Compton v. National Maritime Union of America, AFL-CIO

• Citation: 533 F.2d 1270
• Decision Date: 02 April 1976
• Docket Number: 75-1450,Nos. 75-1449,AFL-CI,75-1490 and 75-1489,R,s. 75-1449
• Parties: 91 L.R.R.M. (BNA) 3048, 78 Lab.Cas. P 11,352 Raymond J. COMPTON, Regional Director, Petitioner-Appellant, v. NATIONAL MARITIME UNION OF AMERICA,espondent-Appellee, and Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District, Intervenor-Appellant, and Puerto Rico Marine Management, Inc., Intervenor-Appellant. Raymond J. COMPTON, Regional Director, Petitioner-Appellee, v. NATIONAL MARITIME UNION OF AMERICA,espondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1270

533 F.2d 1270

91 L.R.R.M. (BNA) 3048, 78 Lab.Cas. P 11,352

Raymond J. COMPTON, Regional Director, Petitioner-Appellant, v. NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, Respondent-Appellee, and Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District, Intervenor-Appellant,

and

Puerto Rico Marine Management, Inc., Intervenor-Appellant.

Raymond J. COMPTON, Regional Director, Petitioner-Appellee, v. NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, Respondent-Appellant.

Nos. 75-1449, 75-1450, 75-1490 and 75-1489.

United States Court of Appeals, First Circuit.

Argued Feb. 3, 1976.

Decided April 2, 1976.

Stanley B. Gruber, New York City, with whom Abraham E. Freedman, New York City, and Malone, McCarthy & Boluck, New York City, were on briefs, for National Maritime Union of America, AFL-CIO.

Joseph E. Mayer, Asst. Gen. Counsel, Washington, D. C., with whom John S. Irving, Jr., Gen. Counsel, Gerald Brissman, Associate Gen. Counsel, Washington, D. C., and Wilma Liebman, were on brief, for Raymond J. Compton.

Benjamin Schlesinger, New York City, with whom Schulman, Abarbanel & Schlesinger, New York City, were on briefs, for Seafarers Intern. Union of North America, Atlantic Gulf Lakes and Inland Waters District, AFL-CIO.

Fred F. Fielding, with whom Kenneth F. Hickey, Thomas K. Wotring, and Morgan, Lewis & Bockius, Washington, D. C., were on briefs, for Puerto Rico Marine Management, Inc.

Before COFFIN, Chief Judge, MATTHES ^* and McENTEE, Circuit Judges.

COFFIN, Chief Judge.

These cases are consolidated appeals from a district court order issuing a temporary injunction in a proceeding under § 10(l ) of the National Labor Relations Act (the Act), 29 U.S.C. § 160(l ) (1970). In one appeal, the National Maritime Union (NMU), respondent below, challenges that portion of the district court order finding reasonable cause to believe that NMU was engaging in conduct cognizable under the Act as a violation of §§ 8(b)(4)(B) & (D), 8(b) (7)(A), 29 U.S.C. §§ 158(b)(4)(B) & (D), 158(b)(7)(A) (1970), and enjoining such conduct pending the National Labor Relations Board's (Board's) final determination of the unfair labor practice charges. In the second case, the petitioner below, the Regional Director of Region 24 of the Board, joined by intervenors Seafarers International Union (SIU) and Puerto Rico Marine Management, Inc. (PRMMI), the charging party, appeals from that portion of the district court's order which directs PRMMI to man four roll-on, roll-off (RORO) vessels with certain specified NMU unlicensed seamen pending disposition of the unfair labor practice charges.

The underlying facts of these appeals concern a labor dispute over the proper representation of employees of PRMMI, a private corporation which serves as the managing agent for the Puerto Rico Maritime Shipping Authority (PRMSA) a governmental corporation of the Commonwealth of Puerto Rico. PRMSA owns two types of ships: eight lift-off, lift-on vessels, and four roll-on, roll-off (RORO) vessels. Until October 1, 1975, the four RORO vessels were managed by Marine Transportation Management, Inc. (MTM) which had a collective bargaining contract with NMU for its unlicensed seamen. On October 1, 1975, PRMSA consolidated all management of its vessels in PRMMI. PRMMI has a fleet-wide collective bargaining contract with SIU for all its unlicensed seamen.

Prior to the transfer, PRMMI instituted a declaratory judgment action in federal district court for the purpose of adjudicating whether NMU should continue to represent the unlicensed seamen on the RORO vessels, or whether SIU should take over this responsibility pursuant to the pre-existing fleet-wide contract. On October 2, 1975 however, PRMMI withdrew its action, informed NMU that it was recognizing SIU as the appropriate representational entity, and further informed NMU that upon the RORO vessels reaching Puerto Rico, the NMU seamen would be discharged, and replaced by SIU seamen. NMU reacted by instituting a boycott of PRMMI, their picket lines inducing several employees of other employers to refuse to handle cargo on or to PRMMI ships. Several PRMMI vessels carrying over 2000 container loads of cargo were unable to unload at the PRMMI facility of Puerto Rico alone. PRMMI complained to the Regional Director of the NLRB, who, approximately one week after the institution of the picket lines, filed an unfair labor practice complaint against NMU charging violations of § 8(b)(4)(i)(ii)(B) & (D), and § 8(b)(7)(A) of the Act. The Regional Director further sought injunctive relief against the secondary picketing of PRMMI in the district court pursuant to § 10(l ) of the Act, 29 U.S.C. § 160(l ).

NMU defended against the Board action for injunctive relief, alleging that the agency had no jurisdiction over the dispute because PRMMI was a government entity within the meaning of § 2(2) of the Act. The district court, however, found that the Regional Director had reasonable cause to believe that the Board had jurisdiction under the Act, and that the charged violations of the Act had occurred. It found injunctive relief appropriate, and issued an order enjoining NMU from picketing PRMMI in violation of the Act. The court, however, was mindful that upon a full review of the jurisdictional issue, the Board may conclude that it lacks jurisdiction and therefore would be powerless to rectify any unlawful conduct of PRMMI in firing the NMU seamen. Accordingly, the district court ordered PRMMI to rehire those seamen who manned the RORO vessels on September 30, the day before the consolidation of operations. Upon application of the Regional Director, this court granted a stay of the latter portion of the district court's order pending appeal.

These appeals raise two distinct issues. The NMU appeal challenges the district court's finding of "reasonable cause" to believe that the union violated certain sections of the Act. The union contends that PRMMI shares PRMSA's exemption from coverage of the Act under § 2(2), 29 U.S.C. § 152(2), as a political subdivision. If the district court was in error in finding reasonable cause, it would have had no jurisdiction to enter any manner of injunction in this case. ¹ Therefore, as the NMU appeal challenges both the Board's jurisdiction, and the district court's jurisdiction to enter the contested order, we will deal with that appeal first. The Regional Director's appeal concerns the power of the district court to enter an equitable decree in a § 10(l ) proceeding which is not designed solely to effectuate the purposes of the Act. It will be considered second.

If, upon investigation of §§ 8(b)(4) and 8(b)(7) charges, a regional director of Board finds that there is reasonable cause to believe such charges are true, he is directed by § 10(l ) of the Act to petition the district court for appropriate injunctive relief pending Board disposition of the unfair labor practice charges. In granting an injunction under § 10(l ), the district court must first find that the Regional Director could have " 'reasonable cause to believe' that the charges filed were true". McLeod v. National Maritime Union, 457 F.2d 490, 493 (2d Cir. 1972). In the present case, the district court made extensive findings of fact. It found that NMU had a dispute with PRMMI and PRSMA concerning the employment of the unlicensed NMU seamen on the four RORO vessels which had been transferred. It further found that NMU had established a picket line at PRMMI's premises. As a result of this picketing, longshoremen represented by another labor organization refused to cross picket lines, and trucks of two independent trucking firms were prevented from picking up or delivering cargo. The union maintained its picket lines at all PRMMI facilities without regard to whether the facility was used only for lift-on, lift-off vessels, which were not in controversy, or used for the disputed RORO vessels. Finally, the district court found that the acts of NMU induced and encouraged individuals employed by PRMMI and other persons engaged in commerce to refuse "in the course of their employment to transport, or otherwise handle cargo" with the object of forcing "PRMMI to assign the work of unlicensed personnel on the roll-on, roll-off ships to employees who are members of and represented by" NMU. As a conclusion of law, the district court found that NMU had engaged in unfair labor practices within the meaning of §§ 8(b)(4)(B) & (D) and 8(b)(7)(A).

The union does not seriously contest the district court's findings of fact concerning the actions constituting the unfair labor practice charges. Rather, NMU's sole contention on appeal is that PRMMI is not an employer within the meaning of the Act. The argument is that since PRMMI is not an employer, the acts of NMU did not have the object of "forcing or requiring any employer to assign particular work to employees in a particular labor organization . . .." as is required by § 8(b)(4)(D). As the other unfair labor practice charges are unsupported by specific findings of ultimate fact in the district court's written memorandum, see Fed.R.Civ.P. 52(a), the union contends that only the § 8(b)(4)(D) charge can sustain the injunction imposed below. ² The question on appeal, therefore is whether there is reasonable cause to believe that PRMMI does not share PRMSA's exemption under § 2(2) of the Act, and is otherwise an employer.

It is conceded by all parties that PRMSA is a "political subdivision" exempt from the Act. Under Board precedent, a private contractor which performs services for an exempt governmental agency, may or may not be deemed to share the exemption. Compare Transit Systems, Inc., 221 N.L.R.B. No. 53 (1975); ARA Services, Inc., 221 N.L.R.B. No. 16 (1975); Rural Fire Protection Co., 216 N.L.R.B. No. 95 (1975) with BDM Services Co., 218 N.L.R.B. No. 180 (1975); W. F. Lane & Associates, 218 N.L.R.B No. 74 (1974). There are two tests utilized by the Board...