Chipman Freight Services, Inc. v. N.L.R.B., No. 87-7135

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore FLETCHER, FARRIS and O'SCANNLAIN; O'SCANNLAIN
Citation843 F.2d 1224
Parties128 L.R.R.M. (BNA) 2099, 56 USLW 2647, 108 Lab.Cas. P 10,430 CHIPMAN FREIGHT SERVICES, INC., a subsidiary of Chipman Corporation, a California corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Brotherhood of Teamsters and Auto Truckdrivers Local 70 of Alameda County, Real Party in Interest.
Docket NumberNo. 87-7135
Decision Date07 April 1988

Page 1224

843 F.2d 1224
128 L.R.R.M. (BNA) 2099, 56 USLW 2647,
108 Lab.Cas. P 10,430
CHIPMAN FREIGHT SERVICES, INC., a subsidiary of Chipman
Corporation, a California corporation, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
and
Brotherhood of Teamsters and Auto Truckdrivers Local 70 of
Alameda County, Real Party in Interest.
No. 87-7135.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Oct. 8, 1987.
Decided April 7, 1988.

George J. Tichy, II, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for petitioner.

Charles Donnelly, N.L.R.B., Washington, D.C., for respondent.

On Appeal from an Order of the National Labor Relations Board.

Before FLETCHER, FARRIS and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

Chipman Freight Services ("Chipman") appeals from an order of the National Labor Relations Board ("Board" or "NLRB") determining that a "primary" labor dispute existed between Chipman and Teamsters' Local 70 ("the Union") such that the Union's picketing on behalf of independent contractors against Chipman did not violate section 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. ("NLRA").

BACKGROUND

Chipman transports cargo in and out of its terminals using drivers who are employed

Page 1225

by it or its customers or who are independent contractor subhaulers whose services are terminable at will by either party.

In July 1985 Chipman canceled its outstanding subhaul agreements and proposed a new agreement that would substantially change the terms on which it did business with the independents. Four of the twenty-two independents entered into the new agreement. At the time, Teamsters' Local 70 was trying to organize all of the independent subhaulers in the area. Some of those used by Chipman attended Union meetings; two signed cards authorizing the Union to represent them.

At a meeting with Union representatives on August 7, some of the independents voted to picket Chipman to reinstate the old subhaul agreement; Local 70 then began picketing Chipman's terminals in their support.

Picketing continued until November 1985, when this court issued an injunction against it, pending an appeal of the decision of the U.S. District Court for the Northern District of California in Scott v. Teamsters' Local 70, 633 F.Supp. 121 (N.D.Cal.1985), that denied a temporary injunction of Local 70's picketing. The appeal in that case was dismissed as moot after the NLRB's final order dismissing Chipman's complaint was issued in this case.

STANDARD OF REVIEW

The decision of the NLRB should be upheld if the NLRB correctly applied the law and if there is substantial evidence on the record as a whole to support its findings of fact. NLRB v. International Longshoremen's Ass'n, 473 U.S. 61, 78-79, 105 S.Ct. 3045, 87 L.Ed.2d 47 (1985). In addition, the court should yield to the NLRB on its "reasonably defensible" interpretations of the National Labor Relations Act. Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979).

ANALYSIS
I

Chipman argues that Local 70's picketing is forbidden by the plain language of section 8(b):

It shall be an unfair labor practice for a labor organization or its agents ... (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce ... to engage in[ ] a strike ... or (ii) to threaten, coerce, or restrain any person engaged in commerce ... where in either case an object thereof is ... (B) forcing or requiring any person to ... cease doing business with any other person ...

Provided, [t]hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.

29 U.S.C. Sec. 158(b). The validity of its claim thus hinges on a finding that the strike by Local 70 is not a "primary strike" protected by the proviso. But section 8(b)(4)(B) nowhere defines a protected primary strike in terms of the employer-employee relation; the term has been given meaning only by judicial decision and reference to the legislation's history and that meaning has often proved elusive. See, e.g., National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 645, 87 S.Ct. 1250, 1268, 18 L.Ed.2d 357 (1967).

Chipman thus greatly oversimplifies the issue when it asserts that the court should decide the case solely on the basis of the plain language of the section.

II

Chipman presents three arguments in support of its claim that Local 70's picketing against Chipman is not protected by the "primary" picketing proviso in section 8(b)(4)(B). It argues, first, that the provisions of the NLRA were designed to protect only the rights of employees, not independent contractors; second, that a strike as defined by the LMRA is a work stoppage by employees; and, third, that a primary strike concerns only the wages, hours, or working conditions of employees.

The first argument has some persuasion....

To continue reading

Request your trial
9 practice notes
  • Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., No. 12–56427.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 2014
    ...Int'l Bhd. of Elec. Workers, Local 501 v. NLRB, 181 F.2d 34, 37 (2d Cir.1950) (Hand., J.)); see also Chipman Freight Servs. v. NLRB, 843 F.2d 1224, 1227 (9th Cir.1988). In December 2010, the district court denied the Mall's request to remand the case to state court. The district court obser......
  • Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., No. 12–56427.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 2014
    ...Int'l Bhd. of Elec. Workers, Local 501 v. NLRB, 181 F.2d 34, 37 (2d Cir.1950) (Hand., J.)); see also Chipman Freight Servs. v. NLRB, 843 F.2d 1224, 1227 (9th Cir.1988). In December 2010, the district court denied the Mall's request to remand the case to state court. The district court obser......
  • Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., No. 12–56427.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 2014
    ...Int'l Bhd. of Elec. Workers, Local 501 v. NLRB, 181 F.2d 34, 37 (2d Cir.1950) (Hand., J.)); see also Chipman Freight Servs. v. NLRB, 843 F.2d 1224, 1227 (9th Cir.1988).In December 2010, the district court denied the Mall's request to remand the case to state court. The district court observ......
  • Breed v. Hughes Aircraft Company, PLAINTIFFS-COUNTER-DEFENDANTS-APPELLANTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2001
    ...exclusive jurisdiction. 28 U.S.C. §§ 1295(a). We therefore transfer the entire case to the Federal Circuit. 28 U.S.C. §§ 1631; Brant, 843 F.2d at 1224. The clerk shall transmit all materials lodged with this court to the clerk of that TRANSFERRED. --------------- Notes: 1. Honorable Frank J......
  • Request a trial to view additional results
9 cases
  • Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., No. 12–56427.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 2014
    ...Int'l Bhd. of Elec. Workers, Local 501 v. NLRB, 181 F.2d 34, 37 (2d Cir.1950) (Hand., J.)); see also Chipman Freight Servs. v. NLRB, 843 F.2d 1224, 1227 (9th Cir.1988). In December 2010, the district court denied the Mall's request to remand the case to state court. The district court obser......
  • Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., No. 12–56427.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 2014
    ...Int'l Bhd. of Elec. Workers, Local 501 v. NLRB, 181 F.2d 34, 37 (2d Cir.1950) (Hand., J.)); see also Chipman Freight Servs. v. NLRB, 843 F.2d 1224, 1227 (9th Cir.1988). In December 2010, the district court denied the Mall's request to remand the case to state court. The district court obser......
  • Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., No. 12–56427.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 2014
    ...Int'l Bhd. of Elec. Workers, Local 501 v. NLRB, 181 F.2d 34, 37 (2d Cir.1950) (Hand., J.)); see also Chipman Freight Servs. v. NLRB, 843 F.2d 1224, 1227 (9th Cir.1988).In December 2010, the district court denied the Mall's request to remand the case to state court. The district court observ......
  • Breed v. Hughes Aircraft Company, PLAINTIFFS-COUNTER-DEFENDANTS-APPELLANTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2001
    ...exclusive jurisdiction. 28 U.S.C. §§ 1295(a). We therefore transfer the entire case to the Federal Circuit. 28 U.S.C. §§ 1631; Brant, 843 F.2d at 1224. The clerk shall transmit all materials lodged with this court to the clerk of that TRANSFERRED. --------------- Notes: 1. Honorable Frank J......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT