Henderson v. International Union of Op. Eng., Local 701

• Decision Date: 11 December 1969
• Docket Number: No. 24285.,24285.
• Citation: 420 F.2d 802
• 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, Appellee, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 701, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

420 F.2d 802 (1969)

Charles M. HENDERSON, Regional Director of Region 19 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellee, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 701, Appellant.

No. 24285.

United States Court of Appeals Ninth Circuit.

December 11, 1969.

COPYRIGHT MATERIAL OMITTED

Don S. Willner (argued), of Willner, Bennett & Leonard, Portland, Or., for appellant.

Julius G. Gerot (argued), Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Richard Ernst and Dennis Daniels, Gladstein, Anderson, Leonard & Sibbett, San Francisco, Cal., Dale B. Cubbison, Atty., N. L. R. B., Frank H. Pozzi, Marshall C. Cheney, Jr., Portland, Or., for appellee.

Before HAMLEY and HUFSTEDLER, Circuit Judges, and LEVIN, District Judge.^*

HAMLEY, Circuit Judge:

This is an appeal from a district court order granting a temporary injunction pursuant to a petition filed on behalf of the National Labor Relations Board (Board) under section 10(l) of the National Labor Relations Act, as amended (Act), 29 U.S.C. § 160(l).

The essential facts are not in dispute and the summary thereof, set out below, is taken largely from the Board's brief on this appeal. Pacific Maritime Association (PMA) is an association of employers engaged in shipping, stevedoring and terminal business at ports in California, Oregon and Washington. Among it members are Brady Hamilton Stevedore Company (Brady) and W. J. Jones & Sons, Inc. (Jones), both of which are engaged in loading logs on vessels at the Port of Astoria, Oregon. Both employ longshoremen who are members of, or are represented by International Longshoremen's and Warehousemen's Union Local 50 (Longshoremen). PMA and Longshoremen are parties to an existing collective bargaining agreement the terms of which are binding upon Brady and Jones.

Since November, 1966, Brady has leased waterborne cranes, also known as floating whirley cranes, from Willamette-Western Corporation (Willamette) under bareboat charter agreements, for use in Brady's Astoria operations. Under these arrangements, Willamette provided Brady with employees to man the cranes. These employees were furnished to Brady on a "loaned" basis, and during the time of such "loan," they were to be "deemed for all purposes the employees of Brady." The employees received their wages from Willamette, which billed Brady for "labor costs referable to such employees." Pursuant to similar arrangements, Jones leased water-borne cranes from General Construction Company (General) for use by Jones in its Port of Astoria operations.

The crane operators and oilers furnished by Willamette and General under these arrangements were members of, or represented by, International Union of Operating Engineers Local 701 (Engineers). Willamette is a party to a collective bargaining agreement with Engineers, and General is bound by a collective bargaining agreement between Engineers and Associated General Contractors of America, an employer-association. Neither Willamette nor General has ever been a party to a collective bargaining agreement with Longshoremen. At no material time has Engineers been certified by the Board as the collective bargaining representative of the employees of Brady or Jones; nor has Longshoremen been certified as the bargaining representative of the crane operators employed by Willamette, General, Brady or Jones.

On the morning of April 3, 1969, crane operators engaged in Brady's and Jones' operations at Astoria swung the cranes into position preparatory to loading logs aboard ships. At this point the longshoremen employed by Brady and Jones refused to hook up the logs to the crane hooks, thereby bringing the operations to a halt. The longshoremen claimed that they, rather than the employees represented by Engineers, were entitled to the work of operating the water-borne cranes. They engaged in this work stoppage in furtherance of that claim.

Brady and Jones capitulated to the longshoremen's demand and, that same day, told the employees who had been furnished by Willamette and General to leave the barges so that the longshoremen could take over. Brady and Jones then resumed loading the logs by utilizing ship's gear operated by the longshoremen until the latter could be trained to operate the water-borne cranes.

Engineers made several efforts to have Brady restore employees represented by Engineers to work on the waterborne cranes. Being unsuccessful in this, Engineers filed with the Board, on April 8, 1969, the unfair labor practice charge which gave rise to the instant proceeding. Engineers alleged, in effect, that Longshoremen had violated section 8(b) (4) (D) of the Act, 29 U. S.C. § 158(b) (4) (D) by utilizing a work stoppage to force Brady to assign the disputed work to employees represented by Longshoremen.

On April 19, 1969, Engineers commenced picketing Brady's operations in the Port of Astoria. This led PMA to file with the Board on April 21, 1969, an unfair labor practice charge against Engineers, the second charge involved in this proceeding. PMA alleged that Engineers' picketing was in violation of section 8(b) (4) (D) of the Act insofar as it was intended to force PMA members engaged in stevedoring operations at Astoria to assign the work of operating water-borne cranes to employees represented by Engineers.

Engineers then demanded that Jones restore employees represented by Engineers to work on the water-borne cranes. Being again unsuccessful, Engineers, on April 23, 1969, filed the third and last unfair labor practice charge growing out of the Astoria incident described above. This charge was similar to the charge Engineers had filed against Brady on April 8, 1969.

In the meantime, on April 22, 1969, Engineers extended its picketing to Brady's operations in Portland, Oregon. Engineers also continued picketing activity in Astoria on April 23 and 24, 1969. This picketing activity resulted in work stoppages by tugboat personnel at Astoria and by construction employees and employees of the Dock Commission at Portland.

After investigation, the Board concluded that there was reasonable cause to believe that both Engineers and Longshoremen were violating section 8(b) (4) (D) and that a notice of hearing based on the three charges referred to above should issue pursuant to section 10(k) of the Act, 29 U.S.C. § 160(k). The Board also concluded that an application for injunctive relief against both unions under section 10(l) of the Act, 29 U.S.C. § 160(l), was appropriate.

Accordingly, on May 6, 1969, acting on behalf of the Board, Charles M. Henderson, Regional Director of Region 19 of the Board, filed a petition for an injunction in the district court. Answers were filed by Engineers and Longshoremen. PMA filed a "Supplementing Petition of Charging Party," agreeing with the Board insofar as the latter sought an injunction against Engineers. Numerous affidavits were filed, followed by oral argument.¹

The district court found reasonable cause to believe that Longshoremen, by its work stoppage of April 3, 1969, violated section 8(b) (4) (D) of the Act. The court also found that Engineers, by its picketing on and after April 19, 1969, engaged in conduct proscribed by section 8(b) (4) (D) in order to force Brady and Jones to assign the work of operating the water-borne cranes to employees represented by Engineers. The district court concluded that "continuation of these practices will impair the policies of the Act," and that an order enjoining both unions "is appropriate, just and proper * * * (t)o preserve the issues for the orderly determination as provided in the Act."

The court enjoined each union, pending disposition of the unfair labor practice charges by the Board, from engaging in conduct proscribed by section 8(b) (4) (D). Thus, no conduct would be permitted which could require or force Brady, Jones or any other employer-member of PMA, or any other employer in the Astoria area, to assign the work in question to employees who are members of or are represented by one union rather than the other union. Only Engineers has appealed.²

Engineers argues that its picketing activity against Brady was lawful because it was for the sole purpose of protesting Brady's wrongful action in discharging the crane operators represented by Engineers. According to this view, the picketing activity against Brady did not have a jurisdictional objective and the jurisdictional proceeding before the Board would continue without interference. Engineers urges that they were only exercising the right of free speech. In essence, what Engineers is saying is that its picketing against Brady was not for the purpose of effectuating a permanent solution of the jurisdictional dispute in its favor, but merely for the purpose of restoring to their jobs crane operators represented by Engineers while the Board is resolving the jurisdictional dispute.

We agree with the district court and the Board that the objectives of picketing may not be segmented in this fashion. Section 8(b) (4) (D), with exceptions not here relevant, makes it an unfair labor practice to engage in picketing where an object thereof is to force or require an employer to assign particular work to employees in a particular labor organization. The statute draws no distinction between a purpose to accomplish a permanent assignment of employees and a purpose to accomplish a temporary reassignment in the form of a restoration to former employment pending a permanent solution of the problem.

The reason why no such distinction is drawn in the statute is apparent. Whether the objective is temporary or permanent replacement of employees, the employer is caught in the middle between two competing unions. Picketing by one union to force an employer to displace employees represented by another union for the purpose of reinstating employees represented by the picketing union, is as detrimental to the employer...