Int'l Longshoremen's & Warehousemen's Union

National Labor Relations Board - Board Decisions

Jun 8, 1964

147 N.L.R.B. 359 (N.L.R.B. 1964)

INT'L LONGSHOREMEN'S' & WAREHOUSEMEN'S UNION 359
Upon the basis of the foregoing findings : of fact and - upon ' the entire record in
the case, I make the following: -
CONCLUSIONS OF LAW
1. Clark-Inland Cartage, Division of Consolidated Freightways , is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local Freight Drivers, Local No . 208, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America is a labor organization within the
meaning of Section 2 ( 5) of the Act.
3. Respondent Local 208 and Respondent Clark -Inland have not engaged in un-
fair labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in this case, it is hereby recommended that the complaint be dis-
missed in its entirety.
International Longshoremen 's and Warehousemen 's Union and
its Local Union No. 10 [Howard Terminal ] and Operating En-
gineers, Local Union No. 3, AFL-CIO... Case No. 20-CD-97.
June 8, 1964
DECISION AND DETERMINATION OF DISPUTE .
This is a proceeding under Section 10 (k) of the Act, following the
filing of charges by Operating Engineers, Local Union No. 3, AFL-
CIO, hereinafter sometimes called Local 3 or Operating Engineers,
under Section 8(b) (4) (D). The charges, as amended, allege, in ef-
fect, that on or about February 14, 1963, International Longshore-
men's and Warehousemen's Union and its Local Union No. 10, herein-
after called Respondents, caused Respondent's members employed by
Howard Terminal, hereinafter called Howard'. to engage in a work
stoppage in order to force or require Howard to assign certain crane
work to longshoremen or members of Respondents rather than to mem-
bers of Local 3. A hearing was held on June 18, 19, 20, 21 and on
August 6 and 7, 1963, before Hearing Officer Robert V. Magor. All
parties 1 participated in the hearing and were afforded a full opportu-
nity to be heard, to examine and cross-examine witnesses and to ad-
duce 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 the Respondents, Local 3, and PMA on be-
half of Howard and itself, have been duly considered.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
'Pacific Maritime Association, hereinafter called PMA, was permitted to intervene as
the collective -bargaining representative of Howard.
147 NLRB No. 42.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this proceeding, the Board makes the
following findings :
I. THE EMPLOYERS INVOLVED
Howard is 'a California corporation engaged in the business of
public wharfinger and warehouseman, and in loading and unloading
bulk commodities to 'and from ships and barges. Howard annually
performs over $100,000 worth of loading and unloading services for
shipping companies engaged in the transportation of passengers and
cargo. Said shipping companies annually transport cargo in excess
of $1,000,000 between various ports of the United States and between
the United States and foreign countries.
PMA, a California corporation, is an association of employees en-
gaged in the shipping and stevedoring industries on the Pacific coast,
organized for the purpose of negotiating collective-bargaining agree-
ments on behalf of its employer-members. The employer-members of
PMA annually perform services in the transportation of goods and
passengers between the State of California and other States of the
United States and foreign countries valued at more than $50,000.
We find that Howard and PMA are employers engaged in commerce
within the meaning of the Act, and that it will effectuate the policies
of the Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen 's and Warehousemen 's Union and its
Local Union No. 10 and Operating Engineers , Local Union No. 3,
AFL-CIO, are labor organizations within the meaning of the Act.
III. THE DISPUTE
In general terms, this dispute involves the operation of cranes in
connection with stevedoring operations at Oakland, California. The
particular dispute before the Board in this proceeding occurred on
February 14,1963, and involved an alleged work stoppage by Respond-
'ents' members employed by Howard.
Howard has been for many years and still is a member of PMA. As
such, Howard is a party to, and bound by, various agreements exe-
cuted between PMA on behalf of its members, and the International
Longshoremen's and Warehousemen's Union, hereinafter called
ILWU, on behalf of itself and certain of its locals, including Local
Union No. 10. These agreements basically cover "workers who do
longshore work in the Pacific coast ports of the United States." a Cer-
PMA or its predecessor employer associations have bargained with ILWU since 1938
when this Union was certified as collective-bargaining representative on a multiemployer
'basis in the above-described unit. The original representation proceeding is reported in
5hipowners 'Aosociation of The Pacific Coa8t, et ai., 7 NLRB 1002, 1041.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 361
tain of these agreements were occasioned because of the increasing use
of mechanized equipment on the west coast waterfront to perform
tasks which formerly had been done by individual workers. In an
effort to overcome the problems of automation and manpower which
consequently arose, ILWU and PMA, after prolonged negotiations,
executed memoranda in 1959 and 1960 which were widely heralded as
pioneering efforts to lighten the impact of unemployment problems
created by automation. Together, these agreements provided that
PMA members could introduce work-saving methods and devices in
consideration for which PMA agreed to contribute a total of $29 mil-
lion over a 61/2=year period to a jointly administered fund to be used
in- specific ways for benefits to individual longshoremen affected by
automation changes. These agreements also provided, inter alia, that
"new" types of cargo-handling equipment 9 used by PMA members
would be assigned to longshoremen. An exception was made for ex-
isting equipment. In 1962, this exception was modified by a crane
supplement agreement between ILWU,and PMA which provided, in
part, that nonlongshoremen who have operated "old equipment" to
do longshore work would be offered the equivalent of registered status
for dispatch as a longshoreman to perform longshore crane work. All
of these agreements are incorporated in the present 1961-1966 Pa-
cific coast longshore agreement between Respondents and PMA.
Howard also has been in contractual relationship with Local 3 for
many years and has always, prior to the instant dispute, employed
members of Local 3 as crane operators 4 In the 1960 collective-
bargaining agreement between these parties, as amended. in 1962,
Howard agreed to abide by the hiring procedures set forth in the
1959-1962 master steel erection agreement entered into between Local
3 and the Steel Fabricators and Erectors Council. This agreement,.
which contains a. crane operator's classification, provided, inter -alia,
that Howard would employ persons "having job rights within the
construction and related industries in the labor market area in which
the Employer conducts his operations ...." As noted, this provi-
sion, which covers crane operators as well as other classifications, per-
tains primarily to the construction industry. Local 3 suggests that
the words "related industries" includes other industries employing
crane operators, such as shipping, pile driving, and dredging.
With respect to the instant dispute, the record shows that a number
of years ago, Howard purchased two Colby cranes which it then placed
on pier 2 and used for bulk loading and discharging vessels. These
8 At the hearing in the instant case PMA, Howard, and Respondents interpreted "new"
equipment as equipment being used by an employer. for the first time in the movement of
cargo (longshore work), regardless of whether such equipment was actually new or old.
' In 1950, Howard and Local 3 entered into a consent union authorization election (Case
No. 20-UA-2246) which Local 3 won in a unit of Howard's employees composed of all
crane operators, crane repairmen, shop repairmen and helpers, and apprentice firemen and
oilers.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cranes , which are not involved in the dispute, have always been, and
are presently being, operated by Local 3 members . In 1960 or 1961, in
anticipation of increased scrap iron business , Howard converted a
quaywall adjacent to pier 2 into a pier. In 1962, Howard acquired two
used Washington, or whirley, cranes and placed them on the quaywall.
Sometime in January of 1963, about a month before the whirley cranes
were put into operation, the Joint Coast Labor Relations Committee 8
met and decided that the whirley cranes were to be operated by long-
shoremen under the terms of the present Pacific coast longshore agree-
ment between the ILWU and PMA.
The dispute encompassed by the instant charges concerns the whir-
ley cranes. On February 13,1963, the SS Polly was being loaded with
scrap iron-at pier 2 by the two Colby cranes operated by Local 3 mem-
bers assigned thereto by Howard. To accommodate another ship
awaiting cargo, the Polly, being of sufficiently small size , moved to
the quaywall. Bunch, Howard's loading superintendent, notified the
Local 3 members operating the Colby cranes to begin loading the
Polly on the following day with the whirley cranes , and also ordered
two ILWU hatchtenders as safetymen from Respondent Local 10's
hiring hall.
On February 14, the Respondents' hatchtenders took their posi-
tions at the hatches and the Local 3 members began loading the Polly
with the whirleys. This was the first time Howard had used whirley
cranes to load a vessel. After one or two loads of scrap iron had
been placed aboard the ship, James, Respondents' business agent,
asked Bunch if the latter intended to load with Local .3 crane oper-
ators. Upon being advised that such was Bunch's intent, James
went aboard the Polly. Although it is not disclosed what James said
or did aboard the vessel, Bunch, noting that the hatchtenders were
no longer at the hatches after James went aboard, immediately
stopped the loading operation .6 The hatchtenders and James then
left the vessel. Although requested to do so, James refused to furnish
Bunch with hatchtenders. -James also stated, in effect, that according
to the Respondent Local 10 contract (with Howard), Respondent
Local 10 had jurisdiction over all new operations started along the
waterfront. The Polly was not loaded for the remainder of that day.
Later this same day Bunch, at the request of his superiors, ordered
and received four longshore crane operators from the Respondents'
5 The Joint Coast Labor Relations Committee is composed of representatives from em-
ployers engaged in the steamship and stevedoring industries and representatives from
ILWU. Among its duties and functions is the power to jointly determine the status of
equipment as being "new " or "old" and, consequently, whether the longshoremen or non-
longshoremen shall operate such equipment.
" Part of a hatchtender 's duties consist of giving various signals to the crane operators
who sometimes load "in the blind." Both California and Federal law prohibit loading
without a hatchtenders
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 363
hall and assigned them to the whirleys and the Polly's hatches I where
they worked for several days. This was the first time that Howard
had employed Respondents' members as crane operators to load a
vessel. The whirleys were not again used to load vessels until mid-
May of 1963, when Howard once again employed Respondents' mem-
bers as crane operators. Although Local 3 members have never oper-
ated the whirleys to load or discharge a vessel, they have, for brief
periods since February 14, 1963, operated these cranes in stockpiling
operations.
IV. CONTENTIONS OF THE PARTIES
1. Local 3: Local 3 urges that the work in question should be
awarded to it. Local 3, while agreeing that longshoremen should
be assigned to operate new equipment which is designed and intro-
duced to replace longshoremen, contends that the whirley cranes are
not such new equipment. Local 3 further argues that the parties
to the ILWU-PMA contract are using the automation concept of that
contract as a device to conduct jurisdictional raids on Operating
Engineers. Local 3 also contends that because the Respondents and
PMA have never heretofore evinced an interest in Local 3's- collective-
bargaining agreements with Howard, laches now precludes such an
expression of interest. Local 3 further contends that its members
are entitled to the disputed work on the bases of its 1950 union-shop
election victory and its long contractual relationship with Howard.
Finally, Local 3 seeks the disputed work on the basis of training, skills,
efficiency of operation, and practices at Howard and at other ports.
2. Respondents: Respondents contend that the instant charges
should be dismissed because the Respondents' only objective on Feb-
ruary 14 was to enforce its contract with Howard and that, therefore,
the Respondents did not induce or encourage a work stoppage for
a statutorily proscribed objective. In the alternative, the Respond-
ents contend that cranes are only a substitute for the hand-handling-
of cargo and, as such, are merely new tools of the trade used as an
integral part of the operations involved in the movement of cargo,
which is traditionally a longshore operation. Respondents also con-
tend that longshoremen should be assigned the work on the basis of
their certification, contracts, experience, and practices in other ports.
3. PMA and Howard: These employers, using substantially the
same arguments presented by the Respondents, agree with Respond-
ents that longshoremen should be assigned the work in question.
7 ILWU crane operators and hatchtenders are qualified to do each other' s work and inter-
change positions at certain times during a shift.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
V. APPLICABILITY OF THE STATUTE
Before the Board may proceed to a determination of dispute pur-
suant to Section 10(k) of the Act, it must be'satisfied that there is
reasonable cause to believe that Section 8 (b) (4) (D) has been violated.
Respondents deny that,they induced or encouraged a work stoppage
on February 14, 1963, for a statutorily proscribed object. However,
as described more fully above, on that date Howard began loading
cargo aboard a ship with whirley cranes- being manned by operating
engineers. Although longshore hatchtenders were performing their
duties at the hatches, they stopped working and left the ship upon the
arrival of James, Respondents' agent. The loading operation was
stopped immediately because both Federal and State law prohibits
loading without hatchtenders. James thereafter refused to furnish
Howard with hatchtenders so long as Local 3's members were operat-
ing the whirley cranes. The reason given by James was, in practical
effect,, that according to the Respondent Local 10 contract, the whirley
cranes, constituted "new" equipment and, as such, were to be operated
by Respondents' members. Moreover, it was not until after Howard
replaced the Local 3 crane operators with longshore crane operators
dispatched by Respondents that hatchtenders returned to work and.
the loading of the Polly continued. In the light of the above, we find
reasonable cause to believe that Respondents caused, or were responsi-
ble for, the work stoppage which occurred on February 14, 1963.
We further find that an object of the stoppage was to force or re-
quire Howard to assign the disputed work to longshoremen,. repre-
sented by Respondents, rather than to operating engineers,, represented
by Local 3.8
We conclude, therefore, on the basis of the entire record, that there
is reasonable cause to believe that a violation of Section 8(b) (4) (D)
has occurred, and that the dispute is properly before the Board for
determination under Section 10(k) of the Act.
VI. THE MERITS OF THE DISPUTE
As stated in the J. A. Jones case,' we shall, pursuant to the Su-
preme Court's CBS decision," determine in each case presented for
resolution under Section 10(k) of the Act the appropriate assign-
s International Longshoremen's and Warehousemen 's Union and International Long-
shoremen's and Warehousemen 's Union, Local No . 19 (American Mail Line , Ltd. and'
Mobile Crane Company ), 144 NLRB 1432.
s International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A.. Jones Con-
struction Company ), 135 NLRB 1402.
10 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local , 1210, International
Brotherhood of Electrical Workers, AFL-CIO ( Columbia Broadcasting System), 364
U.S. 573.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 365
ment of the disputed work only after taking into account and balanc-
ing all relevant factors."
The parties have urged, and we have carefully considered, many
factors as relevant to the Board's determination of this dispute.ta
Some of these factors weigh in favor of an award to 'longshoremen,
some in favor of an award to operating engineers. With respect to
area practice, crane operating work is performed by operating en-
gineers in the San Francisco Bay area and in various other ports such
as Olympia, Everett, and Longview, Washington, and Portland, Ore-
gon. Longshoremen also operate cranes in the Bay area, and in such
other ports as Tacoma, Olympia, Anacortes, and Aberdeen, Washing-
ton, in Portland, Oregon, and in the Hawaiian Islands. While the
Operating Engineers claim greater skills in operating complicated
pieces of crane equipment, this generalization has not been shown to
be applicable to whirley cranes in particular. Moreover, their spe-
cific skills in operating Howard's whirley cranes cannot be said to be
-greater than those of Respondents' members employed by Howard
since operating engineers have never been used by Howard to load
cargo aboard a vessel with these cranes.
Various of the parties have emphasized three additional factors.
First is the matter of Board certification. While Local 3 is not so
certified, it did win a 1950 union-authorization election in a unit of
Howard's employees described as including crane operators. How-
ever this unit description is not sufficiently definite with respect to
crane work involving the loading and discharging of waterborne
cargo. It is also true that while the Board's certification of ILWU
may also be insufficiently definite in this respect to be controlling," it
nevertheless does cover "workers who do longshore work" and whose
normal job is to handle the movement of waterborne cargo. Second
is the matter of Howard's original assignment of the disputed work
to the operating engineers. However, this factor is of lesser signifi-
cance in this case in view of Howard's subsequent and present posi-
tion that the work in question is longshore work. Finally, while both
the Operating Engineers and the Respondents have contractual rela-
tionships with Howard, and both contracts contain provisions relat-
11 The parties stipulated that the Board may.take administrative notice of such portions
of the records in cases reported In 144 NLRB 1432 and 144 NLRB 1443 as they might
indicate in their briefs , Local 3, however , entered Into the stipulation "subject to the
objection" that the entire records in those cases were "incompetent , irrelevant and im-
material to any of the issues Involved" in the instant case. Inasmuch as the record and
briefs in the instant case adequately present the Issues , facts, and positions of the parties,
we find it unnecessary to take the requested administrative notice.
1a In view of the Supreme Court's CBS decision, we find no merit in Local 3's conten-
tion that lathes prevents us from making an appropriate assignment of the disputed work.
13 See International Longshoremen's and Warehousemen's Union, Local 10 ( Matson
Navigation Company; Matson Terminals , Inc.),.140 NLRB 449, 453.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to the employment of crane operators, Operating Engineers' con-
tract refers primarily to work related to the construction industry.
On the other hand, Respondents' agreement with PMA and Howard
expressly and primarily pertains to the shipping and stevedoring in-
dustries. This latter agreement indicates the work here involved to
be traditionally longshore work since it involves the loading and dis-
charging of cargo from vessels. Moreover, there is little question but
that the ILNU-PMA agreements were born out of the necessity of
recognizing that the increased use of mechanized equipment has ad-
versely affected traditional longshore operations by, replacing with a
mechanized crane the individual longshoreman who formerly carried
waterborne cargo on his back.
There may be room for disagreement with respect to the meaning
of the ILIVU-PMA agreements as to whether the whirley cranes are
"new" equipment to be operated by longshoremen or "old" or existing
equipment which may be operated by nonlongshoremen. As stated
above, however, the Joint Coast Labor Relations Committee deter-
mined that the whirley cranes were "new" equipment which, under
the terms of the ILWVU-PMA agreement, was to be operated by long-
shoremen. The Employers and Respondents agree that this is the
proper interpretation to be placed on their agreement. We find noth-
ing in this interpretation which is repugnant to the Act, or to the
considerations normally attendant upon our resolution of jurisdic-
tional disputes.
The automation concord set forth in the present agreement between
the Respondents and the Employers is a most persuasive circumstance
in this case. Contrary to the contentions of the Operating Engineers,
we find that Respondents' aims and purposes, as envisioned by the
concord, are to lighten the impact of unemployment problems created
by automation. As has been heretofore indicated,14 this agreement.is
a pioneering settlement between PMA and Respondents of manpower
and. economic problems resulting from the increasing use. of mecha-
nized equipment on the waterfront and may well serve to promote in-
dustrial peace in this area of American industry. After consideration
of all of the above factors, we find that the longshoremen are entitled
to perform the disputed work.
Accordingly, we shall award the work in the instant case to long-
shoremen represented by Respondents rather than to operating en-
gineers represented by Local 3. In making this determination, we
are assigning the disputed work to employees represented by Re-
spondents, but not to those labor organizations or their members.
,See International Longshoremen's and Warehousemen's Union and International1 4
Longshoremen 's and Warehousemen's Union, Local No. 19 ( American Mail Line , Ltd. and
Mobile Crane Company), supra; International Longshoremen 's and Warehousemen's
Union and International Longshoremen's and Warehousemen 's Union, Local No. 19 (Albin
Stevedore Company and Alaska Freight Lines, Inc.), 144 NLRB 1443.
LOWELL SUN PUBLISHING COMPANY 367
VII. DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this case, the Board makes the following determination of dispute
pursuant to Section 10(k) of the Act: Employees engaged as long-
shoremen, currently represented by International Longshoremen's
and Warehousemen's Union and International Longshoremen's and
Warehousemen's Union, Local Union No. 10, are entitled to perform
the work of operating Washington, or whirley, cranes utilized by
Howard Terminal when used in connection with cargo handling opera-
tions, where such work is assigned to longshoremen by the 1961-66
Pacific coast longshore agreement between PMA and Respondents, as
it has been interpreted by the contracting parties or their arbitrators.
Lowell Sun Publishing Company and Lowell Typographical
Union No. 310, a Subordinate Local Union of International
Typographical Union , AFL-CIO,1 Petitioner . Case No. 1-RC-
7747. June 9, 1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer John
R. Coleman. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom 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 organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer is engaged in publishing a daily newspaper in
Lowell, Massachusetts. The Petitioner is the recognized collective-
bargaining representative of the Employer's composing room em-
ployees. The most recent contract between the Petitioner and the
1 The petition and the formal papers are hereby amended to reflect the full name of the
Petitioner as it appears in its collective-bargaining agreements with the Employer.
147 NLRB No. 49.