International Organization of Masters, M. & P. v. NLRB

• Decision Date: 21 June 1965
• Docket Number: No. 15537.,15537.
• Citation: 351 F.2d 771
• Parties: INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS OF AMERICA, INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

351 F.2d 771 (1965)

INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS OF AMERICA, INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15537.

United States Court of Appeals District of Columbia Circuit.

Argued November 3, 1960.

Decided June 21, 1965.

Miss Betty H. Olchin, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, Cristobal, Canal Zone, with whom Messrs. Mozart G. Ratner and Isaac N. Groner, Washington, D. C., were on the brief for petitioners.

Miss Margaret M. Farmer, Atty., N. L. R. B., with whom Messrs. Stuart Rothman, Gen. Counsel, N. L. R. B., at the time the brief was filed, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Frederick U. Reel, Atty., N. L. R. B., at the time the brief was filed, were on the brief for respondent.

Messrs. Arnold Ordman, Gen. Counsel, and Melvin Pollack, Atty., N. L. R. B., were on the pleadings subsequent to remand.

Before WASHINGTON, DANAHER and BURGER, Circuit Judges.

PER CURIAM:

This case was first argued in this court November 3, 1960 when the petitioners, the International Organization of Masters, Mates & Pilots (hereinafter MMP), International Vice President Johnson, and MMP Local 47, asked us to review and set aside the Board's cease and desist order which had outlawed a secondary boycott. Petitioners had been engaged in a dispute with the Shipping Federation of Canada over alleged discrimination in the hiring of American pilots on foreign-owned vessels operating on the Great Lakes. The Board had determined that MMP and its Local 47 as agent of MMP had picketed Federation vessels as they engaged in loading or unloading in American ports. The Board asked us to enforce its order.

Deeming the record before us inadequate, we entered our order of December 20, 1960¹ remanding the case to the Board with the request that specific findings be made in certain respects. As of November 6, 1963, the Board renewed its prayer for enforcement based upon a Supplemental Decision.² Once again, we insisted that the Board deal specifically with particulars we deemed essential. Under date of January 31, 1964, we entered an order requiring the Board to do so. (Infra, page 776.)

Thereafter as of February 28, 1964, the Board transmitted its Second Supplemental Decision³ with respect to which we invited and the parties submitted detailed memoranda. Now, in light of the record as thus completed and after consideration of the contentions of the respective parties, we agree with the conclusion of the Trial Examiner, as adopted by the Board, that MMP is a "labor organization" within the meaning of sections 2(5) and 8(b) of the Act, as amended. Moreover we are satisfied that the Board could correctly find, as the General Counsel had charged, that Local 47, International Vice President Johnson and MMP, all petitioners herein, were intimately and jointly involved in the illegal secondary boycott. We are not persuaded that we should disturb the Board's conclusion that Local 47 was an agent of MMP. Accordingly, the petition for enforcement will be granted, and the petition to review and set aside the Board's order must be denied.

The background for our determination had its origin in the General Counsel's complaint⁴ against the petitioners that picketing activities on or near the docks in Chicago, Milwaukee and Cleveland were in violation of section 8(b) (4) (A) of the Act, as amended, 61 STAT. 141, 29 U.S.C. § 158(b) (4) (A) (1958), one of the "secondary boycott" provisions.⁵

The Trial Examiner, in his Intermediate Report,⁶ determined that petitioners' activities in Cleveland violated section 8(b) (4) (A) but that in all other respects the complaint should be dismissed. In addition, the Examiner found that MMP was a "labor organization" within the meaning of sections 2 (5) and 8(b) of the Act, that the Board had no jurisdiction to decide whether petitioner Local 47⁷ was a "labor organization" because the individual complaint filed in connection with the activities in Cleveland did not name it as a respondent, but that both Local 47 and petitioner Johnson were liable as "agents" within the meaning of sections 2(13) and 8(b) of the Act. The Board subsequently adopted the findings, conclusions, and recommendations of the Trial Examiner. It ordered the petitioners (1) to cease and desist from continuing the illegal boycott and (2) to take certain affirmative actions to effectuate the policies of the Act.

In their petition to review, the petitioners did not contest the finding that their activities in Cleveland would constitute unfair labor practices if engaged in by a "labor organization." Petitioners contended only that the Board had erroneously concluded that MMP was a "labor organization." The Trial Examiner had recognized that "the unfair labor practices proscribed in section 8 (b) (4) (A) of the Act may be committed only by a `labor organization or its agents' * * *."⁸ He pointed out that the Act, in defining the term "labor organization," laid down two tests as determinative.⁹ Petitioners had acknowledged that MMP existed for the purpose, in part, "of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." In addition the Examiner concluded, MMP was also an organization in which "employees" participated because: (1) petitioners had agreed that the members of MMP Local 3 (Associated Maritime Workers) were "employees" within the meaning of the Act; (2) the Board had found MMP to be a labor organization in Standard Oil Co., 121 N.L.R.B. 208 (1958), enforced sub nom Nat'l Marine Engineers Beneficial Ass'n v. NLRB, 274 F.2d 167 (2 Cir. 1960); (3) MMP had conceded in prior cases that it was a "labor organization"¹⁰; and (4) the requirement that "employees" participate did not mean that the workers involved in the particular dispute before the Board had to be "employees" but, instead, meant that a union was a "labor organization" if the members of any local fitted the category of "employees." Because of this conclusion, the Examiner found it unnecessary to determine whether the pilots themselves were "employees" within the meaning of section 2(5).

The petitioners, on brief, contended here that the Examiner, and thus the Board, erred in deciding that MMP was a "labor organization." They argued principally that MMP could not be held responsible for an unfair labor practice as a "labor organization" unless the pilots for whose benefit the secondary boycott had been effected were themselves "employees." Again, it would be particularly unfair in this case to focus attention on the status of members of Local 3 because that local represented such a small percentage of the total MMP membership and was affiliated with MMP in only a limited capacity. In sum, petitioners would have it that MMP was a "labor organization" insofar as the activities of Local 3 were involved but not such an organization when operating on behalf of its other locals. Both the Board and the courts, moreover, had refused to extend to MMP the benefits of the Act when it was representing the interests of non-employee members. See Wilson Transit Co., 80 N.L.R.B. 1476 (1948); Wyandotte Transportation Co., 67 N.L.R.B. 930 (1946), enforcement granted, 162 F.2d 101 (6 Cir. 1947), only later to be denied on rehearing, 166 F.2d 434 (6 Cir. 1948), after the Taft-Hartley amendments had become effective. Finally, the "admissions" by MMP that it was a "labor organization" in such cases as J. W. Banta Towing Co., Inc., supra note 10, were not in fact admissions and, if they were, could not be relied on by the Board in the present context. See Nat'l Marine Engineers Beneficial Ass'n, etc. v. NLRB, 274 F.2d 167, 172 (2 Cir. 1960).

After oral argument, we reached the conclusion that neither the petitioners nor the Board had been quite correct in their respective analyses of the issue as to whether MMP was a "labor organization." It was clear enough that only a "labor organization or its agents" could be held liable for a violation of the secondary boycott provisions. Section 2(5) of the Act is also specific in requiring that a "labor organization" must be one in which "employees" participate. Although the term "employees" is broad, section 2(3) excludes certain classes of workers from this category, and the petitioners contended accordingly that pilots fell within the category of "independent contractors" or "supervisors."¹¹ Since the wrongful acts found by the Board to have been committed on the Cleveland docks were committed only by non-"employees," MMP could not be a "labor organization" for the purpose of this case. We rejected this argument.

In Di Giorgio Fruit Corp. v. NLRB, 89 U.S.App.D.C. 155, 191 F.2d 642, 28 A.L.R.2d 377, cert. denied, 342 U.S. 869, 72 S.Ct. 110, 96 L.Ed. 653 (1951), we held that the word "employees," as used in section 2(5) to define "labor organization," was not itself to be defined in its generic sense. It was to be given only the meaning attributed to it by section 2(3) when the question before the court was whether a given organization was subject to the restrictions of the secondary boycott provision. In that case we decided that a union local composed entirely of agricultural workers was not a "labor organization" because this class of workers was specifically excluded from the definition of "employees." But that case was not controlling here. After all, the conclusion that a local which contained no "employees" was not a "labor organization" did not apply to an International which admittedly had some "employee" members. In Di Giorgio the statute by its own terms did not apply; here, assuming alternatives were open, we were necessarily forced to select the more appropriate construction in light of the purposes of the Act.

In that approach, we were persuaded by the reasoning of the Second Circuit in Nat'l Marine...