223 N.L.R.B. 1034 (N.L.R.B. 1976)

Intl. Longshoremen's Local No. 50

National Labor Relations Board - Board DecisionsApr 23, 1976

223 N.L.R.B. 1034 (N.L.R.B. 1976)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Union, Local No. 50 (Brady-Hamilton Stevedore Company and Willamette Western Corporation) and Hoisting & Portable Engineers , Local No. 701, International Union of Operating Engineers, AFL- CIO International Longshoremen's and Warehousemen's Union, Local No. 50 (W. J. Jones & Son, Inc. and General Construction Company ) and Hoisting & Portable Engineers, Local No. 701 , International Union of Operating Engineers , AFL-CIO. Cases 36-CD-54 and 36-CD-54-2 April 23, 1976 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On September 21, 1971, the Board issued its Deci- sion and Order in the above-entitled case finding that International Longshoremen's and Warehousemen's Union, Local No. 50 (hereafter referred to as Re- spondent or Longshoremen), violated Section 8(b)(4)(i) and (ii)(D) of the National Labor Relations Act, as amended, by seeking to force or require cer tain employers' to assign disputed work tasks to em- ployees represented by Respondent.' Thereafter, the Board filed an application for enforcement and Re- spondent and Pacific Maritime Association (the bar- gaining representative of the Employers, hereinafter referred to as PMA) filed a cross-application for re- view of the Board's Order with the United States Court of Appeals for the Ninth Circuit. On September 5, 1974, the court issued its deci- sion I vacating the Board's Order and remanding the case for further proceedings consistent with its opin- ion. On June 6, 1975, the Board, through its Executive Secretary, notified the parties that it had decided to accept the remand of the court 4 and further advised the parties that the Board would accept statements of position with respect to the matters raised by the court's remand. Thereafter, Respondent, PMA, and the Operating Engineers filed statements of position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- t Brady -Hamilton Stevedore Company and W. J. Jones & Son. Inc. (hereinafter collectively referred to as the Employers). 2 193 NLRB 266. 3 N.L.R. B. v. International Longshoremen 's and Warehousemen 's Union. Local No. 50. 504 F.2d 1209. 4On October 27, 1974, Hoisting & Portable Engineers , Local 701. Inter- national Union of Operating Engineers . AFL-CIO (hereinafter referred to as Operating Engineers or Engineers ), filed a petition for a writ of certiorari with the United States Supreme Court which was denied on March 17. 1975. tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has duly considered the decision of the court of appeals in light of the statements of position filed by the parties in this proceeding and concludes, for the reasons set out below, that the award of the disputed work tasks to employees represented by the Operating Engineers is warranted and appropriate and that no alteration is therefore required in the terms of the Board Order as heretofore issued in this case at 193 NLRB 266. Introductory Statement The Order previously issued by the Board in this case enjoins Respondent from engaging in, inducing, or threatening to engage in any coercive pressures against any employers doing business at the Port of Astoria where an object of such pressure is to force any employer to assign the disputed work tasks- "operating barge-mounted floating whirly-type cranes lifting bundles of logs from the water and placing them into the hulls of ships and barges at Employer's Astoria, Oregon operation"-to employ- ees represented by Respondent rather than to em- ployees represented by the Operating Engineers. The Board's Order was predicated in part on find- ings made in an earlier proceeding I conducted by the Board under Section 10(k) of the Act, in which the Board affirmatively awarded the disputed work tasks to employees represented by the Operating En- gineers . The Board found that on April 3, 1969, Respondent's members engaged in a concerted work stoppage and refused to hook up logs to barge- mounted floating whirly cranes which were operated by employees represented by the Operating Engi- neers . The Respondent's announced reason for en- gaging in the work stoppage was that it considered it dangerous to the health and safety of its members to work with Operating Engineers crane operators. The Board concluded that Respondent's claim was juris- dictional in nature and that its object in engaging in the work stoppage was to force the Employers to as- sign the disputed work tasks to Respondent's mem- bers. The Board further found that the work which Respondent sought to obtain for its members was work which operating engineers had performed and were then performing at the direction of the Employ- ers, in accord with longstanding practices in effect since whirly cranes were introduced as loading tools at the Port of Astoria; that no objection thereto had been previously voiced by Respondent; that the work stoppage was not impelled by any previous determi- ' 181 NLRB 315 (1970). 223 NLRB No. 153 INTL. LONGSHOREMEN'S LOCAL NO. 50 nation that Respondent's collective -bargaining con- tract and/or work certifications required or permit- ted Respondent 's members to perform the disputed work tasks; that, unlike employees represented by Respondent , operating engineers possessed the skills necessary to perform the disputed work tasks in a safe and efficient manner necessary to satisfy the in- terests of the Employers in servicing their customers and avoiding risk of personal injury and property damage ; and that , indeed , Respondent 's decision to compel the displacement of operating engineers was intended to open up for Respondent 's members job opportunities theretofore performed by employees represented by Operating Engineers . Based on these findings , the Board determined that operating engi- neers were more skilled , efficient , and safe employ- ees, and that these and the factors of past practice and acquiescence favored an award of the disputed work to operating engineers . The Board concluded, therefore, that Respondent did not have the lawful right to demand the reassignment of the disputed work tasks from operating engineers to longshore- men. Accordingly , the Board issued a cease -and-de- sist order. In refusing to enforce the Board 's order , the court accepted all of the findings made by the Board with respect to the matters occurring on or before the date of Respondent's work stoppage and, further, found that the factors relied on by the Board were support- ed by substantial evidence. However, laying stress on subsequent steps taken by Respondent and PMA which, in the court's view, may have warranted a dif- ferent judgment of the merits of Respondent's work demands , the court rejected the Board 's conclusion that the foregoing factors dictated an award of the disputed work to operating engineers . Specifically, the court held that the Board misconstrued and failed to take into account the terms of the contract between Respondent and PMA which on their face explicitly excluded the disputed work tasks from Respondent's work jurisdiction but were interpreted by an arbitrator, in bipartite proceedings initiated subsequent to Respondent 's work stoppage, as re- quiring the assignment of the disputed work to long- shoremen . In addition , the court held that the Board failed to give weight to the fact that , since the incep- tion of Respondent's work stoppage, the Employers have assigned the disputed work tasks to longshore- men. Furthermore , the court held that the Board's misconstruction of the terms of the above contract may have led to a misplaced emphasis on other fac- tors relied on by the Board in finding that the engi- neers were entitled to perform the disputed work tasks. The court accordingly remanded the case to the Board to reevaluate and reconsider its findings 1035 and conclusions in light of the arbitrator's interpreta- tion of the contract and the Employers' post-work- stoppage preference. Discussion Briefly, the sequence of events leading to the Em- ployers' reassignment of the work in dispute to long- shoremen and the arbitrator's interpretation of the contract is as follows: On April 3, 1969, immediately subsequent to and as a direct result of Respondent's work stoppage, the Employers reassigned the disputed work tasks from employees represented by Operating Engineers to employees represented by Respondent. On the same day, representatives of Respondent and PMA, the Employers' bargaining representative, agreed to sub- mit to arbitration the question whether, as claimed by Respondent, the operation of whirly cranes by operating engineers created a health and safety haz- ard for longshoremen. Thereafter, on September 27, 1969, an "area arbitrator" issued a written decision finding no bona fide health or safety issue with re- spect to the performance of the disputed work tasks. Rather, the area arbitrator found the issue to be ju- risdictional in nature and, being unable to resolve the matter, referred it to the Joint Coast Labor Relations Committee pursuant to the terms of the contract be- tween PMA and Respondent. The committee, which consisted of an equal number of representatives from PMA and Respondent, was also unable to resolve the dispute. Accordingly, by joint resolution of the committee's members the matter was submitted for resolution to the "coast arbitrator." Thereafter, on May 8, 1969, the coast arbitrator found, in confor- mance with the positions of both PMA and Respon- dent, that the Employers were required by the con- tract to assign the disputed work tasks to longshoremen represented by Respondent. In accepting the court's remand, the Board has de- cided to adopt as the law of this case the court's findings that the correct interpretation of the collec- tive-bargaining contract between PMA and Respon- dent is that given to it by the arbitrator; that, so interpreted, the contract requires PMA and its mem- ber employers to assign the disputed work tasks to employees represented by Respondent; and that, since the inception of the work stoppage, the Em- ployers' preference, as subsequently justified by the arbitrator's interpretation of the contract, has been and is to assign the performance of the disputed work tasks to longshoremen. However, notwithstanding the above findings, we are unable to conclude, for the reasons which follow, that these factors warrant an award of the disputed 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work tasks to employees represented by Respondent. Indeed, the court recognized this possibility.6 While collective-bargaining contracts and employ- er preference are relevant factors which the Board is required to consider in making jurisdictional work awards, they are not the only factors or, in the cir- cumstances of every case, the most persuasive.' To make these factors controlling in all cases would not, as experience has taught us, lead to informed awards of work. In Jones, the Board declined to adopt such a mechanistic approach to the resolution of work dis- putes between competing groups of employees. Rath- er, recognizing that jurisdictional disputes arise in many different circumstances, the Board opted for a more empirical approach of considering each case as it arises based on a number of factors, which are to be weighed in the context of the particular circum- stances of each case. These factors include past prac- tice and acquiescence; the skills and training of the competing groups of employees; efficiency, econo- my, and safety; area and industry practice; collec- tive-bargaining contracts; Board certifications; arbi- tration awards; and employer preference. True, as pointed out by the court, in many cases the Board's approach has led to determinations of jurisdictional disputes in favor of the employees to whom the employer has assigned the work. But such awards are in large measure due to the fact that the employer, in making the assignment, has taken into account the very factors normally weighed by the Board and the Board, in independently evaluating the relative merits supporting the competing claim, has found itself constrained to determine the award of the disputed work so as to coincide with the employer's assignment. But that is not the same as saying that the Board has accorded employer prefer- ence preeminence in its determinations of work dis- putes. Indeed, the Board has consistently held that "an employer's assignment of disputed work cannot be made the touchstone in deciding a jurisdictional dispute" tt and where, as here, an employer's assign- ment is contrary to the weight of other relevant fac- tors considered in light of the circumstances of the case, the Board does not give controlling weight to this factor.' The court acknowledged that " It is possible . of course, that the Board may think that the Engineers should get the work despite the PMA-Long- shoremen contract and the employers ' preference ." 504 F.2d 1209 at 1233. 7 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, 1410-11 (1962). s See . e.g., Millwrights Local Union No. 1102 United Brotherhood of Car- penters and Joiners of America, AFL-CIO, et a!. (Don Cartage Company). 160 NLRB 1061, 1078 ( 1966). ' The Woo4 Wire and Metal Lathers International Union, Local Union No. 68. AFL-CIO (State Lathing Co., Inc. and Dry-Wall Steel Erectors, Inc.), 153 NLRB 1189, 1194-95 (1965). In the instant case, the circumstances under which the PMA-Longshoremen contract was interpreted to cover the disputed work and the context of the Em- ployers' reassignment of the disputed work tasks from the engineers to the Longshoremen substantial- ly diminish the relative weight to be given to these factors in making a well-reasoned award of the dis- puted work tasks. Thus, the interpretation of the PMA-Longshoremen contract was rendered as a re- sult of a bipartite proceeding with both parties advo- cating the same result. Respondent wished to have the disputed work tasks assigned to its members and the PMA members (including the Employers herein), as a direct consequence of the Respondent's work stoppage, had reassigned the work to longshoremen and expressed to the arbitrator a preference to con- tinue that assignment. Accordingly, the coast arbitra- tor, whose office and authority derived exclusively from the contract between PMA and Respondent, had no real alternative but to interpret the contract as sought by the only parties before him. Furthermore, the coast arbitrator's decision was a deviation from the explicit provisions of the contract between PMA and Respondent, which on its face specifically excluded the operation of cranes mount- ed on floating barges from the contract's work juris- diction coverage.10 In these circumstances, it cannot be disputed that the PMA-Longshoremen contract did not cover the work in dispute prior to the longshoremen's work stoppage which created the ju- risdictional dispute." It was only after the jurisdic- tional dispute arose that the contract, despite the ex- plicit exclusionary language of its terms in this regard, was interpreted to support the Long- shoremen's claim to the work and the Employers' post-work-stoppage reassignment of the work to Longshoremen. Thus, since the contractual require- ment that the work be performed by longshoremen came into existence only after the dispute arose, it could not support a claim for that work made before that award. Nevertheless, because we now accept the parties' present interpretation of their contract, we have tak- 10The contract between PMA and Respondent explicitly provides that the term "longshore cranes," which are required by the contract to be oper- ated by Respondent's members , shall not include cranes mounted on any "floating-crane barge" such as are involved in the instant case . The record establishes that while this "exception" to the work covered by the contract could have been modified by the Joint Coast Labor Relations Committee. the committee had specifically declined to make any such modification. The most recent consideration of this issue by the committee, in the context of the instant case, was in May 1969 when it was unable to resolve the work dispute herein. tt This fact alone distinguishes this situation from the one existing in International Longshoremen's and Warehousemen 's Union and I. L. W. U., Lo- cal No. 19 (American Mail Line, Ltd. and Mobile Crane Company), 144 NLRB 1432 (1963), where the collective- bargaining agreement from its in- ception arguably covered the operation of the cranes there involved, and the employer so contended. INTL. LONGSHOREMEN 'S LOCAL NO. 50 1037 en that contract interpretation into account as a fac- tor to be considered and weighed in determining the dispute. However, taking cognizance of the circum- stances in which that interpretation was made, we find, as previously indicated, that this factor does not warrant the same degree of weight as would have been accorded it if the contract had been so inter- preted prior to the jurisdictional dispute or at all times material was subject by its terms or language to such an interpretation. Accordingly, while the collec- tive-bargaining contract as interpreted tends to favor the Longshoremen's claim to the work, we cannot, in the circumstances of this case, attach controlling weight to it. Likewise, the uncontested evidence establishes that, since the introduction of floating whirly cranes at the Port of Astoria, the Employers' preference had been to assign the operation of those cranes to oper- ating engineers." The Employers' "preference" changed only after Respondent's members engaged in a work stoppage which forced the Employers' reassignment of the work to longshoremen. Notwith- standing that the Employers now profess a continu- ing preference for the longshoremen to do the work, in evaluating this factor of employer preference we cannot ignore the circumstances which caused this change in the Employers' past assignment of the work in dispute. Thus, as set forth above, the evi- dence establishes that the Employers' reassignment of the operation of floating cranes was brought about by Respondent's work stoppage which occurred at a time when Respondent's members were not perform- ing the work and in the face of a long history of the Employers' freely determined assignment to employ- ees represented by the Operating Engineers. In these circumstances, we are constrained to treat the Em- ployers' asserted post-work-stoppage preference for longshoremen with a good deal of skepticism be- cause such statements of preference may not be rep- resentative of a free and unencumbered choice. We are, therefore, unable to accord as much weight to this factor in making our award of the work in dis- pute as we would have if the evidence had estab- lished that the preference favoring longshoremen had been freely indicated prior to the instant dispute. To the contrary, in view of the long period of employer 12 The fact that the Employers had no direct contractual relationship with the Operating Engineers does not alter the fact that initially they chose to have floating cranes operated by employees represented by that union. Thus, the practical effect of the Employers' use of operating engineers who came along with the floating cranes leased by them from other subcontrac- tors who had contractual relations with the Operating Engineers was to make a direct assignment of the operation of those cranes to the operating engineers . See, e .g., Local Union No. 3, International Brotherhood of Electri- cal Workers, AFL-CIO ( Western Electric Company, Incorporated), 141 NLRB 888 ( 1963); Sheet Metal Workers International Association, Local Union No. 28, AFL-CIO (Diesel Construction , a division of Carl A. Morse, Inc., et al.), 194 NLRB 79 (1971). preference favoring operating engineers to the exclu- sion of longshoremen, this factor is at least equally favorable to employees represented by the Operating Engineers as to employees represented by Long- shoremen, and, hence, is of no aid to us in deciding which group of employees should be awarded the work." Having here determined that the factors of collec- tive-bargaining contracts and employer preference are not determinative in deciding which group of em- ployees should be awarded the work in dispute, we must examine and evaluate the other factors present- ed by the facts of this case to determine the merits of the dispute. Past Practice The Employers' present assignment represents a change in past practice. It is uncontradicted that from the time floating cranes first came to the Port of Astoria in 1964 until the Respondent's work stop- page on April 3, 1969, the floating cranes were al- ways operated by members of the Operating Engi- neers. In view of the uncontradicted record, we find that the factor of past practice favors an award of the work in dispute to employees represented by the Op- erating Engineers. Acquiescence In our previous decision,14 we found that "the Longshoremen have long acquiesced in [the] assign- ment" of the operation of floating whirly cranes to members of the Operating Engineers.15 Thus, as found above, the record establishes that, until the Respondent's work stoppage, the operation of float- ing whirly cranes was handled exclusively by operat- ing engineers and the Respondent expressed no op- posing claim to that work prior in the instant dispute. In these circumstances, we again find that the factor of acquiescence favors an award of the disputed work tasks to employees represented by Operating Engineers. 13 Cf. International Longshoremen's & Warehousemen's Union (American Mail Line, Ltd.), supra; International Longshoremen 's & Warehousemen's Union and International Longshoremen 's & Warehousemen 's Union, Local No. 19 (Albin Stevedore Company and Alaska Freight Lines, Inc.), 144 NLRB 1443 (1963). In these cases , we accorded greater significance to the employ- ers' preference to reassign the disputed work tasks to members of the strik- ing union because the work in dispute was covered by the contract between the employers and the striking unions . 144 NLRB at 1441-42. In the instant case, it is undisputed that the Employers ' contract with the Longshoremen never expressly covered the work in dispute , and only after the dispute arose was that agreement interpreted contrary to its explicit terms by an arbitrator who had little choice to do otherwise , since the contracting parties together urged such interpretation. '181 NLRB 315; 15 Id. at 316. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Skill, Efficiency, Economy, and Safety We found in our previous decision that the em- ployees represented by the Operating Engineers are "skilled crafts [men] with up to 6 years of training and experience on land and floating cranes , having served long apprenticeships as firemen before be- coming operators ." 16 As noted therein, "no member of the Longshoremen . . . had ever operated either a floating or a land crane , with the exception of one who had operated a land crane for 2 days" and " [n]o Longshoremen had any experience firing the boilers of [the] steam cranes ." 17 That the longshoremen may now have achieved sufficient skill to operate the floating cranes adequately does not detract from the validity of those findings . Nor does it neutralize the obviously superior skill of the operating engineers as evidenced by the record then and now before us. Ac- cordingly , we reaffirm our previous finding that the factor of skill weighs in favor of the operating engi- neers in making an award of the disputed work. In addition to finding that the skills possessed by oper- ating engineers are paramount, we found that it was more economical-and therefore efficient-to have operating engineers operate the floating cranes. Thus, we found that "while the floating cranes are being operated by members of the Longshoremen, the Stevedore companies are forced to hire outside repairmen at considerable expense to maintain the floating cranes, since the Longshoremen firemen, un- like the firemen members of the Engineers , are un- able to do so, having had no experience in maintain- ing, servicing or rebuilding cranes ." 18 Furthermore, the accident record of the operating engineers was exemplary with "no accidents [attributable] to their negligence ," whereas the longshoremen 's operation of a lesser number of cranes resulted in a greater incidence of accidents attributable to their operation of the cranes." Clearly, since these findings concern- ing safety and efficiency and economy of operation were based on the same record before us , they are as valid and applicable now as then and thus are reaf- firmed. Accordingly, we conclude that the factors of skill, efficiency, economy, and safety favor an award of the disputed work tasks to employees represented by the Operating Engineers 20 16 Id at 317. u Ibid 's Ibid 19 Ibid m With all due respect to the court, we believe that it did not fully recog- nize or give sufficient consideration to the significance of the factors of skill, economy, efficiency, and safety separate and apart from those of contractu- al assignment and employer preference. Thus, the court emphasizes that the contractual assignment of the disputed work tasks to members of the Long- Certification The record establishes that the Board certification issued to the Longshoremen in 1938 did not cover employees operating barge-mounted floating cranes. Indeed, the record shows that that certification was issued prior to the advent of such cranes in the indus- try. Furthermore, any action by the parties to bring the operation of floating cranes under the work juris- diction of the Longshoremen cannot by itself amend the certification which the Board alone has authority to amend or clarify. Accordingly, in these circum- stances, the factor of prior certification has no bear- ing on the instant dispute and we conclude that this factor does not favor assignment of the work in dis- pute to employees represented by either labor organi- zation involved. Area and Industry Practice In the circumstances of the instant case, we find that the factors of area and industry practice are of little value in assessing the merits of the competing claims to the work in dispute. Thus, while operating engineers have operated cranes at this port, in other ports in the area along the coast cranes are operated by longshoremen, albeit it is not made absolutely clear by the record that such cranes are floating whir- ly cranes. Likewise, with respect to industry practice, we note that unlike the situations in prior cases,21 the shoremen pursuant to the arbitrator 's interpretation of the contract, and the subsequent training of longshoremen by the Employers , compensate for their lesser skills and safety and economy record in the performance of the work , and that the Employers anticipated and accepted these lower levels of skills, safety , and economy when they reassigned the work to longshoremen. However, these considerations are in reality naught but extensions of the Respondent's arguments concerning the factors of collective -bargaining contracts and employer preference , discussed above . Such considerations do not answer the crucial question as to which group of employees , at the time of the hearing, had superior skills and ability to perform the work in the most economic and efficient manner with a high degree of safety, factors which clearly possess their own identity and weight . Furthermore , that the contract as interpreted may now favor the longshoremen does not lessen the fact that, as we have found , the group of employees represented by the Operating Engineers was more skilled to perform the disputed work tasks and could do so more safely, efficiently , and economically than the employ- ees covered by the contract . Consequently , we find that these facts override the Employers ' willingness to accept poorer work performances from lesser- skilled longshoremen and the additional expense in operating the floating cranes with those employees. 21 See , e.g., United Industrial Workers of North America, Anchorage Long- shore Unit, affiliated with Seafarer 's International Union of North America, AFL-CIO (Albin Stevedore Company), 182 NLRB 633, 636 (1970) (dock- mounted cranes operated by longshoremen ); United Industrial Workers of North America, Pacific District, affiliated with the Seafarer 's International Union of North America, AFL-CIO (Sea-Land Service, Inc.), 188 NLRB 241 (1971); United Industrial Workers of North America, Anchorage Longshore Unit, affiliated with Seafarer's International Union of North America. AFL- CIO (Albin Stevedore Company), 162 NLRB 1005, 1006 (1967) (dockside cranes); International Longshoremen 's and Warehousemen 's Union and its Lo- cal Union No. 10 (Howard Terminal), 147 NLRB 359, 361-362 (1964) (dock- side cranes); I.L. W.U. (American Mail Line), supra; International Longshoremen's and Warehousemen 's Local Union No. 19, Independent and I.L. W. U., Ind. (Pacific Maritime Association), 137 NLRB 119 ( 1962). INTL. LONGSHOREMEN 'S LOCAL NO. 50 1039 instant dispute involves the operation of floating whirly cranes and did not arise out of any desire by longshoremen to protect work traditionally per- formed by longshoremen which may have been elim- inated. Rather, it appears that longshoremen are trying to gain work traditionally performed at least at the Port of Astoria, the situs of this dispute, by oper- ating engineers. In these circumstances, we find that area and industry practices are not helpful in de- termining which group of employees involved should be awarded the work in dispute. controlling weight to that factor. The factor of em- ployer preference, as we have found, at best equally favors assignment to both longshoremen and operat- ing engineers. Finally, the remaining factors of prior certification and area and industry practice are of no value to us in determining the instant dispute. Accordingly, we shall reaffirm our previous order in this case finding that the Respondent violated Sec- tion 8(b)(4)(i) and (ii)(D) of the Act by seeking to force or require the Employers to assign the disputed work tasks to employees represented by it.22 Conclusion Based on our consideration of all of the above fac- tors, we find that our previous award of the disputed work tasks to employees represented by the Operat- ing Engineers was correct. Thus, as found above, the factors of past practice, acquiescence, skills, safety, efficiency, and economy clearly, on the basis of the record before us, favor an assignment to employees represented by the Operating Engineers. As also not- ed above, while the factor of collective-bargaining contracts tends to favor the Respondent's claim for the work, we cannot, in the circumstances of this case, for the reasons previously mentioned, attach ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National labor Re- lations Board hereby orders that Respondent, Inter- national Longshoremen's and Warehousemen's Union, Local No. 50, its officers, agents, and repre- sentatives, shall take the action set forth in the origi- nal order in this case. 22 Because we have reaffirmed our previous 10(k) determination, we do not find merit in PMA's contention, as urged in its "protest," that we should have reactivated PMA's charge against the Operating Engineers, inasmuch as that charge was originally dismissed based on our previous 10(k) determi- nation that employees represented by the Operating Engineers were entitled to perform the work in dispute.