191 N.L.R.B. 493 (N.L.R.B. 1971)

Teamsters Local No. 85

National Labor Relations Board - Board DecisionsJun 23, 1971

191 N.L.R.B. 493 (N.L.R.B. 1971)

TEAMSTERS LOCAL NO.85 Brotherhood of Teamsters & Auto Truck Drivers Lo- cal No . 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and Pacific Maritime Association , Jones Stevedor- ing Company , Division of Crescent Wharf & Ware- house Company Brotherhood of Teamsters & Auto Truck Drivers Lo- cal No. 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and International Longshoremen's and Ware- housemen's Union Local No. 10. Cases 20-CD-314 and 20-CD-315 June 23, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, pursuant to charges filed by Pacific Maritime Association, herein called PMA, and International Longshoremen's and Warehousemen's Union Local No. 10, herein called Local 10 or ILWU, alleging that Brotherhood of Team- sters & Auto Truck Drivers Local No. 85, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, herein called Teamsters or Local 85, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Earl D. Brand on February 22, 1971. All parties appearing' were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter briefs were filed by PMA and ILWU. 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 powers in connection with this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding the Board makes the following findings: ' Teamsters appeared but left after making a motion to quash the notice of hearing and dismiss the charges I. THE BUSINESS OF THE EMPLOYER 493 Jones Stevedoring Company, Division of Crescent Wharf & Warehouse Company, herein called Jones or Employer, is engaged as a stevedore contractor with a place of business in San Francisco, California. Jones, an employer-member of PMA,2 performs stevedoring work for various shipping companies, who are also PMA employer-members, at piers and terminals in the San Francisco Bay region, including San Francisco, Oakland, Richmond, Sacramento, and Stockton. Dur- ing the past year Jones, in the course and conduct of its business operations, received more than $1 million for its loading and unloading services on cargo in inter- state and foreign commerce. Accordingly, we find that Jones 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 Teamsters and ILWU are labor organizations within the meaning of the Act. III. THE DISPUTE A. The Background Facts The dispute involves the assignment of the work of gear truck driving. A gearman is responsible for trans- porting the gear which will be used by longshoremen in cargo handling to and from the various docks. The gear is stored at Jones ' gear shop at pier 50. Jones, as a member of PMA, has an agreement with Local 10 ILWU covering longshore work and has al- ways, in accordance with that agreement, assigned gearman work to members of Local 10. Jones is not a signatory to any agreement with the Teamsters, and employs no Teamsters. At the time of the dispute Jones had approximately 8-10 gear trucks in operation ; all were assigned to ILWU members. There are approximately 60 gearmen who are also members of Local 10 ILWU similarly employed by other stevedoring companies in the San Francisco Bay area . Almost without exception (the ex- ceptions will be discussed infra) the gearmen in the Bay area are longshoremen who have progressed from cargo handling crews to gearmen. m PMA, THE Charging Party in Case 20-CD-314, is an association of employers in the shipping and related industry on the Pacific coast which operate oceangoing vessels in interstate and foreign commerce or perform terminal and stevedoring services directly connected with the transporta- tion of cargo in interstate and foreign commerce . PMA is organized for the purpose, inter alia, of negotiating , entering into , and administering collec- tive-bargaining contracts for and on behalf of its employer -members with the collective-bargaining representatives of their employees. 191 NLRB No. 98 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In approximately August 1970, Jones purchased an inventory of gear including one gear truck (a tractor- trailer rig) from Matson Navigation Company, herein Matson. On October 26, 1970, John Murnin, a Team- sters Local 85 business representative, spoke with Per Mork, operating manager for Jones, in the Jones office at pier 30-32. Murnin told Mork that the tractor-trailer rig (i.e . gear truck) acquired from Matson had been driven by a teamster,3 and that Teamsters continued to retain jurisdiction over the rig even though it had been sold to Jones. Captain Mork told Murnin that Jones had bought stevedoring gear and equipment from Mat- son Terminals, but that it had not bought any con- tracts, union agreements, or anything else. Murnin again asserted that members of Local 85 should drive this rig. Mork informed Murnin that Jones had a con- tract with ILWU and that, as long as he had worked for Jones, it had never used any labor but Longshore- men to drive its gear trucks. Mork refused to replace the Longshoremen with members of the Teamsters. The conversation ended when Murnin said that the driving of the gear trucks was Teamsters work and stated that Local 85 would "throw up a picket line." On the following day Local 85 began picketing Jones' San Francisco operations at piers 15-17, 28, 30-32, and 50 and its Howard Terminals operation, Oakland, California, with signs reading: JONES STEVEDORING COMPANY UNFAIR TO TEAMSTERS LOCAL 85 Also on this date and thereafter, Local 85 pickets effectively appealed to truckdrivers employed by other employers hauling cargo to and from the picketed loca- tions, thereby causing those drivers to refuse to deliver or pick up cargo. The picketing so directed at Jones continued at these various piers through the remainder of that regular workweek and into the following week. On November 3, 1970, papers were filed in the United States District Court seeking an injunction against this activity, and an order to show cause was served on Local 85. It was on that day that the picketing ceased. B. The Work in Dispute The work in dispute is the driving of trucks hauling longshore gear from place to place in the San Francisco Bay area where it will be used by longshoremen in the performance of this work. The longshore work is done under the ILWU-PMA collective-bargaining agree- ment. The gearmen move the gear to and from the ' The teamster referred to by Murnin was an employee of Matson Navi- gation Company who had been loaned to Matson Terminals from time to time to drive the big rig gear truck That teamster is now employed by Matson Navigation Company solely to move stores and handle pickup and delivery for the Matson purchasing department. Jones gear locker at pier 50 where it is stored, repaired, serviced, inspected, and maintained, to places where it is used by the longshoremen. Gear is the body of tools, equipment, and lavorsaving devices, both manual and mechanical, that is used by longshoremen in loading and unloading cargo. Before a job is begun the nature of the cargo and the gear that will be required is deter- mined; required gear is taken out of stock in the gear locker room by the gearman. It is then loaded on the gear trucks and driven to the pier where the work will be performed. Depending on the size of the gear needed various sized trucks from pickups to large tractor- trailer, rigs are utilized. The gearman unloads the gear and distributes it at the appropriate places on the pier or wharf so that it will be accessible to the longshore- man who perform the work of moving the cargo to and from the ship. Since a gearman is required to load and unload mechanical equipment such as pay loaders and tractors, he is required to possess the requisite motor vehicle permit for such vehicles. When the longshore work on the ship is finished, the gearmen will complete the job by gathering the gear that has been used, in- specting it, and loading it on the gear trucks. The gear is then driven back to the locker room or occasionally to the pier where it will next be used. The gearman is responsible for the servicing and maintenance of the gear, including inspection and repair. At the gear locker room, the gear is removed from the truck and put into inventory if it is in usable condition; otherwise, the gear may be repaired, salvaged, or discarded. Less than 30 percent of the gearman's working time is in- volved in the actual driving of gear trucks to and from dockside where the gear is to be utilized and in the loading and unloading of said gear from the gear truck. C. The Contentions of the Parties Jones, PMA, and Local 10 ILWU argue that, relying on the collective-bargaining agreement, company and area practice, and skills, efficiency, and economy of operations, the Board should issue a determination awarding work in dispute to Local 10 ILWU. The Teamsters participated in the hearing only for the purpose of moving that the notice of hearing be quashed and the underlying charges filed by PMA and Local 10 ILWU be dismissed. In support of its motion, the Teamsters contends that the underlying work as- signments has been resolved, because there was a com- plete and final settlement of the jurisdictional dispute.4 PMA and ILWU oppose the Teamsters motion to quash. In support of their opposition, they contend that, while the exhibits submitted by the Teamsters indicate that there was a settlement of a dispute be- ' we reject the Teamsters charge that the Regional Director abused his discretion and discriminated against the Teamsters in proceeding with the hearing as being unsupported by the record and without merit. TEAMSTERS LOCAL NO.85 tween Teamsters Local 85 and Matson, there was in fact no settlement of the work assignment dispute be- tween Jones and the Teamsters and that, because there was no voluntary adjustment of the dispute, the Board must proceed. D. The Applicability of the Statute Before the Board may proceed to a determination of a 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. The record is clear and uncontroverted that on Octo- ber 26, 1970, Murrain, in a conversation with Mork, claimed the operation of the gear truck which had been purchased from Matson for the Teamsters. When rebuffed, Murnin indicated that Local 85 would "throw up a picket line." As promised, on the following day Local 85 began picketing Jones at the piers where Jones was conducting its operations. While conceding the facts as to the original picket- ing, the Teamsters contends that the underlying dis- pute was later resolved, and that the Board should therefore quash the notice of hearing and dismiss the charges. The Teamsters exhibits, submitted at the hear- ing, do appear to show that there was a settlement agreement reached between the Teamsters and Matson with respect to the severance of the teamster who oper- ated the gear truck for Matson before the truck was sold to Jones. Yet, when PMA proposed, by letter of February 5, 1971, that the Teamsters confirm a com- plete and final settlement of the work dispute with respect to Jones, the Teamsters did not reply. In addi- tion, the continued existence of the dispute is confirmed by the statements of the Teamsters on the record. For before the Teamsters left the hearing, the Hearing Officer asked the Teamsters attorney if it claimed that any person represented by Local 85 should be assigned any work being done at the present time by members of Local 10 ILWU who are on the payroll of Jones. The Teamsters attorney answered that the dispute had been settled by the memorandum of agreement (the agree- ment between the Teamsters and Matson), that the document spoke for itself, and that he saw no reason to respond to any further questioning of any kind; It is therefore clear that the Teamsters did not unequivo- cally relinquish its claim for work in dispute. For these reasons , we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and the dispute is properly before the Board for determina- tion under Section 10(k) of the Act.' S For these same reasons , we deny the Teamsters motion to quash the notice of hearing. 495 E. The Merits of the Dispute The following facts are relevant in making a deter- mination of the dispute before us: 1. Collective-bargaining agreement At all times material herein, the Employer as a mem- ber of PMA has been a party to a collective-bargaining agreement with ILWU which covers the Employer's longshoremen. That contract specifically provides that All movement of cargo on vessels of any type or on docks or to and from railroad cars and barges on docks shall be covered by this Contract Docu- ment and all labor involved therein is assigned to longshoremen.... The Teamsters is not now, nor has it ever been, a party to a collective-bargaining agreement with Jones. 2. Company, industry, and area practice The practice as to the use of gearmen to drive trucks is clear. Jones has used no one but longshoremen-gear- men to drive its 8-10 gear trucks. Within the Bay area there are 60 longshoremen -gearmen (members of ILWU) who drive gear trucks. On the other hand the trucks of PMA members have been driven by only two persons other than fully registered longshoremen. One was an employee of Matson Navigation Company who was loaned to Matson Terminals from time to time to drive Matson's big gear truck (the tractor-trailer rig sold to Jones). The other nonlongshoreman who has driven a gear truck is a man who was hired by Marine Terminals, a PMA member, during World War II. He was hired to operate a crane' at a time when there was a shortage of qualified crane drivers to handle cargo to and from ships during the wartime emergency period. After this emergency need for such qualified men had terminated, there was an understanding reached that this man could continue to work in the longshore industry and would not be discharged. He was later used to drive a Marine Terminals gear truck from place to place as needed by Marine Terminals. The basic principle with respect to allowing an exception to the contract work assignment to such individuals is set forth in the IL- WU-PMA agreement, which provides that a nonlong- ' In this connection the Board has recognized that the dockside operation of cranes is an integral part of the longshore function and has awarded the operation of such cranes to ILWU in several cases . See International Long- shoremen's and Warehousemen's Union No 19 (American Mail Line, Ltd. and Mobile Crane Company), 144 NLRB 1432, International Long- shoremen's and Warehousemen 's Union and International Longshoremen's and Warehousemen's Union, Local No. 19 (Albin Stevedore Co. and Alaska Freight Lines, Inc.), 144 NLRB 1443; International Longshoremen's and Warehousemen's Union and its Local Union No. 10 (Howard Terminal), 147 NLRB 359; United Industrial Workers of North America, Pacific District, affiliated with the Seafarers' International Union of North America, AFL- CIO (Sea-Land Service, Inc), 188 NLRB No 32 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shoreman will be allowed to perform work that is within the work assignment of longshoremen in the following circumstances: The individual nonlongshoremen involved have been dependent on longshore work of the nature involved in the dispute so that the equities in favor of his continuing to make his livelihood in the performance of longshore work outweigh the equi- ties in favor of having this work done by long- shoremen.... The continuance of this nonlongshoreman in this job involved an understanding that, when he should termi- nate his employment, the work he had been doing would be done by the registered longshoremen-gear- men in accordance with the basic assignment of the ILWU-PMA contracts. In these circumstances it is clear that the treatment afforded this individual was in no sense a withdrawal of jurisdiction over the work of gear truckdriving. The evidence shows that the Bay area practice is typical of the practice along the entire Pacific coast. We also note that, except in this one instance, the Team- sters has apparently aquiesced in this well -established practice of ILWU-PMA in the assignment of long- shoremen to gear trucks. It is clear that this factor favors ILWU. 3. Relative skills, economy, and efficiency of operations The ILWU gearmen and the Teamsters appear to be equally skilled with respect to truckdriving. Some of the gearmen drive pickups, others drive larger trucks, and some drive the very large tractor-trailer rigs. The gearmen who have "A" licenses which permit the driv- ing of street and highway vehicles of any size are qua- lified to handle all trucks including the tractor-trailer type rig . Four of the Jones ' gearmen have "A" licenses that authorize them to drive such rigs. However, as indicated supra less than 30 percent of a gearman 's working time is involved in driving gear trucks to and from the docks and in loading and un- loading the gear from the trucks. In this connection, we note that the teamster who drives a gear truck for Marine Terminals does not do the related additional gearman work, but rather is limited to driving the truck from place to place. The remainder of the gearman's working time is spent maintaining an inventory of gear . Thus, during the times when the gearmen are not working with the longshoremen directly on the job or getting gear to and from the job, they are employed in a variety of other work necessary to the carrying on of longshore work. They repair, build, paint, and inspect gear, and do related work to see that the gear is in shape for use in appropriate quantities when the actual work of loading and discharging cargo is to be done. The familiarity and experience obtained as a long- shoreman in the use of all types of gear is very helpful if not, in fact, necessary, to a gearman. In addition, a gearman must be able to operate the mechanical gear such as pay loaders and tractors used in longshore work since he is required to load and unload such mechanical gear from the gear trucks . If a gearman 's services are not required by one of the PMA members he can be dispatched as an ordinary longshoreman from the hir- ing hall. It seems clear that, although the Teamsters may pos- sess the skills required for the actual operation of the gear trucks, they would not normally possess the skills required to perform the majority of the longshoreman- gearman's function. The utilization of Teamsters in driving gear trucks would therefore appear to require an extra man who would actually work less than 30 percent of the time. In our opinion, it appears clear that the factors of skills, economy, and efficiency of opera- tions favor the ILWU. CONCLUSIONS Upon the entire record in this case and the foregoing considerations of all relevant factors, we conclude that the longshoremen-gearmen represented by the ILWU are entitled to the work in question, and we shall deter- mine the dispute in their favor. In making this deter- mination , we are assigning the disputed work to the employees of Jones who are represented by Local 10, ILWU, but not to that Union or its members. The present determination is limited to the particular con- troversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and, upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board hereby makes the following determination of dispute. 1. Longshoremen employed by Jones Stevedoring Company, San Francisco, California, who are repre- sented by International Longshoremen's and Ware- housemen's Union Local No. 10, are entitled to per- form the work of gearmen which includes gear truckdriving. 2. Brotherhood of Teamsters & Auto Truck Drivers Local No. 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Jones Stevedoring Com- pany to assign such work to employees represented by the aforesaid Union. TEAMSTERS LOCAL NO.85 497 3. Within 10 days from the date of this Decision and not they will refrain from forcing or requiring Jones Determination of Dispute, Brotherhood of Teamsters Stevedoring Company by means proscribed by Section & Auto Truck Drivers Local No. 85, shall notify the 8(b)(4)(D) to assign the work in dispute in a manner Regional Director for Region 20, in writing, whether or inconsistent with the above determination.