Longshoremen Ilwu Locals 40 & 8 (Stc Submarine)

National Labor Relations Board - Board Decisions

Jul 31, 1990

299 N.L.R.B. 293 (N.L.R.B. 1990)

LONGSHOREMEN ILWU LOCALS 40 & 8 (STC SUBMARINE) 293
International Longshoremen's and Warehousemen's
Union Locals 40 & 8 and STC Submarine Sys-
tems, Inc. Case 36-CD-185
July 31, 1990
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
The charge in this Section 10(k) proceeding was
filed February 28, 1990, by the Employer, STC
Submarine Systems, Inc , alleging that the Re-
spondent, International Longshoremen's and Ware-
housemen's Union Locals 40 & 8, violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees it represents rather than to the Employer's
unrepresented employees The hearing was held
April 3, 1990, before Hearing Officer Linda J
Scheldrup
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board affirms the heanng officer's rulings,
finding them free from prejudicial error On the
entire record, the Board makes the following find-
ings
I JURISDICTION
The Employer, a Delaware corporation with its
offices and place of business located in Portland,
Oregon, is engaged in the manufacture of fiber
optic cable The Employer has gross annual sales in
excess of $500,000 and in the course and conduct
of its business purchased and caused to be trans-
ferred and delivered to its facilities in the State of
Oregon goods and materials valued in excess of
$50,000 directly from sources outside the State of
Oregon The parties stipulate, and we find, that the
Employer is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and
that International Longshoremen's and Warehouse-
men's Union Locals 40 & 8 are labor organizations
within the meaning of Section 2(5) of the Act
II THE DISPUTE
A Background and Facts of Dispute
The Respondent has a collective-bargaining
agreement with the Port of Portland (Port), dated
October 22, 1984, covering the loading of ships at
any of the Public Cargo Handling Facilities operat-
ed or controlled by the Port in the Rivergate In-
dustrial District Property and in other areas On
July 20, 1988, the Port entered into a lease agree-
ment with the Employer in order to build a plant
on the Port's property at Rivergate The Employer
built a plant and is producing underwater fiber
optic cable at this site The lease agreement states
that the Employer shall not operate the premises as
a Public Cargo Handling Facility and is thus not
subject to the Port's collective-bargaining agree-
ment with the Respondent The Employer assigned
the loading of the fiber optic cable to its own em-
ployees
The Respondent made several protests to the
Port regarding the Port's lease agreement with the
Employer, and claimed the cable-loading work for
employees it represents The Respondent then filed
a grievance against the Port, claiming a violation
of its collective-bargaining agreement with the
Port The arbitrator ruled in favor of the Respond-
ent Despite the Respondent's protests and the arbi-
trator's ruling, the Port did nothing to change the
Employer's assignment of the cable-loading work
On August 28, 1989, the Respondent sent the
Port a letter, again claiming the cable-loading
work The letter further stated
We have chosen this way of communicating
our concerns to you rather than other avenues
which are obviously available to us We are
not insensitive to damage that is done to the
Port created by controversy and negative
media coverage We want to avoid that if pos-
sible However, time is running out and no one
should underestimate our resolve We intend
to load that cable aboard the vessel Just be-
cause our response, to this point, has been
measured carefully and discreetly [sic] should
not lead anyone to believe that we will not do
everything necessary to perform this work that
we are contractually, legally, ethically and
morally entitled to Our eight hundred plus
members are entitled to, expect and demand
no less
B Work in Dispute
The disputed work involves the loading of un-
derwater fiber optic cable onto a cable-laying ship
at the Employer's dock, which is on land leased
from the Port in Portland, Oregon
C Contentions of the Parties
The Respondent contends that there is no rea-
sonable cause to believe that any statement in its
August 28, 1989 letter to the Port involved a viola-
tion of Section 8(b)(4)(D) of the Act, nor is there
any other evidence before the Board to support a
conclusion that reasonable cause exists to believe
299 NLRB No 34
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Section 8(b)(4)(D) has been violated For this
reason, the Respondent contends that the present
dispute is not properly before the Board
The Employer contends that there is reasonable
cause to believe that the Respondent, through its
August 28, 1989 letter, threatened the Port with
economic action with the object of forcing a reas-
signment of the cable-loading work to employees
represented by the Respondent The Employer fur-
ther contends that all relevant factors support an
award of the work to employees of the Employer
D Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe Section 8(b)(4)(D) of the Act has
been violated The Employer contends that the Re-
spondent violated Section 8(b)(4)(D) by its August
28, 1989 letter to the Port that stated that it will
"do everything necessary to perform this work"
The Respondent, however, argues that the letter
did not constitute a threat of economic action and
that there is no other evidence of an alleged threat
in connection with its attempt to obtain the work
for employees it represents
We find that the statements in the Respondent's
letter to the Port do not establish reasonable cause
to believe that the Respondent violated Section
8(b)(4)(D) The statement that it would "do every-
thing necessary to perform this work" is too vague
and insubstantial to establish reasonable cause'
The statement indicates that the Respondent in-
tends to pursue its attempt to obtain the work for
employees it represents However, neither this
statement nor any other statement in the letter indi-
cates an intent to communicate a threat of illegal
conduct 2 Further, we find nothing else in this
letter, or in the rest of the record, which would es-
tablish reasonable cause to believe that the Re-
spondent made a threat of economic action in vio-
lation of Section 8(b)(4)(D) of the Act
We find no reasonable cause to believe that Sec-
, non 8(b)(4)(D) has been violated Accordingly, we
shall quash the notice of heanng
ORDER
The notice of hearing is quashed
1 See Sheet Metal Workers Local 38 (Corbesco Inc), 295 NLRB 1069
(1989) (union official's statements, "I could not stand idly by and watch
another trade perform our work" and "I'll just take whatever steps I
have to necessary to get this work for my members," do not establish
reasonable cause)
2 In arguing that there exists reasonable cause to believe that Sec
8(bX4)(D) was violated, the Employer relies on Ironworkers Local 3
(Spancrete Northeast), 267 NLRB 950 (1983) There, the Board found that
a union representative's statement that "he would go to court or do
whatever he had to do to get the work" established reasonable cause We
find this statement distinguishable The part of the statement saying that
he would "do whatever he had to do to get the work" implied something
other than going to court In the instant case, there is no evidence sug-
gesting that the Respondent was communicating a threat of Illegal con-
duct rather than an Intent to enforce its arbitration award or to resort to
some other legal course of action