International Longshoremen's and Warehousemen's Union v. N.L.R.B.

• Decision Date: 05 September 1989
• Docket Number: No. 88-1647,88-1647
• Citation: 884 F.2d 1407
• Parties: 132 L.R.R.M. (BNA) 2556, 280 U.S.App.D.C. 197, 112 Lab.Cas. P 11,413 INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Sea-Land Service, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1407

884 F.2d 1407

132 L.R.R.M. (BNA) 2556, 280 U.S.App.D.C. 197,

112 Lab.Cas. P 11,413

INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, et

al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Sea-Land Service, Inc., Intervenor.

No. 88-1647.

United States Court of Appeals, District of Columbia Circuit.

Argued April 4, 1989.

Decided Sept. 5, 1989.

William H. Carder, San Francisco, Cal., for petitioners.

Richard A. Cohen, Atty., N.L.R.B., with whom Howard E. Perlstein, Supervising Atty., N.L.R.B., and Aileen A. Armstrong, Deputy Associate General Counsel, Washington D.C., N.L.R.B., were on the brief, for respondent.

Robert J. Attaway, with whom Anthony J. Gaspich, New York City, John W. McConnell, and Robert S. Zuckerman, Edison, N.J., were on the brief, for intervenor.

Before MIKVA, SILBERMAN, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

This case is one more in the long series of efforts by the National Labor Relations Board ("NLRB") to deal with disputes between the Longshoremen (ILWU on the West Coast and ILA on the East) and Teamsters, which arise out of the handling of shipping containers. ¹ Here, petitioners, ILWU Locals 13 and 63, seek review of a Board order determining that the ILWU violated section 8(b)(4)(D) of the National Labor Relations Act by filing collective bargaining grievances against Sea-Land Service, Inc. because it assigned work to employees represented by Local 692 of the Teamsters rather than to petitioners' members. The Board determined that the grievances were inconsistent with its prior section 10(k) award of the disputed work to the Teamster-represented employees. We deny the petition and grant the Board's cross-application for enforcement of its order.

I.

Prior to 1980, Sea-Land Service, Inc. maintained two sites in Long Beach, California for handling containers, a thirty-seven-acre fenced marine container yard on the waterfront and a fifteen-acre container freight station located about two miles inland. The containers are stuffed and unstuffed at the freight station and loaded (and unloaded) onto (and from) ships at the container yard. The Container Stevedoring Corporation, whose employees are represented by the International Longshoremen and Warehousemen's Union ("ILWU"), is under contract with Sea-Land to supply marine yard workers. Local 63 of the ILWU represents the equipment operators, and Local 13 the clerical workers. The General Truck Drivers, Chauffeurs & Helpers Union, Local 692, International Brotherhood of Teamsters represents Sea-Land's freight station employees.

Because of overcrowding at the yard, in 1980, Sea-Land leased Pelican Pond, an unfenced area directly across a public street from the container yard, to store or "stage" containers. When containers are staged they are either "grounded"--placed directly on the ground--or stacked one on top of the other, two or three high. Containers, when transferred, are placed on a chassis--a metal framework with wheels--and then hauled by a tractor driver. While not in use, the chassis are stacked or "bundled" four or five high so that they can be moved by a single driver. Stacking and unstacking of containers is accomplished with the use of large forklifts. When a container must be moved from one chassis to another--a process called "flipping"--either two forklifts are used, or a top-handling machine, which is a sort of crane that grips the four corners of the container and lifts it onto a new chassis, is employed.

After leasing Pelican Pond, Sea-Land assigned work there to its Teamster-represented freight station employees. This gave rise to the dispute between the Teamsters, the ILWU, and Sea-Land which ultimately led to this court. Both unions claimed the work at Pelican Pond, asserting that the operations there were merely an extension of the work each had traditionally performed. In fact, both groups of employees had grounded, staged and flipped containers, and bundled chassis, but they had done so at two different locations. The Teamsters had done this work at the freight station and storage areas, away from the waterfront, while the ILWU performed these tasks within the yard and, occasionally, along the waterfront or at another company's container yard adjacent to Sea-Land's.

Asserting entitlement to the work, the ILWU filed a grievance under its collective bargaining agreement with the Pacific Maritime Association ("PMA"), to which Sea-Land and ILWU are signatories. In its grievance, the ILWU claimed it was due "time-in-lieu payments" ² for the work performed by the Teamsters on March 29 and April 1, 1980 at Pelican Pond. The area arbitrator, George Love, found Sea-Land in violation of the agreement and ordered Sea-Land to make the payments, and the coast arbitrator, Sam Kagel, upheld the award. (December 17, 1980). Shortly thereafter, the Teamsters threatened to picket Sea-Land if it assigned work at Pelican Pond to the ILWU. Sea-Land responded by charging that the Teamsters had violated section 8(b)(4)(D) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(4)(ii)(D) (1982). ³

Upon the filing of a section 8(b)(4)(D) unfair labor practice charge, section 10(k) ⁴ of the Act authorizes the Board to conduct a hearing and resolve the underlying dispute between the two contesting employee groups. See 29 U.S.C. Sec. 160(k) (1982). ⁵ Following a section 10(k) hearing, the Board awarded the work in dispute to the Teamsters. Its decision rested chiefly on the relative economy and efficiency of the Teamsters performing the work, and on Sea-Land's preference for the Teamsters. The Board seemed to rely particularly on the fact that "[t]he record ... clearly discloses that assigning the work to longshoremen rather than to teamsters would require the Employer to utilize a greater number of employees." General Truck Drivers, Chauffeurs & Helpers Union, Local 692 (Sea-Land Service, Inc.), 258 N.L.R.B No. 55 at 11, 12 (Sept. 30, 1981). The ILWU unsuccessfully moved for reconsideration of the Board's decision but did not at that time otherwise seek to challenge the Board's determination by conduct which might prompt Sea-Land to file an unfair labor practice charge against it. See, e.g., Longshoremen, ILWU Local 62-B v. NLRB, 781 F.2d 919, 923 (D.C.Cir.1986) ("Alaska "), Bricklayers' Union v. NLRB, 475 F.2d 1316 (D.C.Cir.1973).

After the section 10(k) order issued in September of 1981, and until the end of 1982, Sea-Land used the Teamsters to stack, stage, and flip containers and to bundle chassis at Pelican Pond. On January 10, 1983 the ILWU again filed grievances claiming that Sea-Land was violating its collective bargaining agreement with PMA by assigning Pelican Pond work to the Teamster-represented employees. Notwithstanding the Board's section 10(k) order, the area arbitrator again determined that Sea-Land was in violation of the contract. Sea-Land paid the longshoremen $4,300 under protest but continued to assign the disputed work to the Teamsters. On January 24, Richard Lomelli, a Local 13 business agent, told a Sea-Land representative that he would "walk the gang" if Teamsters continued to perform work at Pelican Pond. Sea-Land responded with a two-pronged attack: on January 26, 1983, it filed suit in Federal District Court seeking to vacate the arbitration awards upon which the ILWU claims rest, to enjoin the Longshoremen from filing grievances claiming time-in-lieu payments and from threatening work stoppages in connection with Pelican Pond. Two days later, Sea-Land filed a new section 8(b)(4)(D) charge, this time against the ILWU. The district court stayed the lawsuit pending resolution of the NLRB proceedings.

Sea-Land's charge alleged that the Longshoremen's union, through the filing of grievances which were contrary to the section 10(k) award, committed an unfair labor practice in violation of section 8(b)(4)(D). Sea-Land further claimed that Lomelli's vow to "walk the gang" was a "threat" of work stoppage which also violated that section. The NLRB issued a complaint and a hearing was held pursuant to section 10(c) of the Act. See 29 U.S.C. Sec. 160(c) (1982). In its defense, the ILWU asserted that it had not violated the section 10(k) award as it was seeking payment for work that was not covered by the award. Specifically, the Longshoremen's union claimed that the tasks performed in January 1983, for which it sought payment, involved flipping and bundling, which were not mentioned in the Board's description of the disputed work set forth in the section 10(k) award. There the Board had defined the work as "the transportation and grounding of containers outside the container yard, and the work incident thereto, as well as the return of such containers to the container yard, and the work incident thereto ... [and] also ... the temporary staging of containers outside the container yard, and the work incident thereto, and the return of such containers to the container yard, and the work incident thereto." 258 N.L.R.B. No. 55 at 5. The ILWU's contention was flatly rejected: "it is crystal clear that the flipping, bundling and unbundling of chassis at Pelican Pond is work incident to the transportation of containers." International Longshoremen's and Warehousemen's Union, Locals 13 and 63 (Sea-Land Service, Inc.), 290 N.L.R.B. No. 76 (July 29, 1988) ALJ Decision at 5.

The Longshoremen also argued, unsuccessfully, that the filing of the grievances could not amount to an unfair labor practice as they were sanctioned as reasonably-based and properly-motivated litigation under Bill Johnson's Restaurants v. NLRB, 461 U.S. 731, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). The Board held that the filing of the grievances was a section 8(b)(4)(D) violation because "the grievances sought payments for work that was explicitly included in the Board's prior Section 10(k) award to Teamsters-represented employees or,...