Marine Cooks and Stewards Union

National Labor Relations Board - Board Decisions

Jan 11, 1966

156 N.L.R.B. 753 (N.L.R.B. 1966)

MARINE COOKS AND STEWARDS UNION 753
other hand, the dispute was essentially between Local 46 and Pre-
fabricated over whether Prefabricated should operate in New York
or in New Jersey, we arrive at the same conclusion for somewhat dif-
ferent reasons. Local 46's complaint against Prefabricated was that
it had changed its method of operations by moving to New Jersey
with the effect of eliminating job opportunities for members of Local
46. A union's protest over such a change does not become a jurisdic-
tional dispute simply because another group of employees is there-
after obtained to do the work .8
To make relief available to employers under Section 8 (b) (4) (D) in
such a situation would restrict unions from applying legitimate eco-
nomic pressure in response to changes in production methods or to
changes in location which employees believe are detrimental to their
interests.
Upon the basis of the foregoing, we conclude that Local 46's strike
against subcontractors of the Charging Parties on March 8, 1965, did
not violate Section 8(b) (4) (D) of the Act. The disputes herein are
not, therefore, disputes within the meaning of Section 10 (k). Accord-
ingly, we shall quash the notice of hearing.4
[The Board quashed the notice of hearing.]
8 See International Brotherhood of Electrical Workers, Local 292, AFL-CIO (Franklin
Broadcasting Company ( Radio Station WMIN) ), 126 NLRB 1212; National Association
of Broadcast Employees and Technicians , AFL-CIO, et at. (Gordon Broadcasting of San
Diego, Inc ., d/b/a Radio Station KSDO ), 127 NLRB 1070; Chauffeurs, Teamsters and
Helpers, Local 331, International Brotherhood of Teamsters, etc. (Bulletin Company),
139 NLRB 1391
4 Member Fanning concurs in this conclusion on the basis of his dissenting opinion in
Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL -CIO (Arthur Tanners Company),
145 NLRB 1580, 1601.
Marine Cooks and Stewards Union , Member of Pacific District,
Seafarers International Union of North America, AFL-CIO
and Pacific Maritime Association and Matson Terminals, Inc.
and International Longshoremen's and Warehousemen 's Union,
Local 13, and International Longshoremen 's and Warehouse-
men's Union . Case No. 21 -CD-194. January 11, 1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge by Pacific Maritime
Association and Matson Terminals, Inc., herein called PMS and
Terminals, respectively, alleging that the Marine Cooks and Stewards
Union, member of Pacific District, Seafarers International Union of
156 NLRB No. 81.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North America, AFL-CIO, herein called MCS, had violated Section
8(b) (4) (D) of the Act. A hearing was held before Hearing Officer
Louis A. Gordon, on July 16, September 22 and 23, 1965. All parties
appeared at the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing upon the issues. The rulings of the Hearing Officer
are free from prejudicial error and hereby affirmed. Briefs have been
filed by the MCS, PMA and Terminals, and by the Intervenors, Inter-
national Longshoremen's and Warehousemen's Union and its Local 13.
Upon the entire record in this case, the National Labor Relations
Board 1 makes the following findings :
1. The business of the Employer
PMA is an association of employers engaged in the shipping, ste-
vedoring and terminal business at ports in California, Washington,
and Oregon. Its principal function is to act at the bargaining rep-
resentative of its members. Among its members are Matson Naviga-
tion Company, which operates vessels between Pacific Coast ports and
Hawaii, and Matson Terminals, Inc., which is engaged in the terminal
and stevedoring business in Wilmington, California.
The members of PMA do an annual gross volume of business in
excess of $500,000 and transport goods valued in excess of $50,000
annually for firms engaged in interstate commerce. PMA is an
employer engaged in commerce within the meaning of the Act .2
2. The labor organizations involved
The parties stipulated, and we find, that MCS and ILWU are labor
organizations within the meaning of the Act.
3. The dispute
A. The disputed work
The parties stipulated to the following description of the disputed
work :
"With reference to passenger baggage, flowers and gifts on foreign
flag ships at Matson berths in Wilmington, California :
"(a) Embarkation: The hand handling and hand carting of the
same from the point where received from the passenger to the mar-
shalling area or to the point where the same is turned over to the
foreign crew.
' Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman McCulloch and
Members Brown and Zagoria].
a We take official notice that Matson Terminals , Inc., is a wholly owned subsidiary of
Matson Navigation Company and that both Navigation and Terminals are engaged in
commerce within the meaning of the Act ; International Longshoremen's and Warehouse-
men's Union, Local 10 ( Matson Navigation Company ), 140 NLRB 449.
MARINE COOKS AND STEWARDS UNION 755
"(b) On debarking: The hand and hand carting of same from the
point where received from the passenger or foreign crew or from
customs or the marshalling area to the point where turned over to
the passenger." 8
B. The background
Although the cities of Los Angeles and Long Beach each have an
independent port authority to supervise their separate but contiguous
ports, we shall treat them as a single entity since PMA and the unions
so consider them. This is evidenced by the fact that each union uses a
single dispatch hall to service both ports, and treats labor disputes
on a harborwide basis. Wilmington, where Navigation and Terminals
have dock facilities, is within the Los Angeles segment of the harbor.
Since the late 1940's personnel dispatched from the MCS hiring
hall have handled passenger baggage on American flag vessels in the
harbor. When foreign flag passenger vessels first began to dock in the
harbor in the early 1950's, they were berthed in the Long Beach section,
and the stevedore contractors obtained baggage handlers from the
ILWU 'dispatch hall, apparently because longshoremen were already
handling cargo on foreign flag vessels. Longshoremen presently.han-
dle passenger baggage work on foreign flag vessels in the Long Beach
area, and also, although the record is not entirely clear on the point,
at all terminals in the Los Angeles area with the exception of the
Terminals facilities at Wilmington.
At Terminals' Wilmington facilities, MCS members were called to
handle passenger baggage when the first foreign flag ship docked in
1956, presumably because they had handled the same work aboard
American flag vessels at the same berths. On the infrequent occasions
thereafter when foreign flag vessels were berthed at Terminals, MCS
members were retained to service them. These ships were : MV IKungs-
holm, once in 1965, and once each year from 1958 through 1964; SS
Rotterdam, once in 1961; SS Seven Seas, once in 1964; and SS Staten-
dam, once in October 1964.4 Thus, the situation in 1964 was that MCS
handled passenger baggage on American flag vessels, wherever they
docked in the harbor, and ILWU handled passenger baggage for all
foreign flag vessels everywhere in the harbor except at Terminals,
where the work in question was performed by MCS.
ILWU first showed interest in obtaining work assignments at
Terminals in early 1964, when Terminals assigned the baggage work
on the SS Seven Seas, a foreign flag vessel, to MCS in accord with its
past practice at that dock. ILWU took the matter of assignment to
' At times the handlers alone carry the baggage on board ; at other times they move it
to a central point from which it is transferred by mechanical means between dock and ship.
' The only other foreign flag vessel to dock at Terminals since 1956 has been the RMS
Andes, in 1962 , for which no dock labor was requested
217-919-66-vol. 15 6-4 9
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the area arbitrator who referred the dispute to the PMA-ILWU Joint
Coast Labor Relations Committee for decision, where it remains
unresolved.
Thereafter, in October 1964, ILWU protested Terminals' assign-
ment of the disputed work on another foreign flag vessel, the SS Sta-
tend am, to MCS, and notified the Employer that it intended to claim
the work when the ship returned on November 25. Following an
arbitration proceeding under the ILWU-PMA contract, area arbitra-
tor Germaine Bulcke, on November 16, awarded the passenger baggage
handling to ILWU, for reasons to be discussed below. On Novem-
ber 23, MCS advised Terminals and Navigation by telegram that it
believed the status quo should be maintained until a tripartite arbitra-
tion proceeding could be held. Replying on November 24, PMA
advised MCS that while it would agree to tripartite arbitration, it
considered Terminals bound, in the absence of an agreement to hold
such an arbitration, to comply with the terms of the ILWU-PMA
contract, including arbitrator Bulcke's award.
Terminals instituted its compliance policy by requesting the ILWU
dispatch hall to send longshoremen to handle the disputed work for
the SS Statendam on November 25. It continued to use ILWU dis-
patch facilities when the SS Ryndam docked for the first time on
January 4, 1965, and when the SS Seven Seas returned to port on
February 7, 1965. However, when the MV Kwn.gslwlm arrived again
in March 1965, Terminals reverted to its former practice of obtaining
passenger baggage handlers through MCS dispatch facilities s
On April 16, MCS informed H. Vander Schalie, area industrial
relations manager for both Terminals and Navigation, in a letter
addressed to "Matson Steamship Company" that it intended to take
all necessary action, including picketing, to retain job assignments
historically performed by its members. Vander Schalie replied on
April 29 that Navigation had never hired longshoremen to handle
baggage on either foreign or domestic vessels; that its subsidiary,
Terminals, acted independently as a contract stevedore in employing
longshoremen for work connected with foreign flag vessels, under its
arrangements with steamship companies; that Navigation did not
control the outside contracts which Terminals executed; and that
Terminals was compelled to abide by the arbitrator's award when em-
ploying baggage handlers on foreign passenger vessels which had not
previously called in the Port of Los Angeles. In a letter of May 6
addressed to Vander Schalie at Navigation, MCS threatened to picket
the company's Wilmington dock facilities unless the work was assigned
' When ILWU protested this assignment , its grievance was referred to the Area Labor
Relations Committee, before which it is still pending.
MARINE COOKS AND STEWARDS UNION 757
to its members., Shortly thereafter, MCS advised counsel for PMA
that it would refrain from economic action against Terminals because
PMA had agreed to place the dispute before the National Labor
Relations Board.
C. Applicability of the statute
The foregoing uncontested facts afford reasonable cause to believe
that a violation of Section 8(b) (4) (D) has occurred.7 Accordingly,
we find that the dispute is properly before the Board for determination
under Section 10 (k) of the Act.
D. Contentions of the parties
PMA and Terminals take no position with respect to the merits of
the dispute, but request the Board to reach a determination which will
be compatible with the requirements of the status quo agreements in
both the ILWU-PMA and MCS-PMA contracts.
MCS contends that the factors of past practice at the Terminals
berths, the skill and experience of its members, and the Employer's
contractual assignment require an award to its members.
ILWU contends that its written contract with the Employers covers
the disputed operation, as evidenced by the arbitrator's award to which
Terminals has adhered. It also argues that the factors of area prac-
tice and its traditional jurisdiction further favor an award to its
members.
E. Merits of the dispute
Section 10(k) of the Act requires the Board to make affirmative
award of disputed work in a jurisdictional dispute case, which the
Board will do after balancing all relevant factors in the light to
common sense and experience."
Certain factors, which the Board frequently considers, are not help-
ful in determing the present dispute. Thus, neither union has been
certified as the exclusive collective-bargaining representative of the
employees engaged in performing the disputed work. The work
requires no special skills, and has been performed by members of both
6 Prior to his exchange of letters with Vander Schalle, the harbor port agent for MCS
had several phone talks with him , informing him that MCS sought jurisdiction of the
disputed work at Terminals facilities in Wilmington . Vander Schalie admitted that he
was acting on behalf of Terminals during these discussions , and the letters must be read
in light of that fact.
7ILWU moved at the hearing to quash the charge on the ground that MCS, in directing
its demand to Navigation, ordered Navigation to engage in a function and employ kinds of
employees which it had never done, and because there was no evidence that an object of
the MCS demand was to force or cause Terminals to take certain action . We deny the
motion because the evidence relating to Vander Schalie' s dual position as a labor relations
advisor for both Navigation and Terminals , the discussions and letters referred to above,
and the relationship between Navigation and Matson. clearly indicate that an object of the
MCS demand was to force or cause Terminals to assign the disputed work to its members
6 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A Jones Con-
atructson Company ), 135 NLRB 1402.
"75 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unions in an efficient manner. Although Terminals did assign the
work initially to MCS under an oral agreement, it subsequently
revoked its assignment for vessels which were new to the port, pursuant
to the ILWU-PMA arbitrator's awards in favor of ILWU, and has,
for purposes of this proceeding, declared itself neutral. We must
therefore rely upon other factors in determining to which group of
employees the disputed work should be awarded.
Passenger-baggage handling on foreign flag vessels does not clearly
fall within the jurisdiction of either union and is in effect "fringe"
work to each union's basic jurisdiction. The parties are in agreement
that the major issue centers on the interpretation of so-called status
quo provisions in the respective contracts, which allow outsiders to
continue performing work only if they had done so in the past. There-
fore, the extent to which MCS had the right to perform the work in
question at Terminals depends on whether past practice is determined
,on an individual-vessel basis, on an entire foreign-flag-line basis, or
,on a dock basis.
MCS has no written contract with Terminals or with any other
contract stevedore which services foreign flag passenger vessels in
the harbor. However, MCS is a party to a contract with PMA and
various American flag steamship lines, including Navigation, under
which MCS performs, inter alia, the passenger baggage handling on
American flag vessels. MCS predicates its claim to foreign flag
vessel work upon an oral agreement with Terminals entered into
when the first foreign flag vessel docked at Terminals in the late 1950's.
The agreement purportedly provided that Terminals would abide by
the wage and benefit terms of the MCS-PMA agreement, which it did
until November 1964. MCS contends that it is entitled to all baggage
work at Terminals by virtue of those sections in the written contract
denominated "Stand-by Work and Rate of Pay," and "Handling
Baggage" for freighter passengers. MCS further insists that past
practice should be determined on a dock basis, without, however, point-
ing to any pertinent provision of its written contract with the various
American flag companies.
ILWWWU admits that its current contract with PMA does not specifi-
cally refer to passenger baggage handling, but contends that the. opera-
tion is included in the undefined catch-all word "etc." in the following
clause :
This agreement shall apply to cleaning cargo holds, loading
ships stores, handling lines, marking lumber, hauling ship, lash-
ing, etc.
An additional basis for its claim is section 1.11 of the agreement which
provides that " . . . cargo ... at a dock ... under the control of any
MARINE COOKS AND STEWARDS UNION 759
vessel operator, agent, stevedore, or terminal covered by this Agree-
ment," is under ILWU jurisdiction.
On the basis of these contractual provisions, ILWU argues that its
members are entitled to perform all passenger-baggage handling on
foreign flag vessels at Terminals except when there is a past practice
for an individual vessel favoring MCS.
ILtiVU introduced arbitrator Bulcke's award in the matter of the
SS Statendam. Following a rule set forth by the Coast Labor Rela-
tions Committee in a previous harbor dispute between PMA-ILWU
over passenger baggage work on the foreign passenger vessel SS.
Caronia,9 arbitrator Bulcke held that the application of the status-quo
provision depended upon an individual vessel's past history within
the port. Since the October 1964 visit of the SS Statendan?, was its
first in the Harbor, there was no past practice; hence, the arbitrator
reasoned, the assignment of personnel other than longshoremen would
violate Section 1.11 of the agreement.
The evidence proferred by ILWU to support this interpretation of
past practice is somewhat inconsistent. For example, in explaining
how past practice was intended to be applied under the status quo
provision of the IL1\TU contract, a former ILWU official sometimes
referred to a vessel-by-vessel basis and at other, times described the
practice in terms of an entire foreign flag company. Moreover, there
are indications in the record that PMA was not always in agreement
with the ILWU interpretation of past practice on a strict vessel-by-
vessel basis.
Notwithstanding a lack of clarity in the explanations of the parties,
we are persuaded that the more reasonable interpretation of the status
quo understanding based on our discussion above requires us to define
past practice on a vessel-by-vessel basis. We also note that if we were
to adopt the MCS position that past practice is fixed on a dock basis,
we might be leaving the ultimate assignment of passenger baggage
handling to the Harbor Department of the city of Los Angeles, which
has the authority to assign unoccupied berths at Terminals to incom-
ing vessels.'
It is our considered judgment that the desirablility of a uniform
and predictable standard, past practice in the harbor, and contract
interpretation require an award of the disputed work to ILWU, except
on the MV Kungsholv?, and the SS Rotterdam, for which the MCS
O This dispute involved a vessel which had changed from a berth at a Long Beach
terminal, where longshoremen had performed the work, to one in Los Angeles where the
work was claimed by MCS because MCS members were then servicing all American flag
passenger vessels at that terminal.
10 Terminals holds its berths under a preferential berth assignment from the Harbor
Department, which gives the Department the right to assign ships to Terminals docks
which are unoccupied. While the record does not indicate that the Harbor Department
has ever made such an assignment to a Terminals dock, there seems to be no question as
to its right and power to do so.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past practice claim is undisputed ." In making this determination,
we are assigning the controverted work on all foreign flag vessels
which dock at Matson Terminals , Inc., in Wilmington, California, to
-longshoremen represented by ILWU, and not to that union or its
members. Similarly , we are assigning the disputed work on the MV
Kung8holm and the SS Rotterdam , whenever they dock at Matson
facilities in Wilmington , to personnel represented by MCS, and not
to that union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act, and upon the basis of the
foregoing findings, the Board makes the following determination of
dispute :
1. Longshoremen in the unit represented by International Long-
shoremen's and Warehousemen's Union, Local 13, are entitled to
perform the work of handling passenger baggage as described above
on all foreign flag passenger vessels which dock at the facilities of Mat-
.son Terminals, Inc., in Wilmington, California, with the exception of
the vessels MV Kungshol?n and SS Rotterdam, for which personnel
in the unit represented by Marine Cooks and Stewards Union, Member
of Pacific District, Seafarers International Union of North America,
AFL-CIO, are entitled to perform the disputed work. As a conse-
quence, MCS is not entitled*to' force or require the aforesaid Terminals
or PMA to' assign the disputed work to its members or to personnel
whom it represents by means proscribed by Section 8(b) (4) (i) and
(ii) (D) of the Act, except on the vessels named above.
2. Within 10 days from the date of this Decision, MCS shall notify
the Regional Director for Region 21, in writing, whether or not it
will refrain from forcing or requiring, by means proscribed by Section
8(b) (4) (i) and (ii) (D) of the Act, the assignment of the work in
dispute in a manner inconsistent with the above determination.
u ILWU conceded MCS' superior claim to handle passenger baggage work on the MV
Kungsholm since its members have performed the work exclusively since the vessel first
docked . in Los Angeles in 1956. While ILWU did not similarly concede MCS' right to
handle such work on the SS Rotterdam , it failed to dispute or grieve Terminals ' assign-
ment to MCS when the vessel was berthed in the Harbor in 1961 on its only trip there.
Heck 's, Inc. and Food Store Employees Union , Local #347,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Cases Nos. 9-CA-3363 and 9-CA-3415.
January 12, 1966
DECISION AND ORDER
On May 4, 1965, Trial Examiner C. IV. Whittemore issued.his
Decision in the above-entitled proceeding, finding that the Respondent
156 NLRB No. 73.