International Longshoremen, Local 50

National Labor Relations Board - Board Decisions

Sep 21, 1971

193 N.L.R.B. 266 (N.L.R.B. 1971)

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's and Warehousemen's
Union, Local No. 50 (Brady-Hamilton Stevedore
Company and Williamette Western Corporation)
and Hoisting and Portable Engineers , Local No.
701, International Union of Operating Engineers,
AFL-CIO
International Longshoremen 's and Warehousemen's
Union, Local No. 50 (W. J. Jones & Son, Inc. and
General Construction Company ) and Hoisting and
Portable Engineers, Local No. 701, International
Union of Operating Engineers , AFL-CIO. Cases
36-CD-54 and 36-CD-54-2
September 21, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 13, 1971, Trial Examiner James T. Barker
issued his Decision in the above-entitled consolidated
proceeding, finding that Respondent Union had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
supplement to exceptions, the Intervenor' filed
exceptions to the Trial Examiner's Decision, with
supporting briefs, and the Charging Party filed a brief
supporting the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and
entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, International Longshoremen's and
Warehousemen's Union, Local No. 50, its officers,
agents , and representatives, shall take the action set
forth in the Trial Examiner's recommended Order.
i Pacific Maritime Association and its members Brady-Hamilton
Stevedore Company and W. J Jones & Son, Inc.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter was heard
at Portland, Oregon, on January 14 and 15, 1971, pursuant
to separate charges filed by Hoisting and Portable
Engineers, Local No. 701, International Union of Operat-
ing Engineers, AFL-CIO, hereinafter called Operating
Engineers, in Cases 36-CD-54 and 36-CD-54-2, respec-
tively. The charge in the first designated case was filed on
April 8, 1969, by the Operating Engineers, and the charge in
the latter case was filed on April 23, 1969. On October 8,
1970, the Acting Regional Director of the National Labor
Relations Board for Region 19 issued an Order Consolidat-
ing Cases, Consolidated Complaint, and Notice of Hearing
alleging that International Longshoremen 's and Ware-
housemen's Union, Local 50, hereinafter called Respon-
dent, the Longshoremen, or Local 50, was engaging in
conduct in violation of Section 8(b)(4)(i)(D) of the National
Labor Relations Act, as amended , hereinafter called the
Act. Thereafter, on November 9, 1970, the Regional
Director for Region 19 of the National Labor Relations
Board issued an amendment to the consolidated complaint
alleging that Respondent was engaging in conduct violative
of Section 8(b)(4)(i)(ii)(D) of the Act.
The Respondent timely filed an answer to the consolidat-
ed complaint and to the amendment to the consolidated
complaint. The parties and the Intervenor timely filed
briefs with me on March 5, 1971.1
Upon consideration of the briefs and upon the entire
record in this case ,2 I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
Willamette Western Corporation, hereinafter called
Willamette, and General Construction Company, herei-
nafter called General, are engaged in the construction
industry and annually conduct business outside the State of
Oregon in excess of $50,000. Brady-Hattulton Stevedore
Company, hereinafter called Brady, annually performs
stevedoring services for shipping companies sailing in
intercoastal or international waters valued in excess of
$50,000 and said shipping companies annually have a gross
volume of business in excess of $500 ,000. W . J. Jones &
Son, Inc., hereinafter called Jones , is an Oregon corpora-
tion engaged in the performance of stevedoring services for
shipping companies operating in interstate or in foreign
commerce . Jones annually performs stevedoring services
for shipping companies sailing in intercoastal or interna-
i Pursuant to a pretrial motion which was granted by Trial Examiner
James R. Webster, the Pacific Maritime Association , Brady-Hamilton
Stevedore Company and W . J. Jones & Son, Inc ., were permitted to
intervene in the proceedings and were represented at the hearing by
counsel.
2 At the hearing the Trial Examiner ruled that the record in the Section
10(k) proceeding and the Board 's Decision and Determination of Dispute,
reported at 181 NLRB No . 51, would constitute part of the record in the
instant case.
193 NLRB No. 37
INTERNATIONAL LONGSHOREMEN , LOCAL 50
tional waters valued in excess of $50,000, and said shipping
companies annually do a gross volume of business in excess
of $500,000.
Pacific Maritime Association, hereinafter called PMA, is
a California corporation admitting to membership employ-
ers engaged in shipping, stevedoring, and terminal business
at ports in California, Oregon, and Washington. Among its
members are Jones and Brady. PMA was established and
exists, inter aha, for the purpose of negotiating collective-
bargaining agreements with unions on behalf of its
employer-members.
Upon these stipulated and/or admitted facts, I find that
at all times material herein Willamette, General, Jones,
Brady, and PMA have been, and are, employers within the
meaning of Section 2(2) of the Act and have been, and are,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Hoisting and Portable Engineers , Local 701, Internation-
al Union of Operating Engineers , AFL-CIO, and Interna-
tional Longshoremen 's and Warehousemen 's Union, Local
No. 50, are stipulated and/or admitted to be labor
organizations within the meaning of Section 2 (5) of the Act,
and I so find.
iII. THE UNFAIR LABOR PRACTICES
A. The Issues
The General Counsel, resting on the Section 10(k) record,
contends that the evidence adduced at that hearing,
cognizable in this Section 10(c) proceeding, constitutes
substantial, preponderating evidence in support of the
unfair labor practice allegations of the complaint and
asserts that findings of Section 8(b)(4)(i)(n)(D) violations
on the part of Respondent should be made by the Trial
Examiner.
The Respondent and Intervenor raise several procedural
defenses, and the Respondent contends that, even assuming
rejection of these defenses, the record contains no evidence
of conduct on the part of Respondent violative of Section
8(b)(4)(ii)(D) of the Act.
In substance, the Respondent and Intervenor contend
that (1) the notice of hearing should be quashed and the
complaint herein dismissed because the procedures fol-
lowed by the Board for resolving jurisdictional disputes fail
to conform to the mandate of the statute and do not
conform to the statutory procedures which were given
delineation by the U. S. Supreme Court in the CBS case; 3
3 N L R B v Radio and Television Broadcast Engineers Union (CBS), 364
US 573
4 A consequence of this failure , contends the intervenor , is to leave the
Longshoremen free to use lawful means to enforce its contractual rights to
the work and thus to subject the employers to "anarchy" arising from the
Board 's asserted failure to issue a binding award of the work and to take
steps under Section 10 (e) to enforce the award
5 That case involved a charge filed by PMA, the Intervenor herein, on
April 22, 1969 , alleging violations of Section 8(b)(4)(i)(u)(D) arising from
picketing engaged in by Local 701 of the Operating Engineers, at the
Astoria, Oregon, facilities which had the purpose and object of forcing
PMA to assign the work of driving cranes to its members rather than to
registered longshoremen working under the ILWU-PMA Pacific Coast
267
(2) the Board's Decision and Determination of Dispute
herein is legally deficient in that the Board failed to render
a binding and compulsory determination of the dispute
and/or to obtain compliance therewith; 4 (3) the notice of
hearing herein should be quashed and the instant
proceeding be postponed until an amended complaint
based on the charges in Case 36-CD-555 is issued
consolidating that case with those presently before the Trial
Examiner in the instant proceeding so that, with Local 701
joined as a respondent with Local 50 in a Section 10(c)
proceeding, a resolution can be reached concerning the
disputed work assignment and a record made on which an
orderly review of the Board's decision could be perfected; 6
(4) the record of the Section 10(k) proceeding should be
struck and/or not considered in this Section 10(c)
proceeding on the merits of the alleged unfair labor practice
conduct, in that Section 102.92 of the Board's Rules and
Regulations, Series 8, as amended, is "in violation of the
law" and for the further reason that consideration in this
Section 10(c) proceeding of evidence adduced in a Section 9
"type" hearing deprives the moving parties of due process
of law; 7 (5) the Board procedure which treats its Decision
and Determination of Dispute issued pursuant to a Section
10(k) proceeding as binding and conclusive in a Section
10(c) proceeding involving a purported violation of Section
8(b)(4)(D) of the Act is similarly deficient in legality and in
meeting due process requirements; (6) for this latter reason
it was error for the Trial Examiner at the instant hearing to
reject evidence of the existence of an outstanding
certification giving Local 50 jurisdiction over the disputed
work and evidence allegedly establishing the existence of
collective-bargaining agreements between the ILWU and
PMA giving employees represented by Local 50 the right to
perform the disputed work; (7) the Trial Examiner erred in
rejecting evidence revealing that the work of loading logs at
Astoria has since April 1969 been satisfactorily performed
by longshoremen in that the evidence rejected related to a
period subsequent to the Section 10(k) hearing and was
thus not available for introduction at that heanng; and (8)
the Board's Decision and Determination of Dispute was
based upon errors of fact and law.
B. Pertinent Facts
1. Background facts
a. The setting
This case arises from a dispute between the Operating
Engineers and the Longshoremen over the right to man
barge-mounted floating whirly-type cranes used by steve-
contract who were at that point in time allegedly doing the work. The
picketing was enjoined and the charge was dismissed by the Regional
Director for Region 19 on July 28, 1970.
6 The intervenor contends , in apparent departure from the position of
the Respondent on this motion, that the charges in each of the three
aforesaid related cases should be held in abeyance pending the issuance by
the Board of a binding and compulsory determination of the work
assignment dispute such as is envisaged by the statute and required by the
CBS decision.
r The Respondent and intervenor contend that Congress intended
Section 10(k) procedure to be special and unique and that in following
Section 9 procedure in Section 10(k) hearings the Board errs.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dore companies in the Port of Astoria, Oregon, for lifting
bundles of logs weighing from 25 to 45 tons from the water
and placing them into the hulls of ships and barges. The
whirly-type crane is manned by a crane operator and by a
fireman or engineer . From 1964 until April 3, 1969,
Operating Engineers had been used exclusively in operating
the whirly-type crane.
To facilitate the log-loading operation at the Port of
Astoria, Brady and Jones, stevedoring companies engaged
in loading of logs in the Port of Astoria, Oregon, leased
waterborne whirly-type cranes from Willamette and
General. Under the separate lease arrangements with Brady
and with Jones, Willamette and General, respectively, at
times pertinent herein, provided the employees to operate
the cranes. In accordance with the terms of a bare-boat
charter, employees provided to Brady by Willamette are
deemed to be the employees of Brady. All of the employees
who, prior to April 3, manned the floating cranes for Brady
and Jones were, as found, members of the Operating
Engineers.
Immediately prior to April 3, 1969, the matter of
manning the whirly-type floating cranes became an issue.
As subsequently considered, on April 3 longshoremen
refused to perform certain work tasks essential to the log-
loading process. Consequently, the loading process came to
a halt. The whirly-type floating cranes were not thereafter
manned by employees represented by the Operating
Engineers . The stevedore companies then assigned the
work of loading logs to longshoremen. This assignment was
subsequently confirmed by an arbitration award arising
from a proceeding to which the Longshoremen and PMA
were parties. The Operating Engineers were not a party to
this arbitration proceeding.
b. The Section 10(k) proceeding
Pursuant to charges filed in the instant case, and to
charges filed, as above noted, on April 22,1969, by PMA in
Case 36-CD-55, the aforesaid cases were consolidated and
a notice of hearing was issued directing that a Section 10(k)
hearing be conducted into the work assignment dispute.
In due course, a hearing was conducted pursuant to
Section 10(k) of the Act. Thereafter, on February 26, 1970,
the Board issued its Decision and Determination of Dispute
wherein the Board found that employees "currently"
represented by the Operating Engineers were entitled to
perform the disputed work.
On March 6, 1970, Respondent filed a Petition for
Reconsideration and Clarification of Decision and Deter-
mination of Dispute with the Board. On July 24, the Board
issued an order denying Respondent's petition for reconsid-
eration and subsequently PMA filed an application for stay
with the Board. The application was denied on September
4, 1970.
The Respondent concedes that since on or about
$ Larson 's job and responsibilities, at times pertinent herein , consisted,
inter aha, of informing crane operators of Willamette as to the vessels on
which they should work and as to the position on the vessel from which
they should perform their work tasks For a period of approximately 3
years prior to April 3, Larson had been transmitting instructions to Stanton
and Stanton had followed them. The testimony of Elwyn Ty Stanton and
that of Norman Cass, equipment supervisor of Willamette , reveals that
Larson , at times pertinent , possessed and exercised the authority of a
February 26, 1970, it has failed and refused to comply with
the Board's Decision and Determination of Dispute.
2. The alleged unlawful conduct
a. The refusal to perform log-loading tasks
On the morning of April 3, Elwyn Ty Stanton, a floating
crane operator in the employ of Willamette and a member
of the Operating Engineers, reported to work at the Astoria
docks. Stanton had been in the employ of Willamette for
approximately I1 years and had worked at the Astoria
docks for approximately 5 years. On April 3, as was usual
procedure, upon reporting to work at approximately 8 a.m.
Stanton went aboard his assigned crane which was situated
on a floating barge. In accordance with normal practice, at
approximately 8 a.m. on April 3 Stanton moved the boom
of the crane over the water causing the slings which are
attached to the end of the boom to drop in a position
proximate to logs which were floating in the water. It is
usual work procedure at this point in the work process for a
hookup crew of four men-designated as raftmen-who
are members of the Respondent Longshoremen to secure
the slings at the end of the crane boom to logs situated in
the water. In this manner through the use of the crane the
logs are loaded in the hulls of ships and barges. When, on
the morning of April 3, the slings were presented to the
raftmen, unlike previous occasions in the work experience
of Stanton, the raftmen did not secure the logs.
In a similar manner, on the morning of April 3, Stanton
observed that the raftmen assigned to work with three other
cranes of Willamette refrained from securing the logs when
the slings were presented to them by the crane operators.
This condition of inactivity with respect to the four
Willamette cranes persisted for approximately 30 minutes.
At this point in time , Dale Larson, a gear lockerman
employed by Brady, the lessee of the floating cranes,
approached Stanton and seven other operators and
engineers in the employ of Willamette.8 Addressing
Stanton and the seven other assembled crew members,
Larson said, "You're fired; get your personal gear and get
off." Larson added that longshoremen were going to
operate the cranes.
Stanton and his coworker , Paul Bell, left and thereupon
made telephone calls to Willamette and the Operating
Engineers, respectively. Later in the morning, Stanton
observed individuals whom he recognized as longshoremen
operating the floating cranes . At approximately 1 p.m.,
engineers who were members of the Operating Engineers
and who were normally employed on the crews which were
manned by Operating Engineers, shut off the power which
operated the floating cranes . It was the daily responsibility
of the engineers employed on the crews to shut off the
power at the end of their work shift
In like manner, upon reporting to work on the morning of
supervisor within the meaning of the Act.
9 All of the foregoing is based upon the credited testimony of Elwyn Ty
Stanton With respect to the techniques employed in securing the logs to
the hoisting gear and the findings concerning the role of longshoremen
crews in carrying out or facilitating the hoisting procedure, I also rely on
the credited testimony of Bill Krohn. With respect to Stanton's testimony
that he contacted Willamette on the morning of April 3 1 have also
considered the testimony of Norman Cass . Cass confirms that Stanton
INTERNATIONAL LONGSHOREMEN , LOCAL 50 269
April 3, Bill Krohn moved the hoisting gear of his floating
crane over the logs situated in the water. This action
conformed to Krohn's normal practice which he had
followed during the 4-1/2 years of his work experience as a
crane operator in the employ of General at the Astoria
docks. Krohn observed that the raftmen to whom he
presented the slings made no effort to secure the logs.
Consequently, he left the crane gear hanging over the logs
for approximately 30 minutes. The raftmen continued to
abstain from securing the logs. Thereupon, Krohn left the
crane and proceeded to the dock. Upon arriving at the
dock, he spoke with John Tyler, a superintendent of Jones,
the Company for which Krohn was performing services
under the crane lease arrangement between General and
Jones . Krohn asked Tyler if he knew anything about what
was happening. Tyler responded that he did not know but
that he would make some calls and find out. Tyler added
that he knew that, "(t)hey would not be using the General
cranes on this ship."
Krohn did not thereafter operate a floating crane at the
Astoria dock. Krohn observed that on April 3 four floating
cranes of General were operative and that the hookup gear
of each was extended over the floating logs in a manner
permitting the raftmen situated on the logs to secure them
for hoisting. Krohn further observed that, in each instance,
raftmen refrained from securing the logs.
Krohn testified that, by reason of his prior work at the
Port of Astoria, he was acquainted with the four raftmen
working in the water on the morning of April 3, whose
normal task it was to secure the floating logs to the slings
affixed to the boom of the crane which he was operating.
When the four raftmen failed to secure the logs for hoisting
after the boom had been placed over the floating logs,
Krohn called to the raftmen. He inquired, "what was taking
place." The raftmen responded that they knew nothing and
that they had dust been told to stand by until further orders
and not to hook up the logs.
At a subsequent point in time, prior to 9 a.m., Tyler again
spoke with Krohn. Tyler instructed Jones to remove the
cargo gear belonging to Jones from the floating cranes and
prepare to be towed to dockside. Krohn transmitted these
instructions to the other crane operators.
Because the tugboats necessary to tow the personnel and
gear dockside were not available until approximately 2:30
p.m., Krohn remained on the floating cranes until the
tugboats arrived. During the interim, Krohn observed
longshoremen operating ships' gear endeavoring to load
bundles of floating logs. Because of prevailing circum-
stances , these attempts were unsuccessful, but by a
modified approach the longshoremen were successful in
loading individual logs aboard the ship.
On April 3, Krohn and other personnel of General
prepared the floating cranes for towing. On April 4, the
cranes were towed approximately I mile upstream from the
port dock area and were there moored. The crane
personnel , exclusive of Krohn, completed the week doing
maintenance work. Krohn remained at the Port of Astoria
for approximately 2 weeks thereafter performing mainte-
nance work on the cranes themselves.10
b. Radovich and Niemi converse
In the meantime , at approximately 8:15 a.m . on April 3
Stanley Radovich , a superintendent of Brady who at
relevant times was the superintendent in charge of the
Astoria stevedoring operations of Brady , spoke with Roy
Niemi . Niemi was at that time a member of Respondent's
labor relations committee . Radovich approached Niemi
and asked Niemi why the longshoremen were not hooking
on the logs . Niemi responded that the 'longshoremen felt it
was unsafe in view of the hard feelings that existed between
Local 701 and ILWU Local 50.1i
c. The joint telephone conference
Thereafter, at approximately 8:30 a.m. on the morning of
April 3 Donald Beal, labor relations administrator for
PMA, participated with representatives of Respondent in
what was essentially a conference telephone conversation
of some I hour's duration. The telephone conversation was
designated by the participants as a special meeting of the
Astoria Joint Longshore Labor Relations Committee and
conformed to procedures which were invoked by the
participants in circumstances which necessitated immedia-
cy of communication between the parties and which
obviated travel between Astoria and Portland, Oregon.
Don Beal, William Caruso, and Bill Church, all of whom
were representatives of PMA, participated in the telephone
conference from Portland. James VanOsdol, Gordon
Kluge, and Glen Bird, all members of Respondent's labor
relations committee, spoke from Astoria. The basic
telephone conversation between these parties was punctuat-
ed on occasions during the conversation with separate
telephone conversations between the aforesaid participants
and other individuals. These separate conversations were
necessitated by issues which arose during the course of the
basic dialogue and which related to the subject matter of
the basic conversation.
Beal testified that he had learned from Will Sheahon,
superintendent for Brady, and from William Caruso,
superintendent for Jones, that a work stoppage had
transpired at Astoria. He placed the conference telephone
call and during the course of the conversation was informed
by VanOsdol that the work stoppage had transpired
because of difficulties between Local 701 and Local 50
which were in the nature of "jurisdictional warfare."
Representatives of Local 50 asserted that the ILWU had
recently experienced "severe jurisdictional difficulties with
several craft unions" and particularly with Local 701.
Respondent's representatives added that efforts to resolve
these jurisdictional matters had been rejected and that
Local 50 had been warned by the craft unions that they
intended to expand their jurisdiction. In the course of the
contacted him on April 3 and that he instructed him and the other
operators to "hang tough " and, in substance , await developments Cass
recalled the call as occurring in the afternoon and not the morning as
Stanton testified However , Cass lacked certitude in this regard I find that
Stanton's accounting of the chronology was reliable and that he contacted
Willamette in the morning . I conclude Cass was either mistaken as to the
time of his conversation with Stanton or the Stanton -Cass conversation was
in addition to the company contact to which Stanton testified.
10 The foregoing is based upon the credited testimony of Bill Krohn.
11 The foregoing is based upon the credited testimony of Stanley
Radovich
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation, VanOsdol and Niemi stated that incidents
had been reported in the Astoria area involving animosity
between the two locals and that the animosity was a
sufficient ground for Local 50 to consider it dangerous to
the health and safety of its members to work under Local
701 crane operators. As a consequence, Beal was informed
by VanOsdol and Niemi that the longshoremen were not
going to work under Local 701 crane operators.
As a result of the discussions which took place, the parties
to the conference telephone conversation agreed to submit
to arbitration the question of whether "(t)he working
conditions that exist aboard these vessels [from which the
floating cranes operated], as related to the use of
nonlongshore crane drivers, are not unsafe." 12
d. The area arbitrator's decision
In due course , on April 27, 1969, the area arbitrator
issued a written decision in the matter . In pertinent part, the
arbitrator 's decision reads as follows:
THE UNION'S POSITION
It was the principal contention of the Union that they
had recently experienced severe jurisdictional difficul-
ties with several craft unions including Local
701-portable hoisting engineers . Repeated ILWU
efforts to resolve these problems had been strongly
rejected, and the craft unions had warned the ILWU
that they intend to expand their jurisdiction on the
waterfront.
In view of this hostile atmosphere , the gangs assigned to
these vessels stood by because the non -ILWU crane
drivers represented an immediate danger to health and
safety.
THE EMPLOYERS' POSITION
The Employers contended that since Local 701 crane
operators had driven this equipment for years, have
made no threatening remarks or gestures towards
longshoremen , and their competency is not challenged,
a real safety question does not exist under Paragraph
2.11 of Supplement III-Basic Agreement . Also, in the
Employers ' view , the basis of this dispute is
jurisdiction-not safety-and work must continue
under Section 1.52-PCLCD.
DISCUSSION
In the opinion of the Arbitrator , there could only be a
condition involving health and safety in this series of
operations if the nonlongshore crane operators were
acting in a hostile or belligerent manner such as to
create a dangerous working area for the longshore
gangs . This not being the case , the peration is
considered to be safe , and the Employers ' Motion is
sustained.
DECISION
The following oral decision issued to the parties is
hereby confirmed:
12 The foregoing is based upon the credited testimony of Donald Beal
Received in evidence at the Section 10(k) hearing was a summary of the
conference telephone conversation which transpired on April 3 This
summary was prepared by Bill Church , a representative of PMA, from
secretarial notes There is no evidence to suggest that the summary, as
prepared , was adopted or in any manner executed by representatives of
Local 50 . Beal testified that the summary constituted an accurate reflection
of the conference conversations but his testimony on cross-examination
1. This is a jurisdictional dispute.
2. There was no bona fide health and safety
issue.
3. There shall be no payment for standby time.
4. The jurisdictional issue shall be referred to the
Joint Coast Labor Relations Committee for
resolution as required by the Pacific Coast
Longshore Contract Document.
e. The coast labor relations committee meets
Thereafter, on May 8, 1969, the coast labor relations
committee met at a conference attended by William
Forrester, a representative of the Respondent, and by three
employer representatives, B. H. Goodenough, John Fenton,
and J. J. O'Shea. The conference meeting was for the
purpose of considering the decision of the area arbitrator
which had been previously issued on April27. The minutes
of the meeting reveal that the Employers took the position
that the Union was not entitled to raise a grievance as to a
work assignment dispute through the use of the health and
safety grievance procedure of the contract. The Employers
took the further position that the merits of the work
assignment dispute must be raised in accordance with the
provisions of section 1.7 and 1.5 of the contract and not
under the provisions relating to disputes on health and
safety. The Employers further pointed out at the meeting
that they had received demands concerning the work
assignment from Local 701 and were apprised that the
National Labor Relations Board had filed an injunction
claiming that the Operating Engineers had an arguable
position countering the position of Local 50 on the Astoria
crane dispute. Consequently, the Employers requested at
the meeting that there be an agreement that the use of
"jurisdictional health and safety" is improper under the
contract and that any grievances as to work assignments
should be presented pursuant to section 1.52 of the
contract. The minutes of the meeting reflect the position of
Local 50 as articulated at the meeting as follows:
The union's position is that even if the union was
wrong in proceeding through the agreed procedure for
disputes with respect to health and safety, that
procedure, like the basic procedure, specifically pro-
vides that once the grievance machinery has been
started the employers have a right only to continue
work "in accordance with the specific provisions of the
Agreement" if the matter "is covered by the Agree-
ment", which is to use longshoremen on the Astoria
water whirley [sic ] cranes, and not to direct work to
continue in any other way while the dispute continues.
The ILWU further asserts that it has been clearly
established by the decisions of the Coast Committee
interpreting the contract clauses, the contract clauses
themselves, and the well-established practice in the
Columbia River Area, as shown by Portland and the
reveals that the summary was, in fact, a refinement and interpolation of
some aspects of the conversation. I rely upon the summary only to the
extent that it is consistent with Beal 's oral testimony given at the Section
10(k) hearing. I specifically find , consistent with Beal 's oral testimony and
with a facet of the memorandum, that during the conference conversations
it was implied and discussed that Local 701 had made known to Local 50
its intention to expand its jurisdiction on the waterfront.
INTERNATIONAL LONGSHOREMEN , LOCAL 50 271
facts stated in the affidavits submitted, that this work
has been assigned to the longshoremen by the
collective-bargaining contract, that the longshoremen
are entitled to this work in Astoria upon request, that a
request was made for it, and that the longshoremen
must be given this work and the employer was required
to begin using longshoremen to do this work as soon as
the grievance was mentioned. The requests from Local
701 must be denied.
f. The coast arbitrator's decision
The Joint Coast Labor Relations Committee, being
unable at the meeting of May 8 to resolve the dispute before
it, submitted the matter to the coast arbitrator on a point
motion of the parties. By decision dated May 8, 1969, Sam
Kagel, coast arbitrator, pursuant to a proceeding to which
the Operating Engineers were not a party and in which they
did not participate, sustained the position of the ILWU to
the effect that, "The PMA Employers were and are
required to operate in accordance with the [ILWU-PMA]
contract, and specifically to use only longshoremen to
operate floating whirly cranes in Astoria for loading logs
Conclusions
1. The procedural issues
The several procedural issues advanced by the Respon-
dent and Intervenor for dismissing the instant complaint
issued under Section 10(c) of the Act, or for otherwise
quashing the notice of hearing herein, raise issues
challenging in the most fundamental manner the legal
propriety of the Board's procedures for resolving jurisdic-
tional disputes under Section 10(k) of the Act and for
determining whether or not an unfair labor practice has
been committed in violation of Section 8(b)(4)(D) of the
Act. The foundation for these related proceedings is
imbedded in the Rules and Regulations of the Board and in
case precedent formulated by the Board in light of the
decision of the Supreme Court in the CBS case.13
Manifestly, for the Trial Examiner to rule favorably to the
Respondent and Intervenor on the procedural issues which
they have raised herein would require an exercise of
discretion and amendatory authority which the Board has
made clear is not his. I have carefully considered the
13 See, e g , International Association of Machinists, Lodge No 1743,
AFL-CIO (J A Jones Construction Co) 135 NLRB 1402, 1410-1411, Local
991, International Longshoremen 's Association, AFL-CIO, Etc (Union
Carbide Chemical Company) 137 NLRB 750, 754-755, Chicago
Typographical Union No 16, AFL-CIO (Central Typesetting and
Electrotyping Co) 138 NLRB 231, 236-237 Section 102.89 et seq of the
Board 's Rules and Regulations , Series 8, as amended.
14 At the hearing the Respondent and Intervenor through offers of
proof which were rejected by the Trial Examiner endeavored to establish,
in support of their respective motions to dismiss and to quash the notice of
hearing, ( I) evidence of Board certifications and contractual commitments
assertedly securing to the longshoremen the right to perform the disputed
work , (2) arbitration awards supporting the claim of the longshoremen
which were issued pursuant to the collective-bargaining agreements in
effect between PMA and the Longshoremen ; (3) the existence of an
historical claim on the part of the longshoremen to the disputed work as
well as a history of actual performance by the longshoremen of log-loading
tasks through use of ships' gear , and otherwise , at the Port of Astoria and
motions and argument advanced by Respondent and
Intervenor at the hearing, and I have similarly considered
their respective briefs which renew the motions and amplify
the supporting rationale therefor. In consideration thereof I
find no warrant in this proceeding for departing from
established Board precedent and procedure.14
Encompassed within this conclusion which I reach is my
rejection of the contention that the instant proceeding is
rendered defective by the General Counsel's dismissal of
the charge against the Operating Engineers, filed by PMA
in Case 36-CD-55.15 Similarly, I find without merit the
assertion that factual distinctions attaching to two conten-
tions raised by the Respondent and Intervenor render
existing Board precedent inapplicable and leave the Trial
Examiner free to dismiss the complaint. Initially, drawing
upon the alleged viability of a Board certification in favor
of the Respondent covering the disputed work, the
Respondent and Intervenor contend that under the
"unless" clause of Section 8(b)(4)(D), a Board certification
constitutes an absolute defense to the allegations of the
instant complaint. Upon this premise, and analogizing the
decision of the Board in International Longshoremen's &
Warehousemen's Union, et al., (United States Steel Corpora-
tion) 153 NLRB 1363,16 the Respondent and Intervenor
contend that the Board has recognized that evidence of an
effort on the part of the company to assign disputed work
to a respondent union in whose favor a Board certification
had issued is relevant and competent evidence in an unfair
labor practice proceeding under Section 8(b)(4)(D), and
that rejection of such evidence in an unfair labor practice
hearing wherein a certification is raised as a defense is
error. A companion consideration, not predicated upon the
"unless" clause or upon the dictates of the U. S. Steel case,
but logically and legally indistinguishable, contend Res-
pondent and Intervenor, is the existence of viable
collective-bargaining agreements between the signing
employer and the contending respondent union contractu-
ally entitled to perform the disputed work. On these bases,
contend Respondent and Intervenor, the Trial Examiner
should dismiss the complaint.
I find the U. S. Steel case to be inapposite and the
contention of the Respondent and Intervenor with respect
to the applicability of the certification and collective-
bargaining agreements in the instant proceeding to be
without merit. It is clear that in its Decision and
Determination of Dispute in the Section 10(k) proceeding
at other West Coast ports; (4) a continuing and viable claim by the
longshoremen to the disputed work, and (5) an awareness and recognition
on the part of officials of PMA-assertedly possessive of the ultimate right
to assign crane operators to tasks being performed by member stevedoring
companies-of the contractual and certification -based right of the
longshoremen to the disputed work. I affirm my rulings.
15 Section 3(d) of the Act; United Brotherhood of Carpenters & Joiners of
America, Local Union No 978, AFL-CIO, et a! (Markwell & Hartz) 120
NLRB 610, 612; Division 1267, Amalgamated Association of Street, Electric
Railway and Motor Coach Employees of America v. Ordman, 320 F.2d 729
(C A D.C.), Balanyi v Local 1031, International Brotherhood of Electrical
Workers, AFL-CIO, 374 F.2d 723 (C A 7)
16 In U S Steel, in finding a violation of Section 8(b)(4)(D) flowing
from a failure on the part of the respondent therein to conform to a Section
10(k) determination, the Board specifically observed that the respondent
had raised no contention that in assigning the work to the employees
represented by the respondent the company was failing to conform to any
order or certification of the Board.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board considered and rejected the certification and
contract contentions. Thus, the Board noted:
PMA and its members Brady and Jones take the
position that the work should be assigned to the
Longshoremen both by virtue of its relation to the
normal waterfront longshore work and because the
work allegedly is covered by a Board certification and
by the labor agreement between PMA and Longshore-
men.
PMA and the Longshoremen claim that the work in
dispute is covered by a certification, based on Ship
Owners' Association of the Pacific Coast, et a!., 7 NLRB
1002, a 1938 case in which the Board certified the
alleged predecessor of the Longshoremen as the
representative of "the workers who do longshore work
in the Pacific Coast port of the United States for the
companies which are members of" specified employer
associations allegedly the predecessors of PMA.
However, that certification was issued before the advent
of the barge-mounted floating crane. In addition, the
record shows that all post-certification contracts
between those parties and their successors limited the
broad language of the certification by excluding some
work from the unit covered. Recent PMA-Longshore-
men contracts provide that "All machinery, equipment,
and other tools now or hereafter used in moving cargo
shall be operated by longshoremen when used in an
operation covered by this Agreement and the operation
thereof is assigned to longshoremen and is covered by
this Agreement," with certain exceptions. One of the
exceptions specified is the operation of cranes mounted
on floating crane barges.
In light of the foregoing evaluation, and after considering
other evidence relevant to the assignment of the disputed
work, the Board found that employees represented by the
Operating Engineers were entitled to the disputed work
rejecting implicitly, if not explicitly, the contention of PMA
and the Longshoremen with respect to the controlling
nature of the certification and of the PMA-Longshoremen
contract.
Also requiring delineation is the contention of the
Respondent and the Intervenor that, in rendering its
Decision and Determination of Dispute the Board failed, as
required by CBS and the statute, to make a specific award
of the disputed work. A careful reading of the Board's
decision reveals that this contention is without merit. Thus,
while refraining from, in terms, "awarding" the work to one
of the contending found: parties, as is frequently Board
practice,17 the Board nonetheless
In light of the above, we conclude that the relevant
factors support the Employers' original assignment of
17 See , e.g , Sheet Metal Workers Local Union No 332, AFL-CIO (Lear-
Siegler, Inc) 176 NLRB No 41, wherein the Board observed, "(w)e shall
accordingly determine the dispute before us by awarding all installation of
heating equipment
18 The Court in CBS stated, "it is the Board 's responsibility and duty to
decide which of two or more employee groups claiming the right to
perform certain work tasks is right and then specifically to award such tasks
in accordance with its decision ." [Emphasis supplied ]
19 See, e.g., International Union of Operating Engineers, Local Union No
this work to employees represented by the Engineers,
and that the employees are entitled to the disputed
work. We shall therefore determine the dispute in their
favor.
As is clear from the Board's Decision and Determination of
Dispute, the Board determined the dispute before it by
finding specifically that the Operating Engineers were
entitled to perform the work which it had described with
specificity within the body of its decision. In finding that
the Operating Engineers were "entitled" to the disputed
work, and in then determining the dispute "in favor" of the
Operating Engineers, the Board was, substantively and
definitively, making an award or an assignment of the
work. It augmented this determination by the further
directive that the longshoremen were "not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to force
or require the Employers to assign the above work to
longshoremen represented by it." It is clear that the Board
has construed the directive of the Supreme Court in the
CBS case 18 as not requiring the "award" of disputed work
assignments to be phrased in formula terms so long as it is
specified definitively in the Decision and Determination of
Dispute which of the groups claiming the right to perform
the disputed tasks is entitled to the work.19 Similarly, the
proscription in the Board's Decision and Determination of
Dispute in the instant case against Respondent's use of
means proscribed by Section 8(b)(4)(D) of the Act to force
or require the Employer to assign the work in issue to its
members is the proscription which the Board has customar-
ily included in its post- CBS Decisions and Determinations
of Dispute.20
2. The merits
The evidence establishes that Respondent has not at any
time since its issuance complied with the Board's Decision
and Determination of Dispute. Accordingly, the only
remaining issue is whether Section 8(b)(4)(i)(ii)(D) was
violated, as alleged in the complaint.
The evidence above recounted, including the abstention
of the raftmen assigned to eight different cranes from
performing their work tasks; the concession of the four
raftmen to Krohn that they had been ordered to stand by
until further orders; the statement of Roy Niemi to Stanley
Radovich concerning the asserted reason for the actions of
the raftmen and the statements of Respondent's representa-
tives on the same subject made to representatives of PMA
at the April 3 special meeting of the Astoria Joint
Longshore Labor Relations Committee "meeting" all
establish-the latter conclusively so-the existence on
April 3 of a Local 50 directed and supported policy of
withholding in furtherance of Respondent's labor relations
objective the services of longshoremen-raftmen. The
evidence reveals a policy on the part of Respondent, extant
181 (E C Ernst, Inc) 174 NLRB No 45, International Brotherhood of
Electrical Workers, Local 113, AFL-CIO (Westland Theatres, Inc) 180
NLRB No 20, Local 991, international Longshoremen's Association,
AFL-CIO, Etc (Union Carbide Chemical Company), supra, p 755
20 See N L R B v International Longshoremen's and Warehousemen's
Union, et al (Aluminum Company of America), 413 F 2d 30 (C.A 9), enfg
163 NLRB 1039, based upon conduct relating to the Board 's Decision and
Determination of Dispute reported at 158 NLRB 1024
INTERNATIONAL LONGSHOREMEN , LOCAL 50 273
on April 3, 1969, and persisting at times relevant herein, not
to permit its members to perform any work in connection
with the disputed log-loading assignment unless all the
work required to successfully complete the assignment was
performed by its members. Accordingly, I find that
Respondent engaged in conduct rendering it responsible
for the work stoppage that transpired, and that by and
through its conduct which gave effectuation to its policy
Respondent induced and encouraged raftmen employees,
all of whom were its members, to engage in a strike. The
evidence leaves little doubt that an object of the strike was
to preempt the claim of the Operating Engineers to the
work of operating the barge-mounted cranes and to force
and require Brady and Jones to assign those work tasks to
members of Respondent instead of employees represented
by the Operating Engineers. Considerations of health and
safety were manifestly secondary and subordinate in nature
to the jurisdictional considerations underlying the policy.
Indeed, the decision by Respondent to claim the work may
not be viewed as being unrelated tactically to efforts of
craft unions, including the Operating Engineers, to expand
their respective work jurisdictions along the waterfront. As
the evidence establishes a strike by Respondent and
successful inducement and encouragement of employees to
engage in a strike and to refuse to perform employment
services, all for the proscribed object of forcing Brady and
Jones to assign the work of operating the floating cranes to
members of Respondent to the exclusion of members of the
Operating Engineers, I find that Section 8(b)(4)(i)(n)(D)
was, and has been, violated by Respondent.21
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operations of the
Employers described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Hoisting and Portable Engineers , Local No. 701,
International Union of Operating Engineers , AFL-CIO,
and International Longshoremen's and Warehousemen's
Union, Local No. 50, are labor organizations within the
meaning of Section 2(5) of the Act.
2. Willamette Western Corporation; General Construc-
tion Company; W. J. Jones & Son, Inc.; Brady-Hamilton
Stevedore Company; and Pacific Maritime Association are,
and have been at all times material herein, employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) and of Section 8(b)(4) of the Act.
3. The Respondent has failed and refused to comply
with the Decision and Determination of Dispute issued by
the Board on February 26, 1970.
4. By inducing and encouraging the employees of Brady
and of Jones to engage in a work stoppage or otherwise to
refuse to perform services for their respective employers
and by threatening, coercing, and restraining Brady, Jones,
Willamette, General, and PMA with an object of forcing or
requiring Brady and Jones to assign the work of operating
barge-mounted floating whirly-type cranes to employees
who are members of or represented by the Respondent
rather than to employees who are represented by the
Operating Engineers, all in a circumstance wherein Brady
and Jones were not failing to conform to an order or
certification of the Board determining the bargaining
representative for employees performing such work, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(4)(i)(ii)(D) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 22
ORDER
Respondent, International Longshoremen's and Ware-
housemen's Union, Local No. 50, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Engaging in or inducing or encouraging any
individual employed by Brady-Hamilton Stevedore Com-
pany, W. J. Jones & Son, Inc., or any other person engaged
in commerce or in an industry affecting commerce to
engage in a strike or refusal, in the course of his
employment, to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials,
or commodities or to perform any services; or threatening,
coercing, or restraining Brady-Hamilton Stevedore Compa-
ny; W. J. Jones & Son, Inc.; Willamette Western
Corporation; General Construction Company; Pacific
Maritime Association, or any other employer or person
engaged in commerce or in an industry affecting com-
merce, where, in either case, an object thereof is to force or
require Brady-Hamilton Stevedore Company and/or W. J.
Jones & Son, Inc., to assign the work of operating barge-
21 Chicago Typographical Union No 16, AFL-CIO (Central Typesetting
and Electrotyping Co ), supra, Local Union No 272, International Association
of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Prestress
Erectors, Inc) 172 NLRB No 19, enfd 427 F 2d 211 (CA 5), Local 25,
International Brotherhood of Electrical Workers, AFL-CIO (New York
Telephone Company) 162 NLRB 703, see also Local Union 825, International
Brotherhood of Operating Engineers, A FL-CIO (Carleton Brothers Company)
131 NLRB 452
22 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall , as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto
shall be deemed waived for all purposes.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mounted whirly-type cranes at the Port of Astoria, Oregon,
lifting bundles of logs from the water and placing them into
the hold of a ship or a barge, to employees who are
members of or represented by Respondent rather than to
employees of Brady-Hamilton Stevedore Company and/or
W. J. Jones & Son, Inc., who are represented by Hoisting
and Portable Engineers , Local No. 701, International
Union of Operating Engineers, AFL-CIO, unless Brady-
Hamilton Stevedore Company and/or W. J. Jones & Sons,
Inc., are failing to conform to an order or certification of
the National Labor Relations Board determining the
bargaining representative for employees performing such
work.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places in its business offices,
meeting halls , and all other places where notices to
members are customarily posted copies of the attached
notice marked "Appendix." 23 Copies of said notice, on
forms provided by the Regional Director for Region 19,
shall, after being duly signed by an authorized representa-
tive of Respondent, be posted by the Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter. Reasonable steps shall
be by it taken to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director for Region 19 for posting by Brady-
Hamilton Stevedore Company, W. J. Jones & Son, Inc.,
Willamette Western Corporation, General Construction
Company, and/or Pacific Maritime Association at all
locations where notices to their respective employees are
customarily posted, said Employers willing.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of the receipt of this
Trial Examiner's Decision, what steps the Respondent has
taken to comply herewith.24
23 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
24 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 19, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
individual employed by Brady-Hamilton Stevedore
Company and/or W. J. Jones & Son, Inc., or any other
person engaged in commerce or in an industry affecting
commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods,
articles, materials, or commodities, or to perform any
services; or threaten, coerce, or restrain Brady-Hamil-
ton Stevedore Company, W. J. Jones & Son, Inc.,
Willamette Western Corporation, General Construction
Company, Pacific Maritime Association, or any other
employer or person engaged in commerce or in an
industry affecting commerce, where in either case an
object thereof is to force or require Brady-Hamilton
Stevedore Company and/or W. J. Jones & Son, Inc., to
assign the work described below to employees who are
members of or represented by Local No. 50, the
Respondent herein, rather than to employees of Brady-
Hamilton and/or W. J. Jones & Son, represented by
Local No. 701 of the Operating Engineers , unless
Brady-Hamilton and/or W. J. Jones & Son is or are
failing to conform to an order or certification of the
National Labor Relations Board determining the
bargaining representative for employees performing
such work. The work involved consists of:
Operating barge-mounted floating whirly-type
cranes lifting bundles of logs from the water and
placing them into the holds of ships and barges at
the Employers' Astoria, Oregon, operations.
Dated By
INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN 'S UNION,
LOCAL No. 50
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 310
Six Ten Broadway Building, 610 S W Broadway, Portland,
Oregon 97205, Telephone 226-3431.
WE WILL NOT engage in, or induce or encourage any