Local 1291, Int'l Longshoremen's Association

National Labor Relations Board - Board Decisions

Jul 18, 1962

137 N.L.R.B. 1451 (N.L.R.B. 1962)

LOCAL 1291 , INT'L LONGSHOREMEN'S ASSOCIATION 1451
International Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO ; Local No. 219, United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO; and Local No. 70, Sheet
Metal Workers' International Association, AFL-CIO, are not and
have not been lawfully entitled to force or require Goodyear or any
other employer to subcontract the disputed work to employers em-
ploying construction trades workers.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, the Tri-County Building and Construction Trades
Council of Akron and Vicinity, AFL-CIO, and each of its above-
named members shall notify the Regional Director for the Eighth
Region, in writing, whether or not they will refrain from forcing or
requiring Goodyear Tire and Rubber Company by means proscribed
in Section 8(b) (4) (D) to assign the work in dispute directly or in-
directly to construction trades workers rather than to Goodyear's own
employees in its engineering department.
MEMBER BROWN took no part in the consideration of the above
Decision and Determination of Dispute.
Local 1291, International Longshoremen's Association, AFL-
CIO and Northern Metal Company. Case No. 4-CD-51. July
18, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following a
charge filed by Northern Metal Company, herein called the Employer
or Northern, alleging that Local 1291, International Longshoremen's
Association, AFL-CIO, herein called the ILA or Respondent, had in-
duced and encouraged employees to refuse to work for the purpose of
forcing or requiring the Employer to assign particular work to mem-
bers of the Respondent rather than to members of Local 14, Industrial
Union of Marine and Shipbuilding Workers of America, AFL-CIO,
herein called Local 14. A hearing was held before Seymour X. Alsher,
hearing officer, between August 24 and October 13, 1960. All parties
who appeared at the hearing 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.
Northern and the ILA have filed briefs which have been duly
considered.
137 NLRB No. 153.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board 1 makes the following
findings :
1. Northern Metal Company is a Pennsylvania corporation engaged
in the business of operating a terminal facility in the port of Philadel-
phia, Pennsylvania. It furnishes stevedoring services to the Trans-
portation Corps, United States Army, for which it receives more than
$100,000 annually. We find that Northern Metal Company is en-
gaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction herein.
2. The parties stipulated, and we find, that the ILA and Local 14 are
labor organizations within the meaning of Section 2 (5) of the Act.
3. The dispute.
A. The basic facts
Before 1951, the Employer was engaged at its Philadelphia terminal
in dismantling and scrapping ships and selling the scrap derived
therefrom. Its employees engaged in these operations were repre-
sented by Local 14 which had been certified as their representative
in 1946. All the work at the terminal, including the loading and un-
loading of vessels, was performed by employees who were members of
this labor organization. In 1951, the Employer discontinued its scrap
operations and began to load and unload military vehicles and a small
amount of general cargo at its terminal for transportation to and from
overseas under contract with the United States Army. Since this work
required the use of longshoremen, the Employer joined the Phila-
delphia Marine Trade Association, herein called PMTA, which had
collective-bargaining contracts with the ILA.
From the time when it began its stevedoring operations for the
Army, the Employer has employed longshoremen represented by the
ILA and a larger group of employees, called production and mainte-
nance workers under its contract with Local 14 and sometimes de-
scribed as "yardmen" on the record. It divided the work between the
two groups according to a fixed pattern. The yardmen moved the
vehicles from the various points in the terminal where they were re-
ceived and assembled to the "hooking on" point at shipside, which is
where the vehicle is picked up or deposited by the ship's gear. Long-
shoremen took over at this point and did all the work of "hooking on"
and "unhooking" the ship's gear as well as the work on board ship.
The ILA handled its part of the work with 15-man gangs : 4 men
"under the hook," 3 men operating winches and directing operations
from the deck, and 8 men in the hold. The same size gang was used
1 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 Rodgers and Leedom].
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 1453
in loading or discharging vehicles large or small, including heavy
trucks, tanks, jeeps, and passenger vehicles. The parties dispute
whether the division of work between the yardmen and the longshore-
men was the result of an express agreement or understanding among
all the parties involved. In any event, there appears to be no dispute
that the demarcation in fact existed.
In the spring of 1960, the Employer obtained a large Army contract
which required it to load, for shipment overseas, privately owned auto-
mobiles of military personnel. On June 19, 1960, the ILA refused to
permit its members to load private vehicles with the 15-man gangs
which were used for military vehicles, and which had been used for
the first two shipments of private vehicles, claiming that it was the
practice in the port of Philadelphia to use 22-man gangs for handling
automobiles and that the Employer would have to conform. The
Employer protested that its situation was different from that of other
employers in the port because it was the only employer which did not
employ ILA longshoremen exclusively to load and unload ships. Re-
spondent remained adamant in its insistence on a 22-man gang.
Thereupon the Employer filed a grievance under the PMTA-ILA con-
tract. The grievance committee found that it was the practice else-
where in the port to use 22-man gangs in handling automobiles.
However, the chairman of the grievance committee, who was also the
executive secretary of the PMTA, wrote the Employer as follows :
P.M.T.A. recognizes that there is a problem peculiar to Northern
Metal Company as opposed to any other place in the Port of
Philadelphia area because the jurisdiction of two different unions
are involved. However, P.M.T.A. representatives agree with
union representatives on the Grievance Committee that the prac-
tice in the port in the handling of automobiles is that a gang of
twenty-two men and a foreman are to be employed. If this de-
cision results in jurisdictional problems between ILA and the men
from the other union who had jurisdiction over a certain portion
of the work, P.M.T.A. is not empowered to resolve any such juris-
dictional dispute and the dispute will have to be handled by the
employer's attorney in the same manner as any other jurisdic-
tional problems would be handled.
Under pressure from the ILA, the Employer, since June 1960, has
been hiring 22-man gangs for loading private vehicles. It contends
that 7 of these men perform no useful work, the 22 men performing
the same work as the former 15-man gangs, and that if these 7 extra
men were assigned work to perform it would necessarily have to be
the work of moving vehicles to and from the "hook," work which is
now being performed by yardmen.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Contentions of the parties
The Employer contends that this is a dispute over the assignment
of employees who are to move vehicles to or from the "hook," and
that by virtue of the understanding among the ILA, Local 14, and
the Employer over the division of work, the past practice, and its
collective-bargaining agreement with Local 14, the yardmen members
of Local 14 are entitled to the disputed work. It also contends that
the dispute was not and could not be resolved by the PMTA-ILA
grievance committee because Local 14 was not a party to such pro-
ceeding, the committee itself indicated that it was not resolving the
jurisdictional dispute, and the committee was precluded by the
PMTA-ILA contract from making any determination involving a
change in the size of a gang previously performing particular work.
The ILA asserts that its only interest is in having the Employer use
the 22-man gangs required by contract and that it has no interest as to
where the members of the gang are placed.
Local 14 argues that, however the ILA describes its objective in
demanding the use of 22-man gangs, the Employer cannot be ex-
pected to hire 2 sets of men to do the same job and that the ILA's de-
mand is necessarily intended to bring about replacement of Local 14
members.
C. Applicability of the statute
Before the Board proceeds with a determination of dispute pursuant
to Section 10 (k) of the Act, it must be satisfied that there is reason-
able cause to believe that Section 8(b) (4) (D) has been violated. In
order to conclude that reasonable cause exists, the Board must find
some evidence in the record that conduct proscribed by this section
has occurred and that such conduct was engaged in for the purpose
of forcing or requiring any employer to assign particular work to one
group of employees rather than to another.
It is clear that on June 19, 1960, Respondent induced its members
not to shape up for work at the Employer's establishment and told the
Employer that no longshoremen would be furnished unless Northern
agreed to use 22-man longshoremen gangs for loading private vehicles
aboard ship. Respondent denies, however, that it was thereby at-
tempting to displace workers presently represented by Local 14 and
argues therefrom that no jurisdictional dispute within the meaning
of Sections 10 (k) and 8 (b) (4) (D) exists.
We do not agree that Respondent is not seeking the work of yard-
men, and attempting to force assignment of work performed by such
other employees to longshoremen. For many years, the Employer has
used 15-man gangs, supplemented by employee members of Local 14,
to load Army tanks, trucks, and vehicles, including sedans, jeeps, and
jeep trailers, the latter of which are comparable in size and weight to
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 1455
private cars. When a 22-man gang is used by other stevedoring
companies in the Philadelphia port area to load vehicles (all
companies having only employees represented by the ILA), the steve-
doring company has discretion in the placement of the men in the
gang, except that at least 8 men must be used in the hold. Such other
stevedoring companies always use part of the gang to do work now
being performed by members of Local 14, that is, moving vehicles to
and from the "hook." Accordingly, as the result of Respondent's in-
sistence upon the use of 22-man gangs, the Employer was faced with
the alternative either of hiring 7 extra men it could not use or of dis-
placing its yardmen and giving their work to longshoremen. That
both ILA and Local 14 were cognizant of this dilemma is evidenced
by the remark of the ILA president, on occasion of a complaint by
the Employer, that his labor organization was not concerned about
Local 14 and the longshoremen would perform Local 14's work, and
by Local 14's active intervention in this proceeding on the side of the
Employer and the present division of labor.
We find that the foregoing establishes that there is reasonable cause
to believe that Respondent has refused to furnish longshoremen to, and
has induced and encouraged its members not to perform services for,
the Employer for the purpose of forcing or requiring the Employer
to assign work now being performed by yardmen, to longshoremen, in
violation of Section 8(b) (4) (D) of the Act. We further find that
the foregoing dispute is properly before the Board for determination
under Section 10(k) of the Act.
D. Merits of the dispute
The principal basis of Local 14's claim to the disputed work is that
the yardmen, whom it represents, have for many years performed the
type of work in question with the tacit acquiescence of the ILA. True,
the ILA has in past years occasionally raised a question over the right
of the yardmen to perform this work; however, in each instance when
the Employer continued in its practice of giving the work to the yard-
men, the ILA acquiesced completely in the Employer's decision.
Further, Local 14 insists that the new contract made by Northern in
1960 to load privately owned vehicles of Army personnel rather than
Army owned vehicles in no material sense changed the nature of the
work.
The ILA rests its claim for the work squarely upon its contract with
the Employer made through PMTA. The agreement, in effect since
1951, has the following clause in regard to the number of men to be
employed.
14. Minimum number of men in gang when discharging or load-
ing general cargo to or from the pier shall be twenty-two (22)
men, including drivers of mechanical equipment, not less than
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eight (8) hold men discharging and eight (8) hold men loading.
This clause is not to apply to handling cork, burlap, newsprint and
logs where hooks are used, heavy lifts, sugar at sugar refineries or
warehouses, lumber, rubber, tinplate and sheet steel in packages,
or to work at Ford's plant at Chester, Pa., or to similar conditions
that may be agreed by the Committees. This Clause is not to
apply to handling cargo to or from open top cars or open lighters.
[Emphasis supplied.]
Hinging its argument upon the critical words "heavy lifts" the ILA
contends that, while the cargo handled by the Company under its
former contract with the Army consisted of heavy lifts, for which 15-
man gangs could be utilized, the present contract for loading of pri-
vately owned vehicles is one for the loading of general cargo and
therefore under the PMTA-ILA contract, 22 men should be used.
In support of this conclusion it relies upon the PMTA-ILA grievance
award, discussed above, contending that it recognizes the ILA's right
to the work in dispute, and it denies that it ever acquiesced in North-
ern's use of yardmen to move cargo to a point "under the hook" which
might be considered to be general cargo under the PMTA-ILA
agreement.
The record as a whole does not support the ILA contention that
there was a significant difference between the loading of Army ve-
hicles and privately owned vehicles of Army personnel. On the con-
trary the testimony of record indicates that, of the approximately 12
different types of Army vehicles loaded by Northern between 1951 and
1960, at least 6 weighed less than the average Ford sedan. The record
further indicates that a "heavy lift" is generally defined in the Phila-
delphia port area as one which requires the use of special rigging or
weighs more than 5 tons. It appears, however, that more than 80 per-
cent of the vehicles loaded between 1951 and 1960 by Northern weighed
less than 5 tons and did not require the use of special rigging.
Also received in evidence at the hearing was an unsigned agreement
dated October 20, 1951, allegedly dividing the work on the dock be-
tween the ILA and Local 14. Although it remained unsigned, the
ILA must have been aware of its contents. In February 1958, Local
1242, International Longshoremen's Association, AFL-CIO, invoked
the arbitration clause of the ILA-PMTA contract, claiming that
Northern Metal Company was using members of Local 14 instead of
its members to do certain checking work. In resolving the dispute and
finding no contract violation, the arbitrator noted that the division of
work used by Northern was in accord with the unsigned agreement of
October 1951. It is apparent, therefore, that the ILA was at least
aware of the purported agreement and never took any steps to
disclaim it.
Nor does it appear clearly, as the ILA contends, that its contract
with the PMTA awards the work in dispute to Respondent. The
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 1457
Board has held that a contract asserted as a defense to a Section 10 (k)
proceeding must be clear and unambiguous.2 Respondent cannot make
such a claim in this case. We find that neither the contract nor the
grievance committee finding is dispositive of the dispute.
We shall award the disputed work to the yardmen represented by
Local 14. Our determination rests upon the entire record, including
particularly the fact that the yardmen have satisfactorily performed
the work of moving vehicles to and from the "hook" for approximately
9 years with the express or implied consent of the ILA, that Local 14
is the certified bargaining representative of such employees, and that
the work of moving private vehicles from storage areas to the "hook"
is not materially different from moving Army vehicles, work which
the yardmen have been doing for many years and still are doing.
Accordingly, we find that Local 1291, ILA, is not and was not en-
titled by means proscribed by Section 8 (b) (4) (D) to force or require
the Employer to hire 22-man gangs rather than 15-man gangs, where
such hiring would force or require the Employer to assign the work
to moving privately owned vehicles "under the hook" to longshoremen
rather than to yardmen.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the case, the Board makes the following Determination
of Dispute pursuant to Section 10 (k) of the Act.
1. Yardmen employed by Northern Metal Company, who are repre-
sented by Local 14, Industrial Union of Marine and Shipbuilding
Workers of America, AFL-CIO, are entitled to perform the work of
moving privately owned vehicles for shipment overseas under North-
ern's contract with the U.S. Army from the parking area to the place
on the dock designated as "under the hook."
2. Local 1291, International Longshoremen's Association, AFL-
CIO, is not, and has not been lawfully entitled to force or require
Northern Metal Company to assign the above work to longshoremen.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 1291, International Longshoremen's Association,
AFL-CIO, shall notify the Regional Director for the Fourth Region,
in writing, whether or not it will refrain from forcing or requiring
Northern Metal Company, by means proscribed by Section 8 (b) (4)
(D), to assign the work in dispute to longshoremen, who are its mem-
bers, rather than to yardmen, who are represented by Local 14, Indus-
trial Union of Marine and Shipbuilding Workers of America,
AFL-CIO.
2Local 853, International Union of Operating Engineers , AFL-CIO, and its business
manager, Richard J . Carney, Jr. (Schiavone & Sons, Inc. and Schiavone Termznals , Inc.),
136 NLRB 993.
649856-63-vol. 137-93