International Longshoremen's and Warehousemen's Union, Local 32 v. Pacific Maritime Ass'n

Decision Date07 October 1985
Docket NumberNos. 84-4173,84-7544 and 84-7646,s. 84-4173
Parties120 L.R.R.M. (BNA) 2881, 54 USLW 2243, 103 Lab.Cas. P 11,687 INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 32, Plaintiff-Appellant v. PACIFIC MARITIME ASSOCIATION and Crescent City Marine Ways and Drydock Company, Inc., Defendants-Appellees, and National Labor Relations Board, Intervenor Appellee. LOCAL 32, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. LOCAL 32, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, Cross-Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Richard Z. Zuckerman, Leonard & Carder, San Francisco, Cal., for plaintiff-appellant.

Margery E. Lieber, Eric G. Moskowitz, Washington, D.C., Pat Wynns, Dean T. Zografos, William & Zografos, Seattle, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

On Petition to Review an Order of the National Labor Relations Board.

Before WALLACE, FARRIS and HALL, Circuit Judges.

FARRIS, Circuit Judge:

In No. 84-7544, Local 32 seeks review of the NLRB's order that the union cease its attempts to enforce an arbitrator's award. The arbitrator had awarded "time-in-lieu" payments against Jones Washington and Crescent City for work which the NLRB had already assigned to non-Local 32 workers. In No. 84-7646, the NLRB cross-applies for enforcement of its work assignment order, reported at 271 N.L.R.B. No. 123 (1984). In No. 84-4173, the union appeals the decision of the United States District Court for the Western District of Washington, which denied Local 32's motion to confirm the arbitration award.

Local 32 and the Pacific Maritime Association, an employer group, agreed that PMA members would employ exclusively Local 32 workers to perform certain longshoring activities. Two members of PMA, Crescent City and Jones Washington, were subsequently hired by Weyerhaeuser to move goods from shipside onto ships berthed at Weyerhaeuser's dock facility in Everett, Washington. The remainder of longshoring work, including handling lines and moving goods from warehouse to shipside, was performed by Weyerhaeuser's own employees--who were members not of Local 32, but of the Association of Western Pulp and Paper Workers.

About December 12, 1980, Weyerhaeuser closed its Thermo-Mechanical Mill adjacent to the Everett dock. Local 32 claimed that upon the closing of the Mill, the union's contract with Jones Washington and Crescent City required the companies to order Local 32 members to perform the longshoring tasks previously performed by Weyerhaeuser's AWPPW workers. To press its claim, on December 21 Local 32 engaged in a 45-minute work stoppage at the dock.

The resulting work dispute between Local 32 and AWPPW became the subject of both NLRB and arbitration proceedings. On December 29, Weyerhaeuser filed a charge with the NLRB, alleging that Local 32 had committed an unfair labor practice in violation of section 8(b)(4)(ii)(D) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(4)(ii)(D). The charge alleged that Local 32 had illegally engaged in a "secondary" work stoppage which, while directed immediately at Jones Washington, had the underlying purpose of forcing Weyerhaeuser to assign the AWPPW's longshoring activities to Local 32 workers. The NLRB awarded the disputed work to the AWPPW in a proceeding under section 10(k) of the NLRA, 29 U.S.C. Sec. 160(k), and after Local 32 agreed to comply, the NLRB dismissed Weyerhaeuser's unfair labor practice charges.

Concurrent with these proceedings, the same dispute was moving through the grievance-arbitration mechanism provided for by the collective bargaining agreement between Local 32, Crescent City, and Jones Washington. An arbitration hearing was held prior to the NLRB's section 10(k) decision, but it was not until four months after the NLRB's section 10(k) decision that the arbitrator ruled that Local 32 employees should have been ordered to perform the AWPPW's stevedoring tasks. The arbitrator awarded Local 32 "time-in-lieu" payments for the work done by AWPPW, as damages for Crescent City and Jones Washington's alleged breach of their collective bargaining agreements.

Local 32 sought enforcement of the arbitration award by filing "payment-in-lieu" grievance claims and bringing suit under section 301(a) of the Labor Management Relations Act, 29 U.S.C. Sec. 185(a). The district court denied enforcement of the arbitration award, finding that it conflicted with the NLRB's prior section 10(k) decision.

Reacting to the union's section 301 suit to enforce the conflicting arbitration award, the NLRB reinstated Weyerhaeuser's unfair labor practice charge on October 23, 1981, and determined that Local 32's filing of "payment-in-lieu" claims and a section 301 suit constituted 1) a failure to comply with the Board's section 10(k) decision, and 2) a section 8(b)(4)(ii)(D) unfair labor practice in itself. Local 32 timely files a petition for review of the NLRB's decision and appeals the district court's refusal to confirm the arbitration award. The NLRB's cross-application for enforcement was consolidated in this appeal. We have jurisdiction under 29 U.S.C. Sec. 160(e), (f).

The issue in Nos. 84-7544 and 84-7646 is whether a union's attempt to enforce an arbitration award which is inconsistent with a prior section 10(k) proceeding constitutes 1) an unfair labor practice under section 8(b)(4)(ii)(D) of the NLRA, or 2) a failure to comply with the Board's section 10(k) determination. Our resolution of this issue is dispositive of Local 32's appeal in No. 84-4173.

I. Finding an unfair labor practice under Bill Johnson's Restaurants.
A. Applying the Bill Johnson's test.

In Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983), the Supreme Court held that an employer's prosecution of a retaliatory suit against picketing employees constitutes an unfair labor practice under section 8(a)(1) if the suit 1) is filed with an improper motive and 2) lacks a reasonable basis in law. Id. at 744, 103 S.Ct. at 2171; see Sure-Tan, Inc. v. NLRB, --- U.S. ----, 104 S.Ct. 2803, 2811, 81 L.Ed.2d 732 (1984). Although Bill Johnson's only involved a section 8(a)(1) retaliatory lawsuit, its language was sufficiently broad, see 461 U.S. at 744, 103 S.Ct. at 2171 ("the prosecution of an improperly motivated suit lacking a reasonable basis constitutes a violation of the Act that may be enjoined by the Board"), that the few decisions thus far applying Bill Johnson's have extended the holding beyond the section 8(a)(1) context. See Local No. 355, Sheet Metal Workers' International Association v. NLRB, 716 F.2d 1249, 1258-64 (9th Cir.1983) (applying Bill Johnson's to a section 8(b)(1) retaliatory suit brought by a union); Local 1115, Nursing Home and Hospital Employees Union and Smithtown General Hospital, 275 N.L.R.B. No. 45 at 9 (April 26, 1985) (applying Bill Johnson's to find that union violated section 8(b)(1)(A) by seeking to confirm arbitrator's award). We therefore employ Bill Johnson's improper motivation/reasonable basis test to determine whether the union committed a section 8(b)(4) unfair labor practice in seeking to enforce the arbitrator's award.

The Board held that the union's bringing of payment-in-lieu grievances and its filing of a section 301 suit to enforce the arbitrator's decision were "improperly motivated," 461 U.S. at 744, 103 S.Ct. at 2171, by a desire to circumvent the Board's section 10(k) decision and obtain the proceeds of work which the union was not entitled to perform. The Board further held that the second prong of Bill Johnson's was satisfied: the union's suit lacks a "reasonable basis" because the Board's section 10(k) determination precludes the arbitrator's contrary award of in-lieu payments. We must uphold these legal conclusions unless they are arbitrary and capricious. NLRB v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 741, 704 F.2d 1164, 1166 (9th Cir.1983).

B. Improper motivation--circumventing the section 10(k) determination.

The Board's finding of an improper desire to circumvent the section 10(k) determination is not arbitrary and capricious. The union's attempt to obtain payment for work to which it is not entitled would, if successful, completely undermine the section 10(k) work assignment. See International Association of Bridge, Structural & Ornamental Ironworkers, Local 395 v. Lake County, Indiana Council of the United Brotherhood of Carpenters et al., 347 F.Supp. 1377, 1382-84 (N.D.Ind.1972) (barring union's section 301 claim and rejecting union's argument that its agreement to comply with section 10(k) decision only meant that it would refrain from forcing employer to assign work); see also Pepper Construction Co. v. International Union of Operating Engineers, Local 150, 749 F.2d 1242, 1247 (7th Cir.1984) (union's agreement to disclaim work disputed in section 10(k) proceeding will bar union from seeking any back pay for the work assignment); Carpenter's Local Union No. 1478 v. Stevens, 743 F.2d 1271, 1279 (9th Cir.1984) (refusing to allow "a variance in the employer's obligations under the labor agreement merely because the arbitrator's decision arises in the context of a section 301 proceeding instead of a Board proceeding"), cert. denied, --- U.S. ----, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985); Chauffeurs and Helpers Local Union No. 50 v. McCartin-McAuliffe Mechanical Contractor, Inc., 708 F.2d 313, 315 (7th Cir.1983) (union's acceptance of settlement of work dispute prior to conclusion of section 10(k) hearing bars union from enforcing contrary arbitrator's award). We therefore focus on the second prong of Bill Johnson's : does the union's suit have a "reasonable basis"?

C. Lack of reasonable basis--the...

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