Longshoremen Ila Local 928 (Buffalo Stone)

National Labor Relations Board - Board Decisions

Oct 26, 1988

291 N.L.R.B. 445 (N.L.R.B. 1988)

LONGSHOREMEN ILA LOCAL 928 (BUFFALO STONE)
International Longshoremen 's Association, AFL-
CIO, Local 928 and Buffalo Crushed Stone,
Inc (and Gateway Trade Center, Inc, a Sister
Corporation) and International Union of Oper
ating Engineers, Local 17, 17A and 17B and
Truck Drivers Local Union No 449, affiliated
with the Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, affili
ated with the AFL-CIO Cases 3-CD-587-1
and 3-CD-587-2
October 26 1988
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The charges in this Section 10(k) proceeding
were filed on June 13 1988 by Buffalo Crushed
Stone Inc (or the Employer) alleging that the Re
spondent International Longshoremen s Associa
tion AFL-CIO Local 928 (ILA Local 928) 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 Union of Op
erating Engineers Local 17 17A and 17B and
Truck Drivers Local Union No 449 affiliated with
the Brotherhood of Teamsters Chauffeurs Ware
housemen and Helpers of America affiliated with
the AFL-CIO The hearing was held on July 29
1988 before Hearing Officer Reva W Betha
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board affirms the hearing officers rulings
finding them free from prejudicial error On the
entire record the Board makes the following find
rags
I JURISDICTION
Buffalo Crushed Stone Inc a New York State
corporation with its principal place of business in
Buffalo New York is engaged in the retail and
nonretail sale and distribution of slag stone and
blacktop and in providing services to the Gateway
Trade Center Inc and other business enterprises
It annually derives gross revenues in excess of
$500 000 for services sales and distribution and
purchases and receives goods and materials valued
in excess of $50 000 directly from points outside
the State of New York
We find the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that ILA Local 928 Operating Engineers
Local 17/17A/17B and Truck Drivers Local 449
445
are labor organizations within the meaning of Sec
tion 2(5) of the Act
II THE DISPUTE
A Background and Facts of Dispute
About 3 years ago Gateway Trade Center'
(Gateway) was formed and began operating Gate
way Metroport Center a part of the Port of Buffa
lo that formerly had been operated by a public au
thority Gateway employs no operational employ
ees Work at the port is done for Gateway by Buf
falo Crushed Stone Inc whose employees are rep
resented by Operating Engineers Local
17/17A/17B and Truck Drivers Local 449 Em
ployees who are represented by Operating Engi
neers Local 17/17A/17B handle all the mobile lifts
and equipment including cranes shovels front end
loaders forklifts ships gear and dock equipment in
unloading ships and railcars Employees who are
represented by Truck Drivers Local 449 operate
all conveyors crushers screeners and trucks in the
movement of material to and from ships railcars
and storage sites and perform all manual labor on
ships and docks when loading and unloading cargo
until equipment manned by employees represented
by Operating Engineers Local 17/17A/17B takes
over Both groups of employees repair the equip
ment they operate
Richard Mirabelli vice president of both the
Employer and Gateway as well as other Employer
witnesses testified that on June 10 1988 Michael
Brill president of ILA Local 928 and five other
men established a floating picketline near the
Gateway Metroport They displayed a sign that
read Unemployed Longshoremen protesting
working conditions and wages A freighter the
Silver Leader was scheduled to dock on that day
Due to the picket line the pilot of the Silver
Leader and two tugboat captains refused to guide
the ship into the port
Mirabelli also testified that on June 10 1988
Brill told him [T]he ILA will handle that ship or
nobody else is going to handle that ship [Brill] said
that s going to be [ILA] work or [the Silver
Leader] isn t coming in Mirabelli added that Brill
also told him [A]ll the ships that come in here are
going to be our ships or you aren t going to get
any Following this conversation Brill and the
other men returned to the boat and continued pick
eting After additional unsuccessful attempts to
' Buffalo Crushed Stone Co Inc and Gateway Trade Center are sister
corporations with common officers Their parent corporation is 2544
Clinton Street Inc in Buffalo
291 NLRB No 76
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
enter the port 2 the Silver Leader proceeded to
Detroit where its cargo was shipped overland to
Buffalo
B The Work in Dispute
The work in dispute is the loading and unloading
of ships and the transfer of material onto and off of
the dock at the Gateway Metroport Center 3
C Contentions of the Parties
The Employer contends that the disputed work
should be awarded to the employees represented
by Operating Engineers Local 17/17A/17B and
Truck Drivers Local 449 on the basis of the Em
ployer s practice collective bargaining agreements
and certifications skill and safety and economy
and efficiency of operation Truck Drivers Local
449 and Operating Engineers Local 17/17A/17B
concur in supporting the Employers work assign
ment ILA Local 928 did not send a representative
to the hearing or file a brief
D Applicability of the Statute
Before the Board proceeds with a determination
of a 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 there is no agreed on method for the vol
untary adjustment of the dispute
Witnesses for the Employer testified that on June
10 1988 ILA Local 928 established a floating
picketline that prevented a vessel from entering
the Gateway Metroport Further, the Employer
was threatened by ILA Local 928 s president that
the ship would not dock unless the ILA did the
work of unloading and handling the steel and that
performing the disputed work on all ships coming
into the port would be done by the ILA or not at
all There is reasonable cause to believe that an
object of the picketing and threat was to force or
require the Employer to assign the work in dispute
to employees represented by ILA Local 928 rather
than to their own employees represented by Truck
Drivers Local 449 and Operating Engineers Local
17/17A/17B
2 Mirabelli testified that he was told in a phone conversation with the
shipper Fed Nav that the shipper had sent a replacement crew for the
tugboats to Buffalo from Ohio but the crew was intimidated from at
tempting to bring in the S Iver Leader by a group of men whom the
crew believed to be ILA men carrying hockey sticks ai d baseball bats
a Although this descrption of the work in dispute is open ended the
record before us contains insufficient information to make a determina
Lion beyond the work related to the Silver Leader which had been
scheduled to dock at the port on June 10 1988 and to be unloaded the
following morning Apparently other vessels have since entered the Me
troport without incident although they did not require pilots or tugs
No party claims that there is an agreed on
method for the voluntary adjustment of this dis
pute
We find reasonable cause to believe that a viola
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed on method for voluntary ad
.justment of the dispute within the meaning of Sec
tion 10(k) of the Act Accordingly we find that
the dispute is properly before the Board for deter
mmation
E Merits of the Dispute
Section 10(k) requires the Board to make an of
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 Board certifications
Truck Drivers Local 449 was certified in 1968
and Operating Engineers Local 17/17A/17B in
1969 for appropriate units of the Employers prede
cessor The certifications however predate Gate
way Metroport s existence and do not describe the
work performed by the certified units This factor
does not favor awarding the work to a particular
group of employees
2 Collective bargaining agreements
Buffalo Crushed Stone has collective bargaining
agreements with both Truck Drivers Local 449
and Operating Engineers Local 17/17A/17B It has
no collective bargaining agreement with ILA
Local 928 Both contracts contain language that in
dicates that they cover employees working at or
around the dock although neither contract de
scribes the work in dispute 4 In the absence of con
trary evidence we find that this factor favors an
award of the disputed work to employees repre
sented by Truck Drivers Local 449 and Operating
Engineers Local 17/17A/17B
4 The collective bargaining agreement between the Employer and Op
erating Engineers Local 17/17A/17B states that the Union is recognized
as the sole collective bargaining agency for [All] Enginee s and Opera
tors of cranes shovels locomotives bulldozers loaders and maintenance
engineers employed at the Company s plants Nos 81 82 and 83
Plant No 83 is located at the North End of the Woodlawn property and
Gateway Trade Center Area including the dock
LONGSHOREMEN ILA LOCAL 928 (BUFFALO STONE) 447
The agreement with Truck Drivers Local 449
states that the Employer agrees to recognize the
Union as the sole collective bargaining agency for
all of its Maintenance and Production Employees
employed in its plants which are Plant No 81
Plant No 82 Plant 83 and Dock Area
3 Company preference and past practice
Buffalo Crushed Stone prefers that the work in
dispute be done by employees who are represented
by Truck Drivers Local 449 and Operating Engi
neers Local 17/17A/17B Employees represented
by these Locals have loaded and unloaded ships
and moved materials on and off the dock for the 3
years Gateway has operated the port This factor
favors awarding the disputed work to employees
represented by Truck Drivers Local 449 and Oper
ating Engineers Local 17/17A/17B
4 Area practice
No evidence is available concerning the practice
at docking facilities in the area nor is there any
evidence of what the practice was when the public
authority operated the port This factor does not
favor awarding the disputed work to a particular
group of employees
5 Relative skills
Evidence was introduced to indicate that em
ployees represented by Truck Drivers Local 449
and by Operating Engineers Local 17/17A/17B
were well qualified to do the work Although the
record contains no evidence about the skill of em
ployees represented by ILA Local 928 we are not
prepared to say that ILA Local 928 represented
employees are unable to perform the disputed
work This factor does not favor awarding the dis
puted work to a particular group of employees
6 Economy and efficiency
Mirabelli testified that it is more economical and
efficient for the Employer to use its own employ
ees represented by Truck Drivers Local 449 and
Operating Engineers Local 17/17A/17B Mirabelli
testified that he was able to assign these employees
as needed from other nearby facilities operated by
the Employer when they were engaged in similar
work, thus providing greater flexibility in schedul
ing and economy for the Employer This factor
favors awarding the disputed work to employees
represented by Truck Drivers Local 449 and Oper
ating Engineers Local 17/17A/17B
Conclusions
After considering all the relevant factors we
conclude that the employees represented by Truck
Drivers Local 449 and Operating Engineers Local
17/17A/17B are entitled to perform the work in
dispute We reach this conclusion relying on the
collective bargaining agreements , Employer prefer
ence and past practice and the economy and effi
ciency of operations
In making this determination we are awarding
the work to employees represented by Truck Dnv
ers Local 449 and Operating Engineers Local
17/17A/17B not to those Unions or their mem
bers
Scope of the Award
The Employer contends that the scope of the
award should be broad enough to include all ships
and vessels that enter the Gateway Metroport due
to the potentially severe economic impact of re
peated picketing by ILA Local 928 on the Em
ployer and the regional economy Generally in
order to support a broad areawide award there
must be evidence that the disputed work has been a
continuing source of controversy in the relevant
geographic area and that similar disputes are likely
to recur There must also be evidence that demon
strates the charged party has a proclivity to engage
in unlawful conduct to obtain work similar to the
disputed work We do not believe the record sup
ports a broad order We note particularly that the
picketing was limited to the Silver Leader and that
other vessels entered the port without incident
after the picketing S Accordingly our determina
tion is limited to the controversy that gave rise to
this proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
1 Employees of Buffalo Crushed Stone Inc
represented by Truck Drivers Local Union No
449 affiliated with the Brotherhood of Teamsters,
Chauffeurs Warehousemen and Helpers of Amer
ica affiliated with the AFL-CIO and International
Union of Operating Engineers Local 17 17A and
17B are entitled to perform the loading and un
loading of ships and the transfer of material onto
and off of the dock at the Gateway Metroport
Center
2 International Longshoremen s Association,
AFL-CIO Local 928 is not entitled by means pro
6 The Employer contends that the absence of ILA Local 928 from the
hearing and the failure of that Union to give assurances that further un
lawful conduct will be discontinued is evidence of a proclivity to engage
in future unlawful conduct with attendant work interruptions We do not
consider a lack of participation in Board proceedings as sufficient evi
dence on which to make a broad award and ILA Local 928 has not yet
failed to give assurances that it will abide by a 10(k) determination
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
scribed by Section 8(b)(4)(D) of the Act to force shall notify the Regional Director for Region 3 in
Buffalo Crushed Stone Co Inc to assign the dis writing whether it will refrain from forcing the
puted work to employees represented by it Employer by means proscribed by Section
3 Within 10 days from this date International 8(b)(4)(D) to assign the disputed work in a manner
Longshoremen s Association AFL-CIO Local 928 inconsistent with this determination