Longshoremen's Association, Locals No. 1413-1465

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 694 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen's Association and its
Locals No. 1413-1465, AFL-CIO and Bridge
Terminal, Inc. and Teamsters Union Local No.
59, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case -CD-602
September 30, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Bridge Terminal, Inc., herein
called the Employer, alleging that International
Longshoremen's Association (ILA) and its Locals
No. 1413-1465, AFL-CIO (herein called the ILA),
had violated Section 8(b)(4)(i) and (ii)(D) of the
Act by engaging in certain proscribed activities
with an object of forcing or requiring the Employ-
er to assign certain work to its members rather
than to employees allegedly represented by Team-
sters Union Local No. 59, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Team-
sters.
Pursuant to notice, a hearing was held before
Hearing Officer Don C. Firenze on July 30, 1980.
The Employer and the ILA appeared and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter, the Employer
and the ILA filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
The Board has considered the briefs and the
entire record in this case, and hereby makes the
following findings:
1. THE BUSINESS OF THE EMPI.OYER
The parties stipulated, and we find, that the Em-
ployer is a Rhode Island corporation engaged in
the business of providing public warehousing serv-
ices at Fish Island, New Bedford, Massachusetts,
and that it annually derives gross revenues in
excess of $50,000 from the provision of these serv-
ices for commodities traveling in interstate com-
merce and from the provision of these services to
252 NLRB No. 97
companies that are directly engaged in interstate
commerce. Accordingly, we find that the Employ-
er is an employer within the meaning of Section
2(2) of the Act, it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Interna-
tional Longshoremen's Association and its Locals
No. 1413-1465, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. Background and Facts of the Dispute
The Employer operates a public storage ware-
house on Fish Island in New Bedford, Massachu-
setts. The warehouse is used primarily for the stor-
age of frozen fish, which arrive at the Employer's
dock by ship or truck. The Employer's warehouse
employees are represented by the Teamsters.
Prior to the onset of the present controversy,
ships were unloaded at the Employer's dock by
longshoremen who are members of Locals No.
1413-1465. The longshoremen were hired by steve-
doring companies that were employed by agents of
the ships. The Employer has never had a collec-
tive-bargaining agreement with the ILA. The Em-
ployer's warehouse employees, represented by the
Teamsters, moved the fish from the dock to the
warehouse.
The longshoremen's conditions of employment
are determined by the ILA national collective-bar-
gaining agreement. This agreement requires that a
crew of at least 16, plus a staff of up to 4 long-
shoremen, be hired to unload each hatch of a ship.
During 1979, the Employer asked the ILA Locals
to reduce their manning requirements at Fish
Island. The Locals declined, stating that they were
powerless to deviate from the national agreement.
The Teamsters collective-bargaining agreement
with the Employer, covering warehouse employ-
ees, expired on May 3, 1980. During negotiations
for a new contract, the Employer proposed that it
hire a new classification of employees, to be desig-
nated as cargo handlers and added to the Team-
sters unit. These cargo handlers would unload the
ships and thus obviate the need to use stevedoring
companies that hired longshoremen. The Employer
expected to use fewer employees than were re-
quired by the ILA, and thereby reduce costs at its
Fish Island facilities.
The Employer claims that the president of the
Teamsters Local orally agreed to a contract which
694
LONGSHOREMEN'S ASSOCIATION, LOCALS NO. 1413-14654
would embody this proposal. However, the Team-
sters has not signed the proposed contract.
On May 8, 1980, the vessel Norcan arrived at
Fish Island. In accordance with its proposed con-
tract with the Teamsters, the Employer hired six
new employees to unload the cargo. On that morn-
ing, approximately 12 members of the ILA, includ-
ing Shop Steward Jackie Tavares and Local Presi-
dent Antonio DeCruz, formed a picket line on the
Employer's premises. The pickets shouted obsceni-
ties and threats at the new employees, and threw
rocks and bottles at them. Warehouse employees
refused to cross the picket line. On May 9, the
pickets returned and continued to threaten and
harass the new employees. This conduct caused
them to cease unloading the vessel although the
job was not complete.
The Employer procured a temporary injunction
against the ILA Locals on August 4, 1980, pending
the instant proceedings.
B. Work in Dispute
The work in dispute consists of the unloading of
cargo vessels at the docks of Bridge Terminal, Inc.,
located at Fish Island, New Bedford, Massachu-
setts.
C. Contentions of the Parties
The Employer contends that the work in dispute
should be awarded to its newly hired employees
due to considerations of economy and efficiency of
operations, and pursuant to the alleged collective-
bargaining agreement with the Teamsters.
The ILA contends that the work in dispute tra-
ditionally has belonged to its members and that this
practice should continue. The ILA also asserts that
its members are better qualified than the newly
hired employees to safely and effectively perform
the work.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which an 8(b)(4)(D)
charge has arisen. However, before the Board pro-
ceeds with a determination of the dispute, 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-upon method, binding on all par-
ties, for the voluntary adjustment of the dispute.
On May 8, 1980, the Employer hired six employ-
ees to unload the ship Norcan. On that day, about
12 members of the ILA, including a local president
i According to the Finploer. the eamsters has not gi~sen a reason
fior its failure to sign the cotntrIact The F.mployer has filed an 8Xb)(3)
charge. Case I-CB-4858, n connection %ith this matter Thile Board has
not yet rendered a dcisiol therconl
and a shop steward, began to picket at the Em-
ployer's premises. During May 8 and 9, the pickets
frequently shouted to the new employees that the
unloading work rightfully belonged to members of
the ILA. and threatened them with physical harm
if they continued. Additionally the pickets prevent-
ed all delivery trucks from entering and leaving the
area.
In view of the conduct described above, we find
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred. 2 As
there is no contention that an agreed-upon method
for the voluntary adjustment of the dispute exists,
we find that the dispute is properly before the
Board for a determination under Section 10(k) of
the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to relevant factors.-
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience, reached by balanc-
ing those factors involved in a particular case.4
The following factors are relevant in making the
determination of the dispute before us:
i. Certification and collective-bargaining
agreements
There are no orders or certifications of the
Board awarding jurisdiction of the work in dispute
to employees represented by either of the Unions
involved in the present proceeding.
The Employer contends that it has a contract
with Teamsters Local No. 59 which covers the
work in dispute.5 It bases this contention on an al-
leged oral agreement with Teamsters representa-
tives. However, as of the date of this Decision, it
appears that the Teamsters have refused to sign the
proposed contract, and, as previously noted, the
Board has not yet ruled on the Employer's 8(b)(3)
charge. Therefore, we find that the Employer cur-
rently has no valid collective-bargaining agreement
with Teamsters Local No. 59.
2 International Longshoremens Association. 4AFL-CIO. its affiliated
Locals 799. 8j. 805 and 1066, and its Boston District Council (Coldwater
Seafood Corporation). 237 NLRB 538 (1978) Sheet Metal Workers' Inter-
notional .Asocation. Local Union No. 41. A.L-CIO (B & W Metak Com-
panty Inc.). 231 NI.RB 122 (1977).
:' .L R B s. Radio & lelevxsion Broadcast Engineeri Un,ion, Local
1212. International Brotherhood f Electrical Workert, AFL-CIO [Colurn-
hia Broadcaing Stemni], 364 U.S 573 (19611.
4 International .Associaton of Mfachinists. Lodge No. 1743 .41L-CIO (J.
A. Jones (;nructiln ( Compalny), 135 NLRB 1402 (1962)
5 As presiousl\S noted. the Employer's past contract \tith the Team-
sters covered the Employer's Aarehouse employees.
695
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The ILA does not contend that it has a contract
with the Employer. Accordingly, we find that this
factor does not assist us in determining the merits
of the dispute.
2. Area practice
Members of the ILA have unloaded ships in
New Bedford for the past 30 years, as employees
of the local stevedoring companies. However,
Richmond Viall, vice president of the Employer,
testified that in Gloucester, a nearby, competitive
port, ships are unloaded by members of the Amal-
gamated Meatcutters Union, and in Winterport,
Maine, by Workers Alliance No. 2. Since the
record does not reveal any clear area practice, we
find that area practice is not a factor favoring
either party.
3. Economy and efficiency of operation
The Employer testified that six to eight workers
are required to unload a ship the size of the
Norcan. In contrast, the ILA's national collective-
bargaining agreement requires that at least 16 em-
ployees plus a staff of 4 longshoremen unload each
hatch of a ship.
Moreover, by using the new employees, ships
could be unloaded considerably faster than under
the previous system, as the Employer expects its
cargo handlers to work two 6-hour shifts, while
ILA members work only one 8-hour shift per day.
The Employer also asserts that assigning the
work to the newly hired employees would allow
for unified supervision of warehouse workers and
cargo handlers. The Employer believes that this
will significantly reduce conflicts between the two
operations.
For the above reasons, we conclude that this
factor favors assignment of the disputed work to
the Employer's newly hired employees.
4. Skills and safety
The ILA contends that its members possess supe-
rior ability in cargo handling, citing their extensive
experience in operating stevedoring equipment and
unloading ships. The ILA contends that, in order
to safely transport cargo from the ship to the dock,
considerable experience is required, especially
among signalmen and crane operators. Specifically,
ILA Locals 1413-1465 President Antonio DeCruz
testified that a signalman should have 7-10 years
experience and a crane operator should have great-
er than 3 years' experience. He suggested that
slight mistakes in packing, lifting, or positioning
cargo could cause serious injuries or fatalities.
However, no license or formal training is re-
quired to operate stevedoring equipment. ILA
Business Agent Julio Alves stated that operating a
crane is "common sense .... like driving a car
and everything else."
In light of the foregoing, we hold that although
the greater experience of its members favors an
award to the ILA, the work is not highly skilled,
and this factor does not preclude an award to the
Employer's newly hired employees.
5. Employer preference
The Employer hired the new employees to per-
form the disputed work in order to reduce the
costs of using its facilities and to increase efficien-
cy. The record clearly indicates that the Employer
prefers that the work be awarded to these employ-
ees. This factor thus favors an award to the Em-
ployer's newly hired employees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the Employer's newly hired employees
are entitled to perform the work in dispute. We
reach this conclusion relying on the Employer's
preference and economy and efficiency of oper-
ation. The present determination is limited to the
particular controversy which gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
1. Unrepresented cargo handlers employed by
Bridge Terminal, Inc., are entitled to perform the
work of unloading ships at the Employer's Fish
Island dock and warehouse in New Bedford, Mas-
sachusetts.6
2. International Longshoremen's Association and
its Locals No. 1413-1465, AFL-CIO, is not enti-
tled by means proscribed by Section 8(b)(4)(D) of
the Act to force or require Bridge Terminal, Inc.,
to assign the disputed work to employees repre-
sented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Long-
shoremen's Association and its Locals No. 1413-
1465, AFL-CIO, shall notify the Regional Director
for Region 1, in writing, whether or not it will re-
6 Pending resolution of the Employer's 8(b)(3) charge, there is no valid
contract with the Teamsters, and the newly hired employees remain un-
represented.
696
LONGSHOREMEN'S ASSOCIATION, LOCALS NO. 1413-14654
frain from forcing or requiring the Employer, by
means proscribed by Section 8(b)(4)(D) of the Act,
to assign the disputed work in a manner inconsist-
ent with the above determination.
697