Longshoremen ILA Local 1242 (Rail Distribution Center)

National Labor Relations Board - Board Decisions

Jan 4, 1993

310 N.L.R.B. 1 (N.L.R.B. 1993)

1
310 NLRB No. 1
LONGSHOREMEN ILA LOCAL 1242 (RAIL DISTRIBUTION CENTER)
1 The name of the Respondent Teamsters Union has been changed
to reflect the new official name of the International Union.
2 All dates are in 1991 unless otherwise stated.
International Longshoremen’s Association, Locals
1242, 1332, 1566, AFL–CIO and Rail Distribu-
tion Center, Inc.
Highway Truck Drivers and Helpers, Local 107, af-
filiated with International Brotherhood of
Teamsters, AFL–CIO1 and Rail Distribution
Center, Inc. Cases 4–CD–817–1–2–3 and 4–CD–
817–4
January 4, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act. On October 3, 1991,2 the
Employer, Rail Distribution Center, Inc., filed charges
in Case 4–CD–817–1–2–3, alleging that the Respond-
ents, International Longshoremen’s Association, Locals
1242, 1332, 1566, AFL–CIO (collectively ILA), vio-
lated Section 8(b)(4)(D) of the Act by engaging in pro-
scribed conduct with an object of forcing the Employer
to assign certain work to employees they represent
rather than to employees represented by Highway
Truck Drivers and Helpers, Local 107, affiliated with
International Brotherhood of Teamsters, AFL–CIO
(Teamsters Local 107). On October 9, the Employer
filed a charge in Case 4–CD–817–4 alleging that Re-
spondent Teamsters Local 107 violated Section
8(b)(4)(D) of the Act by engaging in proscribed con-
duct with an object of forcing the Employer to assign
certain work to employees it represents rather than to
employees represented by the ILA. An order consoli-
dating cases and notice of hearing issued January 13,
1992. The hearing was held May 27 and 28 and June
26, 1992, before Hearing Officer Timothy J. Brown.
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
The Employer, a Pennsylvania corporation, is en-
gaged in the business of operating an intermodal trans-
portation terminal located on Delaware Avenue in
Philadelphia, Pennsylvania. During the last year, in the
course and conduct of its operations, the Employer re-
ceived gross revenues in excess of $500,000 and re-
ceived in excess of $50,000, as a link in the interstate
transportation of goods for various customers, includ-
ing Delaware and Hudson Railway and Canadian Pa-
cific Railway. The parties stipulate, 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 Locals 1242, 1332, 1566 and Teamsters Local
107 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Holt Cargo Systems (HCS) is a stevedoring com-
pany engaged in the handling of containerized cargo at
the Gloucester Marine Terminal in Gloucester, New
Jersey, and the Packer Avenue Marine Terminal in
Philadelphia, Pennsylvania. HCS is a member of the
Philadelphia Marine Trade Association (PMTA), a
multiemployer bargaining association, which is party to
a collective-bargaining agreement with the ILA, effec-
tive December 1, 1990, through September 30, 1994,
covering certain work performed at the Packer Avenue
and Gloucester terminals. Pursuant to this agreement,
employees represented by ILA Locals 1242, 1332, and
1566 load and unload cargo on and off vessels calling
at HCS’ terminals; clerk and check the cargo coming
in and out of those terminals; load such cargo in and
out of trucks and railcars; and perform cargo repair
and maintenance. In mid-1991, HCS ceased to handle
railroad container cargo within the Packer Avenue ter-
minal because of the terminal’s lack of capacity to
handle long lines of railcars running through the mid-
dle of the terminal premises.
In 1990, Thomas Holt Sr., chief executive officer
and owner of HCS, and an individual named Dennis
Colgan Sr. formed the Employer to operate an inter-
modal railyard to service the Canadian Pacific Rail-
way. The three sons of Thomas Holt Sr. (Leo, Mi-
chael, and Thomas Jr.) own 50 percent of the Employ-
er’s stock, Dennis Colgan Sr. owns 34 percent, and
members of Colgan’s family own 16 percent. There
are five members of the board of directors: Leo Holt
(president and chief executive officer), Dennis Colgan
Sr. (chairman), Jim Cooney (secretary-treasurer), Den-
nis Colgan Jr., and Jack Irkilani. Cooney and Irkilani
are both related to Dennis Colgan Sr.
The intermodal facility is located on an existing rail-
road line that runs adjacent to the Packer Avenue Ma-
rine Terminal, and is utilized by Canadian Pacific Rail-
way to consolidate freight in Philadelphia and transport
it to destinations in Canada. Prior to the existence of
the intermodal railyard, freight was shipped directly
from the consignor to Halifax, Nova Scotia, from
where it was transported by truck or rail to destinations
across Canada. The routing of freight through the Port
of Philadelphia for delivery to the intermodal railyard
resulted in a substantial increase in business for the
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
local marine terminals, including those operated by
HCS.
By letter dated April 9, 1991, while the intermodal
railyard was under construction, the ILA requested a
meeting with the Employer to discuss the ILA’s juris-
diction over the work of loading and/or unloading rail-
road cars that would be performed at the intermodal
facility.
In June, the Employer began hiring employees to
work at the intermodal facility. On July 20, after being
presented with union authorization cards signed by a
majority of its employees, the Employer recognized
Teamsters Local 107. On July 30, the Employer exe-
cuted a collective-bargaining agreement with Team-
sters Local 107 as the exclusive representative of em-
ployees performing all the work at the intermodal fa-
cility.
At least 80 percent of the Employer’s business in-
volves the handling of containers delivered to the
Packer Avenue terminal by Blue Star Pace and Colum-
bus shipping lines. When the containers arrive at the
Packer Avenue terminal, HCS employees represented
by the ILA off-load the containers, lift them and se-
cure them to truck chassis, and clerk and check them
before they leave the terminal. The containers are then
transported from the Packer Avenue terminal to the
Employer’s intermodal railyard where they are loaded
and secured onto railroad flat cars. The driving and
loading is performed by the Employer’s employees
represented by Teamsters Local 107.
The day-to-day operations of the Employer’s inter-
modal facility are supervised by Terminal Manager
John Belgiorno, formerly a manager at CSX Inter-
modal. Belgiorno hires the Employer’s employees,
maintains payroll, and completes necessary paperwork
from a trailer located on the Employer’s premises.
Belgiorno has never worked for HCS and has no su-
pervisory authority over HCS employees.
On June 21, the ILA filed a grievance against the
steamship lines, as parties to the ILA Master Agree-
ment, for allegedly violating the subcontracting provi-
sions of the Master Agreement by permitting their
cargo to be loaded onto railcars at the Employer’s
intermodal facility.
On September 15 and 16, picketers appeared outside
the Employer’s facility carrying picket signs, which
stated: ‘‘Holt and RDC unfair to ILA Labor.’’ The
picketers blocked the exit from the Packer Avenue ter-
minal and the entrance to the Employer’s facility, mak-
ing it impossible for the Employer to conduct oper-
ations. HCS Director of Stevedoring Walter Curran
was present for part of the picketing and testified that
the ILA picketers said that ‘‘they felt that the rail work
at RDC was their work, and they wanted it, and that
is why they were there.’’ The picketing ended on Sep-
tember 16, when ILA Local 1242 Business Agent Jack
McCann asked the picketers to leave the area.
On October 1, Joseph Cimino Jr., president of
Teamsters Local 107, wrote to the Employer’s terminal
manager, John Belgiorno, advising him that if the Em-
ployer assigns any or all the disputed work to employ-
ees other than those represented by Teamsters Local
107, ‘‘Local 107 will take appropriate action necessary
to protect its membership, including economic action.’’
No further picketing or work stoppage by either
Union has occurred. Employees represented by Team-
sters Local 107 are continuing to perform the work in
dispute.
B. Work in Dispute
The work in dispute involves the loading and un-
loading of containers and/or road trailers on and off of
railcars and truck chassis; the securing and unsecuring
of containers and/or road trailers on and off of rail
trucks and truck chassis; the driving of containers and
road trailers into and out of the adjacent marine ter-
minal and other locations; and the clerking and check-
ing related to such work at Rail Distribution Center,
Inc. in Philadelphia, Pennsylvania.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that the Respondents violated Section
8(b)(4)(D) of the Act and that the Board must there-
fore determine the merits of the dispute. The Employer
presented evidence that the ILA demanded the work in
dispute by letter dated April 9, and that Teamsters
Local 107 demanded the same work by letter dated
October 1. In the October 1 letter, Teamsters Local
107 threatened to take ‘‘economic action’’ if the Em-
ployer assigned the disputed work to employees not
represented by Teamsters Local 107.
The Employer contends that Teamsters Local 107 is
entitled to the work in dispute based on the collective-
bargaining agreement between the Employer and
Teamsters Local 107, employer preference, lower wage
and benefit costs, more manageable working conditions
under the Teamsters Local 107 contract compared to
those contained in the ILA contract, area and industry
practice, and the loss of jobs to employees represented
by Teamsters Local 107 if the work were assigned to
employees represented by the ILA. The Employer
maintains that Teamsters Local 107 has satisfactorily
performed the work in dispute at all times since the
Employer began operations.
The ILA contends that the Employer and HCS are
a single employer and/or alter ego corporations and
that, because of this relationship, the collective-bar-
gaining agreement between the ILA and HCS and past
practice of HCS must be considered in determining the
dispute. In support, ILA argues that Thomas Holt Sr.,
3LONGSHOREMEN ILA LOCAL 1242 (RAIL DISTRIBUTION CENTER)
3 Teamsters Local 158 (Holt Cargo), 293 NLRB 917 (1989);
Longshoremen ILA Local 1291 (Holt Cargo), 301 NLRB 394
(1991).
In view of this finding, which properly places the dispute before
the Board for determination, we need not decide whether the Sep-
tember 15 and 16 picketing or filing of a grievance by the ILA
against the steamship lines for allegedly violating the subcontracting
provisions of the ILA Master Agreement provide reasonable cause
to believe that Sec. 8(b)(4)(D) has been violated.
owner and chief executive officer of HCS, entered into
a joint venture with Dennis Colgan Sr. to form the
Employer, and soon thereafter Holt arranged for his
sons to control 50 percent of the shares and for his son
Leo to become president and chief executive officer of
the Employer. ILA maintains that the Employer was
created as a device to avoid ILA jurisdiction and there-
by gain the economic advantage of lower labor rates
contained in Teamsters Local 107’s contract. ILA also
contends that the work being performed at the Employ-
er’s intermodal railyard is the same work that was per-
formed by ILA-represented employees at HCS’
Gloucester and Packer Avenue terminals prior to the
creation of the Employer. Accordingly, it is the ILA’s
position that the work in dispute should be awarded to
employees represented by the ILA.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute under Section 10(k) of the Act, it must be
satisfied that that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated and that the
parties have not agreed on a method for the voluntary
adjustment of the dispute.
It is undisputed that both the ILA and Teamsters
Local 107 claim the work in dispute. In its letter dated
October 1, Teamsters Local 107 informed the Em-
ployer that if the Employer assigns any or all the dis-
puted work to employees other than those represented
by Teamsters Local 107, ‘‘Local 107 will take appro-
priate action necessary to protect its membership, in-
cluding economic action.’’ Based on its threat to take
‘‘economic action,’’ we conclude that there is reason-
able cause to believe that Teamsters Local 107 violated
Section 8(b)(4)(D) of the Act.3
The parties stipulate, and we find, that no mecha-
nism exists for resolving the dispute that would bind
all the parties. 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 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 the dispute.
1. Certification and collective-bargaining
agreements
The Board has not certified any union as the collec-
tive-bargaining representative of the Employer’s em-
ployees. Accordingly, the factor of certifications is not
helpful to a determination of the dispute.
The Employer has recognized Teamsters Local 107
as the exclusive bargaining representative of its em-
ployees and entered into a collective-bargaining agree-
ment with Teamsters Local 107 covering ‘‘all work’’
involved in the operation of the intermodal facility.
The Employer is neither a member of the PMTA nor
a party to any collective-bargaining agreements with
the ILA, and does not employ any ILA-represented
employees.
As noted above, however, the ILA alleges that the
Employer and HCS constitute a single employer or
alter egos. Accordingly, the ILA claims that its collec-
tive-bargaining agreement with HCS is relevant to the
instant dispute.
We find no merit to ILA’s contention that the Em-
ployer and HCS constitute a single employer or are
alter ego corporations. In determining the single em-
ployer issue, the Board looks at four principal factors:
(1) common management, (2) centralized control of
labor relations, (3) interrelation of operations, and (4)
common ownership or common financial control. Iron
Workers California District Council (Madison Indus-
tries), 307 NLRB 405 (1992); Rockwood Energy &
Mineral Corp., 299 NLRB 1136, 1138 (1990), enfd.
942 F.2d 173 (3d Cir. 1991). In cases where a close
familial relationship exists between the owners of two
companies, the Board focuses on whether the owners
of one company retain financial control over the oper-
ations of the other. Shellmaker, Inc., 265 NLRB 749,
754–755 (1982). Single-employer status depends on all
the surrounding circumstances and has been character-
ized as an absence of an arm’s-length relationship
among unintegrated companies. Fedco Freightlines,
273 NLRB 399 fn. 1 (1984), citing Blumenfeld Thea-
tres Circuit, 240 NLRB 206, 215 (1979), enfd. 626
F.2d 865 (9th Cir. 1980).
In applying the single-employer factors to the facts
presented, we find that the two corporations are not a
single employer. First, the Employer and HCS do not
share common management. John Belgiorno, a former
manager at CSX Intermodal with no ties to HCS, man-
ages the Employer’s day-to-day activities, hires em-
ployees, and maintains payroll accounts from his trailer
located on the Employer’s premises. Likewise, the Em-
ployer’s president, Leo Holt, does not hold any posi-
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion with HCS. Second, there was no evidence that
HCS and/or Thomas Holt Sr. have any influence over
the Employer’s hiring practices or labor relations.
Third, as to interrelation of operations, we find that
while the employees of the two Employers do similar
work in loading and unloading cargo, the daily oper-
ations of the two Employers are not interrelated. HCS
operates a waterfront marine terminal for the purpose
of loading and unloading cargo from ships, while the
Employer operates an intermodal railyard for the pur-
pose of loading and unloading railroad cars for the Ca-
nadian Pacific Railway. The Canadian Pacific Railway,
and not HCS, arranges for the containers to be deliv-
ered to the intermodal railyard. Finally, Thomas Holt
Sr. owns HCS and participated in the formation of the
Employer, but he currently has no ownership interest
in the Employer. Although members of his family own
50 percent of the Employer’s stock, there is no evi-
dence that Thomas Holt Sr. exercises any financial
control over the Employer’s operations. Thus, we find
that the factor of common ownership is not present.
Under these circumstances, we do not find that the
Employer and HCS constitute a single employer.
In determining whether an alter ego relationship ex-
ists, the Board considers the single-employer factors
discussed above, as well as the additional factors of
similar business purpose, the sharing of equipment,
customers, and supervision, and the presence or ab-
sence of evidence of unlawful motivation. First Class
Maintenance, 289 NLRB 484 (1988); Crawford Door
Sales Co., 226 NLRB 1144 (1976).
Based on the record as a whole, we find that the
Employer is not an alter ego of HCS. As discussed
above, the Employer and HCS have distinct business
purposes. HCS handles cargo for ships calling at the
Port of Philadelphia. The Employer consolidates and
loads cargo for the Canadian Pacific Railway. Al-
though 80 percent of the cargo delivered to the inter-
modal facility enters through the Packer Avenue Ma-
rine Terminal, cargo is also delivered from other Phila-
delphia-area marine terminals as well as from inland
locations unrelated to any port facility. The decision to
utilize the intermodal facility is that of the railroad and
not the steamship lines. There is no evidence that the
two corporations share equipment, customers, or have
common supervision. Further, the record shows that
the intermodal facility was established for the sole pur-
pose of loading and unloading cargo for the Canadian
Pacific Railway, so that the railroad could transport
cargo to various points in Canada more efficiently and
economically than shipping cargo directly to Halifax,
Nova Scotia. The work of loading cargo onto railcars
and consolidating the railcars into trains could not be
performed at the Packer Avenue terminal due to its
physical inability to handle long lines of railcars. Ac-
cordingly, after considering these additional factors, we
find that the Employer is not an alter ego of HCS.
In view of our finding that the Employer and HCS
do not have a single-employer or alter ego relationship,
we need not consider the PMTA-ILA Master Agree-
ment in determining the dispute. Thus, we find that the
factor of collective-bargaining agreements favors an
award of the work in dispute to employees represented
by Teamsters Local 107.
2. Employer preference and past practice
The Employer’s terminal manager testified that the
Employer prefers to use employees represented by
Teamsters Local 107 to perform the work in dispute.
Teamsters Local 107-represented employees have per-
formed this work since the Employer began operations
in June 1991. Accordingly, we find that the factor of
employer preference and past practice favors an award
of the disputed work to employees represented by
Teamsters Local 107.
3. Area and industry practice
The record shows that the ILA has contracts with
two employers engaged in the operation of intermodal
facilities in Maryland and New Jersey, and that Team-
sters Local 107 has approximately seven contracts with
intermodal operators in New Jersey, Pennsylvania, and
Maryland. Based on this evidence, we find that this
factor does not favor an award of the disputed work
to employees represented by either Union.
4. Relative skills
The Employer’s terminal manager testified that he
observed employees represented by Teamsters Local
107 satisfactorily perform work similar to the work in
dispute when he was employed as a manager at CSX
Intermodal, although he also testified that he was unfa-
miliar with the skills of ILA-represented employees.
ILA Local 1566 President James Paylor testified that
employees represented by the ILA possess the skills
and experience necessary to efficiently perform the dis-
puted work, and have in fact performed similar work
at the Packer Avenue and Gloucester marine terminals.
Based on this testimony, it appears that both groups of
employees are sufficiently skilled to perform the work
in dispute. Therefore, we find that this factor does not
favor either group.
5. Economy and efficiency of operations
The Employer presented evidence that it is more ef-
ficient and economical for the Employer to assign the
work in dispute to employees represented by Team-
sters Local 107. The Employer presently operates with
seven Teamsters-represented employees and two man-
agers. HCS Director of Stevedoring Walter Curran tes-
tified that pursuant to ILA contractual manning re-
5LONGSHOREMEN ILA LOCAL 1242 (RAIL DISTRIBUTION CENTER)
4 The Employer also argues that it would be more economical to
award the disputed work to employees represented by Teamsters
Local 107 because their hourly rates are lower than employees rep-
resented by ILA locals. The Board does not consider wage differen-
tials as a basis for awarding disputed work. Painters Local 91
(Frank M. Burson, Inc.), 265 NLRB 1685, 1687 (1982); Stage Em-
ployees Local 1 IATSE (American Broadcasting Co.), 249 NLRB
1090, 1093 (1980).
quirements, the same job with ILA labor would require
the employment of 13 employees.4 Based on the evi-
dence presented, we find that this factor favors award-
ing the disputed work to employees represented by
Teamsters Local 107.
6. Gain or loss of employment
Employees represented by Teamsters Local 107 are
currently performing the work in dispute. An award of
this work to employees represented by the ILA would
result in the loss of employment for all the employees
currently performing the work. Conversely, an award
of the disputed work to employees represented by
Teamsters Local 107 would cause no discernible loss
to ILA-represented employees because they are not
currently employed by the Employer and have not
been utilized by the Employer to perform the work in
dispute at any time. We find that this factor favors an
award of the work to employees represented by Team-
sters Local 107.
Conclusion
After considering all the relevant factors, we con-
clude that employees represented by Teamsters Local
107 are entitled to perform the work in dispute. We
reach this conclusion by relying on the factors of em-
ployer preference, past practice, economy and effi-
ciency of operations, gain or loss of employment, and
the collective-bargaining agreement between the Em-
ployer and Teamsters Local 107. In making this deter-
mination, we are awarding the work to employees rep-
resented by Teamsters Local 107, not to the Union or
its members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Rail Distribution Center, Inc., rep-
resented by Highway Truck Drivers and Helpers, Local
107, affiliated with International Brotherhood of Team-
sters, AFL–CIO, are entitled to perform the work of
loading and unloading containers and/or road trailers
on and off of railcars and truck chassis; securing and
unsecuring of containers and/or road trailers on and off
of rail trucks and truck chassis; driving containers and
road trailers into and out of the adjacent marine ter-
minal and other locations; and the clerking and check-
ing related to such work at Rail Distribution Center,
Inc. in Philadelphia, Pennsylvania.