Longshoremen ILWU Local 14 (Sierra Pacific Industries)

National Labor Relations Board - Board Decisions

Aug 24, 1994

314 N.L.R.B. 834 (N.L.R.B. 1994)

834
314 NLRB No. 131
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates hereafter are in 1993 or early 1994, unless otherwise
specified.
2 The Samoa facility, known for many years as North Coast Ex-
ports, was purchased in January 1993 by LP.
3 Before SPI leased the 14th Street Dock in October, the dock had
been run by Vic Guynup and Sons. The dock was used exclusively
for receiving logs and shipping out lumber. Guynup employed about
10 employees to handle the lumber and logs; they were not rep-
resented by any labor organization. Guynup’s employees handled the
sorting, storing, and staging of logs and lumber at the dock.
Guynup’s employees were responsible for all moving and staging of
lumber from its arrival in the yard via truck from the mills, to plac-
ing it alongside a barge for loading. The barge company, which the
customer contracted, would arrange with a stevedoring company to
load the lumber onto the barge. Similarly, when a ship arrived load-
ed with logs at the 14th Street Dock, a stevedoring company, which
the shipping company arranged, would offload the logs onto the
dock alongside the ship. Guynup’s employees would then be respon-
sible for moving the logs into the yard for sorting, stockpiling, and
transporting out to the sawmill.
When SPI took over the dock, it hired seven of Guynup’s former
employees and they continued handling the logs and lumber in the
same manner. None of the logs received at the 14th Street Dock ever
belonged to SPI or went to SPI sawmills for processing. Likewise,
none of the lumber shipped out from the 14th Street Dock was pro-
duced by SPI.
International Longshoremen’s and Warehousemen’s
Union, Local 14 and Sierra Pacific Industries.
Case 20–CD–696
August 24, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
The charge in this Section 10(k) proceeding was
filed February 11, 1994, by the Employer (SPI), alleg-
ing that the Respondent, International Longshoremen’s
and Warehousemen’s Union, Local 14 (Local 14) vio-
lated Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with an
object of forcing the Employer to assign certain work
to employees it represents rather than to SPI’s unrepre-
sented employees. The hearing was held April 5, 1994,
before Hearing Officer Alan Nagata.
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
The Company, a California corporation with a place
of business in Eureka, California, and various other fa-
cilities in northern California, is engaged in the manu-
facture of lumber and other wood products. During the
calendar year 1993, the Company shipped from its var-
ious California facilities products, goods, and materials
valued in excess of $50,000 directly to purchasers lo-
cated outside the State of California. The parties stipu-
late, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that Local 14 is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
A byproduct of lumber manufacturing is wood
chips, which are used, inter alia, by paper manufactur-
ers to make pulp. In the course of its lumber manufac-
turing operations, SPI produces wood chips, some of
which it sold to Louisiana-Pacific (LP), another wood
products concern, until October 1993.1 The chips were
transported from four to five of SPI’s area mills by
truck to the chip shipment facility at Samoa, Cali-
fornia, on Humboldt Bay. On delivery to the Samoa
facility, the chips became the property of LP.2 Long-
shoremen employed by Westfall Stevedoring Company
and represented for collective-bargaining purposes by
Local 14 have always performed the chip-loading work
at Samoa. Westfall performed this work pursuant to
contractual arrangements between Westfall, barge and
shipping companies, LP, and the other owners of the
chips who arranged for their shipment.
Due to fluctuations in the market for wood chips,
SPI decided that it would be more economically ad-
vantageous to sell its wood chips directly to a pulp
manufacturer under a long-term arrangement, rather
than to a company (such as LP) that sold the chips to
yet another company. SPI thereafter entered into a
sales agreement with James River Corporation for the
wood chips that had previously been sold to LP. On
October 1, SPI leased the 14th Street Dock in Eureka,
California, also on Humboldt Bay, from Eureka Forest
Products and began building a chip conveyor system at
the facility so that wood chips could be shipped from
the dock directly to James River’s facility on the Co-
lumbia River.3
The sales agreement between SPI and James River
provided that the chips became James River’s property
on their delivery to the stockpile at the 14th Street
Dock. The sales agreement also provided that James
River would arrange for barges, but the agreement pro-
vided that SPI would ensure that the stockpiled chips
would be loaded onto barges. The price of chips to
James River included a fee for handling the chips in
the yard and for loading them onto the barge.
Once the chip conveyor became operational, SPI’s
employees became responsible for all aspects of han-
dling the chips. Chip trucks from the SPI sawmills
dump their loads in the yard at the 14th Street Dock
and the chips are then stockpiled in the yard. When a
835LONGSHOREMEN ILWU LOCAL 14 (SIERRA PACIFIC INDUSTRIES)
4 In October and November, Andy Westfall, an owner of Westfall
Stevedoring Co., and SPI officials had numerous discussions con-
cerning the possibility of SPI’s subcontracting the chip-loading work
to Westfall. Andy Westfall told SPI officials that his employees, rep-
resented by Local 14, performed the chip-loading work across the
bay at the LP Samoa facility. He said that Local 14 was demanding
SPI’s chip-loading work.
5 Barges were loaded December 8, 18, and 28; January 2, 5, 10,
14, 21, 27, and 28; and February 3 and 11.
barge arrives for loading, employees use front-end
loaders to push the wood chips into the reclaim pit.
The chips drop onto a conveyor belt located in the pit.
The chips move up the conveyor system to the dock
where they are loaded onto barges. The speed of the
conveyor belt and the amount of wood chips loaded
are controlled by the ‘‘button man,’’ who sits in a con-
trol booth about 60 feet above the conveyor belt.
On November 29,4 when the first barge arrived at
the 14th Street Dock to be loaded with wood chips,
Local 14 picketed outside the gate to the dock with
signs reading, ‘‘Unfair to the ILWU.’’ In a meeting
that day with Andy Westfall and Ed Bond, SPI’s
human resources manager and manager of corporate
affairs, Local 14 officials said that loading chips was
their jurisdiction and that Local 14 wanted the work.
Each subsequent time barges were loaded,5 Local 14
picketed outside the gate to the dock. On February 10,
there were 30–40 pickets at the gate, some with signs
saying, ‘‘Sierra Pacific unfair to ILWU.’’ Additionally,
there were four or five picket boats in the harbor, each
with signs and two pickets on board. The picket boats
interfered with tugboat and barge activity. Later that
day, Local 14 gave Ed Bond a press release which
stated in part, ‘‘[T]he work of loading the Barges is
ours.’’
During the time period from October through Feb-
ruary, SPI officials met on numerous occasions with
Andy Westfall and Local 14 officials to discuss resolv-
ing the matter. During these meetings, Local 14 main-
tained its position that the work of loading wood chips
onto barges was Local 14’s work. SPI maintained its
position that Local 14’s staffing requirements would
make SPI’s operation too expensive.
B. Work in Dispute
The parties agree, and we find, that the disputed
work involves chip loading, or ‘‘button man,’’ work at
SPI’s 14th Street Dock facility in Eureka, California.
The button man controls the amount of wood chips
transported on the conveyor belt and controls the speed
of the conveyor belt from a control booth located ap-
proximately 60 feet above the conveyor belt.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated because Local 14 has demanded the disputed
work and has picketed in support of its demand every
time a barge has been loaded with wood chips at the
14th Street Dock. Moreover, the Employer argues that
Local 14’s representatives have threatened to cease un-
loading logs and loading lumber if the chip-loading
work is not assigned to employees it represents. The
Employer argues that the disputed work should be
awarded to its own unrepresented employees based on
employer preference and past practice, relative skills
and training, and economy and efficiency of oper-
ations.
Local 14 contends that no jurisdictional dispute ex-
ists and that the notice of hearing should be quashed
because this case is outside the scope of Section
8(b)(4)(D) and Section 10(k). Local 14 maintains that
this case involves nothing more than its efforts to pre-
serve the chip-loading work historically performed by
employees it represents. Local 14 states that ‘‘it simply
desires that SPI do business with Westfall in order to
preserve the chip loading work traditionally performed
by Local 14’s members.’’ Local 14 also argues that the
Employer created this dispute by diverting its wood
chips to the 14th Street Dock and assigning traditional
longshore work to its own employees, relying on
Longshoremen ILWU Local 62-B (Alaska Timber) v.
NLRB, 781 F.2d 919 (D.C. Cir. 1986). Local 14 addi-
tionally relies on Teamsters Local 578 (USCP-Wesco),
280 NLRB 818 (1986), affd. 827 F.2d 581 (9th Cir.
1987); Longshoremen ILWU Local 8 (Waterway Ter-
minals), 185 NLRB 186 (1970), vacated and remanded
467 F.2d 1011 (9th Cir. 1972), on remand 203 NLRB
861 (1973); and Teamsters Local 331 (Bulletin Co.),
139 NLRB 1391 (1962). Even assuming that reason-
able cause exists to believe that Section 8(b)(4)(D) has
been violated, Local 14 contends that the disputed
work should be awarded to employees it represents
based on collective-bargaining agreements, Board cer-
tification, area and industry practice, employer past
practice, and relative skills and safety.
D. Applicability of the Statute
Before the Board may proceed with a determination
of dispute pursuant to Section 10(k) of the Act, it must
be established that reasonable cause exists to believe
that Section 8(b)(4)(D) has been violated, and that the
parties have no agreed-upon method for voluntary ad-
justment of the dispute.
The parties have stipulated that there is no agreed-
upon method for voluntary adjustment of the work dis-
pute. In addition, we find that reasonable cause exists
to believe that a violation of Section 8(b)(4)(D) has oc-
curred based on Local 14’s picketing in support of its
demand for the chip-loading work.
We reject Local 14’s argument that this case in-
volves work preservation. We note that before October
1993, the Employer simply sold and delivered its wood
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Once the chips were delivered to the Samoa facility, they became
the property of LP.
chips to another company.6 With its takeover of the
14th Street Dock, the Employer essentially embarked
on a new business venture: storage, handling, and load-
ing of wood chips. It must be emphasized that al-
though Local 14-represented employees have per-
formed chip-loading work at the Samoa facility and
have loaded lumber and offloaded logs at the 14th
Street Dock, employees represented by Local 14 have
never performed chip-loading work at the 14th Street
Dock. The Employer’s assignment of the chip-loading
work to its unrepresented employees was an original
assignment of new work at a new location; therefore,
Local 14’s claim to the chip-loading work was an at-
tempt to acquire new work, not to preserve old work.
Graphic Communications Local 732-C (Haddon
Craftsmen), 308 NLRB 1190, 1192 fn. 4 (1992).
Local 14’s reliance on Longshoremen ILWU Local
62-B (Alaska Timber) v. NLRB, 781 F.2d 919 (D.C.
Cir. 1986), is misplaced. Alaska Timber involved a
change by the employer from selling lumber products
on FAS basis to FOB basis. FAS (free along side)
basis meant that the employer sold the lumber with de-
livery alongside the ship at the employer’s dock in-
cluded. The customer would then assume responsibility
for loading the products onto the ship by arranging
with a stevedoring company to load the ship. FOB
(free on board) basis meant that the lumber was sold
to the customer with the costs and responsibility of
loading the ship included in the price. The District of
Columbia Circuit held that there was no jurisdictional
dispute within the meaning of Section 8(b)(4)(D) and
Section 10(k), finding that the employer created the
dispute when it alone made the decision to change
from FAS to FOB sales, thus effectively reassigning
the work from the stevedoring company to its own em-
ployees.
There is an important distinction between Alaska
Timber and the instant case. The work of loading the
employer’s lumber products in Alaska Timber had al-
ways existed at the employer’s dock and the employer,
when selling FAS, chose not to perform it. The need
for the work to be done remained constant. By con-
trast, until October 1993, SPI never had a chip-loading
dock facility and, consequently, never had an oppor-
tunity to elect or decline to perform the work. As stat-
ed above, SPI’s assignment of the chip-loading work
to its own employees was the original assignment of
new work at a new location.
Local 14’s reliance on Teamsters Local 578 (USCP-
Wesco), 280 NLRB 818 (1986), affd. 827 F.2d 581
(9th Cir. 1987); Longshoremen ILWU Local 8 (Water-
way Terminals), 185 NLRB 186 (1970), vacated and
remanded 467 F.2d 1011 (9th Cir. 1972), on remand
203 NLRB 861 (1973); and Teamsters Local 331 (Bul-
letin Co.), 139 NLRB 1391 (1962), is also misplaced.
Each of those cases involved efforts to reclaim work
lost when the employer entered into a subcontract with
another employer or when the employer discontinued
a subcontract and assigned the work previously per-
formed by the subcontractor to its own employees. By
contrast, in the instant case, the Employer has never
subcontracted chip-loading work. Indeed, Local 14 is
urging the Employer to subcontract the chip-loading
work to Westfall so that Local 14-represented employ-
ees will be able to perform it. That chips originally
produced by SPI may have been loaded by Local 14-
represented employees at the Samoa facility is of no
significance here. Local 14 performed the chip-loading
work at Samoa pursuant to contractual relationships
between stevedoring companies (with which Local 14
had a collective-bargaining agreement), barge and ship-
ping companies, and the owners of the chips who ar-
ranged for their shipment. SPI retained no ownership
interest in the chips and has never had a contractual
relationship with Westfall Stevedoring or with Local
14.
For two additional reasons, we find no merit in
Local 14’s argument that the instant case does not in-
volve competing claims of rival unions. First, it is well
established that a jurisdictional dispute may arise be-
tween a union and a group of unrepresented employ-
ees. See, e.g., Millwrights Local 1026 (Intercounty
Construction), 266 NLRB 1049, 1051 (1983). Second,
we have long held that a group of employees per-
forming work is evidence of their claim to that work,
even absent an explicit claim. Operating Engineers
Local 926 (Georgia World), 254 NLRB 994, 996
(1981).
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed-upon method for 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, and we deny Local
14’s motion to quash the notice of hearing.
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.
837LONGSHOREMEN ILWU LOCAL 14 (SIERRA PACIFIC INDUSTRIES)
1. Certification and collective-bargaining
agreement
The parties stipulated, and we find, that there is no
Board certification or bargaining order determining the
collective-bargaining representative of SPI’s employees
performing the work in dispute. The record shows that
SPI has never been a party to any collective-bargaining
agreement with Local 14. Further, the record shows
that SPI has never been a member of the Pacific Mari-
time Association (PMA) and is not subject to the Pa-
cific Coast Longshore Contract Document, the collec-
tive-bargaining agreement between PMA and ILWU.
Accordingly, we find that the factors of certification
and collective-bargaining agreement do not favor
awarding the disputed work to either group of employ-
ees.
2. Company preference and practice
The Employer prefers assigning the disputed work
to its unrepresented employees, as has been its practice
since it established the wood chip loading operation at
the 14th Street Dock. Accordingly, we find that these
factors favor awarding the disputed work to the Em-
ployer’s unrepresented employees.
3. Area and industry practice
The evidence regarding area and industry practice
indicates that button man work is performed by Local
14-represented employees at the LP Samoa facility
across Humboldt Bay and, additionally, that ILWU-
represented employees perform chip-loading work at
Sacramento, California; Coos Bay, Oregon; and Port-
land, Oregon; Longview, Washington; and Tacoma,
Washington. Accordingly, we find that these factors
favor awarding the disputed work to employees rep-
resented by Local 14.
4. Relative skills
The evidence concerning relative skills is mixed.
The record indicates that, because Local 14 employs a
rotational dispatch system, all members of Local 14
have had some experience loading chips at the LP
Samoa facility; however, the record shows that the
chip-loading system at the Samoa facility is different
from the system at the 14th Street Dock. The record
also reveals that all of SPI’s unrepresented employees
have been trained and have performed the button man
work since the conveyor system became operational.
Accordingly, we find that this factor does not favor
awarding the disputed work to either group of employ-
ees.
5. Economy and efficiency of operations
The record shows that SPI’s unrepresented employ-
ees interchangeably perform all the functions necessary
to carry out SPI’s wood chip, lumber, and log oper-
ations at the 14th Street Dock, including operating
heavy equipment, welding, button man, maintenance,
and others. The record also shows that the Employer
may reassign employees from one function to another
function during the workday as needed. The Employer
utilizes only one employee at a time as button man;
Local 14 requires two button men per shift in order to
provide a relief. The evidence indicates that Local 14-
represented button men perform only that work and are
not skilled in the other aspects of the Employer’s
work. The evidence also indicates that barge arrivals
are somewhat unpredictable because of weather condi-
tions; therefore, a Local 14-represented button man
team may be waiting hours for a barge to arrive and
have no work to perform in the meantime.
Accordingly, we find that this factor favors award-
ing the disputed work to the Employer’s unrepresented
employees.
Conclusions
After considering all the relevant factors, we con-
clude that SPI’s unrepresented employees are entitled
to perform the work in dispute. We reach this conclu-
sion relying on employer preference and practice, and
economy and efficiency of operations. In the cir-
cumstances of this case, we find that these factors out-
weigh the factors of area and industry practice, which
favor an award to employees represented by Local 14.
The determination is limited to the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Sierra Pacific Industries who are
not represented by any labor organization are entitled
to perform the ‘‘button man’’ work at the 14th Street
Dock in Eureka, California.
2. International Longshoremen’s and Warehouse-
men’s Union, Local 14 is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force Sierra
Pacific Industries to assign the disputed work to em-
ployees represented by it.
3. Within 10 days from this date, International
Longshoremen’s and Warehousemen’s Union, Local
14, shall notify the Regional Director for Region 20 in
writing whether it will refrain from forcing the Em-
ployer, by means proscribed by Section 8(b)(4)(D), to
assign the disputed work in a manner inconsistent with
this determination.