Int'l Longshoremen's Assoc., AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

Feb 26, 1965

151 N.L.R.B. 312 (N.L.R.B. 1965)

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's Association , AFL-CIO, and its
Agents and Local 1248 , International Longshoremen 's Associa-
tion , AFL-CIO, and its Agents and Hampton Roads Maritime
Association and Norfolk Oil Transit , Inc., Party in Interest.
Cases Nos. 5-CD-100 and 5-CD-101. February 26, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a. proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by the Hampton
Roads Maritime Association alleging that International Longshore-
men's Association, AFL-CIO, and Local 1248, International Long-
shoremen's Association had violated Section 8(b) (4) (D) of the Act
by engaging in certain proscribed activity with an object of forcing
or requiring the assignment of certain work involved in the loading
of bulk oil aboard vessels to individuals who are members of Local
1248 rather than to the employees of Norfolk Oil Transit, Inc.
A hearing was held before Hearing Officer Charles B. Slaughter on
June 30, July 1, and October 6, 1964. The Charging Party and the
Respondent Unions appeared at the hearing and were afforded full
opportunity to be heard, to examine 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 were filed by the Charging Party
and the Respondents and have been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins],
Upon the entire record in this proceeding,' the Board makes the
following findings :
1. The business of the Maritime Association
The Hampton Roads Maritime Association, composed of steam-
ship lines, agencies, stevedore companies, and others, exists for the
purpose of bargaining collectively with labor organizations, includ-
ing the Respondents herein, and operates in the general Hampton
Roads port area, including, Norfolk, Virginia.
1 Norfolk Oil is not a member of the Maritime Association . It did not intervene nor
was it represented at this proceeding or in related cases in which the Maritime Associa-
tion charged the Respondent Unions with violations of Section 8(b) (4) (B ) of the Act
(Cases Nos. 5-CC-261 and 5-CC-262), although certain of its officials and employees did
testify.
2In accordance with the request of the parties , the Board has also considered the
record in Cases Nos . 5-CC-261 and 5-CC-262 , insofar as it is pertinent to the issues
presented herein.
151 NLRB No. 43.
INT'L LONGSHOREMEN'S ASSOC., AFL-CIO, ETC. 313
Among its members are: United States Lines, American Export
Lines, Raleigh Steamship Agency, Atlantic and Gulf Stevedores,
Inc., Old Dominion Stevedoring Corporation, and Southern Steve-
doring Corporation. United States Lines is engaged in the trans-
portation of cargo aboard oceangoing vessels in interstate and for-
eign commerce. Raleigh Steamship Agency acts principally as a
steamship agent in the port of Hampton Roads, both as a general
agent and as a turnaround agent, representing ships engaged in
ocean carriage in interstate and foreign commerce. Atlantic and
Gulf Stevedores, Inc., Old Dominion Stevedoring Corporation, and
Southern Stevedoring Corporation are companies engaged in the
business of loading and discharging general cargo from vessels oper-
ated by ocean carriers engaged in interstate and foreign commerce.
The parties stipulated that each of the foregoing members annu-
ally receives in excess of $50,000 for services rendered in con-
nection with the transportation of goods and materials in inter-
state and foreign commerce. Accordingly, we find that the Maritime
Association is engaged in commerce within the meaning of the Act.
2. The business of Norfolk Oil Transit, Inc.
Norfolk Oil carries on a public warehousing operation, dealing
in bulk vegetable and animal oils and tallow. It leases storage
and pumping facilities at Lambert's Point piers and a ' berth at
pier L, Lambert's Point docks, Norfolk, Virginia, for the loading
of these export commodities aboard oceangoing vessels, many of
which are operated by members of the Maritime Association.
During the year preceding the hearing, Norfolk Oil received in
excess of $100,000 for services rendered in connection with the
storage and loading of bulk oils and tallow transported in inter-
state and foreign commerce. We find that Norfolk Oil is engaged
in commerce within the meaning of the Act.
3. The labor organizations involved
The parties stipulated , and we find, that the International Long-
shoremen 's Association , AFL-CIO, and Local 1248, International
Longshoremen 's Association , AFL-CIO, are labor organizations
within the meaning of the Act.
A. The background
The disputed work involves the handling of flexible hoses and
other equipment used in the loading of bulk oils and tallow aboard
vessels . These hoses connect at the berth with permanent oil lines
originating at the storage tanks, some 1,500 feet distant, and
terminate in the deep tanks of the loading vessels. Employees of
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Norfolk Oil, who are otherwise employed at the Company's storage
and pumping facilities, connect these hoses to the oil lines and
insert them into the deep tanks of the vessels where they are tied
into place. These employees, organized into crews of two to four
men, depending on the location of the tank to be loaded and the
complexity of the loading operation, are assisted in this work,
which takes approximately 1 hour to accomplish, by others not
employed by Norfolk Oil who operate the ship's winches to raise
the hoses from the pier and lower them into the holds of the ships
immediately above the deep tanks. Norfolk Oil employees also
operate certain valves to allow the pasage of oil through the afore-
mentioned hoses. When these hoses have been secured, and the
loading vessel is prepared to receive its oil cargo, the employees
return to their regular work in the storage and pumping area, with
the exception of one man who remains aboard the vessel during the
loading process. This individual checks the security of the hoses
and maintains direct communication with the pumping facility to
report on the progress of the- operation. The above-described pro-
cedure is reversed when loading has been completed.
The loading of bulk oil aboard vessels berthed at pier L by
Norfolk Oil is undertaken pursuant to contracts between that
Company and the owners of these commodities, the latter being
responsible for the loading of bulk oil under the "free in and out"
(F.I.O.) provisions of their contracts for carriage with the steam-
ship lines. By contrast, the steamship lines are responsible for the
loading and discharge of general cargo, and, accordingly, contract
with stevedore companies for the performance of these services.
The record shows that the several stevedore companies operating
in the port area customarily load general cargo aboard vessels
berthed at pier L while liquid cargo is being loaded by Norfolk Oil.
Permission for this simultaneous use of pier L was granted to the
stevedores by Norfolk Oil to reduce turnaround time and otherwise
maintain efficiency in the loading of vessels.
The record also shows that the employees of Norfolk Oil had been
doing the above-described work without challenge since the Com-
pany first began its Norfolk operation in November 1952. How-
ever, on March 7, 1964, Charles W. Benson, business agent of the
Respondent Local, appeared at pier L where the American Corsair,
a ship of the United States Lines, was loading and discharging
general cargo by means of ILA labor employed by Southern
Stevedoring Corporation pursuant to the latter's contract with the
shipping line. In accordance with instructions recieved from the
Respondent International, the business agent thereupon asserted
that the handling of the flexible hoses used in the loading of oils
and tallow was ILA work and if Norfolk Oil employees performed
INT'L LONGSHOREMEN'S ASSOC., AFL-CIO, ETC. 315
such work he would "knock off the ship." The demand for this
work was also communicated to employees of Norfolk Oil who
thereafter withdrew from the vicinity of the ship where they had
assembled to prepare it for loading. The hoses were ultimately
placed aboard the American Corsair by a supervisor of Norfolk Oil,
assisted by a representative of the United States Lines.
On March 20, 1964, as Norfolk Oil employees were preparing to
ready the SS Nando Fassio for loading, Benson appeared at pier
L and again claimed the disputed work. Officials of Norfolk Oil
who were present refused to accede to the demands of the Local
and the Company's employees actually performed the work in
question. However, at the direction of the ship's agent and in
accordance with assurances given David Alson, vice president of
the Respondent International, Atlantic and Gulf Stevedores, Inc.,3
paid ILA longshoremen who had "shaped up" on this occasion.
These payments were made under protest.
The record shows that in the period between the two incidents
described above, ILA labor actually performed a substantial amount
of the disputed work and that longshoremen so employed were
paid for this work by stevedoring companies under arrangements
made with ship operators or their agents. In many instances, such
payments were made under protest. Following the incident of
March 20, and as a result of a stipulation reached by the parties
to this proceeding in Cases Nos. 5-CC-261 and 262, the Respondents
have acquiesced in the performance of the disputed work by Norfolk
Oil employees, pending a final resolution of the matter.
B. Applicability of the statute
Although union officials deny engaging in some of the activity
attributed to them as described above, we are nevertheless satisfied,
upon the record as a whole, that there is reasonable cause to
believe that a violation of Section 8(b) (4) (D) has occurred.
Accordingly, we find that the dispute is properly before the Board
for determination under Section 10(k) of the Act.
C. The contentions of the parties
The Respondents contend that the dispute herein is not cognizable
under Section 8(b) (4) (D) of the Act and that their action con-
stitutes a lawful attempt to prevent the contracting-out of the
disputed work to employees of Norfolk Oil in violation of the
collective-bargaining agreement between them and certain members
of the Maritime Association.
3 This company has a contract under which it performs stevedoring services for all
Fassio ships.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, the Respondents moved that this proceeding be
quashed as (1) the aforementioned bargaining agreement, upon
which their claim to the disputed work is based, expired on
September 30, 1964, and as (2) the Respondent Local has filed a
petition for an election among employees of Norfolk Oil, evidencing
a desire on the part of these employees to be represented by the
Local. We find the Respondent's motion to be without merit.
While the bargaining agreement did indeed expire on September
30, 1964, there is no evidence that the Respondents have relinquished
their original claim. Moreover, as we stated in our Decision and
Direction of Election in the representation case,4 we find no incon-
sistency in the maintenance of a claim to the disputed work on
behalf of other employees and a willingness to represent employees
of Norfolk Oil in collective bargaining with that employer should
the Local win the election therein. Accordingly, the Respondents'
motion to quash is hereby denied.
The Maritime Association contends that the work in question
is beyond that contemplated by the agreement between its members
and the Respondent Unions and that the Maritime Association
does not, under existing contracts for carriage between the ship
operators or agents and the owners of bulk oil, have the right to
compel the assignment of such work to its stevedore members.
D. The merits of the dispute
Section 10(k) of the Act requires that the Board make an
affirmative award of disputed work after giving due consideration
to various relevant factors,-' and the Board has held that its
determination in a jurisdictional dispute case is an act of judgment
based upon commonsense and experience and a balancing of all
relevant factors.6
Certain factors usually considered by the Board in these cases
provide little assistance in determining the instant dispute. For
example, we do not read the bargaining agreement here involved
as unequivocally supporting on its face the claim urged by the
Respondent Unions. This claim is based on those provisions that
broadly describe the unit coverage as encompassing "all work of
rigging and unrigging of cargo and passenger vessels and the load-
ing and discharging of their cargoes ...." 7 No reference is made
* Norfolk Oil Transit, Inc, Case No. 5-RC-4914
5N.L.R .B. v. Radio & Television Broadcast Engineers Union, Local 1212 , et at (Colum-
bia Broadcasting System ), 364 U S 573.
6 International Association Machinists Lodge No. 1743 , AFL-CIO (J. A. Jones Con-
struction Company ), 135 NLRB 1402, 1407.
7 The agreement enumerates certain exclusions , none of which are pertinent to the
dispute herein.
INT'L LONGSHOREMEN'S ASSOC., AFL-CIO, ETC. 317
to the loading or discharge of bulk liquid cargo. Moreover, the undis-
puted fact remains that for approximately 12 years prior to the events
giving rise to this proceeding, the Respondents never protested the
performance of the disputed work by Norfolk Oil's plant employees.
In these circumstances , we cannot find that the Respondents' claim
to the work in dispute has clear and unambiguous support in
their agreement with the members of the Maritime Association.
Another factor on which the Respondents rely also fails to
establish the superiority of their claim on behalf of employees
they currently represent over those employed by Norfolk Oil. The
record does not show that the performance of the disputed work by
Norfolk Oil employees is inconsistent with industry or area practice.,,
Conversely, the record shows that the work in dispute con-
stitutes a continuous integrated process in the loading of liquid
cargo by Norfolk Oil. Moreover, the satisfactory use of its plant
employees for over 12 years to perform the disputed work gives
rise to an inference that such employment practices are consistent
with the efficient operation of the Company's business. All these
circumstances support the continued assignment of the disputed
work to the employees of Norfolk Oil. Particularly for the reasons
just indicated, but only after assessing all other relevant factors,
it is our considered judgment that the employees of Norfolk Oil
have a superior claim to the disputed work herein.
On the basis of the entire record, therefore, we shall determine
the existing jurisdictional controversy by awarding to Norfolk Oil
employees, rather than to employees currently represented by the
Respondents, the work of handling flexible hoses and other equip-
ment used in the loading of bulk oils and tallow aboard vessels.
The present determination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon the
entire record in this case, the Board makes the following Determina-
tion of Dispute pursuant to Section 10(k) of the Act :
1. Employees employed by Norfolk Oil Transit, Inc., in the load-
ing of bulk animal and vegetable oils and tallow aboard vessels at
the Employer's leased berth at pier L, Lambert's Point docks,
Norfolk, Virginia, are entitled to perform the work in dispute.
8 We are not persuaded that there are sufficient similarities in the "gravity-type" load-
ing operation at Newport News, Virginia , where ILA labor is employed in the handling
of hoses aboard vessels, to require a different conclusion In that case , bulk vegetable
oils are taken aboard ship directly from railroad tank cars without the use of inter-
mediate storage facilities , pumping equipment , or of blending procedures The ship
operators are responsible for loading these commodities.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Neither International Longshoremen's Association, AFL-CIO,
nor Local 1248, International Longshoremen's Association, AFL-
CIO, is entitled to force or require the Hampton Roads Maritime
Association, or any of its members, to assign the disputed work
to employees whom it represents who are not employed by Norfolk
Oil Transit, Inc., by means proscribed by Section 8 (b) (4) (D)
of the Act.
3. Within 10 days from the date of this Decision and Determina-
tion, International Longshoremen's Association, AFL-CIO, and
Local 1248, International Longshoremen's Association, AFL-CIO,
shall notify the Regional Director for Region 5, in writing, whether
or not they will refrain from forcing or requiring, by means
proscribed by Section 8(b) (4) (D) of the Act, the assignment of
the work in dispute in a manner inconsistent with the above
determination.
The Wm . H. Block Company and Retail , Wholesale and Depart-
ment Store Union , AFL-CIO , Petitioner. Case No. 25-RC-2602.
February 26, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Arthur Hailey. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Briefs were filed by both the Employer and the Petitioner.
Pursuant to the provisions of Section 3 (b) of the Act, the
National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman Mc-
Culloch and Members Fanning and Brown].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer?
'After the close of the hearing in this case , Hotel , Motel, Cafeteria , and Restaurant
Employees and Bartenders' Union, Local No. 58, affiliated with Hotel and Restaurant
Employees and Bartenders' International Union, AFL-CIO, filed with the Regional Di-
rector a written motion to intervene and a request to be placed on the ballot should an
election be directed . On the basis of a showing of interest in the unit sought, the
motion was granted by the Regional Director . The Intervenor took no unit position.
151 NLRB No. 31.