Local 1291, Int'l Longshoremen's Association

National Labor Relations Board - Board Decisions

Feb 15, 1965

151 N.L.R.B. 1 (N.L.R.B. 1965)

Local 1291 , International Longshoremen 's Association, AFL-
CIO and United States Steel Corporation . Case No. 4-CD-
106-2. February 15, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the Act, follow-
ing charges filed by United States Steel Corporation, herein called
the Employer, alleging that Local 1291, International Longshoremen's
Association, AFL-CIO, herein called the Respondent, had threatened,
coerced, and restrained the Employer and its employees with the ob-
ject of forcing or requiring the Employer to assign particular work to
employees represented by the Respondent rather than to employees
represented by Local 4889, United Steelworkers of America, AFL-
CIO, herein called the Steelworkers. A hearing was held before
Hearing Officer David S. Reisman on various dates between July 2
and September 2, 1964. All parties were represented at the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing upon the issues.
The rulings of the Hearing Officer made at the hearing are free from
prejudicial error and are hereby affirmed. The Employer, the Re-
spondent, and the Steelworkers filed briefs which have been duly
considered.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Members
Fanning, Brown, and Jenkins].
Upon the entire record in this case, the Board makes the following
findings :
1. The business of the Employer
The Employer is engaged in the manufacture of steel products in
Pennsylvania and other States. It annually ships goods valued in
excess of $50,000 from its Pennsylvania plant to points outside of the
State of Pennsylvania. The parties stipulated, and we find, that the
Employer is engaged in commerce within the meaning of the Act.
1 Since we find that the record and briefs adequately present the issues and the positions
of the parties , the requests of the Employer and the Steelworkers for oral argument are
hereby denied.
151 NLRB No. 1. 1
783-133-66-vol 151-2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organizations involved
The parties stipulated, and we find, that the Respondent and the
Steelworkers are labor organizations within the meaning of Section
2(5) of the Act.
3. The dispute
A. The disputed work
The work in issue is the loading of semifinished steel products onto
the Employer's ship, the SS Columbia, at the Employer's Fairless
Works dock.
B. The basic facts
The Fairless Works, located at Morrisville, Pennsylvania, manu-
factures both finished and semifinished steel products. For more
than 10 years, the Employer has operated a dock slip area at the
Fairless Works facility, which has been used primarily to receive
chartered ships bringing ore to the plant. The discharge of ore from
these ships has always been performed by production and maintenance
employees of the Employer, all of whom are represented, in accord-
ance with a Board certification and a collective-bargaining contract,
by the Steelworkers. The work of unloading ore requires a crane
operator, who buckets the ore from ship to dock, and one or more
bulldozer operators, who work in the hold, pushing the ore toward
the center so that the crane operator has access to it.
In January 1964, having purchased a converted tanker, the SS
Columbia, the Employer began to ship semifinished steel products,
or "billets," directly from its Fairless slip to its plant at Pittsburg,
California. It is clear that the shipment of billets from the Fairless
slip was an innovation. The record does not satisfactorily establish,
however, whether or to what extent the new method of shipment may
be considered to be a substitute for another method. The related
case of ILW U; and Locals 6, 10, 34, 54, and 91, etc. (United States
Steel Corporation) ,2 discloses that the Pittsburg, California, facility
had never received billets from Fairless or any other outside source
prior to the inception of this operation. Whether the quantities of
billets now being conveyed to Pittsburg were formerly sent by Fair-
less to some other destination is not disclosed by the record. Neither
does the record reveal to what extent Fairless may have shipped out
such quantities to other places, either by ship from Philadelphia or
some other point. There is evidence that some of the billets produced
at Fairless are sent to other plants of the Employer by rail.
The loading of the Columbia at the Fairless slip is accomplished by
three gangs, each working on one of the three hatches. Testimony by
3150 NLRB 88.
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 3
representatives of the Employer as to the exact number of employees
involved is not entirely clear, but it is established that a gang contains
between 8 and 12 rank-and-file employees.
Two whiny cranes, apparently newly purchased for the loading
operation, are located on the dock, and a third whiny crane is part of
the ship's equipment. Each crane services one hatch during the load-
ing. The cranes are operated by plant employees who, when not load-
ing the Columbia, are primarily engaged in unloading ore ships.
The other members of the gang are one or two signalmen, who
guide the craneinan, and several hookers, who either hook chain slings
onto the billets for lifting into the hold or unhook the slings in the
hold. These employees are also customarily members of the regular
dock complement. The evidence establishes that work substantially
identical to the loading of the Columbia is done throughout the plant,
with production employees, classified as cranemen and hookers, mov-
ing and loading steel billets by operating cranes, signaling, and
hooking.
The Columbia will make about 10 round trips per year between
Fairless and Pittsburg. By June 1964, the loading time at Fairless
had decreased to 47 hours of continuous loading, performed by em-
ployees working on each of the three shifts on which the plant
operates.
U.S. Steel employees loaded the Columbia without incident in Janu-
ary and March 1964. During the April and June loadings, however,
the Respondent engaged in,niassed picketing at the employee entrances
of the plant, obstructing tra`ff'ic and preventing employees from enter-
ing the plant. Leaflets distributed by Respondent during the picket-
ing make it clear that Respondent was seeking to obtain for its mem-
bers the work of loading the SS Columbia. On June 18, 1964, in
Civil Action No. 35924, the United States District Court for the
Eastern District of Pennsylvania issued a temporary injunction
against further picketing and like activity by Respondent, pursuant
to Section 10(1) of the Act, pending final disposition of the matter by
the Board.
C. Applicability of the statute
The foregoing uncontested facts afford reasonable cause to believe
that a violation of Section 8(b) (4) (D) has occurred. Accordingly,
we find that the dispute is properly before the Board for determina-
tion under Section 10 (k) of the Act.
D. Contentions of the parties
The Employer and the Steelworkers take like positions on the dis-
pute. They contend that the work of loading billets for shipment to
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the California plant for further processing is an integral part of the
production process, and is therefore covered by the Board's certifica-
tion of the Steelworkers as representative of the production and main-
tenance employees; and that all of the factors usually considered to
be significant in jurisdictional dispute cases favor an assignment of
the work to the Steelworkers.
The Respondent urges that its claim to the work is supported by
an informal agreement entered into by the contending unions in
1952; by husbanding contracts between the Employer and Norton,
Lilly and Company, a ship's agent, which is a party to a collective-
bargaining agreement with the Respondent; by the fact that loading
ships is historically longshoremen's work and within their special
competence; and by the Employer's asserted past practice of having
billets loaded at Philadelphia piers by Respondent's members.
E. Merits of the dispute
Section 10 (k) of the Act requires the Board to make an affirmative
award of the disputed work. We have held that these determinations
are acts of judgment, based upon commonsense , experience , and a bal-
ancing of relevant factors.'
With this general principle in mind, and after due consideration of
the record and the briefs in this case, we are persuaded that the claim
of the Steelworkers is the more meritorious one, and that the work
should be assigned to the Fairless plant employees employed by U.S.
Steel and represented by the Steelworkers.
Since 1953 , the Steelworkers has been certified as the bargaining
representative of all 4,500 production and maintenance employees at
the Fairless Works. Neither Respondent nor any of its sister locals
has represented , or sought certification as, representative of, any of the
employees at the plant, despite the fact that a number of these em-
ployees have been consistently employed at the Employer 's dock on
the work of unloading ore ships at the Fairless Works. Respondent
contends that it relinquished its claim to the ore unloading work in
1952, in exchange for an informal agreement by some representatives
of the Steelworkers that future loading of billets, if any, onto ships
at the plant would be performed by Respondent's members. The
Steelworkers have not expressly denied that such an accord was
reached. It is worthy of note, however , that Respondent 's witness
conceded that no representative of the Employer was present when
the alleged agreement between the two unions was made. Assuming
'International Association of Machinists, Lodge No. 1743, AFL-CIO ( J. A. Jones Con-
struction Company ), 135 NLRB 1402.
LOCAL 1291 , INT'L LONGSHOREMEN'S ASSOCIATION 5
that such an agreement was made, we do not believe that it is entitled
to controlling effect in this case, in view of the other factors which
preponderate in favor of the Steelworkers' claini.4
The work in issue is intermittent and routine. It is not performed
at a commercial general cargo dock normally serviced by longshore-
men, but at a private facility adjacent to, and integrated with, the
Employer's production area. The majority of the employees involved
in the work-the hookers-perform the simple function of hooking
and unhooking the slings that carry the billets. It is obvious that
hooking slings and operating cranes are commonplace in the Fairless
plant, and the job descriptions for these functions both in the plant
and on the dock bear a close similarity. Although an ILA representa-
tive testified to the recognized dangers inherent in longshore work, we
note that, at the time of the hearing, four apparently uneventful
loadings had taken place.
Being part of the regular work force, those employees who load the
Columbia, and the foremen who supervise the operation, take up this
duty when the ship touches port, and immediately return to their usual
jobs when the loading is finished. Respondent's members, on the
other hand, could only be secured, on each occasion when the loading
operation is to be performed, through hiring by a stevedoring firm
at shapeup points in the city of Philadelphia, over 30 miles away.
They would have to be conveyed each time to Fairless by bus, together
with their own foremen. Under the current agreement between the
ILA and the Philadelphia employers' association, if the Columbia
should be delayed for more than 4 hours, the longshoremen would
have to be paid for that amount of time, and then be released from
standing by. This agreement also provides that longshoremen be-
ginning work after 5 p.m. receive time-and-a-half premium pay,
whereas the Steelworkers on the evening shifts are paid a smaller
premium. An ILA official testified that the Union's current practice
in Philadelphia requires a minimum of 15 men per gang. As noted
above, 8 to 12 plant employees per gang are now used by the Company.
In our opinion, these considerations of economy and efficiency, to-
gether with the factors earlier discussed, go far to dissipate the force
of Respondent's argument that loading ships is longshoremen's work,
at any place and in all circumstances. We believe, rather, that the
special facts obtaining in this case more than counterbalance the
appeal of a claim based on traditional jurisdiction.'
4Carpenters District Council of Denver d Vicinity, AFL-CIO (J. O. Veteto and Son),
146 NLRB 1242.
sLocal 991 , International Longshoremen's Association, AFL-CIO; et al. (Union Carbide
Chemical Company, division of Union Carbide Corporation ), 137 NLRB 750 ( Member
Brown dissenting ), enfd. 332 F. 2d 66 (C.A. 5) ; ILTVU; and Locals 6, 10, 34 , 54, and 91,
etc. (United States Steel Corporation ), supra.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other contentions relating to contractual arrangements are con-
sidered below. In 1960, the Employer entered into a contract with
Norton, Lilly and Company, a ship's agent, for general husbanding
services. "Husbanding" is a trade term of flexible content, referring
to a miscellany of housekeeping services performed by a ship's agent
for a shipowner or charterer. These services could, but need not, in-
clude the loading of the ship. Norton, Lilly is a member of an em-
ployers' association in the Philadelphia area which recognizes and has
a collective-bargaining contract with the Respondent and other ILA
locals. Respondent contends that this latter contract requires Norton,
Lilly to use only employees covered by ILA agreements for the instant
work, and that the Employer is thereby effectively bound, because of
its principal-agent relationship with Norton, Lilly, to utilize only such
employees for the work.
The argument cannot prevail, however, because the basic facts do
not support it. An examination of the 1960 agreement discloses that
it related solely to services which Norton, Lilly would furnish the
Employer in regard to the discharging of ore vessels. Furthermore,
it provided that Norton, Lilly would perform only such functions
as ". . . are designated by Owner and as requested by Owner." When
this agreement was terminated in 1961, the successor "Standing
Orders" issued by the Employer to Norton, Lilly clearly were de-
signed to incorporate these same terms into the later agreements.
This series of arrangements does not constitute an unqualified authori-
zation to Norton, Lilly to perform loading of billets at the Employer's
dock if, and at such times as, the Employer should undertake such an
operation.
Similarly, the Respondent argues that the dealings between the
Employer and Norton, Lilly which specifically concerned the SS
Columbia, bind the Employer to use Norton, Lilly as its agent in load-
ing the vessel. In January 1964, the Employer appointed Norton,
Lilly as agent for "general husbanding services" for the Columbia,
to provide services ". . . in accordance with the directions, orders,
and regulations which we may from time to time prescribe." This
appointment was canceled in March 1964, and, according to a Norton,
Lilly official, an oral agreement, ". . . confined to the work which they
asked us to do ..." was made. The January contract did not vest
Norton, Lilly with an unrestricted right to handle the loading of the
Columbia, and in any event, its March termination renders that agree-
ment at present irrelevant. The succeeding oral agreement also has
reserved discretion in the Employer as to the services Norton, Lilly
is to perform for the Columbia. And, since the Employer, beginning
in January, has unequivocally maintained that its own employees are
to load the Columbia, it is impossible to draw the inference that it
ever intended to assign this work to Norton, Lilly.
GARY AIRCRAFT CORPORATION 7
For the reasons discussed above, we determine that the dispute
should be settled in favor of the plant employees represented by the
Steelworkers. In making this determination we are assigning the
controverted work to employees represented by the Steelworkers and
not to that union or its members. Furthermore, our determination is
limited to the particular controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10 (k) of the Act, and upon the basis of the
foregoing, the Board makes the following determination of the
dispute.
1. Employees of United States Steel Corporation's Fairless Works,
in the production and maintenance unit currently represented by
Local 4889, United Steelworkers of America, AFL-CIO, are entitled
to perform the work of loading the Employer's cargo of semifinished
steel products into the Employer's ships at the Employer's Fairless
Works dock at Fairless Hills, Pennsylvania.
2. Accordingly, Local 1291, International Longshoremen's Associa-
tion, AFL-CIO, is not and has not been lawfully entitled to force or
require the United States Steel Corporation to assign the loading of
the Employer's cargo into the Employer's SS Columbia at the Em-
ployer's dock to members of said organization.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 1291, International Longshoremen's Associa-
tion, AFL-CIO, shall notify the Regional Director for Region 4, in
writing, whether or not it will refrain from forcing or requiring the
Employer, by means proscribed by Section 8(b) (4) (D) of the Act,
to assign the work in dispute to its members rather than to em-
ployees represented by Local 4889, United Steelworkers of America,
AFL-CIO.
Gary Aircraft Corporation and International Association of
Machinists, AFL-CIO. Case No. 23-CA-1772. February 15,
1965
DECISION AND ORDER
On December 11, 1964, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support thereof.
151 NLRB No. 3.