Longshoremen ILA Local 1235 (Naporano Iron)

National Labor Relations Board - Board Decisions

Mar 11, 1992

306 N.L.R.B. 698 (N.L.R.B. 1992)

698
306 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1991 unless otherwise indicated.
2 Since September 24, 1953, Naporano has had collective-bar-
gaining agreements with Laborers Local 734 covering its production
and maintenance employees.
3 Since 1986 or 1987, pursuant to a settlement agreement approved
by the Regional Director for Region 22 of the Board, ILA Local
1235 members employed by Weeks and other bulk stevedoring com-
panies have been selected from a formalized bulk cargo referral list
which currently consists of approximately 25 bulk cargo longshore-
men and is known as ‘‘Charlie Dino’s Gang.’’ All bulk cargo in Port
Newark is handled exclusively by Charlie Dino’s Gang.
4 Naporano testified that Vergallito indicated in this conversation
that its members would perform the loading work. In his deposition,
Vergallito disputed this version of the conversation and stated that
he was deliberately evasive in order to discover what was happening.
For the purposes of this decision the substance of this telephone con-
versation, beyond the above notification to Vergallito, is immaterial.
International Longshoremen’s Association, Local
1235, AFL–CIO and Naporano Iron & Metal
Company. Case 22–CD–591
March 11, 1992
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed August 1, 1991, by Naporano Iron & Metal Com-
pany (Naporano), the Employer, alleging that the Re-
spondent, International Longshoremen’s Association,
Local 1235, AFL–CIO (ILA Local 1235), violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of forc-
ing the Employer to assign certain work to employees
it represents rather than to employees represented by
Laborers International Union of North America, Local
734, AFL–CIO (Laborers Local 734). The hearing was
held on October 9, 10, 16, and 17, 1991,1 before Hear-
ing Officer Nicholas H. Lewis.
The National Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Naporano, a New Jersey corporation, is engaged in
the business of receiving, processing, and recycling
scrap metal and iron at its facility in Newark, New Jer-
sey. During the 12 months preceding the hearing,
Naporano sold and shipped recycled metal valued in
excess of $50,000 directly to customers located outside
the State of New Jersey and the United States. The
parties stipulated, and we find, that the Employer is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that ILA Local 1235 is a
labor organization within the meaning of Section 2(5)
of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In the mid-1970s, Naporano began to export scrap
metal by sea from Port Newark. As part of the export
process, Naporano’s employees, represented by Labor-
ers Local 734,2 processed scrap iron at its inland facili-
ties and then transported the processed scrap iron by
truck to the marine terminal in Port Newark, where
Naporano leased berth spaces from the Port Authority
of New York and New Jersey. At these berths
Naporano employees arranged and stockpiled the scrap
iron in preparation for loading on oceangoing vessels.
Until the present dispute, Naporano had contracted the
ship loading to Weeks Stevedoring Company (Weeks),
which had employed members of ILA Local 1235 to
load the ships and members of the Operating Engineers
to operate the cranes used in loading.3
At midnight on June 30, 1991, the Operating Engi-
neers went on strike against the port’s bulk stevedoring
companies, including Weeks, on the expiration of their
collective-bargaining agreements. Toward the middle
of July, Ted Weeks, one of the principals of Weeks,
told Andrew Naporano, senior vice president of
Naporano, that the negotiations with the Operating En-
gineers were at an impasse. Following the conversation
with Ted Weeks, Andrew Naporano decided that
Naporano would use its own employees to load its in-
coming ship, which was scheduled to arrive near the
end of July or early August. The Operating Engineers’
strike ended on July 29.
On July 30, having learned that a ship was sched-
uled to dock the next day, Andrew Naporano informed
August Vergallito, the president of Laborers Local
734, that Naporano employees represented by Local
734 would be loading the incoming ship.4 Early in the
morning of July 31, Naporano’s ship docked and
Naporano, rather than renewing its oral contract with
Weeks, began loading the ship with its own employees
represented by Laborers Local 734. At about the same
time as the loading began, Albert Cernadas, the presi-
dent of ILA Local 1235, ordered ILA Local 1235
members to picket the worksite. Cernadas also tele-
phoned Vergallito on July 31 and asked him if he was
aware that Laborers Local 734 members were loading
Naporano’s ship. Vergallito replied that he did not
know that his members were loading the ship, but that
if that were the case, he would send Naporano a tele-
gram telling him that Laborers Local 734 would ask its
members to stop performing the work.
The next day, August 1, Naporano filed the instant
unfair labor practice charge with the Regional Director
alleging that ILA Local 1235’s picketing violated Sec-
tion 8(b)(4)(D).
699LONGSHOREMEN ILA LOCAL 1235 (NAPORANO IRON)
On August 2, Vergallito and Laborers Local 734’s
business agent, Ronald Sodora, sent Naporano a tele-
gram which stated:
There has been a complaint filed with the Inter-
national Union that Local 734 members are
alledgedly [sic] infringing on the work of the
Longshoreman [sic] and Operating Engineers. If
this is a true fact [sic] Local 734 will not tolerate
their members doing the work of the Longshore-
man [sic] and Operating Engineers. We will in-
struct our members to respect any legitimate pick-
ett [sic].
The same day Naporano responded by facsimile letter
which, in pertinent part, stated:
We expect Local 734 bargaining unit employees
to do all work assigned by Naporano. In this re-
gard, you are reminded that our contract with
Local 734 has a very specific no-strike clause
which prohibits, among other things, work stop-
pages and sympathy strikes.
Please be advised that any sympathy strike or
work stoppage by Local 734 bargaining unit em-
ployees will be in violation of our collective bar-
gaining agreement and will subject employees to
discipline up to an [sic] including discharge. We
also understand that a representative of Local 734
has directed bargaining unit employees not to re-
port to work. Please be further advised that any
such conduct will be deemed a violation of our
collective bargaining agreement and we will hold
Local 734 strictly accountable to Naporano for
consequential and punitive damages flowing
[from] Local 734’s improper and unlawful con-
duct.
On August 9, the Regional Director filed for an in-
junction in Federal district court pursuant to Section
10(l). On September 6, at the Federal district court
hearing, counsel for Laborers Local 734 unequivocally
stated that Laborers Local 734 made no claim to the
loading work. Based on this disclaimer and the August
2 letter from Naporano to Laborers Local 734, the
court found that Laborers Local 734 ‘‘makes no claim
to perform the subject work,’’ and ‘‘that they are
doing so only as a result of the charging party’s com-
pulsion, direction and threat of legal action if they do
not perform.’’ The court denied the request for injunc-
tive relief.
At the instant 10(k) hearing, counsel for Laborers
Local 734 stated that ‘‘Local 734 does not now claim,
nor has it ever claimed any of the work that has his-
torically been performed on Naporano premises by
ILA represented employees,’’ and ‘‘that although
Local 734 represented employees are apparently doing
work that had historically been performed by employ-
ees represented by the ILA Local here, the Local 734
represented employees are doing so under compulsion
. . . [from Naporano’s threats] to discipline or even to
discharge any employee who refused to do the work
that was assigned to the employee . . . [and] to bring
a lawsuit against Local 734 and seek punitive and con-
sequential damages.’’ He further stated that Local 734
does not want ‘‘any part of a dispute that apparently
exists between Naporano and the ILA.’’ In a deposi-
tion introduced into evidence at the 10(k) hearing,
Vergallito stated that Laborers Local 734 did not claim
the disputed work. Sodora testified that he never
claimed the disputed work on behalf of Laborers Local
734. Finally, in its brief to the Board, Laborers Local
734 again disclaimed the disputed work.
B. Work in Dispute
The disputed work involves loading scrap metal
onto ships docked at berths in Port Newark, New Jer-
sey. The loading tasks include tying up and securing
ships that are docking, positioning ships with respect
to scrap metal waiting to be loaded and with respect
to the cranes that are used to load the scrap metal,
repositioning cranes in the course of loading a ship, as-
sisting crane operators in the placement of scrap in the
hold, ensuring that scrap metal placed in the hold is
evenly distributed, and clearing scrap metal that has
fallen onto the deck of the ship.
C. Contentions of the Parties
The Respondent and Laborers Local 734 contend
that no jurisdictional dispute exists and that the notice
of hearing should be quashed because Laborers Local
734 has disclaimed the work and that the dispute is be-
tween Naporano and the Respondent. The Respondent
further contends that no jurisdictional dispute exists
because the Employer created the dispute by its own
actions.
The Employer contends that Laborers Local 734 has
not effectively disclaimed the work because it lacks the
legal capacity to disclaim the disputed work in light of
its collective-bargaining agreement which covers the
work in dispute. The Employer further contends that
even if Laborers Local 734 had the legal capacity to
disclaim the disputed work, the facts do not support an
effective disclaimer. Finally, the Employer contends
that ILA Local 1235’s conduct lacks a valid work
preservation objective and that the work in question
should be awarded to its employees represented by La-
borers Local 734.
D. Applicability of the Statute
Before the Board may proceed to a determination of
dispute under Section 10(k) of the Act, it must be sat-
isfied that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. For the Board to
find reasonable cause, there must be (1) a genuine dis-
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pute, (2) proscribed activity under Section 8(b)(4)(D)(i)
or (ii), and (3) an objective to force the Employer to
reassign the work. Operating Engineers Local 925
(Bradshaw Industrial Coatings), 264 NLRB 962, 964
(1982).
A genuine jurisdictional dispute under Section
8(b)(4)(D) ‘‘is a dispute between two or more groups
of employees over which is entitled to do certain work
for an employer.’’ NLRB v. Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573,
579 (1961). No dispute exists when a party effectively
disclaims the disputed work. Bradshaw Industrial
Coatings, 264 NLRB at 964. Independent conduct by
individual members of a union will not vitiate the dis-
claimer when the totality of the circumstances indi-
cates that the disclaimer was not equivocal. Teamsters
Local 85 (U.C. Moving Services), 236 NLRB 157,
158–159 (1978).
On the basis of the entire record, we find that La-
borers Local 734 has effectively disclaimed the dis-
puted work assignment. From the beginning of the dis-
pute and at each subsequent stage of the dispute La-
borers Local 734 has unequivocally and uncondition-
ally disclaimed the disputed work. Although Local 734
members continued to perform the disputed work, such
action flowed directly from the Employer’s threat to
Local 734 to discipline or discharge any of its employ-
ees who did not report to work and to seek damages
against Local 734 for failure to perform the disputed
work. Under these circumstances, we do not find that
performance of the disputed work by Local 734 mem-
bers vitiated the disclaimer by Local 734. U.C. Moving
Services, 236 NLRB at 158–159.
We further find no merit in the Employer’s conten-
tion that Laborers Local 734 lacks the legal capacity
to disclaim the disputed work ‘‘because to do so would
involve a breach of their collective-bargaining con-
tract.’’ Longshoremen ILA Local 1291 (Pocahontas
Steamship), 152 NLRB 676, 680 (1965). The instant
case is readily distinguishable from Pocahontas. There,
the disputed work involved ‘‘hatch and beam’’ work,
which was specifically covered in the employer’s col-
lective-bargaining agreement with the union that per-
formed the work. Here, in contrast, Laborers Local
734’s contract covers the broad area of ‘‘production
and maintenance,’’ without specific mention of the dis-
puted work. Moreover, in this case, unlike Pocahontas,
Laborers Local 734 members were not performing the
work prior to the dispute and thus were not seeking,
by means of the disclaimer, to stop performing one of
their regular duties without losing any pay.
For the above reasons, we conclude that there is no
reasonable cause to believe that Section 8(b)(4)(D) of
the Act has been violated and, therefore, we shall
quash the notice of hearing.
ORDER
The notice of hearing issued in this case is quashed.