N.L.R.B. v. Local No. 12, Intern. Union of Operating Engineers, AFL-CIO
| Citation | 673 F.2d 1094 |
| Decision Date | 08 April 1982 |
| Docket Number | 79-7650,AFL-CI,R,I,80-7216 and 80-7104,Nos. 80-7467,No. 12,12,s. 80-7467 |
| Parties | 110 L.R.R.M. (BNA) 2374, 94 Lab.Cas. P 13,487, 3 Employee Benefits Ca 1541 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 12, INTERNATIONAL UNION OF OPERATING ENGINEERS,espondent, and Operating Engineers Health and Welfare Fund, Operating Engineers Pension Trust, Operating Engineers Vacation-Holiday Savings Trust, Operating Engineers Training Trust, Southern California Operating Engineers Benefits Administration, Inc., and Leo J. Majich, Respondents. MAAS & FEDUSKA, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Localnternational Union of Operating Engineers,ntervenor, and Operating Engineers Health and Welfare Fund, Operating Engineers Pension Trust, Operating Engineers Vacation-Holiday Savings Trust, Operating Engineers Training Trust, Southern California Operating Engineers Benefits Administration, Inc., and Leo J. Majich, Intervenors and Cross-Petitioners. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John H. Ferguson, Washington, D. C., argued, for N. L. R. B.; Elliott Moore, John H. Ferguson, N. L. R. B., Washington, D. C., Wilford W. Johnansen, N. L. R. B., Los Angeles, Cal., on brief.
Howard C. Hay, Hastings, Janofsky & Walker, Costa Mesa, Cal., Wayne Jett, Los Angeles, Cal., for respondents.
On Petitions for Review and Applications for Enforcement of orders of the National Labor Relations Board.
Before CHAMBERS and WALLACE, Circuit Judges, and WHELAN, District Judge *.
This matter includes four different appeals, each of which is related to the others. The parties to the various appeals are: The National Labor Relations Board (hereinafter referred to as the Board); Maas & Feduska, Inc. (hereinafter referred to as the Company); the International Union of Operating Engineers Local 12, AFL-CIO (hereinafter referred to as the Union); and the Operating Engineers Health and Welfare Fund, the Operating Engineers Pension Trust, the Operating Engineers Vacation-Holiday Savings Trust, the Operating Engineers Training Trust, the Southern California Operating Engineers Benefits Administration, Inc., and Leo A. Majich (hereinafter referred to as the Trusts). In brief, the appeals are concerned with: a petition of the National Labor Relations Board for enforcement of a 1979 order of the Board requiring the Union and the Trusts (as agents of the Union) to repay the amount paid by Maas & Feduska, Inc., to the Trusts resulting from events in 1975 (Case No. 80-7467); and the petition of the Board for enforcement of its order of November, 1979, ordering the Union to cease and desist from refusing to bargain collectively with Maas & Feduska, Inc., as more particularly set forth in the order and to take affirmative action as set forth in the order; and a petition by the Company because of the failure of the Board to order monetary relief to said Company for events occurring in 1978.
The Company, in Case No. 79-7650, appeals from the 1979 order of the Board, which failed to require the Union and the Trusts to repay to the Company monies paid under protest by the Company in 1978 to stop the Union's strike against the Company. Also, Case No. 80-7216 is an appeal by the Company, again contending that the Board should have awarded monetary relief for the 1978 Union picketing and strike and for amounts paid by the Company under protest at that time. The Union and the Trusts have, by Case No. 80-7104, appealed from the cease and desist order of the Board issued with respect to the 1978 picketing and strike activities of the Union. The Board, by Case No. 80-7467, petitions for enforcement of the Board's award of money in favor of the Company and against the Union and the Trusts. The order making such award was made by the Board after an earlier appeal involving the same parties had been disposed of by this Court; such earlier appeal had in 1979 remanded the cause in question to the Board for further consideration in view of the Court's reversal of the earlier ruling by the Board.
The 1979 decision of this Court, in Maas & Feduska, Inc. v. NLRB, 632 F.2d 714 (9th Cir. 1979), reversed the decision of the Board which held that the Union was not guilty of an unfair labor practice when it conducted a strike and picketing because the Company did not pay to the Trusts any fringe funds payments for its President and Vice-President. Our Court, in the 1979 decision, held that inasmuch as the terms of the labor agreement between the Union and the Company provided that the President and the Vice-President had the right to be covered if they desired to be covered, their refusal to be covered was their right and such refusal was not a proper matter for bargaining. Our Court held that the Union strike and picketing were illegal and that the Union and the Trusts...
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