General Truck Drivers, Local 692

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 412 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Truck Drivers, Chauffeurs & Helpers
Union, Local No. 692, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and Sea-Land Service,
Inc. (Pacific Division) and International Long-
shoremen's and Warehousemen's Union, Local
13. Case 21-CD-477
September 30, 1981
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Sea-Land Service, Inc. (Pacif-
ic Division), herein called the Employer, alleging
that General Truck Drivers, Chauffeurs & Helpers
Union, Local No. 692, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Teamsters,
had violated Section 8(b)(4)(D) of the Act by en-
gaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign cer-
tain work to its members rather than to employees
represented by International Longshoremen's and
Warehousemen's Union, Local 13, herein called the
ILWU.
Pursuant to notice, a hearing was held before
Hearing Officer Hortencia Montes on March 4,
1981. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
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.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Delaware corporation with its principal
place of business in California, is engaged in the
business of transporting containerized freight
worldwide. During the past year, the Employer
has provided services valued in excess of $50,000
directly to customers who, in turn, annually sell
and ship goods valued in excess of $50,000 directly
to customers located outside the State of Califor-
nia. The parties also stipulated, and we find, that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it
will effectuate the purposes of the Act to assert ju-
risdiction herein.
1l. THE LABOR ORGANIZATIONS INVOLVED
We find that the Teamsters and the ILWU are
labor organizations within the meaning of Section
2(5) of the Act.
Ill. THE DISPUTE
A. Background and Facts of the Dispute
The Employer and the Teamsters are parties to
the National Master Freight Agreement and the
Western States Area Supplemental Agreement. The
Employer also has a contract with Container Ste-
vedoring Company (CSC), which supplies the Em-
ployer with employees represented by the ILWU
for the purpose of loading and unloading ships ap-
proximately once a week. The Employer and CSC
are members of a multiemployer bargaining associ-
ation called the Pacific Maritime Association
(PMA), and PMA and its members are parties to a
contract with the ILWU.
The Employer operates a marine facility in Long
Beach, California, where, as noted above, it is en-
gaged in the business of transporting containerized
cargo by ship. The marine yard, sometimes re-
ferred to as the container yard, is an area of 37
acres bounded on three sides by a chain link fence
and on the fourth side by water. The cargo which
the Employer transports is packed into large metal
containers, which are approximately 40 feet long
by 8 feet wide by 8 feet high. Each container is un-
loaded from a ship by means of a large crane, and
is placed on a specially designed metal framework
with wheels, known as a chassis. A power unit is
then attached to the chassis so that the container
may be moved away from the ship, and after a
container is moved it may then be either "ground-
ed" or "staged." The grounding operation involves
removing the container by forklift from the chassis
and placing it on the ground. In the staging oper-
ation the container remains attached to the chassis
and is stored at a particular location. Both oper-
ations may occur either inside or outside the
marine yard.
When a ship is being loaded or unloaded, it fre-
quently develops that there is insufficient space
within the marine yard to store all of the loaded
containers. At such times it becomes necessary to
remove any empty containers from the marine yard
in order to provide storage space for the loaded
containers. In connection with this operation, in
258 NLRB No. 55
412
GENERAL TRUCK DRIVERS, LOCAL 692
March 1980 the Employer leased a one-half acre
paved area known as Pelican Pond, which is locat-
ed outside the chain link fence and across the street
from the marine yard. The Employer then began
using the Pelican Pond area for the grounding and
staging of empty containers. When the Employer
assigned this work to employees represented by the
Teamsters, however, the ILWU filed a grievance
pursuant to its contract with the PMA, asserting
that the work should have been assigned to ILWU
members. In a subsequent arbitration proceeding in
which the Teamsters was not a party, the work
was awarded to employees represented by the
ILWU. The Teamsters subsequently informed the
Employer that if it made such an assignment the
Teamsters would picket the Employer's facilities
with the object of forcing or requiring the Employ-
er to assign the work to members of the Teamsters.
The Employer subsequently filed a charge alleging
that the Teamsters had violated Section 8(b)(4)(D)
of the Act. As of the date of the hearing, there had
been no picketing by the Teamsters, whose mem-
bers are currently performing the disputed work.
The Employer is paying "lost work" wages to the
ILWU in accordance with the provisions of the
agreement between the ILWU and the PMA.
B. The Work in Dispute
The parties stipulated, and we find, that the
work in dispute involves the transportation and
grounding of containers outside the container yard,
and the work incident thereto, as well as the return
of such containers to the container yard, and the
work incident thereto. The work in dispute also in-
volves the temporary staging of containers outside
the container yard, and the work incident thereto,
and the return of such containers to the container
yard, and the work incident thereto.
C. Contentions of the Parties
The Employer and the Teamsters contend that
the disputed work should be awarded to employees
represented by the Teamsters based on employer
preference and past practice, efficiency and econo-
my of operations, the collective-bargaining agree-
ments, and an alleged jurisdictional agreement be-
tween the Employer, the Teamsters, and the
ILWU.
The ILWU takes the position that the disputed
work should be awarded to employees whom it
represents based on the above-cited arbitration
award, the collective-bargaining agreements, prior
certifications of the National Labor Relations
Board, industry and company practice, and effi-
ciency and economy of operations.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
It is undisputed that in a letter dated January 23,
1981, the Teamsters advised the Employer that it
would picket all of the Employer's facilities if the
Employer assigned the disputed work to employees
represented by the ILWU rather than to employees
represented by the Teamsters. Additionally, there
is no evidence that the parties have agreed upon
any method for the voluntary adjustment of the
work in dispute. The arbitration award granting
the disputed work to employees represented by the
ILWU is not dispositive of the dispute since the
Teamsters was not a party to the proceeding.'
Therefore, on the basis of the entire record, we
conclude that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred
and that there exists no agreed-upon method for
the voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. Accordingly,
we find that this dispute is properly before the
Board for determination.
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.2 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.3
The following factors are relevant in making the
determination of the dispute before us:
1. Board certifications
The ILWU contends that this factor favors an
award of the disputed work to employees which it
represents, relying on Brotherhood of Teamsters &
Auto Truck Drivers Local No. 85, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America (Pacific Maritime Associ-
ation), 208 NLRB 1011, 1014 (1974). In that case,
in which the disputed work consisted in part of the
i See International Longshoremen s Association. et al. (Sea-Land Service.
Inc.). 249 NLRB 620, 621 (1980), and cases cited at fn. 4.
' .'LR.B. v. Radio & Television Broadcast Engineers Union. Local 1212.
International Brotherhood of Electrical Worers, .4FL-CIO [Columbia
Broadcasting System], 364 US. 573 (1961).
3 International Association of Machinists. Lodge No. 1743. AFL-CIO (J.
.4. Jones Construction Company),. 135 NLRB 1402 (19h2)
413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moving of containers on to and off of the chassis,
the Board observed that the ILWU was certified in
1938 to represent a multiemployer unit of all em-
ployees engaged in "longshore work in the Pacific
Coast ports of the United States" for the employer-
members of associations which were the pred-
ecessors of PMA. 4 The Board further observed
that the certification was vague and not controlling
with respect to the disputed work, in view of the
fact that the certification "long predated develop-
ment of the specific procedures in question." How-
ever, the Board nonetheless found that the certifi-
cation did "favor an award of the work in dispute
to the ILWU at least to the extent it defines long-
shoremen as those who 'handle said waterborne
cargo,' and the business of the employers as 'the
transportation or handling of waterborne cargo."'
It is evident from the above discussion that the
Board, in awarding the disputed work to employ-
ees represented by the ILWU in that case, viewed
the prior certification as a factor of minor signifi-
cance, and relied much more heavily on factors
such as economy and efficiency of operation and
the relative skills of the employees. Similarly, in
the instant case, we find that, while the certifica-
tion favors an award of the disputed work to em-
ployees represented by the ILWU, it is nonetheless
a factor of minor significance.
2. Collective-bargaining and other agreements
All of the parties rely on the various collective-
bargaining agreements in support of their conten-
tions regarding the assignment of the disputed
work. We note, however, that although the various
contracts were marked for identification at the
hearing at the request of counsel for the Employer,
they were never introduced into evidence. There-
fore, since the collective-bargaining agreements are
not before us, and since there is insufficient testi-
mony as to many of the terms of those agreements,
we cannot determine whether this factor favors an
assignment of the disputed work to employees rep-
resented by the Teamsters or to employees repre-
sented by the ILWU.
The Employer and the Teamsters further con-
tend that a jurisdictional dispute between the
Teamsters and the ILWU arose in 1961-62 when
the Employer opened the Long Beach marine
yard. The Employer and the Teamsters assert that
in order to settle the dispute the parties agreed that
any work within the marine yard would be per-
formed by ILWU members, and that any work
outside the gate or moving in to or out of the gate
would be performed by members of the Teamsters.
' See Shipowners' Association of the Pacific Coast, et al., 7 NLRB 1002
(1938).
At the hearing the Employer attempted to establish
this agreement through the testimony of the Em-
ployer's corporate director of labor relations, Louis
Macijeski. However, Macijeski was unable to state
whether the alleged agreement had ever been re-
duced to writing, and he conceded that he did not
attend the meetings at which the agreement was al-
legedly made. In view of the above, we find that
the Employer and the Teamsters have not estab-
lished that such an agreement was made.
3. Employer and industry practice
Although the record does not disclose a jurisdic-
tional agreement between the parties, there is con-
siderable evidence that the Employer has an estab-
lished practice of assigning to employees represent-
ed by the Teamsters work which is similar to that
in dispute. Macijeski's undisputed testimony estab-
lished that it is the Employer's practice to assign to
ILWU members the work of moving containers
within the marine yard and to assign to members of
the Teamsters any work that is done outside the
marine yard fence. Ronald Gilmore, the Employ-
er's manager of port operations, testified without
contradiction that members of the Teamsters haul
containers from the marine yard to the Employer's
container freight station, where the containers are
loaded and unloaded. Gilmore's uncontradicted tes-
timony also established that members of the Team-
sters haul containers between the marine yard and
the railroad station, and that the Employer does
not assign such work to ILWU members, whose
work is limited to moving containers within the
marine yard. As a limited exception to this rule,
Gilmore observed that, when the marine yard be-
comes too crowded, ILWU members occasionally
move containers through a gate in the fence into an
adjacent marine yard for temporary storage. How-
ever, Gilmore noted that this situation occurs
"very infrequently." In view of the above, we find
that the Employer has an established practice of as-
signing to employees represented by the Teamsters
the work of moving containers from within the
marine yard to various points outside the fence and
from points outside the fence to the marine yard.
Accordingly, we find that the factor of employer
practice favors an assignment of the disputed work
to employees represented by the Teamsters.
We further find that the record discloses insuffi-
cient evidence to establish an industry practice
with regard to the disputed work. Wayne Robbins,
the business agent for the ILWU, testified that
other container freight stations in the Long Beach
area are manned by ILWU members, and that
within that area only the Employer does not use
longshoremen at its container freight station. Rob-
414
GENERAL TRUCK DRIVERS. LOCAL 692
bins also testified that some other employers use
longshoremen to move containers and chassis over
public streets between facilities. However, Charles
Bing, the northern California manager for CSC,
testified that it was the policy of most stevedoring
companies to have ILWU members perform work
within the marine yards. In view of this limited and
contradictory testimony, therefore, we find that an
industry practice is not established by the record,
and that this factor does not favor an award of the
disputed work to employees represented by either
of the Unions.
4. Economy and efficiency of operation
The record discloses that the number of employ-
ees required to perform the disputed work would
vary depending upon which group of employees
are assigned to do the work. According to Gil-
more's undisputed testimony, there are no mini-
mum manning requirements under the Employer's
contract with the Teamsters, and a crew of only
two forklift operators and one driver would be uti-
lized if teamsters were awarded the disputed work.
Bing testified without contradiction that if long-
shoremen performed the work the Employer
would have to use a greater number of manual
workers in accordance with the ILWU-PMA
agreement. Bing specifically noted that an award to
the longshoremen would require the Employer to
use two forklift operators, one driver, and two
other employees to lock the containers onto the
chassis and to unlock them from the chassis. Bing
also observed, without contradiction, that the Pa-
cific Coast Foreman's Document, to which CSC is
a signatory, requires the presence of a foreman
whenever there are more than two skilled workers
on a job. Additionally, Bing indicated that under
the Clerks' Longshore Document Agreement, to
which CSC is also a signatory, the Employer
would have to use a clerk to record certain infor-
mation with regard to the containers. Gilmore's un-
disputed testimony established that the Employer's
agreement with the Teamsters does not require the
use of a foreman or clerk. The record therefore
clearly discloses that assigning the work to long-
shoremen rather than to teamsters would require
the Employer to utilize a greater number of em-
ployees.
Further, Gilmore's undisputed testimony estab-
lishes that after the work is performed the Employ-
er could use teamsters to perform other tasks, such
as loading containers at the container freight sta-
tion and hauling containers between the marine
yard and the railroad station and the container
freight station. The Employer would thus be able
to obtain a full day's work from employees repre-
sented by the Teamsters. In contrast, Gilmore indi-
cated that longshoremen would be contractually
prohibited from performing other tasks once the
disputed work is completed. Nonetheless, the
record discloses that the longshoremen would nor-
mally be paid for a full day's work even if the dis-
puted work were completed in only a few hours.
In view of the above evidence, we conclude that
the factors of economy and efficiency of operation
favor an award of the disputed work to employees
represented by the Teamsters.
5. Employer preference
The Employer has assigned the work in dispute
to employees who are represented by the Team-
sters and it has indicated a preference for continu-
ing to operate in this fashion. We therefore find
that this factor favors an award to those employ-
ees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by the
Teamsters are entitled to perform the work in dis-
pute. We reach this conclusion relying on the fac-
tors of employer practice, economy and efficiency
of operation, and employer preference. In making
this determination, we are awarding the work in
question to employees who are represented by the
Teamsters, but not to that Union or its members.
The present determination is limited to the particu-
lar 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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
Employees of Sea-Land Service, Inc. (Pacific
Division), who are represented by General Truck
Drivers, Chauffeurs & Helpers Union, Local No.
692, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, are entitled to perform the work of the trans-
portation and grounding of containers outside the
container yard, and the work incident thereto, the
return of such containers to the container yard, and
the work incident thereto, the temporary staging of
containers outside the container yard, and the work
incident thereto, and the return of such containers
to the container yard, and the work incident there-
to, at the Long Beach, California, facility of Sea-
415
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Land Services, Inc. (Pacific Division), and at the
nearby Pelican Pond area.