Longshoremen Ila Local 1588 (Atlantic Cement)

National Labor Relations Board - Board Decisions

Jan 31, 1985

273 N.L.R.B. 1723 (N.L.R.B. 1985)

LONGSHOREMEN ILA LOCAL 1588 (ATLANTIC CEMENT) 1723
International Longshoremen's Association Local
1588, AFL-CIO and Atlantic Cement Company,
Inc. and International Union of Operating Engi-
neers, Local 825, AFL-CIO. Case 22-CD-429
31 January 1985
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND D ENNIS
The charge in this Section 10(k) proceeding was
filed 6 April 1984 by the Employer, alleging that
the Respondent, International Longshoremen's As-
sociation, Local 1588, AFL-CIO (ILA Local
1588), violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed ac-
tivity with an object of forcing the Employer to
assign certain work to employees it represents
rather than to employees represented by Interna-
tional Union of Operating Engineers, Local 825,
AFL-CIO (the Operating Engineers). The hearing
was held 22 May and 14, 15, and 28 June 1984
before Hearing Officers Gregory Burke and Ray-
mond Heineman.
The Board affirms the hearing officers' rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
I. JURISDICTION
The Employer, a Delaware corporation, is en-
gaged in the wholesale distribution of cement at its
terminals in Newark and Bayonne, New Jersey,
where it annually receives goods and materials
valued in excess of $50,000 from points located
outside the State of New Jersey. The parties stipu-
lated, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that ILA Local 1588 and the
Operating Engineers are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer receives and ships loads of bulk
cement at its Newark and Bayonne terminals. It
owns barges of two sizes, class A and class B
barges, which it uses to transport cement to these
two terminals. Class A barges carry 18,000 short
tons, and class B barges carry 6500 short tons. The
Employer unloads about 25 class A barges and
about 50 class B barges at both terminals combined
in 1 year. The Employer ships out the cement by
barges and by truck. It ships about two loads out
of its Bayonne terminal on its class B barges in a
year, and it ships about 50 loads out of both termi-
nals on customer barges in 1 year. The customer
barges are owned by the Employer's clients and
carry smaller loads ranging from 600 to 2500 short
tons. The Employer's truck shipments are not in-
volved in this proceeding.
On its class A and class B barges, the Employer
uses barge crews referred by International Long-
shoremen's Association, Local 333, AFL-CIO
(ILA Local 333) with which it has a collective-bar-
gaining agreement. It also employs about five or
six terminal employees, who work regular 40-hour
weeks and are represented by the Operating Engi-
neers. The most recent contract covering the ter-
minal employees is effective from 11 November
1983 to 11 November 1984. The terminal employ-
ees maintain and operate the Employer's storage fa-
cilities and the loading equipment used to load and
unload the barges and trucks; they work several
shifts so that someone is on duty around the clock
when loading or unloading operations are sched-
uled. Class A barges take from 12 to 30 hours to
unload and class B barges take from 12 to 36 hours
to unload, depending on how full they are.
For over 15 years before April 1984, the Em-
ployer also used two additional men, Joseph and
Michael Benedetto, to perform line handling and
hose hookup work at both of its terminals when
barges arrived and departed. When the Benedetto
brothers first began working at the Employer's ter-
minals, they were members of ILA Local 1588 and
were employed through John W. McGrath Co.
(McGrath), a stevedore and terminal operator that
was a member of the New York Shipping Associa-
tion (NYSA) and signatory to successive collec-
tive-bargaining agreements between NYSA and the
ILA covering longshore work in the port of New
York. Later, Joseph Benedetto transferred his
membership to International Longshoremen's Asso-
ciation, Local 901-1, AFL-CIO (ILA Local 901-
1), which represents marine carpenters employed
under the NYSA-ILA contract in the port of New
York, and McGrath was succeeded by Internation-
al Terminal Operating Co., Inc. (ITO), also a ste-
vedore and terminal operator that is a member of
NYSA and signatory to the NYSA-ILA contract.
Although the Benedettos were paid by ITO, they
had no other contact with ITO and the Employer's
Terminal Manager Giorgio kept their timesheets,
called them in to work as needed, supervised their
work, resolved their grievances, and provided
them with tools and equipment. The Benedettos
were called in to work as a team whenever a class
A or B barge was arriving or departing from either
of the Employer's terminals, an average of about
two times a week. Their line handling and hose
273 NLRB No. 212
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hookup work took about 1 hour upon the arrival
and 1 hour upon the departure of each barge, but
they were paid for the entire time the barge was
being unloaded, between 12 and 36 hours, because
they were required to remain "on call" for that
period.
Before April 1984._ the line handling and- hose
hookup work at the Employer's terminals was per-
formed as follows. When a class A or B barge ar-
rived at one of the terminals to be unloaded, the
Employer's barge - crew cast off the lines used to
secure the barge to the dock; the Benedettos
caught the lines and ,tied up the barge; the barge
crew hooked up one end of the flexible discharge
hose on the barge, placed the hose into a boom on
the barge, and swung the boom out over the dock;
the Benedettos then hooked up the other end of
the hose on the dock by removing a cover plate
and bolting the hose to the opening on the dock.
When a class .B barge arrived to be loaded, the
barge crew again cast off the lines to be tied up by
the Benedettos; the terminal employees operated a
hydraulic boom that swung a loading spout out
over the barge; and the Benedettos and, the. termi-
nal employees ,worked together to connect the
loading .spout to the scuttle opening on the barge.
Any time a class A ,or B barge departed from the
terminal, the reverse procedures occurred: As to
customer barges that arrived to be loaded, , the Ben-
edettos performed no work at all. Rather, the ter-
minal employees caught -the lines and secured the
barge to the dock, operated the hydraulic . boom to
swing a loading spout out over the barge, and con-
nected the loading spout to the hatch on the barge.
When customer barges departed, the terminal em-
ployees also performed the reverse procedures.
Over the past 15 years, the Operating Engineers
had periodically asked the Employer why it did
not use the .terminal employees to perform the line
handling and hose hookup work on all the barges.
During negotiations for a new collective-bargaining
agreement in November 1983, the ,Employer stated
it would not be "able to grant any economic in-
creases because it was losing more than $7 million
already„in 1983, and the Operating Engineers. then
demanded that the Employer stop paying the Bene-
dettos not to pork and give all the line handling
and hose hookup work to its terminal employees if
it was serious about reducing costs. The Employer
signed, an agreement with the Operating Engineers
effective 11 November 1983 that it would assign
this work to its terminal employees and made plans
to implement, the agreement in April 1984.
In late March 1984, ILA Local 1588 President
Fullam received a grievance alleging that an em-
ployee working at the Employer's terminals was
not -a longshoreman. Fullam appointed a committee
of three ILA Local 1588 officials to investigate this
grievance. The committee met with the Employer's
Terminal Manager Giorgio and Joseph Benedetto
on 2 April 1984. During this meeting, ILA Local
1588 Vice President Lachnicht told Joseph Bene-
detto, "You don't work here. You are a carpenter."
Joseph Benedetto responded that Fullam knew
about it, and the other two ILA 1588 officials said
if Fullam knew about it, "there is no problem." On
3 , April 1984, , Fullam met with Terminal Manager
Giorgio and told Giorgio that Joseph Benedetto
"don't work here no more" and that if Giorgio
needed any more men he should call the hall.
Fullam also handed Giorgio a business card with
his , name listed as president of ILA Local 1588 and
the telephone number of the ILA Local 1588
' office. On 5 April 1984 Fullam called Giorgio and
asked him to come to ILA Local 1588's office, but
, Giorgio told Fullam he should talk to Vice Presi-
dent Johnson pf the Employer's parent company,
Newmont Mining Corporation. Fullam then called
Johnson and asked when the Employer was "going
to. ,quit using the wrong ILA and start using 'the
right ILA at those two terminals." Johnson said
they were assigning the work to their own terminal
employees under an agreement with the Operating
Engineers and as a result of a review of their prac-
tice at all of their terminals they would not be
using ILA members as' supplemental labor any
More. Fullam responded; "You do that and I'll
strike you down there and tip at Brooklyn too."
Fullam continued, "I'm MA asking for anymore
people down there . . . but they will be out of my
local and not the wrong local and it 'won't be ,some
damn carpenter who shouldn't even be unloading."
Later that day, Fullam and' Lachnicht met with
Giorgio; they told him he was "running scared,"
and Lachnicht handed Giorgio a piece of paper
with Lachnicht's home - telephone number on it,
saying, "If ever you need- anybody, any time, any
day or night, you call this number."
About 6 April 1984 when 'the next barge was
scheduled to arrive at one of the Employer's termi-
nals, the Benedettos reported for work and were
prevented from entering the Employer's facility.
Since that time, the Employer's terminal employees
have performed all of 'the line handling and hose
hookup,work for barge arrivals and departures at
the Employer's Newark and Bayonne terminals.
1 Fullam denied that he inade any threats to strike or picket during this
conversation
LONGSHOREMEN ILA LOCAL 1588 (ATLANTIC CEMENT) 1725
B. Work in Dispute
The parties were unable to agree on a descrip-
tion of the work in dispute. The notice of 10(k)
hearing defines the work in dispute as:
The tie up and hook up work associated with
the unloading of cement barges at the Employ-
er's Bayonne and Newark, New Jersey docks
as performed by one of the two persons as-
signed to perform said work by or through
International Terminal Operators and its pred-
ecessor, McGrath Stevedoring Company.
The Employer took the position that this definition
was sufficient; however, ILA Local 1588 contend-
ed that it was claiming the work performed by
both Benedettos. The Operating Engineers took no
position on this issue.
We find that the work in dispute is the line han-
dling and hose hookup work associated with the
loading and unloading of class A and class B
cement barges at the Employer's Newark and Ba-
yonne, New Jersey terminals.
C. Contentions of the Parties
The Employer contends that the work should be
assigned to its employees represented by the Oper-
ating Engineers, arguing that the collective-bar-
gaining agreement, employer assignment and prac-
tice, area and industry practice, the relative skills
of the employees, and economy and efficiency of
operation all favor such a result.
ILA Local 1588 initially claims that there is no
jurisdictional dispute in this case within the mean-
ing of either Section 10(k) or Section 8(b)(4)(D) of
the Act. Thus, ILA Local 1588 contends that it
took no action against the Employer, made no
threats against the Employer, and did not cause
any employees to refuse to perform work. Further,
ILA Local 1588 argues that in disputing the Em-
ployer's assignment of this work to its terminal em-
ployees, ILA Local 1588's objective was limited
solely to the preservation of work that had tradi-
tionally been performed by the employees it repre-
sents. Alternatively, ILA Local 1588 contends that
even if a 10(k) dispute does exist, the disputed
work should be awarded to the employees it repre-
sents because of the following factors: a prior
Board certification, the NY SA-ILA contract, the
Employer's past practice, area and industry prac-
tice, and the relative skills of the employees.
D. Applicability of the Statute
Before the Board may proceed wath a determina-
tion of the 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 and that the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute.
As to the statutory requirement of reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, Vice President Johnson testified that
during the 5 April telephone conversation ILA
Local 1588 President Fullam threatened to strike
the Employer if it assigned the disputed work to its
terminal employees. Although Fullam denied
making this threat, a conflict in the testimony does
not prevent the Board from proceeding under Sec-
tion 10(k), because the Board is not charged with
finding that a violation actually occurred but only
with determining whether reasonable cause exists
for finding a violation. 2 Thus, we do not rule on
the credibility of the testimony at issue, but we find
that Johnson's testimony provides reasonable cause
to believe a threat to strike was made.
It is also clear that an object of Fullam's threat
was to force or require the assignment of the dis-
puted work to employees represented by ILA
Local 1588 rather than to employees represented
by the Operating Engineers. Fullam's statements all
show that he intended to claim this work for em-
ployees represented by his local. Further, we are
unpersuaded by ILA Local 1588's assertion that in
claiming this work it was motivated solely by a
valid work preservation objective. ILA Local 1588
never asked the Employer to keep using the two
employees who had been doing the disputed work,
i.e., the Benedettos. Instead, ILA Local 1588 di-
rected all its efforts toward acquiring this work for
its own members, even trying to get rid of one of
the Benedettos because he was a member of a dif-
ferent ILA local. Thus, Fullam told Giorgio on 3
April that Joseph Benedetto could no longer work
at the Employer's terminals because of the griev-
ance which alleged he was not a longshoreman and
that Giorgio should call the local if he needed any
more men. Fullam also asked Johnson to get rid of
Joseph Benedetto because he was a member of
ILA Local 910-1 rather than ILA Local 1588, stat-
ing on 5 April that the Employer should "quit
using the wrong ILA and start using the right ILA
at those two terminals." After Johnson told Fullam
the Employer was assigning the disputed work to
its terminal employees, Fullam reiterated this
demand, stating that the employees doing the work
"will be out of my local and not the wrong local
and it won't be some damn carpenter who
shouldn't even be unloading." Finally, ILA Local
1588 Vice President Lachnicht told Giorgio on 5
April to call Lachnicht at home if he ever needed
2 Carpenters Local 1400 (Golden State Precast), 269 NLRB 1141 (1984)
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any men. Such attempts to secure work for the
Local at the expense of the dislocated employees
show that ILA Local 1588 was merely seeking to
protect its own interests rather than to preserve the
employment of the Benedettos. Thus, ILA Local
1588 did not have a legitimate work preservation
objective. 3 Accordingly, we find that reasonable
cause exists to believe that Section 8(b)(4)(D) of
the Act has been violated.
As to the second factor, the parties stipulated,
and we find, that no agreed-upon method exists for
the voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. Accordingly,
we find that the dispute is properly before the
Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB v. Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573
(1961). The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective-bargaining
agreements
ILA Local 1588 contends that the Board certifi-
cation in New York Shipping Association, 116 NLRB
1183, 1188 (1956), covering a unit of longshore em-
ployees in the port of New York, favors an award
of the disputed work to employees it represents. In
that case, the ILA was certified to represent a mul-
tiemployer unit of "all longshore employees en-
gaged in work pertaining to the . . . loading and
unloading of cargoes, including . . . handling lines
in connection with the docking and undocking of
ships" for employer-members of NYSA. The ILA
and NYSA are parties to a master contract cover-
ing this unit. The evidence is clear, however, that
the Employer has never been a member of NYSA
and is not otherwise bound by this NYSA master
contract with regard to the line handling and hose
hookup work. ILA Local 1588 argues that the cer-
tification and contract should apply to the Employ-
er because it is a joint employer of the Benedettos
with ITO, which is a member of NYSA and a
party to the ILA contract. It is undisputed that the
3 See Boilermakers Local 6 (Pacific Far East Lines), 224 NLRB 222
(1976), Plumbers Local 208 and Local 3 (Midwest Engineering Service), 199
NLRB 790 (1972)
longshore unit involved in this certification and
covered by the NYSA-ILA contract conforms in
scope with the jurisdiction of the New York Wa-
terfront Commission, which is limited to companies
that are "carriers of freight by water" and excludes
"carriage by barge of bulk cargoes consisting of
only a single commodity." Therefore, regardless of
whether the Employer is a joint employer of the
Benedettos with ITO, the certification and the
NYSA-ILA contract do not favor an award of the
work in dispute to ILA Local 1588-represented
employees.
The Employer and the Operating Engineers are
parties to a collective-bargaining agreement cover-
ing hookup and line handling functions involved in
loading and unloading barges and specifically as-
signing this work to the Employer's terminal em-
ployees. We find that this contract supports an
award of the work to employees represented by
the Operating Engineers.
2. Company preference and past practice
The Employer has assigned the work in dispute
to its employees who are represented by the Oper-
ating Engineers, and the record indicates that the
Employer maintains a preference for this assign-
ment. Before April 1984, the Employer subcon-
tracted the work in dispute to ITO, which assigned
the work to employees represented by ILA Local
1588. Accordingly, we find that the factor of em-
ployer assignment and preference favors an award
of the work to employees represented by the Oper-
ating Engineers, but the factor of employer past
practice favors an award of the work to employees
represented by ILA Local 1588.
3. Area and industry practice
The Employer's terminal manager Giorgio testi-
fied, without contradiction, that two employers
with terminals adjacent to the Employer's terminals
regularly assign line handling and hookup work as-
sociated with the loading and unloading of barges
carrying oil and chemicals to their own terminal
employees rather than to employees referred by a
stevedore. Vice President Johnson testified, with-
out contradiction, that carriers on the east coast
and in Galveston, Texas, typically use terminal em-
ployees to perform line handling work in connec-
tion with the unloading of barges carrying cement
or petroleum products in bulk. Therefore, we find
that the factor of area and industry practice sup-
ports an award of the work to employees repre-
sented by the Operating Engineers.
LONGSHOREMEN ILA LOCAL 1588 (ATLANTIC CEMENT) 1727
4. Relative skills
The record establishes that both groups of em-
ployees have performed the disputed work. Inas-
much as there is no evidence that either group of
employees possesses significantly superior skills re-
lated to the performance of this work, we find that
this factor favors neither group of employees.
5. Economy and efficiency of operation
The record discloses that the Employer paid
ITO substantial fees for the work performed by the
two Benedettos in the year before April 1984. It is
undisputed that the Employer's terminal employees
have always been present while the Benedettos
performed the work in dispul e and that since April
1984, when the terminal employees began doing all
of the line handling and hose hookup work, the
Employer has not paid its terminal employees for
any additional hours over what it would have had
to pay them even if the Benedettos were still doing
the disputed work. Thus, it is clear that the Em-
ployer's operations are more economical and effi-
cient as a result of its assignment of this work to its
employees represented by the Operai ing Engineers.
Accordingly, we find that this factor strongly sup-
ports an award of the work to employees repre-
sented by the Operating Engineers.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by the Oper-
ating Engineers are entitled to perform the work in
dispute. We reach this conclusion relying on the
collective-bargaining agreement, employer assign-
ment and preference, area and industry practice,
and economy and efficiency of operation. In
making this determination, we are awarding the
work to employees represented by the Operating
Engineers, not to that Union or its members. The
determination is limited to the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Atlantic Cement Company, Inc.
represented by International Union of Operating
Engineers, Local 825, AFL-CIO are entitled to
perform the line handling and hose hookup work
associated with the loading and unloading of class
A and class B cement barges at Atlantic Cement
Company, Inc.'s Newark and Bayonne, New
Jersey terminals.
2. International Longshoremen's Association,
Local 1588, AFL-CIO is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to
force Atlantic Cement Company, Inc. to assign the
disputed work to employees represented by it.
3. Within 10 days from this date, International
Longshoremen's Association, Local 1588, AFL-
CIO shall notify the Regional Director for Region
22 in writing whether it will refrain from forcing
Atlantic Cement Company, Inc., by means pro-
scribed by Section 8(b)(4)(D), to assign the disput-
ed work in a manner inconsistent with this determi-
nation.