Local 1291, Int'l Longshoremen's Association

National Labor Relations Board - Board Decisions

May 18, 1965

152 N.L.R.B. 676 (N.L.R.B. 1965)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 proceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute.
1. Employees currently represented by Industrial Workers of Allied
Trades, Local 199, affiliated with the National Federation of Independ-
ent Unions, are entitled to perform all the electrical work connected
with the construction of East End Synagogue, Long Beach, Long
Island, New York.
2. Local 25, International Brotherhood of Electrical Workers, AFL-
CIO, is not entitled, by means proscribed by Section 8(b) (4) (D) of
the Act, to force or require D-Lion Construction Co., Inc., to assign
the aforementioned work to a contractor employing its members.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 25, International Brotherhood of Electrical Work-
ers, AFL-CIO, shall notify the Regional Director for Region 29, in
writing, whether or not it will refrain from forcing or requiring
D-Lion Construction Co., Inc., by means proscribed by Section 8 (b)
(4) (D), to assign the work in dispute to employees represented by
Local 25 rather than those represented by Local 199.
MEMBER FANNING, dissenting :
I would quash the notice of hearing in this proceeding for the rea-
sons set forth in my dissenting opinion in Local 25, International
Brotherhood of Electrical Workers, AFL-CIO (Barrow-Suburban
Electric Co., Inc., et al.), 152 NLRB 531.
Local 1291 , International Longshoremen 's Association , AFL-CIO
and Pocahontas Steamship Company. Case No. 4-CD-119.
May 18,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National Labor
Relations Act, as amended, following a charge filed on August 24,
1964, by Pocahontas Steamship Co. (herein called Pocahontas or the
Employer). The charge alleged that Local 1291, International Long-
shoremen's Association, AFL-CIO (herein called ILA) had violated
Section 8 (b) (4) (D) of the Act by picketing to encourage the employ-
ees of Coslett and Sons, Inc. (herein called Coslett) to cease work for
the purpose of forcing Pocahontas to change its assignment of the
work of opening and closing hatches aboard its ships from the ships'
152 NLRB No. 69.
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 677
Screws, represented by National Maritime Union (herein called NMU),
to members of the ILA. Pursuant to notice, a hearing was held before
-Hearing Officer Milton S. Maclasky on November 5, 1964. All parties
appeared at the hearing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence bear-
ing on the issues. The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby affirmed. Briefs
have been filed by Pocahontas and the ILA and have been duly con-
sidered by the Board.
Upon the entire record in the case, the National Labor Relations
Board 1 makes the following findings :
1. The business of the employer
Pocahontas Steamship Company, a Delaware corporation , is a sub-
sidiary of Consolidation Coal Company . Pocahontas is engaged in
the shipment of coal produced at Consolidation 's mines in the State
-of West Virginia from ports in the Commonwealth of Pennsylvania
to ports in the Commonwealth of Massachusetts . During the past
year, shipments were valued in excess of $50,000. We find that Poca-
hontas is engaged in commerce within the meaning of the Act and
that it will effectuate the purposes of the Act to assert jurisdiction
herein.
2. The labor organizations involved
Local 1291 , International Longshoremen 's Association , AFL-CIO,
-and National Maritime Union , AFL-CIO , are labor organizations
within the meaning of the Act.
3. The dispute
a. The work in dispute
The work in issue relates to the shipment of coal from pier 18, Port
Richmond, Philadelphia, where the Pocahontas ships take on coal for
shipment to Massachusetts. The pier is owned and operated by the
Reading Company, and the coal is loaded onto the ship from railroad
cars by equipment operated by employees of the Reading Company.
Longshore work, such as shifting the vessel to facilitate loading, has
been contracted by Reading to Coslett, whose employees are repre-
sented by various locals of the International Longshoremen's Asso-
ciation. Reading pays Coslett on a cost-plus basis and is not reim-
bursed for the costs by Pocahontas.
'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 Jenkins].
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to prepare a ship to receive coal or move out to sea, it is
necessary to open and close the ship's hatches (known as "hatch and
beam" work). The hatches on those Pocahontas ships that dock at
pier 18 are opened and closed by turning an electrical switch .2 It is
this work, the opening and closing of the hatches, which is in issue in
this case. ILA demands that Pocahontas reassign this work from
members of the ships' crews to ILA "hatch and beam" gangs, each
consisting of six men and a foreman.
b. Evidence of conduct violative of Section 8(b) (4) (D)
Pocahontas ships first docked at pier 18 on October 2, 1960, and
again on October 8, 1960, and March 10, 1964. On each occasion mem-
bers of the ship's crew opened and closed the hatches. The dispute
herein arose on April 16, 1964, when a Pocahontas ship docked at
pier 18, and, as before since the hatches had already been opened by
NMU crewmen, an ILA "hatch and beam" gang was not hired. On
that last occasion, however, the ILA picketed the entrance to the pier
with signs indicating that Pocahontas was unfair to the ILA. Cos-
lett's employees refused to cross the picket line and loading ceased
until Coslett hired an ILA "hatch and beam" gang. Similar incidents
occurred when Pocahontas ships docked at the pier on May 16, June 17,
and August 22. By letter dated July 30, 1964, the NMU advised the
Board's Regional Office for Region 4 that it made no claim to the work
involved herein. Pocahontas filed the instant charge on August 24.
On petition of the Regional Director for Region 4, the U.S. District
Court for the Eastern District of Pennsylvania granted an injunction
under Section 10(1). The court rejected the ILA argument that,
because of the NMU's disclaimer there was no dispute cognizable
under Section 8 (b) (4) (D).-3 At the hearing before the Hearing Offi-
cer, the NMU, through its attorney who attended as representative of
the ILA, again stated that NMU did not claim the work in issue and
indicated that it would not appear or otherwise participate in the
proceedings.
The parties stipulated to the various contracts in effect. Pocahontas,
as a member of the Collier Owners' Association, is party to a collective-
bargaining contract with the NMU covering the unlicensed deck
department aboard each of its ships. The contract calls for a monthly
salary and provides for the deck department to perform a variety of
work including the opening and closing of hatches. Both Reading
and Coslett are members of the Philadelphia Marine Trade Associa-
a Uncontroverted evidence introduced on the record indicates that the entire job could
be performed by one man in less than one-half hour
8 Sub nom. Samo ff v. Local 12 91, International Longshoremen 's Association, 57 LRRM
2393 (D C.E. Pa.).
LOCAL 1291 , INT'L LONGSHOREMEN'S ASSOCIATION 679
tion (referred to as PMTA). PMTA's contract with ILA assigns to
that Union "the hatch and beam" work. Pocahontas is neither a mem-
ber of PMTA nor a party to the contract with ILA.
c. Applicability of the statute
Section 10 (k) of the Act empowers the Board to hear and determine
the dispute out of which an 8 (b) (4) (D) charge has arisen. However,
before the Board proceeds, it must be satisfied that there is reasonable
cause to believe that Section 8 (b) (4) (D) has been violated. Although
Respondent does not deny engaging in the picketing activity described
above, it asserts that this conduct was not unlawful because the picket-
ing did not arise from a dispute between two unions or groups of
employees. Respondent relies on the NMU statement disclaiming
interest in the work assignment and, based on those cases holding that
our jurisdiction herein requires the existence of a dispute between two
or more groups of employees actively competing for the work assign-
ment,4 contends that Sections 8(b) (4) (D) and 10(k) do not apply.
However, Respondent asks the Board to award the disputed work to
longshoremen if a jurisdictional dispute under Section 10(k) is found
to exist. Pocahontas urges, and we agree, that under the circumstances
of this case and notwithstanding the NMU disclaimer, there is an
active jurisdictional dispute between the unions under Section 8 (b)
(4) (D).5
As the Supreme Court has noted, a jurisdictional dispute under
Section 8(b) (4) (D) is a dispute between "two or more groups of
employees' over which is entitled to do certain works For the fol-
lowing reasons, we do not consider the asserted disclaimer by the NMU
as eliminating the fundamental jurisdictional dispute between seamen
and longshoremen as to who shall open and close ship hatches. This
4Highway Truckdrivers & Helpers, Local 107, Teamsters ( Safeway Stores, Inc ), 134
NLRB 1320 , Brotherhood of Teamsters and Auto Truck Drivers , Local 70, Teamsters
(Hills Transportation Co.), 136 NLRB 1086; Local 1905 , Carpet, Linoleum & Soft Tile
Layers ( Southwestern Floor Co. ), 143 NLRB 251 ; Sheet Metal Workers International
Assn., Local 272, etc. ( Valley Sheet Metal Company), 136 NLRB 1402 . Cf Penello v.
Local 59, Sheet Metal Workers International Association , AFL-CIO ( E. I. Du Pont de
Nemour8 & Co .), 195 F Supp 348 (D.C Del.).
6 We do not consider significant for jurisdictional purposes the fact that Respondent
neither represents any of the employees of Pocahontas nor seeks to force Pocahontas itself
to hire its members. It is well settled that Sections 8(b) (4) (D ) and 10 ( k) are not
limited to competing groups of employees working for the same employer but also extend
to attempts to force the indirect assignment of work from the employees of one employer
to the employees of another . Local Union No. 3, International Brotherhood of Electrical
Workers, AFL-CIO (Western Electric Company, Incorporated ), 141 NLRB '888; Inter-
national Longshoremen's Association (Independent ) ( Motor Transport Labor Relations,
Inc ), 127 NLRB 35, 38 ( at footnote 2) ; ef. Local 19, International Longshoremen's
Association ( Marine Association of Chicago ), 151 NLRB 89 ; Oil, Chemical, and Atomic
Workers, etc., Local 8-575 ( Merck & Co., Inc.), 151 NLRB 374.
6 N.L R B. v. Radio & Television Broadcast Engineers Union, Local 1212 ( Columbia
Broadcasting System ), 364 U S. 573, 579
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work is now being clone by seamen as required by the collective-
bargaining contract between the NMU and the Employer. It is one
among many duties performed by seamen who are compensated on a
monthly salary basis. It is not possible to allocate part of this monthly
salary to the specific work of opening and closing hatches. The NMU's
purported disclaimer therefor imposes no hardship and involves no
sacrifice or "giving up" by its members. If it is effective, payment
would simply be required for two groups of employees, while only one
group does the work. Moreover, the seamen, despite the disclaimer,
have not in fact refused to do the disputed work when ordered, and
they cannot lawfully refuse because to do so would involve a breach
of their collective-bargaining contract and possible infringement of
applicable maritime law. The ineffectiveness of a disclaimer similar
to that in this case to resolve a jurisdictional dispute is illustrated in
the recently decided International Brotherhood of Carpenters and
Joiners of America v. C. J. Montag cC Sons, Inc. case 7 where an
employer sued a union tinder Section 303(a) (4) and (b) of the Taft-
Hartley Act for having struck to compel the employer to assign cer-
tain work to members of one union rather than to those of another.
In finding that a jurisdictional dispute existed, the court said (335
F. 2d at 219-221) :
We here take note of the Supreme Court's recognition that the
draftsmen of the Taft-Hartley Act regarded jurisdictional dis-
putes as a great evil and were bent upon doing all that could be
done to cure that evil.... The fact that one union has the jobs and
holds on to them in a polite, nonbelligerent manner while the other
union uses the forbidden tactics in an effort to get them, or get
some of them, does not mean that what Congress regarded as the
evils of a jurisdictional dispute are not present. And the fact
that the union which has the job is not unwilling that the) other
union should come in and do some of the work and get paid for
doing it, if the fQ'st union will still continue to get paid for the
work, does not remove the situation from the category of jurisdic-
tional disputes. [Emphasis supplied.]
We hold that, under the circumstances of this case, the NMU's pur-
ported disclaimer was not effective to extinguish the jurisdictional
dispute between members of that labor organization and members of
the ILA relating to the work of opening and closing ship hatches. We
therefore find that there is reasonable cause to believe that a violation
of Section 8 (b) (4) (D) has occurred and that the dispute is properly
before the Board for determination under Section 10(k) of the Act.
7 335 F. 2d 216 (C.A. 9).
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 681
d. 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 rele-
vant factors. The following factors are asserted in support of the
claims of the parties herein :
(1) Skills, competence, and training
Members of both unions have the ability to perform the work in
issue. Although the ILA urges that its members have through years
of experience developed the skills necessary to manipulate the various
types of hatch coverings, it is clear that the work in the instant case
(the operation of an electrical switch) does not call for the application
of these traditional skills.
(2) Collective-bargaining contracts
Pocahontas and the ILA rely on the terms of their respective
collective-bargaining contracts, both of which make reference to the
work in issue. The ILA contract with PMTA specifically awards
"hatch and beam" work to ILA. Although Coslett, which has been
delegated the function of hiring longshore gangs on the Reading dock,
is a member of PMTA, Pocahontas is neither a member of the Asso-
ciation nor a party to its contract with the ILA. As a member of the
Collier Owners' Association, Pocahontas is party to a contract with
the NMTJ covering unlicensed deck department employees; this con-
tract covers the performance of "hatch and beam" work by those
employees.
(3) Employer's assignment and past practice
The record shows that with few exceptions, Pocahontas has always
assigned the contested work to unlicensed deck department employees
of its crews. Coslett, in accordance with its contract and longstanding
history in Philadelphia, when it has "hatch and beam" work to do,
assigns such work to members of ILA. A recent arbitration decision
in which PMTA and the ILA participated resolved the issue of the
composition of the ILA. "hatch and beam" gangs under the PMTA
contract. However, no evidence was introduced to indicate that Poca-
hontas was a party to this proceeding.
(4) Efficiency and economy
Evidence indicated that the disputed work can be performed by one
man in less than a half hour and that both costs and loading time are
reduced by the opening of the hatches by members of NMU prior to
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
docking. In addition, although its figures were not broken down to
allow further analysis, Pocahontas introduced uncontroverted evi-
dence that the cost of hiring an ILA "hatch and beam" gang was
approximately $900.
CONCLUSIONS AS TO THE MERITS OF THE DISPUTE
On the basis of the record as a whole, and on an appraisal of all the
relevant considerations, we believe that the work in dispute should be
awarded to the members of the unlicensed deck department. The fact
that Pocahontas' assignment conforms to its past practice, and its
collective-bargaining contract with the NMU, the fact that the mem-
bers of the unlicensed deck department have sufficient skill to do the
work, and the consequent economy and efficiency of operation, lead us
to conclude that Pocahontas' assignment of the work should not be
disturbed. Consequently, we shall determine the present dispute by
deciding that members of the Employer's unlicensed deck department
aboard ship represented by the NMU rather than longshoremen repre-
sented by the ILA are entitled to the disputed work. In making this
determination, we are assigning the disputed work to the employees
,of Pocahontas who are represented by NMU but not to that Union or
its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Relations Act, as
amended, and upon the basis of the foregoing findings, the National
Labor Relations Board hereby makes the following determination of
the dispute.
1. Employees employed as members of the unlicensed deck depart-
ment by Pocahontas Steamship Company, currently represented by
National Maritime Union, AFL-CIO, are entitled to perform the
opening and closing of cargo hatches ("hatch and beam" work) on
ships operated by Pocahontas Steamship Company that dock at pier
18, Port Richmond, Philadelphia, Pennsylvania.
2. Local No. 1291, International Longshoremen's Association, AFL-
CIO, is not and has not been entitled, by means proscribed by Section
8(b) (4) (D) of the Act, to force or require Pocahontas Steamship
Company to assign the above work to its members.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 1291, International Longshoremen's Association,
AFL-CIO, shall notify the Regional Director for Region 4, in writing,
whether it will or will not refrain from forcing or requiring the
Employer, by means proscribed by Section 8(b) (4) (D), to assign the
work in dispute to longshoremen, rather than to ship's personnel.