Local 1291, Int'l Longshoremen's Association

National Labor Relations Board - Board Decisions

Jun 18, 1963

142 N.L.R.B. 1228 (N.L.R.B. 1963)

1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1291 , International Longshoremen 's Association, AFL-
CIO and Northern Metal Company. Case No. 4-CD-51. June
18, 1963
DECISION AND ORDER
On January 25, 1963, Trial Examiner Benjamin B. Lipton issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent, the General Counsel, and the Intervenor,
Local 14, International Union of Marine and Shipbuilding Workers
of America, AFL-CIO, filed exceptions to the Intermediate Report
and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
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 Intermedi-
ate Report, the exceptions, and the entire record in this case, and here-
by adopts the findings, conclusions, and recommendations of the Trial
Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
1 Respondent 's exceptions actually relate to findings originally made in the Board's Deci-
sion and Determination issued on July 18, 1962 ( 137 NLRB 1451 ). We have examined
these exceptions and the brief in support thereof and find that they contain nothing not
previously considered and rejected by the Board.
2 The General Counsel has excepted to the Trial Examiner 's conclusion (I.R., footnote 28)
that, unless it is shown that Respondent was under an obligation to furnish longshoremen
to Northern Metal Company, Respondent ' s refusal to furnish the longshoremen does not
constitute Section 8 ( b) (4) (i) and ( ii) conduct . Since we adopt the Trial Examiner's
finding that the Respondent induced its members who had been "shaped up" by Northern
Metal Company on June 18 , 1960, to refuse to work on June 19, 1960, and that such con-
duct constitutes violations of Section 8(b) (4) (i ) and (ii ) (D), and since the same order
will issue in any event, we do not consider it necessary to reach the "refusal to furnish"
Issue.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On July 14, 1960, Northern Metal Company , herein called Northern or the Com-
pany, filed a charge against Local 1291 , International Longshoremen 's Association,
AFL-CIO , herein called the Respondent or Local 1291 , alleging violations of Section
8(b) (4) (i ) and (ii ) (D) of the National Labor Relations Act. On various dates
in October 1960 , the customary preliminary hearing was held pursuant to Section
10(k) of the Act and , on July 18, 1962, the Board issued its Decision and Determina-
tion of Dispute ,' finding reasonable cause to believe that Respondent committed the
1 137 NLRB 1451.
142 NLRB No. 137.
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 1229
violations alleged. In substance, the Board held that a jurisdictional dispute was
involved within the meaning of Section 10(k); that employees, sometimes called
"yardmen," represented by Local 14, International Union of Marine and Shipbuilding
Workers of America, AFL-CIO, herein called the Intervenor or Local 14, are
entitled to perform the work of moving privately owned vehicles (POV's) for
shipment overseas, under Northern's contract with the U.S. Army, from the parking
area to the place on the dock designated as "under the hook"; and that Respondent
Local 1291 is not and has not been lawfully entitled to force or require Northern
to assign the disputed work to longshoremen represented by Respondent. The
Board accordingly directed Respondent to notify the Regional Director, in writing,
whether or not, in compliance with the Decison and Determination of Dispute, it will
refrain from the proscribed conduct. Thereafter, on August 31, 1962, the General
Counsel issued a complaint asserting that the Respondent failed to submit to the
Regional Director satisfactory evidence of compliance,2 and formally alleging that
Respondent violated Section 8(b) (4) (i) and (ii) (D) of the Act. More specifically,
the complaint states that Respondent, on and since June 19, 1960, has made demands
on Northern, and that it has refused to furnish longshoremen to, and induced and
encouraged its members not to perform services for, Northern, all with an object
of forcing or requiring Northern to assign the disputed work to longshoremen rep-
resented by Respondent rather than to "yardmen" represented by Local 14. Re-
spondent filed an answer denying that it has engaged in unfair labor practices.
On October 29, 1962, a hearing was held before Trial Examiner Benjamin B.
Lipton on the said complaint of the General Counsel. All parties, including Inter-
venor Local 14,3 appeared, were represented by counsel, and were afforded full
opportunity to be heard, to argue orally on the record, and to file briefs. No new
testimony was taken. The parties stipulated that the evidence, testimony, and exhibits
in the record of the Section 10(k) proceeding (137 NLRB 1451) are received in the
present case; that such evidence as was submitted there is submitted here by the
General Counsel to support the allegations in the complaint, and is offered by the
Respondent in support of its position, and that no party will offer other evidence in
these proceedings. Respondent's motion to dismiss the complaint is disposed of in
accordance with the findings below. Briefs received from the Respondent, the Gen-
eral Counsel, and the Intervenor Local 14, have been duly considered.
Upon the entire record in this case, I make the following:
i At the hearing, Respondent amended its answer to this allegation of the complaint to
indicate that Respondent had informed the Regional Director in a telephone discussion
that Respondent considers that it has been, and intends to continue to be, in compliance
with the Board's Decision and Determination of Dispute, namely, that Respondent will not
invade the jurisdiction of Local 14 and will not do anything to compel Northern to assign
jobs from Local 14 to Respondent, but that it does not construe compliance to require that
it reduce the longshore gang size from 22 to 15 men. Respondent offered to the Regional
Director to state this position in a letter, but was informed such a letter would not con-
stitute satisfactory compliance, and therefore, Respondent states, the letter was not sent.
I find that Respondent has not complied with the Board's Decision and Determination of
Dispute
Section 10(k) provides • "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of section 8(b), the Board
is empowered and directed to hear and determine the dispute out of which such unfair
labor practice shall have arisen, unless , within ten days after notice that such charge has
been filed, the parties to such dispute submit to the Board satisfactory evidence that they
have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute.
Upon compliance by the parties to the dispute with the decision of the Board or upon such
voluntary adjustment of the dispute, such charge shall be dismissed " ( Emphasis supplied]
The purpose of the 10(k) proceeding, which the Board conducted on the basis of the
charge herein, was to enable the Board to determine the jurisdictional dispute, if any, and
seek to resolve such dispute in advance of a formal unfair labor practice proceeding under
Section 8(b) (4) (D). Respondent's failure to comply with the Board's 10( k) decision does
not constitute substantive evidence that it has committed the alleged violations of Section
8(b) (4) (D) but, tinder the statute, it was a necessary preliminary nth the present unfair
labor practice proceeding. See Local 991, International Longshoremen's Association. AFL-
CIO (Union Carbide Chemical Company Division of Union Carbide Corporation) 139 NLRB
3152 ; United Association of Journeymen, etc., Local 428 (Frank W. Hake et at., tic Frank
W. Hake), 112 NLRB 1097.
3 Over objection of Respondent , Local 14 was permitted to intervene.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Northern Metal Company is a Pennsylvania corporation engaged in the business of
operating a terminal facility in the port of Philadelphia , Pennsylvania . It furnishes
stevedoring services to the Transportation Corps, U.S. Army, for which it receives
more than $ 100,000 annually. Respondent admits, and I find , that the Company is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Respondent , Local 1291 , International Longshoremen 's Association , AFL-CIO,
and Intervenor , Local 14, International Union of Marine and Shipbuilding Workers
of America , AFL-CIO, are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues before the Trial Examiner
On the same record to which the parties stipulated for the complaint proceeding
herein , the Board earlier found for purposes of Section 10(k) that a jurisdictional
dispute existed between Respondent and Local 14 over the assignment of certain
work and, as it was required to do under the statute ,4 made its "determination" of
the dispute and rendered an award of the disputed work to Local 14 . These findings of
the Board are not subject to review by , and are binding upon , the Trial Examiner in
the Section 8(b) (4) (D ) proceeding, as here.5 The sole issues before me, therefore,
are whether unfair labor practices were committed under Section 8(b) (4) (i) and
( ii) (D),6 as alleged , and if so , what the appropriate remedy should be. It is to be
made clear, however, that the Board 's earlier 10 (k) finding that there was reasonable
cause to believe the alleged violations were committed is in no way binding upon me,
particularly in view of the different standards of proof as between the non-
adversary 10(k) case and the instant formal complaint case, in which the General
Counsel has the burden of proving his allegations by a preponderance of the
testimony.
Respondent 's essential position is that it did nothing to induce or encourage its
members to refuse to work for Northern with an object of forcing assignment of
work to its members rather than those of Local 14, and that its longshoremen refused
to load passenger cars for Northern in 15-man gangs for only one reason-the
PMTA-ILA contract and a grievance award which required Northern to use 22-man
gangs.
There is no contention or evidence in justification of Respondent 's position that
Northern was failing to conform to a Board order or certification determining the
bargaining representative for employees performing the disputed work.
B. Essential facts
All the detailed facts relied upon by the Board in its Section 10(k) determination
of dispute and its issuance of the jurisdictional award, findings which, as already
4 N.L R B. v Radio and Television Broadcast Engineers Union , Local 1212 , etc (Colum-
bia Broadcasting System ), 364 U S . 573; Local 991, International Longshoremen's Associa-
tion , AFL-CIO, et al. ( Union Carbide Chemical Company , a division of Union Carbide
Corporation ), 137 NLRB 750
BE g., Chicago Typographical Union No . 16, AFL-CIO (Central Typesetting and Electro-
typing Co ), 138 NLRB 231; Local 450 International Union of Operating Engineers, AFL-
CIO (Painting and Decorating Contractors of America , Houston Chapter on behalf of its
member Sline Industrial Painters), 123 NLRB 1, 6, enfd 275 F 2d 408 (C.A 5) ; Local 46,
Wood, Wire and Metal Lathers, AFL-CIO (Precrete, Inc ), 140 NLRB 1.
6 Section 8(b) (4) provides, in pertinent part, that it shall be an unfair labor practice
for a labor organization (i) to engage in, or to induce or encourage any individual employed
by any person engaged in commerce to engage in, a strike or a refusal in the course of
his employment to perform any services ; or (ii) to threaten, coerce, or restrain any person
engaged In commerce , where in either case an object thereof is ( D) forcing or requiring
any employer to assign particular work to employees in a particular labor organization
rather than to employees in another labor organization
7 E g, Local 450 Industrial Union of Operating Engineers, AFL-CIO (W J Hedrick, et
al d/b/a Industrial Painters and Sandblasters), 117 NLRB 1307, 1305.
LOCAL 1291, JNT'L LONGSHOREMEN'S ASSOCIATION 1231
shown, are conclusive upon me, need not be repeated herein.8 However, certain of
the same, and additional, facts are set forth as relevant to the issues involving Section
8(b) (4) (i) and (ii ) (D), and as clarifying background.
In 1946, the Board certified Intervenor Local 14 as the bargaining representative
in a production and maintenance unit consisting of all the employees of Northern.
Thereafter, successive collective-bargaining contracts describing the same unit have
been in effect between Local 14 and Northern, with the current agreement running
for 2 years from July 23, 1960. Prior to 1951, the business of Northern at its
Philadelphia terminal principally involved the dismantling and scrapping of vessels,
as well as some stevedoring work. Members of Local 14, then, performed all the
loading and unloading of vessels. In the latter part of 1951, pursuant to contracts
with the U.S. Army, Northern commenced on an extensive scale the loading and dis-
charging of Army vehicles, including trucks, trailers, tanks, jeeps, ambulances and
passenger cars. Shipments of general cargo were also handled, but to a much lesser
extent than the vehicles.
In October 1951, before commencing work on the first Army contract, Northern
called a meeting with various unions in the area concerning possible jurisdictional
problems in carrying out the contract . Representatives of Intervenor Local 14 and
of Respondent Local 1291 were present. The meeting resulted in an oral agreement
or understanding for the division of work between the two unions .9 Local 14 was
to move the vehicles within Northern's terminal to and from the point of the "hook" 10
at shipside.ll From that point, Local 1291 would take over all the work in loading
and unloading the vessel, e.g., the hooking, hoisting, and stowing of the vehicles
aboard ship. Specifically, the longshore function of Local 1291 was to be performed
in gangs of 15 men 12
The agreed allocation of work, with the use of ILA gangs of 15 men, as above
described, was consistently followed and constituted the actual practice in Northern's
operations under a series of Army contracts for a period of about 9 years, until June
1960, when the events occuired giving rise to the instant complaint.
Following its meeting with the unions in October 1951, Northern joined the
Philadelphia Marine Trade Association, herein called the PMTA, which had collec-
tive-bargaining contracts with Respondent Local 1291 and various other ILA Locals.
Northern thereby became subject to a contract in effect between PMTA and Re-
spondent.13 The contract called for a minimum gang size of 22 men in loading and
discharging "general cargo ," but excepted from this requirement , inter alia, the
handling of "heavy lifts." 14 For 9 years until June 1960, Northern consistently
employed only 15-man gangs for longshore work when it loaded or unloaded Army
vehicles exclusively,15 the type of operation which apparently comprised the bulk of
9 See 137 NLRB 1451 Section 102 92 of the Board 's Rules and Regulations , Series 8,
provides that "the record of the proceeding under Section 10(k) and the determination of
the Board thereon shall become part of the record in such unfair labor practice proceeding
and shall be subject to judicial review, insofar as it is in issue, in proceedings to enforce
or review the final order of the Board under Section 10(e) and ( f) of the Act." See also
factual contexts in Bennet P. a'ehauffer, Reg. Dir. v Local 1291 , International Longshore-
men's Assn . ( Northern Metal Co ), 188 F Supp . 203 (D C E Pa .), granting an injunction
against Respondent under Section 10(1) of the Act; 189 F. Supp . 737 (D.C.E.Pa .), adjudg-
ing Respondent in civil contempt for failing to obey injunction ; 292 F. 2d 182 (C.A. 3),
affg. 188 F. Supp . 203 and reversing 189 F. Supp 737.
9 In addition , there was an unsigned agreement , dated October 20, 1951, describing the
division of work, which was prepared by Northern at this meeting . The Board found in
its Section 10(k) decision , supra, that the Respondent was at least aware of the purported
agreement and, over a period of 9 years , never took any steps to disclaim it.
10 Where the vehicle is picked up or deposited by the ship's gear.
11 Apart from the agreement , Local 14 men did other work for Northern , including certain
"processing" of the vehicles in the terminal.
'2 Four men "under the hook," three men on the deck of the ship operating the winches
and directing operations , and eight men in the hold.
13 The relevant terms have been continued in succeeding contracts.
14 More than 80 percent of the vehicles handled by Northern between 1951 and 1960
did not come within the general definition of a "heavy lift," described in the record as
requiring the use of special rigging or weighing more than 4 or 5 tons . In the port area
normally 15-man gangs handle "heavy lifts," as special rigging and equipment , such as
cranes and flatcars, are used requiring fewer men.
16 Clearly evidenced not only in the testimony of Northern 's officials, but admitted by
witnesses for Respondent , e.g., ILA Vice President James T. Moock and Steward Francis
Monahan
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its business. In all other stevedoring operations, as when it handled general cargo
or any mixture of general cargo and vehicles, Northern employed 22-man gangs.
It does not appear that the other employer-members of PMTA subject to the con-
tract with Respondent handled military vehicles as did Northern. There were
instances shown in which certain of these other employers loaded or discharged
passenger cars exclusively and employed in the process 22-man gangs. Part of these
"long" gangs moved the vehicles to and from the "hook," i e , work which Intervenor
Local 14 performed for Northern.is The other PMTA stevedoring companies have
dealt only with various ILA locals; 17 there is no indication as to any of them of a
bargaining history with another union such as Northern has experienced with In-
tervenor Local 14.
The record shows that in the 9 years from 1951 Respondent made numerous efforts,
without success, to have Northern increase the gang size for handling Army vehicles
from 15 to 22 men is Northern's consistent response was that the work of the seven
additional men would have to be taken from Local 14's jurisdiction Upon North-
ern's refusal, Respondent acquiesced and continued to work with the 15-man gang
size.
In May 1960, Northern obtained from the Army a stevedoring contract annually
to handle some 30,000 to 60,000 privately owned vehicles, called POV's, belonging
to members of the Armed Forces. The POV's were similar in size, weight, and
method of handling to a great portion of the vehicles which Northern, under the
previous Army contracts, had loaded and discharged with 15-man gangs.
Between June 2 and 9, 1960, 2 ships were loaded exclusively with POV's, the
first using a gang of 15 men and second, 19 men, as related below.
A week before the first ship arrived for loading POV's, Francis Monahan, steward
of Respondent Local 1291, was advised by Max Rose, Northern's president, that
there would be "a lot of cars" and than 15-man gangs would be used. Monahan
told Rose that the cars were considered general cargo requiring 22-man gangs
Monahan then approached Charles McGinley, stevedoring superintendent and ship
boss for Northern, and told him there was "going to be trouble" because of the 15-
man gangs. Monahan testified the men protested when the first ship started loading
with gangs of 15 men, and he sought out and told McGinley "he was going to have
trouble unless he got twenty-two men gangs." 19 The second ship arrived and
Northern again hired 15-man gangs. Monahan telephoned McGinley arguing for
22 men McGinley said it was going to he 15 men or nothing, upon which Monahan
stated he was going to tell this to the men. Later McGinley called back and offered
19 men. Monahan pressed for 22 but finally accepted 19-man gangs for this ship
In advance of hiring, Northern notifies its longshore superintendent and also calls
the ILA union hall indicating its gang requirements for a specified time. The hiring is
actually done by company foremen, each of whom has a regular gang. Most of the
longshoremen have been working regularly for Northern, some since 1951.
On Saturday, June 18, 1960, Northern hired four gangs to work on two ships
scheduled for loading the next morning. On one ship, 2 gangs of 22 men each were
employed for loading general cargo, and on the other ship 2 gangs of 15 men each
were employed for loading POV's exclusively. The men "shaped" 20 and were
hired at pier 38, located about 12 miles from Northern's terminal Those hired
were to report back to pier 38 on Sunday morning for transportation by company
bus to the terminal or, in the alternative, were expected to drive directly to the
terminal in their private cars.
1s At the other employers, a different ILA local handled the vehicles on the piers and
deposited them at a "final place of rest" where they were picked up by Respondent Local
1291, brought to the "hook," and thence aboard ship.
14 There was a "district council" of all ILA locals in the Philadelphia area
is ILA Vice President Moock testified there were up to 25 disputes concerning the han-
dling of these vehicles , that there was "always friction" between Respondent and Inter-
venor Local 14 as to how far each should go. There were attempts made to set a
"jurisdictional line" a dozen times, with Respondent offering at one point to establish the
dividing line at the "bulkhead," i.e, where the water ends at the ship's berth. Moock
stated that Respondent 's position has been that the longshoremen should bring the vehicles
from the "final point of rest" in the field as was done with the other employers in the port
He admitted that until June 1960, Local 14 had been doing this work, i e, to the point of
the "hook."
10 McGinley did not testify.
10 A procedure commonly used in the certain ports for hiring longshoremen , whereby the
men appear at a designated place and are selected for work when needed for loading or
unloading particular ships
LOCAL 1291) INT'L LONGSHOREMEN'S ASSOCIATION 1233
On Sunday morning, June 19, the men who drove their own cars, about half of
those hired, reported at the company terminal and commenced work. The remain-
der, who were to come by bus, had not arrived at the scheduled time. President
Askew and Business Agents Talmadge and Smith of Respondent Local 1291 showed
up at Pier 38 that morning. About 7.30 a m., the union agents, after talking to
Superintendent McGinley, reached President Rose of Northern on the telephone.
Talmadge told Rose that he was not going to let the men go to work unless 22-
man gangs were hired for the POV's. When one of the union agents remarked that
22 men were used elsewhere in the port, Rose inquired, "What are we to do with the
IUMSWA 21 men that we have. They bring the vehicles to the hook and take it
away from the hook." The agent said, "I am not interested in the IUMSWA men,
we are interested in the ILA, so we will go down there, we will do that." Rose
replied, "No, you can't do that because if you do that we are in trouble with
IUMSWA." Askew suggested to Rose that they put on 22-man gangs and file a
grievance with the PMTA. Rose's initial decision, as he advised Askew, was to
let the men go home if they did not want to work in 15-man gangs. A half-hour
later, Rose summoned Askew back to the telephone and told him he had reconsid-
ered and would be willing to hire seven additional men for each of the two gangs
on the POV's in order to expedite sailing on time but that he would submit a griev-
ance to PMTA immediately. The seven extra men for each of the two POV
gangs were then hired and the work thereafter proceeded.
On June 20, 1960, Northern filed a grievance under the PMTA-ILA contract.
On June 21, a grievance hearing was held with a panel of two members from
PMTA and two members, Askew and Smith, from Respondent Local 1291, ILA.
Also appearing for Respondent were two international vice presidents of ILA and
three business agents of Local 1291. Intervenor Local 14 was not a participant,
and was not present nor represented. Northern appeared and argued to maintain
its hiring of 15-man gangs, while Respondent prosecuted its position for 22 men.
By letter dated June 22, 1960, the PMTA grievance committee advised Northern
of its official findings, in effect that it was the practice elsewhere in the port to use
22-man gangs in handling automobiles, but that it recognized there were jurisdic-
tional problems between ILA and another union which the PMTA was not em-
powered to resolve .22 The Board in the Section 10 (k) decision 23 held that the
grievance committee finding was not dispositive of the jurisdictional dispute,24 nor
was the PMTA-ILA contract because, among other things, it was not clear and un-
ambiguous as it was required to be to stand as a defense in a Section 10(k)
proceeding.
Rose testified that, thereafter, on every ship handling POV's, Northern's foremen
were instructed to shape 15-man gangs, and if unsuccessful, to take 22 men. Rose
stated that the seven additional men in these gangs have been doing nothing, and
if put to work, they would be assigned functions being performed by Local 14
men.25 Since June 19, 1960, the gang size for POV's has been 22 men.
21 International Union of Marine and Shipbuilding Workers of America, the parent of
Intervenor Local 14.
22 Specifically the letter stated, "P .M T.A. recognizes that there is a problem peculiar to
Northern Metal Company as opposed to any other place in the Port of Philadelphia area
because the jurisdiction of two different unions are ( sic) involved However, P M T.A
representatives agree with union representatives on the Grievance Committee that the
practice in the port in the handling of automobiles is that a gang of twenty-two men and
a forman are to be employed . If this decision results in jurisdictional problems between
ILA and the men from the other union who had jurisdiction over a certain portion of the
work, P M.T.A . Is not empowered to resolve any such jurisdictional dispute and the dispute
will have to be handled by the employer's attorney in the same manner as any other juris-
dictional problems would be handled ." On June 23 , 1960, the decision in identical language
was related in a circular to all PMTA members.
= 137 NLRB 1451.
24 The grievance committee could not , and did not attempt to, resolve the jurisdictional
dispute Moreover , Local 14, with its own contracts and a Board certification , was not a
party to, or in any way bound by, the PMTA grievance proceeding. See, e g, Local Union
825, International Union of Operating Engineers (Nichols Electric Company ), 137 NLRB
1425
25 After June 19, 1960, the distribution of the 22-man gangs for the POV's consisted of
13 men in the hold, 3 men on deck, and 6 men on the pier , as compared with the 15-man
gangs having 8 men in the hold , 3 men on deck, and 4 men on the pier. However , Northern,
as its witnesses testified , was avoiding a displacement of Local 14 men operating to and
from the "hook ." The two additional men on the pier were used to range out on and
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Concluding findings
Respondent contends that "there is no evidence whatsoever" to support any of
the elements necessary for the alleged violation of Section 8(b)(4)(1) and (ii) (D),
namely, Respondent's inducement for encouragement of employees to cease work,
coercion against Northern, and object of compelling Northern to assign the dis-
puted work to the longshoremen. It specifically takes the position that it is not
responsible for the conduct of the longshoremen on June 19, 1960, in refusing
to work with 15-man gangs and that Respondent's agents had exerted no coercion
upon Northern in merely advising it of the action of the longshoremen on that date.
I do not find that the action of longshoremen on June 19 in refusing to work with
15-man gangs was their independent decision wholly apart from instigation or
responsibility of Respondent. The preceding history of the many attempts of
Respondent to have the gang size increased from 15 to 22 men, and its continuing
jurisdictional controversy with Local 14 over the disputed work, undoubtedly was
in the knowledge of these longshoremen. On Saturday, June 18, the men "shaped"
and were hired, without any protest, into 15-man gangs for the POV's and into
22-man gangs for handling general cargo. Half the men hired had gone on to
Northern's terminal in their own private cars Sunday morning, June 19, with no
intention to cease work, and they did in fact begin work. Early that Sunday morn-
ing, Respondent's officials were present at pier 38 where the remainder of the long-
shoremen were to appear for company bus transportation to the terminal. The
men at pier 38 who were hired in 22-man gangs to handle general cargo had also
ceased work. It is difficult to conclude that these latter longshoremen, who had
no grievance as to their gang size, refused to work without having been so directed
by Respondent 26 It is significant that the longshoremen who refused to work
were those at pier 38 in the presence of Respondent's officials. Earlier that month,
in regard to the loading of the first two ships with POV's, Steward Monahan had
threatened Northern with "trouble" on account of the 15-man gangs. That it was
the official position and intention of Respondent to press for 22-man gangs was
confirmed by its strong representation and activity at the PMTA grievance com-
mittee hearing on June 21, after Northern on June 19 had capitulated, as a result
of the work stoppage, in hiring the additional 7 men. Respondent had suggested to
Northern, under pressure to meet sailing time schedules, that it give in and file a
grievance. Askew testified that if Northern had "stood pat" on 15 men after the
work stoppage on June 19, "that would have compelled us to file the grievance."
And of particular import is the undisputed testimony that Respondent's business
agent, Talmadge, told President Rose of Northern in the morning of June 19 "that
he wasn't going to let the men come up to go to work, not unless [Northern] shaped
22 men for the POV's.27 On these facts alone, it is highly implausible that the
decision to stop work emanated from the men themselves, without Respond-
ent's sponsorship and inducement.
There is a more decisive approach to the question. The longshoremen for four
gangs were actually hired by Northern on Saturday, June 18, and were therefore
its employees. Indeed, most of them were already regular employees of North-
ern-the basis of Respondent's representation and recognition by Northern. Even
assuming, for argument's sake, that the men ceased work on June 19 without any
inducement from Respondent, the situation clearly involved a strike. The Re-
spondent did not and does not repudiate the strike or contend that it was unau-
thorized. It made no effort to halt the strike. Quite the contrary. It immediately
called Northern and applied the pressure of the strike to obtain its objective of 22-
man gangs. These actions of Respondent can scarcely be found as limited to
the making of a mere demand, under its interpretation of the PMTA contract, for
from the pier to select particular- sized cars for stowage, at the instruction of Northern's
hatch foremen An incident occurred on August 23, 1960, involving a jurisdictional con-
flict between Local 14 and Respondent concerning the movement of these two additional
longshoremen beyond the point of the "hook," but the controversy was apparently resolved
by the Company. As Local 1291 Steward Monahan testified, the work of these two long-
shoremen was not done by Respondent prior to June 19, 1960
ss I cannot accept the explanation of Askew, Respondent's president, that it was the prac-
tice of longshoremen in the port "that if any part of a group that works for a particular
company quits work, the whole company will knock off . . . . Then the next thing that
happens would be the whole port would knock off."
n Respondent's President Askew stated that ILA officials will take action when they
see a violation of the contract , irrespective of whether an individual member files a
complaint.
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 1235
gangs of 22-men. Whether or not it had directly ordered the strike that morning,
it is plain in any case that Respondent had promptly adopted and sanctioned the
strike. As statutory bargaining representative of the longshoremen recognized by
Northern under contract, Respondent in these circumstances must be held fully
accountable for the strike action at pier 38 on June 19, 1960.
Accordingly, I find that Respondent engaged in a strike, and induced and en-
couraged individuals to refuse to perform services for Northern, in violation of Sec-
tion 8(b) (4) (i),28 and by the same conduct, as well as by Business Agent Talmadge's
direct statement to President Rose that he was not going to let the men go to work,
Respondent also violated Section 8(b) (4) (ii) of the Act.
As to the evidence concerning Respondent's object in the above-described conduct,
the Board found, in the Section 10(a) decision, that a jurisdictional dispute existed
between Respondent Local 1291 and Intervenor Local 14 over the handling of
vehicles to and from the "hook," and determined that the disputed work was prop-
erly within Local 14's jurisdiction. Evidence preponderantly shows such dispute has
been actively recurring between the two unions since about 1952, beginning some-
time after the division of work agreement in October 1951. The essence of the
dispute was that Local 14, first on the scene with a Board certification and contracts
with Northern, was performing work of bringing military vehicles to shipside, which
type of work Respondent Local 1291 was doing for all other PMTA employers who
were dealing with Respondent in conjunction with other ILA locals. It is sufficiently
demonstrated that the 15-man gangs used by Northern over the years were adequate
for the job and that the 7 additional men, which Respondent demanded and were
used by the other employers in the port area, reflected the approximate complement
performing the disputed work. It is no defense that, with certain limitations not
pertinent herein, the assignment and distribution of the longshore gangs was entirely
in the discretion of Northern. Nor do I find merit in the contention that Respond-
ent's demands for the seven extra men in a gang had nothing to do with Local 14's
jurisdiction but that it was at best (or worst) an attempt to obtain "featherbedding"
employment for the seven men which, even if true, would not constitute the viola-
tion alleged 29 On the specific evidence herein, it is reasonably inferable that the
necessary effect of Respondent's demands on Northern, fully known to Respondent,
was to encroach upon the work being done by Local 14 men.
For 9 years, Northern had operated under the 15-man gang arrangement and
division of work between Respondent and Local 14 in carrying out a succession of
Army contracts for handling military vehicles. When Northern obtained an Army
contract for handling POV's, and after loading the first ship with a 15-man gang
and the second, under pressure from Respondent, with a 19-man gang, Respondent
determined to take a stand 30 in forcing Northern to accede to the employment of
22-man gangs. The stand was not taken because the POV's were privately owned
by members of the Armed Forces nor because they were materially different from
the vehicles theretofore handled by Northern.31
The evidence is quite clear that since about 1952 there has been a continuing jur-
isdictional conflict between Respondent Local 1291 and Intervenor Local 14 over
the disputed work represented by the difference of seven men in the size of the long-
shore gangs, and indeed, that Local 1291 has sought during this time to obtain Local
14's agreement to a "jurisdictional line" different from that which has been in effect
since October 1951. ILA International Vice President Moock stated flatly that it
28 The complaint also alleges that Respondent "refused to furnish" longshoremen to
Northern. The PMTA-ILA contract did not provide for an exclusive referral system or
hiring hall to be operated by Respondent ; nor is there otherwise evidence that in practice
such a referral system was used rather than a "shaping" procedure for hiring longshore-
men. As it is not shown that Respondent was under an obligation to "furnish" longshore-
men, there is no basis for a finding of "refusal to furnish" longshoremen on such a theory
Cf. Local No 636 of the United Association of Journeymen, etc. (The Detroit Edison
Company, et al.), 123 NLRB 225. It is noted, however, that from the context in which
the General Counsel, in his brief, uses the phrase "refusal to furnish," he appears to be
arguing that Respondent, at pier 38 on June 19, 1960, refused to permit the longshoremen
to work, or, in effect, caused them to strike.
20 See Local 450, Internatwnal Union of Operating Engineers , AFL-CIO (W. J. Hedrick,
et al., d/ b/a Industrial Painters and Sandblasters ), 115 NLRB 964, 117 NLRB 1301, enfd.
256 F. 2d 630 (C A. 5).
so See testimony of Respondent's agents, Askew and Monahan
31 Respondent's President Askew admitted in his testimony that the work in handling
the POV's was "the same" as that done under Northern's prior Army contracts
712-548-64-vol. 142-79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is "ILA work that IUMSWA is doing." This witness maintained that the ILA men
should bring the vehicles from the "final point of rest" in the field to the "hook" at
shipside, i.e., the disputed work which had been done by Local 14 from October 19,
1951, until June 19, 1960. After Northern succumbed to Respondent's demands
as a result of the work stoppage on June 19, 1960, the seven extra men per gang
which Northern was compelled to hire in handling POV's were surplusage to avoid
conflict with the work of Local 14's men . From the experience of the 22-man gangs
used by other PMTA employers in handling vehicles exclusively, it is clear that the
7 men added to Northern's gangs reflected the complement needed for the disputed
work, which has been described. And added to these considerations is the statement
of Respondent's business agent to Northern's president at the time of the work stop-
page that he was not interested in the Local 14 men, but in the ILA-"so we will
go down there, we will do that." 32
In all the circumstances, it is reasonably and sufficiently evident that an object of
Respondent's conduct, as found above, falling within the proscriptions of Section
8(b) (4) (i) and (ii), was to force or require Northern to assign the disputed work
to longshoremen represented by Respondent rather than to employees (yardmen)
represented by Local 14. Respondent thereby violated Section 8(b) (4) (D) of the
Act, as alleged.
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 operation of the Company 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
Respondent insists that its conduct in pursuance of 22-man gangs for exclusive
handling of POV's has had no object of forcing or requiring Northern to assign to
its members any work done by Local 14 members, or to invade Local 14's jurisdic-
tion. This argument of Respondent has been overruled by the Board and in my find-
ings above. The recommended order is intended to restrain Respondent from con-
tinuing or renewing conduct and insistence on 22-man gange in circumstances simi-
lar or related to those described in this report, upon which the violations are based.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Local 1291, International Longshoremen's Association, AFL-
CIO, and the Intervenor, Local 14, Industrial Union of Marine and Shipbuilding
Workers of America, AFL-CIO, are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
2. By engaging in, and inducing and encouraging individuals employed by Northern
to engage in, a strike and refusal in the course of their employment to perform services,
and by threatening, coercing, and restraining Northern, with an object of forcing
or requiring Northern to assign to longshoremen represented by the Respondent Local
1291, rather than to employees (yardmen) represented by Intervenor Local 14, the
function of moving privately owned vehicles (POV's) for exclusive loading or unload-
ing under Northern's stevedoring contract with the U.S. Army, from their parking
areas to the place on the dock designated as "under the hook," or from the latter place
to the former places within Northern's terminal, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) and
(ii) (D) of the Act.
82 Note also the fact finding in the Third Circuit's opinion, Bennet F Schaafer, Beg. Dir.
v. Local 2191 , international Longshoremen's Assn . ( Northern Metal Co. ), 292 F. 2d 182,
at 184, that after Northern had obtained the POV contract-"on June 12, 1960, representa-
tives of Local 1291 and of a 'checkers' Local of the ILA visited Northern's president, and
told him '. . . If you let us do all the work In here we are going to have all that work
and you will be making money' "-apparently an overture, which was rejected, that North-
ern would be "making money" if It assigned Local 14's work to Local 1291.
LOCAL 12 9 1 , INT' L LONGSHOREMEN 'S ASSOCIATION 1237
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that Respondent, Local 1291,
International Longshoremen's Association, AFL-CIO, and its officers, representatives,
agent, successors, and assigns, shall:
1. Cease and desist from engaging in, or inducing or encouraging any individual
employed by the Company, or by 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 threat-
ening, coercing, or restraining the Company, or any other person engaged in com-
merce or in an industry affecting commerce, where in either case an object thereof
is to force or require the Company to assign to longshoremen represented by Re-
spondent, rather than to employees (yardmen) represented by Local 14, Inter-
national Union of Marine and Shipbuilding Workers of America, AFL-CIO, the
work of moving privately owned vehicles (POV's) for exclusive loading or unloading
under the Company's stevedoring contract with the U.S. Army, from the parking
areas to the place on the dock designated as "under the hook," or from the latter
place to the former places within the Company's terminal, except insofar as any
such action is permitted under Section 8(b) (4) (D) of the Act.
2. Take the following affirmative action which is designed to effectuate the policies
of the Act:
(a) Post at its offices, meeting halls, and at all places where Respondent normally
posts notices for members, copies of the attached notice marked "Appendix A." 33
Copies of said notice, to be furnished by the Regional Director for the Fourth Region,
shall, after being duly signed by the Respondent, be posted by it immediately upon
receipt thereof, and maintained for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for the Fourth Region signed copies of said
notice for posting by the Northern Metal Company, if willing, in places where notices
to employees are customarily posted. Copies of said notice, to be furnished by the
Regional Director, shall, after being signed by the Respondent, as indicated, be
forthwith returned to the Regional Director for disposition by him.
(c) Notify the said Regional Director, in writing, within 20 days from the date of
receipt of this Intermediate Report and Recommended Order, what steps the Respond-
ent has taken to comply herewith 34
"In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United State 'Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
34 In the event this Recommended Order be adopted by the Board, this provision ehall be
modified to read : "Notify said Regional Director, in writing, within 10 days from the date
of this Order, what steps the Respondent has taken to comply therewith."
APPENDIX A
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF NORTHERN METAL
COMPANY
Pursuant to The Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage any individual employed by
Northern Metal Company, or by 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 threaten, coerce, or restrain the Company, or any other person engaged in
commerce or in an industry affecting commerce, where in either case an object
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof is to force or require the Company to assign to longshoremen represented
by Local 1291, International Longshoremen 's Association , AFL-CIO, rather than
to employees (yardmen ) represented by Local 14, International Union of Marine
and Shipbuilding Workers of America, AFL-CIO, the work of moving privately
owned vehicles (POV's) for exclusive loading or unloading under the Company's
stevedoring contract with the U.S. Army, from the parking areas to the place on
the dock designated as "under the hook," or from the latter place to the former
places within the Company's terminal , except insofar as any such action is
permitted under Section 8(b) (4) (D) of the Act.
LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
Employees may communicate directly with the Board 's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets , Philadelphia, Pennsylvania,
19107, Telephone No. Pennypacker 5-2612, if they have any question concerning
this notice or compliance with its provisions.
Local 626, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Paul K. Shotzberger, Jr. and Food
Fair Stores, Inc. Case No. 4-CB-802. June 18, 19(3
DECISION AND ORDER
On October 10, 1962, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief. The Respondent filed a memorandum in sup-
port of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report and the entire record
in this case, including the exceptions, the brief, and the memorandum,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions :
We agree with the Trial Examiner that the evidence in this case is
insufficient to support the allegation of the complaint that Respondent
Local 626 caused the Employer to refuse employment to employees
Shotzberger and Faul, in violation of Section 8(b) (2) of the Act.
142 NLRB No. 125.