Int'l Longshoremen's Assn., Locals 1291 & 1332

National Labor Relations Board - Board Decisions

Jul 19, 1962

137 N.L.R.B. 1458 (N.L.R.B. 1962)

1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's Association and its Locals 1291
and 1332 and Pennsylvania Sugar Division , National Sugar
Refining Company. Case No. 4-CD-47. July 19, 1962
DECISION, DETERMINATION OF DISPUTE,
AND ORDER
This is a proceeding under Section 10(k) of the Act, following a
charge filed by Pennsylvania Sugar Division, National Sugar Refining
Company, herein called National, alleging that International Long-
shoremen's Association and its Locals 1291 and 1332, herein called the
ILA, induced or encouraged employees to engage in a strike and
threatened, coerced, or restrained persons engaged in commerce in
order to force or require National to change work assignments from
one group of employees to another. A hearing was held before Peter
D. Walther, hearing officer, between March 21 and April 4, 1960, at
which all parties were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to adduce evidence bearing
upon 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 parties have been duly considered.'
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
National is engaged in the business of processing and refining cane
sugar at Philadelphia, Pennsylvania. In the operation of its business,
it ships products valued in excess of $50,000 annually to points outside
the State of Pennsylvania. We find that National is engaged in com-
merce and that it will effectuate the policies of the Act to assert juris-
diction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen's Association and its Locals 1291 and
1332, and Local 1648, Sugar Refinery Workers, AFL-CIO, herein
called the Sugar Workers, are labor organizations within the meaning
of the Act.
1 The ILA's brief was received after the due date for filing with the Board The brief
was returned to the ILA. The ILA then filed a motion for extension of time for filing or
in the alternative for oral argument . The Board extended the time and accepted the brief.
Accordingly , as the request for oral argument was an alternative to the acceptance of
the brief , it need not be considered further.
137 NLRB No. 156.
INT'L LONGSHOREMEN'S ASSN., LOCALS 1291 & 1332 1459
M. THE DISPUTE
A. The work in dispute
In 1960 National set up an additional and new method for receiving
raw sugar at its Philadelphia refinery. For many years, all sugar
reached the plant in bags via ships which docked and were unloaded
at a pier (pier 46) immediately adjacent to the plant; some sugar is
still unloaded in this fashion. In March 1960, raw sugar in bulk
started coming by ship to another pier (pier 14), 3 miles down the
river from the plant, where it is unloaded by crane and claw bucket
into railroad cars. When these cars reach the plant, they are moved
onto a rotary dump arrangement, uncovered, and tipped over so that
the sugar then flows into a hopper below and moves automatically,
into the plant by conveyor belt.
Longshoremen, represented by Local 1291 of the ILA in collective
bargaining, have always performed, and still do, the work of unload-
ing bagged sugar from the ships which dock at pier 46 near the plant
itself. They also unload the bulk sugar from the ships coming to
pier 14 and place it in the railroad cars. The cars are then pulled by
regular railroad engine by employees of the Reading Railroad until
they reach the plant. At that point, near the rotary dump, the work
of pushing and pulling the cars by truckmobile to a point precisely
over the hopper, removing the covering tarpaulins, and pushing the
button which inverts the cars was assigned by National to its plant
employees, certain warehousemen in the dock department who are rep-
resented by the Sugar Workers under a collective-bargaining agree-
ment . It is this last function-moving the cars about the rotary dump,
uncovering them, and tilting them-which constitutes the work in
dispute in this proceeding. The longshoremen, to whom National has
refused to assign it, claim they are entitled to perform it.
According to the charges filed, as well as to the notice of hearing,
the ILA, on behalf of longshoremen represented by its Local 1291,
also claims certain sampling work performed at pier 14 where the bulk
sugar is removed from the ship. In teams, three persons, acting to-
gether, sample the raw sugar; one represents the United States Custom
Office, another acts on behalf of the seller, and the third works for
National. The ILA claims longshoremen are entitled to that part of
this sampling work performed by a plant employee in the interest of
National.
B. Evidence of illegal conduct
National has not had longshoremen in its direct employ for many
years. To unload the ships, it contracts with Jarka Corporation, a
stevedoring company, herein called Jarka, which hires longshoremen
for this work and bills National on the basis of a cost-plus arrange-
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. One of the steps taken to implement the new bulk sugar unload-
ing technique at pier 14, was National's agreement with Jarka that the
latter would also act as contractor to unload ships there and use long-
shoremen. The first bulk sugar ship was due to arrive on March 1,
1960. Several weeks before that day, James Moock, International
vice president of the ILA, asked Joseph Weber, National's industrial
relations director, which employees were going to be assigned to work
at the newly constructed rotary dump location near the plant. Weber
replied that National's own employees would do that work and Moock
then said that unless ILA Local 1291 members were used, the ILA
"would give them [National's employees] a hell of a fight for their
jobs."
On February 29,1960, National assigned the sampling work at pier
14 and the rotary dump jobs at pier 44 to its regular plant employees
represented by the Sugar Workers. On the same day, Weber had a
conversation with Moock, who told Weber that if National sent sam-
plers from the refinery to pier 14, it would have trouble.
The next day, March 1, loaded ships were docked at both piers,
bagged sugar at pier 46 and bulk cargo at pier 14. Jarka took the
usual steps to put longshoremen to work at both locations, using the
Local 1291 shapeup at pier 46 and another shapeup at pier 551/2, the
customary one applicable to any longshoremen work at pier 14. To a
man, every longshoreman refused to accept a work ticket or to go on
duty. Richard Askew, president of Local 1291, and several delegates
of that local attended the shapeup at pier 551/2 but said nothing to
the men Jarka was seeking to put to work. Askew spoke to Jarka's
foreman, and further efforts to win the longshoremen over were
discontinued.
Very quickly after this development, a meeting was held in the of-
fice of National's dock superintendent at pier 46; present were rep-
resentatives of Jarka, National, and the ILA. At this meeting, Askew
claimed on behalf of longshoremen the jobs of samplers at pier 14 and
the jobs at the rotary dump on pier 44. Efforts to settle the matter,
which included a telephone conversation between Askew and Tom
Meyers, business representative of the Sugar Workers, were unsuccess-
ful. Askew told J. K. Davis, National's manager, that the sugar com-
pany had no right to train or hire men from the plant, who are mem-
bers of the Sugar Workers, to work on pier 14 and at the rotary dump
on pier 44, without first considering members of Local 1291; he also
said that no longshoremen were going to work on any of the piers.
Later that day, Weber received a telephone call from Moock, who
asked how much sugar was stored in the refinery. On being advised
that there was a week's supply of raw sugar, Moock stated that he
would have to shut down the refinery.
INT'L LONGSHOREMEN'S ASSN., LOCALS 1291 & 1332 1461
The longshoremen refused to work until March 5, 1960, when the
United States District Court for the Eastern District of Pennsylvania
issued a temporary restraining order. Thereafter, longshoremen ac-
cepted employment offered by Jarka.
C. Contentions of the parties
The ILA contends that the record as a whole contains no evidence
showing that the longshoremen's refusal to work at either pier was in-
duced or encouraged by any of its officers or agent; it asserts affirma-
tively that the longshoremen acted independently of their union agents.
In its brief the ILA says that for this reason the Board "may" quash
the notice of hearing.
As to the merits of the underlying dispute over the work assignment,
the ILA's claim on behalf of longshoremen is principally that its con-
tract with Jarka covers the work at the rotary dump and that there-
fore the ILA has a contractual right which compels an award in its
favor by this Board. Both Jarka and National Sugar are members of
the Philadelphia Marine Trade Association (PMTA) and bound by
contracts made by that group with the ILA.
One of these contracts, received in evidence, covers longshoremen,
but, in a literal sense at least, only Jarka employs longshoremen;
National does not, and has not done so for many years. The ILA
argues, however, that even though National does not have longshore-
men on its direct payroll and therefore appears ostensibly free of the
PMTA contract, it is nevertheless bound by its terms because Jarka is
only a front or hiring agent for longshoremen who unload National's
sugar, and that their real employer, by virtue of control and direction,
is National.
National's first contention is that no matter who may be bound by
the PMTA contract-Jarka, National, or both-the disputed work is
not longshoremen work, is not covered by the language of the agree-
ment, and therefore may be assigned by it at will. National also
argues that even if the contract could be read as embracing the rotary
dump work, it would still not bind National because it has not for
years hired any longshoremen, and therefore is necessarily not a party
to the agreement. It rejects any contention that it and Jarka must be
viewed as a single employer over longshoremen. And finally, Na-
tional also contends that this is essentially refinery plant work,
covered by its collective-bargaining agreement with the Sugar Work-
ers, and therefore, by contractual obligation, must be assigned to the
plant employees.
The Sugar Workers, in the main, agree with the contentions of
National.
ILA Local 1332, separately named as a party in the charge and
served with notice of hearing, formally appeared at the hearing
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through counsel representing ILA and Local 1291; but the record in
no way indicated what its position, if any, might be regarding this
dispute.
D. Applicability of the statute
We are satisfied upon the entire record that there is reasonable
cause to believe that the March 1 concerted refusal by all longshore-
men represented by Local 1291 to take any steps to unload National's
sugar at either of the two piers was an implementation of their union
agents' earlier threat that the ILA would give National "a hell of a
fight" for the jobs at the rotary dump. Only the day before, Moock,
the ILA vice president, had said there would be "trouble," and there
is no evidence that when the longshoremen simply refused to accept
work tickets, their motivation was anything other than to carry out
the virtual strike threat voiced by their representative. As to the
ILA's further assertion that the longshoremen at the pier 551/2 shape-
up refused to work because they felt the work of unloading ships at
pier 14 belonged to pier 46 longshoremen and not to themselves, there
is no evidence worthy of note in support. In view of the concurrent
claim by the ILA to the disputed work, the timeliness of the strike
action by its members in the presence of the union officials, the threats
made by ILA agents, and the total absence of any other explanation
for the strike, we find that there is reasonable cause to believe that the
ILA and its Local 1291 induced and encouraged employees to engage
in a strike for the purpose of forcing National to assign work at the
rotary dump and sampling work to ILA members rather than to its
refinery employees. We therefore conclude that the dispute is prop-
erly before the Board for determination under Section 10(k) of
the Act.
Although Local 1332 of the ILA was also charged with a violation,
there is no evidence that any of its agents engaged in conduct violative
of Section 8(b) (4) (D) ; this record contains no proof that the ILA
International, in the threats voiced by its agent or in the strike action
it may have induced, acted as agent for or on behalf of its Local 1332.
The record therefore does not warrant a finding of reasonable cause
to believe that Local 1332 engaged in conduct violative of the statute,
and we shall accordingly quash the notice of hearing with respect to
Local 1332.
E. Merits of the dispute
The principal issue of this case concerns assignment of the work at
the rotary dump near pier 44 which affects as many as nine jobs. The
question of sampling sugar at pier 14 is a minor aspect of the case and
more easily resolved. This work of sampling incoming cargo has
always been performed by plant employees at pier 46, and, consistent
with that unbroken practice, was assigned to employees from the
INT'L LONGSHOREMEN'S ASSN., LOCALS 1291 & 1332 1463
refinery when there arose occasion to do it at pier 14. The ILA does
not suggest that the basic contentions it advances in claiming rotary
dump work are applicable here also. Virtually the only clear argu-
ment it makes in support of its claim, is that the sampling is performed
a distance from the plant. It does not appear that this work falls
within traditional work claims of longshoremen in loading and un-
loading ships. In the total circumstances we see no reason for depart-
ing from the Company's established past practice and we shall deter-
mine this aspect of the dispute by assigning the sampling work at
pier 14 to the plant employees.
Although the Respondents' arguments respecting rotary dump work
are variously phrased, we view their contentions as essentially twofold,
and these may also be but paraphrases of the same basic assertion.
The first is that because longshoremen have always handled and con-
trolled bagged sugar at pier 46 from the hold of the ship to the point
where the bags come to rest on the slat conveyors, the longshoremen
are claiming no more than the same work in insisting upon following
the bulk sugar to a comparable conveyor when it is poured out of the
railroad cars after reaching the plant from pier 14. The second is
that the PMTA contract recognizes the jurisdictional right of long-
shoremen to the disputed work.
The analogy argument, comparing work on a railroad car 3 miles
from a ship to the unloading of bagged sugar, is weakened by the fact
that at pier 46 the longshoremen do not surrender the cargo to inter-
mediary carriers before it reaches any conveyor belt, but are responsi-
ble for its continuous movement from the ship to the conveyor. In
the hold of the ship, longshoremen place bagged sugar in large nets or
slings which are then lifted by the ship's crane up and out over the
pier. There, other longshoremen detach the crane line and hook each
net to a constantly moving overhead monorail. In making the monorail
circuit, the net moves into the building proper of the plant where a
longshoreman empties the net onto a slat conveyor and returns the
empty net to the ship for further unloading. The entire distance from
the ship to conveyor, the point where the longshoremen surrender the
sugar to the responsibility of others, is no more than 150 feet. The
conveyor, on which the bagged sugar falls when released from the
nets, is like the conveyor onto which the bulk sugar at the rotary dump
flows from tilted railroad cars coming from the ship at pier 14. It is
this fact-that the two conveyors are alike, that each constitutes the
same starting point of moving sugar for the overall functions of the
refinery-which supplies the crux of the ILA's analogy argument and
upon which they contend longshoremen are entitled to the work in
each operation up to that point.
An extension of this contention is the fact that for some years before
1955, when the monorail system was first set up , the bags of sugar were
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moved from the ship to small electric trucks on the pier which the
longshoremen moved to the same conveyor now receiving sugar from
the monorail. These trucks, which the longshoremen emptied, were
even more comparable, according to the ILA, to the railroad cars now
coming from pier 14.
As to the PMTA contract, assertedly awarding the disputed work to
longshoremen, its pertinent phrasing refers to the loading and un-
loading of ships, and only by implication, or by reference to matters
outside the agreement, can be said to apply to the rotary dump work.
As written, the contract "covers the work pertaining to the rigging of
ships, loading and unloading of all cargoes, including mails, ship's
stores and baggage, in the port of Philadelphia and vicinity . . . ."
None of this language unequivocally covers the work in dispute and
therefore cannot serve as a definitive basis for an award to the ILA
now. By the time the raw sugar has been placed in railroad cars at
pier 14, the ship has been completely "unloaded" and the longshore-,
men have done all the work which the quoted contract language as-
signs to them. Certainly the unloading of the cars after a 3-mile trip
has nothing to do with unloading ships.
At the hearing a witness for the ILA said that the question of un-
loading ships included moving cargo to a "final place of rest on the
pier." No such phrase appears in the contract itself. But even in
terms of "a place of rest" when cargo is removed from a ship, such a
place at pier 14 could logically be the very railroad cars into which
the longshoremen place the raw sugar. Indeed, the very fact that
the longshoremen make no claim to the work of moving the cars for
the 3-mile distance to the refinery supports such a reading of the total
import of the contract, for if movement to the plant from pier 14 is
to be viewed as a continuous part of ship unloading, and the final
place of rest the rotary dump conveyor, employees of the Reading
Railroad are also doing longshoremen's work. Moreover, the rotary
dump structure can as much be considered part of the refinery plant
as part of the pier. There are other railroad tracks leading to the
plant and plant employees or warehousemen unload cars on these
tracks, which bring materials and supplies other than sugar. The
bulk sugar does not stop moving at the rotary dump conveyor but pro-
ceeds from there to another conveyor belt to still another location in
the plant. Therefore, the final place of rest of the cargo-assuming
the sugar is still ship cargo after it has reached the plant-becomes a
matter of semantics?
2 We find equally vague and undeterminative other clauses of the PMTA contract speak-
ing of "work which historically and regularly has been and is currently performed" by
longshoremen . The rotary dump arrangement to unload the railroad cars is new and
therefore without precedent . And reference to whatever "currently is performed" by long-
shoremen only again directs attention to the analogy arguments comparing the unhooking
of nets from the ships which dock at pier 46 to the tilting of railroad cars. As we con-
clude that the PMTA contract cannot fairly be read as directly covering this work, we find
INT'L LONGSHOREMEN'S ASSN., LOCALS 1291 & 1332 1465
In claiming the work in question for the plant employee group, the
Sugar Workers, like National, points to its contract and also con-
tends that it covers the rotary dump jobs. Like the PMTA agree-
ment, this also does not in words refer to the new operation and it is
only by construction of other general phrases that it could be said to
apply to the work. Thus, this agreement affects employees "at the
refinery," excluding, among others, longshoremen. And again it is a
question whether the rotary dump can be called part of the pier or part
of the refinery. Although designated as located at pier 44, it is not
over navigable water and the precise location has been used as a lum-
beryard and parking lot. Further, it is one of many similar receiving
facilities of the refinery to which material arrives over railroad tracks,
and it is not disputed that the handling of other railroad cars, bring-
ing other supplies, is work falling under the Sugar Workers' con-
tract. Moreover, in a larger sense, even the piers on which longshore-
men work could be viewed as part of the refinery, else there would
appear no reason for the specific exclusion of longshoremen from the
agreement covering "refinery" employees.
The Board has held that collective-bargaining agreements in effect
where work is in dispute are a pertinent factor to be considered in
making affirmative awards in these proceedings. In this instance,
while neither contract unequivocally resolves the issue, it would appear
that the Sugar Workers' contract more persuasively supports that
Union's claim than the ILA contract helps the longshoremen.
The contracts apart, the question remains whether the longshoremen
have a right to handle the sugar as far as the plant, no matter by what
means it travels before reaching that point. On the record before us,
we cannot agree with this flat demand. We are asked to treat the work
in dispute as the work of longshoremen, which, by tradition, as well
as by the contracts in exhibit, is essentially the loading and unloading
of ships. No attempt has been made here to deprive them of such
work, either at pier 46 or pier 14. When the bagged sugar arrives at
pier 46, the unloading process is a complex, continuous, integrated one,
leading directly from the hold of the ship to the monorail chain on
which the actual winch or crane nets travel in uninterrupted motion.
It is longshoremen who fill the nets on the ship and longshoremen who
empty them from the monorail and send them back to the ship. No
other hands take over at any intermediate point or otherwise interrupt
the single unloading operation of the longshoremen. In contrast, the
work of unloading bulk sugar at pier 14 is complete when it has been
deposited by the longshoremen into the railroad cars. When that
"cargo" reaches the refinery 3 miles away, it is not distinguishable
from any other supplies or materials which also arrive at the plant by
it unnecessary to decide whether the agreement in fact is binding upon National itself as
well as upon Jarka.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rail. We cannot say that for National at that point to treat it as it
does all other materials it receives by rail or truck is unreasonable or
irregular in the circumstances.
The record contains an indirect admission by the ILA that this is
not the traditional shiploading and unloading work of the longshore-
men they represent. In part support of their claim, they point to
work frequently performed by members of ILA Local 1332-the car-
loader local-and to the PMTA agreement in effect which recognizes
the right of these employees to load and unload railroad cars and trucks
on piers in the port of Philadelphia. It was not shown that Local 1332
members have ever worked for National at these piers, either directly
or through Jarka as a stevedoring contractor. And, as stated above,
Local 1332 has advanced no claim to the work. Local 1291 would have
us use the traditional claim of Local 1332 as basis for awarding the
work to its members on the ground that Local 1332 voluntarily re-
linquished this particular car unloading claim to its sister local. In
making this work award, we cannot accord much weight to the trans-
fer of asserted work rights among sister locals of the same Interna-
tional union, but we do see in this collateral contention of Local 1291
further indication that the rotary dump work in this instance cannot
fairly be viewed as an integral part of unloading ships.
On the basis of the entire record, we shall determine the dispute
by assigning the work in question to the refinery plant employees.
Our determination is limited to the particular controversy which gave
rise to this proceeding. In making this determination, we are assign-
ing the work to the refinery plant employees, who are represented by
Local 1648, Sugar Refinery Workers, AFL-CIO, and not to that union
or its members.
In view of the above, we also find that International Longshoremen's
Association and its Local 1291, were not and are not entitled, by means
proscribed by Section 8(b) (4) (D) of the Act, to force or require Na-
tional to assign the disputed work to their members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record, the
Board makes the following Determination of Dispute pursuant to
Section 10 (k) of the Act :
1. Plant employees engaged as samplers at pier 14 and plant em-
ployees at the rotary dump, currently represented by Local 1648,
Sugar Refinery Workers, AFL-CIO, are entitled to perform the work
for National's Philadelphia, Pennsylvania, operations. Accordingly,
International Longshoremen's Association and its Local 1291 are not
entitled to force or require National to assign the above-mentioned
disputed work to longshoremen, who are currently represented by
Local 1291.
LOCAL 28, INT'L STEREOTYPERS' & ELECTROTYPERS', ETC. 1467
2. Within 10 days from the date of this Decision and Determination
of Dispute, International Longshoremen's Association and its Local
1291, shall notify the Regional Director for the Fourth Region, in
writing, whether or not they will refrain from forcing or requiring
National, by means proscribed by Section 8(b) (4) (D) of the Act, to
assign the work in dispute to members of Local 1291.
[The Board quashed the notice of hearing in this case, insofar as it
applies to Local 1332, International Longshoremen's Association.]
MEMBER. BROWN took no part in the consideration of the above
Decision, Determination of Dispute, and Order.
Local 28, International Stereotypers ' and Electrotypers' Union
of North America, AFL-CIO and Capital Electrotype Com-
pany, Inc. Case No. 3-CD-56. July 19, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Capital Electrotype Company, Inc., herein called
Capital, alleging a violation of Section 8(b) (4) (i) (D) of the Act by
Local 28, International Stereotypers' and Electrotypers' Union of
North America, AFL-CIO, herein called the Stereotypers or Respond-
ent. Specifically, the charge avers that the Stereotypers induced or
encouraged employees of Capital to engage in a refusal to perform
services for Capital with an object of forcing or requiring Capital to
assign certain printing plate work to its members rather than to
employees of Capital's customer, Williams Press, Inc., herein called
Williams. Williams' employees are represented by Albany Printing
Pressmen and Assistants' Union No. 23, International Printing Press-
men and Assistants' Union of North America, AFL-CIO, herein called
the Pressmen. A duly scheduled hearing was held before Joseph I.
Nachman, hearing officer, on August 8 and 9, 1961, at Albany, New
York. 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. The rulings of the hearing
officer made at the hearing are free from prejudicial error and are
hereby affirmed. Briefs filed by Capital, Stereotypers, and Pressmen
have been considered.
Upon the entire record, the Board makes the following :
'Capital's attorney appeared for both Capital and Williams.
137 NLRB No. 164.