International Longshoremen's Association

National Labor Relations Board - Board Decisions

Apr 21, 1954

108 N.L.R.B. 313 (N.L.R.B. 1954)

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1294 313
After an investigation , the Regional Director , on February 1,
1954 , issued his report on objections , in which he found that the
conduct of the Union did not materially interfere with the em-
ployees' free choice in the election and recommended that the
objections be overruled and the appropriate certification be
issued. The Employer filed timely exceptions to the Regional
Director ' s report.
In its exceptions , the Employer protests the conclusions
reached by the Regional Director that the conduct of Union or-
ganizers , even if true as alleged , did not materially interfere
with the free choice of employees; and that certain other con-
duct was remote from the date of the election or the polling
place and could not be considered to have affected materially
the results of the election . Accordingly , the Employer urges
that the Board set aside the election or direct a hearing on the
objections.
We have considered the objections to the elections , the Re-
gional Director ' s report, and the Employer ' s exceptions thereto.
In agreement with the Regional Director , we find that the objec-
tions raise no substantial or material issues with respect to the
conduct of the election , and we overrule them.
Because the tally of ballots shows that the Petitioner received
a majority of the valid votes cast , we shall certify the Petitioner
as the bargaining representative of the employees in the appro-
priate unit.
[The Board certified The Amalgamated Clothing Workers of
America , CIO, as the designated collective - bargaining repre-
sentative of the employees in the unit found appropriate in the
Decision and Direction of Election herein.]
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL
1294 (INDEPENDENT) and CARGILL, INC. Case No. 2-CD-
82. April 21, 1954
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which
provides that " whenever it is charged that any person has
en aged in an unfair labor practice within the meaning of section
8 (gb) (4 ) (D) of the Act, the Board is empowered and directed to
hear and determine the dispute out of which such unfair labor
practice shall have arisen. . . ."
On December 31, 1953, Cargill, Inc., herein called Cargill,
filed with the Regional Director for the Second Region a charge
alleging that International Longshoremen ' s Association, Local
1294 (Independent ), herein called the ILA, has engaged in and is
engaging in certain activities proscribed by Section 8 (b) (4) (D)
of the Act.
108 NLRB No. 71.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the
Regional Director investigated the charge and provided for an
appropriate hearing upon due notice to all parties. The hearing
was held before Jack Davis, hearing officer, on February 3 and
4, 1954. All parties, including the Intervenor, American Federa-
tion of Grain Millers, Local 219, AFL, herein called the AFL,
appeared at the hearing and were afforded full opportunity to be
heard , to examine and cross - examine witnesses , and to adduce
evidence bearing on the issues. The rulings of the hearing
officer made at the hearing are free from prejudicial error and
are hereby affirmed. No briefs were filed with the Board.
Upon the entire record in the case, the Board makes the fol-
lowing:
FINDINGS OF FACT
1. The business of Cargill
Cargill, Inc., a Delaware corporation, operates the largest
single-unit grain elevator in the world at the Port of Albany,
New York. This grain elevator receives shipments of grain,
through the Great Lakes and the New York Barge Canal,
valued in excess of $50,000,000 each year. The grain in turn is
exported by Cargill to countries all over the world. The parties
concede, and we find, that Cargill is engaged in commerce with-
in the meaning of the Act.
2. The labor organizations involved
The ILA and the AFL are labor organizations within the
meaning of the Act.
3. The dispute
A. The facts
In 1946 Cargill's employees were organized by Local 1689,
ILA-AFL. That Union had a continuing bargaining relationship
with Cargill until December 1953 when, pursuant to a Board
election (Case No. 2-RC-6327), Cargill's employees chose the
AFL as their exclusive bargaining representative.' Thereafter,
on December 22, 1953, the AFL entered into a collective-bar-
gaining contract with Cargill. Both the certification and the con-
tract covered the following unit: "All hourly rated employees en-
gaged in receiving, storing, handling, and shipping of grain...."
Cargill subcontracts the work of loading and unloading ships
to several stevedore companies, one of which is the John W.
'The certification was issued to the American Federation of Grain Millers, AFL, which in
turn granted a charter to its Cargill employees. This latter group became Local 219 and was
permitted to intervene at the hearing.
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION , LOCAL 1294 315
McGrath Corp. These firms have had collective- bargaining
agreements with the ILA since 1933 and have employed members
of that Union for all shipboard and dock work in connection with
the loading and unloading of grain.
The only disputed work herein involves the operation of
winches and spouts by electrical controls on or near ships to be
loaded with grain at Cargill' s grain elevators. When ships
arrive they are loaded by the use of small and large spouts
extended over the ships' holds.
On the ship, the small spouts are customarily manipulated by
the use of electrical controls ("buttons"). These controls are
handled by Cargill's employees ("elevator men") who stand
near the ship's hold in order to direct the pouring of grain.
Except for these elevator men and Cargill's foreman who super-
vises the entire loading operation, all other employees on the
ship during the loading are ILA longshoremen.
On the dock, the large spouts are raised and lowered by
winches operated by Cargill's employees. Apparently, all
other dock operations in connection with loading are handled
by the ILA members.
Both of the above work assignments to Cargill's employees
have been the prevailing practice over the years.
After Cargill's employees changed their union affiliation, the
ILA, on December 29, 1953, demanded for its members the work
tasks previously performed by Cargill's employees. This de-
mand was addressed to representatives of the stevedore com-
panies who, in turn, communicated the ILA' s position to Cargill.
In fact, Cargill had, inOctober or November 1953, been directly
informed by an ILA representative that the ILA no longer repre-
sented its employees and that henceforth only ILA men would be
allowed on the ships.
No ship appeared at Cargill' s elevator until January 6, 1954.
On that date a ship tied up to be loaded. Cargill assigned the
loading operation to McGrath Corp. Moreover, Cargill, aware
of prior ILA threats, instructed its elevator men to operate the
controls for the small spouts from the dock, not from the ship
as was the ordinary practice. When the longshoremen, em-
ployees of McGrath, boarded the ship, they discovered that the
electrical controls were not on the ship. After the loading began,
some ILA officials conferred. One of them, William McGahay,
came to the ship and told Cargill's employees to pass the con-
trols to the ILA men on board ship "and that we would then go to
work." McGahay further stated that when they refused to do so,
the longshoremen ceased work. McGahay told Cargill's fore-
man on the ship that "we can't have this" and instructed him to
shut off the flow of grain. The foreman complied with that re-
quest and work stopped for approximately 2 hours.
During this 2-hour work stoppage, 2 conferences were held
at Cargill's office. At the first, the ILA officials claimed the
disputed work and threatened that no loading would take place
unless the controls were passed to the longshoremen on the
ship. Indeed, they informed Cargill that work on the ship had
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stopped. The ILA also complained that the operation of the con-
trols from the dock was a hazard to longshoremen working on
the ship . Cargill refused to reassign the work.
At the second conference, however, withboth Unions present,
a compromise agreement was effected by which the ILA was to
operate the controls for the small spouts on board ship while
Cargill's elevator men stood by in a supervisory capacity. At
the same time, it was agreed that Cargill's employees were to
continue to do the dockside workofoperatingthe winches which
control the large spouts . Pursuant to this arrangement , the ship
was loaded . This temporary arrangement has been continued
pending a determination of the dispute by the Board. Both Unions
still maintain their exclusive right to the work in question.
B. Contentions of the parties
It was charged by Cargill that the ILA induced and encouraged
the employees of McGrath and another stevedore company to
engage in a strike with an object of forcing or requiring Cargill
to assign the disputed work to members of the ILA rather than
to members of the AFL, who are employed by Cargill.
The ILA maintains that its conduct, especially the objective
thereof, does not fall within Section 8 (b) (4) (D)'s proscription;
that its contract with the stevedore companies entitles it to an
assignment of the work; that it is the practice in the industry for
all shiploading work to be done by its members, longshoremen.
The AFL maintains that the disputed work traditionally be-
longs to Cargill's employees; and that those employees are
represented by it under a contract which requires Cargill to
assign that work to the AFL.
C. Applicability of the Statute
The charge, which was duly investigated by the Regional Di-
rector, alleges a violation of Section 8 (b) (4) (D) of the Act, and
the Regional Director was satisfied on the basis of his investi-
gation that a violation of the section had been committed.
Before we may proceedwithadeterminationofa dispute pur-
suant to Section 10 (k) of the Act, we must be satisfied that
reasonable cause exists to believe that Section 8 (b) (4) (D) of
the Act has been violated.' The evidence set forth above shows
that the ILA actually engaged in the January 6 strike.' Further,
the ILA conceded, through McGahay, that its actions had a dual
purpose. On the one hand, the ILA claimed the disputed work for
its members and addressed that claim directly to Cargill; on the
other hand, the ILA maintained that the longshoremen were en-
dangered by operation of the controls fromthe dock. Even con-
2 Local 26, International Fur & Leather Workers Union (Winslow Bros.), 90 NLRB 1379;
Truck Drivers and Chauffeurs Union, Local 705 (Direct Transit Lines), 92 NLRB 1715.
3 See, e. g., Los Angeles Building & Construction Trades Council et al (Standard Oil Co.),
105 NLRB 868, and cases cited therein footnote 22.
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION , LOCAL 1294 317
ceding that the latter object was lawful and that the ILA strike
was motivated in part thereby, it seems apparent that the stop-
page was also intended to further the former object, namely, to
force Cargill to assign the disputed work to members of the ILA
rather than to its own employees who were members of the AFL
--an activity proscribed by Section 8 (b) (4) (D).4 In view of the
foregoing , we conclude that there is reasonable cause to believe
that the ILA has engaged in conduct violative of Section 8 (b) (4)
(D). We therefore find that the dispute in the present proceeding
is properly before us for determination under Section 10 (k).
D. Merits of the dispute
At the time the ILA sought and demanded of Cargill that the
disputed work be given to longshoremen, members of the ILA,
Cargill had assigned such work to its own employees, members
of the AFL. The dispute was therefore one over an employer's
assignment to employees in one labor organization rather than
to employees in another labor organization.
It is now well established that an employer is free to make
such assignments free of strike pressure by a labor organi-
zation, "unless such employer is failing to conform to an order
or certification of the Board determining the bargaining repre-
sentative for employees performing such work."6 No claim is
made, nor does it appear, that Cargill' s assignment of the dis-
puted work to its own employees is in contravention of any
certification or Board order. Moreover, it is clear from the
record that the ILA has no immediate or derivative rights under
any existing contract upon which it could predicate any lawful
claim to the work in dispute.
The ILA, however, maintains that by reason of its contract
with the stevedore companies , it is entitled to the assignment
of the work in dispute. In this connection, we note that Cargill
presently employs no ILA members. The ILA's contract is
with McGrath and other stevedore companies, not with Cargill.
Indeed, for a period of over 20 years, Cargill has assigned the
disputed work to its own employees. The remainder of the
loading work has been contracted to the stevedore firms. There
being no privity of contract between the ILA and Cargill, the
former's defense is patently without merit.6 This being so,
the further ILA position concerning practice in the industry
becomes immaterial.'
4 The language of that section refers to "an object," and where multiple objects are sought
by a union, the presence among them of but one proscribed object is sufficient to bring the
union's conduct within the statutory language.
5Pile Drivers, Bridge, Wharf and Dock Builders, United Brotherhood of Carpenters &
Joiners of America, Local Union No. 34, AFL (Klamath Cedar Co.), 105 NLRB 562; Inter-
national Longshoremen's and Warehousemen's Union, Local No. 16, CIO (Juneau Spruce
Corp.), 82 NLRB 650.
6See, e.g., Los Angeles Building & Construction Trades Council et al. (Westinghouse
Electric Co.), 83 NLRB 477, 481-2.
7 Ibid.
3 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, accordingly, that the ILA was not and is not lawfully
entitled to force or require Cargill to assign the work of
operating winches and spouts by electrical controls in the
loading of grain at Cargill's grain elevator, Port of Albany,
New York, to members of the ILA rather than to employees of
Cargill who are members of the AFL. However, we are not,
by this action, to be regarded as "assigning" the work in
question to the AFL.'
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon the
entire record in. the case , the Board makes the following deter-
mination of dispute, pursuant to Section 10 (k) of the Act:
1. International Longshoremen's Association, Local 1294
(Independent) is not and. has not been lawfully entitled to force
or require Cargill, Inc., to assign the work of operating the
winches and spouts by electrical controls in the loading of grain
at Cargill's grain elevators at the Port of Albany, New York, to
members of the ILA rather than to employees assigned by
Cargill to perform such work.
2. Within ten (10) days from the date of this Decision and
Determination of Dispute, the Respondent (ILA) shall notifythe
Regional Director for the Second Region in writing as to what
steps the Respondent has taken to comply with the terms of this
Decision and Determination of Dispute.
Member Beeson took no part in the consideration of the
above Decision and Determination of Dispute.
8Ibid.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL:
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL
AND ORNAMENTAL IRON WORKERS, LOCAL UNION NO. 24,
AFL; BROTHERHOOD OF PAINTERS, DECORATORS AND
PAPERHANGERS OF AMERICA, LOCAL UNION NO. 79, AFL;
UNITED ASSOCIATION OF JOURNEYMEN AND APPREN-
TICES OF THE PLUMBING AND PIPEFITTING INDUSTRY
OF THE UNITED STATES AND CANADA, LOCAL UNION
NO. 208, AFL; UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, LOCAL UNION NO. 1351,
AFL; INTERNATIONAL HOD CARRIERS, BUILDING AND
COMMON LABORERS' UNION OF AMERICA, LOCAL UNION
NO. 720, AFL; INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL UNION NO. 9, AFL; UNITED ASSO-
CIATION OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY OF THE"UNITED
STATES AND CANADA, LOCAL UNION NO. 3, AFL, and
JOHN R. PEARSE. Case No. 30-CC-20. April 21, 1954
108 NLRB No. 66.