Longshoremen ILA (Reserve Marine Terminals)

National Labor Relations Board - Board Decisions

Jun 14, 1995

317 N.L.R.B. 848 (N.L.R.B. 1995)

848
317 NLRB No. 121
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates hereinafter refer to 1994 unless specified otherwise.
International Longshoremen’s Association and its
Locals 19 and 1969 and Reserve Marine Ter-
minals; Hoogewerff Reserve, L.P. and Machin-
ery, Scrap Iron, Metal and Steel Chauffeurs,
Warehousemen, Handlers, Helpers, Alloy Fab-
ricators, Theatrical, Exposition, Convention
and Trade Show Employees Union, Local No.
714, affiliated with the International Brother-
hood of Teamsters, AFL–CIO. Case 13–CD–508
June 14, 1995
DECISION, DETERMINATION OF DISPUTE,
AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
The charge and amended charge in this Section
10(k) proceeding were filed November 15 and 16,
1994, respectively, by the Employer, Reserve Marine
Terminals; Hoogewerff Reserve, L.P. (Reserve), alleg-
ing that the Respondents, International Longshore-
men’s Association (the ILA), and its Locals 19 and
1969 violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity with
an object of forcing Reserve to assign certain work to
employees they represent rather than to employees rep-
resented by Machinery, Scrap Iron, Metal and Steel
Chauffeurs, Warehousemen, Handlers, Helpers, Alloy
Fabricators, Theatrical, Exposition, Convention and
Trade Show Employees Union, Local No. 714, affili-
ated with the International Brotherhood of Teamsters,
AFL–CIO (Teamsters). The hearing was held Decem-
ber 12, 1994, before Hearing Officer Paul Arola.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Reserve, an Ohio corporation, operates a site on
Lake Calumet in Chicago, Illinois, which it leases
from the Illinois International Port District, where it is
engaged in business as a shipping agent performing the
loading and unloading of cargo from lake, river, and
oceangoing vessels. During the past calendar year, Re-
serve purchased and received at its Chicago, Illinois
facility goods valued in excess of $50,000 directly
from points outside the State of Illinois. During the
same period, Reserve received gross revenues in ex-
cess of $1 million. The parties stipulated, and we find,
that Reserve is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that Inter-
national Longshoremen’s Association, its Locals 19
and 1969, and Teamsters Local 714 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
Reserve began operations in 1992, and is engaged in
business as a shipping agent performing loading and
unloading of cargo from river and lake barges and lake
and oceangoing vessels at its terminal and warehouse
at the Calumet Harbor. Reserve employs about 24 em-
ployees as crane operators, laborers, and mechanics.
These employees are represented by the Teamsters pur-
suant to a collective-bargaining agreement effective
February 3, 1992, through February 2, 1995. No other
union has ever represented Reserve’s employees.
In early 1992, a meeting was held between Reserve
and the following union representatives: Fred Woods,
president of Local 19; Felix Buchanon, business rep-
resentative of Local 19; Harrison Tyler, vice president
of the ILA; and Ray Sierra, vice president of the ILA
and business agent for Local 1969. At this meeting, the
union representatives demanded that the work of load-
ing and unloading oceangoing vessels be assigned to
ILA-represented employees. Reserve’s officials re-
sponded that the work would be assigned to Team-
sters-represented employees in accordance with its col-
lective-bargaining agreement. Thereafter, an AFL–CIO
dispute resolution panel awarded the work to employ-
ees represented by the Teamsters.
In May 1994,1 Reserve employees began unloading
and loading oceangoing vessels for the first time. Re-
serve unloaded two vessels in May and one in July,
September, October, and November.
On September 19, the oceangoing vessel Petr
Emstove arrived at Reserve’s dock and was unloaded
by Reserve’s Teamsters-represented employees. For the
next 4 days, Local 19 picketed Reserve’s main gate.
The picket signs stated that Reserve ‘‘is unfair to the
Wages, Hours, and Working Policy of ILA Local 19
. . . .’’
On September 22, Local 19 additionally picketed
Reserve in a boat in the Calumet river across from the
Petr Emstove. Because no river pilot would cross the
picket line, the ship was stranded at the dock.
On September 26, Reserve filed an 8(b)(4)(D)
charge against Local 19 in Case 13–CD–502. In a let-
ter dated October 12, Local 19 disclaimed the work of
loading and unloading cargo from oceangoing vessels
at Reserve’s terminal. Based on this disclaimer, Re-
serve withdrew its charge.
On October 13, 1 day after the disclaimer, Reserve’s
part owner and vice president, Steve Joseph, had a
meeting with ILA Vice President Sierra. Joseph testi-
fied that Sierra continued to claim the work for ILA-
represented employees. Joseph asked Sierra how he
849LONGSHOREMEN ILA (RESERVE MARINE TERMINALS)
could prevent a recurrence of the picketing. According
to Joseph’s testimony Sierra stated:
[H]e was going to keep putting the heat on [Re-
serve] and causing [it] problems, and . . . the
ILA had many millions of dollars to spend fight-
ing this and the Teamsters. [Reserve] is not going
to do this work. . . . you know if you’re not
going to use the ILA, you’re going to continue to
have problems.
On November 15, the oceangoing vessel Serenade
was scheduled to arrive at Reserve’s dock. Prior to its
arrival, Local 19 commenced picketing at the gate to
Reserve’s terminal and in a boat where the Calumet
River joins Lake Michigan. The tug boat scheduled to
escort the Serenade up the river refused to tie up to
the Serenade because of the picket boat. Reserve was
able to contract with another tug to escort the ship to
its dock. Local 19’s picketing continued on land and
water while Reserve’s employees represented by the
Teamsters unloaded the Serenade.
The unloading was scheduled to be completed on
November 19. Limited time remained for the vessel to
travel through the St. Lawrence Seaway before it
closed for the winter.
On November 15 and 16 Reserve filed charges with
the Board requesting a temporary injunction and reso-
lution of the jurisdictional dispute by the Board. On
November 18, the United States District Court for the
Northern District of Illinois granted the Board’s appli-
cation for a temporary restraining order. On December
5, after a full hearing on the Board’s petition, the court
granted the Board’s request for a temporary injunction
against the picketing.
B. Work in Dispute
The disputed work consists of the loading and un-
loading of oceangoing vessels by Reserve at its Lake
Calumet facility.
C. Contentions of the Parties
Reserve and the Teamsters contend that a jurisdic-
tional dispute exists and the Board should resolve the
dispute by awarding the disputed work to Reserve’s
employees represented by the Teamsters. They rely on
the Teamsters’ collective-bargaining agreement with
Reserve, Reserve’s preference and past practice, area
and industry practice, relative skills, and economy and
efficiency of operations.
Local 19 admits that it picketed Reserve in both
September and November, but claims that no jurisdic-
tional dispute exists because the picketing was only in-
tended to protest the Employer’s failure to conform its
wage rates to area standards. Local 19 denies that it is
bound by Sierra’s October 13 comments, and argues
that it has disclaimed any desire to have the disputed
work performed by employees it represents. Local 19
did not offer any evidence regarding the factors con-
sidered by the Board in making jurisdictional awards.
The ILA contends that it has no responsibility for
the acts of its locals, and that Sierra had no authority
to speak for the ILA concerning Local 19’s picketing.
Local 1969 did not file a brief.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
The parties stipulated that there is no agreed-on
method for voluntary adjustment of the dispute that
would bind all the parties.
To summarize, the record shows that in 1992, after
Reserve entered into a collective-bargaining agreement
with the Teamsters, ILA Vice Presidents Sierra and
Tyler, Local 19 President Woods, and Local 19 Busi-
ness Representative Buchanon demanded the work of
loading and unloading oceangoing vessels. At that
time, Reserve was not yet handling oceangoing ves-
sels. In 1994, when Reserve began performing this
work, Local 19 picketed Reserve for 4 days in Septem-
ber, allegedly for an area standards objective. On Octo-
ber 13, 1 day after Local 19 allegedly disclaimed any
interest in the oceangoing work, ILA Official Sierra
claimed the work in a meeting with Reserve. Accord-
ing to testimony presented by the Employer, Sierra
stated that he ‘‘was going to keep putting heat on’’
Reserve, that the ILA had ‘‘many millions of dollars
to spend fighting this and the Teamsters,’’ and that if
the work were not reassigned, Reserve was ‘‘going to
continue to have problems.’’ The following month Re-
serve did indeed have ‘‘problems’’—prior to the arriv-
al of the oceangoing vessel Serenade, Local 19 again
picketed Reserve.
On the basis of the foregoing, we find reasonable
cause to believe that the ILA violated Section
8(b)(4)(D) of the Act. The evidence summarized above
shows that ILA Representative Sierra claimed the
oceangoing vessel work and threatened Reserve that if
the work were not reassigned, there would be contin-
ued ‘‘heat’’ or ‘‘problems,’’ an obvious reference to
the picketing of the prior month.
We further find reasonable cause to believe that Si-
erra had apparent authority to act as Local 19’s agent
and that Local 19 violated Section 8(b)(4)(D) as well.
Thus, the record shows that representatives of the ILA
and Local 19 acted jointly in initially meeting with Re-
serve and demanding the assignment of the oceangoing
vessel work in 1992. In October 1994, Sierra again
met with Reserve and threatened to ‘‘keep’’ the
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 There is a conflict between Joseph’s testimony in this proceeding
and Sierra’s testimony in the district court proceeding concerning Si-
erra’s statement at the October 13 meeting. In a 10(k) proceeding,
however, a conflict in testimony does not prevent the Board from
finding evidence of reasonable cause and proceeding with a deter-
mination of the dispute. Thus, we need not resolve this credibility
issue, because in a 10(k) proceeding the Board is not required to
find that the unfair labor practice alleged has occurred, but need only
find that reasonable cause exists to believe that there has been a vio-
lation of Sec. 8(b)(4)(D). The Board may consider contradicted testi-
mony in finding reasonable cause. Electrical Workers IBEW Local
103 (Comm-Tract Corp.), 289 NLRB 281 (1988); Sheet Metal Work-
ers Local 107 (Lathrop Corp.), 276 NLRB 1200 (1985); Carpenters
Local 1485 (C. J. Reinke & Sons), 254 NLRB 1091 (1981).
3 Cement Masons Local 577 (Rocky Mountain Prestress), 233
NLRB 923 (1977).
‘‘heat’’ on, referring to Local 19’s picketing of the
previous month. Local 19 would be the beneficiary of
the ‘‘millions of dollars’’ that Sierra said the ILA was
prepared to spend ‘‘fighting’’ the Teamsters because
Local 19 has jurisdiction over the geographical area
that encompasses Reserve’s operations. Sierra’s pre-
diction of continued ‘‘problems’’ came true the follow-
ing month when Local 19 again picketed Reserve and
disrupted operations. Under these circumstances, an
employer would reasonably believe that Sierra was not
only a representative of the ILA, but also was speaking
on behalf of Local 19. See Dentech Corp., 294 NLRB
924 (1989).
Because of these statements by Sierra, the record
does not support a finding that the picketing had solely
an area standards purpose, even though Local 19’s
picket signs referred to Reserve’s ‘‘unfair’’ wages,
hours, and working policies. Sierra’s statements at the
October 13 meeting, for which Local 19 is responsible,
lead us to conclude that an object of Local 19’s picket-
ing was to force or require Reserve to reassign the dis-
puted work to employees represented by the ILA and
Local 19.2 Even if Local 19’s picketing had an area
standards purpose, one proscribed object is sufficient
to bring a union’s conduct within the ambit of Section
8(b)(4)(D).3
Having found that there is reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) was com-
mitted by both the ILA and Local 19, we conclude that
the dispute is properly before the Board for determina-
tion. The record, however, contains no evidence that
Local 1969 engaged in any conduct that would estab-
lish reasonable cause to believe that it violated the Act.
The fact that Sierra is also an officer of Local 1969
does not provide a sufficient basis for holding Local
1969 responsible for his conduct because there is no
evidence that he was acting in his capacity as a Local
1969 businesses agent. Cf. Teamsters Local 886 (Lee
Way Motor Freight), 229 NLRB 832 (1977) (union re-
sponsible for steward’s statements made in the area of
his apparent authority). Therefore, we will quash the
notice of hearing regarding Local 1969.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining
agreements
No party claims there are certifications applicable to
the work in dispute.
Since it began operations in 1992, Reserve has had
a collective-bargaining agreement with the Teamsters
which covers the disputed work. No other union has
ever represented Reserve’s employees. Therefore, we
find that this factor favors an award of the disputed
work to employees represented by the Teamsters.
2. Company preference and past practice
Reserve prefers that the disputed work be assigned
to employees represented by the Teamsters. Further,
Reserve has only used employees represented by the
Teamsters, and has never used employees represented
by any other union. Therefore, we find that this factor
favors employees represented by the Teamsters.
3. Area and industry practice
The record reveals that area companies use unrepre-
sented employees as well as employees represented by
the Teamsters and by the Respondents to perform work
similar to that in dispute. Therefore, we find that this
factor does not favor an award of the disputed work
to any group of employees.
4. Relative skills and safety
It is undisputed that employees represented by both
the Teamsters and Local 19 have the skills and ability
to perform the disputed work. Therefore, this factor
does not favor an award of the disputed work to either
group of employees.
5. Economy and efficiency of operations
Employees represented by Local 19 are seeking only
the work of loading and unloading oceangoing vessels.
These employees would have to be requested from a
hiring hall for this sole purpose.
The employees represented by the Teamsters are
full-time employees who perform all Reserve’s work,
including loading other vessels, railcars, and trucks, re-
851LONGSHOREMEN ILA (RESERVE MARINE TERMINALS)
binding cargo that has come apart, sorting cargo for
shipment, and performing routine maintenance on the
buildings. It is clearly more efficient to assign the dis-
puted work to Teamsters-represented employees who
can perform multiple tasks for Reserve as conditions
require than to assign the disputed work to Local 19-
represented employees who would be hired to perform
one discrete task. Thus, we find that this factor favors
an award of the disputed work to employees rep-
resented by the Teamsters.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Machinery, Scrap
Iron, Metal and Steel Chauffeurs, Warehousemen,
Handlers, Helpers, Alloy Fabricators, Theatrical, Expo-
sition, Convention and Trade Show Employees Union,
Local No. 714, affiliated with the International Broth-
erhood of Teamsters, AFL–CIO are entitled to perform
the disputed work. We reach this conclusion relying on
the factors of employer preference and past practice,
collective-bargaining agreement, and economy and ef-
ficiency of operations. In making this determination,
we are awarding the disputed work to employees rep-
resented by the Teamsters, not to that Union or its
members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Reserve Marine Terminals;
Hoogewerff Reserve, L.P., represented by Machinery,
Scrap Iron, Metal and Steel Chauffeurs, Warehouse-
men, Handlers, Helpers, Alloy Fabricators, Theatrical,
Exposition, Convention and Trade Show Employees
Union, Local No. 714, affiliated with the International
Brotherhood of Teamsters, AFL–CIO are entitled to
perform the loading and unloading of oceangoing ves-
sels at the premises of Reserve Marine Terminals;
Hoogewerff Reserve, L.P., at the Lake Calumet Harbor
in Chicago, Illinois.
2. International Longshoreman’s Association and its
Local 19 are not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force Reserve Marine
Terminals; Hoogewerff Reserve, L.P. to assign the dis-
puted work to employees they represent.
3. Within 10 days from this date, International
Longshoremen’s Association and its Local 19 shall no-
tify the Regional Director for Region 13 in writing
whether they will refrain from forcing the Employer,
by means proscribed by Section 8(b)(4)(D), to assign
the disputed work in a manner inconsistent with this
determination.
ORDER
The notice of hearing is quashed regarding Respond-
ent, International Longshoreman’s Association, Local
1969.