Longshoremen's Local No. 440

National Labor Relations Board - Board Decisions

Aug 8, 1972

198 N.L.R.B. 785 (N.L.R.B. 1972)

LONGSHOREMEN'S LOCAL NO. 440
Local No. 440, affiliated with South Atlantic and Gulf
Coast District, International Longshoremen 's Asso-
ciation , AFL-CIO and Local No. 1029, affiliated
with South Atlantic and Gulf Coast District,
International Longshoremen 's Association,
AFL-CIO and Port Arthur Stevedores, Inc.
Local No. 440, affiliated with South Atlantic and Gulf
Coast District , International Longshoremen's As-
sociation, AFL-CIO and The Port of Port Arthur
Navigation District of Jefferson County, Texas
and Port Arthur Stevedores, Inc. and Local No.
1029, affiliated with South Atlantic and Gulf Coast
District, International Longshoremen 's Associa-
tion, AFL-CIO. Cases 23-CD-278 and
23-CD-279
August 8, 1972
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Local No. 1029, affiliated with
South Atlantic and Gulf Coast District, International
Longshoremen's Association, AFL-CIO, and the
Port of Port Arthur Navigation District of Jefferson
County, Texas, alleging that Local No. 440, affiliated
with South Atlantic and Gulf Coast District, Interna-
tional Longshoremen's Association, AFL-CIO, has
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed conduct with an object of forcing
or requiring Port Arthur Stevedores, Inc., the
Employer herein, to assign the work in dispute
exclusively to longshoremen represented by Local
No. 440 rather than equally between those represent-
ed by Local No. 440 and others represented by Local
No. 1029.
Pursuant to notice, a hearing was held before
Hearing Officer William H. Helms in Houston,
Texas, on January 25, 26, and 31, 1972. All parties
were afforded full opportunity to appear at the
hearing, to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the
issues. Thereafter, Locals No. 440 and No. 1029 filed
briefs.
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 affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Port of Port Arthur
is a navigation district of Jefferson County, Texas,
785
which was created by the State of Texas for the
purpose of operating publicly owned wharves and
docks; and that during the past 12 months, the Port
of Port Arthur, in the course and conduct of its
business operations, received gross revenues in excess
of $500,000 of which an amount in excess of $50,000
was received from the performance of services for
customers whose places of business are located
outside the State of Texas.
The parties further stipulated that Port Arthur
Stevedores, Inc., is a Texas corporation engaged in
the stevedoring business at Port Arthur, Texas; and
that during the past 12 months, the Company has
performed warehousing services for the Port of Port
Arthur valued in excess of $50,000. Based on the
foregoing, we find that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Locals No.
440 and No. 1029, both affiliated with South Atlantic
and Gulf District , International Longshoremen's
Association , AFL-CIO , are labor organizations
within the meaning of Section 2 (5) of the Act.
111. THE DISPUTE
A. Background and Facts of the Dispute
Prior to the events giving rise to this proceeding,
three locals of the ILA, each possessing "deep sea"
(general) charter jurisdiction, furnished the necessary
labor to perform all longshore work at Port Arthur.
These locals were organized along racial lines: No.
440 and No. 1175 being "predominantly" Black and
No. 1029, white.
In 1969, new port facilities were opened at Port
Arthur. This resulted in a marked increase in
warehouse work, which was performed exclusively
by longshoremen hired through Local No. 440, at the
suggestion of J.E. Williams, secretary and treasurer
of the South Atlantic and Gulf Coast District, ILA.
In February 1971, representatives of Port Arthur
Stevedores, Inc., the ILA District, and the several
ILA locals in the Port Arthur area met to discuss the
division of warehouse work among the several locals.
According to the testimony of James Flanagan,
president of Port Arthur Stevedores, this meeting was
prompted by the fact that "efficiency was not up to
par with that of neighboring and competing ports."
After the meeting, on April 26, 1971, Ralph Massey,
president of the ILA District, advised Port Arthur
Stevedores that, henceforth, warehouse work would
be allocated equally to Locals No. 440, No. 1175,
198 NLRB No. 116
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and No. 1029. Thereafter, the work in question has
been assigned on a 50-50 basis between Locals No.
440 and No. 1029, Local No. 1175 having declined to
accept its share.
Notwithstanding, Local No. 440 initiated action to
change its charter jurisdiction to general warehouse
work. This effort was successful and on August 23,
1971, President Massey forwarded a new charter to
Local No. 440, which granted the Local exclusive
jurisdiction over all warehouse work in Port Arthur.
However, in an accompanying letter, Massey made it
clear that employees from all locals theretofore
performing warehouse work would still be able to do
so under a portwide hiring hall seniority system. He
also advised that, under this change in charter
jurisdiction, Locals No. 1029 and No. 1175 would
share, on a 50-50 basis, all deep sea longshore work
in the port. Finally, he cautioned: "You all are aware
as a matter of law, anyone applying for work through
any ILA local will be given consideration regardless
of race, creed or color."
Thereafter, Local No. 440 demanded that Port
Arthur Stevedores place all calls for warehouse labor
through its hiring hall. These demands went unheed-
ed, and the Company continued to assign the
disputed warehouse work equally between Locals
No. 440 and No. 1029.1 On October 14, 1971, Local
No. 440 commenced picketing in furtherance of its
demands. The picketing ceased by stipulation in lieu
of a 10(1) injunction.
Bearing upon the issues raised in this case is a suit
brought by the United States Attorney General
under Title VII of the Civil Rights Act of 1964,
against the ILA, the South Atlantic and Gulf Coast
District, and 37 locals, including Locals No. 440 and
No. 1029, alleging a pattern or practice of discrimi-
nation on grounds of race, color, and national
origin.2 Specifically, the Attorney General alleged
that the defendants maintained local unions, hiring
halls, and work gangs which were classified and
segregated on the grounds of race and national
origin.
The court, in its memorandum of November 12,
1971, found that the ILA locals involved were
chartered and continually maintained on a segregat-
ed basis. It found further that a prevailing rule
dividing work equally between Black and white
locals in the various ports violates Title VII of the
Civil Rights Act, because such a rule deprives
longshoremen, "be they Black or White, Anglo,
Mexican-American or Negro, equal working oppor-
tunities depending on which group is in the majority
in the different ports. . . ." However, the court
It is the Employer's practice to distribute the work requirements for
any given day equally among the same number of five-man gangs furnished
by each of the competing locals
failed to grant the Attorney General's request for an
order compelling merger of the segregated locals and
the discontinuance of separate locals, hiring halls,
and gangs based on race and national origin. Instead
the parties were invited to file an expedited appeal,
under 28 U.S.C. 1292(B), with the Court of Appeals
for the Fifth Circuit.
At the hearing held herein, counsel for the
defendants stated their intention not to file an
expedited appeal. The record does not reveal the
position of the Attorney General nor does it indicate
that a decree has been entered in the case.
B. The Work in Dispute
The parties are in general agreement that the work
in dispute involves warehouse work, which includes
the work of loading and unloading railroad cars from
car to pile and from pile to car; loading and
unloading trucks and vehicles; sewing sacks and
cooperage; piling dunnage; handling, segregating,
and chopping all freight; bracing cars; and operating
tractors and lift trucks when used in freight handling
(not including repairs to such equipment).
C. Contentions of the Parties
Local No. 1029, the Charging Union herein, urges
that the Board adhere to the Employer's work
assignment and award the disputed work equally
between the contending locals. In support of its
position, the Local, alluding to the testimony of John
Gibson, the Employer's superintendent at Port
Arthur, contends that the employees it represents can
handle certain cargo more efficiently than can those
employees represented by Local No. 440. The
Charging Union also asserts that Local No. 440 is
alone unable to supply a sufficient work force to
satisfy the Employer's demand for warehouse labor.
The Union offers no other factor as a basis for an
award herein, nor does it comment on the relevancy
of the matter pending before the court under the
Civil Rights Act, aforementioned.
Local No. 440, the Respondent herein, contends
that its claim to exclusive jurisdiction over all
warehouse work at Port Arthur is consistent with the
"present" ILA policy of granting only one charter for
one type of work in a given locality, that this policy
eliminates racial discrimination by affirmative ac-
tion, and that an award of any part of the disputed
work to Local No. 1029 would be at variance with
the Civil Rights Act and would undermine prior
Board law.3
The Port of Port Arthur Navigation District (a
2 U S District Court for the Southern District of Texas, Brownsville
Division, Civil Action No 69-B-3
3 See Local 1367, International Longshoremen's Association, AFL-CIO, et
LONGSHOREMEN 'S LOCAL NO. 440 787
Charging Party), the ILA, its district affiliate, and
Port Arthur Stevedores, Inc. (Employer), did not file
briefs. Neither did they state their respective posi-
tions at the hearing held herein.
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 there is no agreed-upon method for voluntary
adjustment of the dispute.
The parties stipulated that Local No. 440 com-
menced picketing at the premises of the Port of Port
Arthur on October 14, 1971. It is clear that such
picketing was undertaken by the Local in support of
its demand that the Employer assign to its exclusive
jurisdiction over the work in dispute. No one claims
the existence of an agreement which binds the parties
to a voluntary adjustment of the controversy, nor
does the record reveal that such an agreement exists.
In these circumstances, we find there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred and that the dispute is properly before
us for determination under Section 10(k) of the Act.
registration for referral through the Local No. 440
hiring hall of others presently being referred through
Local No. 1029.
Equally unavailing is the Employer's present work
assignment which has, like others in the past, been
made at the request of ILA District officials. This
indication of the Employer's indifference with
respect to the assignment of the disputed work is
underscored by the Employer's subsequent failure to
file a brief with the Board or otherwise to set forth its
position.
On the other hand, grave doubts are raised
concerning the legality of this assignment in view of
our decision in Local 1367, 6 and the suit brought by
the United States Attorney General under the Civil
Rights Act. In these circumstances, we regard the
ILA grant to Local No. 440 of exclusive charter
jurisdiction over the performance of all warehouse
'work at Port Arthur as controlling. This grant
represents an effort to eliminate racial discrimination
by affirmative action in a manner which will,
moreover, assure to all qualified employees in the
Port Authur area, whatever their union affiliation, an
equal opportunity to engage in the disputed work.
Conclusion
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors.4 As the Board has stated, its determination
in a jurisdictional dispute case is an act of judgment
based upon commonsense and experience in the
weighing of these factors.5
The factors normally considered by the Board in its
determination of dispute are discernibly absent in
this case. There are no outstanding Board certifica-
tions or orders requiring that Port Arthur Stevedores
bargain with either of the contending Locals. There
are no contracts affecting the assignment of ware-
house work. What skill this work requires is pos-
sessed equally by the longshoremen of all the locals.
The testimony of Superintendent Gibson, a witness
called by the Charging Union, concerning the
relative efficiency of the gangs furnished by the
contending locals is limited to a discussion of only
one type of cargo handled and is not supported by
the Employer. The admitted inability of the Respon-
dent Local to furnish sufficient labor from its own
list of job applicants could be remedied by the
a!, 148 NLRB 897, affil sub nom Galveston Maritime Association, 368 F 2d
1010 (C A 5), where the Board held that the maintenance and enforcement
of a percentage work distribution formula between two locals , based upon
race and union membership , violated the Act
4 N L R B v Radio & Television Broadcast Engineers Union, Local 1212,
Upon the entire record in this proceeding and in
view of the foregoing considerations, we conclude
that employees represented by Local No. 440 are
entitled to the work in question, and we shall
determine the dispute in their favor. In making this
determination, however, we are assigning the disput-
ed work to employees represented by Local No. 440
and not to that Union or its members.
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:
Employees who are represented by Local No. 440,
affiliated with South Atlantic and Gulf Coast
District, International Longshoremen's Association,
AFL-CIO, are entitled to perform all warehouse
work by Port Arthur Stevedores, Inc., for the Port of
Port Arthur Navigation District, Jefferson County,
Texas, which work includes loading and unloading
railroad cars from car to pile and from pile to car;
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting Systems], 364 U S 573
5 International Association of Machinists , Lodge No /74), AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402
6 Fn 3, supra
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loading and unloading trucks and vehicles; sewing and operating tractors and lift trucks when used in
sacks and cooperage ; piling dunnage ; handling, freight handling (not including repairs to such
segregating, and chopping all freight; bracing cars ; equipment).