Local 32, ILWU

National Labor Relations Board - Board Decisions

May 27, 1981

256 N.L.R.B. 167 (N.L.R.B. 1981)

LOCAL 32, ILWU 167
Local 32, International Longshoremen's and Ware-
housemen's Union and Weyerhaeuser Company
and Association of Western Pulp and Paper
Workers, Local 10. Case 19-CD-377
May 27, 1981
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Weyerhaeuser Company,
herein called the Employer, alleging that Local 32,
International Longshoremen's and Warehousemen's
Union, herein called ILWU, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requir-
ing the Employer to assign certain work to its
members rather than to employees represented by
Association of Western Pulp and Paper Workers,
Local 10, herein called AWPPW.
Pursuant to notice, a hearing was held before
Hearing Officer Mark E. Brennan on January 19,
1981. All parties appearedand were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Washington corporation, is engaged in
the business of manufacturing wood products.
During the past calendar year, a representative
period, the Employer realized gross revenues in
excess of $500,000 and, during the same period,
sold goods valued in excess of $50,000 directly to
customers located outside the State of Washington.
The parties also stipulated, and we find, that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it
will effectuate the purposes of the Act to assert ju-
risdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
32, International Longshoremen's and Warehouse-
men's Union and Association of Western Pulp and
Paper Workers, Local 10, are labor organizations
within the meaning of Section 2(5) of the Act.
256 NLRB No. 24
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is an integrated forest products
company with timber holdings and various manu-
facturing operations located in Washington,
Oregon, and other States, as well as foreign coun-
tries. As part of its overall operation the Employer
owns and operates several private docks used to
transport its own and other manufacturers' prod-
ucts. The instant dispute involves the Employer's
dock located at Everett, Washington.
The Everett dock has been in existence since ap-
proximately 1902. Since 1936 the Employer has op-
erated the Sulphite Mill adjacent to the Everett
dock, at which a chemical woodpulp was pro-
duced. In 1953, the Employer began to operate the
Kraft Mill, which is located approximately 3 miles
from the Everett dock and produces woodpulp.
Products produced at the Kraft and Sulphite Mills
were exported across the Everett dock.
In 1964, the AWPPW became the certified col-
lective-bargaining representative for the Employ-
er's employees at both the Kraft and Sulphite
Mills. Employees at the Sulphite Mill came under
the jurisdiction of Local 20 of AWPPW while the
Kraft Mill employees came and remain under the
jurisdiction of the AWPPW's Local 10.
In 1975, the Employer ceased operation of the
Sulphite Mill and commenced operation of the
Thermo-Mechanical Mill (T-M) which produced a
high yield type pulp. The T-M Mill was also locat-
ed adjacent to the Everett dock and approximately
70 percent of its total production was exported
across the Everett dock. As was the case with the
Sulphite Mill, AWPPW's Local 20 represented the
T-M Mill employees.
Since at least 1977 the goods exported across the
Everett dock, in addition to those of the Kraft and
T-M Mills, have included pulp from Kamloops,
British Columbia; pulp from Casmopolis, Washing-
ton; lumber from the Employer's Mills "E" and
"B"; and plywood from the Employer's Snoqual-
mie, Washington, mill.
The foregoing goods are transported by truck to
the Everett dock area from the various sites. The
trucks are then unloaded and the goods are "high-
piled" in warehouses adjacent to the dock where
they are inspected and tallied by the Employer's
dock superintendent. When informed of an immi-
nent shipment, the dock superintendent devises a
"plan" for the loading of cargo. Goods in the
warehouse are then marked in accordance with the
plan which specifies the order of the loading as
well as the particular hatch of the ship in which
goods will be placed.
LOCAL 32, ILWU 67
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When a ship arrives at the Everett dock, em-
ployees of the Employer tie the ship to the dock.
Meanwhile, piles of cargo are broken down in the
warehouse and brought onto the dock to shipside
by forklift operators who are also employees of the
Employer. In some instances, goods have been
"high-piled" on the dock and subsequently broken
down again and moved to shipside by the forklift
operators. Prior to December 1980, the employees
involved in ship tie-up and bringing goods from the
warehouse to shipside (as well as casting off the
ship's tie-up lines) were the Employer's employees
represented by AWPPW and assigned to the ship-
ping department of the T-M Mill.
Once the goods have been placed at shipside the
cargo is hooked to the ship's gear and lifted by
crane into the hold of the ship. The work involved
in this operation has traditionally been performed
by employees represented by ILWU. These em-
ployees are employed by Jones-Washington Steve-
doring Company, herein called JWSC. JWSC
maintains a contract with the Employer by which
JWSC is paid its incurred expenses, including
wages and other compensation of its employees, as
well as a "management fee" calculated on a "cost-
plus" basis.
JWSC is a member of the Pacific Maritime Asso-
ciation, herein called PMA. PMA is an employer
association comprised of various stevedoring and
shipping companies. PMA is party to a collective-
bargaining agreement with ILWU entitled "Pacific
Coast Longshore Contract Document," herein
called PCLCD. That contract establishes, inter alia,
wage and other compensation levels for employees
of PMA member employers such as JWSC. It is
these wage and compensation levels that are paid
to JWSC by the Employer as part of their cost-
plus contract arrangement noted above. The Em-
ployer is not a member of PMA and is not a signa-
tory to the PCLCD.
Thus, at the time the events giving rise to the in-
stant dispute occurred, work at the Everett dock
was performed as follows: the tying up and casting
off of ships at the dock was performed by employ-
ees of the Employer represented by AWPPW.
These same employees also performed the work of
moving goods from the warehouse by forklift to
shipside. Once the goods were at shipside, employ-
ees represented by ILWU performed the work of
hooking the goods to the ship's gear and actually
loading the ship.
In the latter part of 1980, the Employer decided
to close the T-M Mill located adjacent to the Ever-
ett dock. It so informed Local 20, AWPPW, which
represented the T-M Mill employees, including the
ship tie-up persons and forklift operators. Although
closure of the T-M Mill eliminated manufacturing
work at that facility it was determined that cargo
dock work at the Everett dock would continue.
This work included export of the stockpiled T-M
Mill products as well as the products of the Kraft
and other mills noted above that traditionally ex-
ported goods across the Everett dock.
As a result of the announced closing of the T-M
Mill, the T-M Mill's employees represented by
Local 20, AWPPW, voted to affiliate with Local
10, AWPPW, which represents the Kraft Mill em-
ployees. The Employer voluntarily recognized
Local 10 as the representative of such employees.
The Employer entered into an agreement with
both Local 10 and Local 20 providing that the Em-
ployer's employees formerly represented by Local
20 who had performed the cargo and dock work at
the Everett dock would continue to be assigned
that work although they had become formally as-
signed to the Kraft Mill.
On or about December 12, 1980, the T-M Mill
ceased manufacturing operations. As noted above,
however, the dock operations continued unabated
as stockpiled goods from the T-M Mill, of which
there was a 6-month supply, and goods from other
facilities continued to be exported across the Ever-
ett dock. Work at the dock continued in the same
manner as before the T-M Mill closing. Employees
of the Employer represented by AWPPW contin-
ued to tie up and cast off vessels and move goods
from their last place of rest to shipside with the use
of forklifts. Employees represented by ILWU con-
tinued to move goods from shipside onto the
vessel. Thus, the only "change" in the status quo
was a change in affiliation for the dock employees
from Local 20, AWPPW, to Local 10, AWPPW.
On December 21, 1980, employees represented
by ILWU engaged in a work stoppage for 45 min-
utes at the Everett dock to protest the Employer's
assignment of work at the Everett dock.
B. The Work in Dispute
The work in dispute involves the handling of
cargo from the warehouse or last point of rest to
shipside at the Employer's dock located at Everett,
Washington, and the tying and untying of lines of
vessels docked at the Everett dock.
C. The Contentions of the Parties
The Employer contends that the disputed work
should be assigned to its own employees represent-
ed by AWPPW. It asserts that such an assignment
is in accord with the longstanding and traditional
practice which is embodied in both existing and
prior collective-bargaining agreements between it
and AWPPW. The Employer also argues that an
-----
LOCAL 32, ILWU 169
agreement to which it and ILWU are bound dic-
tates assignment of the work to employees repre-
sented by AWPPW. Finally, the Employer con-
tends that efficiency and economy of operations
favor assignment to employees represented by
AWPPW.
The AWPPW contends that the work should be
assigned to the employees it represents. For the
most part, AWPPW's arguments parallel those of
the Employer with special emphasis upon the es-
tablished practices and bargaining history which
demonstrate that the disputed work has traditional-
ly been done by employees represented by
AWPPW.
The ILWU contends that the disputed work
should be assigned to employees it represents. The
cornerstone of its argument is that with the closing
of the T-M Mill the Everett dock ceased to be an
"industrial dock" and became a "commercial
dock." ILWU asserts that pursuant to its agree-
ment with the Pacific Maritime Association
(PMA), the industry practice is to have work of
the type in dispute performed by employees repre-
sented by ILWU. ILWU also contends that effi-
ciency of operations dictates such an assignment
and further claims that the historic collective-bar-
gaining agreements between AWPPW and the Em-
ployer do not clearly define the disputed work as
belonging to employees represented by AWPPW.
D. 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 and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
At the hearing, the parties stipulated that on De-
cember 21, 1980, employees represented by ILWU
engaged in a work stoppage for the purpose of
forcing or requiring the Employer to assign partic-
ular work to employees represented ILWU rather
than to employees represented by AWPPW. In ad-
dition, there exists no agreed-upon method for the
voluntary adjustment of the disputed work.
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred and that
there exists no agreed-upon method for the volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that this dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors. The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.2
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
There are no collective-bargaining agreements to
which all parties in the instant dispute are signator-
ies. The Employer, however, refers to a settlement
agreement entered into in 1973 between the Em-
ployer, ILWU, and International Woodworkers of
America, AFL-CIO (IWA). A principal purpose
of the settlement agreement was to settle pending
litigation involving work disputes at certain log
yards of the Employer. The preamble provision of
the agreement states also that its purpose is "to reg-
ulate their [the parties'] present and future relation-
ships . .. " upon the terms set forth therein. More
important, asserts the Employer, is paragraph 3(a)
of the agreement which provides:
Past work practices will be maintained at all
other existing facilities and docks owned or
operated by Weyerhaeuser. Future changes of
forest products cargo will not require changes
in past work assignments.
The Employer argues that it is merely continuing
past work practices and that the closing of the T-
M Mill is, at most, a change in forest products
cargo.
The parties also present extensive arguments
concerning terms in the collective-bargaining
agreement between ILWU and PMA referred to
herein as PCLCD. The Employer argues initially
that, since it is not a PMA member, the PCLCD is
not binding upon it, yet even if the document is
relied upon, certain terms contained therein sup-
port the view that employees represented by
AWPPW are entitled to the work. ILWU argues
that the PCLCD clearly mandates that the work be
assigned to employees it represents.
The provision relied upon heavily by ILWU,
paragraph 1.45, states:
' L. R.B. v. Radio & Television Broadcast Engineers Union, Local 1212.
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Brxadcasting Sysremj, 364 U.S. 573 (1961)
2 nternational 4ssociation of Machiniss. Lodge No. 1743. .4FL CIO (J.
.4. Jones Construction Company). 135 NLRB 1402 (1962)
LOCAL 32, ILWU 9
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The movement of cargo to or from a vessel on
an industrial dock shall be defined as work
covered by this contract document and is as-
signed to longshoremen. Existing practices
under which other workers perform such dock
work of an existing facility may be continued.
An industrial dock is a dock at a facility where
materials are manufactured and are processed
and from which they are shipped or at which
materials used in the manufacture or process
are received and the dock operator has a pro-
prietory interest in such materials.
ILWU argues that, when the T-M Mill closed,
the Everett dock ceased to be an "industrial dock,"
thereby removing the "exception" by which non-
ILWU employees had been allowed to perform the
disputed work.
The Employer seeks to counter this argument
with other PCLCD provisions. It cites paragraph
1.11 which states:
This Contract Document covers the move-
ment of outbound cargo only from the time it
enters a dock and comes under the control of
any terminal, stevedore agent or vessel opera-
tor covered by this Contract Document....
The Employer argues that Jones-Washington, the
stevedoring company involved herein, does not
take control of the goods until they are placed at
shipside. Prior to that point, it argues, non-ILWU
employees are entitled to perform the work. The
Employer asserts that its position is butteressed by
paragraph 1.46 of the PCLCD which provides:
Where a non-member of the Association has
control over the cargo at its premises or on its
vessels, such non-member regular employees
may perform work assigned to longshoremen
herein while such cargo is out of the control
of any member.
In our view, none of the foregoing collective-
bargaining agreement provisions, standing alone, is
dispositive of the instant dispute. We do find, how-
ever, a repeated and consistent contractual defer-
ence to the maintenance of traditional, longstand-
ing work assignments, independent of the particular
parties involved. Thus, to the extent the provisions
favor any of the parties, we find them to be more
consistent with the Employer's and AWPPW's
view that the work should continue to be assigned
to the Employer's employees represented by
AWPPW.
2. Company and industry practice
The ILWU argues that industry practice requires
an award of the work to employees it represents.
The ILWU relies again on the PCLCD as an indi-
cation of industry practice. That agreement pro-
vides that employees represented by ILWU are en-
titled to the work of moving goods from their last
point of rest onto ships where the PMA member
employer has taken control of the goods. ILWU
also relies on the 1973 settlement agreement which
assigns the work of moving Weyerhaeuser logs
from their last place of rest onto ships at the Em-
ployer's Takoma log sort yard and dock. It also
points to its agreement with the Teamsters Union
which provides that ILWU represented employees
are entitled to move goods from their last place of
rest onto ships where the PMA member company
has taken control of the goods.
The Employer and AWPPW emphasize the past
pactice of the Employer rather than industry wide
practices. Again, emphasis is placed on the long
history of the Employer's assignment of the disput-
ed work to its own employees represented by
AWPPW pursuant to a longstanding collective-bar-
gaining relationship. Although lacking in details,
there is testimony in the record that the type of
work in dispute is performed in the same manner at
the Everett dock as at other Weyerhaeuser docks.
Based upon the foregoing, we find that while in-
dustry practice may favor an award to employees
represented by ILWU, the well-established practice
at this facility is for the Employer to assign the
work to its employees represented by AWPPW.
3. Relative skills; economy and efficiency of
operations
With respect to the operation of the forklifts and
the line work on the ships, the relative skills of the
employees involved appear to be comparable. It
does appear, however, that employees of the Em-
ployer represented by AWPPW are familiar with
the warehouse coding system and, therefore, are
more skilled and efficient in removing the proper
goods from the warehouse. In addition, as employ-
ees of the Employer, they are available to perform
miscellaneous tasks in the warehouse and on the
dock when not performing the specific work in dis-
pute.
We find, therefore, that relative skills as well as
economy and efficiency of operations favor an
award to employees represented by AWPPW.
4. Joint Board determinations; union
agreements; arbitration decisions
There are no joint board determinations or union
agreements apart from those noted above that pro-
vide assistance in resolving the instant dispute. The
parties did introduce several arbitration awards.
We find, however, that such awards provide no
LOCAL 32, ILWU 171
meaningful aid in resolving the dispute in that each
of the awards turns upon particular facts not pres-
ent here.
5. Employer preference
The Employer has, throughout this proceeding,
repeatedly stated its preference that the disputed
work be awarded to its employees represented by
AWPPW.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees of the Employer who are
represented by the Association of Western Pulp
and Paper Workers, Local 10, are entitled to per-
form the work in dispute. We reach this conclusion
relying on the expressed preference of the Employ-
er; the longstanding history of assigning the disput-
ed work to employees represented by AWPPW;
the contractual provisions which indicated defer-
ence to existing work assignments; and the consid-
eration of relative skills and economy of oper-
ations. In making this determination, we are award-
ing the work in question to employees who are
represented by AWPPW, but not to that Union or
its members. The present determination is limited
to the particular controversy which gave rise to
this proceeding.
DETERMINATION OF DISPUTE
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Weyerhaeuser Company, who
are represented by Association of Western Pulp
and Paper Workers, Local 10, are entitled to per-
form the work of the handling of cargo from the
warehouse or last point of rest to shipside and the
tying up and casting off lines of vessels at the Em-
ployer's dock at Everett, Washington.
2. Local 32, International Longshoremen's and
Warehousemen's Union is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to
force or require Weyerhaeuser Company to assign
the disputed work to employees represented by
that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 32, Interna-
tional Longshoremen's and Warehousemen's Union
shall notify the Regional Director for Region 19, in
writing, whether or not it will refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disput-
ed work in a manner inconsistent with the above
determination.
LOCAL 32, ILWU 171