Local Union 1332, International Longshoremen's Association

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 801 (N.L.R.B. 1974)

LOCAL UNION 1332, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, 801
Local Union 1332, International Longshoremen's As-
sociation , AFL-CIO' and Philadelphia Marine
Trade Association and Delaware River Terminal &
Stevedoring Co., Inc . and Independent Watchmen's
Association , Local 1536 . Case 4-CD-346
December 16, 1974
DECISION AND DETERMINATION OF
DISPUTE
effectuate the policies of the Act to assert jurisdiction
herein.
II THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that Local 1332
and Local 1536 are labor organizations within the
meaning of Section 2(5) of the Act.
III THE DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following the
filing of charges by Philadelphia Marine Trade As-
sociation, hereinafter PMTA, alleging that Local
Union 1332, International Longshoremen's Associa-
tion, AFL-CIO, hereinafter Local 1332 or Respond-
ent, had violated Section 8(b)(4)(D) of the Act by en-
gaging in certain proscribed activity with an object of
forcing or requiring Delaware River Terminal & Steve-
doring Co., Inc., hereinafter Employer, to assign work
to employees represented by Local 1332 rather than to
employees represented by Independent Watchmen's
Association, Local 1536, hereinafter Local 1536.
Pursuant to notice, a hearing was held before Hear-
ing Officer Jeffrey C. Falkin on May 22, 1974.
All parties appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on
the issues. Thereafter, all parties filed briefs in support
of their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs, the Board makes the following findings:
I THE BUSINESS OF THE EMPLOYER
The Employer is engaged in the operation of the
Tioga Marine Terminal, hereinafter TMT, in the Port
of Philadelphia, Pennsylvania. During the prior 12
months the Employer performed services valued in ex-
cess of $50,000 for persons located outside the Com-
monwealth of Pennsylvania. Accordingly, we find that
the Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that it will
I As amended at the hearing.
A. Background and Facts of the Dispute
The unfair labor practice charges in this case were
filed in behalf of the Employer by PMTA, the collec-
tive-bargaining agent for approximately 60 employers
engaged in the maritime industry in the Port of Phila-
delphia.
Local 1536 is the collective-bargaining representa-
tive of all port watchmen employed by members of
PMTA in the Port of Philadelphia. Local 1332 simi-
larly represents employees who are engaged in the load-
ing and unloading of freight for employer-members of
PMTA in the port.
For approximately 20 years, Local 1332 represented
a gateman employed at what historically was known as
Pier 179 North. In 1971, Pier 179 North was incor-
porated in the larger pier complex known as TMT and
a second gate was established. The first gate controls
the movement of breakbulk cargo, and the new gate
container cargo, into and out of the terminal.
The duties of the gateman at each gate are essentially
the same. When a truck approaches a gate, the gateman
makes sure that the truckdriver has a proper work
order and then gives him a prenumbered gate pass. The
gate pass is time-stamped to record the time that the
truck entered the facility and the gateman notes the
time and the truck in a log which he keeps to record
the entry and departure of all vehicles. As the truck
exits, after picking up or discharging cargo inside the
terminal, the gateman stops the truck and checks to see
if the pass was completed; at the container gate the
gateman also checks the number which is on the side
of the container to insure that it is the number which
appears on the truckdriver's papers. In addition to
these responsibilities, the gateman has the responsibil-
ity of insuring that no unauthorized persons enter the
terminal. He has the authority to stop trucks, automo-
biles, or persons attempting to enter.
Gatemen at TMT, including the members of Local
1332, are required to wear uniforms that are the same
as those worn by guards at TMT who are members of
Local 1536. There are two gatemen presently employed
at TMT, one at each gate. The Local 1332 gateman at
the breakbulk gate usually works only from 7 a.m. to
215 NLRB No. 150
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5 p.m.; at other times a member of Local 1536 performs
the function of gateman at this gate.
When the new gate was opened in 1971, the Em-
ployer assigned the duties of gateman to an employee
represented by Local 1536. In protest of this assign-
ment, employees represented by Local 1332 engaged in
a work stoppage and the Employer, in order to end the
stoppage, replaced the Local 1536 member with a Lo-
cal 1332 member. In 1973, Local 1536 filed a grievance
with PMTA involving the two gatemen. The grievance
resulted in an arbitration award in favor of Local 1332.
However, in 1974, the case was resubmitted to the same
arbitrator who on March 14, 1974, rendered a cor-
rected decision assigning the disputed work to mem-
bers of Local 1536. Local 1332 did not participate in
either arbitration proceeding. At a meeting called on
April 1, 1974, by PMTA to implement the arbitration
award, Local 1332's representative stated that if the
award was implemented Local 1332 would picket both
gates at TMT. To lessen Local 1332's opposition to the
award, the executive secretary of PMTA said that if the
two members of Local 1332 acting as gatemen were
replaced by members of Local 1536 they would not be
discharged, but would be added to the Employer's
work force at the terminal, without displacement of any
other employees. the executive secretary subsequently
put this offer in writing.
When Local 1332 refused to accept the PMTA offer,
the latter filed unfair labor practice charges against the
local alleging a violation of Section 8(b)(4)(D). There-
after, on the application of the Regional Director, a
Federal district court issued an injuction under Section
10(1) against Local 1332. After the issuance of the
injunction, the Employer assigned the gate work to
members of Local 1536 and, in accordance with its
promise, added the two men who had previously served
as gatemen to the regular Local 1332 work force with-
out displacement of other employees.
B. The Work in Dispute
The dispute involves the work of gatemen employed
by the Employer at Tioga Marine Terminal (which
encompasses the area historically known as Pier 179
North) in Philadelphia, Pennsylvania.
C. Contentions of the Parties
PMTA states that a jurisdictional dispute cognizable
under Section 10(k) of the Act exists, and that on the
basis of the assignment of the Employer, industry and
area practice, employee skills and work involved,
economy and efficiency of operations, and arbitration
awards to the work should be assigned to members of
Local 1536.
Local 1536 takes substantially the same position as
PMTA.
Local 1332 contends that no jurisdictional dispute
exists because the 'only demand by Local 1332 has been
for the continued employment of those employees pres-
ently working and the enforcement of the collective-
bargaining agreement applicable to them. Accordingly,
it requests that the notice of hearing be quashed. On the
merits, Local 1332 argues that its members should con-
tinue to perform the work of gatemen at TMT.
D. Applicability of the Statute
Before the Board may determine a dispute pursuant
to Section 10(k) of the Act, it must be satisfied that
there is reasonable cause to believe that. Section
8(b)(4)(D) has been violated. Although Respondent ad-
mittedly threatened to picket if the Employer,replaced
the members of Local 1332 with members of Local
1536 at the gates of TMT, Respondent contends that
no jurisdiction dispute exists because Respondent was
merely seeking the continued employment of those
presently working and that the collective-bargaining
agreement applicable to them be given full force and
effect. We do not agree that this is simply a "work
preservation" dispute as urged by Respondent.
Prior to 1971, the Employer had one gate and one
gateman at Pier 179. this gateman had for many years
been represented by Local 1332. In 1971, Pier 179 was
incorporated in the much larger TMT. When the sec-
ond gate for the handling of containers was opened at
this terminal, the Employer initially assigned the duties
of gateman to an employee represented by Local 1536.
However, members of Local 1332 thereupon engaged
in a work stoppage to protest the assignment, and to
end the stoppage the Employer replaced the Local 1536
member with a member of Local 1332. The assignment
of a Local 1332 member to one of the TMT gates was
therefore both very recent and resulted from the strike
pressure of Respondent rather than from any voluntary
act of the Employer. Moreover, after the arbitrator
rendered his decision assigning the disputed work to
members of Local 1536, the Employer assured Re-
spondent that compliance with the award would not
result in the discharge of the incumbent gatemen since
they would be incorporated in its existing Local 1332
work force. This happened as a result of the implemen-
tation of the arbitration decision following the issuance
of the 10(1) injunction. Thus, this is not a "work preser-
vation" dispute within the meaning of the cases cited
by Local 1332 in its brief to the Board.'
2 International Longshoremen 's and Warehousemen 's Union Local 8 (Wa-
terway Terminals Co), 185 NLRB 186 (1970), enforcement denied 467
F 2d 1011 (CA 9, 1972), Transport Workers Union of America,
AFL-CIO and Local 504 (Triangle Maintenance Corporation), 186 NLRB
LOCAL UNION 1332, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, 803
Respondent was not a party to the arbitration pro-
ceeding which resulted in an award to Local 1536.
Accordingly, we find that there has been no voluntary
adjustment of the dispute and no agreed-upon method
for such adjustment.'
We find, therefore, that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated and
that the dispute is properly before the Board for deter-
mination under Section 10(k) of the Act.
E. Merits of the Dispute'
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to all relevant factors involved. The
following factors ' are relevant to making a determina-
tion of the dispute before us.
1. Certifications and collective-bargaining agreements
Neither labor organization has been certified by the
Board as the collective-bargaining representative of the
employees involved.
The Employer is a member of PMTA which has a
collective-bargaining agreement with Local 1536 cov-
ering "Port Watchmen employed . . . on Piers in the
Port of Philadelphia ... . ." The contract specifically
covers "The performance of the normal and regular
duties of gatemen . . . ." However, a provision of the
agreement (11(b)(1)) provides that the work jurisdic-
tion of the contract shall not,apply to:
(1) Pier properties owned or operated by members
of P.M.T.A. where jurisdiction of the work re-
ferred to herein will not apply because another
union has jurisdiction or claims jurisdiction over
the work and it belongs 'to the other union by
virtue of a valid, existing collective bargaining
agreement.
In the second arbitration proceeding, the arbitrator de-
cided that the foregoing exception was intended to deal
only with the situation at the Northern Metals Com-
pany where a different union, which represented the
same kinds of employees as are represented by Local
538 (1970), Teamsters Local No. 676 (Shell Chemical Co.), 199 NLRB 445
(1972) Cf United Association ofJourneymenandApprentices ofthePlumb-
ing and Pipefttttng Industry of the United States and Canada, Local Union,
No. 208 and Local Union No. 3, AFL-CIO (Midwest Engineering Service,
Inc.), 199 NLRB 790 (1972) Chairman Miller would not, in any event, find
"work preservation" to be a defense to an 8(b)(4)(D) charge, being of the
view that "work preservation" is relevant only to determination of whether
the objective of a strike or picket activity is primary or secondary under Sec
8(b)(4)(B) of the Act "
3 International Association of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No 27 (Joseph E Seagram & Sons, Inc.),, 198
NLRB 407 ( 1972), International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No 27 (Anaconda Aluminum Company,
a Division of Anaconda Company), 207 NLRB 333 (1973)
1536, had a collective-bargaining contract with that
member of the PMTA.
The collective-bargaining agreement between Local
1332 and PMTA "covers the work pertaining to the
loading and unloading of railroad cars, trucks, teams,
lighters, barges, stripping and loading containers,
transferring freight in and out of storage places, sort-
ing, piling, palletizing and pre-palletizing, and other
miscellaneous work not performed by the longshore-
men represented by Deepsea and Coastwise Locals."
The contract also contains a prohibition against con-
tracting out "work which historically and regularly has
been and currently is performed by Employees covered
by this Agreement .. . ...
Although Local 1536's collective-bargaining agree-
ment specifically names gatemen as being covered,
whereas Local 1332's contract does not, the single gate-
man employed at Pier 179 prior to 1971 was recognized
for at least 20 years as being covered by Local 1332's
contract. We view this bargaining history as giving
some support to Local 1332's claim to the disputed
work, notwithstanding the ambiguity of the coverage
clause in its collective-bargaining agreement, and the
more explicit coverage of the Local 1536 contract.'
2. Industry and area practice
The evidence is clear that it is the practice of all other
members of the PMTA, with the exception of Northern
Metals Company, to utilize members of Local 1536 to
perform the work of gatemen. Area practice thus favors
an award to Local 1536 members.
3. Relative skills, efficiency, and economy of
operations
Local 1332 has only two members who regularly
have performed the work of gatemen, whereas Local
1536 has a large number of members who perform such
duties. Not only are the Local 1536 gatemen better
trained, their representation by the same union as
guards who are also represented by Local 1536 permits
greater flexibility in assignment of guards and gatemen.
The two classifications wear the same uniform, and
their duties overlap to some extent. Gatemen only work
the day shift, while the guards are on duty throughout
the night. The guards have responsibility for the gates
after the gatemen go off duty. Both groups are also
supervised by the same supervisor.
The factors of skills and efficiency thus favor an
award to Local 1536 members.
Chairman Miller regards both the explicit coverage of Local 1536's
contract and the arbitrator's award reinforcing the obvious coverage of that
agreement as weighty factors favoring an award here to the employees
represented by Local 1536
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The arbitration award
Local 1332 did not participate in the arbitration pro-
ceeding which culminated in the award to Local 1536.
Accordingly, we give little weight to the arbitrator's
decision.'
5. Gain or loss of work
If the disputed work is assigned to members of Local
1536, the displaced members of Local 1332 have been
assured of employment as part of the Employer's Local
1332 work force.
6. The gatemen as guards '
The gatemen appear to be guards within the meaning
of the Act. Local 1536 argues that representation of the
gatemen by Local 1332 is therefore inappropriate un-
der the Act since Local 1332 represents employees
other than guards and cannot be certified as the bar-
gaining representative of a unit of guards. Moreover, it
also argues that an award to Local 1332 would be
tantamount to Board approval of a bargaining unit
consisting of guards and nonguards which is prohibited
by Section 9(b)(3) of the Act.6
Section 9(b)(3) of the Act does not prohibit volun-
tary recognition of either a mixed guard and other
employee unit or of a labor organization which repre-
sents both kinds of employees. The prohibition is
against Board certification of unit and union. A juris-
dictional dispute award is not tantamount to a Board
certification of a unit. The Board's determination runs
in favor of a group, class, or craft of employees and not
the union which represents them. There is therefore no
legal obstacle to determination in favor of guards who
are represented by a union which also represents non-
guard employees. However, there is a very real danger
that where guards and nonguards of the same employer
belong to the same union, the conflict of loyalties
thereby created will interfere with the duties of the
guards vis-a-vis, their fellow union members. This of
course is the reason for 9(b)(3) prohibitions. The repre-
sentation of guard employees is therefore an appropri-
ate circumstance to consider in deciding the award of
disputed work. This factor favors an award to members
of Local 1536 since members of that local are not faced
5 Machinists, DistrectLodge27(Seagram & Sons), supra Chairman Miller
would give somewhat more significance to the arbitrator's interpretation of
the Local 1536 agreement here than , apparently would his colleagues See
his comments in fn 4, supra
6 Sec 9(b)(3) forbids the Board to decide that a unit is appropriate if it
includes both guards and nonguards, and forbids certification of a labor
organization as the representative of a unit of guards if the labor organiza-
tion "admits to membership, or is affiliated directly or indirectly with an
organization which admits to membership , employees other than guards "
with the same conflict of loyalties which exists for
members of Local 1332.
Upon the entire record in this proceeding and after
giving full consideration to all the relevant factors, we
shall award the work in dispute to employees repre-
sented by Local 1536 rather than to employees repre-
sented by Local 1332. In reaching this conclusion, we
have given controlling weight to the following factors:
area practice, skill, efficiency, economy, and the com-
position of membership of the competing labor organi-
zations. In making this determination , we are assigning
the disputed work to employees who are represented by
Local 1536 and not to that labor organization or its
members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act and upon the
basis of the foregoing findings and the entire record in
this case , the Board makes the following Determination
of Dispute:
1. Employees of Delaware River Terminal & Steve-
doring Co., Inc., represented by Independent Watch-
men's Association , Local 1536 , are entitled to perform
work of gatemen at both gates at Tioga Marine Termi-
nal at the Port of Philadelphia , Pennsylvania.
2. Local Union 1332, International Longshoremen's
Association , AFL-CIO, is not entitled by means pros-
cribed by Section 8(b)(4)(D) of the Act to force or
require the assignment of the above work to its mem-
bers or to employees it I;epreserts.
3. Within 10 days from the date of this Decision and
Determination of Dispute , Local Union 1332 , Interna-
tional Longshoremen 's Association , AFL-CIO, shall
notify the Regional Director for Region 4, in writing,
whether or not it will refrain from forcing or requiring
Delaware River Terminal & Stevedoring Co., Inc., by
means proscribed by Section 8(b)(4)(D ) of the Act, to
assign the above-described disputed work to employees
represented by Local 1332 rather than to employees
represented by Local 1536.
MEMBER JENKINS , dissenting:
Before the Board may proceed to a determination of
a dispute under Section 10(k) of the Act, it must be
satisfied that there is reasonable cause to believe that
Section 8 (b)(4)(D) has been violated. I am unable to
reach such a conclusion in this case and, accordingly,
I would quash the notice of hearing herein.
As fully established by the record evidence , through-
out the events involved , Local 1332 has had a collec-
tive-bargaining agreement with Delaware River Termi-
nal & Stevedoring Co., herein referred to as DRT or the
Employer . This collective-bargaining relationship has
existed for the past 30 years or more with DRT and its
predecessors who operate Pier 179 and the Tioga Ma-
LOCAL UNION 1332 , INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION, 805
rine Terminal. Under these agreements, throughout the
period and up to the present proceeding, persons repre-
sented by Local 1332 have performed the duties of
gatemen at this facility. Moreover, it is clear that the
gatemen have satisfactorily performed such duties and
it further appears that over the years the duties of the
gatemen have not changed to any significant
degree.'
The arbitration award, which resulted in the decision
to remove the gatemen's work from those represented
for some 30 years by Local 1332 and assign it to em-
ployees of Ring Detective Agency represented by Local
1536, in my view, does not warrant a conclusion that
Local 1332 was not engaged in a work preservation
dispute. Indeed, Local 1332 was not a party to that
7 Although my colleagues find that the gatemen appear to be guards
within the meaning of the Act, in my view the facts reveal that the gatemen
are essentially recordkeepers who perform no security function, and that all
of the security functions are performed by the employees of Ring Detective
Agency for whose services DRT has contracted
arbitration proceeding and did not participate in it in
any manner whatsoever. Thereafter, in a meeting with
DRT, Local 1332 indicated that it was not governed by
the arbitrator's decision since it was not a party to the
proceeding. Local 1332 further advised that it would
continue to operate under its longstanding collective-
bargaining agreement. The Employer thereafter threat-
ened to lay off the gatemen from those particular jobs,
at which point Local 1332 indicated that, if the Em-
ployer did not adhere to its collective-bargaining agree-
ment, it would picket.
On these facts, it appears to me that Local 1332 was
not asking for any assignment of gatemen's work. It
already had the work and its collective-bargaining
agreement covered the work. Instead, it merely sought
to prevent the Employer from depriving its members of
their customary work of long standing and to conform
to its collective-bargaining agreement. Such dispute, in
my view, is not the type of controversy Congress in-
tended the Board to resolve pursuant to Section
8(b)(4)(D) and Section 10(k) of the Act.