N.L.R.B. v. International Longshoremen's and Warehousemen's Union, Local No. 50
| Decision Date | 29 August 1974 |
| Docket Number | 72-2263 and 72-2315,Nos. 72-1908,s. 72-1908 |
| Parties | 87 L.R.R.M. (BNA) 2325, 75 Lab.Cas. P 10,316 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL NO. 50,Respondent, and International Union of Operating Engineers Local 701,Intervenor. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL NO. 50,Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Pacific Maritime Association, Intervenor. PACIFIC MARITIME ASSOCIATION et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Union ofOperating Engineers Local 701, Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Julius Rosenbaum (argued), NLRB, Washington, D.C., for petitioner in 72-1908 and for respondent in 72-2315.
Norman Leonard (argued), of Gladstein, Leonard, Patsey & Andersen, San Francisco, Cal., for respondent in 72-1908, for petitioners in 72-2263 and for interested party ILWU in 72-2315.
Richard Ernst (argued), of Ernst & Daniels, San Francisco, Cal., for amicus Pacific Maritime etc. in 72-2263 and for petitioner in 72-2315.
Don S. Willner (argued), of Willner, Bennett, Meyers, Riggs & Skarstad, Portland, Or., for charging parties in 72-1908 and for interested parties in 72-2315.
Before MERRILL and DUNIWAY, Circuit Judges, and TAYLOR, * District judge.
The National Labor Relations Board petitions, in No. 72-1908, under 29 U.S.C. 160(e), for enforcement of its cease and desist order against Local 50 of the International Longshoremen's and Warehousemen's Union. In Nos. 72-2263 and 72-2315, Local 50 and the Pacific Maritime Association (PMA), an association representing the employers, petition to set the Board's order aside. We deny enforcement in No. 72-1908 and grant the petitions in Nos. 72-2263 and 72-2315.
This is the fourth time that litigation stemming from this particular jurisdictional dispute between Local 50 (the Longshoremen) and Local 701 of the International Union of Operating Engineers (the Engineers) has reached this court. Two of our previous decisions have been published and in them we extensively reviewed both the underlying facts of the dispute and the administrative proceedings that led to judicial review. See Henderson v. International Longshoremen's and Warehousemen's Union, Local 50, 9 Cir., 1972, 457 F.2d 572; Henderson v. International Union of Operating Engineers, Local 701, 9 Cir., 1969, 420 F.2d 802. The Board's decisions in this case are reported at 193 N.L.R.B. 266 (1971) and 181 N.L.R.B. 315 (1970). Rather than once again burdening the books with a full recitation of the legal history of this dispute, we will state the facts only in the barest outline necessary for the present decision.
On April 3, 1969, in Astoria, Oregon, raftmen represented by the Longshoremen refused to hook up logs to bargemounted floating whirly cranes which were loading logs onto ships and were operated by employees represented by the Engineers. This work stoppage resulted in the firing of the Engineer crane operators by Brady-Hamilton Co. and W. J. Jones & Son, Inc., the stevedoring companies which had leased the barges and cranes, with their crews, from their owners. Longshoremen then began operating the cranes and they have done so ever since. In the work assignment dispute that has culminated in this litigation, both the Longshoremen and the Engineers claim the right to be assigned to operate the barge-mounted floating whirly cranes loading logs on ships in Astoria.
Shortly after the work stoppage, the Engineers filed unfair labor practice charges against the Longshoremen with the Board. The Engineers also began picketing the Brady-Hamilton and Jones jobsites. PMA, representing the employers, then filed unfair labor practice charges against the Engineers. The Board's Regional Director obtained an injunction under 10(l), 29 U.S.C. 160(l) of the National Labor Relations Act (NLRA). See Henderson v. International Union of Operating Engineers, Local 701, supra. After a short investigation, the Board concluded that there was reasonable cause to believe that both the Longshoremen and the Engineers had violated 8(b)(4)(D) of the NLRA (29 U.S.C. 158(b)(4)(D)), which forbids coercive union activity designed to force any employer to assign work to one union instead of another. As a result of this preliminary finding, the Board held hearings under 10(k) (29 U.S.C. 160(k)) to determine which set of employees was entitled to the work in dispute. At the conclusion of these hearings, the Board held that the employees represented by the Engineers were entitled to the work, 181 N.L.R.B. 315, 317.
The Longshoremen failed to notify the Board within the ten days fixed by the statute that it would comply with the Board's determination, and therefore the Board issued an unfair labor practice complaint against the Longshoremen. Hearings were held, and the Trial Examiner found that the Longshoremen had violated 8(b)(4)(i)(ii)(D) of the NLRA and the Board adopted his findings, conclusions and recommendations and issued a cease and desist order against Local 50, 193 N.L.R.B. 266. This is the order that the Board now seeks to have enforced and that the Longshoremen and PMA seek to have set aside.
In an enforcement proceeding such as this, based upon the Board's determination that a union has violated 8(b)(4)(D), there is usually no question that the union has committed unfair labor practices within the plain meaning of the statute, assuming that the Board's 10(k) decision is valid. As the Supreme Court has noted, 8(b)(4)(D) is inextricably tied to 10(k). NLRB v. Plasterers' Union, 1971, 404 U.S. 116, 123, 92 S.Ct. 360, 30 L.Ed.2d 312; NLRB v. Radio and Television Engineers, Local 1212, 1961, 364 U.S. 573, 576, 81 S.Ct. 330, 5 L.Ed.2d 302 (). Because the Board's 8(b)(4)(D), complaint is predicated upon its resolution of the work assignment dispute in the 10(k) hearing the crucial question, in this case, is whether the Board's 10(k) award is sustainable. NLRB v. International Longshoremen's and Warehousemen's Union, 9 Cir., 1967, 378 F.2d 33, 34. The only significant issues raised by the briefs submitted in this case concern the validity of the Board's 10(k) award. 1 If we determine that the Board's assignment of the disputed work to the Engineers is sustainable then the Board's cease and desist order must be enforced. Conversely, if we determine that the 10(k) work award is not sustainable then enforcement should be denied.
Since it has begun making affirmative work awards under 10(k) in jurisdictional disputes, the Board has formulated its decisions in the same manner in the overwhelming majority of its cases. These decisions generally segregate the factors evaluated, discuss them in separate paragraphs, and make individual determinations about which union a particular factor favors. In its conclusions the Board usually cites the most influential of these factors. However, the Board almost always disclaims reliance upon any particular factor by asserting that the decision was made 'upon the entire record, and after full consideration of all relevant factors . . ..' Local 2, IUOE (PVO Int'l Inc.) 209 N.L.R.B. #109 at 10 (1974).
Unfortunately, the Board's decision-making process was, if anything, more obtuse than usual in the 10(k) case under review. In its opinion the Board moved almost aimlessly from factor to factor without making explicit how much weight a particular factor was given or in some instances even which union the factor favored. Despite this unsatisfactory method of analysis, the Board did mention nine of the factors that it frequently evaluates in jurisdictional dispute decisions.
The Board noted that Engineers had operated the floating cranes loading logs on ships at Astoria from the time of their introduction there in 1964 until the work stoppage in 1969, and that the Longshoremen had 'long acquiesced' in this assignment. Thus the factors of past practice and acquiescence were presumably found to favor the Engineers.
The Board was more explicit in holding that the factors of skill, economy and safety favored the Engineers. The Board found that the work in question was very difficult and that the Longshoremen were, without exception, inexperienced at this work while the Engineers were highly skilled floating crane operators. The Board also found that after the Engineers were fired and replaced by Longshoremen, the safety record of the crane operation deteriorated while the expense of it increased. Outside repairmen had to be hired after the Engineers were fired because the Longshoremen, unlike the Engineers, were unable to service the cranes.
Additionally, the Board held that the Longshoremen's Board certification did not cover the disputed work because the certification was issued before the introduction of this type of crane. In considering the PMA-Longshoremen collective bargaining contract, to which the employers, Brady and Jones, were bound, the Board concluded that the agreement specifically excluded the disputed work from its provisions. The Board also distinguished prior Board 10(k) decisions which had accorded this PMA-Longshoremen contract significant weight. Finally, while the Board failed to discuss employer preference, it did mention the fact that the employers' original work assignment was to the Engineers.
In sum, the Board's 10(k) decision appears to rest upon the finding that the Engineers were more skilled, efficient, and safe employees whose work assignment the factors of past practice and acquiescence also favored. In finding in favor of the Engineers, the Board rejected the Longshoremen's claims that the factors of Board certifications, industry practice, collective bargaining agreements, employer preference, and Board precedent favored them.
To continue reading
Request your trial
-
Int'l Longshore & Warehouse Union v. ICTSI Or., Inc.
...10(k) decisions are not final orders and are not directly reviewable by any court. N.L.R.B. v. Int'l Longshoremen's & Warehousemen's Union, Local No. 50, 504 F.2d 1209, 1213 n. 1 (9th Cir.1974). To obtain review of a § 10(k) decision, “a party must fail to comply, thereby precipitating an ‘......
-
Foley-Wismer & Becker v. N.L.R.B.
...a § 10(k) hearing should be reviewable. This court seems to have recognized this significant distinction in NLRB v. ILWU Local 50, 504 F.2d 1209, 1212 n.1 (9th Cir. 1974), where we observed that Waterway is perfectly consistent with NLRB v. Plasterers Union, 404 U.S. 116, 92 S.Ct. 360, 30 L......
-
Bergman v. N.L.R.B.
...on the record as a whole. See Portland Willamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976); NLRB v. International Longshoremen's Union, Local 50, 504 F.2d 1209, 1214 (9th Cir. 1974), cert. denied, 420 U.S. 973, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975); 29 U.S.C. § 160(f). However, based......
-
Foley-Wismer & Becker v. N.L.R.B.
...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), cert. denied, 420 U.S. 973, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975); NLRB v. ILWU, 413 F.2d 30, 33 (9th Cir.1969). Section 10(k) ......