Machinists District 160 Local 289 (SSA Marine)

National Labor Relations Board - Board Decisions

Jun 30, 2006

347 N.L.R.B. 549 (N.L.R.B. 2006)

MACHINISTS DISTRICT 160 LOCAL 289 (SSA MARINE)
347 NLRB No. 51
549
Association of Machinists and Aerospace Workers,
District Lodge 160, Local Lodge 289, AFL–CIO
and SSA Marine and International Longshore
and Warehouse Union, Local 32, AFL–CIO.
Case 19–CD–490
June 30, 2006
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
The charge in this proceeding was filed by SSA Marine
(the Employer) on December 5, 2005, alleging that Inter-
national Association of Machinists and Aerospace Work-
ers, District Lodge 160, Local Lodge 289, AFL–CIO
(IAM) violated Section 8(b)(4)(D) of the Act by engag-
ing in proscribed activity with an object of forcing the
Employer to assign certain work to employees it repre-
sents rather than to employees represented by Interna-
tional Longshore and Warehouse Union, Local 32, AFL–
CIO (ILWU).
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer is a Washing-
ton corporation, with an office and a place of business in
the Port of Everett in Everett, Washington, where it is
engaged in the business of cargo transportation and han-
dling. They also stipulated that the Employer annually
purchases and receives goods and services valued in ex-
cess of $50,000 directly from suppliers located outside
the State of Washington. The parties further stipulated,
and we find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Finally, the parties stipulated, and we find, that IAM and
ILWU are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
For the last 40 years, the Employer and its predeces-
sors have operated and managed terminal and stevedore
operations at the Port of Everett, located on the Puget
Sound in Washington. These operations have required
the Employer to use a range of stevedoring equipment
through the years. During the 1960s and 1970s, a water
crane and several fork lifts were permanently stationed
by the Employer at the Port of Everett. This perma-
nently-stationed equipment was, at least in part, serviced
and maintained by ILWU-represented workers based in
Everett itself. As the port entered economic decline in
the 1980s and 1990s, the permanently-stationed steve-
doring equipment was removed. The Employer instead
relied on equipment rotated from other ports on the Puget
Sound to perform its operations in Everett. Those ma-
chines were serviced and maintained by IAM-
represented mechanics, who shuttled to Everett from
Seattle and other ports around the Puget Sound. IAM-
represented mechanics continue to be based in Seattle,
where they receive assignments and training and have
available a library of reference materials related to their
work.
In 1999, the Employer foresaw increased demand for
stevedoring services in Everett. This expectation led to
the introduction of new cargo-handling machinery at the
Employer’s Everett facility: a 100-ton Gottwald mobile
harbor crane and two reach stackers.1 The evidence does
not indicate that the Employer employed any ILWU-
represented employees qualified to service and maintain
the new equipment at the time it was put into use. The
Employer assigned the service and maintenance of these
machines to its IAM-represented mechanics. Two of
these IAM-represented mechanics were sent to Germany
for manufacturer-sponsored training on the repair and
maintenance of the Gottwald crane. This training lasted
2 to 3 weeks and primarily involved going over the
manuals specific to the Gottwald crane. The evidence
indicates that the training received by IAM-represented
employees on the Gottwald cranes was for the limited
purpose of familiarizing them with the contents of spe-
cific manuals, and not teaching the basic skills needed
for maintenance and repair work.
Pursuant to a grievance filed in 2000, ILWU argued
that under its collective-bargaining agreement with the
Employer, the repair and maintenance of the new
Everett-based equipment should properly have been as-
signed to ILWU-represented employees. This claim
went to arbitration, and the arbitrator ruled in early 2001
that the maintenance and repair work on the new equip-
ment should be assigned to ILWU. But because there
were no available ILWU-represented workers able to
perform the work, the Employer instead began paying for
two ILWU-represented workers to attend community
college for basic coursework. In 2005, at about the time
these ILWU-represented employees had completed their
coursework, IAM received word from the Employer that
the work it had been performing might be reassigned to

1 Reach stackers are vehicles used for lifting and stacking shipping
containers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
550
ILWU. In response, IAM sent a letter threatening to take
“all means necessary” to prevent the Employer from
transferring the disputed work, and told the Employer
that if the work were transferred, IAM would immedi-
ately picket the Everett facility.
B. Work in Dispute
The work in dispute is the maintenance and repair
work on SSA Marine’s Everett-based stevedoring
equipment.
C. Contentions of the Parties
ILWU moves to quash the notice of hearing, arguing
that the heart of the dispute is a work preservation claim
by ILWU-represented workers at Everett, not a jurisdic-
tional dispute contemplated by Section 8(b)(4)(D) and
Section 10(k) of the Act. ILWU contends that the Em-
ployer created this dispute by assigning service and
maintenance of the new crane and reach stackers to IAM-
represented mechanics in violation of the SSA/ILWU
collective-bargaining agreement. Therefore, ILWU con-
tinues, the Employer is not innocently caught between
two rival unions claiming the same work and should not
be able to obtain relief under Section 10(k). In the alter-
native, if the Board declines to quash the notice of hear-
ing, ILWU requests that the mechanics it represents be
awarded the work on the basis of its collective-
bargaining agreement with the Employer, area and indus-
try practice, the 2001 arbitral award referenced above,
and efficiency.
The Employer and IAM argue to the contrary that this
is a bona fide jurisdictional dispute and that therefore the
notice of hearing should not be quashed. They argue that
the Board should award the work to IAM-represented
mechanics based on their collective-bargaining agree-
ment, the history of the work in dispute, employer pref-
erence and past practice, area practice, skills and training,
and efficiency.
D. Applicability of the Statute
Before the Board may proceed with a determination of
a dispute pursuant to Section 10(k) of the Act, it must be
satisfied that (1) there are competing claims to the work;
(2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated; and (3) the parties have not
agreed on a method for the voluntary adjustment of the
dispute. Carpenters Local 275 (Lymo Construction Co.),
334 NLRB 422, 423 (2001); Teamsters Local 259 (Globe
Newspaper Co.), 327 NLRB 619, 622 (1999); and La-
borers Local 113 (Super Excavators), 327 NLRB 113,
114 (1998).
Evaluating the situation at the time the alleged pro-
scribed activity occurred in 2005, we find that these re-
quirements have been met. There are competing claims
to the work because IAM and ILWU both claim that re-
pair and maintenance of the Employer’s Everett-based
equipment should be assigned to employees they repre-
sent. As to the second requirement, to find reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated, we must find evidence that a union has used pro-
scribed means to enforce its claim to the work in dispute,
and that it had the proscribed objective of forcing an em-
ployer to assign the work to one group of employees
rather than to another group of employees. See, e.g.,
Stage Employees IATSE Local 39 (Shepard Exposition
Sevices), 337 NLRB 721, 723 (2002). We find this re-
quirement is met: IAM admits that it threatened to
picket if the Employer assigned the disputed work to
ILWU-represented mechanics. Finally, the third re-
quirement has also been met: no party has presented
evidence of a method agreed upon by all parties to re-
solve this dispute voluntarily.
We must also address ILWU’s contention that this
dispute is at its core about work preservation and that it
is therefore not a jurisdictional dispute. In distinguishing
between jurisdictional disputes and work preservation
disputes, the Board has held that where the employer has
unilaterally transferred the disputed work away from the
group that had been performing it, the Board will not
afford the employer the use of a 10(k) proceeding be-
cause the dispute is of the employer’s own making. See,
e.g., Machinists District 190 (SSA Terminal), 344 NLRB
1018 (2005) (Board quashed 10(k) notice of hearing
where employer “by its own unilateral actions” of as-
signing work exclusively performed by one group of
workers to another group “created a work preservation
dispute”); Seafarers (Recon Refractory & Construction),
339 NLRB 825 (2003) (Board quashed 10(k) proceeding
where work performed for a decade by one group of em-
ployees was suddenly shifted by employer to another
group); Teamsters Local 107 (Safeway Stores), 134
NLRB 1320 (1961) (no jurisdictional dispute where em-
ployer unilaterally transferred work and union picketed
in an effort to preserve contractual work its members had
traditionally performed). In all of these cases, the Board
quashed the notice of hearing because the employers
created the very dispute they were asking the Board to
resolve through 10(k) proceedings.
This case, however, differs from those work preserva-
tion cases because the Employer did not create the dis-
pute by re-assigning existing work. In coming to this
conclusion, we look to the “‘real nature and origin of the
dispute’ in determining whether a jurisdictional dispute
exists.” SSA Terminal, supra, 344 NLRB 1018, 1020
(quoting Teamsters Local 578 (USCP-Wesco), 280
MACHINISTS DISTRICT 160 LOCAL 289 (SSA MARINE) 551
NLRB 818, 820 (1986), affd. sub nom. USCP-Wesco,
Inc. v. NLRB, 827 F.2d 581 (9th Cir. 1987)).
The genesis of this work dispute lies in the Employer’s
introduction of new stevedoring equipment to the Port of
Everett in 2000, specifically the Gottwald crane and two
reach stackers. It is undisputed that ILWU-represented
employees had not performed any substantial service and
maintenance work on Everett-based stevedoring equip-
ment for almost two decades prior to 2000. In fact,
ILWU-represented workers stationed at Everett were not
qualified to perform service and maintenance work on
the Gottwald crane at the time it was installed at the Port
of Everett.2 Thus, unlike in the work preservation cases
cited above, the work in dispute here was, for all practi-
cal purposes, new work. When the Employer assigned
this work to its IAM-represented employees, it was not
unilaterally transferring work away from workers who
had been performing the work, or supplanting one group
of employees with another, and therefore the Employer
was not creating a dispute. Accordingly, we find that
this is not a work preservation dispute, but instead a ju-
risdictional dispute.
Based on the foregoing, we find that there is reason-
able cause to believe that Section 8(b)(4)(D) has been
violated. Having already also determined that there are
competing claims to the work and no agreed-upon
method to adjust the dispute voluntarily, we therefore
find that the dispute is properly before the Board for de-
termination under Section 10(k), and we deny ILWU’s
motion to quash.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia 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 ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402, 1410–1411 (1962).

2 ILWU has argued that mechanics it represented in 2000 did work
at the Port of Everett for other companies, but it has not established that
these workers were available to the Employer to service and maintain
the new machines. As explained above, although 1 year after the work
was originally assigned, ILWU was awarded the work by an arbitrator,
there were apparently no ILWU-represented mechanics qualified to do
the work at that time, and the Employer sent ILWU-represented work-
ers to community college for basic mechanical education. Those work-
ers attended classes part-time for approximately 3-1/2 years starting in
2001. These mechanics were not ready to begin on-the-job training
until sometime in late 2004 or early 2005.
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
The Employer is currently a party to collective-
bargaining agreements with both ILWU and IAM. SSA
employees represented by IAM are currently working
under a collective-bargaining agreement, with a term
from July 1, 2002, until April 1, 2006, stating in relevant
part that “IAM-represented employees will maintain and
repair all equipment owned or leased by SSA in the
Puget Sound area.”3 The Pacific Coast Longshore Con-
tract Document (PCLCD), a multiemployer agreement
with a term from July 1, 2002, through July 1, 2008,
governs the work of SSA employees at Everett repre-
sented by ILWU. The PCLCD provides, in section 1.71,
that the contract “applies to the maintenance and repair
of all stevedore cargo handling equipment.” The
PCLCD also contains a work preservation clause with
one limitation: Section 1.8 of the PCLCD states work
performed by others prior to July 1978 may be subcon-
tracted out.
Both unions have contractual claims which arguably
give them a claim to the work in dispute. We therefore
find this factor does not favor awarding the work in dis-
pute to employees represented by either union.4
2. Employer preference and past practice
The Employer has made it clear that it prefers to assign
the work to IAM-represented mechanics. The Em-
ployer’s maintenance manager, Darrell Stephens, testi-
fied that this “preference has been clear since the ‘50s.”
As to the specific work in dispute, past practice favors
the use of IAM-represented mechanics. For the past 5
years, all of the work in dispute has been performed by
employees represented by IAM. Although ILWU-
represented workers may have done similar work in the
1960s and 1970s, the recent past practice is more rele-
vant in resolving a current jurisdictional dispute.
We find that both employer preference and past prac-
tice favor awarding the work in dispute to employees
represented by IAM.

3 This language appeared for the first time in the 2002 contract.
4 The evidence that ILWU obtained an arbitration award in 2001 in-
terpreting identical language in its current bargaining agreement in a
manner consistent with ILWU’s claim to the work does not materially
affect our conclusion that both unions have mutually offsetting contrac-
tual claims to the work. In addition, the Board has given little or no
weight to arbitration awards when one of the parties to the jurisdic-
tional dispute was not bound thereby. Teamsters Local 179 (USF
Holland, Inc.), 334 NLRB 362, 364–365 (2001); Teamsters Local 952
(Rockwell International), 275 NLRB 611, 614 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
552
3. Area and industry practice
Both IAM and ILWU mechanics perform similar re-
pair and maintenance work on the West Coast. On the
Puget Sound, much of this work is done by IAM-
represented mechanics, although ILWU is responsible
for repair and maintenance in at least one Puget Sound
facility. The evidence does not establish that this factor
favors one union’s claim over the other.
4. Relative skills
As of 2005 when the picketing threat was made, the
IAM-represented mechanics had at least 5 years’ experi-
ence working on the very machinery whose maintenance
requirements form the core of this dispute. In 2000, two
of those mechanics participated in training sponsored by
the crane manufacturer, in which they were familiarized
with the contents of operating manuals for the new
Everett-based equipment. The evidence also shows that
IAM-represented mechanics are provided with an array
of educational and reference materials to aid them in
updating their skills. ILWU has not shown a comparable
level of skill and training. At best, the evidence shows
that two ILWU-represented employees are qualified to
begin on-the-job training in the service and maintenance
of the new machinery. We thus find that this factor fa-
vors awarding the work in dispute to IAM-represented
employees.
5. Economy and efficiency of operations
ILWU argues that it is more economical and efficient
to use IWLU-represented mechanics, who would be
based at Everett, rather than IAM-represented mechanics
who must commute from Seattle. IAM argues that it is
more economical and efficient to use IAM-represented
employees because they do not need any additional on-
the-job training. We find that this factor does not favor
awarding the work in dispute to employees represented
by either union.
Conclusion
After considering all the relevant factors, we conclude
that employees represented by IAM are entitled to per-
form the work in dispute. We reach this conclusion rely-
ing on employer preference, past practice, and relative
skills. In making this determination, we are awarding the
work to employees represented by IAM, not to the Union
or its members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute:
Employees of SSA Marine represented by Interna-
tional Association of Machinists and Aerospace Work-
ers, District Lodge 160, Local Lodge 289, are entitled to
perform maintenance and repair work on SSA Marine’s
Everett-based stevedoring equipment.