Longshoremen ILWU Local 8 (Hall-Buck Marine)

National Labor Relations Board - Board Decisions

Oct 9, 1997

324 N.L.R.B. 666 (N.L.R.B. 1997)

666
324 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer has operated Terminal 4 since 1988. Operation at
Terminal 5, the construction of which was still continuing at the
time of the hearing, began in March 1997.
International Longshoremen’s and Warehousemen’s
Union, Local 8 and Hall-Buck Marine, Inc. and
International Brotherhood of Painters and
Tapers, District Council 55. Case 36–CD–208
October 9, 1997
DECISION AND DETERMINATION
OF DISPUTE
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
The charge in this Section 10(k) proceeding was
filed April 21, 1997, alleging that the Respondent,
International Longshoremen’s and Warehousemen’s
Union, Local 8 (Longshoremen Local 8) violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of forc-
ing Hall-Buck, Inc. (the Employer) to assign certain
work to employees it represents rather than using West
Coast Marine Cleaning (West Coast Marine) whose
employees are represented by International Brother-
hood of Painters and Tapers, District Council 55
(Painters District Council 55). The hearing was held
July 1, 1997, before Hearing Officer Linda L. David-
son.
The National Labor Relations Board affirms the
hearing officer’s rulings, finding them free from preju-
dicial error. On the entire record, the Board makes the
following findings.
I. JURISDICTION
The parties stipulated that the Employer, a Louisiana
corporation, is engaged in loading and reloading of
materials from ships docked in Portland, Oregon, in-
cluding Terminals 4 and 5, and that the Employer an-
nually has gross revenues in excess of $1 million and
performs services valued in excess of $50,000 at its
Portland, Oregon facility for firms located directly out-
side the State of Oregon who are themselves directly
engaged in interstate commerce. We find that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that Longshoremen
Local 8 and Painters District Council 55 are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer operates Terminal 4 and Terminal 5
at the port of Portland. The Employer is engaged pri-
marily in unloading material from railroad cars into
storage or ships.1
The Employer had agreements with Longshoremen
Local 8 between 1988 and 1996. In 1996 the Employer
became a member of the Pacific Maritime Association
(PMA) and has since negotiated with Longshoremen
Local 8 through the PMA.
Employees represented by Longshoremen Local 8
perform the loading work at Terminal 4, including, ac-
cording to Terminal 4 Manager Brad Clinefelter, clean-
ing up spills occurring during loading operations.
Longshoremen Local 8-represented employees, how-
ever, do not do specialty cleaning work and other
cleaning work performed when employees represented
by Longshoremen Local 8 are not performing loading
work. Until 1990 that cleaning work was performed by
port of Portland maintenance employees.
In 1990 the port of Portland decided its maintenance
employees would no longer perform the cleaning work
it had been doing for the Employer at Terminal 4.
Thereafter, the Employer used West Coast Marine,
whose employees are represented by Painters District
Council 55, to perform such cleaning work at Terminal
4.
In 1997, in preparation for starting operations at
Terminal 5, the Employer and Longshoremen Local 8
could not agree on how loading operations would be
manned. As a result, the matter was arbitrated. The ar-
bitrator agreed with the Employer’s proposed manning
level.
At about the same time, bids were solicited from
companies interested in providing security services at
Terminal 5. Although an entity affiliated with ILWU
submitted a bid, the work was awarded to a security
firm whose employees were not represented by the
ILWU.
When the Employer commenced operations at Ter-
minal 5, employees represented by Longshoremen
Local 8 performed cleaning work before arrival of the
first shift several times on a trial basis. Eventually,
however, the Employer decided to use West Coast Ma-
rine whose employees are represented by Painters Dis-
trict Council 55 to perform this work.
On April 9, 1997, employees represented by Long-
shoremen Local 8 began what arbitrators found to be
a slowdown in processing railroad cars at Terminal 4.
A few days later the Employer’s northwest Regional
Manager Kevin Jones and Longshoremen Local 8’s
Vice President Will Luch had a conversation.
According to Jones, Luch was upset about the Em-
ployer’s manning of Terminal 5, the use of a non-
ILWU employer to provide security services at Termi-
nal 5, and about the cleaning issue at both terminals.
Jones testified that Luch told him that if the manning,
security, and cleaning issues could be resolved, the
productivity problem would be corrected. In his testi-
mony at the hearing, Luch admitted he stated that
cleanup issues were an area of concern. However, he
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667LONGSHOREMEN ILWU LOCAL 8 (HALL-BUCK MARINE)
2 Longshoremen Local 8 disputes the accuracy of Jones’ testimony
about what Luch said during their conversation. Longshoremen
Local 8 also contends that the evidence fails to prove there was a
slowdown. Alternatively, Longhsoremen Local 8 contends that the
slowdown occurred because employees were adhering to maritime
safety requirements.
Sec. 10(k) does not require the Board to find that a violation of
the Act occurred, but only that there is reasonable cause to believe
a violation occurred. A conflict in testimony does not prevent the
Board from proceeding with a determination of the 10(k) dispute.
Laborers Local 334 (C. H. Heist Corp.), 175 NLRB 608, 609
(1969).
denied ‘‘mention[ing] anything related to cleanup at
Terminal 5’’ and ‘‘anything specific about cleanup [at]
Terminal 4’’ during this conversation.
B. Work in Dispute
The notice of 10(k) hearing defines the disputed
work as ‘‘The cleaning and clean-up work at Terminal
4 and Terminal 5.’’ The Employer and Longshoremen
Local 8 were unable to agree that this description was
accurate.
The Employer argues that the notice’s description is
accurate. It is clear, however, from the record and its
brief that the Employer concedes the work in dispute
does not include routine cleaning work that is inciden-
tal to loading work performed by Longshoremen Local
8-represented employees. Longshoremen Local 8 ar-
gues that the description should be limited to work at
Terminal 4 that was formerly performed by employees
of the port of Portland. However, there is evidence—
specifically, based on Jones’ testimony described
above—that the dispute encompasses work at Terminal
5.
Accordingly, we find that the disputed work in-
volves the cleaning and clean-up work at Terminal 4
and Terminal 5 at the port of Portland in Portland, Or-
egon, except routine cleaning work that is incidental to
loading work performed by employees represented by
Longshoremen Local 8.
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 and that employees of West Coast Marine who
are represented by Painters District Council 55 should
be awarded the disputed work. Longshoremen Local 8
contends that the 10(k) notice should be quashed be-
cause there is no reasonable cause to believe the Act
has been violated. Alternatively, Longshoremen Local
8 contends that the disputed work should be awarded
to employees it represents. Neither West Coast Marine
nor Painters District Council 55 were formally rep-
resented at the hearing.
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 established that reasonable cause exists to be-
lieve that Section 8(b)(4)(D) has been violated. This
requires a finding that there is reasonable cause to be-
lieve that a party has used proscribed means to enforce
its claim and that there are competing claims to the
disputed work.
As explained above, the Employer is using West
Coast Marine whose employees are represented by
Painters District Council 55 to perform the disputed
work. The Employer’s testimony and documentary evi-
dence in the form of arbitration decisions indicate that
beginning April 9, 1997, employees represented by
Longshoremen Local 8 commenced a slowdown caus-
ing economic loss. As noted above, the Employer also
presented testimony that Longshoremen Local 8 sug-
gested to the Employer the slowdown would cease if
the disputed work was assigned to employees it rep-
resents.2 Thus, we find that there is reasonable cause
to believe that Longshoremen Local 8 engaged in an
economic slowdown to force the Employer to assign
the disputed work to employees it represents rather
than use West Coast Marine employees to perform the
work.
The Employer and Longshoremen Local 8 agree that
there is no method for voluntary adjustment of the
work dispute which would bind all the parties.
Based on the above, 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 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. Board certifications
In 1938 the Board certified International Longshore-
men’s and Warehousemen’s Union to represent a mul-
tiemployer unit of all employees engaged in
‘‘longshore work in the Pacific Coast ports of the
United States’’ for the employer-members of associa-
tions which were the predecessors of PMA. As noted
above, the Employer is a member of the PMA. Long-
shoremen Local 8, relying on this certification, con-
tends that this factor favors an award of the disputed
work to employees it represents.
The Board has previously noted that this certifi-
cation predates many developments in the shipping in-
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668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dustry. See Longshoremen ILWU Local 19 (West Coast
Container Service), 266 NLRB 193, 196 (1983), and
cases cited therein. As in West Coast Container Serv-
ice, with respect to the cleaning work at dispute in this
case, we find the certification for ‘‘longshore work’’ is
vague and of relatively minor significance. Accord-
ingly, we find that, although this certification favors an
award of the disputed work to employees represented
by Longshoremen Local 8, it is a factor entitled to rel-
atively little weight.
2. Collective-bargaining agreements
Longshoremen Local 8 introduced an agreement
with the Employer effective from 1993 through June
30, 1996. It contends that this agreement is still in ef-
fect and argues that language in the agreement covers
the work in dispute. The Employer, however, intro-
duced evidence showing that it timely terminated the
1993 agreement and that it now negotiates through the
PMA. Because of the conflict in the evidence, we can-
not find that the agreement on which Longshoremen
Local 8 relies was in effect at the time of the dispute
in this case.
Although other contracts were alluded to during the
hearing, neither the Employer nor Longshoremen Local
8 argues that those contracts cover the work in dispute.
Accordingly, we find that this factor favors neither
group of employees.
3. Employer preference
The Employer prefers that the work in dispute be
done by West Coast Marine whose employees are rep-
resented by Painters District Council 55. This factor
favors awarding the work in dispute to West Coast
Marine employees represented by Painters District
Council 55.
4. Employer past practice
We find that the record supports the Employer’s
claim that its practice has been to use West Coast Ma-
rine whose employees are represented by Painters Dis-
trict Council 55 to perform the disputed work. This
factor favors awarding the work in dispute to West
Coast Marine employees represented by Painters Dis-
trict Council 55.
5. Area and industry practice
Regarding area practice, there is evidence that em-
ployees represented by both unions perform work simi-
lar to the disputed work. Accordingly, we find that the
factor of area practice is inconclusive.
Although Longshoremen Local 8 relies on the factor
of industry practice as supporting an award to the em-
ployees it represents, the testimony it presented at the
hearing relates primarily to the practice of other em-
ployers on the West Coast and does not extend to the
practice throughout the industry. We find that there is
insufficient evidence in the record to determine if there
is a prevailing industry practice with respect to work
similar to the disputed work. Accordingly, we con-
clude that that the factor of industry practice is also in-
conclusive.
6. Relative skills
There is insufficient evidence to determine whether
employees represented by Longshoremen Local 8 or
West Coast Marine employees represented by Painters
District Council 55 are better qualified to perform the
disputed work. Accordingly, we find that this favor is
neutral.
7. Economy and efficiency of operations
West Coast Marine provides its employees with a
vacuum truck to perform the disputed work, while the
Employer would need to purchase such equipment if
the disputed work were assigned to employees rep-
resented by Longshoremen Local 8. Thus, it is clearly
more economical for the Employer to utilize West
Coast Marine employees to perform the disputed work.
Accordingly, we find that this factor favors award-
ing the work in dispute to West Coast Marine employ-
ees represented by Painters District Council 55.
Conclusions
After considering all the relevant factors, we con-
clude that employees of West Coast Marine Cleaning
represented by Painters District Council 55 are entitled
to perform the work in dispute. We reach this conclu-
sion relying on employer preference, past practice, and
economy and efficiency of operations, which we find
outweigh the factor of Board certifications. In making
this determination, we are awarding the work to em-
ployees of West Coast Marine Cleaning represented by
Painters District Council 55, not to that union or its
members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of West Coast Marine Cleaning rep-
resented by International Brotherhood of Painters and
Tapers, District Council 55 are entitled to perform the
cleaning and clean-up work at Terminal 4 and Termi-
nal 5 at the port of Portland in Portland, Oregon, ex-
cept the routine cleaning work that is incidental to
loading work performed by employees represented by
International Longshoremen’s and Warehousemen’s
Union, Local 8.
2. International Longshoremen’s and Warehouse-
men’s Union, Local 8 is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force Hall-
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669LONGSHOREMEN ILWU LOCAL 8 (HALL-BUCK MARINE)
Buck, Inc. to assign the disputed work to employees
represented by it.
3. Within 10 days from this decision, International
Longshoremen’s and Warehousemen’s Union, Local 8
shall notify the Regional Director in writing whether it
will refrain from forcing the Employer, by means pro-
scribed by Section 8(b)(4)(D), to assign the disputed
work in a manner inconsistent with the determination
here.
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