Henderson v. INTERNATIONAL LONGSHORE. & WU LOC. 50

• Decision Date: 26 April 1972
• Docket Number: 26529.,No. 26468,26468
• Citation: 457 F.2d 572
• Parties: Charles M. HENDERSON, Regional Director of Region 19 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 50, International Union of Operating Engineers Local 701, Respondents, International Union of Operating Engineers Local 701, Appellant. PACIFIC MARITIME ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.2d 572 (1972)

Charles M. HENDERSON, Regional Director of Region 19 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 50, International Union of Operating Engineers Local 701, Respondents, International Union of Operating Engineers Local 701, Appellant.

PACIFIC MARITIME ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 26468, 26529.

United States Court of Appeals, Ninth Circuit.

March 14, 1972.

As Amended on Denial of Rehearing April 26, 1972.

Don S. Willner (argued), of Willner, Bennett & Leonard, Portland, Or., for International Union of Operating Engineers Local 701.

Glen Bendixsen (argued), Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D.C., Norman Leonard, of Gladstein, Leonard, Patsey & Andersen, Richard Ernst, San Francisco, Cal., Raymond J. Conboy, Dale B. Cubbison, N.L. R.B., Don W. Willner, Portland, Or., for National Labor Relations Bd.

Richard Ernst, San Francisco, Cal., for Pacific Maritime Assn.

Before CHAMBERS, KOELSCH, and BROWNING, Circuit Judges.

BROWNING, Circuit Judge:

This case raises issues involving the interrelationship of sections 8(b) (4) (D),¹ 10(k),² and 10(l)³ of the Labor Management Relations Act.

A dispute arose between the Longshoremen's union and the Operating Engineers' union as to jurisdiction over the work of operating water-borne cranes loading logs aboard vessels at the port of Astoria, Oregon. The jobs were held by members of the Operating Engineers' union. The Longshoremen's union struck, demanding the work for its members. The employers replaced the operating engineers with longshoremen. The Operating Engineers' union then picketed the employers.

The Operating Engineers' union filed charges under section 8(b) (4) (D) against the Longshoremen's union. The employers filed section 8(b) (4) (D) charges against the Operating Engineers' union. The Board instituted section 10(k) proceedings to resolve the jurisdictional dispute between the two unions. The Board also sought injunctive relief under section 10(l) against both unions, and such relief was granted. The Operating Engineers' union appealed. We affirmed. Henderson for and on Behalf of National Labor Relations Board v. International Union of Operating Engineers, Local 701, 420 F.2d 802 (9th Cir. 1969).

The section 10(k) proceeding resulted in a Board decision awarding the disputed work to employees represented by the Operating Engineers' union. The Board held that the Longshoremen's union was "not entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require the Employers to assign the above work to longshoremen represented by it." 181 N.L.R.B. 315, 317 (1970). The Longshoremen's union was given ten days to notify the Board whether it would comply. The Longshoremen's union and the employers petitioned the Board for a stay of its decision. The application was denied.

The Longshoremen's union and the employers filed petitions in this court under section 10(f) seeking review of the Board's section 10(k) determination. In an unreported order we dismissed the petitions for lack of jurisdiction, citing NLRB v. International Longshoremen's & Warehousemen's Union, 378 F.2d 33, 35-36 (9th Cir. 1967).

In the meantime, following the Board's section 10(k) award of the work to members of the Operating Engineers' union, the Regional Director dismissed the section 8(b) (4) (D) charges against the Operating Engineers' union, and advised the employers that no complaint would be filed on those charges.⁴ Armed with this dismissal, the Operating Engineers' union moved for dissolution of the section 10(l) injunction as to it. The district court denied the motion, and the Operating Engineers' union appeals in No. 26,468. An amicus brief was filed on behalf of the employers by the Pacific Maritime Association, an employer association.⁵

The employers also filed a petition (No. 26,529) seeking review of the Regional Director's dismissal of the section 8(b) (4) (D) charges against the Operating Engineers' union, and the Board's refusal to stay its section 10(k) determination awarding the work to members of the Operating Engineers' union. The Board has moved to dismiss the employers' petition on the ground that neither of these administrative actions is subject to judicial review.

The basic issue we are asked to decide is whether a union whose members are awarded disputed work in a section 10(k) proceeding remains subject to a section 10(l) injunction unless and until the opposing union has voluntarily acceded to the Board's award or the award has been confirmed by judicial review. The Operating Engineers' union insists that when the section 10(k) award is made and section 8(b) (4) (D) charges against the prevailing union are dismissed, the section 10(l) injunction against that union terminates and it may use economic pressure to enforce the section 10(k) award. The employers argue that voluntary compliance or judicial review must precede economic sanctions.

We resolve this central issue in favor of the Operating Engineers' union in light of the Supreme Court's reasoning in Sears, Roebuck & Co. v. Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union, 397 U.S. 655, 90 S.Ct. 1299, 25 L.Ed.2d 637 (1970), and NLRB v. Plasterers' Local Union, 404 U.S. 116, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971)—the latter announced after the submission of these cases for decision in this court.

In Sears the Supreme Court held that a section 10(l) injunction terminates when the Board decides the underlying unfair labor practice charge. The Court rejected the argument that such an injunction "would remain in effect until the Board's order was either enforced or denied enforcement by the Court of Appeals." 397 U.S. at 658, 90 S.Ct. at 1301. With respect to a situation like that in this case, the Court said, "where the Board ultimately finds no unfair labor practice, it would clearly be contrary to the policies of the Act to permit a district court injunction to remain in effect pending Court of Appeals review of the District Court's action" (659, 90 S.Ct. at 1301).

The employers argue that Sears is inapplicable to this case. They point out that the charge in Sears was secondary picketing in violation of section 8(b) (4) (B) rather than a jurisdictional strike in violation of section 8(b) (4) (D), and therefore there was no section 10(k) proceeding in Sears. They contend that where the charge is under section 8(b) (4) (D) and section 10(k) is invoked, as here, the "final adjudication of the Board" under section 10(l) is defined by the last sentence of section 10(k). See note 2. Admittedly, there has been neither a voluntary adjustment of the dispute nor compliance with the section 10(k) award in this case. Accordingly, the employers argue, their unfair labor practice charge against the Operating Engineers' union should not have been dismissed, and there has been no lawful "final adjudication by the Board" within the meaning of section 10(l). They conclude that the district court properly refused to vacate the section 10(l) injunction.

The Supreme Court rejected the premises of this argument in NLRB v. Plasterers' Local Union, supra. The Court stated that when the striking union "wins the § 10(k) decision and the employer does not comply, the employer's § 8(b) (4) (D) case evaporates and the charges he filed against the picketing union will be dismissed." 404 U.S. at 127, 92 S.Ct. at 367. This dismissal, the Court noted, "will not be pursuant to the language of § 10(k) directing dismissal upon `compliance by the parties to the dispute with the decision of the Board' but rather under § 8(b) (4) (D) because the `employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.'" Id. at 127 n. 19, 92 S.Ct. at 367.

Thus, dismissal of the section 8(b) (4) (D) charge against the Operating Engineers' union was not contingent upon voluntary adjustment of the underlying dispute or compliance with the Board's section 10(k) decision, as the employers contend. Rather, dismissal was required because the employers' disregard of the section 10(k) determination was within the exception to section 8(b) (4) (D), and therefore a strike against the employers was no longer a violation of that section.

Section 10(l) was not mentioned in Plasterers' Local Union, but the Court's logic and language convinces us that dismissal of the section 8(b) (4) (D) claim against the union prevailing in the section 10(k) proceeding requires termination of any section 10(l) injunction against that union, leaving it free to engage in economic coercion to obtain the jobs for its members.

The Court said:

"Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10(k) decision, but both will lose their § 8(b) (4) (D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board\'s decision. This is the design of the Act; Congress provided no other way to implement the Board\'s § 10(k) decision." 404 U.S. at 127, 92 S.Ct. at 367.⁶

This language contemplates that the union prevailing in the section 10(k) proceeding shall have the immediate right to picket a noncomplying employer. To preclude such self-help by continuing a section 10(l) injunction against the union awarded the disputed work would be inconsistent with the "design of the Act."⁷

Conversely, the section 8(b) (4) (D) charge against the Longshoremen's union remained alive because of their refusal to comply with the work assignment award. The section 10(l) injunction therefore continued against the Longshoremen's union until the Board's final adjudication of the charges against it. See...