International Longshoremen's & Warehousemen's Union, Local 62-B v. N.L.R.B., 84-1488
| Decision Date | 21 January 1986 |
| Docket Number | No. 84-1488,84-1488 |
| Parties | 121 L.R.R.M. (BNA) 2719, 251 U.S.App.D.C. 66, 104 Lab.Cas. P 11,763 INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL 62-B, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the National Labor Relations board.
Richard S. Zuckerman for petitioner.
William H. Carder entered an appearance, for petitioner.
Peter Winkler, Atty., N.L.R.B. with whom Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B. was on the brief, for respondent.
Before MIKVA and STARR, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge McGOWAN.
In this case, the National Labor Relations Board ("Board") held that the International Longshoremen's and Warehousemen's Union, Local 62-B ("Union") violated the National Labor Relations Act, Sec. 8(b)(4)(B), 29 U.S.C. Sec. 158(b)(4)(B) (1982), and Sec. 8(b)(4)(D), 29 U.S.C. Sec. 158(b)(4)(D) (1982), when members of the Union, who are employed by a stevedoring company, picketed in the area of a timber company's docking facilities. We hold, however, that Sec. 8(b)(4)(D) of the Act does not apply in this situation. We therefore enforce the Board's order only insofar as it relates to Sec. 8(b)(4)(B) of the Act.
The Alaska Timber Corporation ("ATC"), formed some 15 years ago, produces heavy lumber at its facilities on Prince of Wales Island, Klawock, Alaska. ATC owns a dock facility at Klawock from which it ships its products. Prior to 1981, ATC contracted with its customers to sell its products "FAS," or "free along side." Pursuant to these contracts, ATC would deliver lumber to the docking facilities at Klawock. ATC's customers were responsible for loading the lumber onto ships for transportation to the customer's port. ATC's customers would ordinarily contract with a longshore service company, South East Stevedoring Company ("SES"), to load the ships for transportation. The stevedoring company, in turn, employed members of the Union.
In late 1980, ATC President Edward Head informed SES that ATC was changing its method of billing and shipment from FAS to "FOB" ("free on board"). Under this method, the price of lumber would include delivery from ATC's sawmill to the dock and subsequent loading on the customers' ship. The obvious result was that SES would no longer perform a function in the loading operation.
On January 9, 1981, the Eastern Hope, which had been chartered by the Yuasa Trading Company of Japan to pick up a load of lumber from ATC, arrived at Klawock. The Eastern Hope was the first ship to be loaded under ATC's new FOB policy. To help with the loading of the ship, ATC recalled some employees who had been laid off due to lack of work.
On January 10, 1981, Jay Browne and Larry Cotter, officials of the Union, called Mr. Head of ATC. Browne and Cotter told Head that they wanted Union members to load the Eastern Hope. Head explained that ATC had changed its sales policy from FAS to FOB, and thus refused to accept the proposal to have Union members load the ship. The Union officials then informed Head that the Union would picket the ship when loading began.
ATC began loading the Eastern Hope on January 11, 1981. The loading operation, performed by ATC's sawmill employees, took about nine days. As the loading began, the Union commenced picketing the ATC facility. The picketing took place at the facility's two entrance gates and lasted from 7 a.m. to 6 p.m. The pickets carried signs which read "Picket Informational/ATC Unfair Substandard/ILWU 62-B."
On January 18, as the loading neared completion, the Union commenced a water-based picket. A small boat patrolled along the outboard side of the Eastern Hope carrying the same picket signs as the land-based pickets carried. At night, the boat remained beside the ship. The boat picketed from January 18 through January 22.
ATC employees completed the loading of the ship on January 19. On January 20, the pilot hired to take the ship out of port arrived at one of ATC's entrance gates. The pilot, a member of the South Eastern Pilots Association, refused to board the vessel after seeing the picket line. On January 21, the pilot returned, but again refused to cross the picket line. The next day, ATC employees cut the Eastern Hope adrift from the dock. The pilot then crossed the picket line, boarded a tugboat, and performed his duties. The Union ceased picketing when the pilot boarded the ship.
On January 21, 1981, ATC filed an unfair labor practice charge against the Union. The Regional Director investigated ATC's charges but declined to issue a complaint. ATC filed an appeal. On May 22, 1981, the General Counsel for the Board sustained ATC's appeal in part, and remanded the case.
On June 8, 1981, the Regional Director issued a complaint which alleged that the Union had violated Sec. 8(b)(4)(B) and Sec. 8(b)(4)(D) of the Act. Section 8(b)(4)(B) generally prohibits secondary boycotts, and Sec. 8(b)(4)(D) prohibits picketing in certain jurisdictional disputes between labor groups. 1 With respect to the Sec. 8(b)(4)(D) charges, the Regional Director also gave notice of a hearing, pursuant to Sec. 10(k) of the Act, 2 to resolve the alleged jurisdictional dispute.
The Sec. 10(k) hearing took place on June 25, 1981. Based on that hearing, a three-member panel of the Board, on May 27, 1982, issued its "Decision and Determination of Dispute." International Longshore Workers Union, Local No. 62-B (Alaska Timber Corp.), 261 NLRB 1076 (1982). The Board found reasonable cause to believe that Sec. 8(b)(4)(D) of the Act had been violated, id. at 1077-78, and held that the employees of ATC were entitled to perform the work of loading lumber for shipment from ATC's docks. Id. at 1079.
On June 2, 1982, pursuant to the Board's decision, the Compliance Officer for the Region asked the Union to notify him whether the Union would comply with the Board's determination. The Union did not respond. Thereafter, on June 18, 1982, the Regional Director issued a consolidated complaint, which alleged that the Union had violated both Sec. 8(b)(4)(B) and Sec. 8(b)(4)(D) of the Act. The Union filed an answer to the complaint, and the case was assigned to an Administrative Law Judge ("ALJ").
On September 23, 1983, the ALJ issued his decision, holding that the Union did not violate Sec. 8(b)(4)(B) of the Act, but that it had violated Sec. 8(b)(4)(D). International Longshoremen's & Warehousemen's Union Local 62-B (Alaska Timber Corp.), 271 NLRB 1291, 1294 (1984) (Appendix, ALJ Decision). Both the Union and ATC filed exceptions to this decision. On August 30, 1984, a three-member panel of the Board issued a "Decision and Order," which adopted the ALJ's conclusion as to the Sec. 8(b)(4)(D) charge, but rejected the conclusion as to the Sec. 8(b)(4)(B) charge. Id. at 1291 (NLRB Decision and Order). The Board's order thus found the Union in violation of both Sec. 8(b)(4)(D) and Sec. 8(b)(4)(B). The Board ordered, inter alia, that the Union cease and desist from coercive efforts to force ATC to assign the disputed work to Union members. Id. at 1293. Thereafter, the Union petitioned this court for review of the Board's order and the Board cross-petitioned for enforcement of its order.
Although both the Sec. 8(b)(4)(B) and Sec. 8(b)(4)(D) charges arose out of the same dispute, the theoretical bases for each charge are different. We therefore consider the applicability of each section separately. We begin with the section that we find does not apply in this situation.
In Sec. 8(b)(4)(D), Congress generally prohibited efforts to coerce an employer to assign work to a particular labor organization where a jurisdictional dispute exists between labor groups. In enforcing this section, the Board is required to "hear and determine the dispute ...." Section 10(k), 29 U.S.C. Sec. 160(k) (1982); see NLRB v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 586, 81 S.Ct. 330, 338, 5 L.Ed.2d 302 (1961) (). The purpose of this hearing is to relieve the employer of the burden of choosing between employee groups that are competing for the assignment of work. Id. at 579, 81 S.Ct. at 334.
The Board followed the Sec. 10(k) procedure in this case. In its May 27, 1982 Sec. 10(k) order, the Board addressed the question whether there was reasonable cause to believe that Sec. 8(b)(4)(D) had been violated. International Longshore Worker's Union, Local No. 62-B (Alaska Timber Corp.), 261 NLRB 1076, 1077 (1982). The Board found that there was such reasonable cause. The Board concluded, in particular, that the Union's object in picketing at ATC's docking facilities was to force ATC to assign the disputed work to the employees represented by the Union rather than to ATC's employees. Id. In addition, the Board found that the dispute was not simply a question of the preservation of work performed by Union members. Rather, according to the Board, the Union acted to satisfy objectives elsewhere. Id. at 1077 n.4. After finding that a jurisdictional dispute existed, the Board went on to hold that an assessment of the relevant factors in the case required assignment of the work to ATC employees. Id. at 1079.
Section 10(k) orders are not immediately reviewable. Instead, the order must be implemented by a request from the Board that the employee group comply with the jurisdictional award. If the employee group does not comply, this behavior may become the subject of an unfair labor practice proceeding under Sec. 8(b)(4)(D).
In reviewing Sec. 10(k) orders, as implemented by Sec. 8(b)(4)(D) proceedings, we perform...
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