Local 18, ILWU

National Labor Relations Board - Board Decisions

Nov 5, 1968

173 N.L.R.B. 590 (N.L.R.B. 1968)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 18, International Longshoremen 's and Ware-
housemen 's Union ; Local 54, International Long-
shoremen 's and Warehousemen 's Union and En-
gineering & Grading Contractors Association, Inc.
Local 18, International Longshoremen 's and Ware-
housemen 's Union ; Local 54, International Long-
shoremen 's and Warehousemen 's Union and
Operating Engineers Local Union No . 3, AFL-
CIO
Local 18 , International Longshoremen 's and Ware-
housemen 's Union ; Local 54, International Long- ,
shoremen ' s and Warehousemen 's Union and Tom
M. Hess , Inc. Cases 20-CD-254, 20-CD-255,
and 20-CD-258
November 5, 1968
DECISION AND DETERMINATION OF DISPUTES
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
Upon the entire record in these cases, the Board
makes the following findings:
1. THE EMPLOYERS
Hess, a California corporation, is part of a joint
venture which successfully bid on a contract to build
a section of interstate highway at or near Stockton,
California. It is a member of Engineering Association,
an employer association in the construction industry.
Oman, a Tennessee corporation, is a subcontractor of
Hess. During the past year, both Hess and Oman
purchased and received in California goods and
supplies valued in excess of $50,000 directly from
suppliers located outside the State of California and
sold goods and services valued in excess of $50,000
directly to customers located outside the State of
California. We find that both Hess and Oman are
employers engaged in commerce within the meaning
of the Act, and it will effectuate the policies of the
Act to assert jurisdiction herein.
This is a proceeding under Section 10(k) of the
National Labor Relations Act,' as amended, follow-
ing charges filed by Engineering & Grading Con-
tracters Association, Inc., hereinafter called En-
gineering Association, Operating Engineers Local
Union No. 3, AFL-CIO, herein referred to as
Engineers, and Tom M. Hess, Inc., herein called Hess,
alleging that Local 18 and Local 54, International
Longshoremen's and Warehousemen's Union, herein-
after referred to as Locals 18 and 54, respectively, or
as Respondents collectively, had induced and en-
couraged members of Hess, Oman, and other em-
ployers to strike for the purpose of forcing or
requiring Hess and Oman to assign particular work to
members of Locals 18 and 54 rather than to members
of Engineers, and that Respondents had threatened,
coerced, and restrained the above-named Employers
for a like purpose. A hearing was held before Hearing
Officer Walter L. Kintz on June 18-21 and 28 and
July 1-3 and 8, 1968. All parties appeared at the
hearing and were afforded an opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Briefs were
filed by the Respondents, Engineers, Hess, and Oman.
The rulings of the Hearing Officer made at the hearing
are free from prejudicial error and are hereby af-
firmed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and, we find, that Locals 18
and 54, and Engineers, are labor organizations as
defined in the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of loading imported
borrow (earth brought from another location) onto
barges at Rio Vista, California, and unloading the
barges at Stockton, California, in both instances by
means of extensive conveyor systems and heavy
equipment such as bulldozers.
B. The Background
Both Employers assigned the disputed work to
employees represented by Engineers.'
As noted above, Hess, together with certain other
companies, entered into a joint venture which bid and
was awarded a contract to build a 6-mile long section
of interstate highway at Stockton, California. The
specific function to be performed by Hess was the
acquisition and transportation of some 5,620,000
tons of imported borrow to the site of the highway
' Oman Construction Company, Inc , herein called Oman, an Chapter , The Associated General Contractors of America, Inc , herein-
employer engaged in a portion of the work in dispute , intervened in this after called AGC. Both Associations are parties to agreements with
consolidated proceeding Engineers which cover such categories of heavy equipment operators as
2 Hess is a member of Engineering Association, and since May 27, are herein involved . However, neither agreement specifically con-
1968, Oman has been a member of Northern and Central California templates the loading or unloading of barges.
173 NLRB No. 92
LOCAL
project and its application at the project for such
purposes as filling and embankments. Upon recom-
mendation of the State of California, Hess decided to
utilize a source of borrow at Rio Vista, California.
There the U.S. Corps of Engineers had stockpiled
dredgings from the Sacramento River which were
available free for such highway projects. Hess subcon-
tracted to Oman the work of loading the borrow onto
barges at Rio Vista. Hess also contracted with another
company for the use of non self-propelled barges and
with Pacific Inland Navigation Company to provide
and operate tugboats to tow the barges from Rio
Vista, to Stockton, and return. The loading operation
at Rio Vista and the unloading operation at Stockton
are the sole areas of work involved in the dispute.
C. The Basic Facts
1. The disputed work at Rio Vista
The U.S. Corps of Engineers has deposited a mass
of borrow at Rio Vista approximately 6,000 feet
long, 800 feet wide, and 50 feet deep. Oman employs
five men in moving that borrow onto barges for
shipment to Stockton. The five men in question were
transferred to the Rio Vista site from a dam con-
struction site in which Oman was engaged and which
was nearing completion. Oman's 5-man crew consists
of 1 foreman, 2 bulldozer operators, I Barber-Greene
loader operator, and 1 heavy duty repairman. The
borrow is moved essentially by a series of conveyor
belts which are operated by manually manipulated
levers and remote push-button electric switches, and
are manned by the 5-man crew. In addition, the
conveyor belt system requires trenchmg, tunneling,
and loading which are accomplished by means of the
bulldozers and Barber-Greene loader. The borrow
drops directly from the last belt, which extends out
over the Sacramento River, into the barges below.
Oman employed employees represented by Engineers
to perform this work.
2. The disputed work at Stockton
When the loaded barges arrive at Stockton, bull-
dozer operators employed by Hess drive onto the
barges and push the borrow to a conveyor belt, which
transports it to a second conveyor which in turn
stockpiles it on shore. From this point the material is
moved by bulldozer, front end loaders, and similar
equipment into a mechanical loader known as a
Co-Cal loader, which then loads the material on
trucks for transportation to the appropriate freeway
location. At the time of the hearing, Hess employed
three shifts engaged in this work, each consisting of a
foreman, two mechanics, two bulldozer operators, a
loader operator, and a conveyor operator. Ap-
proximately 21 men appear to be involved. Hess
18, ILWU 591
assigned all of this work to employees represented by
Engineers.
3. The inception of the dispute
The following facts are not disputed and were
essentially stipulated on the record. On May 13,
1968, Pacific Inland Navigation Company began to
move the barges loaded by Oman employees from Rio
Vista to Stockton, where they were to be unloaded
by Hess employees. On May 15, 1968, Local 18
pickets, in small boats, appeared in the area near
Oman's Rio Vista loading facility carrying signs
reading: "The ILWU has historically and traditionally
done the loading of barges." When the loaded barge
approached Stockton, it was stopped by pickets in
small boats and an agent of Local 54 informed
representatives of Hess and the barge company that
the barge would not be allowed to tie up at the Port
of Stockton, adding, "his union had always done the
work of loading and unloading cargoes such as this."
After some discussion, the Local 54 agent agreed that
the barge could be tied up at an alternative dock,
provided Hess and the tugboat company representa-
tives agreed that it would not be unloaded. The
loaded barge was tied at a grain elevator pier, where
the Respondent continued to picket as described
above. Locals 18 and 54 purchased a newspaper
advertisement in a Stockton daily newspaper stating
in substance that they claimed the work of loading
and unloading barges on the job concerned.
The picketing continued until enjoined pursuant to
Section 10(l) of the Act on June 5, 1968. Since that
date the work has been performed by employees
represented by Engineers.
D. Contentions of the Parties
Engineers claims that the work in dispute is
intimately related to the general maintenance and
operation of heavy equipment on a highway con-
struction project, that the work is highly skilled craft
work, that assignment of the disputed work to
Engineers is consistent with the practice of the
Employers and the construction industry, and that it
provides greater economy to the Employer in that
employees represented by Engineers, unlike those
represented by the Respondents, can perform the
disputed work and other duties consistent with the
Employers' basic project. Engineers further claims
that by virtue of Hess' membership in Engineering
Association, and Oman's membership in AGC, both
Employers are bound by their respective Association's
Master Agreements with Engineers, and that the work
assignments herein are controlled by these Agree-
ments. Hess contends that it is basically neutral, but
that the record indicates that it would achieve more
personnel flexibility and hence economy, and would
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be more assured of a competent and qualified work
force, if an award were made in favor of employees
represented by Engineers. It is the contention of
Oman that the work involved and the skills entailed
are those of employees represented by the Engineers;
that such an award is consistent with Employer and
industry practice; that by virtue of its membership in
AGC, it is party to a contract with Engineers which
covered the disputed work, and that employment of
employees represented by Engineers provides a more
efficient operation of Oman's business. Locals 18 and
54 (at Rio Vista and Stockton respectively) contend
that the assignment of the disputed work to em-
ployees represented by them is consistent with area
and industry practice; that loading and unloading of
barges is and always has been their work despite the
point of origin or the destination of the material
being handled or the nature of the industry requiring
the matenal, that the Employers' assignments are of
no significance in that they were dictated by the
amount of pressure Engineers could bring to bear
upon them; and that their members possess all of the
skills and experience required to perform the disputed
work.
E. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant 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.
The charges herein allege violations of Section
8(b)(4)(i) and (ii)(D) of the Act. On the basis of the
entire record, and particularly on the above facts
concerning the picketing by the Respondents, we find
that there is reasonable cause to believe that w
violation of Section 8(b)(4)(D) has occurred and that
the dispute is properly before the Board for de-
termination under Section 10(k) of the Act.
F. Merits of the Dispute
The determination of who is entitled to the
disputed work in a case such as this must rest on all
the relevant factors. There exist however , certain
broad criteria upon which the Board has traditionally
relied . ' In evaluating those criteria as they apply to
the case before us, it is obvious that a resolution may
vary with respect to them inasmuch as the work in
dispute may be said to lie either in the shipping
industry or in the construction industry.
The Board has issued no certification relevant
herein ; there are no interunion agreements con-
trolling; nor are there any awards of arbitrators, joint
boards or the AFL-CIO in any like or related case.
As noted above, Hess is a member of Engineering
Association which is a party to a Master Agreement
with Engineers , and since May 27, 1968 (after the
instant dispute arose ), Oman has been a member of
AGC, which is also party to a Master Agreement with
Engineers . Assuming , arguendo , that we might other-
wise conclude that those contracts were significant
herein, we note that neither by specific terms nor by
their references to Engineers ' constitutional claim to
coverage do they clearly encompass the work in issue
before us.
Engineers did demonstrate that in the greater San
Francisco bay area, its members operated equipment
similar to that involved herein in the loading, un-
loading, and placement of material like that involved
herein. Respondents amply supported their con-
tention that such equipment and matenal at the ports
of Stockton and Sacramento are handled by em-
ployees represented by them. However, most of the
Respondents ' evidence on point relates to the loading
and unloading of self-propelled ocean-going vessels
rather than barges . Respondents showed that the
practice in the maritime or shipping industry is clearly
to utilize the services of its members. Engineers
likewise showed that the practice in the highway
construction industry , and incidentally the practice of
both Employers , was to employ its members to
perform the tasks in dispute. Neither claim can be
given controlling weight , however , as the work in
issue rests at the confluence of the two industries.
There is a great deal of evidence in the record
relating to the skills required to perform the work,in
question . Engineers points to its asserted status as a
craft union and to its apprentice training program and
contends that the work is highly skilled in nature.
However, Locals 18 and 54 noted that they too have
training programs to develop skills in the operation of
bulldozers , conveyors , and related equipment. We
conclude, upon the record as a whole, that neither
group of employees has any overriding technical
training which is particularly qualifying , and that
proficiency is acquired by on-the-job experience. It
should be noted in this respect that Respondents do
not claim the work of installing or dismantling the
extensive conveyor systems, work which is clearly
within the expertise of employees represented by
Engineers who are actually performing some of the
disputed work.
Hess contends that its operation is more efficient
utilizing operating engineers than it would be if
employees represented by Local 54 were awarded the
disputed work , since engineers so employed are
available to work with similar heavy equipment on
the highway project itself when the unloading work
permits this . It is questionable whether a substantial
amount of man hours would be so involved since it is
contemplated that the unloading operation itself will
3 See International Association of Machinists (J. A. Jones Con-
struction Co.), 135 NLRB 1402, 1410.
LOCAL 18, ILWU
run between 12-14 hours each day, and stockpile
trimming and truck loading will take up additional
time. Similarly, Oman contends that its operation
requires periodic moving of the conveyor belt which
would necessitate bringing in extra employees, repre-
sented by Engineers, if Local 18 employees were
awarded the work. While neither Hess' nor Oman's
purported increased efficiency caused by utilization
of engineers to perform the disputed work appears to
be substantial in nature, nevertheless we find such
increased efficiency as might result is a factor
weighted in favor of awarding the work to employees
represented by the Engineers.
In addition to the above mentioned factors, the
assignments of both Oman and Hess in favor of
Engineers tend to support an award in favor of
employees represented by that labor organization.
And these, coupled with certain other facts, persuade
us that such an assignment is proper. Thus, the
Employers overall project is the construction of a
segment of interstate highway. The acquisition and
utilization of borrow is an integral part of that
project, and indeed, the unloading function is per-
formed in an area contiguous with the actual con-
struction site. It is worthy of note in this regard that
the Oman facility at Rio Vista is used solely by Oman
and only for the purpose of supplying borrow for the
highway construction project. It is equally significant
that, at Stockton, Hess utilizes private, not public,
docking facilities adjacent to the highway con-
struction project, and uses those private facilities for
that project alone, insofar as this record shows.
In view of the above, we shall determine this
dispute in favor of Oman and Hess employees
represented by Engineers. However, we are not
unmindful that the work in dispute bears a close
relationship to Respondents' traditional work func-
tions, and our present determination is limited to the
controversies which gave rise to this proceeding. In
making this determination, we are awarding the
disputed work to Hess and Oman employees repre-
sented by Engineers, and not to Engineers or its
members.
593
Accordingly, we find that Respondents were not,
and are not, entitled by means proscribed by Section
8(b)(4)(i) and (ii)(D) of the Act to force or require
Hess or Oman to assign the disputed work to their
members rather than to Hess or Oman employees
represented by Engineers.
DETERMINATION OF DISPUTES
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this case,
the National Labor Relations Board hereby makes the
following determination of disputes.
A. Employees of Tom M. Hess, Inc., and Oman
Construction Company, Inc., currently represented
by Operating Engineers Local Union No. 3, AFL-
CIO, are entitled to perform the following work.
All loading and unloading of borrow on and from
barges at Rio Vista, California, and the private
dock and unloading facility of Tom M. Hess, Inc.
at Stockton, California, and related work in and
around the pit area and stockpile area, including
the operation of mechanical equipment.
B. Local 18 and Local 54, International Long-
shoremen's and Warehousemen's Union, are not en-
titled by means proscribed by Section 8(b)(4)(i) or
(ii)(D) of the Act to force or require either Tom M.
Hess, Inc., or Oman Construction Company, Inc., to
assign the above-described work to longshoremen,
who are represented by them.
C. Within 10 days from the date of this Decision
and Determination of Disputes both Local 18 and
Local 54, International Longshoremen's and Ware-
-hausemen's Union, shall notify the Regional Director
for Region 20, in writing, whether or not it will
refrain from forcing or requiring Tom M. Hess, Inc.,
and Oman Construction Company, Inc., to assign the
work in dispute to its members, rather than to
employees of the above-named Employer represented
by Operating Engineers Local Union No. 3, AFL-
CIO.