NLRB v. INTERNATIONAL LONGSHOREMEN'S & WARE. U.

• Decision Date: 03 July 1967
• Docket Number: No. 21299.,21299.
• Citation: 378 F.2d 33
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, and Locals 6, 10, 34, 54 and 91, International Longshoremen's & Warehousemen's Union, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.2d 33 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, and Locals 6, 10, 34, 54 and 91, International Longshoremen's & Warehousemen's Union, Respondents.

No. 21299.

United States Court of Appeals Ninth Circuit.

May 15, 1967.

Rehearing Denied July 3, 1967.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Robert S. Hillman, Attys., NLRB, Washington, D. C., for appellant.

McCutchen, Doyle, Brown, Trautman & Enerson, San Francisco, Cal., for United States Steel Corp.

Norman Leonard, Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., for respondent unions.

Jay Darwin, Darwin, Rosenthan & Leff, San Francisco, Cal., Bredhoff & Gottesman, Washington, D. C., for intervenor, United Steelworkers.

Before JERTBERG and MERRILL, Circuit Judges, and TAYLOR, District Judge.

TAYLOR, District Judge.

The National Labor Relations Board (Board) has petitioned this court for enforcement of its order pursuant to Section 10(e) of the National Labor Relations Act, as amended. 29 U.S.C. §§ 141-187 (Act). The alleged unfair labor practice having occurred in Pittsburg, California, this court has jurisdiction.

Although this is a petition by the Board for enforcement of its order finding the respondents, International Longshoremen's and Warehousemen's Union; and Locals 6, 10, 34, 54 and 91, International Longshoremen's and Warehousemen's Union (Longshoremen) in violation of Section 8(b) (4) (i) and (ii) (D) of the Act,¹ the real dispute here is whether a previous Section 10(k) order, assigning work to production and maintenance employees represented by the United Steelworkers of America, AFL-CIO, and United Steelworkers of America, Local 1440, AFL-CIO, (Steelworkers) instead of the Longshoremen, was arbitrary and capricious.²

The United States Steel Corporation (Company) is a large corporation engaged in the manufacture of steel and steel products at plants located throughout the United States, including a plant at Pittsburg, California. The Pittsburg Works, is a large steel mill which manufactures steel products from steel billets. Prior to 1964 the Pittsburg Works produced its own billets in open-hearth furnaces, these billets being loaded, unloaded and transported to and from storage areas and finishing mills on the premises by Steelworkers. Because of air-pollution regulations, the open-hearth furnaces were shut down in early 1964. In order to continue production at the Pittsburg Works the Company had to transport steel billets from its other plants by rail and by ship. Fifteen-ton billets were brought to the Pittsburg Works from Fairless, Pennsylvania, on the S.S. Columbia, a vessel owned and operated by the Company, and used exclusively for carrying billets to the Pittsburg Works. The billets were transported to the Company's dock at the Pittsburg Works, a 400 acre waterfront tract, where the Columbia was unloaded by the Steelworkers.

The Company installed two new "whirley" cranes at the Company's dock for the purpose of unloading the vessel transporting the steel billets. Railroad tracks have been installed on the pier, and when the vessel was not in port the same cranes were used to unload material from railroad cars on the pier. The vessel, as well as the railroad cars, were unloaded by the Steelworkers, these employees performing and utilizing the same skills in these operations as they did in their regular assignments throughout the plant in loading and unloading railroad cars, trucks and tractors.

Shortly before the first scheduled landing of the Columbia in February, 1964, the Longshoremen advised the Company and the Steelworkers that the Longshoremen claimed the work of unloading the Columbia. Representatives of the two unions met and discussed the disputed work assignment. When the Steelworkers maintained they would unload the Columbia the Longshoremen threatened to picket and advised the Company of their desire to be assigned the unloading of the Columbia.

When the Columbia docked on February 19, 1964, the Longshoremen placed pickets at the Pittsburg Works for three days while the ship was being unloaded. The Longshoremen carried signs with legends protesting the work assignment and passed out leaflets presenting the Longshoremen's views on the work assignment. The Columbia was unloaded in April, May and July by the Steelworkers and each time the Longshoremen picketed. The May landing of the Columbia was delayed five days because it was met with a Longshoremen's picket boat and could not obtain the services of a pilot or a tug. When the Columbia did dock five days later, approximately 300 pickets congregated at the plant gates, obstructed access to the plant, making it impossible for the plant's employees to enter for a period of 30 hours. The picketing also stopped deliveries to and from the plant as well as stopping construction work on the plant premises being performed by about 150 employees working for five independent contractors. The mass picketing was discontinued as a result of a state court proceeding on May 14, 1964.

When the Columbia returned on July 7, 1964, the Longshoremen resumed picketing at the plant gates with the end result that about 15 plant employees and 175-180 employees of various independent contractors refused to work on the premises. Pursuant to Section 10(l) of the Act a temporary injunction was issued against the picketing.

A charge was initiated by the Company and the Board proceeded to determine the merits of the jurisdictional dispute as required by Section 10(k) of the Act. After a hearing the Board determined that the Steelworkers were entitled to unload the Company's cargo from the Company's ships at the Company's dock.

The Longshoremen refused to comply with the Board's determination and the General Counsel of the Board issued a complaint against the Longshoremen alleging a violation of Section 8(b) (4) (i) and (ii) (D) of the Act. By stipulation of the parties the matter was decided by the Board on the basis of the evidence adduced at the hearing in the Section 10(k) proceeding. The Board adhered to its previous determination that the work in dispute belonged to the Steelworkers. This meant, and the Board so found, that the conduct of the Longshoremen violated Section 8(b) (4) (i) and (ii) (D) of the Act. The Board's order requires the...