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

• Decision Date: 28 May 1969
• Docket Number: No. 22747.,22747.
• Citation: 413 F.2d 30
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION; and Local 4, International Longshoremen's and Warehousemen's Union, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

413 F.2d 30 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION; and Local 4, International Longshoremen's and Warehousemen's Union, Respondents.

No. 22747.

United States Court of Appeals Ninth Circuit.

May 28, 1969.

Allison W. Brown, Jr. (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Ian D. Lanoff, Washington, D. C., Robert J. Wiener, Seattle, Wash., for petitioner.

Norman Leonard (argued), of Gladstein, Anderson, Leonard & Sibbett, San Francisco, Cal., for respondents.

Before HAMLEY, HAMLIN and HUFSTEDLER, Circuit Judges.

HAMLEY, Circuit Judge:

This matter is before us on the petition of the National Labor Relations Board (Board) for enforcement of its decision and order (163 NLRB 142) requiring respondent unions to cease and desist asserted unfair labor practices pertaining to the operation of Aluminum Company of America (company) at Vancouver, Washington.

The following facts, substantially as stated in the opening brief, are not disputed. The company is engaged in the manufacture of aluminum products at plants throughout the United States. The company's Vancouver Works is a large smelter and aluminum casting and fabricating plant located on a tract of land adjacent to the north bank of the Columbia River, four miles downstream from Vancouver and Portland, Oregon. The basic ingredient of aluminum is alumina, a fine, powdery, difficult-to-handle material obtained by refining bauxite ore.

From 1940 to 1965, alumina had been shipped to the Vancouver Works exclusively by railroad boxcars from the company-owned refining plants in Louisiana and Texas. For the last eighteen of those twenty-five years, the unloading of the boxcars at the Vancouver Works has been performed by company employees represented by the Aluminum Trades Council of Vancouver, affiliated with the Aluminum Workers International Union and Local 300 (Aluminum Workers).

In October, 1965, the company began receiving most of its alumina by vessel directly from its new refining facilities at Surinam, South America, while continuing to receive alumina in reduced quantities by railroad boxcar from other sources. To unload the vessels, the existing conveyor system was extended from the boxcar unloading shed to a hopper located on piling in the Columbia River. Mooring buoys were also constructed to secure the vessel during unloading of the ship. These facilities were used exclusively by the company.

Alumina is pulled from boxcars by air equipment. However, the ship is unloaded by the use of a clam-shell bucket operated by a crane which scoops the ore out of the hold of the vessel and deposits it into the hopper. Ordinarily a bull dozer must be used to move some alumina from the corners of the hold to within reach of the crane.¹ The alumina flows from the hopper onto the extended conveyor belt. It then moves through the boxcar unloading shed and blends with alumina being unloaded from boxcars. It is next deposited in storage tanks. From the storage tanks, the alumina is discharged into buckets which are transported by overhead cranes to hoppers from which it is fed into electrolytic cells, called "pots," for processing.

At the time this controversy arose only one ship, the S. S. LYSLAND, was used for alumina delivery. This ship is leased by the company and, on the run from Surinam to the Vancouver Works, carries only company-owned bulk alumina.² However, the S. S. LYSLAND is capable of carrying other cargo.

The round trip between Surinam and Vancouver takes approximately forty-five days. Upon arrival at Vancouver, the ship is unloaded by a crew comprising an ore craneman-transferman, two ore transfermen, and a laborer. Altogether sixteen company employees do the unloading work, as four shifts are necessary to ensure seven-day-a-week, around-the-clock unloading. These employees also unload railroad boxcars and are regularly employed in the production and maintenance unit represented by the Aluminum Workers union.

In the course of in-plant operations at the Vancouver Works, alumina is commonly moved from place to place by employees using cranes and conveyors. In the performance of such plant tasks, substantially the same skills are required as those involved in unloading the LYSLAND in the manner described. When the LYSLAND is not in port or cannot be unloaded because of difficulties with the unloading equipment, company employees who would otherwise engage in unloading can work elsewhere in the plant. Were the unloading turned over to longshoremen, company officials contemplate a reduction in the number of employees represented by Aluminum Workers.

After officials of respondent unions were unsuccessful in their efforts to have the unloading assigned to longshoremen, they warned the company that their unions would use whatever methods were at their disposal to obtain the work, including "trouble in other areas." Longshoremen later refused to load an outbound cargo of cryolite, boxed in plywood containers, which the company desired to ship on the LYSLAND from the Port of Vancouver to Surinam. At that time an official of respondent unions told the company that the ship was "blacklisted."

This led the company to file an unfair labor practice charge with the Board. Specifically, the company charged that respondent unions were threatening, coercing or restraining the company with an object of forcing or requiring it to assign the ship unloading work to longshoremen rather than to company employees represented by the Aluminum Workers union, in violation of section 8 (b) (4) (D) of the National Labor Relations Act, as amended (Act), 73 Stat. 525, 29 U.S.C. § 158(b) (4) (D) (1964).

In accordance with established procedures, the Board held this charge in abeyance while it conducted a hearing pursuant to section 10(k) of the Act, 61 Stat. 146, 29 U.S.C. § 160(k), to determine the underlying work dispute. After this hearing, the Board issued its decision and determination (158 NLRB 1024) holding that the employees of the company represented by the Aluminum Workers union were entitled to continue to perform the work of unloading alumina from the LYSLAND when it docked at the Vancouver Works. It also found that the respondent unions were not entitled to force the company to assign the disputed work to longshoremen. The Board directed respondent unions to notify the Board's regional director within ten days whether they...