Clerks & Checkers Loc. 1351, Longshoremen

National Labor Relations Board - Board Decisions

Oct 14, 1975

220 N.L.R.B. 1270 (N.L.R.B. 1975)

1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clerks and Checkers Local 1351 , International
Longshoremen 's Association and Sea-Land Serv-
ices, Inc. and Teamsters Local No. 988
Teamsters Local No. 988 and Sea-Land Services, Inc.
and Clerks and Checkers Local 1351 , International
Longshoremen 's Association. Cases 23-CD-334
and 23-CD-335
October 14, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed May 5 and 7, 1975, by Sea-Land
Services, Inc., hereinafter called the Employer,
against the Clerks and Checkers Local 1351, Interna-
tional Longshoremen 's Association , hereinafter
called the Clerks and Checkers, and against the
Teamsters Local No. 988, hereinafter called the
Teamsters, respectively. The charges allege that each
Respondent has violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring the Employer to
assign certain work to employees represented by its
labor organization rather than to employees repre-
sented by the other labor organization.
A hearing was held before Hearing Officer James
L. Palmer on July 17 and 18, 1975, at Houston, Tex-
as. 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.
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 au-
thority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and hereby
are affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE COMPANY
The parties stipulated that the Employer, a Dela-
ware corporation , is engaged in the interstate trans-
portation of marine cargo, and that during the past
12 months, a representative period, the Employer re-
ceived gross revenue in excess of $50,000 and per-
formed services in excess of $50,000 for enterprises
doing business across state lines . We find , therefore,
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 juris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the Clerks
and Checkers and Teamsters are labor organizations
within the meaning of the Act.
III. THE DISPUTE
A. The Work in, Dispute
The work in dispute is checking the container yard
inventory , including checking the loading , contents,
or condition of the containers in the container yard.
B. Applicability of the Statute
The parties stipulated that the Employer and the
Clerks and Checkers and the Employer and the
Teamsters had discussions concerning the work in
question prior to the filing of charges in Cases
23-CD-334 and 23-CD-335, respectively, which the
Employer could have interpreted as a threat within
the meaning of Section 8(b)(4)(D) of the National
Labor Relations Act. The parties further stipulated
that there is no formal or informal tripartite agree-
ment or process which can resolve the dispute of the
issue in question. Accordingly, we find that reason-
able cause exists to believe that the threat violated
Section 8(b)(4)(D) of the Act.
C. Background and Facts of the Dispute
The Employer is a container steamship line com-
pany engaged in both domestic and foreign steam-
ship service from Houston. The cargo is loaded into
containers and is delivered either in a domestic run
or offshore. Currently, the Employer's yard holds ap-
proximately 1,000 containers, which are boxes filled
with cargo. The box itself is attached to a chassis
with wheels locked on the chassis and is then suitable
for over-the-road travel. When such a container
moves to shipside for shipment by an oceangoing
carrier, the chassis is unlocked and the container is
lifted aboard ship and deposited in its allotted space.
Longshoremen, who are members of a different local
than the clerks and checkers, normally move the con-
tainer from the yard to the ship, or from the ship to
the yard. Containers that contain material which will
be loaded on the ship may first go to the platform
loading dock for unloading and further packing. In
220 NLRB No. 203
CLERKS & CHECKERS LOC. 1351, LONGSHOREMEN 1271
this event, they are moved to the platform loading
dock by teamsters.
The Employer is a fully integrated operation and
owns its own ocean carriers, trucks, terminals, ware-
house, and containers. Because it is a combination of
freight forwarder, pickup and delivery, and ocean
carrier, the Employer employs both teamsters and
longshoremen. The Employer employs its own driv-
ers, represented by the Teamsters, within the com-
mercial zone of Houston to deliver domestic cargo.'
Pickup and delivery of the offshore traffic and the
domestic traffic outside the Houston commercial
zone is handled by interline truckers. Although the
evidence is conflicting regarding the checking of in-
ventory, it appears that the employees represented by
Teamsters have traditionally checked the interline
trucks bringing containers in and out at the gate to
the container yard. Moreover, it appears that em-
ployees represented by the Clerks and Checkers have
traditionally checked containers moving from vessel
to wharf, or from wharf to vessel. The controversy,
however, concerns the checking of the container yard
inventory, including checking the loading, contents,
or condition of the container yard. This disputed
work is actually composed of two elements: (1) "In-
ventorying containers"-the checking of the contain-
ers at their different and changing locations in the
yard, and (2) "Spot checking"-checking the load,2
contents and condition of the containers in the yard.
Employer,' nor the contract entered into by the
Clerks and Checkers with the West Gulf Maritime
Association, is applicable since both agreements
were negotiated with multiemployer groups and are
not specifically designed to cover an integrated oper-
ation of this type. The Teamsters also contends that
the work in question has traditionally been assigned
to employees represented by the Teamsters, that it
will be more efficient and economical if employees
represented by the Teamsters perform the work since
these employees, unlike employees represented by
the Clerks and Checkers, can also help open the con-
tainers, and since it is totally unnecessary for em-
ployees represented by the Clerks and Checkers to
perform full-yard inventories of containers which are
destined to go inland or destined to go to the dock
for unloading that day, as this work would be per-
formed by employees represented by the Teamsters.
The Employer takes no position as to the assign-
ment of the particular work in dispute.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors . The fol-
lowing factors are relevant in making a determina-
tion of the dispute before us:
D. The Contentions of the Parties
The Clerks and Checkers contends that the disput-
ed work properly must be performed by employees it
represents because the Clerks and Checkers agree-
ment with the Employer and other member compa-
nies of the West Gulf Maritime Association specifi-
cally provides that the work in question is to be done
by employees represented by the Clerks and Check-
ers at the Port of Houston; because checking and
inventory is the only work performed by employees
represented by the Clerks and Checkers at the Port of
Houston ; and because employees represented by the
Clerks and Checkers perform identical work
throughout the port.
The Teamsters contends that employees it repre-
sents have traditionally performed this work and that
the only area practice applicable herein is the unique,
integrated operation of the Employer itself. It argues,
moreover, that neither the collective-bargaining
agreement entered into by the Teamsters with the
1 The Employer operates on a 5-acre tract located in the Port of Houston,
which is fenced in and leased to various stevedoring and marine outfits.
2 "Loading" here refers to how the contents of the container are arranged
and loaded ; it does not refer to the actual container -loading work.
1. Collective-bargaining agreements
The collective-bargaining agreement between the
Teamsters and the Employer consists of the National
Master Freight Agreement which provides ( in article
40) that employees covered by the agreement must
include, inter alia, "Checkers." The provisions of the
contract between the Clerks and Checkers and West
Gulf Maritime Association provide that the Clerks
and Checkers shall make a record of containers re-
ceived at or delivered from the waterfront facility
and shall check freight from vessel to wharf and
wharf to vessel. We find the language in these con-
tracts is too ambiguous to support the contentions of
either Respondent that the work has been contractu-
ally awarded to employees represented by their re-
spective Unions. Clearly, employees represented by
each Union properly perform some checking. The
Clerks and Checkers does not contend that employ-
ees represented by the Teamsters improperly check
the "Teamster gates" and inventory containers car-
ried by interline truckers. Moreover, it is apparent
that the employees represented by the Clerks and
3 The National Master Freight Agreement and Southern Conference Area
Local Freight Forwarding Pickup and Delivery Supplemental Agreement is
the major basis for the agreement between the Employer and the Temasters.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Checkers have traditionally checked all containers
which are loaded onto or unloaded from vessels at
the wharf. Accordingly, we find that this factor does
not favor either Respondent over the other.
2. Employer's assignment and past practice;
competitor, area, and industry past practice
The testimony regarding the Employer's assign-
ment in the past was conflicting and contradictory.
Much of this testimony was based on hearsay and
there was testimony that employees represented by
both the Clerks and Checkers and the Teamsters had
performed full-yard inventories as well as spot
checks. As stated above, the Employer takes no posi-
tion as to the assignment of the work in dispute.
However, it is clear from the record that the
Employer's competitors in the Port of Houston have
had all container inventorying and spot-checking
work performed by employees represented by the
Clerks and Checkers. Although we are aware that the
Employer is the only employer whose facility is fully
integrated, we consider the work at issue to be sub-
stantially similar whether performed within the
Employer's facility or that of another employer. All
facilities require that inventories be performed, that
spot checks be executed occasionally and that mer-
chandise loaded and unloaded be clerked and
checked. Thus, this factor favors an award to the em-
ployees represented by the Clerks and Checkers.
3. Relative skills, efficiency, and economy of
operation
Although it is apparent that employees represented
by both Unions are qualified to perform the opera-
tion in issue, we find that the disputed work could be
performed more efficiently by employees represented
by the Clerks and Checkers. Although the record is
not totally clear, it appears that employees repre-
sented by the Teamsters check in containers which
are carried by interline carriers to the Employer's
container yard. Subsequently, the containers are
stored in the yard. Occasionally, the contents of a
container must be ascertained or "spot checked."
This check may be necessary because there is a ques-
tion as to the type of cargo or its destination and
whether it is properly loaded, blocked, or braced.
Prior to each sailing and immediately thereafter, a
checker represented by the Teamsters makes a total-
yard inventory which lists each trailer and its specific
yard location. Prior to each sailing, an employee rep-
resented by the Clerks and Checkers also inventories
the containers to ascertain their location for a more
efficient loading on the vessel. Thus, it appears that
employees represented by both Unions perform this
disputed work. However, it appears to us that the
operation would be more efficiently performed if
only employees represented by the Clerks and
Checkers performed the work. Thus, before a ship is
due at the wharf, a clerk or checker could perform a
yard inventory. If he has a list of containers to be
loaded on the ship, he can proceed through the sec-
tion of the yard where the containers are stored and
diagram the location of each container to be loaded.
In the unlikely event that he is not certain which
containers must be loaded on the ship, he can allot
more time for performing the yard inventory and di-
agram the location of all the containers which poten-
tially could be loaded on the ship. Having initially
inventoried the containers, this checking should pro-
ceed smoothly by those employees represented by
the Clerks and Checkers. Although it is true that
some unnecessary inventorying will result since these
employees will make a record of containers which
will proceed to the warehouse dock rather than to the
wharf or which may be moved to another part of the
yard in the future, it appears that some degree of
inefficiency inevitably must result due to the division
of labor and complicated logistics of "hostling" the
containers and moving them on to ships or trucks.
The spot checking does not appear to be a com-
monplace procedure. Nevertheless, there appears to
be no reason why employees represented by the
Clerks and Checkers cannot easily perform this work
when it is necessary that the Employer ascertain the
contents or condition of particular containers. As ev-
idence of the ease with which employees represented
by the Clerks and Checkers should be able to per-
form this work is the fact that this work of checking,
inventorying, listing, recording, and spot checking is
the exclusive work performed by employees repre-
sented by the Clerks and Checkers and, apparently,
is performed by employees represented by the Clerks
and Checkers at the Port of Houston for all the
Employer's competitors.
Conclusion
Having considered all pertinent factors, we con-
clude that employees represented by the Clerks and
Checkers are entitled to perform the work in dispute.
We reach this conclusion relying particularly on the
area practice and on the fact that such assignment
will provide for the most harmonious and efficient
operations. Accordingly, we shall determine the dis-
pute before us by awarding the work in dispute at the
Employer's Houston, Texas, location to those em-
ployees represented by the Clerks and Checkers, but
not to that Union or its members. The present deter-
CLERKS & CHECKERS LOC. 1351, LONGSHOREMEN 1273
mination is limited to the particular controversy
which gave rise to this proceeding.
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Sea-Land Services, Inc., who are
represented by Clerks and Checkers Local 1351, In-
ternational Longshoremen 's Association, are entitled
to perform the work of checking the container yard
inventory, including checking the loading, contents,
or condition of the container yard at Sea-Land Serv-
ices , Inc., Port of Houston terminal.
2. Teamsters Local No. 988 is not entitled by
means proscribed by Section 8(b)(4)(i) and (ii)(D) of
the Act to force or require Sea-Land Services, Inc., to
assign the above work to individuals represented by
Teamsters Local No. 988.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Teamsters Local No.
988 shall notify the Regional Director for Region 23,
in writing, whether or not it will refrain from forcing
or requiring Sea-Land Services, Inc., by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign the
work in dispute to employees represented by it rather
than to the employees represented by Clerks and
Checkers Local 1351, International Longshoremen's
Association.