N.L.R.B. v. International Ass'n of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, Local 433, AFL-CI

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore DUNIWAY, CARTER, and CHOY; JAMES M. CARTER
Citation549 F.2d 634
Parties94 L.R.R.M. (BNA) 2490, 81 Lab.Cas. P 13,045 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS,433, Respondent.
Decision Date17 January 1977
Docket NumberLOCAL,AFL-CI,No. 75-3261

Page 634

549 F.2d 634
94 L.R.R.M. (BNA) 2490, 81 Lab.Cas. P 13,045
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRONWORKERS, AFL-CIO, LOCAL 433, Respondent.
No. 75-3261.
United States Court of Appeals,
Ninth Circuit.
Jan. 17, 1977.

Page 636

Charles P. Donnelly (argued), of NLRB; Washington, D.C., for petitioner.

Victor Van Bourg and David Rosenfeld (argued), of Van Bourg, Allen, Weinberg & Williams, San Francisco, Cal., for respondent.

Before DUNIWAY, CARTER, and CHOY, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

This case is before the court on application of the National Labor Relations Board for enforcement of an order issued June 25, 1975, against the International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, Local 433 (Respondent). We enforce the order.

Facts

In 1973, Plaza Glass Company was hired to fabricate and install doors and windows in an apartment project in Marina del Rey, California. For the job, Plaza Glass used its own employees, who were members of the Glaziers, Glassworkers and Glass Warehouse Workers Union, Local 636 (Glaziers). Plaza Glass is a party to a collective bargaining agreement with the Glaziers by virtue of its membership in the Southern California Glass Management Association.

In January 1974, a representative of Respondent complained to Plaza Glass that the work being done should go to its members. Several threats were made against Plaza Glass by representatives of Respondent to slow down or stop the project unless its members were hired. The Glaziers took the position that reassignment of the work would be violative of the contract it had with Plaza Glass and might be grounds for picketing the job site.

Plaza Glass filed unfair labor practice charges against both unions. Believing that a jurisdictional dispute existed between the two unions, the Regional Director of the NLRB ordered a hearing to be held, pursuant to § 10(k) of the N.L.R.A. 1 The hearing was conducted in May, June and July 1974. The sole issue advanced by the Respondent at the § 10(k) proceeding was whether the Board lacked jurisdiction because the parties had voluntarily agreed to be bound by the decision of the Impartial Jurisdictional Dispute Board (the "Dispute Board"). A decision was issued by that Board on November 12, 1974. The Board found that there was reasonable cause to believe that both unions had violated § 8(b)(4)(D) of the N.L.R.A., 2 and that all of

Page 637

the parties involved had not agreed upon a method of voluntarily settling the dispute.

The Board awarded the work to the Glaziers. Respondent was given 10 days in which to notify the Regional Director of its compliance with the § 10(k) decision. Respondent did not answer, and a Board complaint charging unfair labor practices followed.

After Respondent filed its answer to this complaint, General Counsel for the Board filed a motion to strike the denials in the answer, together with a motion for summary judgment. The Board granted the motion, finding that all the issues raised by Respondent's denials were resolved either in the § 10(k) proceeding or by the General Counsel's evidence in support of his motions. Respondent had not presented any new evidence of its own.

Prior to the § 10(k) hearing, the two unions attempted to resolve their jurisdictional dispute by means of arbitration. In March 1974, the Dispute Board awarded the work to Respondent, on the basis of trade practice. In its § 10(k) deliberations, the Board found that Plaza Glass had not agreed to the settlement procedure used by the unions, that Plaza Glass was not bound by the decision of the Dispute Board, and that the NLRB therefore had jurisdiction over the dispute.

Reliance on § 10(k) Proceedings

Respondent objects to the use of findings from the § 10(k) proceeding as a basis for the Board's finding of an unfair labor practice under § 8(b)(4)(D). It argues that § 554 of the Administrative Procedure Act (APA) was violated because no hearing was held before an Administrative Law Judge prior to the Board's finding. Section 554 requires an "opportunity for an agency hearing" in all cases involving an "adjudication" by the agency. Rather than for the Board to rely on its prior § 10(k) proceeding, Respondent wants a formal hearing under the APA to decide all matters pertaining to the unfair labor practice charged.

In International Telephone & Telegraph Corp. v. Local 134, International Brotherhood of Electrical Workers, AFL-CIO, 419 U.S. 428, 95 S.Ct. 600, 42 L.Ed.2d 558 (1975), the Supreme Court held that the APA does not apply to § 10(k) proceedings. However, findings made in such a proceeding can be relied upon as evidence that an unfair labor practice has occurred, even in a proceeding governed by the APA. There is no rule requiring that the APA govern the gathering of all evidence, nor could there be.

In Bricklayers, Masons & Plasterers International Union of America v. NLRB, 155 U.S.App.D.C. 47, 475 F.2d 1316 (1973), the D.C. Circuit was faced with a case very similar to this one. That court ruled against the union complaining of the fact that summary judgment had cut off its opportunity for a hearing. The court said:

"When, as at present, the section 10(k) determination does not end the matter and an unfair labor practice complaint issues, the proceedings become adjudicatory. Should a factual issue be involved as to the unfair labor practice, the usual intermediate decision of the Trial Examiner would be required under the A.P.A., section 554(c)(2). Here, however, the prohibited conduct constituting the unfair labor practice was not denied. The only factual dispute was whether there had been an agreed method of settlement. This had been resolved by the Board in the section 10(k) proceedings. To relitigate it, as the Unions sought, would not have been consistent with the plan of the statute. Nor does that plan require the Board, after the unfair labor practice complaint has issued, to require the evidence upon which it has rendered its section 10(k) decision to be reconsidered by a

Page 638

Trial Examiner who would then recommend a decision." Id. at 1322.

We find this reasoning persuasive here. When no new evidence on an issue is presented, reliance on the findings on that issue in the § 10(k) proceeding is proper.

The Fifth Circuit has reached a similar conclusion. In NLRB v. International Longshoremen's Ass'n, Local 1576, 409 F.2d 709 (5 Cir. 1969), the trial examiner at the § 8(b)(4)(D) hearing relied entirely on the record from the § 10(k) hearing, since no new evidence was introduced. Indeed, the trial examiner felt bound to follow the Board's § 10(k) decision as controlling. The Board then adopted the examiner's findings and conclusions. The court of appeals enforced the Board's order and rejected the union's contention that the APA had been violated by the fact that the trial examiner felt bound by the prior § 10(k) findings. The court found the case analogous to those in the representation context, in which it is well-settled that "the Board is not required to relitigate a representation issue in an unfair practice proceeding absent additional evidence which is not merely cumulative. Pittsburgh Plate Glass Co. v. NLRB, 1941, 313 U.S. 146, 158, 161-162, 61 S.Ct. 908, 85...

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24 practice notes
  • Foley-Wismer & Becker v. N.L.R.B., FOLEY-WISMER
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 22, 1982
    ...to § 10(k) awards, e.g., ITT v. Electrical Workers, 419 U.S. 428, 95 S.Ct. 600, 42 L.Ed.2d 558 (1975); NLRB v. Ironworkers Local 433, 549 F.2d 634 (9th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977), are governed by a different set of considerations than the present c......
  • Foley-Wismer & Becker v. N.L.R.B., FOLEY-WISMER
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 28, 1982
    ...as to the jurisdictional dispute must be upheld unless arbitrary and capricious. NLRB v. International Ass'n of Ironworkers, Local 433, 549 F.2d 634, 640 (9th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977); NLRB v. ILWU, Local 50, 504 F.2d 1209, 1214 (9th Cir.1974), c......
  • Decisions And Orders:
    • United States
    • Federal Register March 30, 2011
    • March 30, 2011
    ...Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994); NLRB v. Int'l Assoc. of Bridge, Structural & Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977); United States v. Consol. Mines & Smelting Co., 455 F.2d 432, (9th Cir. 1971). The record evidence in the instant case cle......
  • Applications, hearings, determinations, etc.: Talley, Joseph H., M.D.,
    • United States
    • Federal Register November 29, 2002
    • November 29, 2002
    ...Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); NLRB v. International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977). This standard also applies in matters involving the immediate suspension of a DEA Certificate of Registration under 21 U.S......
  • Request a trial to view additional results
4 cases
  • Foley-Wismer & Becker v. N.L.R.B., FOLEY-WISMER
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 22, 1982
    ...to § 10(k) awards, e.g., ITT v. Electrical Workers, 419 U.S. 428, 95 S.Ct. 600, 42 L.Ed.2d 558 (1975); NLRB v. Ironworkers Local 433, 549 F.2d 634 (9th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977), are governed by a different set of considerations than the present c......
  • Foley-Wismer & Becker v. N.L.R.B., FOLEY-WISMER
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 28, 1982
    ...as to the jurisdictional dispute must be upheld unless arbitrary and capricious. NLRB v. International Ass'n of Ironworkers, Local 433, 549 F.2d 634, 640 (9th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977); NLRB v. ILWU, Local 50, 504 F.2d 1209, 1214 (9th Cir.1974), c......
  • N.L.R.B. v. United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry, Local No. 741, No. 82-7235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 28, 1983
    ...evidence" and its legal conclusions upheld unless they are "arbitrary and capricious." N.L.R.B. v. International Ass'n of Bridge, Etc., 549 F.2d 634, 640 (9th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 The N.L.R.B.'s interpretation of a collective bargaining agreement "i......
  • N.L.R.B. v. Yellow Transp. Co., a Div. of Yellow Cab Co-op., Inc., No. 82-7021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 8, 1983
    ...evidence" and its legal conclusions affirmed unless they are "arbitrary and capricious." N.L.R.B. v. International Ass'n of Bridge, Etc., 549 F.2d 634, 640 (9th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977). An evidentiary hearing regarding electoral conduct is requi......

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