NLRB v. Local 991, International Longshoremen's Ass'n

• Decision Date: 20 May 1964
• Docket Number: No. 20284.,20284.
• Citation: 332 F.2d 66
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 991, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Local 1406, International Longshoremen's Association, AFL-CIO and South Atlantic and Gulf Coast District, International Longshoremen's Association, AFL-CIO, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

332 F.2d 66 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 991, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Local 1406, International Longshoremen's Association, AFL-CIO and South Atlantic and Gulf Coast District, International Longshoremen's Association, AFL-CIO, Respondents.

No. 20284.

United States Court of Appeals Fifth Circuit.

May 20, 1964.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Lee M. Modjeska, Atty., Arnold Ordman, Gen. Counsel, Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., for petitioner.

Sewall Myer, Houston, Tex., for respondent.

William C. Treanor, New York City, Hugh M. Patterson, V. R. Burch, Jr., Houston, Tex., Baker, Botts, Shepherd & Coates, Houston, Tex., of counsel, for Union Carbide Chemicals Co., Division of Union Carbide Corp.

Before HUTCHESON and BROWN, Circuit Judges, and SIMPSON, District Judge.

JOHN R. BROWN, Circuit Judge.

Although this is nominally a petition by the Board for enforcement of its order finding the respondent ILA unions¹ in violation of section 8(b) (4) (i) and (ii) (D) of the Act,² the real dispute is whether a previous § 10(k)³ order assigning work to one union rather than to the ILA is valid.

Union Carbide Chemicals Company manufactures, sells and distributes synthetic organic chemicals and plastics at a 400-acre plant site in Texas City, Texas. During the spring of 1960, Carbide began the construction of dock installations from which it contemplated shipping polyethelene and vinyl resins in specially constructed aluminum containers aboard a modified tanker, the SS Carbide Seadrift, which was owned by Carbide. At that time Carbide discussed the manning of these facilities with the Trades Council,⁴ the certified bargaining representative of Carbide's 2600 employees in the Texas City plant. The Trades Council took the position that the work at the container dock was covered by the contract between the Trades Council and Carbide, and that Carbide employees in the bargaining unit should perform the work. Carbide agreed and assigned the work to its employees. Then on February 16, 1961, Ralph A. Massey, president of the District ILA wrote Carbide asking for a meeting to discuss the loading and unloading of cargo at the container dock. The position of the ILA with respect to the assignment of the work is clearly stated in the letter — they expected the work to be assigned to longshoremen.⁵ Carbide announced its intention to conduct the work by plant employees and declined to meet with Massey.⁶ Needless to say, Massey was not satisfied with Carbide's response. On April 6, 1961, he again wrote to Carbide, asserting ILA jurisdiction and declaring that the ILA expected its members to do the work.⁷ On May 15, 1961, Carbide commenced its crane loading operation at the container dock, and on the same day the ILA began picketing the private road leading to the container dock area where the Seadrift was berthed. On May 16, 1961, Carbide filed an unfair labor practice charge alleging that the picketing violated § 8(b) (4) (i) (ii) (D) of the Act. The Board requested an injunction pursuant to § 10(l) of the Act,⁸ and the picketing ceased on May 22, following termination of the § 10(l) proceedings by entry of an agreed stipulation and order.

Then the Board proceeded to determine the merits of the underlying jurisdictional dispute as required by § 10(k).⁹ After the hearing as prescribed by the Board's Rules and Regulations governing § 10(k) proceedings,¹⁰ the Board determined that the regular employees of Carbide's Texas City plant, represented by the Trades Council, are entitled to the loading and unloading work at the container docks. 137 N.L.R.B. 750 (Brown, Member, dissenting). The ILA unions refused to comply with the Board's determination, and the General Counsel issued a complaint on July 13, 1962, charging a violation of § 8(b) (4) (D).¹¹ The parties waived their rights to a hearing and to the issuance of a Trial Examiner's Intermediate Report and Recommended Order and agreed to submission of the case directly to the Board for disposition. The Board adhered to its previous determination that the work belongs to Carbide employees represented by the Trades Council. This automatically meant, and the Board so found, that the conduct of the ILA violated § 8(b) (4) (i) (ii) (D). The ILA was ordered to post appropriate notices.¹² To effectuate its determination on the underlying work assignment, the Board here seeks enforcement of this order.

In the CBS case, the Supreme Court held that the Board must determine the merits of an underlying jurisdictional dispute by making an affirmative award of the disputed work in order to discharge its duties under § 10(k) of the Act. NLRB v. Radio & Television Broadcast Eng'rs, Local 1212, IBEW, AFL-CIO, 1961, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302. Prior to the CBS decision, the Board had consistently held that it discharged its duty under § 10(k) by ascertaining whether the striking union was entitled to the disputed work by virtue of either an outstanding Board order or certification, or by reason of the terms of a collective bargaining contract. If neither of these conditions was present, the Board took the view that assignment of the work was the prerogative of the Employer. In that event, the dispute was not settled since the Board did not decide that one or the other group of employees was entitled to the work. In short, this approach of the Board was not "conducive to quieting the quarrel between the two groups." 364 U.S. 573, at 579, 81 S.Ct. 330, 334, 5 L.Ed.2d 302. In order that the § 10(k) proceeding perform its intended purpose of providing "an effective compulsory method of getting rid of what were deemed to be the bad consequences of jurisdictional disputes," 364 U.S. 573, at 582, 81 S.Ct. at 336, the Supreme Court concluded that the Board must determine and settle the dispute by bringing to bear its experience in hearing and disposing of similar problems and its knowledge of standards generally used by arbitrators, unions, employers, joint boards and others.¹³

As foreseen by the Supreme Court, "this forces the Board to exercise under § 10(k) powers which are broad and lacking in rigid standards to govern their application." 364 U.S. 573, 583, 81 S.Ct. 336. We recognize, of course, that under such circumstances our review of the Board's award in such matters is limited in scope. NLRB v. Local 825, International Union of Operating Eng'rs, AFL-CIO, 3 Cir., 1964, 326 F.2d 213.¹⁴ However, the discretion of the Board is not unlimited. We have the power, as in § 9(b) cases, to determine "whether there is substantial evidence to support the Board, or its order oversteps the law." Packard Motor Car Co. v. NLRB, 1947, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040. And despite the caveat which suggests the limited scope of such review, the principle just quoted from the Packard case is explicitly adhered to by the Third Circuit in the Operating Eng'rs case. 326 F.2d 213, 218. As the Supreme Court put it last term in another context, "The Board's decisions are by no means immune from attack in the courts * * *." NLRB v. Erie Resistor Corp., 1963, 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308, 319 (super-seniority given to strike replacements and strikers who returned to work).

It is with these principles in mind that we approach review of the Board's award of work to employees of Carbide represented by the Trades Council.¹⁵ This, of course, is the crucial issue in this case. Since there is no independent review of § 10(k) work assignments, the only stage at which the ILA can contest the work award is on review of the § 8(b) (4) (i) (ii) (D) unfair labor practice order. If the § 10(k) order falls, the unfair labor practice order falls with it. The unsuccessful union must therefore acquiesce or take the bold course with its inescapable risk.

The serious challenge to this work award asserted by the ILA is that the Board failed to heed the call of the CBS case and its own Jones Construction Co. case.¹⁶ Following the CBS case, the Board in Jones Construction Co. declared its intention to "consider all relevant factors in determining who is entitled to the work in dispute." 135 NL RB 1402, at 1410. As Member Brown suggests in his dissenting opinion in our case, the Jones Construction Co. policy declaration was consistent with the direction of the CBS case to rely on "experience and common sense" in making work awards in § 10(k) proceedings. The contention of Member Brown and the ILA is that one of the relevant factors — the standard of trade jurisdiction — was not given proper weight in the work award.¹⁷ Although we fully agree that the standard may not be disregarded by the Board, we hold that there is substantial evidence in the record to support the Board's award of work to the employees of Carbide represented by Trades Council.

Carbide ships resin in both liquid and dry states. The liquid resin is pumped from Carbide's plant to dockside storage tanks. From there it is pumped through loading lines into the holds of tankers. This loading activity has been carried on for some 12 years by Carbide employees represented by Trades Council, and the ILA does not dispute the right of Trades Council employees to continue this work.

Shipments of dry resin have been made in 50 pound paper bags, in railroad hopper car containers, in intermediate box containers, and in rubber bag shipping and storage containers. All these containers have been loaded by Carbide employees at the plant for shipment by common carrier.

Of particular importance to this case is the previous handling of shipments of dry resin in paper bag containers. For these shipments, Carbide employed the services of two common carriers by water, Seatrain, Inc. and Pan Atlantic Company¹⁸ who operate the amphibious piggy-back service. Seatrain maintains yard and...