Longshoremen ILA Local 1332 (Trailer Marine)

National Labor Relations Board - Board Decisions

Feb 21, 1984

268 N.L.R.B. 991 (N.L.R.B. 1984)

LONGSHOREMEN ILA LOCAL 1332 (TRAILER MARINE)
Local 1332, International Longshoremen's Associa-
tion, AFL-CIO and Trailer Marine Transport
Corporation and United Industrial Workers,
Service Transportation, Professional and Gov-
ernment of North America, SIUNA-AGLIWD,
AFL-CIO
Local 1291, International Longshoremen's Associa-
tion, AFL-CIO and Trailer Marine Transport
Corporation and United Industrial Workers,
Service Transportation, Professional and Gov-
ernment of North America, SIUNA-AGLIWD,
AFL-CIO
Local 1242, International Longshoremen's Associa-
tion, AFL-CIO and Trailer Marine Transport
Corporation and United Industrial Workers,
Service Transportation, Professional and Gov-
ernment of North America, SIUNA-AGLIWD,
AFL-CIO. Cases 4-CD-547, 4-CD-548, and
4-CD-549
21 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
Upon charges filed 10 February 1982 by Trailer
Marine Transport Corporation, herein called the
Employer or TMT, and duly served on Local
1332, International Longshoremen's Association,
AFL-CIO; Local 1291, International Longshore-
men's Association, AFL-CIO; and Local 1242,
International Longshoremen's Association, AFL-
CIO, herein called the Respondents, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 4, issued an
order consolidating cases and consolidated com-
plaint and notice of hearing on 30 November 1982
against the Respondents, alleging that the Respond-
ents had engaged in and were engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(bX4Xi) and (ii)(D) and Sec-
tion 2(6) and (7) of the National Labor Relations
Act. Copies of the charges and consolidated com-
plaint and notice of hearing before an administra-
tive law judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that the Respondents
violated the Act by picketing/, the Employer's
Petty's Island, Pennsauken, New Jersey terminal
with an object of forcing or requiring the Employ-
er to assign the loading and unloading of trailers on
and off oceangoing barges and the maintenance and
inspection of said trailers to employees represented
by the Respondents rather than to employees rep-
resented by United Industrial Workers, Service
Transportation, Professional and Government of
268 NLRB No. 148
North America, SIUNA-AGLIWD, AFL-CIO,
herein called SIU. The complaint further alleges
that the Respondents have failed and refused to
abide by the Board's 29 September 1982 Decision
and Determination of Dispute' which awarded the
disputed work to employees represented by SIU,
by failing to comply with the aforesaid decision,
and by advising the Regional Director for Region
4 that they will not comply with the aforesaid deci-
sion. Subsequently, the Respondents filed their
answer to the complaint, admitting in part and de-
nying in part the allegations of the complaint and
asserting that all actions by the Respondent were
for the sole purpose of preserving and protecting
their historic work jurisdiction, that SIU unlawful-
ly coerced the Employer into recognizing SIU as
representative of its employees, or, alternatively,
that the Employer and SIU entered into an illegal
prehire agreement and thereafter hired indiviudals
presented to it by SIU.
On 31 May 1983 counsel for the General Coun-
sel filed directly with the Board motions to transfer
and continue the matter before the Board, for sum-
mary judgment, and to strike portions of the Re-
spondents' answer. The General Counsel submits,
in essence, that the Respondents' answer raises no
questions of fact requiring a hearing, that the Re-
spondents admit their failure to comply with the
Decision and Determination of Dispute, and that
the Respondents are seeking to relitigate issues pre-
viously considered in the underlying 10(k) proceed-
ing. The General Counsel further moves the Board
to strike the Respondents' answer to the extent that
it denies that the Respondents' representatives de-
manded the work in dispute and the alleged unlaw-
ful object of the picketing and asserts that recogni-
tion of SIU by the Employer and the agreement
between SIU and the Employer are unlawful. On 2
June 1983 the Board issued an order transferring
the proceeding to the Board and a Notice To
Show Cause why the General Counsel's motion
should not be granted. Thereafter, the Respondent
filed a response and memorandum in support there-
of in which the Respondents reiterated their con-
tentions that the activity complained of was in an
effort to preserve work and work opportunities his-
torically held by the Respondents and, thus, was
protected activity and that recognition of SIU by
the Employer was unlawful.2 The Respondents
I Longshoremen ILA Local 1332 (Trailer Marine Transport Ca), 264
NLRB 319 (1982).
' The Respondents also noted that, in related proceedings involving
the same facts and parties, they filed two motions to reopen the record
seeking in essence, to submit additional evidence concerning the alleged-
ly unlawful recognition of SIU by the Employer, and that the Board had
not ruled on these motions at the time the response and the memorandum
Continued
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further submit that on 20 April 1983 both parties
having agreed to a formal hearing before the
AFL-CIO Executive Council, AFL-CIO President
Lane Kirkland made a final and binding determina-
tion that SIU and its affiliates should disclaim its
representational rights at the Employer's Petty's
Island terminal. The Respondents contend that this
determination raises serious issues of fact and ren-
ders the Board's Decision and Determination of
Dispute no longer viable; they further argue that
for these reasons the General Counsel's Motion for
Summary Judgment and motion to strike portions
of the Respondents' answer should be denied.
Thereafter, the Board granted the Employer leave
to file a response to the Respondents' answer and
memorandum. In its reply, the Employer contends
that the Executive Council's determination dealt
only with "representation rights," did not purport
to award the work to any group of employees, and
therefore was not necessarily inconsistent with the
Board's determination. It further argues that the
Executive Council's determination has no legal
effect on the Board's proceedings as it impinges on
the Board's exclusive jurisdiction with respect to
representation matters. It thus contends that the
Executive Council's decision is irrelevant and that
the Motion for Summary Judgment should be
granted as Respondents have raised no issue not
previously considered.
Ruling on Motions to Strike and for Summary
Judgment
Review of the record in this proceeding and of
the record in the underlying 10(k) proceeding s in-
dicates that a hearing was held pursuant to Section
10(k) of the Act at which all parties appeared and
were afforded full opportunity to be heard, to
cross-examine witnesses, and to adduce evidence
bearing on the issues. On 29 September 1982 the
Board issued its Decision and Determination of
Dispute finding, inter alia, the existence of a jurisi-
dictional dispute involving the Respondents and
SIU and that there was reasonable cause to believe
that Section 8(b)(4)(D) of the Act had been violat-
ed. After due consideration of the relevant factors,
the Board awarded the disputed work to employ-
ees represented by SIU and determined that the
Respondents were not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
the Employer to assign the disputed work to em-
ployees represented by them.
in this case were filed. Subsequently, the Board issued its decision in
Longshoremen ILA Local 1291 (Trailer Marine Transport Corp.), 266
NLRB 1204 (1983), in which it denied these motions.
I The Board's taking official notice of the record in the 10(k) proceed-
ing and reliance thereon is well-settled. Electrical Workers IBEW Local 3
(Mansfield Contracting Corp.), 206 NLRB 423 (1973).
As noted above, in their answer to the complaint
and response to the Notice to Show Cause, the Re-
spondents admit that they have refused and contin-
ue to refuse to comply with the Board's Decision
and Determination of Dispute but deny that they
have engaged in unfair labor practices within the
meaning of Section 8(b)(4)(D).4
By their denials and assertions, the Respondents
seek to place in issue matters which, on review of
the record in the 10(k) proceeding, are shown to
have been raised and litigated therein. As noted
above, Respondents appeared in that proceeding
and were provided with a full opportunity to liti-
gate these issues. They offer no evidence herein
which was not presented in that proceeding. s It is
well settled that issues raised and litigated in a
10(k) proceeding may not be relitigated in a subse-
quent unfair labor practice proceeding, alleging
violations of Section 8(bX4)(D) which are based in
part on factual determinations made in the 10(k)
proceeding. 6 Accordingly, inasmuch as Respond-
ents are attempting to relitigate issues settled in the
underlying 10(k) proceeding, we shall grant the
General Counsel's motion to strike portions of the
Respondents' answer relating to the above matters.
Further, in the 10(k) proceeding we found rea-
sonable cause to believe that the Respondents had
violated Section 8(b)(4)(D) of the Act. The evi-
dence on which the finding is based is, as noted
above, neither controverted nor supplemented in
this proceeding. Thus, the evidence establishes, and
4 In their answer, the Respondents deny that their representatives "de-
manded" that the Employer assign the disputed work to employees rep-
resented by them. However, at the 10(k) hearing, ILA representative
John Resta admitted telling the Employer's official that the ILA had ju-
risdiction on the Philadelphia waterfront, that the Employer's operations
came under ILA jurisdiction, and that he could not allow the Employer
to "take jobs away" from the ILA. Further, the Respondents' answer
clearly states that ILA representatives advised TMT that the Respond-
ents' historic work jurisdiction involved loading and unloading of vessels
and that, if this type of work were performed at the terminal, the ILA
would preserve and protect its work jurisdiction.
' With regard to the Respondents' contentions regarding the AFL-
CIO Executive Council's determination, we note that the determination
did not purport to award the work in dispute to a group of employees
but expressly addressed representation rights, a matter within our exclu-
sive jurisdiction. We further note that not all parties herein involved par-
ticipated in the AFL-CIO Executive Council proceeding and that SIU
has not disclaimed the work in dispute. Accordingly, we find that the de-
termination by the AFL-CIO Executive Council has no force and effect
on our previous determination in the lO(k) proceeding and is irrelevant to
a determination in the instant case.
6 Electrical Workers IBEW Locals (Mansfield Contracting Corp.), supra;
Bricklayers Union I (Shelby Marble d Tile Cao.), 195 NLRB 123 (1972),
enfd. 475 F.2d 1316 (D.C. Cir. 1973).
Further, in ILA Local 1291 (Trailer Marine Transport), supra, the Board
found that recognition of SIU by TMT was not unlawful. That litigation,
at which all parties were given full opportunity to present evidence and
litigate the issues, involved the same parties as involved herein and dealt
with the same conduct as herein alleged. Accordingly, under the princi-
ples of collateral estoppel, our previous findings concerning the parties'
conduct are controlling in this proceeding. See Longshoremen ILA Local
13 (California Cartage Co.), 215 NLRB 541 (1974).
992
LONGSHOREMEN ILA LOCAL 1332 (TRAILER MARINE)
we find, that the Respondents have engaged in
conduct in violation of Section 8(b)(4)(i) and (ii)(D)
of the Act.7 As there are no issues properly litiga-
ble in this proceeding, we grant the General Coun-
sel's Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Employer, a Delaware corporation, with its
office and principal place of business in Jackson-
ville, Florida, is engaged in loading and discharg-
ing oceangoing barges at various terminals in the
United States and foreign countries. During the 12
months preceding issuance of the complaint, a rep-
resentative period, the Employer, in the course and
conduct of its operations, received gross revenues
in excess of $1 million and received in excess of
$50,000 for performing services outside the State of
Florida.
We find that the Employer is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 1332, International Longshoremen's Asso-
ciation, AFL-CIO, Local 1291, International
Longshoremen's Association, AFL-CIO; and
Local 1242, International Longshoremen's Associa-
tion, AFL-CIO, and United Industrial Workers,
Service Transportation, Professional and Govern-
ment of North America, SIUNA-AGLIWD,
AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Facts of the Dispute
At all times material hereto the Respondents and
SIU have had a jurisdictional dispute concerning
work involving the movement of trailers on and off
oceangoing barges and the maintenance and inspec-
tion of said trailers at the Employer's Petty's
Island, Pennsauken, New Jersey terminal. In Feb-
ruary 1982, in conversations with officials of the
I In the 10(k) proceeding, the Respondents stipulated to the introduc-
tion of certain evidence for the purposes of establishing that reasonable
cause existed to believe that Sec. 8(bX4XD) had been violated, and they
do not now contest the Board's finding that such reasonable cause exist-
ed. Accordingly, and in view of the Respondents' admission in their
answer that they have refused to comply with the Board's Decision and
Determination of Dispute, we find that their conduct was intended to
force and require the Employer to assign the disputed work to employees
represented by them rather than to employees represented by SIU, re-
spectively, and therefore was for an objective proscribed by Sec.
8(bX4Xi) and (iiXD) of the Act.
Employer, individuals identifying themselves as
representatives of the International Longshore-
men's Association (ILA) claimed the work for the
ILA and from 8 February to 22 February 1982 the
ILA locals picketed with an object to force or re-
quire the Employer to assign the disputed work to
employees who are members of or are represented
by the Respondents rather than to employees rep-
resented by SIU.
B. The Determination of the Dispute
On 29 September 1982 the Board issued a Deci-
sion and Determination of Dispute (264 NLRB
319) finding that employees represented by SIU are
entitled to perform the disputed work and that the
Respondents were not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
the Employer to assign the disputed work to em-
ployees represented by them.
C. The Respondent's Refusal to Comply
In addition to their picketing from 8 to 22 Febru-
ary 1982, the Respondents have informed the Re-
gional Director for Region 4 of their intent not to
comply with the above-mentioned Decision and
Determination of Dispute. The Respondents there-
by have not complied with the award and continue
to demand the disputed work.
CONCLUSIONS OF LAW
1. Trailer Marine Transport Corporation is an
employer engaged in commerce within the mean-
ing of Sections 2(6) and (7) and 8(b)(4) of the Act.
2. Local 1332, International Longshoremen's As-
sociation, AFL-CIO; Local 1291, International
Longshoremen's Association, AFL-CIO; Local
1242, International Longshoremen's Association,
AFL-CIO, and United Industrial Workers, Service
Transportation, Professional and Government of
North America, SIUNA-AGLIWD, AFL-CIO,
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
3. By inducing or encouraging employees of
Trailer Marine Transport Corporation and other
persons engaged in commerce or in industries af-
fecting commerce to engage in a strike or a refusal
in the course of their employment to use, manufac-
ture, transport, or otherwise handle or work on
any goods, articles, materials, or commodities, or
to perform services, and by threatening, coercing,
and restraining Trailer Marine Transport Corpora-
tion and other persons engaged in commerce or in
industries affecting commerce, with an object of
forcing or requiring Trailer Marine Transport Cor-
poration to assign the disputed work to employees
represented by them and by failing and refusing to
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comply with the Board's Decision and Determina-
tion of Dispute, the Respondents have engaged in
and are engaging in unfair labor practices within
the meaning of Section 8(b)(4)(i) and (ii)(D) of the
Act.
4. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondents have en-
gaged in and are engaging in unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(D)
of the Act, we shall order it to cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that
the Respondents, Local 1332, International Long-
shoremen's Association, AFL-CIO, Local 1291,
International Longshoremen's Association, AFL-
CIO, and Local 1242, International Longshore-
men's Association, AFL-CIO, Philadelphia, Penn-
sylvania, their officers, agents, and representatives,
shall
1. Cease and desist from
(a) Inducing or encouraging individuals em-
ployed by Trailer Marine Transport Corporation,
or any other person engaged in commerce or an in-
dustry affecting commerce, to engage in a strike or
refusal in the course of their employment to use,
manufacture, transport, or otherwise handle or
work on any goods, articles, materials, or commod-
ities, or to perform services.
(b) Threatening, coercing, or restraining Trailer
Marine Transport Corporation, or any other person
engaged in commerce or in an industry affecting
commerce, where in either case, an object thereof
is to force or require Trailer Marine Transport
Corporation to assign work involving the move-
ment of trailers on and off oceangoing barges and
the maintenance and inspection of said trailers at its
Petty's Island, Pennsauken, New Jersey terminal to
employees who are members of, or represented by,
the above-named Locals rather than to employees
represented by the United Industrial Workers,
Service Transportation, Professional and Govern-
ment of North America, SIUNA-AGLIWD,
AFL-CIO.
(c) Refusing to comply with the Board's Deci-
sion and Determination of Dispute as set forth at
264 NLRB 319.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Post at their business offices and meetings
halls copies of the attached notice marked "Appen-
dix." s Copies of the notice, on forms provided by
the Regional Director for Region 4, after being
signed by the Respondents' authorized representa-
tive, shall be posted by the Respondents immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Furnish the Regional Director for Region 4
signed copies of such notice for posting by the Em-
ployer, if willing, in places where notices to em-
ployees are customarily posted.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps have been taken to comply herewith.
8 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage individuals
employed by Trailer Marine Transport Corpora-
tion, or any other person engaged in commerce or
an industry affecting commerce, to engage in a
strike or refusal in the course of their employment
to use, manufacture, transport, or otherwise handle
or work on any goods, articles, materials, or com-
modities, or to perform services.
WE WILL NOT threaten, coerce, or restrain Trail-
er Transport Corporation, or any other person en-
gaged in commerce in an industry affecting com-
merce, where, in either case, an object thereof is to
force or require Trailer Marine Transport Corpora-
tion to assign work involving movement of trailers
on and off oceangoing barges and the maintenance
and inspection of said trailers at its Petty's Island,
Pennsauken, New Jersey terminal to employees
who are members of or are represented by Local
994
LONGSHOREMEN ILA LOCAL 1332 (TRAILER MARINE)
1332, International Longshoremen's Association,
AFL-CIO; Local 1291, International Longshore-
men's Association, AFL-CIO; or Local 1242,
International Longshoremen's Association, AFL-
CIO, rather than to employees who are members
of, or are represented by, United Industrial Work-
ers, Service Transportation, Professional and Gov-
ernment of North America, SIUNA-AGLIWD,
AFL-CIO.
WE WILL NOT refuse to comply with the Board's
Decision and Determination as set forth at 264
NLRB 319 (1982).
LOCAL 1332, INTERNATIONAL LONG-
SHOREMEN'S ASSOCIATION, AFL-CIO
LOCAL 1291, INTERNATIONAL LONG-
SHOREMEN'S ASSOCIATION, AFL-CIO
LOCAL 1242, INTERNATIONAL LONG-
SHOREMEN'S ASSOCIATION, AFL-CIO
99"