Stevedoring Services Of America

National Labor Relations Board - Board Decisions

May 30, 1986

279 N.L.R.B. 1294 (N.L.R.B. 1986)

1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Federation of Guards, Local No. 1 (Indies
Terminal Company, d/b/a Stevedoring Services
of America ' and Warren C. Ogden
International Longshoremen 's and Warehousemen's
Union , Local 26 (Indies Terminal Company)
and Warren C. Ogden . Cases 21-CD-543 and
21-CD-544
30 May 1986
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
This is a proceeding under Section 10(k) of the
National Labor Relations Act. On 25 October
1985, Attorney Warren C. Ogden, on behalf of the
Employer, filed a charge in Case 21-CD-543, al-
leging that American Federation of Guards, Local
No. 1 had violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an
object of forcing the Employer to assign certain
work to employees represented by it rather than to
employees represented by International Longshore-
men's and Warehousemen's Union, Local 26.
Thereafter on 28 October 1985, Attorney Ogden
also filed a charge in Case 21-CD-544 alleging that
Local 26 engaged in similar conduct in violation of
Section 8(b)(4)(D). An order consolidating cases
and notice of hearing issued 1 November 1985. The
hearing was held 26 November 1985 before Hear-
ing Officer Alfredo Magallanes.
All parties appeared at the hearing and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter, all parties filed
briefs in support of their positions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board finds the hearing officer's rulings free
from prejudicial error.
On the entire record, the Board makes the fol-
lowing findings
1. JURISDICTION
The Employer is engaged in warehousing and
stevedoring services at Terminal Island in Los An-
geles , California. During the 12-month period im-
mediately before the hearing, it performed services
valued in excess of $50,000 for customers located
within the State of California; those customers pur-
chased and received goods valued in excess of
$50,000 directly from suppliers located outside the
' The Employer's name appears as amended at the hearing
State of California. The parties stipulated and 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
The parties stipulated and we find that American
Federation of Guards, Local No. 1, and Ware-
house, Processing & Distribution Workers, Local
26, International Longshoremen's and Warehouse-
men's Union are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Before April 1985, Indies Terminal Co. operated
as an independent California corporation along 10
berths on Terminal Island . Indies has bargained
collectively with American Federation of Guards,
Local No. 1 as representative of its guard employ-
ees since that Union was certified by the Board in
1960. Indies' initial collective-bargaining agreement
with Local 1 was a part of a multiemployer asso-
ciation consisting of approximately seven employ-
ers. The number of employer-members has dimin-
ished over the years with the result that the 1984-
1987 collective-bargaining agreement applies to
only one other employer.
In April 1985, Stevedoring Services of America
(SSA), apparently through its subsidiary company,
Crescent Wharf and Warehouse (Crescent), ac-
quired Indies . SSA brought in supervisory person-
nel from other facilities to operate the Indies Ter-
minal . It reduced the number of Local 1-represent-
ed day-shift guards by two or three, and made ad-
ministrative changes that did not directly affect the
guard function.
Before the acquisition of Indies by Crescent and
SSA, the latter two companies , through their par-
ticipation in the Pacific Maritime Association, had
since 1972 been signatories to collective-bargaining
agreements with ILWU Local 26 convering all
guards employed at their facilities in the Los Ange-
les-Long Beach and San Francisco, California
areas .2 The current SSA-Local 26 contract, effec-
tive from 1984-1987, has been interpreted previous-
ly as being applicable to any facilities within the
geographical area serviced by SSA.
In May , Local 1 notified SSA in writing of its
existing collective-bargaining agreement with
8 Through their participation in bargaining through the Pacific Man-
time Association, Indies formerly, and SSA currently, employs long-
shoremen , clericals, and foremen at Indies Terminal who are represented
by ILWU local unions
279 NLRB No. 171
GUARDS LOCAL 1 (STEVEDORING SERVICES) 1295
Indies , and SSA responded by letter stating that
SSA would honor the Local 1 agreement. SSA in
fact granted wage increases to guard employees at
Indies in July 1985 in accordance with the Indies-
Local 1 agreement.
About the time of the SSA acquisition of Indies,
other SSA facilities were being phased out with re-
sulting loss of employment by guard employees
represented by Local 26. Local 26 filed a grievance
for the guard-work assignment at Indies under the
contractual grievance and arbitration procedure
contained in the Local 26-PMA collective-bargain-
ing agreement, to which Local 1 is not a party.
An area arbitrator initially dismissed Local 26's
claim on the ground that it raised a jurisdictional
dispute. Thereafter, Local 26 appealed the dismissal
to the coast arbitrator, who reversed and referred
it back to the area arbitrator for a decision on the
interpretation of the contract. The area arbitrator
thereafter rendered an award extending the SSA-
Local 26 collective-bargaining agreement to the
Indies Terminal. As a consequence of the arbitra-
tor's award in favor of Local 26 in October 1985,
SSA replaced the Local 1 guards at Indies with
guards represented by Local 26.
Testimony by Local 26 President Gratz revealed
that Local 26 threatened to picket if the guard
work at Indies were not assigned to its members.
Attorney and Charging Party Ogden also repre-
sented at the hearing that Local 1 similarly threat-
ened to picket if the work were taken away from
its members. Ogden stated at the hearing that he,
therefore, filed 8(b)(4)(D) charges against both
unions.
B. Work in Dispute
The parties stipulated to the following descrip-
tion of the disputed work:
The work of protecting, watching and safe-
guarding all property in sheds, on docks, or in
adjacent cargo storage areas, by guards or
watchmen, at the Indies Terminal, facility lo-
cated at Berths 215-224, Terminal Island, Cali-
fornia.
C. Contentions of the Parties
Local 1 contends that Section 9 (b)(3) of the Act,
which prohibits the Board from certifying mixed
guard and nonguard units or unions , precludes the
Board from awarding the disputed work to guards
represented by Local 26 because it is affiliated with
nonguard local unions that in fact represent the
longshoremen and clericals employed by Indies and
SSA. It further contends that an award of the
work by the Board to employees represented by
Local 26 would foster divided loyalty by Local 26-
represented guards in the event of a dispute be-
tween the Employer and any of its nonguard em-
ployees represented by ILWU sister locals. In addi-
tion, Local 1 argues that the Employer's work as-
signment to Local 26 was solely attributable to co-
ercion by Local 26, as demonstrated by SSA's ini-
tial decision to honor the Indies-Local 1 contract,
and by testimony of Gene Smith, the Employer's
assistant vice president, that in his opinion the
work assignment would have remained with Local
1 members if Local 26's president had not threat-
ened to picket and shut down the terminal.
Local 26 takes the position that the Board has
specifically rejected Local l's first argument in
Longshoremen ILA Local 1332 (Philadelphia
Marine), 215 NLRB 801 (1974). In that case the
Board noted that Section 9(b)(3) does not prohibit
voluntary recognition of a mixed guard union or a
union representing a unit comprising both guards
and other employees, although that section does
proscribe Board certification of such unions or
units. Id. at 804. It further observed that a jurisdic-
tional dispute award is "not tantamount to a Board
certification of a unit," since the Board's award
runs in favor of a group of employees, not a par-
ticular union. Id. We need not consider whether
that dictum in Philadelphia Marine has been limited
by more recent Board cases involving Section
9(b)(3). As explained below, consistent with the
holding in that case, we will consider the policies
underlying Section 9(b)(3) as a factor in determin-
ing which group of employees should be awarded
the work; but since our decision is to award the
work to Local 1, we need not resolve the question
whether Section 9(b)(3) operates as an absolute bar
to an award of guard work to a mixed guard or
nonguard union.
The Employer asserts that the evidence on
record favors an award to the guards represented
by Local 26, but it filed a motion to reopen the
record for testimony by one of its two top manage-
ment officials (who were allegedly out of the coun-
try at the time of the hearing) on the factor of em-
ployer preference. The Employer asserts that As-
sistant Vice President Smith's testimony was admit-
tedly speculative and, therefore, of no probative
value. Local 26 joins in the Employer's motion to
reopen for further testimony, and Local 1 opposes
the motion on the grounds that the Employer, who
had ample notice and opportunity to present wit-
nesses, did not timely raise this issue and has failed
to establish that the evidence it seeks to adduce at
a reopened hearing is either newly discovered or
previoualy unavailable.3
3 The Employer's motion to reopen the record for further testimony is
dented
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Applicability of the Statute
Before the Board may proceed under Section
10(k) of the Act to determine a jurisdictional dis-
pute, it must find that there is reasonable cause to
believe Section 8 (b)(4)(D) has been violated and
that there is no agreed -upon method for resolving
this dispute binding on all the parties.
Local 26 President Luisa Gratz admitted at the
hearing that she had told Indies officials that she
might picket "or do whatever she had to" if Indies
refused to honor the arbitrator 's award in favor of
Local 26. Attorney Ogden 's representation at the
hearing that Local 1 threatened to picket Indies if
it reassigned the work to guards not represented by
Local 1 was not contradicted . Consequently, we
conclude that there is reasonable cause to believe
that Local 26 and Local 1 have violated Section
8(b)(4)(D) of the Act. See Typographical Union
Local 6 (New York Times), 225 NLRB 1311 (1976)
(expression of "readiness to strike" sufficient); Li-
thographers Local 24-P (Beacon Journal), 185 NLRB
464 (1970) (union in possession of work threatened
to resist reassignment).
In addition, the parties agree that there is no mu-
tually agreed -upon method for voluntarily resolv-
ing this dispute . Accordingly , we conclude that the
dispute is properly before the Board for determina-
tion.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB v. Electrical Workers IBEW
Local 1212 (Columbia 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 experience , reached by bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification, collective -bargaining
agreement , and arbitration awards
The claim of American Federation of Guards
Local I is predicated on a continuous bargaining
history that commenced with a Board certification
as the representative of the employees performing
guard duties in 1960 . SSA, by letter of 20 May
1985, specifically assumed Indies' 1984-1987 collec-
tive-bargaining agreement with Local 1 and imple-
mented the July 1985 contractual wage increases
for guards represented by Local 1.
Local 26's current 1984-1987 collective-bargain-
ing agreement with SSA was held by the 18 Octo-
ber 1985 award of an area arbitrator to be applica-
ble to its recently acquired Indies Terminal facility.
The factors of certification and collective-bar-
gaining agreements favor award of the work to
guards represented by Local 1. Although the arbi-
tration award supports Local 26's claim , it is enti-
tled to little or no weight as to the ultimate award
because Local 1 was not a party to the contractual
arbitration procedure and its contract and long
contractual relationship with Indies was not consid-
ered by the arbitrator . Although it establishes that
the Local 26 contract also covers the guard work,
Local 26 has not been certified as representative of
employees performing that work.
2. Employer preference
The evidence shows that in May 1985 SSA
agreed in writing to honor the Indies-Local 1 col-
lective-bargaining agreement and, pursuant thereto,
implemented a wage increase for guards in July
1985. Following the arbitrator 's award in favor of
Local 26 in October 1985, management instructed
Assistant Vice President Smith to assign the work
to the Local 26-represented guards . Smith 's further
testimony regarding his belief that the work would
not have been reassigned if Local 26 had not
threatened to shut down the terminal is shown to
be purely speculative in light of Smith 's admission
that management had not confided to him the basis
of its decision to reassign the disputed work.
We find from the foregoing that the evidence re-
garding the Employer's preference is mixed and in-
conclusive and that this factor , therefore , does not
favor either of the competing groups.
3. Employer and area industry practice
Local I represented guards have performed the
disputed work at Indies Terminal since 1960 as part
of a multiemployer bargaining unit containing ap-
proximately six other employers . On the other
hand, Local 26-represented guards were employed
by a larger number of employers in the Los Ange-
les-Long Beach and San Francisco, California area,
including SSA, since 1972. Local 26-represented
guards were not employed at Indies Terminal
before the October 1985 arbitration award in its
favor.
We find that employer practice favors an award
of the work to employees represented by Local 1,
but that industry area practice is inconclusive.
4. Relative skills
The evidence shows that no special skills are re-
quired , and that both groups of employees are
equally capable. We conclude that this is a neutral
factor.
GUARDS LOCAL I (STEVEDORING SERVICES) 1297
5. Economy and efficiency
The practice under the Indies-Local 1 collective-
bargaining agreement was employment of the same
individuals on a regular basis to perform the guard
duties on each of the three 8-hour shifts. After re-
assignment of the disputed work to Local 26-repre-
sented guards, an employee identified as Sergeant
Cardero was the only guard employed on a regular
basis. Caredero testified that she requested individ-
uals from the Local 26 hiring hall on an as-needed
basis, except that she requested three specific indi-
viduals from the hiring hall on a 5-day call-back
basis. The record shows that, during the first 30
days of operation under the Local 26 hiring hall,
15 different individuals were referred to work as
guards who had not previously worked at Indies
Terminal, and all of these individuals had to be
conducted on 30-minute orientation tours of the
premises before beginning their shifts.
We conclude from the foregoing that this factor
favors an award to Local 1-represented guards.
6. Nonguard affiliation
The applicability of Section 9(b)(3) of the Act
was raised in Longshoremen ILA Local 1332 (Phila-
delphia Marine), 215 NLRB 801 (1974), a prior
Board proceeding under Section 10(k) of the Act.
In that case (id. at 804) the Board pointed out the
very real danger that
. . . where guards and nonguards of the same
employer belong to the same union, the con-
flict of loyalties thereby created will interfere
with the duties of the guards vis-a-vis, their
fellow union members. This of course is the
reason for 9(b)(3) prohibitions. The representa-
tion of guard employees is therefore an appro-
priate circumstance to consider in deciding the
award of disputed work.
In the instant case the parties stipulated that
longshoremen, clericals, and foremen employed at
Indies Terminal are represented by ILWU sister
locals 13, 63, and 94, respectively. Accordingly, we
find here, as in the cited case, that this factor
favors an award to employees represented by
Local 1 since members of that Local are not faced
with the conflict of loyalties that exists for mem-
bers of Local 26.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by American
Federation of Guards, Local No. 1 are entitled to
perform the work in dispute. We reach this conclu-
sion based particularly on the following factors:
certification and collective -bargaining agreements,
employer practice, economy and efficiency, and
the composition of membership of the competing
labor organizations . In making this determination,
we are assigning the disputed work to employees
who are represented by Local 1 and not to that
labor organization or its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Indies Terminal Company,
d/b/a Stevedoring Services of America, represent-
ed by American Federation of Guards, Local No.
1, are entitled to perform the work of protecting,
watching, and safeguarding all property in sheds,
on docks, or in adjacent cargo storage areas at the
Indies Terminal, facility located at Berths 215-224,
Terminal Island, California.
2. Warehouse, Processing and Distribution
Workers, Local 26, International Longshoremen's
and Warehousemen's Union is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act
to force or require the assignment of the above
work to its members or to employees it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Warehouse, Proc-
essing and Distribution Workers, Local 26, Interna-
tional Longshoremen's and Warehousemen's Union
shall notify the Regional Director for Region 21 in
writing whether or not it will refrain from forcing
or requiring Indies Terminal Company, d/b/a Ste-
vedoring Services of America, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign
the above-described disputed work to employees
represented by Local 26 rather than to employees
represented by Local 1.