Boire v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC., 73-1003.

• Citation: 479 F.2d 778
• Decision Date: 15 June 1973
• Docket Number: No. 73-1003.,73-1003.
• Parties: Harold A. BOIRE etc., Petitioner-Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, etc., Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

479 F.2d 778 (1973)

Harold A. BOIRE etc., Petitioner-Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, etc., Respondents-Appellants.

No. 73-1003.

United States Court of Appeals, Fifth Circuit.

May 8, 1973.

Rehearing and Rehearing Denied June 15, 1973.

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L. N. D. Wells, Jr., Dallas, Tex., Frank E. Hamilton, Jr., Tampa, Fla., Gerry M. Miller, Milwaukee, Wis., for respondents-appellants.

Charles Deal, Counsel for the Gen. Counsel, Joseph V. Moran, Regional Atty., N. L. R. B., Region 12, Tampa, Fla., Julius Serot, Sp. Counsel to the Gen. Counsel, Peter G. Nash, Gen. Counsel, Marvin Roth, Supervisory Atty., N. L. R. B., Washington, D. C., for petitioner-appellee.

Granville M. Alley, Jr., Tampa, Fla., for Pilot Freight Carriers, Inc., amicus curiae.

Before RIVES, GOLDBERG and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 15, 1973.

GOLDBERG, Circuit Judge:

Section 10(j) of the N.L.R.A., 29 U. S.C. § 160(j) authorizes the District Court to grant temporary injunctive relief when unfair labor practices are pending before the N.L.R.B. when such relief would be "just and proper." In this appeal we are asked to review the propriety of a temporary injunction granted by the District Court pursuant to § 10(j). Appellants, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers and several of its affiliated locals "Teamsters" or "Union" argue that the injunctive relief that had been granted at the request of appellee Boire, the N.L. R.B. regional director, was not proper because the District Court did not have "reason to believe" that the Union was committing unfair labor practices as is required by § 10(j). We affirm.

I. BACKGROUND

A. Factual Background

Pilot Motor Freight Carriers, Inc. "Pilot"¹ is a motor carrier of general commodity freight with its principal offices in Winston-Salem, North Carolina. It is engaged in the business of transporting freight by motor vehicles pursuant to authority granted by the Interstate Commerce Commission "ICC" over routes extending from New England to the Florida Keys and as far west as Ohio. Pilot lacked authority to operate its lines in Florida until August, 1970, at which time, after five years of litigation, the ICC granted Pilot authority to extend its lines south to Florida. Within two months after receiving ICC authorization, Pilot opened Florida terminals in Jacksonville, Tampa, Hollywood and Orlando, which, when linked up with the pre-existing line, gave Pilot an integrated north-south line extending the length of the Eastern seaboard. The Florida terminal nearest to the pre-existing Pilot unit was in Jacksonville, some 260 miles from the Pilot terminal in Charleston, South Carolina.

Since 1964, Pilot has been a signatory to the National Master Freight Agreement "NMFA", which is a collective bargaining contract periodically negotiated and renewed by the Teamsters Union and a multi-employer association of which Pilot is a member. The relevant NMFA is the current one, which is effective from April 1, 1970, through June 30, 1973. This agreement covers approximately 450,000 Teamster employees of hundreds of freight industry employers, including Pilot, in a single, national multi-employer bargaining unit. Approximately 1800 Pilot employees outside of Florida are covered by the NMFA.²

Included in the NMFA are the following provisions pertinent to this appeal:

(1) The NMFA covers "all operations of the employer." (Art. 2, § 1).

(2) The only exclusions from the system-wide national unit are "those operations . . . where the employees are covered by a collective bargaining agreement with a union not a signatory" to the NMFA or those employees who have not designated a signatory union as their collective bargaining agent. (Art. 2, § 3).

(3) "The provisions of this Agreement shall apply to all accretions to the bargaining unit, including, but not limited to, newly established or acquired terminals and consolidation of terminals." (Art. 2, § 3).

(4) An extensive grievance procedure provides for arbitration of all contractual disputes with all awards being "final and binding" on the parties. (Art. 8).

Since late 1970, Pilot has operated the Florida terminals with approximately 140 non-supervisory personnel working in the job classifications of over-the-road truck drivers, local city pick-up and delivery truck drivers, and dockworkers. Unlike its terminals outside of Florida, Pilot does not directly employ the drivers and dockworkers in its Florida terminals. Rather, it uses owner-operator truck drivers and dockworkers who are employed by independent labor contractors, not by Pilot. It suffices to say that as a result of not having to employ or deal directly with its Florida workers, Pilot is able to pay them less and require more of them than it does with the unionized employees in the Pilot system outside of Florida. It is the Teamsters' attempt to represent Pilot's Florida workers that is at the heart of this lawsuit.

B. Procedural Background

Pilot operated the Florida terminals without Teamster intervention for almost 18 months in the above described non-union manner. On April 7, 1972, a series of events began that lead to the case sub judice. Within four months after April 7, 1972, the question of whether the Teamsters are entitled to represent Pilot's Florida employees was brought to litigation almost simultaneously in three separate forums: (1) an arbitration proceeding, (2) a Board unit clarification proceeding, and (3) an unfair labor practice proceeding. Each of these proceedings may be summarized briefly.

1. Arbitration. On April 7, 1972, the Union filed grievances pursuant to the NMFA claiming that the Florida operation was an accretion to the bargaining unit and that therefore, under the contract, the Teamsters were entitled to represent the Florida employees. The Union's grievance was taken to arbitration before the Southern Area Multi-State Grievance Committee and hearings were held on June 20-22. The Multi-State Committee rejected Pilot's motion to defer ruling on the grievance pending a determination by the N.L.R.B. in a unit clarification proceeding that had been filed by Pilot on May 24, 1972. On July 22 the Committee decided that Pilot's Florida operation was "covered by the terms and conditions of the NMFA and the applicable Area Supplements."

On July 16, 1972, the Union commenced strike activity to compel Pilot to comply with this award. The strike continued until July 28, at which time it was enjoined by a federal district court in North Carolina³ on the ground that the parties had not exhausted the contractual grievance procedures. Following this ruling, the grievance was heard on August 18 by the National Grievance Committee, the final arbiter of disputes under the NMFA. On August 21, the National Grievance Committee rendered its decision in favor of the Teamsters. The decision, delivered in the form of a letter, stated:

"Gentlemen:

"Please be advised that the National Grievance Committee, on August 18, 1972, adopted a motion that after reviewing the presentation of the parties and the negotiating intent, to interpret Article 2, Section 3, in the context of Articles 1 and 2 and the balance of the National Master Freight Agreement, so as to apply the provisions of the Southern Conference Road and City Supplemental Agreements to the contiguous territory and operations of Pilot Freight Carriers, Inc., included in the Public Convenience and Necessity Authority granted by the ICC in Docket No. MC—61264 SUB 16.

"This interpretation shall apply to all similar cases, and any dispute with regard to similarity shall be presented as a factual grievance through the regular grievance procedure."

On September 8, 1972, the North Carolina District Court dissolved its July 28th injunction after finding that the Committee's award "is endowed with sufficient clarity to be enforceable and fulfills the requirements of the mandatory grievance procedures contained in the NMFA." Pilot Freight Carriers, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, M.D. N.C., 1972, 353 F.Supp. 869, 871. The Court explicitly refused to decide whether the Committee's award was valid under the N.L.R.A. and deferred to the Board on that issue, taking notice of the unfair labor practice proceedings pending before the Board at that time.⁴

2. Unit Clarification Proceeding. On May 24, 1972, after the contractual grievance had been filed but prior to the hearing on the grievance, Pilot filed a unit clarification petition with the Board's Regional Office in Tampa, Florida. The petition sought to have the Board "clarify the national unit to exclude any and all Pilot employees in the State of Florida." Six days of hearings directed solely to the accretion question were held before the Regional Director in June. On July 12, the Regional Director transferred the matter to the N.L.R.B. in Washington, D. C. for decision. On August 11, the Board, unwilling or unable to decide the accretion question, remanded the case to the Regional Director in order to have further evidence taken on the issue of the status of the Florida employees as employees of independent contractors. Hearings resumed before the Regional Director on September 20, and since that time, some forty days of hearings have been held. The unit clarification proceedings, to the best of our knowledge, are still in progress.

3. Unfair Labor Practice Proceedings. On July 29, 1972, with both the contractual grievance and the unit clarification proceedings under way, Pilot filed unfair labor practice charges with the Board alleging that the Teamsters' attempts to gain representation of the Florida workers constituted a violation of § 8(b)(1)(A) of the N.L.R.A. The charged violation derived from the allegations that the Teamsters were coercing,...