NLRB v. LOCAL 85, INT. BRO. OF TEAMSTERS, C., W. & H.

• Decision Date: 24 January 1972
• Docket Number: No. 25983.,25983.
• Citation: 454 F.2d 875
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 85, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

454 F.2d 875 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 85, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.

No. 25983.

United States Court of Appeals, Ninth Circuit.

January 24, 1972.

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Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Allen H. Feldman, Washington, D.C., and Roy O. Hoffman, Director, NLRB, San Francisco, Cal., for petitioner.

Duane B. Beeson, of Brundage, Neyhart, Grodin & Beeson, Littler, Mendelson & Fastiff, San Francisco, Cal., for respondent.

Before MERRILL, KOELSCH and HUFSTEDLER, Circuit Judges.

KOELSCH, Circuit Judge:

Proceeding to enforce an order of the National Labor Relations Board.¹

Local 85 is the collective bargaining agent for truck drivers in San Francisco and San Mateo Counties, in the State of California. The dispute arose from the fact that two trucking firms, Victory Transportation Service, Inc. (Victory) and West Transportation, Incorporated (West), did not employ members of Local 85 when operating in San Francisco County. Victory and West are based, respectively, in Santa Clara and Contra Costa Counties, and have collective bargaining agreements covering their employees with unions other than Local 85.

Victory engaged in regular hauling for the customers of a South San Francisco liquor dealer, E. Martinoni, Incorporated (Martinoni). When making pickups at the Martinoni warehouse, Victory drivers loaded their own trucks, occasionally with the assistance of Martinoni's warehouse employees, who would deposit loaded pallets inside the trucks. On several of these occasions, representatives of Local 85 appeared at the scene and threatened Martinoni with picketing and shutdowns unless its employees stopped assisting the Victory drivers who, the union argued, were required to hire Local 85 helpers for such work. During one incident, a union representative physically assaulted Martinoni's warehouse supervisor.

West hauled construction materials from a South San Francisco producer, Grassi-American Company (Grassi), to various building sites in the San Francisco area. Local 85 representatives— contending that West had violated its work rules by using drivers who were not Local 85 members for hauls originating and terminating within the union's "jurisdiction"—went to two building sites and threatened, respectively, employees of Hellman Crane and Rigging Company (Hellman) and of Berman-Hellman Incorporated (Berman), with picketing of the job sites because of the union's dispute with West. Representatives of the local also appeared at the Grassi plant and threatened to picket the plant and stop Grassi's employees and suppliers from entering.

The Board found that Local 85 was guilty of an unfair labor practice as a result of the assault on the Martinoni supervisor, in violation of section 8(b) (1) (A) of the Act 29 U.S.C. § 158(b) (1) (A), and that the union had engaged in illegal secondary activity by its threats of picketing directed at Martinoni, Berman, Hellman, and Grassi, and by its inducement of employees of Martinoni and Berman to withhold their services in the course of their employment, in violation of section 8(b) (4) (B) 29 U.S.C. § 158(b) (4) (B).

(1) Local 85 urges that the proceeding be dismissed because prematurely brought; the contention is that the Board sought judicial enforcement of the order before first giving Local 85 an opportunity to voluntarily comply with its provisions. Local 85 cites no authority but simply makes general reference to "the Board's own Statement of Procedure and . . . the Administrative Procedure Act. . . ."

The Act contains no language which even suggests such a precondition and, if Local 85 means by its reference to the Board's "Procedure" the latter's own regulations, the only one at all relevant appears to be 29 C.F.R. 101.13(a); the pertinent language is that "after the order is issued . . . the director . . . communicates with the respondent for the purpose of obtaining compliance. Conferences may be held to arrange the details necessary for compliance with the terms of the order." Subsection (b), however, indicates that subsection (a) imposes no mandatory requirements for it declares that ". . . in some cases it is deemed desirable, notwithstanding compliance, to implement the order with an enforcing decree. . . ." See N. L.R.B. v. Raytheon Co., 398 U.S. 25, 27, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970) upholding the Board's broad discretion. And 29 C.F.R. 101.14 reiterates the same theme: "If the respondent does not comply with the Board's order, or the Board deems it desirable to implement the order with a court decree, the Board may petition the appropriate Federal Court for enforcement."

The contention lacks merit and is rejected.²

(2) Local 85 challenges the Board's findings only with...