Longshoremen Local 1291 (Holt Cargo Systems)

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1283 (N.L.R.B. 1992)

1250
309 NLRB No. 182
LONGSHOREMEN LOCAL 1291 (HOLT CARGO SYSTEMS)
1 The work disputed in this proceeding is the same work that was
awarded to the Machinists’ Union in Machinists Local 724 (Holt
Cargo Systems), 307 NLRB 1394 (1992); (cf. Machinists Local 724
(Holt Cargo Systems), 309 NLRB No. 42 (Oct. 29, 1992).) That de-
cision and award issued after the judge’s decision in this proceeding.
The Respondent has moved to reopen the record to include a
postarbitration brief and letter to the arbitrator who heard the griev-
ance at issue in this case, both of which were submitted to the arbi-
trator after the judge’s decision. The Respondent’s motion lacks
merit as the evidence it seeks to admit is neither newly discovered
nor previously unavailable within the meaning of Sec. 102.48(d)(1)
of the Board’s Rules and Regulations.
Member Raudabaugh would also deny the motion to reopen the
record. However, he would do so on a different basis. In this regard,
he notes that the motion seeks to adduce evidence concerning the
filing of a postarbitration brief and letter. Inasmuch as this filing oc-
curred after the close of the hearing before the administrative law
judge (and indeed after the judge’s decision), Member Raudabaugh
would not deny the motion to reopen as untimely. Rather, he would
deny the motion on the ground that the proffered evidence would not
‘‘require a different result.’’ See Sec. 102.48(d)(1) of the Rules. In
this case, the Board finds, and Member Raudabaugh agrees, that the
Respondent violated Sec. 8(b)(4)(B) by filing a grievance which
sought an arbitral order directing the steamship companies to take
any action necessary to force Holt Cargo to reassign the disputed
work to employees represented by the Respondent. The Respond-
ent’s proffered evidence would allegedly show that the grievance
now seeks only ‘‘time-in-lieu’’ damages from the steamship compa-
nies. In Member Raudabaugh’s view, even if this is so, the grievance
would remain unlawful under Sec. 8(b)(4)(B). Where a union seeks
monetary damages from a neutral in compensation for an ongoing
work assignment controlled and effectuated by a primary, the
union’s conduct is unlawful under Sec. 8(b)(4)(B). Thus, Member
Raudabaugh adopts the view suggested by Chairman Stephens in
Longshoremen ILWU Local 7 (Georgia-Pacific), 291 NLRB 89 fn.
11 (1988). Further, since the grievance is unlawful even if modified,
the remedial order properly requires that it be withdrawn.
1 ‘‘Containers are large metal boxes designed to fit without adjust-
ment into the holds of special ships and onto the chassis of special
trucks and railroad cars.’’ NLRB v. Longshoremen ILA, 473 U.S. 61,
64 fn. 1 (1985) (ILA II).
2 The other relevant docket entries are that Holt filed its unfair
labor practice charge on November 8, 1991, and the hearing was
held in Philadelphia, Pennsylvania, on February 11, 1992.
3 The record indicates that ACT Pace line is now known as Blue
Star Pace Line.
4 The record does not show when the Companies began to call at
Gloucester City, but ABC and ACT were doing business there in
1984. Teamsters Local 158 (Holt Cargo), 293 NLRB 917 (1989).
International Longshoremen’s Association, Local
1291, AFL–CIO and Holt Cargo Systems, Inc.
Case 4–CC–1950–2
December 16, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 7, 1992, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief, a
motion to reopen and supporting memorandum, and a
letter supplementing its motion to reopen. The General
Counsel filed an answering brief and an opposition to
the motion to reopen.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Longshore-
men’s Association, Local 1291, AFL–CIO, its officers,
agents, and representatives, shall take the action set
forth in the Order.
Scott C. Thompson, Esq., for the General Counsel.
Stanley B. Gruber, Esq. (Freedman & Lorry, P.C.), of Phila-
delphia, Pennsylvania, for the Respondent.
James A. Matthews III, Esq. and William A. Whiteside, Esq.
(Fox, Rothschild, O’Brien & Frankel), of Philadelphia,
Pennslyvania, for the Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. The
complaint, dated December 18, 1991, alleges that Respondent
International Longshoremen’s Association, Local 1291,
AFL–CIO (the Union) filed and pursued a grievance against
certain employers with the intent that they would pressure
Charging Party Holt Cargo Systems, Inc. (Holt) to assign the
maintenance and repair of shipping containers1 and chassis to
employees that the Union represented rather than to employ-
ees represented by another union, in violation of Section
8(b)(4)(ii)(B) of the National Labor Relations Act. The
Union denies that it violated the Act in any manner.2
Jurisdiction is conceded. Holt is a Delaware corporation
providing stevedoring and warehousing services to steamship
lines calling on its facilities in the Port of Philadelphia area
and maintenance and repair services for their shipping con-
tainers and chassis. During the 12 months preceding the
issuance of the complaint, Holt derived gross revenues in ex-
cess of $1 million and purchased and received at its facility
in Philadelphia goods valued in excess of $50,000 from out-
side Pennsylvania. I conclude that Holt is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also conclude that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Since 1967, Holt ran its operation at a pier in Gloucester
City, New Jersey. ABC Containerline NV, ACT Pace Line,3
Columbus Line, and Maersk Container Service Co. (Compa-
nies), steamship lines engaged in the carriage of cargo at sea,
called at that facility for stevedoring and warehousing serv-
ices.4 The Companies did not directly employ any employees
to repair or maintain their shipping containers or chassis.
That work was done by Holt’s employees, who were rep-
1251LONGSHOREMEN LOCAL 1291 (HOLT CARGO SYSTEMS)
5 The Companies were bound by a number of agreements, to
which local unions affiliated with the International Longshoremen’s
Union, AFL–CIO (ILA) and the ILA were parties. One of the agree-
ments, the agreement on master contract issues, provided for a three-
step grievance procedure to resolve all disputes: first to a local in-
dustry grievance committee, then to an industry hearing committee,
and then to an Industry appellate committee. If the issue remained
deadlocked, the dispute was then submitted to an impartial arbitrator
selected through the auspices of the Federal Mediation and Concilia-
tion Service.
6 Par. 8 of the master agreement provides that the employers ‘‘re-
affirm that the ILA employee has jurisdiction over longshore, check-
er, maintenance and other ILA craft work conferred on such workers
by the Containerization Agreement.’’ Par. 10(A) of the master agree-
ment specifically deals with with the maintenance of containers, as
follows:
It is agreed that the jurisdiction of the ILA shall cover the main-
tenance of containers (which terms include chassis) at waterfront
container facilities, and/or off-premises used for servicing and
repair of containers and chassis, covered by this agreement, by
ILA Maintenance in accordance with the Containerization
Agreement.
Finally, the containerization agreement provides, in relevant part:
Management and the Carriers recognize the existing work juris-
diction of ILA employees covered by their agreements with the
ILA over all container work which historically has been per-
formed by longshoremen and all other ILA crafts at container
waterfront facilities. Carriers, direct employers and their agents
covered by such agreements agree to employ employees covered
by their agreements to perform such work which includes, but
which is not limited to:
. . . .
. . . the maintenance and repair of containers.
resented by Local Lodge 724 of the International Association
of Machinists and Aerospace Workers, AFL–CIO (Machin-
ists). Indeed, that work had been performed by the Machin-
ists for years, even prior to a Board decision in 1989, specifi-
cally awarding that work to the Machinists and not to the
Union. Teamsters Local 158 (Holt Cargo), 293 NLRB 917
(1989).
In April 1989 Holt began stevedoring operations across the
Delaware River from Gloucester City, at the Packer Avenue
Marine Terminal (Terminal) in Philadelphia, Pennsylvania.
Holt assigned virtually all the work of maintenance and re-
pair of its customers’ shipping containers and chassis, to its
employees represented by the Machinists, with which Holt
had and now has a collective-bargaining agreement. Those
employees, and not employees represented by the Union,
have performed that work since that time. Holt’s intention
was to discontinue its container cargo stevedoring operations
at the Gloucester City facility and consolidate all its oper-
ations at the Terminal.
At the time that Holt started operating at the Terminal, the
Companies continued to call on Holt at Gloucester City, but
it appeared to the Union that once the consolidation had been
completed, the Companies would then switch to the Termi-
nal. In anticipation of that event, on May 24, 1991, the
Union instituted a grievance against the Companies,5 which
read:
It is our understanding that [the Companies], or some
of them, are moving their container operation from
Gloucester City, N.J. to [the Terminal]. Under the Mas-
ter Agreement to which these carriers are parties, the
jurisdiction of [the Union] covers the maintenance and
repair of containers and chassis.6 Accordingly, it is the
position of [the Union] that the ‘‘M & R’’ work on the
containers of [the Companies] located at [the Terminal]
must be performed by appropriate ILA personnel—in
this case [the Union].
Clearly, the intent of the Master Agreement is to pre-
vent further erosion of ILA’s jurisdiction—particularly
with respect to maintenance and repair of containers.
When the grievance committee deadlocked at the first
stage, the Union asked for a ruling from the hearing commit-
tee ‘‘directing [the Companies] to take all appropriate action
to confer jurisdiction over the work of maintaining and re-
pairing containers and chassis at the Terminal on [the
Union].’’ When that committee deadlocked, the Union ap-
pealed to the appellate committee, noting that ‘‘this dispute
involves jurisdiction over the work of maintenance and repair
of containers and chassis of [the Companies].’’ When no de-
cision could by reached at the third stage, the Union submit-
ted the matter for arbitration; and a hearing opened on Janu-
ary 23, 1992, and was adjourned to a date in March.
In the meantime, on September 10, 1991, Holt closed its
Gloucester City container cargo stevedoring operation and
consolidated all such operations at the Terminal. (Holt con-
tinues to maintain noncontainerized break-bulk stevedoring
and warehousing operations at Gloucester City.) After Sep-
tember 10, 1991, the Companies, which formerly called on
Holt at Gloucester City, called on Holt at the Terminal, ex-
cept that in late September or early October, Maersk Con-
tainer ceased dealing with Holt entirely. Since September 10,
Holt has continued to assign the maintenance and repair of
shipping containers at the Terminal, including such work on
containers and chassis owned by the Companies, to the Ma-
chinists.
Section 8(b)(4)(ii)(B) of the Act states that it is an unfair
labor practice for a labor organization or its agents to
. . . threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where
in either case an object thereof is—
. . . .
. . . forcing or requiring any person to cease using,
selling, handling, transporting, or otherwise dealing in
the products of any other producer, processor, or manu-
facturer, or to cease doing business with any other per-
son, or forcing or requiring any other employer to rec-
ognize or bargain with a labor organization as the rep-
resentative of his employees unless such labor organiza-
tion has been certified as the representative of such em-
ployees under the provisions of Section 9 [section 159
of this title]: Provided, That nothing contained in this
clause (B) shall be construed to make unlawful, where
not otherwise unlawful, any primary strike or primary
picketing.
The section’s proscription against coercion is to be viewed
pragmatically and is intended to reach any form of economic
pressure of a restraining or compelling nature. Longshoremen
ILWU Local 32 v. Pacific Maritime Assn., 773 F.2d 1012,
1018 (9th Cir. 1985), cert. denied 476 U.S. 1158 (1986). By
this standard, the General Counsel contends that the object
of the grievance is to compel the Companies, who are neutral
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See, however, Longshoremen ILWU Local 7 (Georgia-Pacific),
291 NLRB 89 (1988), which holds that, within the meaning of Sec.
8(b)(4)(ii)(D), the mere filing of arguably meritorious work assign-
ment grievances seeking in-lieu-of pay prior to the issuance of the
Board’s 10(k) determination does not constitute ‘‘coercion.’’
8 See Teamsters Local 776 (Rite Aid Corp.), 305 NLRB 832
(1991).
9 The Union was also charged with violating Sec. 8(b)(4)(D) of the
Act. A 10(k) hearing has been held and the matter is now awaiting
disposition by the Board.
to the dispute between the Union and Holt, to cease doing
business with Holt or to force Holt to reassign the disputed
work. I agree.
At each step of the arbitration proceeding, the Union re-
quested relief in the form of obtaining jurisdiction over the
work of repairing and maintenance of the containers and
chassis. There were only two ways that that could be accom-
plished: first, by forcing Holt to reassign its work to employ-
ees represented by the Union; or second, by directing the
Companies to cease doing business with Holt. In either case,
the Union was using the leverage of its grievance to pressure
the Companies, neutral in the dispute involving the alleged
deprivation of work to employees represented by the Union,
to do something to get work for those employees. In the sec-
ond manner, the Union’s conduct fits exactly into the Sec-
tion’s ‘‘cease doing business with’’ phrase. Regarding the
first, the Supreme Court has concluded that the foreseeable
conclusion of applying pressure on a neutral employer to use
its influence to force the primary employer to reassign dis-
puted work was that the neutral would be required to capitu-
late to the union’s demand or terminate its business relation-
ship with the primary. That falls within the prohibition of
Section 8(b)(4)(B). NLRB v. Operating Engineers Local 825,
400 U.S. 297 (1971).
Elevator Constructors (Long Elevator), 289 NLRB 1095
(1988), enfd. 902 F.2d 1297 (8th Cir. 1990), holds that the
filing of a grievance may be coercive within the meaning of
Section 8(b)(4)(ii)(B).7 There, the union filed a grievance
which, if sustained, would have converted a clause of the
agreement into a de facto hot cargo clause, in violation of
Section 8(e). It would have required the neutral employer to
permit all of its employees to refuse to work at a construc-
tion site because of the union’s picket line, notwithstanding
the existence of a reserved gate through which employees
other than those of the primary employer could enter. The
Board distinguished Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731 (1983), which held that the Board could not enjoin
as an unfair labor practice the lawsuit there at issue, stating
that ‘‘the Court expressly noted that it was not dealing with
a ‘suit that has an objective that is illegal under federal law.’
461 U.S. at 737 fn. 5.’’ To the same effect, if the Union’s
grievance were sustained, the Companies would be forbidden
to deal with Holt, unless Holt employed workers represented
by the Union. That is an illegal objective, in violation of
Section 8(e) and coercive under the Act. Nelson v. Electrical
Workers IBEW Local 46, 899 F.2d 1557 (9th Cir. 1990).8
The Union contends, however, that its grievance had no
secondary object. Rather, everything that the Union did was
directed towards the Companies, with whom it had a primary
dispute, i.e., failing to abide by their agreement that the
Union’s jurisdiction covered ‘‘the maintenance of containers
(which term includes chassis) at waterfront container facili-
ties.’’ If that is what the Union thought it was enforcing, its
grievance was far afield from its stated object. Its first letter
specifically referred to its understanding that the Companies
were going to move from Gloucester City to the Terminal,
where the maintenance and repair work ‘‘must be performed
by’’ the Union. The clear meaning of this letter was that the
Union’s members were entitled to perform this work at the
Terminal. The only employer there was Holt. Furthermore,
the only employer that could employ employees at the Ter-
minal was Holt, because, effective as of January 2, 1991, it
operated the Terminal as a ‘‘closed pier,’’ which meant that
Holt, not the Companies, was the ‘‘exclusive public marine
terminal operator.’’ Therefore, only Holt could perform the
repair and maintenance work that the Union insists for the
first time that it wanted the Companies to perform; and only
Holt could hire employees to do the repair and maintenance
work.
The Union’s demand that Holt reassign the work contin-
ued into the second step of the grievance procedure. Then,
the Union contended that the Companies be directed ‘‘to take
all appropriate action to confer jurisdiction . . . at the Termi-
nal on’’ the Union. The only manner in which jurisdiction
could be conferred was if Holt did it, again demonstrating
the Union’s illegal secondary object. Only at the third step
may it be said that the Union’s claim was not necessarily
secondary; but, because the Union still referred to the dispute
as involving the jurisdiction over the disputed work, and not
whether the Companies had an obligation on their own to en-
gage in the disputed work and not to contract out the work,
I find that the intent of the grievance was secondary at all
times, and not primary.
Finally, the Union contends that it made known to the ar-
bitrator at the hearing that she could award monetary dam-
ages in the event that she deemed that the Union was not
entitled to its requested relief (‘‘to exclusively give the work
to ILA’’) or ‘‘if all else fails,’’ an attempt, perhaps, to bring
its conduct within the holding of Georgia Pacific by asking
for ‘‘in-lieu-of pay.’’ See footnote 7, above.9 However, the
Union’s initial request for relief was never withdrawn and
appears to reflect what the Union was actually seeking. It in-
sisted that its request was legal, but, if its request violated
the law, ‘‘then pay us damages.’’ I find that request illegal,
having secondary objects, and further find that it is still very
much alive in the arbitration. It is the Union’s obligation to
withdraw its illegal demand. It is not the obligation of the
arbitrator to comply with the Act on behalf of the Union. As
long as the illegal object remains—that of causing the Com-
panies to cease doing business with Holt—there is a viola-
tion of the Act. The Act provides that a violation exists when
‘‘an object,’’ as here, is one of the illegal ones. It makes no
difference that its request for alternate relief may, standing
alone, not constitute a violation.
The Union nonetheless insists that, even if its actions had
a secondary effect, it was entitled to maintain its grievance
because it was attempting to preserve work that it had tradi-
tionally performed. Woodwork Mfrs. v. NLRB, 386 U.S. 612
(1967); NLRB v. Pipefitters, 429 U.S. 507, 517 (1977); ILA
II, 447 U.S. 490, 504–505 (1980); NLRB v. Longshoremen
ILA, 473 U.S. 61, 75–79 (1975) (ILA I). Even conceding that
the Union and its parent had traditionally performed the work
of maintaining and repairing containers and chassis—and that
1253LONGSHOREMEN LOCAL 1291 (HOLT CARGO SYSTEMS)
10 But see ILA I, 447 U.S. at 495 fn. 7, and ILA II, 473 U.S. at
69.
11 Additional support is provided by Longshoremen ILA Local
1291 (Lavino Shipping), 189 NLRB 126 (1971).
12 The General Counsel’s unopposed motion to correct G.C. Exh.
2(b) is granted.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
it not entirely clear10—here there was nothing at all to pre-
serve. Holt had been in business since 1967 and the Union
had never represented the employees performing the work
that it now seeks. As noted, the Union was a party to a
Board proceeding in which this very work, albeit at the
Gloucester City terminal, was awarded not to the Union, but
to the Machinists. The Union’s claim to this work at the Ter-
minal is hardly better. With the exception of one brief period
20 years ago, in 1971 and 1972, the Union has never per-
formed this work at the Terminal.11 Its claim that it was enti-
tled to preserve its work is unavailing, because it performed
no work that was capable of preserving. Its claim in its
grievance that it was seeking to prevent ‘‘further erosion of
[its] jurisdiction—particularly with respect to maintenance
and repair of containers,’’ is patently without merit, because
there was no jurisdiction at Gloucester City which could pos-
sibly be eroded. Rather, it appears that the Union was at-
tempting to gain work that it had not previously performed.
Lumber Workers Local 2592 (Louisiana Pacific), 268 NLRB
126, 127 (1983). I reject, therefore, the Union’s work-preser-
vation defense and find a violation. The activities of the
Union set forth above, occurring in connection with the
Union’s operations described above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that the Union has engaged in a certain un-
fair labor practice, I recommend that it be required to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Specifically, I
shall order the Union to withdraw its grievance against the
Companies, which is the basis of my finding that the Union
violated the Act.
On the foregoing findings of fact and conclusions of law,
and on the entire record12 in this proceeding, including my
observation of the witnesses as they testified before me and
on a videotape, and my consideration of the briefs filed by
the General Counsel, the Union, and Holt, I hereby issue the
following recommended13
ORDER
The Respondent, International Longshoremen’s Associa-
tion, Local 1291, AFL–CIO, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from threatening, coercing, or restrain-
ing any person engaged in commerce or in an industry af-
fecting commerce, where in either case an object thereof is
forcing or requiring any person to cease using, selling, han-
dling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw its grievance, dated May 24, 1991, against
ABC Containerline NV, ACT Pace Line, Columbus Line,
and Maersk Container Service Co.
(b) Post at its Philadelphia, Pennsylvania office, copies of
the attached notice marked ‘‘Appendix.’’14 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by Respondent’s representative, shall be
posted by Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(c) Sign and return to the Regional Director for Region 4
sufficient copies of the notice for posting by Holt Cargo Sys-
tems, Inc., if willing, at all places where notices to employ-
ees are customarily posted.
(d) Notify the Regional Director in writing within 20 days
from the date of this order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten, coerce, or restrain any person en-
gaged in commerce or in an industry affecting commerce,
where in either case an object thereof is forcing or requiring
any person to cease using, selling, handling, transporting, or
otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business with
any other person.
WE WILL withdraw our grievance, May 24, 1991, against
ABC Containerline NV, ACT Pace Line, Columbus Line,
and Maersk Container Service Co.
INTERNATIONAL LONGSHOREMEN’S ASSOCIA-
TION, LOCAL 1291, AFL–CIO