Local Union No. 25, A/W Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N.L.R.B.

• Decision Date: 27 October 1987
• Docket Number: No. 87-1173,87-1173
• Citation: 831 F.2d 1149
• Parties: 126 L.R.R.M. (BNA) 2886, 56 USLW 2307, 107 Lab.Cas. P 10,197 LOCAL UNION NO. 25, A/W INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Boston Deliveries, Inc., Intervenor.
• Court: U.S. Court of Appeals — First Circuit

Page 1149

831 F.2d 1149

126 L.R.R.M. (BNA) 2886, 56 USLW 2307,

107 Lab.Cas. P 10,197

LOCAL UNION NO. 25, A/W INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Boston Deliveries, Inc., Intervenor.

No. 87-1173.

United States Court of Appeals First Circuit.

Argued Sept. 16, 1987.

Decided Oct. 27, 1987.

Gabriel O. Dumont, Jr., with whom Grady, Dumont & Dwyer, Boston, Mass., was on brief, for petitioner.

David A. Fleischer, with whom Rosemary M. Collyer, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, and Elliott Moore, Deputy Associate General Counsel, Washington, D.C., were on brief, for respondent.

Robert N. House with whom Allport, Knowles, Miller & House, Cleveland, Ohio, was on brief for, intervenor.

Before BREYER and SELYA, Circuit Judges, and LAGUEUX, ^* District Judge.

SELYA, Circuit Judge.

Petitioner-appellant Local Union No. 25, an affiliate of the International Brotherhood of Teamsters, seeks to set aside certain findings of the National Labor Relations Board and to escape from the remediation imposed in consequence of those findings. The NLRB--which determined that the union had engaged in unfair labor practices in violation of Secs. 8(b)(4)(i) and 8(b)(4)(ii)(B) of the National Labor Relations Act (Act), 29 U.S.C. Secs. 158(b)(4)(i) (ii)(B) (1982),see Local Union No. 25 (Boston Deliveries, Inc.), 282 N.L.R.B. No. 138 (Jan. 30, 1987)--has cross-applied for enforcement of its remedial order. We have jurisdiction under Secs. 10(e) and (f) of the Act, 29 U.S.C. Secs. 160(e), (f) (1982). Having scrutinized the record and the parties' arguments with care, we reject Local 25's petition and enforce the Board's command.

I. LOADING UP

For many years, Boston Deliveries, Inc. (Bodeli), an intervenor herein, has been engaged in the business of providing transportation and freight handling services in the vicinity of Boston, Massachusetts. Sears, Roebuck & Co. (Sears) was Bodeli's sole customer. In addition to furnishing drivers to Sears, Bodeli also obligated itself contractually to supply "platform men and helpers," i.e., dock workers, "if requested by Sears." The agreement bound Bodeli to provide the described services, including dock work, "in accordance with [Sears'] requests." That portion of Bodeli's work force which toiled in Sears' vineyards was covered by a collective bargaining agreement between Bodeli and Local 25. The latest installment of this pact ran from April 1985 through March 1988, and was in full force and effect at all times material hereto.

Despite the fact that the freight handling contract was terminable by either party at will (on thirty days written notice), Bodeli and Sears worked hand in glove under it for over fifteen years. In November 1984, however, Sears inaugurated a new warehouse operation. It began to reserve dock work for its own staff. The following spring, six of Bodeli's employees were laid off and thereafter prosecuted grievances pursuant to the collective bargaining agreement. The sextet, claiming to have been sidelined while Sears' employees took over the platform work, sought backpay and an order requiring Bodeli to refrain from its supposed violations of the union contract. The matter was arbitrated in the predetermined manner by reference to a regional panel--NEJAC--comprised of representatives of some sixteen Teamsters' locals and an equal number of management designees. NEJAC held a hearing on July 17, 1985. Bodeli took the position that Sears had decided to use its own personnel for platform work, that Sears was entitled to do so, and that Bodeli was powerless to deter its customer. Nevertheless, NEJAC sustained the grievances.

On June 28, while the initial grievances were hanging fire, Sears sent formal written notice that it no longer needed Bodeli to perform any loading or unloading services, and that it was cancelling the contract for those services as at August 1, 1985. Bodeli informed its crew of this development. The NEJAC decision resolving the half-dozen original grievances intervened at this point, and Bodeli did not immediately respond to it. On the August 1 changeover date, however, the pot began to boil. The union struck and commenced picketing, albeit briefly. Bodeli then paid the six May/June grievants under protest, and sued in federal district court to vacate the arbitral award. Local 25 counterclaimed to enforce the award. That suit remains pending.

Subsequent to August 1, 1985, the union presented and processed a host of additional grievances, averring in substance that Sears' takeover of the platform work, and Bodeli's acquiescence in that maneuver, had caused further losses to affected union members and comprised a breach of the collective bargaining pact. NEJAC deadlocked on these remonstrances, and further arbitral proceedings have thus far proven inconclusive. On September 4, 1985, the intervenor, qua charging party, filed a complaint with the NLRB. And that fall, the union presented and processed eighteen additional grievances.

II. BOARDING UP THE LOAD

We pause at the foot of the ramp leading to our recital of the proceedings before the Board in order to remark upon some familiar topography:

[T]he NLRB's findings of fact are conclusive if bottomed upon substantial evidence in the record considered as a whole. Provided the findings are so supported the courts ought not disturb the Board's choice between competing views, or its credibility determinations. After all is said and done, conflicts and contradictions in the evidence, within the broadest of parameters, are for the Board to resolve.

Teamsters Local Union No. 42 v. NLRB, 825 F.2d 608, 612 (1st Cir.1987) (citations omitted).

A hearing on Bodeli's charge was held before an administrative law judge (ALJ). Following the hearing, the ALJ found, among other things, that: (1) Sears, not Bodeli, made the decision to shift the burden of the platform work; (2) Bodeli had not the slightest control over that decision; (3) the union's real dissatisfaction was with Sears, not Bodeli; (4) Local 25 utilized proscribed tactics, including the strike, in an attempt to force a neutral employer (Bodeli) to press Sears to restore the work; and (5) the union's course of conduct constituted an unfair labor practice. The ALJ recommended extensive remediation, to include that Local 25, its officers, agents, and representatives, cease and desist from:

(a) Registering, filing or processing grievances against Boston Deliveries, Inc., demanding compliance by Boston Deliveries, Inc. with awards obtained as a result of such grievances, or striking or picketing Boston Deliveries, Inc., where an object thereof is to force or require Boston Deliveries, Inc. to cease doing business with Sears, Roebuck & Co. or any other person.

(b) In any other manner or by any other means, engaging in or inducing or encouraging any individual employed by Boston Deliveries, Inc. or by any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to transport or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or threatening, coercing or restraining Boston Deliveries, Inc. or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Boston Deliveries, Inc. to cease doing business with Sears, Roebuck & Co. or any other person.

The ALJ also ordered that various affirmative steps be undertaken, such as the withdrawal of all pending grievances which purported to challenge Sears' assignment of platform work in-house; discontinuance of the union's counterclaim in the federal district court action; and reimbursement of the payments which had been made to the six original grievants under the NEJAC award.

The Board, for the most part, affirmed and adopted the ALJ's findings, conclusions, rulings, and remedial order. See Local Union No. 25 (Boston Deliveries, Inc.), 282 N.L.R.B. No. 138 (Jan. 30, 1987). ¹ There was, however, one point of departure. Although the Board agreed that the union's "entire course of conduct" amounted to perpetration of an unfair labor practice, it found no need "to pass on whether the [union's] filing and processing of grievances alone constitutes unlawful secondary activity." Id. at n. 1. These proceedings ensued.

III. UNLOADING THE GOODS

Section 8(b)(4)(i, ii)(B) of the Act, set out in material part in the margin, ² casts a rather large shadow over this litigation. The Board's application of the statutory principles to the case at bar was, the appellant importunes us, erroneous in two respects: first, the Board's conclusion that the union engaged in unlawful "secondary" activity was flawed by an improper focus on the right to control the disputed platform work; and second, because the activities of Local 25 "involved only the processing and enforcement of grievances" under a collective bargaining agreement, Appellant's Brief at 17, the finding of violation was an unsupportable one. We assay these contentions separately.

A. The Right to Control.

Section 8(b)(4)(i, ii)(B) represents a legislative effort to accommodate twin lines of thought, lines which can easily snarl and tangle if not held straight and true. A union has a right to press a recalcitrant employer within the limits of the law; but, management has an equal and correlative right to be protected from becoming a union pawn in an end game directed at some other employer. Thus, in enacting Sec. 8(b)(4)(i, ii)(B), Congress sought both to "preserv[e] the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and [to] shield[ ] unoffending employers and others from pressures in controversies not their own." NLRB v. Denver...