Intl Longshoremen's and Warehousemen's Union Loc 8

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 186 (N.L.R.B. 1970)

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's and Warehousemen's
Union Local 8 and Waterway Terminals Company
and Inlandboatmen 's Union of the Pacific , Colum-
bia River Division . Cases 36-CD-64 and 36-CD-
64-2
August 27, 1970
DECISION AND ORDER QUASHING NOTICE
OF HEARING
This is a proceeding under Section 10(k) of the
National Labor Relations Act. as amended, following
charges filed by Waterway Terminals Company,
hereinafter Waterway, and by Inlandboatmen's Union
of the Pacific, Columbia River Division, hereinafter
the IBU, alleging that International Longshoremen's
and Warehousemen's Union Local 8, hereinafter Local
8, had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring Waterway to assign the work
in dispute to employees represented by Local 8 rather
than to employees represented by the IBU. A hearing
was held on December 11, 12, 29, 30, and 31, 1969,
and January 15 and 19, 1970, before Hearing Officer
Dale B. Cubbison. All parties appeared 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. Thereafter, the IBU,
Waterway, and Local 8 filed briefs.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record, the Board makes the follow-
ing findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated , and we find , that Waterway
is an Employer engaged in interstate commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
We find, as agreed by the parties, that Local 8 and
the IBU are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED DISPUTE
A. The Facts
The work which gave rise to this proceeding involves
the loading and unloading of railcar freight at two
of Waterway's terminals in Portland, Oregon-the
3838 N.W. Front Street terminal, and also, to a
minor degree, the Comumbia Basin terminal.
The facts leading up to the present dispute are
as follows:
Waterway, a wholly owned subsidiary of Crown
Zellerbach Corporation, is a freight interchanger, load-
ing and unloading freight at its terminals upon the
request of shippers and receivers. The bulk of the
freight is brought to the terminals by barge, and
is transferred onto either trucks or railcars. Most
of the freight comes from pulp and paper mills owned
by Crown Zellerbach. Although Waterway operates
several freight terminals in the Pacific Northwest,
the work in dispute centers only on the two above-
mentioned terminals.
Prior to the middle of 1968, Waterway subcontract-
ed most of the work performed at its various terminals,
exclusive of truck freight which was usually handled
by the truckdrivers, to two companies-Western
Transportation Company, also a subsidiary of Crown
Zellerbach, and Interstate Carloading Company.
Western, whose employees were represented by the
IBU, loaded and unloaded both barge and railcar
freight at most of the Waterway terminals. With
respect to the 3838 N.W. Front Street and the Colum-
bia Basin terminals, however, Western handled only
barge freight.' The railcar operations at those two
terminals were performed by Interstate whose employ-
ees were represented by Local 8, and under a union
shop contract were members of Local 8.
In 1968, Waterway became Western's successor.
Shortly thereafter, Waterway and the IBU negotiated
a new collective-bargaining agreement which, in
accordance with a similar provision in the old IBU-
Western contract, provided, inter alia, that employees
represented by the IBU would load and unload rail-
road cars as well as barges. In accordance with this
language, and with the past practice, the Waterway
employees represented by the IBU continued to handle
both kinds of freight at the terminals not here
involved-work which they had theretofore performed
as Western employees.
' As was the case throughout its operations, the Western employees
at the terminals also occasionally handled truck freight
185 NLRB No. 35
INTL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOC 8
With respect to the 3838 N.W. Front Street
terminal,' however, Waterway took over only the
barge operations, constituting the work previously
performed by Western, and hired the former Western
employees to do the work. These employees
continued to transport the barge freight to an area,
marked off by white lines, immediately adjacent to
where the railroad cars were to be loaded There, the
approximately 60 Interstate employees continued to
pick up the freight and carry it to the railcars. The
unloading of the cars entailed a reverse process. The
Interstate employees also cleaned out the cars, stored
the freight so that the loads were evenly balanced,
and sealed the cars.
The operations continued in this fashion until the
fall of 1969.' Then, in response to Interstate's request
for a rate increase, Waterway decided to perform
the previously subcontracted railcar work with its
own employees. Accordingly, it notified Interstate
that it was terminating the subcontract on October
31. Prior to the subcontract's termination, Local 8,
in a letter to Waterway on October 22, in effect
asked that Interstate's employees continue in their
jobs and that its collective-bargaining agreement with
Interstate covering these employees remain in effect.
It also offered to bargain, and requested that Waterway
schedule a meeting for that purpose. By letter to
the IBU dated October 23, however, Waterway agreed
to the IBU's claim to this new railcar work which
Interstate employees had been doing. A few days
later, Waterway informed Local 8 that it (Waterway)
would be guilty of an unfair labor practice if it
negotiated with any other union than the IBU. Water-
way ignored the request to continue the Interstate
employees in their jobs.
Waterway, on November 1, took over the railcar
functions previously performed by the In
employees. But Waterway did not hire any of the
Interstate employees then performing the work. Rath-
er, it added the railcar duties to the tasks of its
terminal workers, who had previously performed only
the barge segment of the freight loading and unloading.
Although Waterway also had to hire a substantial
number of new employees to assist in performing
these newly expanded duties, there is no evidence
to warrant a finding that, but for one or two excep-
tions, it made any job offers to the former Interstate
employees.
Local 8 thereupon picketed Waterway with signs
reading "Waterways [sic] Unfair to Longshoremen-
' It appears that the Columbia Basin terminal handles only surplus
work which cannot be performed at the 3838 NW Front Street terminal,
and accordingly, does not have a regular employee complement As
the controversy primarily centers on the main terminal at 3838 NW
Front street, it is the operations of this terminal which are described
herein
' All dates hereinafter refer to 1969
187
ILWU Local 8." The picketing continued until
enjoined by the United States District Court for the
District of Oregon , pursuant to the Regional Director's
petition under Section 10(1) of the Act.
B. The Contentions of the Parties
Local 8 contends in effect that the objects of its
picketing were to preserve or regain the work the
Interstate employees had been doing until replaced
by Waterway employees on November 1, and to
continue to represent them . Local 8 further contends
that this does not establish an unlawful work assign-
ment dispute violative of Section 8(b)(4)(D).
Waterway and the IBU both assert that a jurisdic-
tional dispute exists , and ask that the employees
represented by the IBU be awarded the work.
C. The Applicability of the Act
Before the Board may proceed to a determination
of 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. We are
not satisfied that any such violation has occurred
in this case.
Here, the evidence is insufficient to establish a
traditional jurisdictional dispute between two groups
of employees. The employees represented by Local
8 were terminated during the term of an existing
collective-bargaining agreement as a result of Water-
way's reorganization. The evidence bearing upon Local
8's objectives is limited to its letter of October 22,
1969, in which it merely demanded continued employ-
ment of those presently working and that the collec-
tive-bargaining agreement applicable to them be given
force and effect. No other demands were made and
none can be implied.
The dispute is thus like that which was before
us in the 1960 case of Franklin Broadcasting Company,
126 NLRB 1212. In that case the employer created
a dispute with a union by terminating a group of
employees, whom the union represented, and assigning
their duties to another group of employees. We held
that picketing by the union, in order to "obtain
reemployment" of the first group of employees and
get a collective-bargaining contract for them, involved
"objectives which the Congress, in enacting Section
8(b)(4)(D), did not intent to proscribe" (at p. 1215).°
' It is significant that the dispute in Franklin Broadcasting was not
limited to a demand for reinstatement of terminated employees, but
also included " the Employer's refusal to accede to the demand
of Local 292 that it sign a new contract" This latter aspect of the
dispute was deemed insufficient to bring the controversy within the
ambit of Sec 8(b)(4)(D), Thus, in the instant case, Local 8's demand
that Waterway honor the remaining term of its existing collective-bargain-
ing agreement could hardly furnish a basis for distinguishing Franklin
Broadcasting
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We amplified this principle in Safeway Stores, Incorpo-
rated, 134 NLRB 1320, which issued after Supreme
Court's authoritative statutory interpretation of Sec-
tion 10(k) in N.L.R.B. v. Radio & Television Broadcast
Engineers Union Local 1212 International Brotherhood
of Electrical Workers, AFL-CIO (Columbia Broadcast-
ing System), 364 U.S. 573. In Safeway Stores, we
noted that although the dispute "might be deemed
to to fall within the literal terms of the Section
8(b)(4)(D) proscription" (at p. 1322), that proscription
was not designed to authorize the Board to arbitrate
disputes between an employer and a union, particular-
ly with regard to the union's "attempt to retrieve
the jobs" of employees whom the employer chose
to supplant by reallocating their work to others.'
Our decision in Lawrence Erie, 158 NLRB 1687,
relied on by our dissenting colleagues, is clearly distin-
guishable. As heretofore indicated, the Union's
demands in the instant case merely sought employ-
ment of the dislocated workers and continued applica-
tion of the bargaining agreement covering them. There
was no claim that IBU's members be replaced by
employees other than those who were terminated.
In Lawrence Erie, on the other hand, at least one
of the objectives of the striking union was to require
the Employer to accede to the union's jurisdictional
claim by assigning the disputed work to applicants
furn ished from the union's hiring hall. This pursuit
of union interests, which was unrelated to the job
rights of dislocated employees, is hardly consistent
with an effort to preserve the employment of dischar-
gees and clearly distinguishes that case from Franklin
Broadcasting, Safeway, and the instant case.
On the basis of the foregoing, we find that Local
8's picketing of Waterway was solely for the object
of preserving the carloading work for the employees
' We are not persuaded by the attempt of the dissent to distinguish
Franklin Broadcasting and Safeway on grounds that those cases did
not involve two groups competing for the disputed work Under settled
policy this difference could hardly prove material to the existence or
nonexistence of a traditional jurisdictional controversy For the applicabili-
ty of Sec 10(k) is not dependent upon "the existence of a dispute
between two or more groups of employees actively competing for the
work assignment "Local 1291, International Londshoremen'c Association
(Pocahontas Steamship Company), 152 NLRB 676, 679 In answer to
the narrow construction placed upon Pocahontas by the dissent, we
note that we are unaware of precedent or policy considerations that
would require an active claim by the beneficiaries of a work assignment
before an employer may invoke Sec 8(b)(4)(D) to remedy the pressures
applied by a labor organization seeking to disrupt such an assignment
Furthermore, from a reading of Franklin Broadcasting and Safeway,
it does not appear that those to whom the work in those cases was
assigned did not actively claim it, nor does it appear that they received
extra compensation for its performance in any event, as here, the question
under consideration was whether the conduct of the picketing union
fell within the objective Congress intended to bar through enactment
of Sec 8(b)(4)(D) Upon analysis of the legislative history, it was concluded
in those cases, that, as the evidence merely showed that the picketing
unions were solely concerned with demands for restoration of the job
rights of terminated employees, their conduct was not of the type Congress
sought to regulate through Sec 8(b)(4)(D)
who had been doing it and who had selected Local
8 to represent them,' and that such a dispute is
not the type of controversy Congress intended the
Board to resolve pursuant to Section 8(b)(4)(D) and
Section 10(k) of the Act.' Accordingly, we shall quash
the notice of hearing.
ORDER
It is hereby ordered that the notice of hearing
issued in this case be, and it hereby is, quashed.
CHAIRMAN MILLER AND MEMBER MCCULLOCH, dis-
senting:
We disagree with our colleagues' conclusion that
the facts herein do not present a jurisdictional dispute
cognizable under Section 10(k) of the Act.
The facts show that Waterway terminated the Inter-
state subcontract with the intention of reorganizing
the two terminal operations in question, for economic
and not discriminatory reasons. Essentially, Water-
way's operations at its various terminals consisted
of transferring freight between barges and railcars.
At most of the terminals, the work was all done
by its own employees, who were represented by the
IBU. At the Front Street terminal (and the occasional
overflow work assigned to the Columbia Basin termi-
nal), however, the work had been subdivided between
two separate groups of employees. One group,
employed by Waterway and represented by the IBU,
had transferred the freight only between the barges
and an intermediate point; while the second group,
employed by Interstate and represented by Local 8,
had completed the transfer between the intermediate
point and the railcars. It was this arbitrary subdivision
of the work which Waterway proposed to eliminate
by having a single group of employees perform it
all at the two terminals in question, as was being
done at its other terminals.
It is in this context that Local 8, by its letter
dated October 22, expressed its assumption that its
members at Interstate "will continue to work in their
present jobs, and that our collective-bargaining agree-
ment will remain in full force and effect." But, as
noted above, Waterway had decided for economic
reasons to reorganize its operations and to abolish
the jobs formerly performed by the Interstate employ-
ees and to merge their functions with that of its
own employees, represented by the IBU. Accordingly,
' We note that we are not called upon in this proceeding to consider
whether the picketing may have had a recognitional objective proscribed
by Sec 8(b) (7) As a consequence, the result we reach should not
imply that Waterway had no remedy under that section of the Act
We further note that our present holding does not turn on whether
Waterway's reorganization violated Sec 8(a)(1), (3), or (5)
' While Member Fanning agrees that the Lawrence Erie case is distin-
guishable, he would, in any event, reach the same result in view of
his dissenting opinion in that case
INTL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOC 8
Waterway advised Local 8, by letter dated October
28, that it planned to perform the work Local 8
referred to with its own employees, and that it would
be guilty of an unfair labor practice if it granted
recognition to any other union than the IBU. On
receiving this letter, Local 8 showed no further concern
over the former Interstate employees, for it made
no application to Waterway on their behalf for any
vacancies that might arise under the new plan. Instead,
it immediately began picketing Waterway's terminal
with signs reading "Waterways [sic] unfair to Long-
shoremen-ILWU Local 8." A few days later, it filed
unfair labor practice charges alleging violations of
Section 8(a)(1), (2), (3), and (5).8
The forgoing established that Local 8's picketing
was not merely directed against Waterway's purported
refusal to retain the Interstate employees in their
former jobs. Rather, the picketing also sought contin-
ued recognition of Local 8 as the representative of
the employees performing the work previously done
by Interstate. As evidenced by its charges filed with
the Board, of which we take administrative notice,
Local 8 maintained that Waterway, as Interstate's
alleged successor, had improperly recognized the IBU
and was obligated to continue to deal with it. More-
over, the picket signs did not state that the purpose
of the picketing was to protest Waterway's alleged
refusal to retain the Interstate employees. The signs
made only the general allegation that Waterway was
"unfair," which by traditional union usage meant
that Waterway refused to recognize Local 8. As to
the assertion that Waterway refused to hire the former
Interstate employees, the record indicates that only
one Interstate employee unconditionally applied for
a job while vacancies still existed, and a job proffer
was in fact tendered by Waterway, but was turned
down. In our view these facts show that Local 8
was really claiming jurisdiction over the work per-
formed by some of Waterway's own employees, to
further its own interests.
In light of the foregoing, it is difficult to see what
bearing the cases relied on by majority-Safeway
Stores, supra, and Franklin Broadcasting supra-have
on the instant proceeding. In each of those cases
we found that there was no jurisdictional dispute
where displaced employees picketed in an attempt
to regain their jobs and where there was only one
group of employees which claimed the disputed work.
The absence of any rival work claims of course distin-
guishes those cases from a situation where, as here,
one union pickets in an attempt to force a reassignment
of work in the face of a competing claim by, or
The charges were subsequently dismissed by the Regional Director
and no appeal from the dismissal was thereafter filed
189
on behalf of, another group of employees.'
More directly on point than the cases relied upon
by the majority is Lawrence Erie, 158 NLRB 1687.
Like Waterway, Lawrence Erie operated various termi-
nals, and took over the operation of an additional
terminal where the work was formerly performed
by employees of another company; and it hired addi-
tional employees to replace them. Like Local 8, the
union representing the former employees then picketed
the terminal as "unfair," to get the replaced employees
hired and also to get Lawrence Erie to hire all new
employees through its hiring hall. Based on the forego-
ing, a Board majority found that the purposes of
the picketing went beyond the "mere protest" of
what the Respondent union believed to be discrimina-
tory hiring practices, and showed that at least one
of that union's objects was to force Lawrence Erie
to replace its own employees with employees who
were members of and were represented by it.
Here, as noted above, the picketing went beyond
the "mere protest" of what Local 8 believed to be
discriminatory practices against the former Interstate
employees, and sought a reassignment of the car
loading work to them in order to entitle Local 8
to continued recognition as the collective-bargaining
representative of the employees who would then per-
Likewise distinguishable is Pocahontas Steamship, supra, relied on
by the majority for the proposition that the applicability of Sec 10(c)
is not dependent upon " the existence of a dispute between two
or more groups of employees actively competing for the work assignment "
There, the International Longshoremen's Association (ILA) picketed in
an attempt to seek the reassignment of work which had been assigned
by the employer to employees represented by the National Maritime
Union (NMU) Subsequent to the announcement of the picketing, the
NMU disclaimed any interest in the work in question In considering
the efficacy of the NMU's disclaimer, the Board noted that the employees
represented by the NMU would continue to receive their monthly salary,
irrespective of whether they performed the work in question it concluded,
therefore, that inasmuch as payment would be required for two groups
of employees while only one did the work, that the NMU's purported
disclaimer imposed no hardship and involved no sacrifice or giving up"
by the employees the NMU represented Accordingly, the Board held
that the disclaimer was ineffective and that a jurisdictional dispute existed
Here, of course, there is no allegation that either of the two unions
or the employees they represented had disclaimed interest in the car
loading work In finding Pocahontas to be distinguishable from the instant
case, we are not, as the majority implies, stating that a jurisdictional
dispute exists only if there are two or more competing employee groups
actively competing for the work in question For, we are fully cognizant
that under certain circumstances such as those in Pocahontas, that the
Board has found jurisdictional disputes even though only one of the
employee groups had actively claimed the disputed work in such cases,
however, our holdings were based on the fact that the purported disclaimers
made by the other employee groups were ineffective, and that, therefore,
the employers therein were not presented with rival claims In Safeway
and Franklin Broadcasting, on the other hand, there was no question
regarding the efficacy of the disclaimers made by the respective employee
groups and it was on this basis alone that we concluded that the employers
therein were not faced with rival claims over the work in question
cognizable under Sec 10(k) The majority's claim that our holdings
in those two cases was based on the abstract right of displaced employees
to picket in an attempt to regain their jobs, regardless of whether an
employer is faced with a competing claim by another employee group,
obviously ignores this crucial factor
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form that work. It is difficult to see, therefore, how
the facts herein can in any meaningful way be distin-
guished from those in Lawrence Erie.
Moreover, even if one were to assume that the
situation herein is not precisely the same as in Law-
rence Erie, the fact remains that Waterway, the
employer in the instant case, was presented with
dual claims over the disputed work and, after assigning
the work to employees represented by the IBU, was
picketed by Local 8 in an attempt to seek a reassign-
ment of the work to the employees who were members
of and were represented by Local 8. In our view
this is a typical situation that Congress contemplated
when it directed the Board to decide which of the
conflicting claims was meritorious.
Accordingly, we would find a jurisdictional dispute,
and would determine the merits of the dispute.