Intl. Longshoremen's and Warehousemen's Union, Local 29

National Labor Relations Board - Board Decisions

Jul 6, 1976

225 N.L.R.B. 624 (N.L.R.B. 1976)

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's and Warehousemen's
Union , Local No. 29 and Van Camp Sea Food Com-
pany , Division of Ralston Purina Company. Case
21-CD-404
July 6, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, PENELLO, AND WALTHER
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed April 6, 1976, by the Employer,
Van Camp Sea Food Company, Division of Ralston
Purina Company, alleging that Respondent Local
No. 29, International Longshoremen's and Ware-
housemen's Union (hereinafter Longshoremen or Lo-
cal 29), had violated Section 8(b)(4)(D) of the Act. A
hearing was held on April 30, 1976, in San Diego,
California, before Hearing Officer Andrew J. Stites.
Both parties appeared at the hearing and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter, the Employer and
Longshoremen 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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error. They are
hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following rulings:
1. THE BUSINESS OF THE EMPLOYER
As the parties have stipulated, Van Camp Sea
Food Company, a Division of Ralston Purina Com-
pany, a Missouri corporation I with facilities located
at San Diego, California, is engaged in the business
of processing and canning tuna. During the course
and conduct of its business operations during the
past 12 months, the Employer purchased and re-
ceived goods and products valued in excess of
$50,000 directly from suppliers located outside the
State of California, and during the same period sold
and shipped goods and products valued in excess of
$50,000 directly to customers located outside the
State of California. Therefore, we find that Van
1 Van Camp Sea Food Division , Ralston Purina Company, 172 NLRB 1469
(1968)
Camp is an employer within the meaning of Section
2(2) and is engaged in commerce or in an industry
affecting commerce within the meaning of Section
2(6) and (7) of the Act. Furthermore, we find that it
will effectuate the purposes of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Longshoremen's and Warehouse-
men's Union and its Local 29 are labor organizations
within the meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. The Work in Dispute
The work in dispute is the unloading of fish from
fishing vessels , including both bait boats and purse
seiners, at the Employer' s cannery located adjacent
to the Tenth Street Terminal in San Diego , Califor-
ma. _
B. Background and Facts of the Dispute
The Employer operates tuna canneries at Terminal
Island (San Pedro, California) and Puerto Rico. At
the time of the hearing in this case on April 30, 1976,
an additional cannery at San Diego was under con-
struction. However, freezer space for receiving and
thawing of fish has been ready since March 1. As
part of its operations, the Employer unloads fish
from fishing vessels and carriers. Carriers, which are
used to transport fish from a harbor without any can-
nery to a harbor with a cannery, are considerably
larger than most fishing vessels. Fish are not caught
from carriers, which are only for long-distance trans-
portation. With respect to fishing vessels, there are
two kinds: bait boats and purse seiners. The latter
are, in effect, the only fishing vessels used in large
fishing operations. The Employer's employees have
been performing the work of unloading fish from
these vessels. The procedure followed is that a group
of employees who man the cranes will lift the unload-
ing buckets containing the fish from the vessels to the
dock where there are fish containers. The fish are
removed from the unloading buckets into these fish
containers by a group of laborers. From there, fork-
lift drivers transport the fish from the dock to the
freezer or processing facility. This procedure is fol-
lowed at all Van Camp cannery facilities.
Prior to the scheduled commencement of the
Employer's San Diego operations on March 1, 1976,
the Employer operated canneries at both Terminal
225 NLRB No. 81
INTL. LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 29
Island and Puerto Rico. At San Diego, the Employer
had 10 hourly production employees on the payroll.
Of these 10, at least 6 had approximately 10 years'
experience with Van Camp, at either Terminal Island
or Puerto Rico. Thus, the Employer had transferred
employees from its other facilities in order to be
ready to receive the MV Gina Ann, the first fishing
vessel scheduled to be unloaded at the Employer's
San Diego cannery. Unloading operations were
scheduled to commence on March 1, 1976.
For March 1, the Employer had designated which
of its employees were to perform the duty of unload-
ing the Gina Ann. During the morning of March 1,
however, William Coleman, president of Local 29,
approached Roy Thompson, general manager of Cal-
ifornia operations for Van Camp, informing the lat-
ter that the Longshoremen claimed the work assign-
ment of unloading fish from the fishing vessel Gina
Ann. This assignment had been given to employees of
the Employer. Subsequently, Thompson directed the
Gina Ann to proceed to Terminal Island for unload-
ing.
On March 26, the Employer and the Longshore-
men met at Terminal Island to attempt to settle the
disputed claim to work. Coleman; Alex Castaneda,
an organizer for the International; Don Wright, the
Longshoremen's regional director for southern Cali-
fornia; John Schobel, the director of labor relations
and urban affairs for Ralston Purina; and Thompson
were present at that meeting. The parties explained
their positions. The Longshoremen offered to write a
letter stipulating that if the Employer used members
of Local 29 to unload seven fishing vessels which
were waiting to be unloaded at the San Diego Tenth
Street Terminal, it would not constitute a precedent,
and that both parties could later discuss the jurisdic-
tional dispute. The Employer's response was that if
its own employees were permitted to off-load the
fish, it would give Local 29 a letter that such unload-
ing would not constitute a precedent. Local 29 reject-
ed this offer. The parties have stipulated that there
has been no voluntary adjustment of the disputed
work assignment.
C. Contentions of the Parties
The Longshoremen ' s position with respect to the
work assignment is as follows:
The unloading and/or movement of cargo from
the dock of purse seine fishing vessels to the
Employer ' s cannery premises located at 1025
East Harbor Drive , San Diego , California.
The Employer has taken the position that the work
assignment dispute is broader in scope:
625
The manning of cranes for the off-loading of
fish from fishing vessels to the dock and the
dumping of unloading buckets into storage bins,
and the manning of forklifts for the transporting
of said fish across the dock to the Employer's
cannery located at 1025 East Harbor Drive, San
Diego, California.
The dispute, then, boils down to the question of
whether the Employer should hire several longshore-
men to perform the unloading function, which is one
part of the Employer's cannery operations. The
Longshoremen contends that its members are enti-
tled to all work that involves the unloading of any
vessel that comes into the public dock at the Tenth
Street Terminal. The Employer contends, on the
other hand, while conceding jurisdiction to the Long-
shoremen with respect to the unloading of carriers,
that the Employer is under no obligation to refrain
from using its own employees to unload any fishing
vessel at the Terminal. The scope of the dispute,
then, is limited to the unloading of fish from fishing
vessels at San Diego. In sum, the Longshoremen
claims the work for its members, the Employer for its
employees. Furthermore, the Longshoremen con-
tends that under the theory of "work preservation," 2
it is not laying claim to work assigned anew by the
Employer to some other group of employees as in
classic jurisdictional disputes, but is merely trying to
preserve jobs already performed by its members.
The Longshoremen is also contending that it is the
Employer, rather than the Employer's employees,
who is really the Longshoremen's rival in this situa-
tion. The Union asserts that there is no jursisdiction-
al dispute, because there is no dispute between com-
peting groups of employees. The only parties to the
dispute, the Union claims, are the Longshoremen
and the Employer.
Finally, the Employer contends that the Long-
shoremen violated Section 8(b)(4)(D) by threatening
to picket and by threatening to use force in order to
coerce the Employer to assign the disputed work as-
signment herein to the Longshoremen, rather than to
the Employer's employees. The Longshoremen, how-
ever, contends that it never indicated that it had any
intention of picketing or striking, but that it merely
presented its claim to the Employer in a reasonable
manner.
D. Applicability of the Statute
Before the Board may proceed with the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
2 International Brotherhood of Electrical Workers, Local 292, AFL-CIO
(Franklin Broadcasting Company), 126 NLRB 1212 (1960)
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it must be satisfied that (1) there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated,
and (2) the parties have not agreed upon a method
for the voluntary adjustment of the dispute. With re-
spect to the showing of reasonable cause, two issues
must be disposed of: (a) whether there is a genuine
jursidictional dispute beween active claimants, and
(b) whether Longshoremen threatened and coerced
the Employer and its employees, thereby causing the
latter to refrain from unloading the MV Gina Ann at
the Tenth Street Terminal in San Diego.
First, it is clear that in order for there to be a cog-
nizable jurisdictional dispute, it is only necessary that
there be a "dispute between two or more groups of
employees over which is entitled to do certain work
for an employer.' 13 In the present case, the Em-
ployer's employees are not organized. Further-
more, it seems that the Employer is the party who is
actively prosecuting this claim, not its employees.
However, the Employer's employees have not dis-
claimed the work, and therefore they are considered
active claimants to the work in dispute 4
Secondly, the Longshoremen threatened the Em-
ployer with picketing, and, in addition, through acts
of coercion and intimidation, restrained the Employ-
er from assigning the work in dispute to its own em-
ployees at the San Diego cannery. Instead of unload-
ing the fish at San Diego, the Employer unloaded
cargo at Terminal Island. Because of this move, the
Employer incurred additional expense.
During the morning of March 1, 1976, William
Coleman, president of Local 29, along with approxi-
mately 10 to 15 longshoremen, approached Roy
Thompson, general manager for the Employer, on
the dock at the Tenth Street Terminal. Coleman told
Thompson that his Union claimed jurisdiction for
unloading fish from the MV Gina Ann. In response,
Thompson stated that insofar as the unloading of
fishing vessels was the heart of the dispute, such ves-
sels were exempt from the Longshoremen's jurisdic-
tion. Coleman replied that the Longshoremen did in-
deed have such jurisdiction, at least in San Diego,
and that the Employer could not unload fish from
the Gina Ann. Subsequently, Thompson told his em-
ployees that they should go to Terminal Island to
unload the cargo.
On April 5, Alex Castaneda, an organizer for the
International, said to Thompson, at a meeting set up
to adjust the dispute, that the Longshoremen had
3 N L R B v Radio and Television Broadcast Engineers Union. Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO (CBS), 364 U S
573, 579 (1961)
Sheet Metal Workers International Association , Local Union No 272,
Sheet Metal Workers International Association, AFL-CIO (Valley Sheet Met-
al Company), 136 NLRB 1402 (1962)
enough members for a "good demonstration." This
remark was in reply to a query made by Schobel as to
how many members the Local had. We conclude that
this statement, in conjunction with the confrontation
at the dock on March 1, constitutes a threat to picket
the Employer for the purpose of forcing the Employ-
er to assign the work in dispute to the Longshore-
men.
Thirdly, the Longshoremen's contention that it is
merely attempting to preserve work formerly per-
formed by its members is without merit. In order for
work to be preserved, there must have been work to
begin with. Apparently longshoremen had had a
great deal of work at the Tenth Street Terminal prior
to the Employer's move to San Diego. However,
longshoremen have never performed work for the
Employer in San Diego. The Employer did not dis-
place any longshoremen from work at the Tenth
Street Terminal. If longshoremen have suffered a loss
of work, it is because commercial activity has de-
clined at the public dock.
The parties stipulated that they have no agreed-
upon method for the voluntary adjustment of the dis-
pute. We conclude, therefore, that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act
has been violated and that the dispute is properly
before us for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors.' The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience and reached by balancing
those factors involved in a particular case.'
The following factors are relevant in making the
determination of the dispute before us:
1. Board certification
The parties stipulated that there has been no certi-
fication by the Board of any labor organization as
the exclusive bargaining representative for the em-
ployees who perform the work that is the subject of
this dispute.
2. Collective-bargaining agreements
The Employer is not a party to any collective-bar-
gaining agreement with any local of the Internation-
5 CBS, supra
6 International Association of Machinists, Lodge No 1743, AFL-CIO (J A
Jones Construction Company), 135 NLRB 1402 (1962)
INTL. LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 29 627
al. Nor is there any special agreement regarding the
unloading of fish from fishing vessels carrying Van
Camp fish. Furthermore, the Employer does not
have any contract with any stevedoring company in
San Diego that covers the unloading of fishing ves-
sels; the same holds true of the Employer's facilities
at Terminal Island and Puerto Rico. The Longshore-
men do have an agreement with the Pacific Maritime
Association (PMA.7 However, the Employer is not a
member of the PMA.
3. Employer assignment and preference
The Employer has assigned the work, and prefers
an assignment, to its own employees.
4. Employer and industry practice
The Employer's employees have always unloaded
fish from its fishing vessels at Terminal Island and
Puerto Rico. In addition, it is the established practice
for the Employer's competitors, Sun Harbor Indus-
tries, Pan Pacific, Starkist Foods, Del Monte Foods,
and Neptune Packing Company, to use their own
employees to unload all of their fishing vessels.
5. Relative skills
Although members of Longshoremen appear to be
adequately skilled to unload fish from fishing vessels,
the Employer's employees seem to be better equip-
ped to handle the particular problems of unloading
fish from fishing vessels, as opposed to carriers.
While the fish on a carrier are not frozen in brine,
but rather are stacked in the hold of the vessel, the
fish in purse seiners are packed in a well after they
are caught and require brine circulation for unload-
ing. Therefore, the Employer's employees, most of
whom have had considerable experience in unload-
ing such vessels, are more qualified to perform the
task of unloading fish from fishing vessels.
6. Economy and efficiency of operations
The record shows that it is more economical and
efficient for the Employer's employees to unload the
fish. Since there is no way to predict precisely when
fishing vessels will arrive in port, many man-hours
would be wasted if the Employer had to hire several
longshoremen with any degree of prior notice and
assurance of guaranteed work. It is an uneconomical
and inefficient use of manpower to have men idle if a
7 See Pacific Coast Longshore Contract Document 1973-75 (ILWU-
PMA), G C Exh 6
fishing vessel does not arrive when expected. It may
also be inefficient when a fishing vessel does come to
port, because if the catch is relatively small, a boat
may take as little as 2 hours to unload. In addition,
the fish may be in such a condition that would make
it difficult, if not impossible, to unload the fish as
quickly as usual. Frozen fish, for example, take time
to thaw out. If the Employer were to use its own
employees as it has, however, it could make efficient
use of the varied skills of its employees. Thus, if a
Van Camp employee has no work at the dock, he can
return to the fishroom while awaiting the arrival of a
fishing vessel, and in the meanwhile could perform a
number of functions, including that of a butcher,
racker, and fish checker. Of the 10 hourly production
employees at the Employer's San Diego facility as of
March 1, 1976, 6 had had 10 years' experience with
the Employer. These six employees were transferred
from Terminal Island, where they had had experi-
ence unloading fish. Furthermore, the Employer has
other experienced employees at Terminal Island who
are scheduled for transfer to San Diego.
Conclusions
Based on the entire record, and after full consider-
ation of all relevant factors, we shall assign the work
in dispute to the Employer's employees. We reach
this conclusion particularly in view of the Employer's
assignment and preference, industry practice, the rel-
ative skills of the disputants, and the relative econo-
my and efficiency of operations.
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 employed by Van Camp Sea Food
Company, Division of Ralston Purina Company, are
entitled to perform the work of unloading any and all
fish from all fishing vessels, including purse seiners,
at the Employer's cannery facilities at San Diego,
California. More specifically, this work assignment
in favor of said employees of Van Camp includes the
manning of cranes for the off-loading of fish from
said fishing vessels to the dock, the dumping of un-
loading buckets into storage bins, and the manning
of forklifts for the transporting of said fish across the
dock to the Employer's cannery located at 1025 East
Harbor Drive, San Diego, California.
2. International Longshoremen's and Warehouse-
men's Union, Local No. 29, is not entitled and has
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not been entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require the Employ-
er to award work to its members or to employees it
represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Long-
shoremen's and Warehousemen's Union, Local No.
29, shall notify the Regional Director for Region 21,
in writing, whether or not it will refrain from forcing
or requiring the Employer by means proscribed by
Section 8(b)(4)(D) to award the work in dispute to its
members or to employees it represents rather than to
employees employed by Van Camp Sea Food Com-
pany, Division of Ralston Purina Company.