Local Lodge 724 Of District No 1, International Association Of Machinists, Afl-Cio

National Labor Relations Board - Board Decisions

Mar 26, 1990

297 N.L.R.B. 1036 (N.L.R.B. 1990)

1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local Lodge 724 of District No 1, International As-
sociation of Machinists, AFL-CIO and Dela-
ware River Stevedores, Inc and International
Longshoremen's Association, Local 1291, AFL-
CIO Case 4-CD-753
March 26, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed April 5, 1989, by the Employer alleging that
the Respondent, Local Lodge 724 of District No
1, International Association of Machinists, AFL-
CIO (Local 724), violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Em-
ployer to assign certain work to employees it rep-
resents rather than to employees represented by
International Longshoremen's Association Local
1291, AFL-CIO (Local 1291) The hearing was
held May 9 and 12, 1989, before Hearing Officer
Dona A Nutim
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error On the
entire record the Board makes the following fmd
mgs
I JURISDICTION
The Employer, a Pennsylvania corporation, is
engaged in stevedoring and marine terminal oper
ations on the Delaware River with its principal
place of business in Philadelphia, Pennsylvania
During the past calendar year, the Employer de
rived gross revenues in excess of $1 million and
purchased and received materials and supplies
valued at more than $50,000 directly from points
located outside the State of Pennsylvania The par-
ties stipulated, and we find, that Delaware River
Stevedores (DRS) is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that Local 724 and Local 1291 are labor orgamza
tions within the meaning of Section 2(5) of the
Act
II THE DISPUTE
A Background and Facts of Dispute
DRS was formed in July 1988 as the result of a
merger between Delaware Operating Company, a
Division of Lavin° Shipping (DOC), and ITO Cor
poration (ITO) DOC came into existence in 1975
\
when McCarthy and Lavmo Shipping merged
DRS is owned in equal shares by Lavmo Shipping
and ITO According to the Articles of Merger,
DOC merged with and into ITO, which as the sur-
viving corporation continues its corporate existence
under the name of DRS Before the July 1988
merger, DOC operated at Packer terminal in Phila-
delphia and had collective bargaining agreements
with Local 724 and Local 1291 At the time of the
merger DRS agreed to be bound by the collective
bargaining agreement between Local 724 and
DOC The mechanical work at Packer was divided
between the Unions, with Local 724 members per-
forming crane repairs and repairs of chassis and
containers As a result of an agreement reached be-
tween the Unions in 1976, the automotive work,
consisting of repair work on equipment such as
forklifts and trucks used on the piers, was shared
equally ITO, pnor to July 1988, operated at Tioga
terminal ITO, as a member of the Philadelphia
Marine Trade Association (PMTA), has had a
series of collective bargaining agreements with
Local 1291 for all the mechanical repair work per-
formed at Tioga ITO has never had a collective-
bargaining agreement with Local 724
On July 13, 1988, Local 724 filed a grievance
over the loss of work opportunity at Packer termi-
nal DRS refused to process the grievance, con
tending that the dispute was jurisdictional, but
Local 724 continued in its efforts to arbitrate the
grievance
In August 1988, Tioga terminal closed, resulting
in the transfer of the container operation to Packer
and the automotive repair work to the Packer and
Camden, New Jersey terminals On March 13,
1989, Local 724 filed a second grievance alleging
the denial of work opportunity at Tioga terminal
At the end of March 1989, DRS lost a bid to
continue operating at Packer and most of its oper-
ations there ceased Both Local 724 and Local 1291
employees were laid off At around the same time,
in late March or early April 1989, American Trans-
port Lines (ATL), a shipping line that had been
serviced by DRS at Packer, leased Tioga terminal
and hired DRS for its stevedonng work at Tioga
At Tioga, DRS assigned all the mechanical repair
work to members of Local 1291
Local 724 sent a telegram to DRS on April 3,
1989, alleging its failure to abide by the grievance-
arbitration provisions of its contract, and citing the
contract's "nght to strike" language On April 4,
1989, 10 or 12 members of Local 724 appeared at
the entrance to Tioga terminal weanng picket signs
reading "I AM on Strike Against DRS" On April
5 the picketing ceased when Local 724 was served
with a temporary restraining order
297 NLRB No 174
MACHINISTS LOCAL 724 (DELAWARE STEVEDORES) 1037
B Work in Dispute
The disputed work involves the maintenance of
mechanical equipment and the maintenance and
repair of containers and chassis for Delaware River
Stevedores, Inc at Tioga Marine Terminal, 3460
N Delaware Avenue, Philadelphia, Pennsylvania
C Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that Local 724 violated Section
8(b)(4)(D) of the Act The parties agree that no
voluntary method of adjustment 'exists that binds
all the parties, and that the dispute is properly
before the Board for a determination under Section
10(k) of the Act The Employer and Local 1291
argue that the work in dispute should be awarded
to members of Local 1291 on the basis of employer
preference and past practice The inechamcal work
at Tioga terminal was done exclusively by Local
1291 members during the 15-year period when ITO
performed work at Tioga The 1988 merger of ITO
and DOC resulted in the disestablishment of DOC,
leaving ITO as the surviving entity ITO never had
a collective-bargaining relationship with Local 724,
and the agreement between PMTA and Local 1291
gives the work to Local 1291 members The Em-
ployer and Local 1291 further rely on the Employ-
er's preference as well as their contentiOn that
awarding work to Local 724 members would result
in the loss of employment for LocaP1291 members
Local 724 contends that the Employer should
not be pnvileged to unilaterally terminate an exist-
ing collective-bargaining relationship simply be-
cause it moves its operations from one pier to an-
other Local 724 argues that its members are enti-
tled to the work in dispute by virtue of its contract
with DOC, which was adopted by DRS at the
time of the merger Local 724 further argues that
there is no longstanding past practice with respect
to DRS because the current practice has occurred
only since July 1988, when DRS was formed In
contrast, the work in dispute has been performed
by Local 724-represented employees for DRS' cor-
porate predecessors, DOC and Lavmo, for many
years Local 724 relies on Lavino Shipping Co, 189
NLRB 126 (1971), and argues that the 10(k) award
there is binding on DRS That dispute involved
Local 724 and Local 1291, the same mechanical
work involved in the instant dispute, and Lavino
Shipping Company, of which DOC was a division
and which currently owns half of DRS The work
was awarded to Local 724 Further, Local 724
argues that a 1975 arbitration award that found
Lavino to have violated the IAM contract by
awarding the work to ILA and by laying off Local
724 employees should be followed in the current
dispute
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 the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute
Local 724 established a picket line around the
Employer's facilities with signs reading "IAM on
Stnke Against DRS" after the Employer refused to
hire individuals represented by Local 724 to per-
form the work in dispute and Local 724 Business
Agent James Walsh allegedly stated, "We're fol:
lowing the work, like we always do" We conclude
therefore that there is reasonable cause to believe
that an object of the picketing was to force the
Employer to assign the disputed work to individ-
uals represented by Local 724 in violation of Sec-
tion 8(b)(4)(D)
The Employer and Local 1291 stipulated that
they have not ,agreed on a method to adjust this
dispute voluntarily Although Local 724 initially
refused to join any such stipulation, contending
that two grievances filed pursuant to its collective-
bargaining agreement with DOC would resolve the
dispute It ultimately acknowledged that any arbi-
tration award pursuant to its contract with the Em-
ployer would not be binding on Local 1291
Based bil the foregoing, we find reasonable cause
to believe that there exists no agreed-on method
for voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act Accordingly,
we find that the dispute is properly before the
Board for determination
E Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors NLRB v Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U S 573
(1961) The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case
Machinists Local 1 743 (J A Jones Construction),
135 NLRB 1402 (1962)
The following factors are relevant in making the
determination of this dispute
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Certifications and collective bargaining
agreements
Neither Local 1291 nor Local 724 has been certi-
fied by the Board as the collective bargaining rep-
resentative of any of the employees involved in this
dispute' Before their July 1988 merger, ITO and
DOC, as members of PMTA, had collective-bar
gaining agreements with Local 1291 Pursuant to
that contract, ITO assigned all of its mechanical
repair work performed at Tioga terminal to mem-
bers of Local 1291 In addition to the Local 1291
contract, DOC had a collective-bargaining agree
ment with Local 724 The current collective-bar-
gaining agreement between Local 724 and DOC
runs from October 1, 1986, to September 30, 1989
The contract recognizes the Union as the sole and
exclusive collective-bargaining agent for all auto
and auto truck mechanics and electncians em-
ployed at the Company's automotive maintenance
repair facilities in the Port of Philadelphia Also,
the contract descnbes in additional detail the unit
inclusions, and states that the bargaining unit
includes all employees engaged in the disman
tlmg and repairing of mdustnal lift trucks, con-
tainers, trailers and chassis, tractors, trucks,
automobiles, mobile cranes and loaders, and/or
parts thereof, of all descnptions by the Com-
pany, on or off its premises
At the time of the merger, DRS agreed to be
bound by the agreement Further, in 1976 as an ap-
pendix to Local 724's contract, Local 724 and
Local 1291 agreed to share the automotive work,
which consisted of repair work on equipment such
as forklifts and trucks used on the piers As both
Local 724's and Local 1291's agreements contain
provisions providing that the work in dispute is
within their domain, we find that the factor of col-
lective-bargaining agreements does not favor an
award of the disputed work to either group of em-
ployees
2 Employer preference
DRS prefers to use its employees represented by
Local 1291 to perform the mechanical and repair
work at Tioga terminal rather than employees rep-
resented by Local 724 Employer preference favors
an award of the disputed work to the employees
represented by Local 1291
1 Local 724 has a preexisting certification with Lavin° Shipping Corn
pany which owns half of the DRS stock In Lavino Shipping Co 189
NLRB 126 (1971) the Board noted that the Union was certified in 1957
for a unit including All auto and auto truck mechanics including weld
ers gearmen and service men employed at the Company s Locker
Snyder Ave & Dilworth St Philadelphia facility excluding office den
cal employees truck dnvers guards and supervisors as defined in the
Act
3 Employer past practice
Before the July 6, 1988 merger, ITO operated at
Tioga terminal and assigned all mechanical repair
work to Local 1291 Following the merger, DRS
continued the work assignment to Local 1291 until
Tioga terminal closed m August 1988 In late
March or early Apnl 1989, DRS resumed work at
the Tioga terminal and assigned all mechanical
repair work to employees represented by Local
1291 Based on the Employer's practice pnor to
the instant dispute, we find that this factor favors
an award of the work in dispute to employees rep-
resented by Local 1291
4 Area practice
Both ILA and IAM-represented mechanics
maintain and repair cranes, containers, and chassis,
and repair automotive equipment throughout the
Port of Philadelphia Therefore, area practice does
not favor an award of the disputed work to em-
ployees represented by either Umon
5 Skill, economy, and efficiency
Employees represented by Local 724-represented
employees are as qualified to perform the work at
Tioga as employees represented by Local 1291 We
find that the factor of skills, economy, and efficien-
cy of operation does not favor an award of the dis
puted work to either group of employees
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Local
1291 are entitled to perform the work in dispute
We reach this conclusion by relying on the factors
of employer preference and past practice In
making this determination we are awarding the
work to employees represented by Local 1291, not
to that Union or its members The determination is
limited to the controversy that gave rise to this
proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
followmg Determination of Dispute
1 Employees of Delaware River Stevedores,
Inc, represented by International Longshoremen's
Association, Local 1291, AFL-CIO are entitled to
perform the work of maintenance of mechanical
equipment and the maintenance and repair of con-
tainers and chassis for Delaware River Stevedores,
Inc, at Tioga Marine Terminal, 3460 N Delaware
Avenue, Philadelphia, Pennsylvania
2 Local Lodge 724 of District No 1, Interna
tional Association of Machinists, AFL-CIO is not
MACHINISTS LOCAL 724 (DELAWARE STEVEDORES) 1039
entitled by means proscnbed by Section 8(b)(4)(D)
of the Act to force or require Delaware River Ste-
vedores, Inc to assign the disputed work to em-
ployees represented by it
3 Within 10 days from the date of this Decision
and Determination of Dispute, Local Lodge 724 of
Distnct No 1, International Association of Ma-
chimsts, AFL-CIO shall notify the Regional Direc-
tor for Region 4, m wntmg, whether it will refrain
from forcmg the Employer, by means proscnbed
by Section 8(b)(4)(D), to assign the work in dispute
in a manner inconsistent with this determination