Local Union 1332, Longshoremen

National Labor Relations Board - Board Decisions

Aug 25, 1975

219 N.L.R.B. 1229 (N.L.R.B. 1975)

LOCAL UNION 1332, LONGSHOREMEN 1229
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
August 25, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
other circumstances, it is not applicable here Upon the basis of the undis-
puted facts the majority decided in the 10(k) proceeding that as a matter of
law a jurisdictional dispute existed which called for a Board determination
That finding was binding on the Administrative Law Judge and we reiterate
it here
Member Jenkins, while remaining persuaded that no jurisdictional dis-
pute exists here, recognizes that the law of the case is otherwise, and there-
fore joins in finding the violation at this state of the proceeding
2 As the record, exceptions, and brief adequately present the issues and
the positions of the parties, we hereby deny Respondent's request for oral
argument
DECISION
STATEMENT OF THE CASE
On June 12, 1975, Administrative Law Judge Ben-
jamin K. Blackburn issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge I and
to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Local Union 1332, Interna-
tional Longshoremen ' s Association , AFL-CIO, Phil-
adelphia , Pennsylvania , its officers , agents, and rep-
resentatives , shall take the action set forth in the said
recommended Order.
1 In its 10(k) determination (215 NLRB No 150 (1974) ). the Board ma-
jority found that Respondent admittedly had threatened to picket the Em-
ployer if its members were replaced by members of a rival union The deci-
sion then proceeded to reject Respondent 's argument that the dispute was
not jurisdictional within the meaning of the statute because it was for "work
preservation " The Board majority stated "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 " Upon the basis of the above findings, the Board majori-
ty concluded that there was reasonable cause to believe that Sec 8(b)(4)(D)
had been violated and proceeded to a determination of the dispute
In this unfair labor practice proceeding, which is based entirely on the
record evidence introduced in the 10(k) proceeding, Respondent does not
dispute the threat to picket or the object of such threat But it argues that
the Administrative Law Judge erroneously decided that he was bound by
the Board majority's rejection of the "work preservation" defense inasmuch
as the Board in a 10(k) proceeding need decide only that "reasonable cause
to believe" exists that Sec 8(b)(4)(D) has been violated, whereas in an unfair
labor practice proceeding the violation must be proved by a "preponder-
ance of evidence " Respondent contends, therefore, the Board should recon-
sider the "work preservation" defense in light of this latter test We do not
agree The actual or potential loss of work is often the very essence of a
jurisdictional dispute Hence, whatever force this argument might have in
BENJAMIN K. BLACKBURN, Administrative Law Judge: The
charge in this case was filed on April 4, 1974. The com-
plaint was issued on January 31, 1975. The hearing was
held in Philadelphia, Pennsylvania, on April 1, 1975. The
only issue raised was whether the evidence which the
Board relied on, during the proceedings required under
Section 10(k) of the National Labor Relations Act, as
amended, in this jurisdictional dispute situation, to find it
had reasonable cause to believe Respondent had violated
Section 8(b)(4)(D) of the Act is sufficient to meet the pre-
ponderance of the evidence test which prevails at this, the
unfair labor practice stage of the case. For the reasons set
forth below, I find that it is.
Upon the entire record,' and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
As the Board has already found in its Decision and De-
termination of Dispute herein (215 NLRB No. 150), Dela-
ware River Terminal & Stevedoring Co., Inc., "is engaged
in the operation of Tioga Marine Terminal . . . in the Port
of Philadelphia, Pennsylvania. During the prior 12 months
[it] performed services valued in excess of $50,000 for per-
sons located outside the Commonwealth of Pennsylvania."
II. THE UNFAIR LABOR PRACTICE
At the hearing before me, all parties stipulated that my
decision would be based on the record made during the
10(k) hearing, held before Hearing Officer Jeffrey C. Fal-
kin on May 22, 1974. The work at issue is the jobs of two
gatemen employed by Delaware River Terminal & Steve-
doring Co., Inc. (Employer), at Tioga Marine Terminal
(TMT). The Board's Decision and Determination of Dis-
pute, issued on December 16, 1974, is the work of a three-
member Board panel. Chairman Miller and Member Ken-
nedy determined that employees represented by Indepen-
dent Watchmen's Association, Local 1536, are entitled to
perform the work rather than employees represented by
Respondent (Local 1332). Member Fanning dissented on
the ground that he was unable to reach a conclusion that
The General Counsel's motion to correct the transcript is granted
219 NLRB No. 193
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is reasonable cause to believe Section 8(b)(4)(D) has
been violated. The Board's decision reads, in pertinent
part:
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 admittedly
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
jurisdictional 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 du-
ties of gateman to an employee represented by Local
1536. However, members of Local 1332 thereupon en-
gaged 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 result-
ed 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 Employ-
er assured Respondent that compliance with the
award would not result in the discharge of the incum-
bent gatemen since they would be incorporated in its
existing Local 1332 work force . This happened as a
result of the implementation of the arbitration deci-
sion following the issuance of the 10(1) injunction.
Thus, this is not a "work preservation" dispute within
the meaning of the cases cited by Local 1332 in its
brief to the Board.2
s * s s s
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. Respondent
2International Longshoremen and Warehousemen 's Union Local 8
(Waterway Terminals Co), 185 NLRB 186 ( 1970), enforcement denied
467 F.2d 1011 (C.A. 9, 1972); Transport Workers Union of America,
AFL-CIO and Local 504 (Triangle Maintenance Corporation), 186
NLRB 538 (1970); Teamsters Local 676 (Shell Chemical Co.), 199
NLRB 445 (1972). Cf United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United States and
Canada, Local Union No 208 and Local Union No 3, AFL-CIO (Mid-
west Engineering Service, Inc), 199 NLRB 790 (1972) Chairman Mill-
er 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.
has admittedly failed to comply with the Board's Decision
and Determination of Dispute.
The only evidence of activities by Respondent during
the 10(b) period which is violative of the Act (it is the basis
for the Board's finding that "Respondent admittedly
threatened to picket") is found in the direct testimony of
Alfred J. Corry, executive secretary of Philadelphia Marine
Trade Association, an association of firms, including Dela-
ware River Terminal & Stevedoring Co., Inc., in the mari-
time industry in the Port of Philadelphia. He was called by
the Charging Party. He was asked about a meeting held in
his office on April 1, 1974. It was attended by Lucien Ed-
ward Blackwell , Local 1332's president, Charles Brown, a
business agent for Local 1332, and Abraham Freedman,
their attorney. Present for the trade association, in addition
to Corry, were F. H. Muldoon, its vice president, and
Francis A. Scanlan, its attorney. Since Corry was not cross-
examined about this incident, the following is all of the
evidence in the record as to what was said on that occa-
sion:
Q. Now will you tell us what occurred at that meet-
ing?
A. Yes, we opened up the meeting by getting into a
discussion relating to the arbitrator's second award,
and we impressed upon the union that we had no
other alternative .. .
Q. When you say we, who are you referring to?
A. I'm referring to-I was doing the speaking at the
time.
Q. All right, now what did you say?
A. And, I said that we had no other alternative but
to implement the arbitrator's award. And, a discussion
ensued then between Mr. Freedman, myself, and you
[Scanlan] on occasion were involved; and I was ad-
vised by Mr. Freedman that if we were to implement
this award he would have no other alternative but to
advise his people to picket.
Q. To picket where?
A. Tioga and 179. To that, I answered you are put-
ting us in a position that we are either damned if we
do and damned if we don't. Mr. Freedman turned to
Mr. Blackwell and asked Mr. Blackwell if it was not
true that his men would picket the pier if we imple-
mented this award; and Mr. Blackwell answered yes.
Q. By implementing the award, did you tell the
People there what decision had been made with re-
spect to the assignment?
A. Yes, we told them that we were going to assign
the work to 1536, and we also assured them that the
two gentlemen presently that were employed doing
this work would not be displaced from a job; they
would be incorporated in the regular work force of
Local 1332 at that terminal.
Q. And, by incorporating those men , did you tell
them that they would be added to the regular work
force?
A. That is correct.
LOCAL UNION 1332, LONGSHOREMEN 1231
Q. And, what happened after that?
A. Well, again there was much conversation, and
finally it broke up that we had this threat hanging over
our head; and the charge was filed with the NLRB.
Testimony as to what led up to the threat to picket, in-
cluding the 1971 work stoppage, is scattered throughout
the record. It is obviously, I think, sufficient to meet a
preponderance of the evidence test. As to the threat to
picket, since Corry's testimony is uncontroverted and since
something always outweighs nothing, there is, equally obvi-
ously, sufficient evidence to meet the preponderance test in
establishing that the threat was uttered. Respondent does
not challenge any of these findings of fact. Its brief is mere-
ly a restatement of its work preservation argument during
the 10(k) proceeding which persuaded Member Fanning
but failed to persuade Chairman Miller and Member Ken-
nedy. In urging that the 10(k) record does not measure up
to the preponderance of the evidence standard, it confuses
facts with conclusions of law as to whether a jurisdictional
dispute exists here. Since the evidence on which Chairman
Miller and Member Kennedy relied in making the findings
of fact which underlie the Board's 10(k) decision does meet
the preponderance test and since no additional evidence
was adduced before me, it follows that I am bound by the
findings of fact in that portion of the Board's Decision and
Determination of Dispute which is set forth above. On
those facts, I find that Respondent violated Section
8(b)(4)(ii)(D) of the Act on April 1, 1974, by threatening to
picket Tioga Marine Terminal if Delaware River Terminal
& Stevedoring Co., Inc., assigned the work of gatemen at
both gates of the terminal to employees represented by Lo-
cal 1536 rather than to employees represented by Respon-
dent.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Delaware River Terminal & Stevedoring Co., Inc., is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local Union 1332, International Longshoremen's As-
sociation, AFL-CIO, and Independent Watchmen's Asso-
ciation, Local 1536, are labor organizations within the
meaning of Section 2(5) of the Act.
3. Philadelphia Marine Trade Association and its mem-
ber firms are persons engaged in commerce and persons
engaged in an industry affecting commerce within the
meaning of Section 8(b)(4) of the Act.
4. By threatening to picket if Delaware River Terminal
& Stevedoring Co., Inc., assigned the work of gatemen at
both gates at Tioga Marine Terminal at the Port of Phila-
delphia, Pennsylvania, to employees represented by Local
1536 rather than to employees represented by it, Respon-
dent has violated Section 8(b)(4)(ii)(D) of the Act.
5. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER2
Respondent, Local Union 1332, International
Longshoremen 's Association AFL-CIO, Philadelphia,
Pennsylvania , its officers , agents, and representatives,
shall:
1. Cease and desist from threatening to picket or in any
other manner threatening , coercing , or restraining any per-
son engaged in commerce or in an industry affecting com-
merce , where an object thereof is forcing or requiring Dela-
ware River Terminal & Stevedoring Co., Inc., to assign the
work of gatemen at both gates at Tioga Marine at the Port
of Philadelphia , Pennsylvania , to employees represented by
it rather than to employees represented by another labor
organization or in another trade , craft , or class.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."3 Copies of said no-
tice , on forms provided by the Regional Director for Re-
gion 4 , after being duly signed by Respondent's authorized
representative , shall be posted by it immediately upon re-
ceipt thereof , and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to members are customarily posted . Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered , defaced , or covered by any other
material.
(b) Sign and mail sufficient copies to the Regional Di-
rector for Region 4, for posting by members of Philadel-
phia Marine Trade Association , such employers being will-
ing, at all places where notices to their employees are
customarily posted.
(c) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
3In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to picket or in any other man-
ner threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce,
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where an object thereof is forcing or requiring Dela- than to employees represented by another labor orga-
ware River Terminal & Stevedoring Co., Inc ., to as- nization or in another trade, craft, or class.
sign the work of gatemen at both gates at Tioga Ma-
rine Terminal at the Port of Philadelphia, LOCAL UNION 1332, INTERNATIONAL
Pennsylvania , to employees represented by us rather LONGSHOREMEN'S ASSOCIATION , AFL-CIO