Operating Engineers Local 3 (Levin-Richmond Terminal)

National Labor Relations Board - Board Decisions

Aug 13, 1990

299 N.L.R.B. 449 (N.L.R.B. 1990)

OPERATING ENGINEERS LOCAL 3 (LEVIN-RICHMOND TERMINAL) 449
Operating Engineers Local Union No. 3 of the Inter-
national Union of Operating Engineers, AFL-
CIO and Levin-Richmond Terminal Corporation
and International Longshoremen's and Ware-
housemen's Union, Local 10, AFL-CIO. Case
32-CD-119
August 13, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charge in this Section 10(k) proceeding was
filed December 5, 1989, by the Employer, Levin-
Richmond Terminal Corporation, alleging that the
Respondent, Operating Engineers Local Union No
3 of the International Union of Operating Engi-
neers, AFL-CIO (Local 3), violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees it represents rather than to employees rep-
resented by International Longshoremen's and
Warehousemen's Union, Local 10, AFL-CIO
(ILWU) The hearing was held January 12, 1990,
before Hearing Officer Jo Ellen Marcotte
The National Labor Relations Board has delegat-
ed its authonty in this proceeding to a three-
member panel
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error On the
entire record, 1 the Board makes the following find-
ings
I JURISDICTION
The Employer, a California corporation, is en-
gaged in the loading and unloading of ships at its
Richmond, California facility During the 12
months prior to the hearing, the Employer sold
and shipped goods valued in excess of $50,000 di-
rectly to customers located outside the State of
California and during the same period, the Em-
ployer derived gross revenues in excess of
$500,000 The parties stipulate, 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 3 and the ILWU are labor organizations
within the meaning of Section 2(5) of the Act
'Subsequent to the hearing, briefs were filed by the Employer, Local
3, and the ILWU, and the Employer filed a motion for expedited resolu-
tion
II THE DISPUTE
A Background and Facts of Dispute
Levin-Richmond Terminal Corporation operates
a terminal in Richmond, California, consisting of
two docks for oceangoing vessels It performs vari-
ous operations connected with the loading and un-
loading of approximately 50-75 vessels per year Its
operations include the loading and unloading of
scrap and nonscrap materials from the vessels In-
cluded among the nonscrap materials are certain
bulk cargos such as petroleum coke, coal, bauxite,
and various agricultural products
In the course of loading and unloading vessels,
employees operate cranes to move cargo to and
from the ships While the cranes are in operation,
one person performs the function of hatch tender
The hatch tender stands on the ship, in view of the
crane operator who cannot see the bottom of the
ship's hold, and signals to the crane operator con-
cerning where to drop the cargo or where to drop
the hook or bucket of the crane to pick up cargo
After a cargo has been loaded or unloaded, an em-
ployee cleans up the remainder of the cargo, using
a sweeper or a shovel
The Employer has a collective-bargaining agree-
ment with Local 3 that covers, inter slut, hatch
tending and other unskilled labor connected with
the loading and unloading of nonscrap cargo In
addition, the Employer is party to a 1983 agree-
ment with the ILWU (the Understanding) The
Understanding, the validity of which we do not
analyze in this proceeding, provides, inter aim, that
in loading or unloading of vessels with bulk cargo,
the Employer will "order and compensate ILWU
represented persons to be designated through the
regular ILWU dispatch halls" at the rate of, inter
aim, one hatch tender and one unskilled laborer per
crane Pursuant to the Understanding, the ILWU
dispatches hatch tenders and unskilled laborers
who then report to the Employer's Richmond ter-
minal whenever it receives notices that the termi-
nal is servicing a vessel carrying bulk cargo, even
though Local 3 employees perform the work
In early December 1989, 2 the Employer con-
tracted to unload a vessel carrying a bulk cargo of
hog fuel/wood chips This cargo had never before
been handled at the Richmond terminal and the
Employer decided that, given the low value of hog
fuel, it was too costly to pay twice for hatch tend-
ing and unskilled laborer work
Thereafter, on December 5, the Employer's at-
torney spoke to Hank Munroe, the district repre-
sentative of Local 3, and indicated that the Em-
2 All dates are in 1989
299 NLRB No 56
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer had a cargo of hog fuel coming and that it
was seriously considering assigning the work of un-
loading that vessel to employees represented by the
ILWU Munroe testified that he responded that if
the Employer assigned that work to those employ-
ees, Local 3 would file a grievance, seek liquidated
damages, and would take economic action Ac-
cording to the Employer's vice president and gen-
eral manager, Thomas Peterson, when asked by the
Employer if Local 3 would picket if the Employer
assigned the work to employees represented by the
ILWU, a Local 3 representative responded, "Yes"
Following his telephone conversation with the Em-
ployer, on December 6, Munroe sent the Employer
a letter confirming the December 5 conversation
and stating that "[I]n the event you reassign our
work, we will file a grievance, seek liquidated
damages and take economic action"
B Work in Dispute
The work in dispute, as described in the notice
of hearing, is "work function associated with hatch
tending and work functions that can be performed
by unskilled laborers, such as sweeping, in connec-
tion with the loading, handling and/or unloading
of bulk cargo hog fuel/wood chips, onto or off
ships, at the Employer's Richmond, California ter-
minal " 3 However, the Employer at the hearing
sought to broaden the scope of the disputed work
to include all hatch tender and unskilled laborer
work, not just on shipments of hog fuel but on all
shipments of nonscrap cargo, including bulk or
break bulk cargo ILWU protested at that time that
it was not prepared to proceed on any issue broad-
er than that set out in the notice of hearing We
must thus determine the scope of the work in this
proceeding
The December 5 telephone conversation be-
tween the Employer's attorney and Local 3's rep-
resentative was limited to a discussion of the Em-
ployer's giving serious consideration to assignmg
the work of unloadmg the ship containing hog fuel
to employees represented by ILWU Although in
its December 6 letter to the Employer confirming
the phone call Local 3 indicated that the Employer
had threatened to reassign work that Local 3 had
"done for years," the phone conversation of De-
cember 5, in fact, was limited to a discussion of the
unloading of the vessel containing hog fuel and the
Employer gave no indication in that conversation
that the assignment extended beyond that vessel
Because of the foregoing and the fact that the
charge, the notice of hearing, and the Regional Di-
3 The work in dispute was described in a similar fashion in the charge
filed by the Employer and In a December 21, 1989 letter from the Re-
gional Director to the Employer's attorney
rector's letter to the parties clearly describe the
work in dispute as hatch tending and unskilled la-
borer work concerning the loading and unloading
of hog fuel, we deny the Employer's motion to
expand the scope of the disputed work
C Contentions of the Parties
The Employer contends that Local 3 violated
Section 8(b)(4)(D) of the Act by its December 5
threat to take economic action if the Employer as-
signed the work to employees represented by the
ILWU The Employer and Local 3 contend that
the disputed work should be awarded to employees
represented by Local 3 on the basis of Local 3's
collective-bargaining agreement, 4 the Employer's
preference and past practice, area practices, and
economy and efficiency of operation
The ILWU contends that a jurisdictional dispute
does not exist and that the notice of hearing should
be quashed Specifically, the ILWU contends that
there is no reasonable cause to believe that Section
8(b)(4)(D) has been violated because there has been
no genuine threat The ILWU also argues that,
even assuming that Local 3's threat was genuine,
this is not a jurisdictional dispute because there was
no active dispute between Local 3 and the ILWU
over the work at issue until the Employer, on its
own initiative, created the dispute by advising
Local 3 that it was considering reassignmg the
work to ILWU-represented employees The ILWU
argues that under Board precedent, specifically
Teamsters Local 107 (Safeway Stores), 134 NLRB
1320 (1961), such circumstances do not constitute a
jurisdictional dispute
D Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 discussed above, the district representative of
Local 3, Munroe, indicated that he told the Em-
ployer he would file a grievance, seek liquidated
damages, and take economic action if the Employ-
er reassigned the disputed hatch tending and un-
skilled laborer work to ILWU-represented employ-
ees The Employer's vice president and general
manager testified that Local 3 indicated that the
Union would picket if the work were reassigned
There is reasonable cause established under either
4 Only Local 3 appears to argue this basis
OPERATING ENGINEERS LOCAL 3 (LEVIN-RICHMOND TERMINAL) 451
Munroe's or Peterson's testimony 5 The ILWU
argues, however, that the threat of economic
action is a sham orchestrated by the attorneys for
Local 3 and the Employer and designed to provide
the Employer with justification for filing an
8(b)(4)(D) charge and triggering a 10(k) proceed-
ing We disagree The record shows that Local 3
threatened to take certain action if the Employer
assigned the disputed work to ILWU-represented
employees Its statement on its face constitutes a le-
gitimate threat and there is insufficient evidence to
conclude that the threat was not made seriously or
that Local 3 in any way colluded with the Em-
ployer in this manner 6
The ILWU also claims that there is no tradition-
al jurisdictional dispute but rather unilateral action
by the Employer in assigning the work to employ-
ees represented by the ILWU and that the notice
of hearing should therefore be quashed In support
of this contention, the ILWU cites Teamsters Local
107 (Safeway Stores), supra, in which the Board
held that when an employer by his unilateral action
creates the dispute by transferring work away from
the only group claiming the work, that such con-
duct does not give rise to a jurisdictional dispute
within the meaning of Sections I (k) and 8(b)(4)(D)
of the Act See 134 NLRB at 1323 This case is in-
applicable to the facts in the instant case where
both Local 3 and the ILWU have effectively
claimed the work by their past action At the least,
neither Umon has disclaimed the work
We find that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred,
that there exists no agreed-on method for voluntary
adjustment of the dispute within the meaning of
Section 10(k) of the Act, and that Teamsters Local
107 (Safeway Stores), supra, does not apply to this
situation 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)
'Regarding threats to take economic action, see, e g, Stage Employees
IATSE Local 659 (Westinghouse Broadcasting Co), 222 NLRB 1004, 1005
(1976)
° See generally Teamsters Local 6 (Anheuser-Busch), 270 NLRB 219
(1984)
The following factors are relevant in making the
determination of this dispute
1 Certifications and collective-bargaining
agreements
No party claims that there are certifications ap-
plicable to the work in dispute
Local 3's collective-bargaining agreement clearly
covers the disputed work The Understanding be-
tween the Employer and the ILWU indicates that,
"Din loading or unloading of vessels with bulk
cargo, [the Employer] will order and compensate
ILWU represented persons to be designated
through the regular ILWU dispatch halls, and this
covers one hatch tender and one unskilled laborer
per crane" We find this factor favors neither
group of employees
2 Employer preference and past practice
The Employer's practice since 1981 has been to
assign the work of hatch tending and unskilled la-
borer work to employees represented by Local 3
and it indicates that this is its present preference
Accordingly, these factors favor an award of the
disputed work to employees represented by Local
3
3 Area practice
Testimony presented at the hearing shows that
Local 3 has similar contracts covering hatch tender
and unskilled laborer work with at least five other
companies in the Bay Area Since the ILWU did
not present any comparable evidence regarding
area practice, 7 this factor favors awarding the
work to employees represented by Local 3
4 Economy and efficiency of operation
Local 3-represented employees work flexible
shifts, which enables the Employer to operate con-
tinuously for 20 hours per day while a ship is in
the berth, and to minimize environmental citations
and contamination and loss of the products the em-
ployees are loading and unloading If ILWU-repre-
sented employees were utilized to perform this
work, the Employer would incur overtime ex-
penses it does not currently have due to a workday
that starts 2 hours later than the workday of Local
3-represented employees In addition, the Employ-
er's loading and unloading operations would be
idled from 5 to 7 p m, due to the workday restric-
tions in the ILWU Master Agreement and, during
this time, the Employer would risk loss or contami-
nation of bulk products and potential environmen-
7 Evidence involving various stevedoring companies was, at the most,
inconclusive
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tal citations because bulk products would be sitting
on the dock rather than being loaded or unloaded
immediately Also, crane operators would be idled
because hatch tenders and unskilled laborers would
not be available
Accordingly, this factor favors awarding the dis-
puted work to employees represented by Local 3
Conclusion
After considenng all the relevant factors, we
conclude that employees represented by Local 3
are entitled to perform the work in dispute We
reach this conclusion by relying on the factors of
employer preference and past practice, area prac-
tice, and economy and efficiency of operation In
making this determination, we are awarding the
work to employees represented by Local 3, not to
that Union or its members The determination is
limited to the controversy that gave nse to this
proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
Employees of Levin-Richmond Terminal Corpb-
ration, represented by Operating Engineers Local
Union No 3 of the International Union of Operat-
ing Engineers, AFL-CIO, are entitled to perform
the hatch tending and unskilled laborer work con-
cerning the loading, handling, and/or unloading of
bulk cargo hog fuel/wood chips, onto or off ships,
at the Employer's Richmond, California terminal