Longshoremen ILA Local 1242 (Dependable Distribution)

National Labor Relations Board - Board Decisions

Jan 20, 1995

316 N.L.R.B. 1 (N.L.R.B. 1995)

1
316 NLRB No. 1
LONGSHOREMEN ILA LOCAL 1242 (DEPENDABLE DISTRIBUTION)
Local 1242, International Longshoremen’s Associa-
tion, AFL–CIO; Local 1242-1, International
Longshoremen’s Association, AFL–CIO; Local
1291, International Longshoremen’s Associa-
tion, AFL–CIO; Local 1566, International
Longshoremen’s Association, AFL–CIO; Local
1332, International Longshoremen’s Associa-
tion, AFL–CIO; Local 1332-1, International
Longshoremen’s Association, AFL–CIO; Atlan-
tic Coast District, International Longshore-
men’s Association, AFL–CIO and Dependable
Distribution Services, Inc. and Teamsters Local
470. Case 4–CD–878
January 20, 1995
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
The charge in this Section 10(k) proceeding was
filed on October 25, 1993, by Dependable Distribution
Services, Inc. (Dependable or the Employer), alleging
that the Respondents, Locals 1242, 1242-1, 1291,
1566, 1332, and 1332-1, International Longshoremen’s
Association, AFL-CIO (ILA), and Atlantic Coast Dis-
trict, International Longshoremen’s Association, AFL-
CIO (the District) violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer
to assign certain work to employees they represent
rather than to employees represented by Teamsters
Local 470 (Teamsters). The hearing was held on De-
cember 9 and 23, 1993, and February 7, 1994, before
Hearing Officer David Berger. Thereafter, Dependable
and the Respondents filed briefs.
The National Labor Relations Board has delegated
its authority 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
Dependable Distribution Services, Inc., a Pennsyl-
vania corporation, operates a facility at Pier 84, Phila-
delphia, Pennsylvania. Dependable annually receives
revenues valued in excess of $50,000 from customers
located outside the State of Pennsylvania. We find that
Dependable Distribution Services, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the ILA locals and
Atlantic Coast District and Teamsters Local 470 are
labor organizations within the meaning of Section 2(5)
of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has a collective-bargaining agreement
with Teamsters Local 470 covering all of its ware-
house employees. Since about September 10, 1993, the
Employer has held a lease to operate Pier 84 in Phila-
delphia, Pennsylvania, and employees represented by
Teamsters Local 470 have performed the work in-
volved. For the 5 months prior to September 1993, the
warehouse on that pier was vacant. According to the
ILA, employees it represented had performed the
warehousing work on pier before the Employer leased
it.
In late September 1993, members of the ILA pick-
eted Pier 84.
B. Work in Dispute
The disputed work is the unloading and warehousing
of cocoa beans at Dependable Distribution Services,
Inc.’s Pier 84 facility in Philadelphia, Pennsylvania.
C. Contentions of the Parties
The Employer asserts that there is reasonable cause
to believe that the Respondents have violated Section
8(b)(4)(D) and that the dispute is properly before the
Board for determination. The Employer further urges
that, based on the relevant criteria, the work in dispute
should be assigned to its employees represented by the
Teamsters.
The ILA locals contend that there is no jurisdictional
dispute and that the notice of hearing should be
quashed. They further contend that there is no record
evidence that they encouraged, authorized, condoned,
or ratified the picketing at Pier 84 or threatened to do
so. Alternatively, they argue that, if the Board finds
that a jurisdictional dispute exists, the work should be
awarded to employees represented by them. The Dis-
trict contends that the charge should be dismissed. It
further asserts that, if the charge is not dismissed, the
work in dispute should be assigned to employees rep-
resented by the ILA locals.
D. Applicability of the Statute
On September 14, 1993, James Paylor, president of
ILA Local 1566 and vice president of the District
wrote to the Employer requesting an opportunity to
meet to ‘‘explore the possibility’’ of assisting the Em-
ployer ‘‘with [its] work activity at Pier 84.’’ About the
same time, William Keller, a member of the Penn-
sylvania House of Representatives, telephoned and vis-
ited the Employer. Keller introduced himself as a
member of the ILA for 24 years and asked to intro-
duce the Employer to ‘‘people within the ILA . . .
who would try to convince [the Employer] why they
should have [Pier 84].’’ Keller then arranged a meeting
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 P.R.P.A. is the Philadelphia Regional Port Authority.
2 Although Paylor denied being present during the picketing, a
conflict in testimony does not prevent the Board from proceeding
under Sec. 10(k). The Board, in a 10(k) proceeding, does not deter-
mine whether a violation actually occurred, but only whether reason-
able cause exists to believe that Sec. 8(b)(4)(D) has been violated.
Longshoremen ILA Local 1588 (Atlantic Cement), 273 NLRB 1723,
1725 (1985).
between the Employer and ILA Locals 1332 and
1332A Business Agent Thomas Blackwell. Blackwell
told the Employer that Pier 84 was ‘‘longshoremen
work’’ and that he ‘‘wanted his men on the pier’’ and
that he ‘‘would like to put some men down there’’(i.e.,
at the pier). ILA Local 1291 President Joseph Hill also
encouraged the Employer in a telephone conversation
to ‘‘sit down and see that the longshoremen should
. . . be operating the [Pier 84] facility.’’
On September 14 and October 23 and 25, 1993,
mass picketing occurred at Pier 84. The picket signs
read: ‘‘P.R.P.A. unfair to ILA.’’1 District Vice Presi-
dent and President of ILA Local 1566 William Paylor
was observed on the picket line on October 23 confer-
ring with a picket in a calm manner.2 On one occasion,
while the pickets were assembling, a picket displayed
an ILA photograph identification card to the Employer
and stated: ‘‘You guys better give us this work,’’ and
‘‘there’s going to be big problems.’’ One picket identi-
fied himself as an ILA member. Another, identified as
ILA Local 1291 member Michael Billips, was ob-
served wearing an ILA Local 1291 jacket on the picket
line and placing one of the picket signs described
above on a fence. When asked to identify themselves
by a representative of the Employer, one of the pickets
referred the representative to a representative of ILA
Local 1242, McCann.
The ILA locals have at all times claimed the work
in dispute. As described above, representatives of the
District and Locals 1566, 1332 and 1332-A, as well as
William Keller, who introduced himself as a 24-year
member of ILA, repeatedly requested orally and in
writing to meet with the Employer to arrange for the
disputed work to be done by employees represented by
the ILA. Beginning on the first day of these requests
and continuing on October 23 and 25, mass picketing
occurred at Pier 84. The pickets bore signs identifying
the ILA, individuals on the picket line identified them-
selves as members of the ILA, and a representative of
one of the locals was identified on the picket line as
a spokesperson. Based on the foregoing, we find that
there is reasonable cause to believe that the picketing
was conducted by the District and the ILA locals. The
picketing was in furtherance of ILA work-assignment
objectives, and no ILA agent repudiated their actions.
See Coastal Cargo Co., 289 NLRB 542, 543 (1988).
There is no evidence presented of a voluntary meth-
od of resolving the jurisdictional dispute, that would be
binding on all parties, and none is urged.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly be-
fore the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge, 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Collective-bargaining agreements
The Employer and Teamsters Local 470 are parties
to a collective-bargaining agreement effective by its
terms from March 12, 1993, to March 13, 1996, which
covers all of the Respondent’s warehouse employees.
The Employer does not have a collective-bargaining
relationship with the ILA locals. We find that this fac-
tor favors assigning the work in dispute, which in-
cludes warehousing, to employees represented by
Teamsters Local 470.
2. Employer preference and past practice
The Employer assigned the work in dispute to, and
prefers that it be performed by, employees represented
by Teamsters Local 470. There is no evidence that the
Employer has in the past assigned the disputed work
to employees represented by the ILA locals. We find
that this factor favors awarding the work in dispute to
employees represented by Teamsters Local 470.
3. Area practice
Since September 1993, employees represented by
Teamsters Local 470 have performed the unloading
and warehousing of cocoa beans at Pier 84 of the Port
of Philadelphia. Up to 6 months prior the Employer’s
lease of the Pier 84 facility, ILA-represented employ-
ees performed warehousing for Chilean fruit at this
pier. The practice elsewhere in the Port of Philadelphia
is mixed. We find that this factor does not favor
awarding the work in dispute to either group of em-
ployees.
4. Relative skills
The evidence shows that employees represented by
Teamsters Local 470 have performed the unloading
and warehousing of cocoa beans at other locations and
3LONGSHOREMEN ILA LOCAL 1242 (DEPENDABLE DISTRIBUTION)
that they have special training related to the handling
of cocoa beans, such as fumigation and ventilation of
storage facilities. Although there is evidence that ILA-
represented employees have unloaded cocoa beans,
there is no evidence that they have comparable train-
ing. Teamsters represented employees possess the req-
uisite skills and training to perform the work in dis-
pute. This factor favors awarding the work in dispute
to employees represented by Teamsters Local 470.
5. Economy and efficiency of operations
Under ILA collective-bargaining agreements with
other employers, ILA Local 1291, which performs
most of the labor involved in loading and unloading
ships, usually uses three gangs with a minimum work
crew of 16 and one foreman for unloading a vessel
with palletized or sling cocoa beans. The employer
must comply with minimum employee requirements
for each classification of employees. Employees of one
local cannot be used interchangeably with employees
of other locals. The Employer’s collective-bargaining
agreement with Teamsters Local 470, in contrast, im-
poses no staffing requirements or restrictions. This fac-
tor favors awarding the work to employees represented
by Teamsters Local 470.
6. Certifications
Teamsters Local 470 has been certified by the Board
as the collective-bargaining representative of the Em-
ployer’s full-time warehousemen. The Respondents
have not been certified as representatives of any of the
Employer’s employees. This factor favors awarding the
work, which includes warehousing, to employees rep-
resented by Teamsters Local 470.
Conclusions
After considering all the relevant factors, we con-
clude that employees of Dependable Distribution Serv-
ices, Inc., represented by Teamsters Local 470, are en-
titled to perform the work in dispute. We reach this
conclusion relying on the Employer’s collective-bar-
gaining agreement with Teamsters Local 470, the Em-
ployer’s preference, relative skills, economy and effi-
ciency of operations, and Teamsters Local 470’s Board
certification. In making this determination, we are
awarding the work to employees represented by Team-
sters Local 470, 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 fol-
lowing Determination of Dispute.
1. Employees of Dependable Distribution Services,
Inc., represented by Teamsters Local 470, are entitled
to perform the unloading and warehousing of cocoa
beans at Dependable Distribution Services, Inc.’s Pier
84 facility in Philadelphia, Pennsylvania.
2. Locals 1242, 1242-1, 1291, 1566, 1332 and 1332-
1, International Longshoremen’s Association, AFL–
CIO, and Atlantic Coast District International Long-
shoremen’s Association, AFL–CIO, are not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force Dependable Distribution Services, Inc., to assign
the disputed work to employees they represent.
3. Within 10 days from this date, Locals 1242,
1242-1, 1291, 1566, 1332, and 1332-1 International
Longshoremen’s Association, AFL–CIO, shall notify
the Regional Director for Region 4 in writing whether
they will refrain from forcing the Employer, by means
proscribed by Section 8(b)(4)(D), to assign the dis-
puted work in a manner inconsistent with this deter-
mination.