
part:
1. I.L.W.U. shall not have handling of logs in
the marshaling yard, i.e., unloading log trucks,
3International Association of Machinists, Lodge No 1743, AFL-C/O (J A
Jones Construction Company), 135 NLRB 1402
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sorting , grading , cold-decking , etc., and rafting,
operating crane for log placement or removal
from water for sorting , and shall not claim juris-
diction thereof ; except I .L.W.U. shall operate
crane in all loading or unloading of any barge or
ship.
2. I.L.W.U. take logs from yard to ship's hook
during ship loading operations.
3. I.L.W.U. take logs directly from log trucks to
ship's hook during loading operations.
The IWA-Gardner contract provisions do not spe-
cifically assign the disputed work to the employees
represented by IWA. The disputed work is being per-
formed by employees represented by ILWU whose
agreements with the Port of Everett and Terminal
specifically assign the work to them . This is a factor
which favors awarding the work to employees repre-
sented by ILWU.
2. Company and area practice
The record shows that employees represented by
ILWU have traditionally had jurisdiction over the
disputed work . Gardner employees do not do the dis-
puted work . The disputed work is performed by
stevedoring company employees represented by
ILWU. Since October 1973, when the first ship ar-
rived at the Hewitt Avenue facility , stackers have
been operated by ILWU personnel to remove logs
"in the cold deck" and deposit them in shipside
bunks. During this time the work has been per-
formed to the satisfaction of the Employer. This fac-
tor favors an award of the disputed work to employ-
ees represented by ILWU.
Although there is testimony in the record as to
area practice , specifically the listing of various ports
in the State of Washington in which the ILWU
"services the hook ," there is no evidence as to the
procedures employed in those ports to move logs
shipside . Thus we find that area practice does not
contribute to the disposition of this dispute.
3. Relative skills, efficiency , and economy
In its brief , IWA asserts that its members have
more experience, skill, and training on stackers than
do ILWU members . However , the record reveals that
both groups of employees are equally skilled to per-
form the disputed work.
With respect to efficiency and economy, IWA as-
serts that the present practice at the Hewitt Avenue
facility is inefficient because two sets of employees
are being used to perform functions that one set of
employees could perform. When ILWU members are
operating the stackers , at least one of the two IWA
employees has little or nothing to do. According to
IWA, this procedure is therefore uneconomical. To
remedy the situation , IWA argues, Gardner employ-
ees represented by IWA should operate the stackers
to bring logs shipside . We find that the occasional
inactivity of one or two IWA members during the
time a ship is being loaded at Hewitt Avenue has
minimal impact on the efficiency and economy of
the entire operation . Upon examination of the rec-
ord, we find that there is insufficient evidence to sup-
port IWA's contention.
Thus, we find that the evidence of relative skills
and efficiency and economy does not support an as-
signment of the disputed work to either group of em-
ployees.
CONCLUSION
Upon the entire record and having considered all
the relevant factors involved , including the collec-
tive-bargaining agreements and the fact that steve-
doring company employees represented by ILWU
have traditionally performed such work in the past
we conclude that workers represented by ILWU,
rather than Gardner employees represented by IWA,
are entitled to the work in dispute.
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees represented by International Long-
shoremen and Warehousemen 's Union, Local 32,
and claiming the work in dispute , are entitled to per-
form such work at the Hewitt Avenue terminal facili-
ty, Everett, Washington.
2. International Woodworkers of America, Local
Union No. 3-129, AFL-CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require Port Gardner Timber Company,
Inc., to assign the above work to employees repre-
sented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Wood-
workers of America, Local Union No. 3-129, AFL-
CIO, shall notify the Regional Director for Region
19, in writing, whether or not it will refrain from
forcing or requiring Port Gardner Timber Company,
Inc., by means proscribed by Section 8(b)(4)(D) of
the Act , to assign the work in dispute in a manner
inconsistent with this determination.