NLRB v. Los Angeles Yuma Freight Lines

• Decision Date: 27 July 1971
• Docket Number: No. 25151.,25151.
• Citation: 446 F.2d 210
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOS ANGELES YUMA FREIGHT LINES et al., Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

446 F.2d 210 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOS ANGELES YUMA FREIGHT LINES et al., Respondents.

No. 25151.

United States Court of Appeals, Ninth Circuit.

July 27, 1971.

Thomas Silfen (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Deputy Asst. Gen. Counsel, Washington, D. C., C. Woodward Greene, Director, NLRB, Albuquerque, N. M., for petitioner.

Goldstein, Gentile & Kirshman, Beverly Hills, Cal., for respondents.

Before BARNES, DUNIWAY and WRIGHT, Circuit Judges.

DUNIWAY, Circuit Judge:

The National Labor Relations Board petitions to enforce its order directing Los Angeles-Yuma Freight Lines and Svensson Freight Lines (collectively, the Company) to cease and desist from refusing to recognize and bargain collectively with Locals 104, 208, and 357 of the International Brotherhood of Teamsters and from refusing to reinstate unfair labor practice strikers in violation of sections 8(a) (5) and (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (5) and (1) and (3). The Board further ordered the Company to take certain affirmative action.

A full understanding of the factual context of this case requires a familiarity with the nationwide multiemployer bargaining between the Teamsters International and Trucking Employer's, Inc., during late 1963 and early 1964 which culminated in adoption of a national collective bargaining agreement, the 1964-67 National Master Freight Agreement. The nature of the negotiations leading up to that agreement and the relationship of individual employers and regional employer associations to the national employer bargaining representatives are set out at some length in the Board's decision and order, 172 N.L.R.B. No. 40. We do not repeat that discussion here.

The chronicle of events most pertinent to the charges here involved begins in late 1963. Before January 1, 1964, the Company's Yuma employees were represented by Local 898, affiliated with Joint Council 42 (Los Angeles). Effective January 1, 1964, Teamsters International granted permission to transfer jurisdiction over the Yuma employees from Joint Council 42 to Joint Council 71 (Phoenix). By January 1, 1964, a majority of the Company's Yuma employees had transferred membership to Local 104, affiliated with Joint Council 71. Through February, 1964, the Company recognized and dealt with Local 104 as the representative of its Yuma employees under the terms of the then current 1961-64 Western States Master Freight Agreement.

In January, 1964, the Company discharged two of its Yuma truck drivers and laid off another. Local 104 notified the Company in early February that a grievance had been filed over one of the discharges. The Company then sought advice from the California Trucking Association, a regional employer bargaining association of which the Company was a member, about the jurisdiction of Local 104. A labor relations employee of the Association advised the Company that it need not deal with Local 104 and prepared a document, which the Company executed, cancelling the Company's power of attorney authorizing the Association to bargain for it with Local 898 as representative of the Yuma employees.

On February 17, 1964, representatives of Local 104 were informed by the Company that it did not recognize Local 104 under the existing contract and that it would refuse to participate in any grievance proceedings. Shortly, thereafter, the Local wrote a letter to the Company demanding that it recognize and bargain with it and filed grievances on behalf of two of the terminated truck drivers. After a hearing on March 2, 1964, the Area Joint Labor-Management Committee issued its decision directing the Company to recognize and deal with Local 104 and to reinstate the two drivers. The Company did not comply and on April 23 cancelled its remaining powers of attorney for bargaining with Teamster locals, effective June 30, 1964, the expiration date of the 1961-64 Agreement.

On April 28, 1964, Local 104 went on strike and began picketing at the Company's Los Angeles and Yuma terminals. The Los Angeles picketing continued substantially uninterrupted until late June or early July, 1964, when five of the Los Angeles based strikers, members of Local 208, announced to the Company that the picket line had been withdrawn and unconditionally offered to return to work. The Company refused the offer, stating that the strikers had been permanently replaced on May 28 and that they would have to apply for rehire with a new seniority date. Local 208 then filed grievances on behalf of the replaced strikers with the Area Joint Labor-Management Committee. The Company sent its attorney as its representative to the grievance proceeding. Under a Joint Area Committee rule, however, an attorney is not a proper representative, and he was excluded. The Company failed to substitute a proper representative, and the grievances were processed ex parte, resulting in an order depriving the Company of its protection under the contract's no strike clause. The strikers were not ordered reinstated.

At the Yuma terminal, picketing did not cease until May, 1965, when all the Yuma based strikers, members of Local 104, unconditionally offered to return to work. The Company did not rehire any of the strikers, citing, among other reasons, permanent replacement and strike misconduct. It does not appear that grievances were filed on behalf of any of the Yuma based strikers.

At the Company's Phoenix terminal, there was a short period of picketing from the evening of June 7 until June 10, 1964. Two of the Phoenix strikers, who unconditionally offered to return to work, were discharged. Grievances were filed on their behalf, and the Company again failed to send a proper representative. On June 16, 1964, the grievance committee ordered the strikers reinstated, but the Company refused to comply.

The Company argues that the unfair labor practice charges brought against it are barred by the six-month statute of limitations contained in section 10(b) of the Act.¹ The charges were filed on December, 8, 1964. Thus, the section 10(b) cutoff date is June 8, 1964.

1. Section 8(a) (5) and (1) violations.

The Board found that the Company violated sections 8(a) (5) and (1) by

"(1) refusing to recognize or deal with the Teamsters International, Local 104, Local 208, and Local 357, as the collective-bargaining representative of the employees here involved on or after June 8, 1964; (2) repudiating and refusing to abide by the terms and conditions of the applicable 1961-64 collective-bargaining agreements in question on or after June 8, 1964; (3) refusing to process, pursuant to the applicable 1961-64 and 1964-67 bargaining agreements, the grievances filed in behalf of certain discharged and/or laid-off employees after June 8, 1964; (4) refusing to abide by the awards made by the duly constituted grievance panels with respect to the aforesaid grievants; (5) refusing to recognize and repudiating the applicable 1964-67 collective-bargaining agreements here in question; and (6) refusing to recognize on and after June 8, 1964, the transfer of jurisdiction from Joint Council 42 to Joint Council 71."

In making these findings the Board modified the Trial Examiner's recommendation by recognizing as violations only conduct occurring after June 8, 1964. Specifically, the Board relied on (a) the Company's failure to process the June 16, 1964, grievances of the discharged Phoenix strikers, (b) the failure to process the late June or early July, 1964, grievances of the Los Angeles strikers, and (c) a November 7, 1964, strike settlement meeting during which the Company repudiated its obligation to execute and abide by the 1964-67 Agreement. The Board now concedes that finding (c) above is not supported by substantial evidence because the Trial Examiner expressly discredited the testimony on which it was based. That leaves only the failure to process the two grievances as conduct occurring after the 10(b) cutoff date. We conclude that that conduct, standing alone, does not constitute substantial evidence of a refusal to bargain in good faith in violation of sections 8(a) (5) and (1).

We begin with the proposition that Congress did not intend every breach of a collective bargaining agreement to be, per se, an unfair labor practice. See International Union, United Mine Workers v. N.L.R.B., 1958, 103 U. S.App.D.C. 207, 257 F.2d 211, 214-215 (discussing the legislative history of the Taft-Hartley Act). See also Amalgamated Clothing Workers of America v. N.L.R.B., 1965, 120 U.S.App.D.C. 47, 343 F.2d 329, 331; Cheney California Lumber Co. v. N.L.R.B., 9 Cir., 1963, 319 F. 2d 375, 378. Of course, some breaches of contract may also amount to unfair labor practices. See N.L.R.B. v. C & C Plywood Corp., 1967, 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486.

The question to be determined in each case is whether under the circumstances conduct which arguably is a breach of the terms of a collective bargaining agreement also violates the statutory obligation to bargain in good faith as defined in section 8(d) of the Act.² In making such a determination it must be kept in mind that Congress provided a judicial remedy for enforcement of labor contracts when it enacted section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and that the remedy is available even though the conduct constituting a breach of contract is also an unfair labor practice. See Smith v. Evening News Association, 1962, 371 U. S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246. The section 301 remedy extends to suits to compel arbitration of individual grievances, Textile Workers v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L. Ed.2d 972, and to specifically enforce an arbitrator's award ordering reinstatement and back pay to individual employees, United Steelworkers v. Enterprise Wheel and Car Corp.,...