Defending a labor contract. Looks like I am gonna win.

[Xicano]

I wondered if I was gonna post this, then I thought what the heck the DU usually enjoys good news on the labor front.

Anyway, I recently wrote up a complaint against one of the companies for what I see as a violation of the contract agreement we came to after the 2002 contract dispute where we were locked out for ten days. I got word yesterday that its pretty much a done deal that I am gonna easily when this case during the second arbitration we're gonna have on this case. When our labor relations rep read my complaint out loud durning the first arbitration we had on this, the look on the faces of the management reps was like they had just been handed a large unexpected fine or something. LOL



{Edited: Names}

Pursuant to the 2002 Pacific Coast Longshore And Clerks' Agreement (PCL&CA) Memorandum Of Understanding, infra, and, the National Labor Relations Act United States Code 29 U.S.C. §§158 & 160, infra. I Xxxxx Chavez #XXXXX make the following list of complaints and requests.

A complaint against ***** is raised on the basis of its use of I.T. (Information Technology) persons inconsistent with the 2002 PCL&CA Memorandum Of Understanding Section VI. titled: "Framework for Special Agreement on Application of Technologies and Preservation." Under this section it is stated:

2002 PCL&CA-MOA:

VI. Framework for Special Agreement on Application of Technologies and Preservation.

(A) Controlling Principles:


(4) In consideration for the modification and elimination of certain marine clerks’ work that may occur as a result of technology, any new marine clerks’ work created by the introduction of technology shall be assigned to marine clerks at a terminal and, thereafter, such assignment shall be construed as having the same effect as if it were an addition to Section 1 of the PCCCD at that terminal. All work created by technology or modified by technology that is functionally equivalent to the work of the marine clerks within their traditional Union jurisdiction, shall be assigned to marine clerks and remain marine clerks’ work. It is further agreed that:


(c) All work created by technology, including the operating of such technology, that is functionally equivalent to traditional marine clerks’ work shall be assigned to marine clerks.

(e) In exchange for the Employers’ right to introduce new technologies, the following work and functions shall be assigned to marine clerks at all facilities covered by the PCL&CA:


(i) Yard Planning Operations. Marine clerks shall be assigned yard planner duties and functions generally identified as directing and executing the flow of cargo, planning and determining the particular place or area on a terminal dock or container yard facility where cargo is to be placed or relocated and involving the preparation, confirmation, distribution and reconciliation of all documents required by the employer for such work, including the input of data or the utilization of computer programs. It is understood that the practice of direction of supervisors by management is recognized and shall not be disturbed.

Traditionally it has been the jurisdiction of Marine Clerks to keep track of the movements of cargo within the dock and to retrieve and compile all numbers associated with the movements of cargo within the dock.

*****, in its employment of I.T. persons, has utilized such new technology as GPS tracking and fifth wheel sensors to perform work traditionally done by Marine Clerks. Although the implementation of GPS tracking and fifth wheel sensor technologies is consistent with the the 1960 Modernization and Mechanization (M&M) agreement and the 2002 PCL&CA. It is, however, not consistent with these agreements to employ non Marine Clerks with this technology, thus, constitutes a unilateral change in the terms and condition of employment.

In addition; it has traditionally been the jurisdiction of a foreman to keep track of the movements and activities of longshoremen while in the performance of their duties. *****'s use of I.T. persons in this capacity also encroaches upon foreman jurisdiction. Also, it has traditionally been the jurisdiction of a foreman to return to the dispatch hall any longshoreman who's misconduct or evidence of misconduct was witnessed by him or herself. *****'s use of GPS tracking, fifth wheel sensors and I.T. persons to gather alleged evidence against longshoreman, and, the subsequent use of this alleged evidence to order a foremen to return to the dispatch hall a longshoreman without producing this evidence to either the foreman or business agent, ex-parte, also encroaches upon foreman jurisdiction and constitutes another unilateral change in the terms and condition of employment.

In a current complaint alleged against three longshoreman by ***** management it was noted by ***** management in an initial LRC meeting that it employed I.T. persons to record and compile clerical data from GPS tracking and fifth wheel sensors for purposes upon which these technologies were not bargained for. The subsequent ordering of the dock boss to return these three longshoremen to the dispatch hall and the complaint which followed are in fact, ex-parte, an affront to the PCL&CA and Pacific Coast Walking Bosses and Foremen's Agreement.

These unilateral changes by ***** not only violate the terms and condition of employment pursuant to both the 1960 M&M agreement and the 2002 PCL&CA-MOA, supra, but, also, are in violation of the National Labor Relations Act United States Code 29 U.S.C. §158(a)(5) & (1), infra.

In addition; these unilateral changes, erroneously assumed, by ***** offer no guarantee or protection against abuse or arbitrary accusations against anyone on the job in stark contrast with the long standing tradition between the ILWU and Management.

Pursuant to the National Labor Relations Act United States Code 29 U.S.C. §160 with respect to the 2002 PCL&CA, the 1960 M&M agreement and the United States Code 29 U.S.C. §158(a)(5) the following request is made. "To cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act."





Xxxxx Chavez #XXXX

NATIONAL LABOR RELATIONS ACT

Title 29, Chapter 7, Subchapter II, United States Code

Sections Cited NLRA; 29 U.S.C. §§ 157, 158, 159, 160

FINDINGS AND POLICIES





SECTION 8. (§ 158): UNFAIR LABOR PRACTICES

(a) Unfair Labor Pratices by Employer. It shall be an unfair labor practice for an employer--


(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 (section 157 of this title);

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) (section 159(a) of this title).

SECTION 7. (§ 157): RIGHTS OF EMPLOYEES

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) (section 158(a)(3) of this title).

SECTION 9. (§ 159): REPRESENTATIVES AND ELECTIONS

(a) Exclusive Representatives; Employees' Adjustment Of Grievances Directly With Employer.

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective- bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.

SECTION 10. (§ 160): PREVENTION OF UNFAIR LABOR PRACTICES

(c) Reduction Of Testimony To Writing; Findings And Orders Of Board.

The testimony taken by such member, agent, or agency, or the Board shall be reduced to writing and filed with the Board. Thereafter, in its discretion, the Board upon notice may take further testimony or hear argument. If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act : Provided, That where an order directs reinstatement of an employee, backpay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him: And provided further, That in determining whether a complaint shall issue alleging a violation of section 8(a)(1) or section 8(a)(2) (subsection (a)(1) or (a)(2) of section 158 of this title), and in deciding such cases, the same regulations and rules of decision shall apply irrespective of whether or not the labor organization affected is affiliated with a labor organization national or international in scope.

Such order may further require such person to make reports from time to time showing the extent to which it has complied with the order. If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing the said complaint. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was suspended or discharged for cause. In case the evidence is presented before a member of the Board, or before an administrative law judge or judges thereof, such member, or such judge or judges, as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become affective as therein prescribed.

(The title "administrative law judge" was adopted in 5 U.S.C. § 3105.)

[midnight]

1. Good luck..... I hope things go as you plan......

[Xicano]

2. Thanks midnight. I'll post the results after we have the second arbitration.

There shouldn't be no problems.


Peace,
Xicano