Longshoremen ILA Local 333 (Rukert Terminals)

National Labor Relations Board - Board Decisions

Dec 15, 1983

268 N.L.R.B. 366 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen's Association, Local
333, AFL-CIO and Rukert Terminals Corpora-
tion and International Longshoremen's' Asso-
ciation, Local 1429, AFL-CIO. Case 5-CD-276
15 December 1983
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The charge in this Section 10(k) proceeding was
filed 24 May 1983 by the Employer, alleging that
the Respondent, International Longshoremen's As-
sociation, Local 333, AFL-CIO, (Local 333), vio-
lated Section 8(b)(4)(D) of the National Labor Re-
lations Act by engaging in proscribed activity with
an object of forcing the Employer to assign certain
work to employees it represents rather than to em-
ployees represented by International Longshore-
men's Association, Local 1429, AFL-CIO (Local
1429). The hearing was held 29 June 1983 before
Hearing Officer Gary L. Simpler.
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 find-
ings.
1. JURISDICTION
The Company, a Maryland corporation, is en-
gaged in a pier and warehousing operation in the
Port of Baltimore, Maryland, where it annually
provides services to companies in interstate and
foreign commerce valued in excess of $50,000. The
parties stipulate, and we find, that the Employer is
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that Local 333 and
Local 1429 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer's primary business is the ware-
housing of cargo which has been unloaded from
ships. The work of unloading cargo at the Employ-
er's pier is performed as follows: A cargo owner
contracts with a stevedoring company, whose em-
ployees are represented by Local 333, to unload
cargo from a ship and with the Employer, whose
employees are represented by Local 1429, to ware-
house cargo. When a ship docks, employees repre-
Despite notice, Local 1429 did not appear at the hearing.
268 NLRB No. 52
sented by Local 333 unload the cargo from the
ship onto the pier and then move it with the steve-
doring company's forklifts to an intermediate point
of rest to avoid congestion on the pier. Usually the
intermediate point of rest is to the side of the un-
loading area or just inside the warehouse doors.
When cargo reaches its intermediate point of rest,
employees represented by Local 1429, using the
Employer's forklifts, move it to its final point of
rest either inside the warehouse or in the outside
storage yard.
On 12 May 1983, employees of ITO Corporation
(a stevedoring company), who are represented by
Local 333, began unloading the cargo of the ship
Norad Thor onto the pier and placing it at its inter-
mediate point of rest and the Employer's employ-
ees began moving the cargo to its final point of
rest. According to the Employer, around 2 p.m.
Garris McFadden, president of Local 333, ordered
the four or five employees represented by Local
1429 who were transporting the cargo to its final
point of rest to stop working and instructed the
employees represented by Local 333 to carry the
cargo all the way to its final point of rest. McFad-
den denies ordering the employees represented by
Local 1429 to stop transporting the cargo. Shortly
thereafter, George F. Nixon Jr., the Employer's ex-
ecutive vice president, approached McFadden
where the Norad Thor cargo was being unloaded.
According to Nixon, McFadden told him that
under a new procedure employees represented by
Local 333 would transport the cargo all the way to
its final point of rest and that if employees repre-
sented by Local 1429 loaded the cargo he would
pull his men off the job. McFadden denies making
this statement as well. Thereafter, employees repre-
sented by Local 333 unloaded all the cargo from
the Norad Thor and transported it to its final point
of rest.
B. Work in Dispute
The disputed work involves the movement of
cargo which is discharged off a ship onto the
wharf or pier to its final point of rest in a ware-
house or storage yard. This work is performed
with the use of forklifts. The cargo is stored at var-
ious locations inside of the warehouse, or at points
around the storage yard at the direction of Rukert
and in compliance with the specifications ordered
by the shipper.
C. Contentions of the Parties
The Employer contends there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated
and that the dispute is properly before the Board.
Regarding the merits of the dispute, the Employer
366
LONGSHOREMEN ILA LOCAL 333 (RUKERT TERMINALS)
contends that the disputed work should be award-
ed to its employees who are represented by Local
1429 based on: its collective-bargaining agreement
with Local 1429 and the lack of any collective-bar-
gaining agreement with Local 333; employer past
practice; relative skills and economy and efficiency
of operations; and the absence of any joint board
determinations, union agreements, or arbitration de-
cisions bearing on the dispute.
In essence, Local 333 contends that this case is
not properly before the Board because its actions
"have not harmed the Employer" and because
Local 1429 has not asked the Board to award the
work in dispute to employees represented by it.
Regarding the merits of the dispute, Local 333 con-
tends that employees represented by it should be
awarded the disputed work based on: a determina-
tion by the Baltimore District Council of the Inter-
national Longshoremen's Association, Local 1429's
collective-bargaining agreement, employer past
practice, area practice, and economy and efficiency
of operations.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
As noted above, according to the Employer's ex-
ecutive vice president, Local 333's president,
McFadden, threatened a work stoppage if employ-
ees represented by Local 333 were not permitted to
do the disputed work. An employee represented by
Local 1429 also testified that McFadden ordered
them to stop doing the disputed work. Since
McFadden denied making either of these state-
ments, there is a conflict in testimony over whether
Section 8(b)(4)(D) has been violated. It is well set-
tled, however, that a conflict in testimony does not
prevent the Board from proceeding under Section
10(k), for, in such cases, the Board is required to
find only that there is reasonable cause to believe
that the Act has been violated.2 Accordingly, with-
out making a credibility resolution, we find, based
on the foregoing evidence, and the record as a
whole, that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated.3
I Operating Engineers Local 139 (McWad Inc.), 262 NLRB 1300, 1302
fn. 6 (1982).
s There is no evidence or contention that either Local 1429 or the em-
ployees it represents have disclaimed the disputed work. On the contrary.
two of the employees represented by Local 1429 testified in support of an
award of such work to them. Accordingly, we find no merit in Local
333's contention that the Board should not proceed because Local 1429
As noted above, Local 333 contends that the
Board should not proceed because the Baltimore
District Council of the International Longshore-
men's Association has awarded the disputed work
to the employees whom it represents rather than
the employees represnted by Local 1429. Section
10(k) of the Act empowers the Board to hear juris-
dictional disputes unless "the parties to such dis-
pute submit to the Board satisfactory evidence that
they have adjusted, or agreed upon methods for
the voluntary adjustments of the dispute." Al-
though Local 333 claims that the Baltimore Dis-
trict Council sent a letter to the Board stating its
determination after holding a hearing at which it
and Local 1429 participated, Local 333 has failed
to introduce either a copy of such letter or any
other documentary evidence verifying the Balti-
more District Council's determination. Moreover,
as Local 333 admitted, the Employer does not have
a collective-bargaining agreement with it and did
not participate in whatever proceeding took place
before the Baltimore District Council. According-
ly, we find that there is no agreed-upon method for
voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act and that this
dispute is properly before the Board for determina-
tion.
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 Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved in
this dispute has been certified by the Board as the
collective-bargaining representative of the Employ-
er's employees in an appropriate unit. The Employ-
er currently has a collective-bargaining agreement
with Local 1429 covering the wages and working
conditions of the employees in its warehouse oper-
ating department. Section 12(d) of their collective-
bargaining agreement provides:
has not asked the Board to award the work to the employees it repre-
sents.
367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Checkers, tractor drivers, or forklift operators
working simultaneously and in conjunction
with longshoremen on the pier, loading or dis-
charging a vessel, or receiving cargo delivered
to the warehouse by a longshoremen driver
shall be paid the front door rate.
The employees who have been performing the dis-
puted work are "forklift operators" and have been
paid the "front door rate" in accordance with the
foregoing provision of the contract. The Employer
notes that the foregoing provision expressly con-
templates that employees represented by Local 333
will carry cargo only as far as the "front door" of
the warehouse, where it will be received by em-
ployees represented by Local 1429. Accordingly,
we find that the collective-bargaining agreement
between the Employer and Local 1429 specifically
encompasses the work in dispute. The record fur-
ther indicates that the Employer has no collective-
bargaining agreement with Local 333. We there-
fore find that the factor of collective-bargaining
agreements favors an award of the disputed work
to the Employer's employees who are represented
by Local 1429.
2. Company preference and past practice
The record indicates that the Employer has his-
torically assigned the disputed work to its own em-
ployees represented by Local 1429. Although
Local 333 presented evidence that the employees it
represents have carried bagged cargo into the Em-
ployer's warehouse and then piled the bags, the
Employer presented unrefuted evidence that this
kind of work has not been done for 18 years. Based
on the foregoing, we find that the Employer's past
practice favors an award of the disputed work to
its employees represented by Local 1429.
At the hearing and in its brief, the Employer ex-
pressed its preference that the disputed work con-
tinue to be performed by its employees represented
by Local 1429. While we do not afford controlling
weight to this factor, we find it favors an award of
the work in dispute to employees represented by
Local 1429.
3. Area and industry practice
Local 333 contends that area practice supports
its claim to the disputed work. Local 333 presented
evidence that the practice in other facilities was for
employees represented by Local 333 to unload
cargo and transport it to its final resting point. The
Employer contends that the area practice is not rel-
evant because the Employer's facility is unique.
The Employer presented uncontradicted evidence
that it operates the only privately owned marine
terminal and warehouse which handles bulk freight
and which specializes in long-term storage, sorting
of cargo, and order picking for customers. Accord-
ingly, we find that the factor of area practice is not
helpful to our determination.
4. Relative skills and economy and efficiency
of operations
The record contains uncontradicted evidence
that employees represented by both Local 333 and
Local 1429 operate forklifts. The Employer, how-
ever, presented uncontradicted evidence that its
employees have been trained in the proper proce-
dures for sorting and storing cargo. Local 333 pre-
sented no evidence that employees represented by
it are familiar with such procedures. We therefore
find that the factor of relative skills favors an
award of the disputed work to employees repre-
sented by Local 1429.
With respect to economy and efficiency of oper-
ations, the Employer presented uncontradicted evi-
dence that the composition of the Local 333 gang
varies from vessel to vessel depending on the steve-
doring company hired by the cargo owner and the
gang members available, and that it would be more
efficient and economical to have its regular em-
ployees perform the disputed work. Furthermore,
as noted above, the latter employees already have
been trained in the proper procedures for sorting
and storing cargo. Local 333 argues it is more eco-
nomical to have employees represented by it per-
form the work since the work would be covered
by the stevedoring company's bill to the cargo
owner. However, it makes no showing that an
award of the work in dispute to employees repre-
sented by it in fact would be as economical as an
award to employees represented by Local 333.
We find, therefore, that the factor of economy
and efficiency of operations favors an award of the
disputed work to the employees represented by
Local 1429.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Local
1429 are entitled to perform the work in dispute.
We reach this conclusion relying on the Employ-
er's collective-bargaining agreement with Local
1429, company preference and past practice, rela-
tive skills, and economy and efficiency of oper-
ations. In making this determination, we are award-
ing the work to employees represented by Local
1429, not to that Union or its members. The deter-
mination is limited to the controversy that gave
rise to this proceeding.
368
LONGSHOREMEN ILA LOCAL 333 (RUKERT TERMINALS)
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Rukert Terminals Corporation
represented by the International Longshoremen's
Association, Local 1429, AFL-CIO, are entitled to
move cargo from its intermediate point of rest on
the pier to its final point of rest in a warehouse or
storage yard of Rukert Terminals Corporation in
Baltimore, Maryland.
2. International Longshoremen's Association,
Local 333, AFL-CIO, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
Rukert Terminals Corporation to assign the disput-
ed work to employees represented by it.
3. Within 10 days from this date, International
Longshoremen's Association, Local 333, AFL-
CIO, shall notify the Regional Director for Region
5 in writing whether it will refrain from forcing
the Employer, by means proscribed by Section
8(bX4)(D), to assign the disputed work in a manner
inconsistent with this determination.
369