ILWU, Local 13

National Labor Relations Board - Board Decisions

Dec 13, 1974

215 N.L.R.B. 541 (N.L.R.B. 1974)

ILWU, LOCAL 13 541
International Longshoremen 's and Warehousemen's
Union ; Local 13 , International Longshoremen's and
Warehousemen 's Union; and Local 63 , International
Longshoremen 's and Warehousemen 's Union and
California Cartage Company, Inc. Case
21-CD-298
December 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBER KENNEDY AND
PENELLO
Upon a charge filed on June 30, 1971, by California
Cartage Company, Inc., hereafter Employer, and duly
served on the International Longshoremen's and Ware-
housemen's Union; Local 13, International Long-
shoremen's and Warehousemen's Union; and Local 63,
International Longshoremen's and Warehousemen's
Union, hereafter collectively referred to as Respond-
ents, the Regional Director for Region 21 of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing on April 25, 1974, alleging that Re-
spondents had engaged in and were engaging in unfair
labor practice affecting commerce within the meaning
of Section 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7)
of the National Labor Relations Act, as amended. Co-
pies of the charge, complaint, and notice of hearing
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that during June 1971, Re-
spondents violated Section 8(b)(4)(D) of the Act by
orally and in writing instructing, ordering, and appeal-
ing to employees employed by the Los Angeles Con-
tainer Terminal Company, Inc., hereafter LACT, and
other persons, not to handle or work on any shipping
containers stuffed or to be unstuffed by the Employer
which were handled through the ports of Los Angeles
and Long Beach, California, and thereby threatened,
coerced, and restrained LACT, and other persons, all
in furtherance of a joint plan to create a boycott of
shipping containers stuffed or to be unstuffed by the
Employer, with an object of forcing Employer, and
other persons, to assign the stuffing and unstuffing
work to employees who were members of or repre-
sented by Respondents, which resulted in LACT and
other persons' employees refusing to accept delivery of,
permit pickup of, or otherwise handle or work on ship-
ping containers stuffed or to be unstuffed by Employer.
The complaint further alleges that Respondents failed
and refused to abide by the Board's Decision and
Determination of Dispute' in the underlying 10(k)
proceeding, which awarded the disputed work to em-
ployee-members of or represented by Local 692, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, hereafter
Teamsters, and have continued to demand that Em-
ployer and other persons assign the disputed work to
employees who are members of or are represented by
Respondents. Thereafter, on May 1, 1974, Respond-
ents filed an answer to the complaint, admitting in part
and denying in part the allegations of the complaint.
On June 10, 1974, counsel for the General Counsel
filed with the Board a Motion for Summary Judgment,
attaching exhibits and the decisions in Cases
21-CD-298,2 21-CC-1326, and 21-CE-102, -109,
-111, -112, and -116,3 and requesting that the Board
take official notice of all relevant documents and facts
therein. In his motion, the General Counsel submits
that the Board has previously considered the identical
conduct by the same parties in these cases, and that the
Respondents' 8(b)(4)(D) objective may also be inferred
from Respondents' conduct as found therein. He fur-
ther contends that Respondents' failure and refusal to
comply with the Board's 10(k) award constitutes a vio-
lation of Section 8(b)(4)(i) and (ii)(D) of the Act. On
June 27, 1974, the Board issued an order transferring
the proceedings before it and a Notice To Show Cause
why the General Counsel's motion should not be
granted.
On July 10, 1974, Respondents filed a response to the
Notice To Show Cause and an answer to the Motion for
Summary Judgment, setting forth arguments in opposi-
tion to the motion, and suggesting alternative resolu-
tions thereof.
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, and the
record in the cases set forth above, the Board makes the
following:
Ruling on the Motion for Summary Judgment
Review of all the records, including those of the
underlying 10(k) proceeding and the companion CC
and CE cases, indicates that following consolidation of
three 8(b)(4)(D) charges a hearing was held pursuant
to Section 10(k) of the Act. On February 11, 1974, the
Board issued a Decision and Determination of Dispute
finding, inter alia, that there was a jurisdictional dis-
pute between Respondents and the Teamsters, and that
International Longshoremen 's and Warehousemen 's Union, et al (Cali-
fornia Cartage Company, Inc), 208 NLRB 985 (1974)
2 Ibid
3 International Longshoremen's and Warehousemen's Union, et a! (Cali-
fornia Cartage Company, Inc), 208 NLRB 993 (1974)
215 NLRB No. 99
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was reasonable cause to believe the Respondents
had sought to resolve the dispute by means proscribed
by Section 8(b)(4)(D) of the Act. In pertinent part, the
Board awarded to the Employer's employees repre-
sented by or members of the Teamsters the disputed
work of stuffing and unstuffing containers at the Em-
ployer's location which were handled through the ports
of Los Angeles and Long Beach, California, and found
that Respondents were not entitled to secure such work
through means proscribed by Section 8(b)(4)(D) of the
Act. The Board further ordered Respondents to notify
the Regional Director in writing, within 10 days,
whether or not they would comply with this award.
Thereafter, allegedly not having been so notified, the
Regional Director issued the instant complaint.
In its answer to the complaint and response to the
Notice To Show Cause, Respondents contend, in sub-
stance, (1) that transferring the proceedings before the
Board without allowing them to respond to the Motion
for Summary Judgment denied them due process and
violated the Administrative Procedure Act, (2) that the
Board should deny the General Counsel's request that
official notice be taken of "all relevant documents and
facts" of the underlying cases, as this would not permit
them to adequately respond to such "documents and
facts" without being advised specifically which such
"documents and facts" are relied on by the Board in
ruling on this motion, (3) that the denials in their an-
swer to the complaint raise questions of fact which
preclude granting the Motion for Summary Judgment,
and require a hearing, and (4) that their oral and now
written statements of an intent to comply with the
10(k) award render this proceeding moot.
With regard to (1), the proceedings were transferred
before the Board to avoid unnecessary delay and to
effectuate the policies of the Act, as provided for in the
Board's Rules and Regulations.' Contrary to Re-
spondents' view, neither the Board's Rules and Regula-
tions, the Administrative Procedure Act, nor constitu-
tional due process automatically mandate that the
instant proceeding be heard and determined by an Ad-
ministrative Law Judge rather than the Board.' Re-
spondents were not precluded from opposing the mo-
tion, and indeed have done so by their response to the
Notice To Show Cause which was issued by the Board
for the purpose of soliciting the positions of the parties.
Respondents have thus been afforded a proper forum
in which to be heard and, accordingly, we find no merit
in this contention.
Sec 102 50 of the Board's Rules and Regulations, Series 8, as amended
5 See Local Union No. 3, International Brotherhood ofElectrical Workers,
AFL-CIO (Mansfield Contracting Corporation), 206 NLRB 423 (1973),
Bricklayers, Masons and Plasterers International Union of America v
NLRB, 475 F 2d 1316 (C A D C, 1973), enforcing Bricklayers, Stone
Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No
I of Tennessee (Shelby Marble & Tile Co), 188 NLRB 148 (1971)
Concerning our taking official notice of "all the rele-
vant documents and facts" in the underlying cases cited
above, we find Respondents' objections in this regard
to be unfounded, since our taking notice of such re-
cords from our prior cases involving the same parties
and reliance thereon is well settled.6
With regard to (3), Respondents deny the allegations
of their having engaged in and continuing to engage in
conduct proscribed by Section 8(b)(4)(i) and (ii)(D) of
the Act, and argue that a hearing is required. However,
in the companion CC and CE cases,' we found, inter
alia, on essentially undisputed facts, that Respondents
had, by letters and publications distributed to its mem-
bers, instructed them, in substance, that containers that
had not been stuffed or would not be unstuffed by
members of Respondents were not to be loaded or un-
loaded upon ships, and that, pursuant to this instruc-
tion, Respondents' members and represented em-
ployees had refused to load and unload such containers
including those stuffed or to be unstuffed by the
Employer.' By this conduct, we found that Respond-
ents had induced and encouraged employees of the
Pacific Maritime Association (PMA), in the course of
their employment, to refuse to handle containers
stuffed by the Employer, with an object of forcing
PMA member companies to cease doing business with
the Employer, thereby bringing pressure to bear on the
Employer to displace its own employees engaged in
stuffing and/or unstuffing containers at its container
freight station with Respondents' members. That litiga-
tion, at which all parties were given full opportunity to
present evidence and litigate the issues, involved the
same parties as are involved herein, and dealt with
identical conduct as is herein alleged. As such, under
principles of collateral estoppel, our previous findings
concerning Respondents' conduct are controlling in
this proceeding,' and it is clear on its face that this
conduct also establishes the existence of the proscribed
8(b)(4)(D) objective. Accordingly, Respondents are
precluded from introducing evidence on these issues,
which it fully litigated in the companion cases, and no
hearing is necessary to establish the conduct. 10
We now consider Respondents' fourth and final con-
6 Mansfield Contracting Corporation, supra
7 208 NLRB 993
8 We note that Respondents stipulated to the letters, publication, and
distribution to members, and the Administrative Law Judge found Respond-
ents' refusal to load and/or unload non-Respondents' stuffed or to be un-
stuffed containers pursuant to these instructions 208 NLRB 993 (ALJD,
111, b, 4) The Board adopted this finding
9 Local Union No 3, International Brotherhood of Electrical Workers,
AFL-CIO (New York Telephone Company), 197 NLRB 866, 867 (1972)
10 Respondents also deny (a) service of process and proof of jurisdiction,
(b) membership of Employer's employees in the Teamsters, (c) the existence
of a jurisdictional dispute, and (d) the existence of substantial evidence to
support the Board's 10(k) decision These issues were raised and litigated
in the 10(k) determination and may not be relitigated herein Shelby Marble
& Tile Co, supra
ILWU, LOCAL 13
tention that this proceeding is rendered moot by their
statements of an intent to comply. Respondents allege
in their response to the Notice To Show Cause that they
orally advised the Regional Director shortly after the
10(k) award of their past and contemplated future com-
pliance with the award, but declined to so state in
writing so as not to jeopardize appellate court review
of the companion CC and CE cases. Respondents now
state in their written response that they intend to com-
ply with the award, as they understand it, but reserve
the right to change or modify this position upon notice
to the Board.
We consider neither the alleged oral nor the belated
written statements sufficient to render this proceeding
moot. Compliance with a 10(k) award requires a good-
faith intent by the particular respondent to accept and
abide by the award, including the performance of sub-
stantially the same acts as are required for a showing
that it was intending to comply with a remedial order
by the Board." This showing of good faith includes,
inter alia, a timely and unequivocal written statement
to the Regional Director of such an intent, as is re-
quired by the 10(k) award.12 Clearly, Respondents' al-
leged oral statement does not meet this showing when
the 10(k) award specifically requires a written state-
ment. The belated written statement, given some 6
months after the award, does not express a clear will-
ingness to abide by the 10(k) award but, rather, injects
the uncertain element of Respondents' understanding
of the award, and reserves the right to alter even this
equivocal position upon a change of circumstances in
the future. We do not view the oral or the untimely and
equivocal written statements as manifesting the requi-
site good-faith intent to comply with the award herein,
and accordingly infer that Respondents do not enter-
tain such a good-faith intent. In these circumstances,
we conclude that this proceeding is not rendered moot.
We have found that Respondents have engaged in
conduct proscribed by Section 8(b)(4)(i) and (ii)(D) of
the Act, and have continued to engage in such conduct
by not complying with the Board's 10(k) award. We
have also found that Respondents' other contentions in
opposition to this motion are without merit, and, ac-
cordingly, we shall grant the General Counsel's Motion
for Summary Judgment.
Upon the entire record in this proceeding, the Board
makes the following:
Local 595, International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL (Bechtel Corporation), 112 NLRB 812 (1955),
United Brotherhood of Carpenters and Joiners ofAmerica, AFL-CIO, Local
No. 433 (Lippert Brick Contracting, Inc), 207 NLRB 63 (1973)
12 Local 568, International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO (Dickerson Structural Concrete
Corporation), 204 NLRB 59 (1973)
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
543
California Cartage Company, Inc., is now, and has
been at all times material hereto, a corporation engaged
in the transportation of freight by motor truck, and in
the operation of warehouses, storage yards, and a con-
tainer freight station in Wilmington, California. In the
course and conduct of its business operations, Cali-
fornia Cartage annually receives gross revenues in ex-
cess of $50,000 from the transportation of freight origi-
nating outside the State of California.
We find, on the basis of the foregoing, that California
Cartage is, and has been at all times material hereto, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
11 THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen's and Warehousemen's
Union; Local 13, International Longshoremen's and
Warehousemen's Union; Local 63, International Long-
shoremen's and Warehousemen's Union; and Local
692, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, are la-
bor organizations within the meaning of Section 2(5) of
the Act.
III THE UNFAIR LABOR PRACTICES
A. Background and Facts of the Dispute
At all times material hereto , Respondents and Cali-
fornia Cartage have had a jurisdictional dispute con-
cerning the work of stuffing and unstuffing containers
which are handled through the Ports of Los Angeles
and Long Beach at California Cartage 's Wilmington,
California , container freight station . Since on or about
June 14 , 1971, Respondents , in furtherance of said ju-
risdictional dispute, and as part of a joint plan to insti-
tute a boycott of shipping containers , other than ship-
pers loads, which were stuffed or to be unstuffed by
California Cartage , orally and in writing instructed,
ordered, and appealed to individuals employed by
LACT, and other persons , not to handle or work on
any shipping containers transported , or to be tran-
sported by various shipping lines, which were stuffed or
to be unstuffed by California Cartage , and thereby
threatened, coerced , and restrained LACT and' other
persons . As a consequence, individuals employed by
LACT and other persons refused to accept delivery of,
permit pickup of, or otherwise handle or work on ship-
ping containers stuffed or to be unstuffed by California
Cartage.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Determination of Dispute
On February 11, 1974, the Board issued its 10(k)
award, assigning the work of stuffing and unstuffing
containers at California Cartage to employees repre-
sented by or members of the Teamsters. The Board also
found , inter alia, that the Respondents were not enti-
tled to force or require California Cartage to assign
such work to members of the Respondents or to em-
ployees they represent by means proscribed by Section
8(b)(4)(D) of the Act.
C. Respondents' Refusal To Comply
Since on or about March 13, 1974, Respondents have
refused and continue to refuse to comply with the
above-mentioned Decision and Determination of Dis-
pute by failing and refusing to notify the Regional Di-
rector for Region 21, in writing, within 10 days, of their
intent to comply therewith, and have continued to de-
mand the disputed work.
On the basis of the foregoing, and the entire record
in this proceeding , we find that Respondents ' refusal to
comply with the Decision and Determination of Dis-
pute and continuing to demand the disputed work vi-
olated Section 8(b)(4)(i) and (ii)(D) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III,
above , occurring in'connection with the operations of
Employer described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic,
and commerce among the several States , and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V THE REMEDY
Having found that Respondents have engaged in and
are engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(4)(i) and
(ii)(D) of the Act, we shall order that they cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
The Board, upon the basis of the foregoing facts, and
the entire record , makes the following:
CONCLUSIONS OF LAW
1. California Cartage Company , Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Longshoremen 's and Ware-
housemen's Union; Local 13, International Long-
shoremen 's and Warehousemen 's Union ; Local 63, In-
ternational Longshoremen 's and Warehousemen's
Union; and Local 692, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, are labor organizations within the meaning of
Section 2(5) of the Act.
3. Respondents have violated and are violating Sec-
tion 8(b)(4)(i) and (ii)(D) of the Act by failing and
refusing to comply with the Board 's Decision and
Determination of Dispute and by continuing to de-
mand the disputed work , thereby threatening and co-
ercing and restraining LACT and other persons and
inducing and encouraging any individual employed by
them to cease performing the disputed work with an
object of forcing or requiring the Employer to assign
work of stuffing and unstuffing containers to employees
represented by Respondents by means proscribed by
Section 8 (b)(4)(D) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board hereby orders that
Respondents , International Longshoremen's and
Warehousemen's Union; Local 13, International
Longshoremen 's and Warehousemen 's Union ;' and Lo-
cal 63, International Longshoremen 's and Ware-
housemen 's Union , their officers , agents, and represen-
tatives, shall:
1. Cease and desist from refusing to comply with the
Board 's Decision and Determination of Dispute, and
from threatening , coercing , or restraining Los Angeles
Container Terminal Co., Inc., or any other person en-
gaged in commerce or in an industry affecting com-
merce , and from inducing and encouraging any in-
dividuals employed by them to cease performing the
disputed work , where an object thereof is to force or
require California Cartage Company , Inc., or any other
person , to assign the work of stuffing or unstuffing
containers to employees represented by or members of
Respondents rather than to employees represented by
or members of Local 692 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post at their business offices and meeting hall
copies of the attached notice marked "Appendix.""
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
(Continued)
ILWU, LOCAL 13
Copies of said notice, on forms provided by the Re-
gional Director for Region 21, after being duly signed
by Respondents ' representatives , shall be posted by Re-
spondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter,
in conspicuous places , including all places where no-
tices to members are customarily posted . Reasonable
steps shall be taken by Respondents to insure that said
notices are not altered , defaced , or covered by any
other material.
(b) Furnish the Regional Director for Region 21 with
signed copies of such notice for posting by the Em-
ployer, if willing , in places where notices to employees
are customarily posted.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
545
threaten, coerce, or restrain Los Angeles Con-
tainer Terminal Company , Inc., or any other per-
son engaged in commerce or an industry affecting
commerce , and from inducing and encouraging
any individuals employed by them to cease per-
forming the disputed work , where an object
thereof is to force or require California Cartage
Company , Inc., or any other person , to assign the
work of stuffing or unstuffing containers to em-
ployees we represent or who are our members,
rather than to employees who are represented by
or who are members of Local 692 , International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America.
INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S UNION
LOCAL 13, INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION
LOCAL 63, INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION
WE WILL NOT refuse to comply with the Board's
Decision and Determination of Dispute, and