Local 853, Int'l Union Operating Engineers, Etc.

National Labor Relations Board - Board Decisions

Apr 11, 1962

136 N.L.R.B. 993 (N.L.R.B. 1962)

LOCAL 853, INT'L UNION OPERATING ENGINEERS, ETC. 993
Construction Company, or any other person , to cease using , handling, or dealing
in the products of, or otherwise cease doing business with, Cardinal Industries,
Inc.
OHIO VALLEY CARPENTERS DISTRICT COUNCIL,
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
Dated------------------- By-------------------------------------------
(RUSSELL WHITE)
Dated------------------- By-------------------------------------------
(GEORGE OSTERKAilIP)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Local 853, International Union of Operating Engineers, AFL-
CIO, and its business manager , Richard J. Carney, Jr. and
Schiavone & Sons, Inc., and Schiavone Terminals, Inc. Case
No. 1-CD-60. April 11, 1962
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the National Labor
Relations Act, which provides that "Whenever it is charged that any
person has engaged in an unfair labor practice within the meaning of
paragraph (4) (D) of section 8(b), the Board is empowered and
directed to hear and determine the dispute out of which such unfair
labor practice shall have arisen...."
On February 26, 1960, Schiavone & Sons, Inc., and Schiavone Ter-
minals, Inc., herein called Sons and Terminals, respectively, filed a
joint charge with the Regional Director for the First Region alleging
that Local 853, International Union of Operating Engineers, AFL-
CIO, herein called Local 853, and its business manager, Richard J.
Carney, Jr., had engaged in and were engaging in certain unfair labor
practices within the meaning of Section 8 (b) (4) (i) and (ii) (D) of the
Act. It was charged in substance that Local 853 and Carney had in-
duced and encouraged employees of Schiavone & Sons and Schiavone
Terminals to engage in a strike or refusal to perform services in the
course of their employment with an object of forcing or requiring the
Employer to assign particular crane operation work to members of Lo-
cal 853, rather than to employees who are members of Local 799, 800,
and 805 of the International Longshoremen's Association, herein col-
lectively called ILA. '
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
136 NLRB No. 94.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director investigated the charge and provided for an appro-
priate hearing upon due notice. The hearing was held before Murray
S. Freeman, hearing officer, on April 20, 28, and 29 and May 23, 1960.
The hearing officer permitted ILA Local 799, 800, and 805 to intervene
on the basis of their claim to jurisdiction over the work tasks involved
herein under a contract between the ILA and the Boston Shipping
Association, of which Terminals is a member. All parties appeared
at the hearing and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to adduce evidence bearing
upon the issues. The rulings of the hearing officer made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board makes the following:
FINDINGS OF FACT
1. Schiavone & Sons, Inc., and Schiavone Terminals, Inc., are
Massachusetts corporations with their principal offices and places of
business in Boston, Massachusetts. They are wholly owned subsidi-
aries of Michael Schiavone & Sons, Inc., a Connecticut corporation,
have the same officers, offices, and stockholders, occupy adjacent lo-
cations on the same leased premises, and form component parts of an
integrated scrap metal processing and shipping operation. In view
of these facts, we find that they constitute a single employer for
jurisdictional and other purposes of this proceeding.' During 1959
Sons and Terminals shipped $2,000,000 worth of scrap iron, of which
97 percent was exported to foreign countries. Accordingly, we find
that Sons and Terminals is engaged in commerce within the meaning
of the Act, and as their direct outflow of goods and materials exceeds
$50,000 annually, we find that it will effectuate the purpose of the Act
to assert jurisdiction.'
2. Local 853, International Union of Operating Engineers, AFL-
CIO, and Locals 799, 800, and 805, International Longshoremen's
Association, are labor organizations within the meaning of the Act.
3. The dispute :
A. The facts
Sons deals in iron and steel scrap and is also engaged for itself and
others in the purchase, assembly, preparation, and sale of scrap metal
and scrap metal products. It leases certain dock and yard facilities
in the port of Boston, and owns a variety of equipment, including
crawler, railroad type, and gantry cranes. Of the cranes, only crawler
and railroad types are used in the handling and preparation of scrap
in the yard. The two gantry cranes which it owns are permanently
fixed cranes installed at the dockside and are normally leased to Ter-
1 Thompson. Weinman and Company et al, 125 NLRB 301.
g Siemons Mail ing Service, 122 NLRB S1
LOCAL 853, INT'L UNION OPERATING ENGINEERS, ETC. 995
minals which uses them in lifting scrap into and out of ships moored at
the dock.
Prior to March 4, 1959, the employees at Sons were unorganized.
On that date, Sons entered into an agreement with Local 853 recog-
nizing it as the exclusive representative of Sons' yard employees and
providing for terms and conditions of employment. Article II of the
agreement, dealing with "Recognition and Union Security," provides
that "Local 853 . . . shall be the exclusive representative of the em-
ployees in the classifications of work herein set forth." Article VII
lists, among other classifications, crane operators "Class 1" and "Class
2." Apart from the crawler cranes and their operators which prior
to the installation of the gantry cranes were leased to Terminals, all
crane work by yard employees is confined to the yard.
Terminals is a stevedoring concern. Most of its work is performed
for Sons. As indicated, in the course of its operations it rents cranes
from Sons. When needed, crawler cranes are hired at a flat rental for
machine and operator; gantry cranes are hired without operator.
When not in use by Terminals, crawler cranes are returned to Sons for
work in the yard.
In August 1957 Terminals became a member of the Boston Shipping
Association. Among its activities, the Association on behalf of its
employer members negotiates collective-bargaining agreements with
the ILA. Terminals has always operated under and been bound by the
standard ILA Longshore General Cargo Agreement and a separate
Crane Operators Agreement. Under the former, Terminals hires its
stevedoring crews through the ILA whenever a ship is to be loaded and
unloaded, and under the latter, which specifically applies to "licensed
gantry crane operators," Terminals is required to give preference to
ILA members in all crane work on the piers pertaining to the loading
and discharging of deepwater vessels being worked under the General
Cargo Agreement.
Until the first of the gantry cranes was installed by Sons in August
1958, Terminals, as indicated, leased two crawler cranes and their
operators from Sons for its loading and unloading. On the insistence
of the ILA that members of its locals were entitled, under the ILA's
agreements with the Association, to perform crane work; Terminals
hired three ILA gantry crane operators as standbys. After the first
gantry crane was installed, Terminals assigned its operation to an ILA
crane operator and hired a second ILA crane operator as a standby
because of its continued use of the remaining crawler crane and op-
erator. This mode of operation continued with one interruption as
hereinafter noted until the installation by Sons of a second gantry
crane at the wharf in January 1960, and its assignment by Terminals,
over the protest of Local 853, to a member of the ILA.
641795-63-vol. 13 6-6 4
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The events which led to the dispute over the assignment of the sec-
ond gantry crane began when the ILA called a general east coast
strike on October 1, 1959. Because of the strike and the necessity to
load and move out a ship then moored at the dock, Sons, on October 2,
asked Local 853 to man the old gantry crane and load the ship. After
some discussion, Local 853 agreed,3 but loading operations were again
suspended on October 3 when the ILA, asserting its rights to the work
of loading ships, picketed the premises. The ILA pickets were with-
drawn on October 8, 1959, upon the settlement of the strike and work
was scheduled to resume on October 10. On that date, however,
Terminals' employees were unable to resume loading operations be-
cause Local 853 for the first time demanded the assignment of the
work of operating the gantry crane, and, upon the refusal of manage-
ment to comply with this request, engaged in a work stoppage which
cut off the flow of scrap to the dock. The dispute occasioned by Local
853's demands was resolved by a modus vivendi, with Sons agreeing
to pay two of its yard employees as standbys at the dock and allowing
Terminals to operate the gantry crane with ILA operators as before.
This arrangement persisted until the end of October, when Sons dis-
continued the standby practice, apparently without objection from
Local 853.
The second gantry crane was installed in January 1960 and was
readied for operation on February 23. On February 22, however,
Carney informed George Gates, Terminals' manager, the Local 853
members would not service the gantry crane, although this work was
customarily performed by the yard mechanics, unless the operation
of the crane was assigned to Local 853 members. On the morning
of February 23, when the second gantry crane had nevertheless been
assigned to an ILA member, Carney instructed Local 853 members
not to service the crane and not to move a switching engine which was
blocking the path of the crane. In a conference with William Mer-
ritt, superintendent of Sons, Carney protested the assignment of the
second gantry crane to the ILA, and thereafter instructed Local 853's
steward to "pull" its members off the job. The yardmen, none of
whom had apparently done any work that morning, thereupon left the
yard. Carney also informed Joseph Schiavone, president of Sons
and Terminals, that Local 853 members would not work unless the
operation of the new crane was assigned to them. As an alternative,
Carney proposed that the new gantry crane be idled and a crawler
crane with yard operator be assigned to loading vessels. Sons and
Terminals submitted under protest, idled the second gantry crane, and
assigned a crawler crane with yard operator to assist in loading. This
3 Carney, business manager of Local 853 , testified that on this occasion company officials
informed him that Local 853 was contractually obligated to operate the gantry crane in
order to load the ship. This testimony was denied by company officials.
LOCAL 853, INT'L UNION OPERATING ENGINEERS, ETC. 997
arrangement was maintained until, as the result of charges being filed
and a hearing held on an injunction petition in a United States District
Court,4 Local 853 entered into a stipulation permitting Terminals to
assign the operation of the gantry cranes to the ILA pending a deter-
mination of the dispute by the Board.
B. Contentions of the parties
Local 853 contends that in negotiating the agreement of March
1959 it was the intent of the parties that all crane work be assigned
to Local 853 and hence that it is entitled to the work of operating the
gantry cranes. In view thereof, it maintains that it had a right to
compel Sons to abide by its contractual obligation by threatening and
engaging in work stoppages. Moreover, it argues that Sons specifi-
cally affirmed Local 853's contractual right to the work on October
2 when Sons asked Local 853 to operate the gantry crane.
Sons and Terminals and the ILA, on the other hand, deny that
Local 853 is entitled to the disputed work either by contract or prac-
tice and maintain that the operation of the gantry crane rightfully
belongs to the ILA under its collective-bargaining agreements with
the Boston Shipping Association, of which Terminals is a member.
Applicability of the Statute
The charge which was duly investigated by the Regional Director,
alleged a violation of Section 8 (b) (4) (i) and (ii) (D) of the Act. The
Regional Director was satisfied upon the basis of such investigation
that there was reasonable cause to believe that such violation had been
committed.
Before the Board proceeds with a determination of dispute pur-
suant to Section 10 (k) of the Act, it must be satisfied that there is rea-
sonable cause to believe that Section 8 (b) (4) (i) and (ii) (D) has been
violated. In order to conclude that reasonable cause exists, the Board
must find some evidence in the record showing that conduct proscribed
by this section has occurred and that such conduct was engaged in for
the purpose of forcing or requiring any employer to assign particular
work to employees in a particular labor organization or in a particular
trade, craft, or class rather than to employees in another labor or-
ganization or in another trade, craft, or class.
The record before us establishes that there is reasonable cause to
believe that Local 853 and its business manager, Carney, threatened
Terminals' manager, Gates, with a work stoppage and induced and
encouraged employees of Sons to refuse to perform services for the
4 Bernard L. Alpert, Regional Director v Local 8 53 , at al, Civil Action No . 60-18G-J,
United States District Court for the District of Massachusetts.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of forcing or requiring Sons and Terminals to assign the
operation of the gantry cranes to members of Local 853, although
Carney and Local 853 knew the work had been assigned to employees
in a unit represented by the ILA, and that Local 853 and Carney
thereby violated Section 8(b) (4) (i) and (ii) (D) of the Act. The
Board has held that such circumstances are sufficient to invoke the
Board's jurisdiction to hear and determine a dispute within the mean-
ing of the aforesaid section and Section 10(k) of the Act. Accord-
ingly, we find that this is a dispute within the meaning of Sections,
8(b) (4) (i) and (ii) (D) and 10(k) of the Act, and that it is properly
before us for determination.
Merits of the Dispute
As noted, Local 853 maintains that it was the intent of the parties
when negotiating the March 1959 contract to assign the particular
work as well as all other crane work to Local 853. Local 853, how-
ever, does not dispute the fact that its contract makes no specific
reference to the crane work to be performed under its contract or to
the type of crane for which rates were established under its agree-
ment. It is significant that from March to October 1959, the single
gantry crane owned by Sons and leased to Terminals was operated
by employees in a unit represented by the ILA without objection by
Local 853 and that Local 853's claim did not arise until after it had
been called upon in an emergency to have one of its members man the
gantry crane. It seems reasonable to assume that if its contract had
provided for the assignment of the work of operating the gantry
crane to Local 853 members, the continued operation of the first crane
by members of the ILA would have brought forth an immediate
objection by Local 853. But as we have noted, no such complaint was
made, and it was not until the abortive attempt to have Local 853
members operate the gantry crane during the ILA strike that a claim
to such work was first asserted by Local 853. Furthermore, we find
no convincing evidence that any permanent assignment of the work
to Local 853 was intended under the pressures of the strike situation.
In our view of the situation, Local 853's contract with Sons neither
specifically nor by intent of the parties assigned the work of operating
the gantry cranes to Local 853. The Board has repeatedly held that
a contract asserted as a defense to a Section 10(k) proceeding must be
clear and unambiguous.'
It is therefore apparent that there is nothing in Local 853's con-
tract with Sons upon which it could base its claim to the assignment
6International Longshoremen 's Association, Ind. and tits Locals 976-4, 1277 , and 1804
(Abraham Caplan, et at ), 116 NLRB 1533; Kenneth Markwell, et at., d/b /a Markwell &
Hartz Contractors , 120 NLRB 610, 622.
LOCAL 853, INT'L UNION OPERATING ENGINEERS, ETC. 999
of the work of operating the second gantry crane on February 23,
1960.
On the other hand, since 1957, Terminals, as a member of the
Boston Shipping Association, has contracted with the ILA for the
performance of its stevedoring work utilizing gantry cranes. Sub-
sequent to this agreement, Terminals, as the nominal lessee of the
gantry cranes owned by Sons, has uniformly assigned the operation
of those cranes to employees in the unit represented by the ILA. It
is noteworthy also that Terminals contracted with the ILA for the
assignment of such work long before Local 853 made its appearance
on the scene and, except for the interruptions resulting from the work
stoppages, has consistently maintained such assignments. Continued
assignment of the work in dispute to operators in the bargaining unit
represented by the ILA would therefore comport with the still effec-
tive contract between Terminals and the ILA.
No other factors have been established, and there is no indication
in the entire record that there are any considerations, that outweigh
the applicable contract provisions. In these circumstances and con-
sistent with the writtne agreement between Terminals and the ILA,
we shall determine the dispute by deciding that crane operators in
the unit represented by the ILA, rather than crane operators in the
unit represented by Local 853, are entitled to operate the gantry
cranes in question. Our present determination is limited to the par-
ticular controversy which gave rise to these proceedings. In making
this determination, we are assigning the disputed work of operation
of gantry cranes in the performance by Terminals of its stevedoring
operations to the crane operators presently in its employ and covered
by its collective-bargaining agreement with the ILA.
In view of the above, we find that Local 853, International Union
of Operating Engineers, AFL-CIO, and its Business Manager
Richard J. Carney, Jr., are not and were not entitled by means pro-
scribed by Section 8(b) (4) (D) to force or require the Employer to
assign the work of operating gantry cranes to Local 853 members
rather than to crane operators in the unit represented by the ILA.
DETERMINATION OF THE DISPUTE
Upon the basis of the foregoing findings, and the entire record in
the case, the Board makes the following determination of dispute
pursuant to Section 10(k) of the Act:
1. Employees engaged as crane operators, in the unit currently
represented by Locals 799, 800, and 805 of the International Long-
shoremen's Association, are entitled to operate gantry cranes in the
performance of stevedoring operations by Schiavone Terminals, Inc.,
at its Boston, Massachusetts, scrap metal shipping operation.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 853, International Union of Operating Engineers, AFL-
CIO, and its Business Manager Richard J. Carney, Jr., are not and
have not been lawfully entitled to force or require Schiavone & Sons,
Inc., and Schiavone Terminals, Inc., to assign the work of operating
such gantry cranes to employees who are currently represented by
Local 853, International Union of Operating Engineers, AFL-CIO.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 853, International Union of Operating Engi-
neers, AFL-CIO, and its Business Manager Richard J. Carney, Jr.,
shall notify the Regional Director for the First Region, in writing,
whether or not they will refrain from forcing or requiring Schiavone
& Sons, Inc., and Schiavone Terminals, Inc., by means proscribed by
Section 8(b) (4) (D) to assign the work in dispute to employees in the
unit represented by Local 853, rather than to crane operators in the
unit represented by the ILA.
Leonard Wholesale Meats , Inc. and Fred Keith, employee, Peti-
tioner and Amalgamated Meat Cutters and Butcher Work-
men of North America, Local 576, AFL-CIO. Case No. 17-RD-
214. April 11, 1962
DECISION ON REVIEW
On January 10, 1962, the Regional Director for the Seventeenth
Region issued a Decision and Direction of Election in the above-
entitled proceeding. Thereafter, the Union, in accordance with Sec-
tion 102.67 of the Board's Rules and Regulations, Series 8, as amend-
ed, filed with the Board a timely request for review of such Decision
and Direction of Election, on the ground "That there are compelling
reasons for reconsideration of an important Board rule or policy,
where as a matter of policy, the Board can determine that a de-
certification petition is filed timely by placing an arbitrary number
of days during which the decertification petition can be filed."
The Board, by telegraphic order dated February 7, 1962, granted
the request for review and stayed the scheduled election. Thereafter,
the Union filed a brief in support of its contention and urged that
the petition in this case be dismissed.
The Board has considered the entire record in the case with respect
to the Regional Director's determination under review together with
the Union's brief. The Board hereby affirms the Regional Director's
decision that "The petition is timely since it was not filed more than
150 days before the terminal date of an outstanding contract nor
136 NLRB No. 103.