Local 1332, Int'l Longshoremen's Assn. AFL-CIO

National Labor Relations Board - Board Decisions

Apr 6, 1965

151 N.L.R.B. 1447 (N.L.R.B. 1965)

LOCAL 1332, INT'L LONGSHOREMEN'S ASSN. AFL-CIO 1447
tions or demands of the other. In the total aspects of this case it appears clear to me
that the Respondent amply demonstrated all of the essential elements in establishing
its good faith, and I do not find that the company procedure and behavior, when
reviewed in the light of the entire record, is sufficient to establish that the Respondent
refused to bargain, and accordingly did not violate Section 8(a)(5) and (1) of
the Act.
As detailed earlier herein several witnesses testified for the General Counsel in
respect to conversations with company supervisors after the beginning of the strike.
The General Counsel contends that statements during these conversations are Section
8(a)(1) violations, and that they also "shed light" with respect to the negotiations.
The statements attributed to Vice President Everist, Senior, were to the effect that he
was against the Company being organized and the union-shop provision because he felt
the Union would then run the plant. It appears to me that Everist was merely
restating the Respondent's opposition to the union-shop demand made by the Union,
and merely voicing his objections to encroachments on the Respondent's right to
manage its own business. Furthermore, Everist, Senior, had no connections what-
soever with the official negotiations.
Everist, Senior's, statement to Simmons and Van Dyke that he did not want some
of the strikers back was denied by Supervisor Graves, who was with Everest at the
time of his alleged conversation. It is further noted that even if this remark was made
it was not directed to Simmons and Van Dyke as admittedly Everest told them in the
same conversation that they were good workers and he would like to have them back.
Certainly with such an assurance these remarks cannot be deemed violative.
The conversation between Graves and Van Dyke in February 1964, according to
Van Dyke's own testimony, involved the discussion of union shop and replacements.
At most, Graves' statement was an expression of his opinion that the Company would
not agree to settlement on those terms. Employee Hoover claimed that Graves made
statements that the Company would not sign a contract, and like remarks attributed to
Supervisors McLaughlin and Taylor. However, throughout all these conversations it
is apparent that the supervisors involved are objecting to the admitted company
policy of opposing a strong union-shop clause. The Respondent, in fact, made no
bones about this position , and under the controlling circumstances present here it
had a lawful right in so stating this viewpoint. Moreover, even assuming here that
the statement in these conversations were made and that they contained threats or
other reprisals, such conduct on the part of the supervisors was disconnected and
isolated. It is also noted that the alleged Section 8(a)(1) conduct occurred after
the parties reached an impasse, and there is also no evidence that it had any effect
upon the course of negotiations.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, it is recommended that the complaint herein be
dismissed in its entirety.
Local 1332 , International Longshoremen 's Association , AFL-CIO
and John C. Peet, Jr. and Philadelphia Marine Trade Asso-
ciation , Party to the Contract . Case No. 4-CE-13. April 6,
1965
DECISION AND ORDER
On June 19, 1964, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
151 NLRB No. 142.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
The General Counsel and the Charging Party thereupon each filed
exceptions to the Trial Examiner's Decision and a supporting brief.
The Respondent filed a brief in support of 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 this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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, the briefs, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations with the following additions and
modifications.
The issue here presented is whether certain clauses contained in the
collective-bargaining agreement between the Respondent and Phila-
delphia Marine Trade Association, hereinafter referred to as PMTA,
are violative of Section 8 (e) of the Act.
FACTS
A dispute has existed for many years involving the loading and
unloading of truck cargo at the Philadelphia harbor piers. The
present case arises out of efforts to obtain this work by employees
of the pier operators, who are members of the Respondent Union,
and by employees of the Pennsylvania Motor Truck Association,
hereinafter referred to as Truckers, who are generally members of
the Teamsters Union.
Prior to 1960 there existed a system of "trucker's choice," under
which truckers could choose to utilize their own employees or those
of the pier operators to perform the disputed work. Respondent
was apparently displeased with this situation because numerous
truckers gave some or all of this work to their own employees.
Therefore, in 1959 the Respondent and other ILA locals, in joint
negotiations with pier operators, stevedoring firms, shipping lines,
and other maritime employers in the port of Philadelphia, all of
whom belonged to PMTA, sought to bring about a change with
respect to this issue. As a result of these negotiations, the ILA exe-
cuted separate agreements with PMTA for each of the categories of
employees involved, including the carloaders with whom this case is
directly concerned.
LOCAL 1332, INT'L LONGSHOREMEN'S ASSN. AFL-CIO 1449'
Each of these contracts contained a clause under which PMTA
agreed that it "will not directly perform work done on a pier or
terminal or contract out such work which historically and regularly
has been and currently is performed by employees covered by this
agreement or employees covered by ILA craft agreements unless
such work on such pier or terminal is performed by employees covered
by ILA agreements." This provision will be referred -to hereinafter
as clause one.
The contract covering carloaders is entitled "Carloaders' Agree-
ment" and purports to cover the loading of trucks as well as other
conveyances. Clause one is contained therein ; however, it is imme-
diately followed by a clause which is contained in none of the other
agreements, referred to hereinafter as clause two, and which reads
as follows :
All work on the piers relating to the loading of trucks, or truck
loading services provided by the employer, shall be performed
by employees covered by this Agreement. The Association
will do everything it can lawfully do to secure appropriate
amendments to the existing tariffs so as to provide that the
loading of trucks shall be done exclusively by the terminal
operators participating in the tariff filed with the Federal Mari-
time Board. The parties commit themselves to refer the matter
to their respective attorneys to work out a solution as promptly
as possible.
Thereafter, in March 1960, the pier operators filed a tariff in an
attempt to accomplish the goal set forth in clause two. However,.
legal action brought by Truckers resulted in a further, court ordered,
revision of the tariff which eliminated the exclusive right of pier
operators to perform the disputed work and which reinstated the
"trucker's choice" system, this time explicitly set forth in the tariff
itself.'
In January 1963, the parties executed new agreements, each identi-
cal to its predecessor with respect to the inclusion of clauses one
and two.
Beginning in the latter part of August 1963, Respondent's counsel
corresponded and conferred with representatives of PMTA and
Truckers, the Union taking the position that the Carloaders' Agree-
ment assigned exclusive jurisdiction over the disputed work to it,
specific reference being made to clauses one and two. In a letter to
Truckers, the Respondent, by its counsel, stated that if its claim to
the work in question were not recognized, ". . . the Longshoremen
shall employ all lawful means at their disposal to force your members
'The tariff specified , in addition , that a trucker using his own labor only would pay a
fee, or usage charge, to the pier operator for the use of its pier.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who invade the Local's exclusive jurisdiction to cease and desist from
such invasion and to seek damages from you and the P.M.T.A. for
such past and continuing invasions."
On January 1, 1964, and subsequent to the filing of the charge
herein by Peet, counsel for Truckers, Respondent's attorney wrote to
counsel for PMTA restating its position and its determination ". . . to
use all lawful means to prevent the loading and unloading of trucks
by Truckers ...." On January 7, 1964, Respondent's counsel stated
in a letter to PMTA's counsel :
This letter is to confirm my conversation on Friday, January 3,
1964, with Mr. Deasey and on Monday, January 6, 1964, with
you, in which conversation I advised you that in the event team-
sters were permitted to continue loading and unloading trucks
as of Monday, January 6, 1964, Local 1332 intended to place
pickets at those piers where loading and unloading by teamsters
continued.
This letter also confirms my opinion that picketing would be
one of the lawful means referred to in my letter to you dated
January 1, 1964....
At the time of the hearing, the "trucker's choice" system was still
in effect. The Respondent has not engaged in any picketing relative
to this matter.
Conclusions
The Trial Examiner concluded that clause one did not constitute
a violation of Section 8(e). Limiting our decision with respect
thereto to the facts of this case, we agree with the Trial Examiner's
ultimate conclusion.
The language of clause one seems clear and unambiguous on its
face in that the clause applies only where the work is "historically
and regularly" that of members of the ILA. The record is replete,
however, with testimony to the effect that the work here in dispute
was not historically and regularly that of members of the Respond-
ent,2 but rather that it was "historically and regularly" subject to the
"trucker's choice" system under which the truckers, who were not
parties to the contract herein, elected to use their own employees or
the pier operator's employees (ILA members) depending upon con-
venience , economy, and many other factors. The record indicates
that, on numerous occasions, truckers have used their own employees
exclusively. Accordingly, we find that, inasmuch as the work here
in dispute is not "historically and regularly" that of members of the
ILA, clause one did not afford a contractual basis for the Respond-
2 Cf. International Longshoremen's Association, AFL-CIO; International Longshore-
men's Association , Local No. 1694 , AFL-CIO, et at. (The Board of Harbor Commissioners,
Wilmington , Delaware ), 137 NLRB 1178 , enfd. 331 F . 2d 712 (C A. 3).
LOCAL 1332, INT'L LONGSHOREMEN'S ASSN. AFL-CIO 1451
ent's claim that "trucker's choice" work was improperly denied to
ILA members. It is apparent, therefore, that Respondent's attempt
to force PMTA to accede to its interpretation and construction of
clause one, amounted, at most, to an attempt to force PMTA to enter
into a new and different version of such clause .3 In these circum-
stances, there is no basis for concluding that Respondent's conduct
amounted to a reaffirmation of an existing clause violative of 8(e).4
As there was, therefore, no "entering into" of clause one within the
10(b) period, we shall dismiss the allegations of the complaint in
this respect.5
With respect to clause two, we likewise agree with the Trial Exam-
iner that this clause is not violative of Section 8(e). We do not find
it necessary to scrutinize the meaning of the first sentence of this
clause, for the second sentence clearly demonstrates that the parties
to the contract did not consider the first sentence to be an expression
of the then-existing situation, but rather deem it to be merely a goal
to be worked toward in the future. Had the parties construed the
first sentence of clause two as an expression of the existing situation,
there would have been no need to provide for the taking of further
steps to secure the disputed work for ILA members exclusively. The
third sentence of that clause, in which the parties commit themselves
to work out a solution to this matter, through their attorneys, as
promptly as possible, further indicates that any form of exclusive
jurisdiction of ILA members over this work was far from established
at the time this clause was negotiated and also was not meant to be
established by the clause. The facts with respect to the unsuccessful
attempt to amend the tariff do not suggest that the first senence of
clause two has been in any way converted from a goal into an estab-
lished fact. For these reasons, we do not find clause two to be vio-
lative of Section 8(e) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed in its
entirety.
'While such conduct may have violated Section 8 (b) (4) (A), depending on whether
clause one , if construed and interpreted as Respondent sought to construe it, violated 8(e),
no such allegation was made or litigated in this proceeding
4In joining in this finding , Members Fanning and Brown are not to be understood as
agreeing that an attempted unilateral enforcement of an existing clause which contravenes
Section 8 ( e) necessarily constitutes an "entering into" within the meaning of that section,
irrespective of whether such enforcement was sought, assented to, or acquiesced in, by
the other party to the contract.
5In dismissing this allegation of the complaint, we express no opinion as to whether
clause one , as it presently appears in the parties ' contract, is an unlawful clause.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
The instant charge was served on Respondent on October 28, 1963, and the com-
plaint issued on February 18, 1964.1 The case was heard before Trial Examiner
Sidney Sherman on April 20, 21, and 27 in Philadelphia, Pennsylvania. The issue
litigated was whether Respondent violated Section 8(e) of the Act by virtue of certain
provisions in its contract with the Philadelphia Marine Trade Association. After the
hearing, briefs were filed by Respondent, the Charging Party, and the General
Counsel.
Upon the entire record 2 and my observation of the witnesses, I adopt the following
findings.
1. COMMERCE
The Philadelphia Marine Trade Association, hereinafter called PMTA, is a non-
profit corporation, organized under the laws of the State of Delaware, and maintains
its principal place of business in Philadelphia, Pennsylvania. It bargains collectively
for its members, who are engaged in the port of Philadelphia in the operation of
shipping lines, marine terminals, and other related activities. Members of PMTA
collectively receive more than $50,000 per year for services rendered by them in
connection with the movement of goods in foreign and interstate commerce.
It is found that PMTA is an employer and is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1332, International Longshoremen 's Association , AFL-CIO, herein called
Respondent , is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The pleadings
The complaint alleges that Respondent violated Section 8(e) of the Act by main-
taining, attempting to implement, and giving effect to, certain clauses contained in a
contract between Respondent and PMTA, executed on October 1, 1959, and extended
on January 23, 1963, to September 30, 1964.
The complaint further alleges that since about August 31, 1963, Respondent has
violated Section 8(e) by attempting, pursuant to the foregoing clauses, to cause mem-
bers of PMTA to cease doing business with certain trucking firms.
Respondent's answer denies all the foregoing allegations.
B. Sequence of events
The instant case represents the latest chapter in a longstanding controversy between
Pennsylvania Motor Truck Association, hereinafter called Truckers, on the one hand,
and PMTA and Respondent, on the other, as to whether trucks should be loaded on
the Philadelphia piers by employees of the pier operators, who were represented by
Respondent, or by the truck owners' employees, who were generally members of the
Teamsters Union. It appears that up to 1960, trucking firms either used their own
employees for that purpose or contracted with the pier operators to furnish their
employees for truckloading work. This situation-referred to in the record as
trucker's choice-was unsatisfactory to Respondent, which desired to secure all the
truckloading work on the piers for its members (referred to in the record as car-
loaders), and it was with this in mind that Respondent, late in 1959, entered into
contract negotiations with PMTA, as the representative of the pier operators.3
These were in fact joint negotiations between (1) PMTA, as representative not
only of the pier operators, but also of stevedoring firms, shipping lines, and other
maritime employers in the port of Philadelphia, and (2) various locals of the Inter-
national Longshoremen's Association, including Respondent, each of which repre-
sented one or more categories of labor employed in the port of Philadelphia, such
as timekeepers, ship cleaners, clerks and checkers, and the carloaders here involved.
1 All events hereinafter related occurred In 1964, unless otherwise specified.
2 The transcript of testimony taken herein is hereby ordered corrected
8 The pier operators are also members of an organization known as the Philadelphia
Marine Terminal Association.
LOCAL 1332, INT'L LONGSHOREMEN'S ASSN. AFL-CIO 1453
On December 23, 1959, as a result of these negotiations, the parent union (ILA)
executed a separate agreement with PMTA,4 for each of the categories of employees
involved, which agreement was effective from October 1, 1959, to September 30, 1962.
A provision common to all the foregoing agreements was a definition of the type
of work covered by the agreement and a pledge by PMTA that it "will not directly
perform work done on a pier or terminal or contract out such work which historically
and regularly has been and currently is performed by employees covered by this
agreement or employees covered by I.L.A. craft agreements unless such work on
such pier or terminal is performed by employees covered by I.L.A. agreements."
This clause will be referred to hereinafter as the work protection clause.
The Respondent's agreement, with which we are particularly concerned, is entitled
"Carloader's Agreement," and purports to cover "the work pertaining to the loading
and unloading of railroad cars, trucks, teams, lighters, barges, transferring freight in
and out of storage places, sorting, piling . . ." [Emphasis supplied.] This contract,
like the others, contains the work protection clause quoted above, which is followed
immediately by a paragraph not appearing in any of the contracts of the other ILA
locals. That paragraph reads as follows:
All work on the piers relating to the loading of trucks, or truck loading services
provided by the employer, shall be performed by employees covered by this
Agreement. The Association will do everything it can lawfully do to secure
appropriate amendments to the existing tariffs so as to provide that the loading
of trucks shall be done exclusively by the terminal operators participating in
the tariff filed with the Federal Maritime Board. The parties commit themselves
to refer the matter to their respective attorneys to work out a solution as
promptly as possible.
This paragraph will be referred to hereinafter as the tariff paragraph.
It is evident from the foregoing that PMTA agreed, inter a1ta, to take appropriate
lawful action to secure for the pier operators (and their employees) all truckloading
work on the piers Presumably, in an effort to effectuate this undertaking, the pier
operators, on March 31, 1960, filed with the Federal Maritime Board a tariff, to be
effective April 1, 1960, section VII(5) of which provided as follows:
All truck loading and unloading at any pier or waterfront terminal operated by
a participating Terminal Operator in the Port of Philadelphia who is a party to
this Tariff shall be performed solely by such Terminal Operator, his agents, serv-
ants and employees at the rates and subject to the rules, regulations and prac-
tices contained in this Tariff.
The effect of this was to eliminate self-loading by Truckers and require them to
arrange for loading by pier operators and their employees. The tariff prescribed rates
to be paid by Truckers to pier operators for loading or unloading of trucks.5 How-
ever, Truckers promptly instituted legal action against PMTA to vacate the foregoing
provision of the tariff, and on May 19, 1960, a Federal district court enjoined enforce-
ment of section VII(5) of the tariff, pending final adjudication of the issue by the
Federal Maritime Board, and directed that the parties revert to the status quo or prac-
tices existing prior to March 1959. Further litigation ensued, and the matter was
finally settled by the promulgation on July 1, 1960, of a revision of section VII(5)
of the tariff, which gave a "trucker, shipper or consignee" the following options with
regard to the loading of his truck:
(a) Full or partial (tailgate) loading . . . of prepalletized or skidded cargo
which shall be performed by the terminal operator , his agents , servants and
employees at the rates set forth in Section 14(b) and (c) ....
(b) The trucker, shipper or consignee, at its option, may perform the truck-
loading ... at the rate set forth in Section 14 (d) ....
* Each agreement was signed by an officer of the parent ILA as well as by officers
of the local involved. Although such local is named in the body of the contract as the
only union party thereto, the International union alone appears as a signatory to the
contract.
5 This tariff was filed with the Federal Maritime Board because under section 15 of
the Shipping Act of 1916, as amended , pier operators might receive exemption from the
antitrust laws by obtaining that Board ' s approval of a uniform rate-fixing agreement.
The tariff was essentially such an agreement.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The effect of the foregoing was to restore trucker's choice, giving the trucker one
of the following alternatives:
1. Arrange for all the loading to be done by the pier operator's labor (car-
loaders) or for part of the loading (up to the tailgate) to be done by carloaders,
and part (beyond the tailgate) to be done by the trucker's labor. In either case
the trucker would have to pay the pier operator a prescribed fee.
2. Load his truck entirely with his own labor, in which case he would have
to pay only a "usage charge" or fee for the use of the pier.
The foregoing provisions of section VII(5), for trucker's choice were still in effect
at the time of the events next related.
On January 26, 1963, Respondent executed a new contract with PMTA effective
to September 30, 1964, which extended the old work protection clause and tariff
paragraph. On August 31, 1963, Carnes, Respondent's counsel, wrote to Peet, a
representative of Truckers, as follows:
This letter is to confirm my request by telephone on Friday, August 30, 1963,
that your clients' members not use any of their own personnel or equipment in
the loading and unloading of trucks in connection with the pier operations of
members of the Philadelphia Marine Trade Association.
The reason for this request is that that association , by contract, has assigned
the exclusive jurisdiction of such loading and unloading to Local 1332, ILA,
AFL-CIO.
I would hope that you would find it more economical and more efficient to
use the trained personnel who are constantly available for such loading and
unloading.
Attached to the foregoing letter were the work protection clause and the tariff
paragraph.
On October 16 Carnes again wrote Truckers, as follows:
Local 1332, I.L.A. believes that it has the exclusive right to do the work on
the piers and that the Local has been monetarily damaged by some of your
members' using the piers in connection with their operations. The officers and
members of the Local are pleased to acknowledge the fact that a majority of
your members have used I.L.A. labor exclusively.
I am authorized on behalf of Local 1332, I.L.A. to request that your associa-
tion, on or before Monday, October 28, 1963, recognize the Local's exclusive
right to its work on the piers. In the event of such recognition, it shall entertain
any reasonable arrangements such as present commitments by your members
to shippers in connection with the usage charges.
In the event that you fail to recognize this claim on or before Monday,
October 28, 1963, without further notice the Longshoremen shall employ all
lawful means at their disposal to force your members who invade the Local's
exclusive jurisdiction to cease and desist from such invasion and to seek damages
from you and the P.M.T.A. for such past and continuing invasions.
We want to stress our commitment to you to do everything within our power
to make I.L.A. labor both desirable and economical.
The instant charge was filed on October 28, 1963.
On January 1, 1964, Carnes wrote to Kelly, counsel for PMTA, as follows:
On September 7, 1963, Local 1332 requested that the PMTA immediately
cease permitting truckers to use their personnel or equipment on the piers. Your
client to date has failed to do this.
As of Monday, January 6, 1964, Local 1332 has determined to use all lawful
means to prevent the loading and unloading of trucks by teamsters. It is my
opinion that under the contract your client has given this work exclusively to
Local 1332, and we have evidence that the teamsters are either directly or
indirectly forcing you and the truckers to use teamsters for the loading and
unloading of trucks at the piers.
In view of the seriousness of this matter I will be pleased to discuss it with
you at any time. I must advise you that Local 1332 is firm in its resolution.
On January 7 Carnes again wrote Kelly, stating:
This letter is to confirm my conversation on Friday, January 3, 1964, with
Mr. Deasey and on Monday, January 6, 1964 with you, in which conversation
I advised you that in the event teamsters were permitted to continue loading and
unloading trucks as of Monday, January 6, 1964, Local 1332 intended to place
pickets at those piers where loading and unloading by teamsters continued.
LOCAL 1332, INT'L LONGSHOREMEN'S ASSN. AFL-CIO 1455
This letter also confirms my opinion that picketing would be one of the lawful
means referred to in my letter to you dated January 1, 1964. I respectfully
point out that neither you nor Mr. Deasey doubted Local 1332's intention to put
out picket lines on January 7. Also, it was only as a result of your statement
that you would file charges with the NLRB, that I advised Local 1332 at its
meeting on Monday night , January 6, 1964, to await the processing of your
charges before taking any further action.
As of the time of the hearing there had been no change in the aforecited tariff prQ-
vision for truckers choice, and there is no evidence that PMTA took any action with
respect to Carnes' foregoing letters, other than to divert some ships from the port of
Philadelphia in anticipation of a strike by Respondent.
C. Discussion
Section 8 (e) of the Act forbids "any labor organization or any employer to enter
into any contract . . ., whereby such employer ... agrees to cease ... doing business
with any other person ..."
In a case of this type, the burden is on the General Counsel to show the following:
1. An agreement for an object proscribed by Section 8(e).
2. That the agreement was "entered into" within 6 months before the service of
the charge on the Respondent.6
For reasons of convenience in exposition , the latter question will be first considered.
I.
Were the contract clauses here in issue entered into by the parties within 6 months
before the service of the charge upon the Respondent?
As it is clear that the charge was served more than 6 months after the execution
of the most recent ILA-PMTA contract , no violation finding may be based on such
execution . However, in cases such as this, the Board has held that a violation may
be established by showing that within the 6 -month period , the respondent union
reaffirmed the contract by insisting on its enforcement.?
There can be no doubt that there was insistence here by Respondent within the
limitations period that the pier operators honor certain contractual provisions and,
if it be determined that such provisions constituted hot cargo clauses, it would follow
that there was here an "entering into" such provisions by Respondent within the
limitations period.
It may be appropriate to point out here, however, that the only contract provisions
which Respondent was seeking to enforce were those which allegedly gave its
members the exclusive right to perform truckloading work.
II.
Was there an agreement here for a proscribed object?
As already noted , Respondent , in its correspondence with Truckers, cited gen-
erally both the work protection and the tariff clauses as the basis for its claim that
carloaders were entitled to do the truckloading work. We shall consider each of
these clauses.
The work protection clause precludes pier operators from subcontracting certain
work. It is well settled that such a clause is not unlawful if it is a genuine work
protection clause, reserving all the disputed work to the employees in the bargaining
unit , but is unlawful if it permits subcontracting of such work under certain conditions
to employers of employees not in the bargaining units Here, the clause forbade
subcontracting of work historically and currently done "by employees covered by this
Agreement or employees covered by I.L.A. craft agreements unless such work .. .
6 See Section 10(b) of the Act.
7Milk Drivers and Dairy Employees , Local Union No 537 ( Sealtest Foods , a Division
of National Dairy Products Corporation ), 147 NLRB 230, and cases cited in footnote 3 of
that Decision.
8-International Longshoremen's Association , AFL-CIO; International Longshoremen's
Association , Local No 1694 , AFL-CIO, et al. (The Board of Harbor Commissioners, Wil-
mington, Delaware), 137 NLRB 1178, 1186, enfd 331 F. 2d 712 (C.A. 3) ; Pure Milk
Association ; Sidney Wanner & Sons, Inc (Milk Drivers ' Union, Local 753, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, et al.), 141
NLRB 1237 ; Raymond O . Lewis, et al., as agents for the International Union, United
Mine Workers of America , etc, et al ( Arthur J Culligan ), 144 NLRB 228.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is performed by employees covered by the I.L.A. Agreements." Whether this
language permitted the subcontracting of work to employers of employees outside
the bargaining unit was not adequately litigated. Thus, it is not clear from the record
whether the bargaining unit here was a unit limited to the carloaders or was coexten-
sive with all the categories covered by the PMTA contracts with the various ILA
locals, nor, if the latter, whether the foregoing quoted contract language (which
appears in all the local contracts) denotes only employees in such broad unit, or may
be construed as applying to employees outside such unit.
It is true that in The Board of Harbor Commissioners, supra, where the respondent
was a sister local of the instant Respondent, the Board had occasion to construe the
foregoing work protection clause as it appeared in that local's contract with PMTA,
and found that the clause was a hot cargo provision .9 There, the Board said:
While the clause relied on by the Respondents in the instant case is not a model
of clarity, we find that it is an "except" type of no-subcontracting clause, designed
to protect the disputed work not for the employees ... in the bargaining unit
but rather for the members of the ILA in general.
However, in so finding, the Board apparently failed to consider whether there
were any employees in the area who were covered by any ILA agreement other than
the PMTA contract and, if not, whether the clause was therefore a valid work protec-
tion clause. At the instant hearing, the General Counsel conceded, in effect, that he
knew of no employees under ILA contract in the port of Philadelphia other than
those covered by the PMTA contracts. If, then, the foregoing work protection clause
excepted from the ban on subcontracting only employers of employees covered by a
PMTA contract, it is arguable that such exception did not render the clause unlawful.
See Raymond O. Lewis, et al., supra, at footnote 10.
Moreover, while Respondent at the hearing appeared to rely on the foregoing
ban on subcontracting as justifying its efforts to secure all truckloading work for its
members, for purposes of this case it is necessary to determine whether such a reli-
ance was proper or whether it was "misplaced." 10 The mere fact that a respondent
cites a clause in a contract, however irrelevant on its face, as justifying secondary
action does not suffice to render that clause illegal.11
Here, even if it be assumed that the ban on subcontracting was not a valid work
protection, but rather a hot cargo clause, it is not apparent what relevance such
clause had to the Respondent's efforts to secure all truckloading work on the pier.
There was not involved here any subcontracting-in the conventional sense-of
truckloading work by the pier operators. On the contrary, it is clear from the record
that, when arrangements were made between pier operators and Truckers for truck-
loading work, it was the Truckers who subcontracted such work to the pier operators;
for, it is undisputed that it was the Truckers who retained and paid the pier operators
for such work and not vice versa. Thus, it is not difficult to credit the testimony of
Kelly, who drafted the subcontracting clause, that he did not understand it to apply
to truckloading work, since that was not work which the pier operators had the power
to assign or to subcontract to others. In view of this, it would seem to be of little
avail to the General Counsel that Respondent's counsel, at the hearing and in his
brief, attempted to attach an esoteric meaning to "subcontracting" as used in its con-
tract, insisting that, since the pier operators controlled the piers and had custody of
the cargo, any work performed on the piers with relation to such cargo, even though
by employees of others, was, at least potentially, the work of the pier operators, and
that, by permitting such work to be done by employees of other employers, as in the
case of self-loading of trucks, the pier operators were, in effect, "subcontracting"
the work in violation of their contract. While such a unilateral and arbitrary con-
o The respondent in that case represented employees of a stevedoring firm, which was
a -party to the PMTA-ILA contract. Those employees were engaged in unloading ship's
cargo. When the pier operator (who was not a member of PDZTA) insisted on using
non-ILA labor to move the cargo after it was unloaded, the respondent called a strike
of the stevedoring employees. At the hearing before the Board, the respondent claimed,
inter ilia, that the strike was primary, as its purpose was merely to enforce the prohibi-
tion against subcontracting in the PMTA contract. With regard to this contention, the
Board held (for reasons stated in the text, above) that the ban on subcontracting was
a hot cargo clause, and, that, by seeking to enforce such clause, the respondent violated
Section 8(b) (4) (1) and (ii) (A).
10 See part II of the opinion of the court in The Board of Harbor Commissioners case,
supra.
n Pure Milk Association ; Sidney Wanzer & Sons, Inc., 141 NLRB 1237, 1240, 1242.
LOCAL 1332, INT'L LONGSHOREMEN'S ASSN. AFL-CIO 1457
struction of a contract clause cannot validate action taken in reliance thereon, by the
same token it is not apparent how such a misconstruction can help to establish that
the clause has an unlawful object.
As an alternative basis for finding that the instant work protection clause has a
proscribed object, the General Counsel cites a passage in the Board's decision in the
Board of Harbor Commissioners case, dealing with the following language of that
clause as it appeared in the contract there involved:
The Employer-members of the Association agree that they will not directly per-
form work done on a pier or terminal ... which historically and regularly has
been and currently is performed by [ILA labor] unless such work on such pier
or terminal is performed by employees covered by ILA agreements.
The immediate question before the Board at the point in the case was whether this
language constituted a defense to the charge that, by threatening and calling a strike
of neutral employees,12 the respondent had violated Section 8(b) (4) (i) and (ii) (B)
of the Act. The Board rejected this defense, stating:
Viewed in terms of the PMTA-ILA contract, the Respondents' conduct was an
attempt to enforce that portion of the contract clause which provides that
employer-members of the Association could not work on a pier where work
historically and regularly performed by employees in the bargaining unit was
being performed by employees not covered by ILA agreements. However, the
Trial Examiner found, and we agree, that the PMTA-ILA contract, insofar as
it obligated members of PMTA not to do business on a pier where work histori-
cally done by ILA employees was being done by non-ILA employees, was a
"hot cargo" type of contract proscribed by Section 8(e) 13
While the foregoing pronouncement by the Board, itself, with respect to identical
contract language is entitled to great weight here, even though the instant case
involves different parties, both Kelly,14 who drafted the work protection clause for
PMTA, and Carnes, Respondent's counsel, disputed the correctness of the Board's
view, and, indeed, the reason for the Board's position is not readily apparent.
In essence, the Board held that the above-quoted language precluded PMTA mem-
bers from working on a pier where any work traditionally done by ILA labor was
being performed by any other employers on that pier with non-ILA labor. (As
applied to the instant case, this would mean that a pier operator would have to shut
down his pier entirely rather than permit a trucker to use non-ILA labor to load
his truck (assuming that such loading was traditional ILA work).) It is not clear
why the Board took this view of the above-quoted language instead of imputing to it
its natural meaning, which would seem to be that the pier operators agree that they
will not, themselves, directly employ non-ILA labor for traditional ILA work.15
This is the normal complement of the other undertaking in the work protection
clause-that the employers will not subcontract such ILA work for performance by
non-ILA labor. So read, the instant work protection clause does no more than the
usual clause of that type, in that it merely interdicts any invasion of the Respondent's
work jurisdiction either (a) by direct hire of nonunion labor or (b) by subcontracting
to employers of nonunion labor; and there seems to be no need to read the foregoing
direct hire provision as a hot cargo clause.
Moreover, the relevance here of this alleged provision for a complete shutdown of
the piers is not apparent. While Respondent threatened a strike, which would have
necessitated a shutdown of the piers , there is no persuasive evidence that Respondent
12 See footnote 9, above.
18 137 NLRB 1178, 1182, footnote 6.
is Kelly, who testified in the instant case, was not a witness in the Board of Harbor
Commissioners case.
"'This reading seems to be compelled by a grammatical analysis of the language in
issue, as the only apparent antecedent for "such work" in the "unless " clause is the work
which the Association members agree that they do not directly perform on a pier.
It follows that the import of the language is that Association members merely agree that
they will not directly perform on a pier any work which is traditional ILA work, unless
they use ILA labor to do such work.
Presumably, it was for the foregoing reason that the court in the Board of Harbor
Commissioners characterized the Board 's construction of the language in question as a
"forced one ." See footnote 14 of the court' s opinion.
783-133-6G-vol. 151-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relied on the foregoing provision as sanctioning such a strike or claimed that it was
striking to enforce any provision of its contract other than that allegedly giving the
truckloading work exclusively to its members.16
Finally, any contention that the ban on subcontracting in the work protection
clause or any other part of that clause was deemed by the contracting parties either
to require the pier operators to deny the use of the piers to truckers who engaged in
self-loading, or to shut the piers down altogether if such self-loading occurred, over-
looks the fact that the parties included in their contract a provision dealing specifically
with the matter of truckloading work-namely, the tariff paragraph, to be -next
discussed. That the parties deemed it necessary to deal specifically in that paragraph
with the matter of the assignment of truckloading work by the pier operators is
persuasive that the parties did not regard that subject to be covered by the work
protection clause.
However, the General Counsel contends that the tariff paragraph, in itself, is a
hot cargo clause, and that, in seeking enforcement thereof, Respondent additionally
violated Section 8(e). He cites, in particular, the first sentence thereof, which reads:
All work on the piers relating to the loading of trucks, or truck loading services
provided by the employers, shall be performed by employees covered by this
Agreement. [Emphasis supplied)
The General Counsel contends that the italicized language should be read as
imposing on the pier operators responsibility for securing for their employees all
truckloading work on the piers, and as implying that they must exclude from the piers
any truckers who insisted on self-loading. However, even if one considers the fore-
going quoted sentence in isolation, the construction placed thereon by the General
Counsel is far from obvious. On its face, the italicized portion of the sentence
appears to be merely a statement that the pier operators will use only carloaders for
any truckloading work that they may contract to perform.17 To read into this
language, in addition, a commitment by the pier operators to capture for themselves
(and the carloaders) all the truckloading work, by denying the use of the piers to
any truckers who insisted on self-loading, not only places a strained construction on
the language under consideration, but requires that one ignore the balance of the
paragraph, which reads as follows:
The Association will do everything it can lawfully do to secure appropriate
amendments to the existing tariffs so as to provide that the loading of trucks shall
be done exclusively by the terminal operators participating in the tariff filed with
the Federal Maritime Board. The parties commit themselves to refer the matter
to their respective attorneys to work out a solution as promptly as possible.
Clearly, if, as the General Counsel in effect contends, the parties had intended by
the first sentence of the tariff paragraph to provide for elimination of self-loading by
m Neither in its oral discussions with, nor in its letters to, PMTA and Truckers did
Respondent allude to any agreement by pier operators to shut down entirely rather than
permit selfloading . On this Issue the General Counsel relies solely on some rather con-
fused testimony by a business agent of Respondent, who had caused a momentary stoppage
by a single checker, to the effect that he felt that, under the contract, he was entitled to
call a work stoppage on a pier when self-loading occurred. However, this testimony must
be read in the light of a subsequent unequivocal denial by the same witness that he be-
believed that the pier operators had agreed to shut down rather than permit selfloading,
and it is clear from the record that the witness caused the brief stoppage only because
lie felt that the number of helpers used by a self-loading trucker on a pier violated the
terms of a court order
In any event, In view of the evident limitations on the competency of this witness to
explicate Respondent's policy or views in such a legalistic area, and in view of the
isolated and spontaneous nature of the work stoppage, I regard the foregoing matters
as entitled to less weight as evidence of Respondent's policy than the tenor of Respond-
ent's discussions and correspondence with PINITA and truckers.
17 This would seem to be true whether or not the comma after "employers" was, as
Kelly's testimony imp]iec misplaced and should have been placed after "services" ; for,
noinially any assignment of work in a contract relates to work to be done for the em-
ployer making the assignment.
It is not clear from General Counsel's brief how he arrives at his construction He
seems to rely on an alleged contention by P,IITA that truckloading is not bargaining
unit work or subject to the pier operators' control, because they do not subcontract the
loading to the Truckers but rather vice versa However, once the work is subcontracted
to pier operators, it indisputably becomes bargaining unit work and subject to their
control.
LOCAL 1332 , INT'L LONGSHOREMEN'S ASSN. AFL-CIO 1459
truckers by direct action-i.e., by the ouster of recalcitrant truckers from the piers-
there would have been no need to require in the next breath that the pier operators
resort to legal action, via tariff amendments, to achieve that result.
In sum, there seems to be no valid reason for construing the tariff paragraph as a
whole as meaning anything other than what it seems to say-namely, that the pier
operators agree to use the carloaders for all truckloading work that the pier operators
may have, and that, in order to maximize such work, they will attempt, by lawful
means, to be devised by the parties' attorneys, to secure amendments to the tariff,
which will vest all truckloading work in the pier operators. Thus' construed, I find
that the tariff paragraph is not a hot cargo clause.18
In conclusion, the clauses relied on by the General Counsel are deemed to be at
the very least ambiguous, and, insofar as the Board of Harbor Commissioners case
implies the contrary as to the work protection clause, such ruling should, it seems,
be evaluated in the light of the various circumstances cited above, which do not
appear to have been present, or brought to the Board's attention, in that case. More-
over, the ban on subcontracting by pier operators in the work protection clause, is, as
has been found, not relevant here, in any event, because the only business relationships
sought to be affected by Respondent were those between the pier operators and those
truckers who refused to retain pier operators to load their trucks-which clearly did
not involve any attempt to limit subcontracting by the pier operators; and the other
provisions of the work protection clause dealt with in The Board of Harbor Commis-
sioners are not relevant here because there is no persuasive evidence that Respondent
construed, and sought to enforce, such provisions as interdicting the operation of any
pier on which truckers loaded their trucks.
The Board has held that it will not base a finding of a violation of Section 8(e) on
an ambiguous contract clause 19 or on a respondent's interpretation of an unam-
biguous clause which is contrary to its plain meaning.20
21 The General Counsel does not appear to contend that the last two sentences of the
tariff paragraph contribute to the illegality of the first sentence or, in themselves, con-
stitute a hot cargo clause. It is not apparent, in any case, how that could be so, in
view of the condition therein that any measures taken be lawful, and the further con-
dition that the parties' counsel reach agreement on a course of action. It is clear from
the record that there was no such agreement by counsel at the time the 1963 contract
was executed or at any time thereafter. In any event, there Is no evidence that Respond-
ent was pressing for amendment of the tariff, but only that it was demanding direct
action by the pier operators against the Truckers.
The General Counsel does contend, however, that the last two sentences of the para-
graph do not cure the illegality of the first sentence, citing Dan McKinney Co , 137
NLRB 649, 653. As I have found that the first sentence, when considered by itself, Is
not illegal, there is no need to consider this contention. However, It may not be amiss
to note that In McKinney the Board was dealing with a transparent and unworkable
provision, Inserted, as is found, only as a subterfuge. Here, there is no basis for regard-
Ing the lawful means clause as a mere subterfuge, as it is not disputed that the pier
operators made an earnest, albeit abortive, effort to implement that clause soon after it
was first adopted in 1960.
11 Milk Drivers and Dairy Employees Union, Local No. 546, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Minnesota Milk Com-
pany), 133 NLRB 1314. In its brief, the Charging Party argues that, if disagreement
by the parties as to the meaning of a contract clause is treated as a valid defense to
a charge under Section 8(e), there is danger that parties to hot cargo clauses may seek
to circumvent the Act by agreeing to disagree as to the meaning of such clauses How-
ever, before the intent of the contracting parties can be relevant, there must be a real
ambiguity In the language of the clause. Moreover, I have nowhere given any weight
to any professed disagreement between PMTA and Respondent as to the meaning of any of
the clauses here involved.
Of course, where, as here, a respondent union threatens a strike to enforce a con-
struction of its contract as precluding dealings between the employer and a third party,
such conduct would violate Section 8(b) (4) (Ii) (A) of the Act, regardless of how bizarre
such construction might be and even though the employer does not concur therein. See
Pure Milk Association; Sidney Wanzer & Sons, Inc., 141 NLRB 1237, 1242 (Whether
there was, in fact, such a violation in the instant case Is beyond the purview of this
Decision, since no such violation was alleged in the charge or the complaint.)
20 Pure Milk Association; Sidney Wanner & Sons, Inc., supra, 1240, 1242. There the
Board found that the execution of a clause which was innocuous on Its face did not
violate Section 8(e), even though the respondent union interpreted it as a hot cargo
clause and called a strike to enforce that Interpretation.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that all the clauses here involved , even if revelant , are ambiguous,
if not clearly valid, I will recommend that the complaint be dismissed.21
RECOMMENDED ORDER
IT IS ORDERED that the complaint herein be , and it hereby is, dismissed in its
entirety.
n Insofar as this case involves an attempt by General Counsel to impale Respondent
on its own self -serving misinterpretation of its contract , a violation finding might well
serve the ends of poetic justice. However , a Trial Examiner is limited to dispensing a
more prosaic brand of justice.
Halstead & Mitchell Co. and Sheet Metal Workers' International
Association , Local Union No. 12, AFL-CIO, Petitioner. Case
No. 6-RC-3667. April 6, 1965
DECISION ON REVIEW
On December 2, 1964, the Regional Director for Region 6 issued
the attached Decision and Order in the above-entitled proceeding
dismissing the petition on the ground that the requested unit was
inappropriate.' Thereafter, the Petitioner, in accordance with Sec-
tion 102.67 of the National Labor Relations Board's Rules and Regu-
lations, Series 8 , as amended, filed with the National Labor Relations
Board a timely request for review and a brief in support thereof,
contending that the Regional Director erroneously applied the
Board's precedents in reaching his unit finding. The Employer filed
a statement in opposition thereto. The Board by telegraphic order
dated December 29, 1964, granted the request for review. A brief
on review in support of the Regional Director's determination was
filed by the Employer.
The Board has considered the entire record in this case, with
respect to the issue under review, together with the parties' briefs,
and is of the opinion that the facts clearly support the Regional
Director's determination that the unit requested herein is not appro-
priate? Accordingly, we hereby affirm his Decision and Order.
i As appears in the attached Decision and Order , the Petitioner's unit request is
basically confined to employees of the named Employer , referred to hereinafter as H & M,
and would exclude the employees of Halstead Metal Products , Inc., hereinafter referred
tows HMP.
z In affirming the Regional Director's finding that the requested unit is inappropriate,
we rely especially on the circumstances of this case revealing that the Employer's HMP
plant is only 1,500 to 2,000 feet away from the H & M plant, that HMP's tube mill is
located in the same plant as H & M's production facilities , and that about half the em-
ployees sought , even though on H & M ' s payroll , work in departments that are common
to both companies , i.e., maintenance ( which includes maintenance of tools , electrical in-
stallation and maintenance , and all welding ), construction , machine shop, and shipping
and receiving.
151 NLRB No. 143.