California Cartage Co. v. N.L.R.B.
| Decision Date | 14 July 1987 |
| Docket Number | 86-1176 and 86-1183,Nos. 86-1135,s. 86-1135 |
| Citation | 822 F.2d 1203 |
| Parties | 126 L.R.R.M. (BNA) 2566, 262 U.S.App.D.C. 141, 107 Lab.Cas. P 10,034 CALIFORNIA CARTAGE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Longshoremen's and Warehousemen's Union, et al., Pacific Maritime Association, Western Conference of Teamsters and Local Union 692, et al., Intervenors. PACIFIC MARITIME ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Longshoremen's and Warehousemen's Union, et al., Intervenors. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Western Conference of Teamsters and Local Union 692, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of an Order of the National Labor Relations Board.
Thomas Preston Burke, with whom Linda Auerbach Allderdice was on the brief for petitioner, California Cartage Co., in No. 86-1135.
Dennis A. Gladwell for Pacific Maritime Ass'n and Norman Leonard for Intern. Longshoremen's and Warehousemen's Union, with whom Kenneth W. Anderson, J. Kevin Lilly, for Pacific Maritime Ass'n, petitioner in No. 86-1176 and intervenor in No. 86-1135 and Richard S. Zuckerman, for Intern. Longshoremen's and Warehousemen's Union, petitioner in No. 86-1183 and intervenor in Nos. 86-1135 and 86-1176 were on the joint brief. William J. Kilberg also entered an appearance for petitioner/intervenor, Pacific Maritime Ass'n.
John G. Elligers, Atty., N.L.R.B., with whom Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Howard E. Perlstein, Supervisory Atty., N.L.R.B. were on the brief for respondent. Barbara Atkins, Atty., N.L.R.B. also entered an appearance for respondent.
Herman L. Wacker, with whom Charles H. Thulin was on the brief for Western Conference of Teamsters, intervenor in Nos. 86-1135, 86-1176 and 86-1183.
Before MIKVA and SILBERMAN, Circuit Judges, and MARKEY, * Chief Judge, U.S. Court of Appeals for the Federal Circuit.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Seventeen years ago, the Pacific Maritime Association ("PMA"), an association of steamship lines, stevedoring firms and marine terminal operators, and the International Longshoremen's and Warehousemen's Union ("ILWU") signed a supplement to their master collective bargaining agreement ("Supplement") under which PMA agreed that all "stuffing" and "unstuffing" of shipping containers 1 within fifty miles of West Coast ports would be performed only by longshoremen working at container freight stations belonging to PMA. 2 In June, 1971, pursuant to the Supplement, the ILWU instructed longshoremen working at PMA-member stevedoring and terminal operations not to unload or load aboard ships any containers destined for or arriving from the container freight station operated by California Cartage Company, Inc. ("CalCart"). CalCart does not belong to PMA, and employs members of the Teamsters Local 692--not longshoremen.
CalCart filed unfair labor practice charges with the NLRB in 1971, arguing that the PMA-ILWU Supplement was a "hot cargo" agreement in violation of section 8(e) of the National Labor Relations Act, 29 U.S.C. Sec. 158(e) (1970), and that ILWU attempts to enforce the Supplement constituted a secondary boycott in violation of section 8(b)(4) of the Act, 29 U.S.C. Sec. 158(b)(4) (1970). 3 The Board agreed. In a 1974 decision, the Board held the Supplement was "obviously" illegal insofar as it obligated PMA and the longshoremen to prevent steamship lines that were not members of PMA from utilizing other than longshore labor to stuff and unstuff their containers. The Board also concluded the Supplement was illegal with respect to containers of PMA members because stuffing and unstuffing containers was not the traditional work of the ILWU bargaining unit and therefore the Supplement lacked the necessary work preservation objective. ILWU (California Cartage Co., Inc.), 208 NLRB 994 (1974), aff'd sub nom. PMA v. NLRB, 515 F.2d 1018 (D.C.Cir.1975), cert. denied, 424 U.S. 942, 96 S.Ct. 1409, 47 L.Ed.2d 347 (1976).
Six years after the Board's decision, the Supreme Court decided a section 8(e) case involving a similar agreement entered into by the East Coast longshoremen's union. NLRB v. ILA, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289 (1980) ("ILA I"). Because the Supreme Court's analysis of the work preservation issue in ILA I differed fundamentally from the approach the Board had followed in the 1974 ILWU case, we granted a motion by PMA and ILWU to recall our mandate and remand the ILWU case to the Board for reconsideration in light of ILA I. On remand, in 1986, the Board held that insofar as the Supplement applied to containers owned or leased by PMA steamship lines, it had a legitimate work preservation objective and was therefore lawful. The Board adhered to its original position, however, that the Supplement violated section 8(e) as it applied to containers owned or leased by non-PMA member steamship lines, and that the ILWU had violated section 8(b)(4) by instructing its members not to handle non-PMA containers. ILWU, 278 NLRB No. 20 (1986). PMA and the ILWU both have petitioned us to set aside the portion of that decision finding unfair labor practices. CalCart, on the other hand, filed a separate petition seeking to have the whole Supplement determined illegal under section 8(e). The teamsters intervened in support of CalCart. The Board filed cross-applications to enforce its order. We uphold the Board's decision with respect to PMA containers, but remand the case for a more complete explanation as to why the Supplement is illegal with regard to non-PMA containers.
The ILWU represents a collective bargaining unit that covers stevedoring firms, marine terminal operators and steamship lines. The Board certified the unit almost fifty years ago, defining it to include all longshoremen who worked on the West Coast for companies that were members of several listed employers associations, including the predecessor of PMA. Shipowners' Association, 7 NLRB 1002, 1025 (1938). This bargaining unit was unusual in two respects. First, it included steamship lines even though they generally subcontract all longshore work to stevedoring firms and terminal operators because the steamship lines were "intimately associated with the employment of longshore labor." Id. at 1017. Second, the unit encompassed many different employers. It may have been that virtually all direct or indirect employers of longshoremen on the West Coast belonged to the listed associations and thus none fell outside the unit. 4 The Board defined the unit so broadly because of the strength shown by the employers jointly negotiating and administering labor agreements through those associations. Id. at 1024.
The ILWU's fifty-year battle to preserve the role of longshoremen on West Coast docks in the face of modernization in the methods of transporting cargo by sea is well documented in the Board's decisions. See 208 NLRB at 994-95; 278 NLRB No. 20 at 3-5. Prior to World War II, truckdrivers generally delivered outgoing cargo to docks in separate packages ("break bulk"). Longshoremen would place the individual packages on small wooden platforms ("pallets"), transport the pallets across the dock by forklift, hoist them onto a ship, and thereupon stow them in the ship's hold. The process was reversed for incoming cargo. After the war, when cargo often arrived at the docks already placed on pallets, the ILWU negotiated "make work" collective bargaining agreements that required all packages to be removed from truckers' pallets, placed loose on the floor of the dock, and then reloaded by longshoremen onto longshore pallets. As more powerful hoisting equipment became available, the ILWU negotiated further "make work" contractual provisions that limited the weight that could be lifted on each hoist. In 1960, however, the ILWU reached an agreement with PMA, the Mechanization and Modernization Agreement ("M & M Agreement"), relinquishing the inefficient rehandling requirements and weight limitations in return for employer contributions to pension and unemployment funds and a promise that longshoremen would operate new dockside equipment.
At the time the M & M Agreement was signed, only one steamship serving the West Coast had been fully converted to carry containers. During the subsequent decade, containers swept the industry. Containers could be moved across docks and loaded onto ships more efficiently than pallets, and because containers were much larger, fewer containers were needed to transport the same amount of cargo. These changes, according to the Board, caused a greater loss of longshore work than had been contemplated by the 1960 M & M Agreement. Longshoremen acquired some of the work of stuffing containers, because some cargo continued to be delivered to the docks in individual packages. But most container stuffing and unstuffing work was performed away from the docks--either at container freight stations manned by teamsters, such as the CalCart container freight station, or on the premises of the owner of the cargo. The longshoremen's efforts to take over all stuffing and unstuffing of containers (performed within fifty miles of the docks but away from the owners' premises) resulted in the Supplement that is the subject of this case.
Section 8(e) of the Act bans contracts "whereby [an] employer ... agrees to ... cease doing business with any other person." 29 U.S.C. Sec. 158(e) (1982). This provision, which is congruent with section 8(b)(4), 5 covers only "secondary" agreements. NLRB v. International Longshoremen's Ass'n, 473 U.S. 61, 105 S.Ct. 3045, 3053, 87 L.Ed.2d 47 (1985) ("ILA II"); ILA I, 447 U.S. at 504, 100 S.Ct. at 2313; NLRB v....
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