International Longshoremen's and Warehousemen's Union, Local 14, AFL-CIO v. N.L.R.B.

• Decision Date: 07 June 1996
• Docket Number: AFL-CI,No. 95-1446,P,95-1446
• Citation: 85 F.3d 646
• Parties: 152 L.R.R.M. (BNA) 2394, 318 U.S.App.D.C. 80, 132 Lab.Cas. P 11,597 INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 14,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 646

85 F.3d 646

152 L.R.R.M. (BNA) 2394, 318 U.S.App.D.C. 80,

132 Lab.Cas. P 11,597

INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 14, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 95-1446.

United States Court of Appeals District of Columbia Circuit.

Argued April 19, 1996.

Decided June 7, 1996.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Richard S. Zuckerman, San Francisco, CA, argued the cause and filed the briefs for petitioner.

Meredith L. Jason, Attorney, National Labor Relations Board, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Linda Dreeben, Supervisory Attorney, were on the brief.

Before: EDWARDS, Chief Judge, BUCKLEY and SENTELLE, Circuit Judges.

Opinion for the Court filed by Chief Judge EDWARDS.

HARRY T. EDWARDS, Chief Judge:

Following a section 10(k) hearing on an alleged work "jurisdictional dispute," see 29 U.S.C. § 160(k) (1994), the National Labor Relations Board ("NLRB" or "Board") found that the assignment of certain "chip-loading" work by Sierra Pacific Industries ("SPI") to its unrepresented employees was an original assignment of new work. Pursuant to this finding, the Board further found reasonable cause to believe that Local 14 of the International Longshoremen's and Warehousemen's Union ("Local 14" or "Union") had violated section 8(b)(4)(D) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. § 158(b)(4)(D) (1994), by picketing to force the assignment of the disputed SPI work to its members. When the Union refused to refrain from picketing, the Board then took action on an unfair labor practice complaint, and determined that the actions of Local 14 violated section 8(b)(4)(D) of the Act.

The Union petitions for review of the Board's finding that it engaged in an unfair labor practice by picketing a dock and harbor used by SPI for wood chip-loading operations. The Union contends that, because there was no "jurisdictional dispute," the Board had no authority to act pursuant to section 10(k); alternatively, the Union claims that, even if there was a jurisdictional dispute to be resolved, the Board's decision that the wood chip-loading work should be allocated to SPI's own employees instead of Union members was arbitrary and capricious. Because the Board retains broad discretion in defining what constitutes a jurisdictional dispute under section 10(k) of the NLRA, and is afforded considerable leeway in resolving an underlying work dispute, we can find no valid ground to overturn the judgment of the Board in this case. Accordingly, the petition for review is denied, and the Board's cross-petition for enforcement of its Order is granted.

I. BACKGROUND

A. The Dispute

Local 14 represents longshore workers who perform work under the Pacific Coast Longshore Contract Document ("PCLCD"), a multi-employer collective bargaining agreement between the Pacific Maritime Association ("PMA") and affiliated local unions, including Local 14. Under the PCLCD, Local 14 members obtain work through a dispatch hall on a rotational basis. When a ship or barge arrives in port, a longshore workforce is dispatched through the hall to perform the stevedoring operation at a dock, after which the force returns to the hall for future dispatches. Under the rotational system, work opportunities are shared by all members of Local 14.

Local 14's work has traditionally consisted of the loading of logs, lumber, pulp, and wood chips aboard ships and barges in the Port of Eureka, California. Virtually all of the Union's stevedoring work has been performed through the Westfall Stevedore Company ("Westfall"). From about 1973 to October 1993, all wood chips loaded in Eureka were loaded at the dock of North Coast Exports ("North Coast"), apparently because it was then the only facility suited for such work. Whenever vessels were to be loaded with wood chips at North Coast, Westfall hired workers through Local 14 to perform the loading.

SPI, a privately-held corporation engaged in the manufacture of lumber and other wood products in northern California, was one of the companies that regularly delivered wood chips to North Coast. Although SPI itself is not covered by the PCLCD, it was SPI's practice to deliver wood chips to the dock, where Union members working under Westfall would then load them onto barges.

Around January 1993, Louisiana-Pacific ("L-P") purchased the North Coast facility. After the purchase, L-P continued to use Westfall and Local 14 to load wood chips, and SPI continued to sell wood chips to L-P, dropping them at the dock to be loaded by Union members. This arrangement continued until the fall of 1993, when SPI decided that it would be more economically advantageous for it to sell its wood chips directly to a pulp manufacturer under a long-term agreement than to continue to sell its chips to a middleman, such as L-P. To this end, SPI leased a dock, known as the "14th Street Dock," across the bay from L-P's site.

The 14th Street Dock had been used for loading and discharging logs and lumber (with such work performed by Westfall using Local 14 workers), but wood chips had never been processed at the 14th Street Dock until SPI invested significant capital to install wood chip-loading machinery there in late 1993. Once SPI's operations were up and running at the 14th Street Dock, logs and lumber continued to be loaded by Union members, but SPI began using its own, unrepresented employees to load the wood chips.

Under the system installed by SPI, the chip-loading process begins when trucks from SPI's sawmills dump their loads in the yard at the 14th Street Dock, at which point employees sort and stockpile the chips. When a barge arrives to transport the chips, employees use front-end loaders to push the chips onto a conveyor belt in a pit, and the chips are then moved along a series of conveyor belts to the dock, where they are downloaded onto the barge. The speed of the conveyor system and the number of chips moving through the system are controlled by a "button man" sitting in a control booth approximately 60 feet above the conveyor system. SPI employees perform all of the labor required in this process as well as some related welding and electrical work. The SPI employees are also skilled in repairing and maintaining the chip-loading system and the loading equipment.

On several occasions after SPI leased the 14th Street Dock, an owner of Westfall approached SPI and asked for a contract to run SPI's wood chip conveyor system. He put forth proposals under which SPI would have subcontracted the chip-loading work to Westfall, which would then have hired Local 14 members under the PCLCD to perform the button-man work. He also stated that Local 14's members were demanding SPI's chip-loading work. SPI management refused to subcontract the chip loading to Westfall on the ground that it would result in added costs.

On November 29, when the first barge arrived at the 14th Street Dock, the Union picketed outside the gate to the dock, carrying signs that read, "Unfair to the ILWU." Later that day, SPI's human resources manager and manager of corporate affairs, Ed Bond, met with Westfall and Union officials. The Union officials said that the chip-loading work was within their jurisdiction and they wanted it. Throughout December, January, and February, on the twelve occasions when barges were loaded, the Union picketed outside the gate to the dock.

On February 10, 1994, about 30 or 40 pickets were at the gate, some carrying signs saying, "Sierra Pacific unfair to ILWU." There were also four or five boats in the harbor, with signs and pickets aboard, that interfered with tugboat and barge activity in the harbor. Later that day, Bond met with Westfall and Union officials again. While waiting for the meeting to begin, Union officials handed Bond a press release that stated, in part, "[T]he work of loading the Barges is ours." See Joint Appendix ("J.A.") 202.

B. Proceedings Before the Board

SPI filed unfair labor practice charges alleging that the Union had violated section 8(b)(4)(D) of the Act, which prohibits "coerc[ing]" any person engaged in commerce, where an object thereof is

forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board.

29 U.S.C. § 158(b)(4)(D) (1994). Thereafter, pursuant to section 10(k) of the Act, 29 U.S.C. § 160(k) (1994), the Board held a hearing to resolve the underlying work-assignment issue. ¹ The Union and SPI appeared at the hearing and addressed the issues as to whether a jurisdictional dispute existed and to whom the disputed work should be assigned.

On August 24, 1994, the Board issued a decision on the basis of the record made before the hearing officer. See International Longshoremen's & Warehousemen's Union, Local 14, 314 N.L.R.B. 834, 1994 WL 461757 (1994). The Board found that SPI's "assignment of the chip-loading work to its unrepresented employees was an original assignment of new work," and, thus, the Union's actions could not be considered efforts to preserve work. Id. at 836. The Board also held that it had jurisdiction to consider the work assignment issue under section 10(k). Finally, the Board found reasonable cause to believe that the Union had violated section 8(b)(4)(D) of the NLRA by picketing to force the assignment of SPI's button-man work to its members. Because the parties stipulated that they had not agreed on a voluntary method for resolving the dispute, id. at 835, the Board determined that it had jurisdiction to assign the disputed work. Based on the factors...