NLRB v. International Longshoremen's Ass'n, Local 1576, 26131.

• Decision Date: 29 April 1969
• Docket Number: No. 26131.,26131.
• Citation: 409 F.2d 709
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1576, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

409 F.2d 709 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1576, AFL-CIO, Respondent.

No. 26131.

United States Court of Appeals Fifth Circuit.

April 29, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Clifford Potter, Director, Houston, Tex., Lawrence J. Sherman, Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Solomon I. Hirsh, Atty., N.L.R.B., for appellant.

Arthur J. Mandell, Mandell & Wright, Houston, Tex., for appellee.

Before BELL and THORNBERRY, Circuit Judges, and CHOATE, District Judge.

PER CURIAM:

This is a petition to enforce an order of the Board against Respondent with respect to the assignment of work as between Respondent Local 1576 and International Longshoremen's Association, Local 329, AFL-CIO. The work in question had to do with discharging crated green fruit when part of a mixed cargo from vessels stevedored by Texas Contracting Company. After a Section 10(k) hearing, 29 U.S.C.A. Section 160(k), the Board awarded the work to Local 329. 162 NLRB No. 80.

Thereafter, Local 1576 having failed to comply with the Board's order within ten days, the matter proceeded as an unfair labor practice under Section 8 (b) (4) (i) and (ii) (D) of the Act. 29 U.S.C.A. § 158(b) (4) (i) and (ii) (D). The order of the Board in sustaining the unfair practice charge is supported by substantial evidence on the record as a whole. This follows from our conclusion that there is substantial evidence which supports the award of the work to Local 329. New Orleans Typographical Union No. 17 v. NLRB, 5 Cir., 1966, 368 F.2d 755. It is undisputed that Respondent engaged in picketing in an effort to obtain the work in question and that members of Local 329 refused to cross the picket line.

Under the procedure followed in 10(k) proceedings, where Respondent refuses to abide the order of the Board, the remedy of the Board is to institute an unfair practice proceeding against the Respondent. This two-stage course was followed here. The Section 10(k) record was already made and had been the basis of the Board's action in that proceeding. That record was introduced in the unfair practice proceeding before the Trial Examiner. The Trial Examiner then afforded Respondent the opportunity to introduce new or previously undiscovered evidence to rebut the Board's determination in awarding the work in question. The examiner announced that absent such additional evidence, he would be bound to follow the Board's 10(k) decision as a controlling precedent. Respondent offered no new or additional evidence. The examiner found the unfair practice which is the subject matter of this petition to enforce, and the Board adopted the examiner's findings, conclusions, and recommendations.

Respondent now contends that it was denied due process of law...