NLRB v. TEAMSTERS, CHAUFFEURS, WAREHOUSE. & H., LOC. U. 631

• Decision Date: 29 October 1968
• Docket Number: No. 21523.,21523.
• Citation: 403 F.2d 667
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOCAL UNION NO. 631, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

403 F.2d 667 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOCAL UNION NO. 631, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Respondent.

No. 21523.

United States Court of Appeals Ninth Circuit.

October 29, 1968.

Allison W. Brown, Jr. (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Roy O. Hoffman, Regional Director, N.L.R.B., San Francisco, Cal., for petitioner.

Robert L. Reid (argued), Las Vegas, Nev., Wm. F. Spalding (argued), of Gibson, Dunn & Crutcher, Los Angeles, Cal., Carroll, Davis, Burdick & McDonough, San Francisco, Cal., for intervenor. for respondent.

Before HAMLEY and HAMLIN, Circuit Judges, and PLUMMER, District Judge^*.

HAMLEY, Circuit Judge:

The National Labor Relations Board (Board) petitions for enforcement of its order of April 12, 1966, issued against respondent (Teamsters) in an unfair labor practice proceeding. The Board decision and order are reported at 157 NLRB 1621.

The proceeding involves a dispute between Teamsters and the International Brotherhood of Electrical Workers, Local 357 (Electricians) concerning work assignments at the Atomic Energy Commission's Nevada Test Site. This site consists of more than 1500 square miles and is sometimes referred to as Mercury, a designation deriving from the townsite of that name which is the point of entry to the test site from Las Vegas, Nevada.

The charging party, and intervenor herein, is Reynolds Electrical & Engineering Co., Inc. (REECO), the prime contractor for this AEC project.

On February 11, 1942, which was nine years before the AEC began nuclear testing at the Nevada Test Site, the parent International unions of the disputing locals entered into an agreement governing certain work assignments. In particular, the agreement allocated the operation of vehicles delivering electrical materials to employees represented by the Teamsters. The operation of vehicles used for electrical construction work, maintenance work, or electrical repair work was allocated to employees represented by the Electricians. The agreement sets out in some detail the tests to be applied in determining whether a particular vehicle operation falls into one category or the other.

Nuclear testing at the Nevada Test Site began in 1951, with the Nevada Company as prime contractor. On February 27, 1952, while that company was still the prime contractor, a jurisdictional dispute arose between the Teamsters and the Electricians over the staffing of a warehouse and yard, located at Mercury, used exclusively to store electrical materials. A further dispute between the same parties involved the hauling of such materials from the warehouse to the points of use.

William F. Carter, secretary-treasurer of the Teamsters, and Ralph A. Leigon, business manager of the Electricians, sought to resolve these disputes by entering into the so-called "Carter-Leigon Agreement" of February 29, 1952. In essence, the Carter-Leigon Agreement incorporates and adapts the terms of the 1942 agreement to the 1952 disputes. REECO became the prime contractor in December, 1952. While it was not a formal party to the Carter-Leigon Agreement, it abided by its terms.

Between 1951 and October, 1958, nuclear testing at the Nevada Test Site was conducted above ground. A moratorium on all nuclear testing was imposed from October, 1958 until September, 1961. Since 1961, all testing has been conducted underground, necessitating a change in the nature of REECO's operations.

During the period of atmospheric testing, the wide range destructive effect of the tests precluded the development of any permanent work buildings near the testing. With the termination of atmospheric testing, REECO developed forward staging compounds proximate to the points of testing. These forward compounds are, in turn, subdivided into smaller compounds each occupied by a specific craft. Among other things, the forward compounds contain facilities for the fabrication or assembly of materials and structures prior to their transportation for use underground in well-holes and tunnels.

The proceeding before us involves jurisdictional disputes between the Teamsters and Electricians concerning two kinds of work. The first pertains to the staffing of the forward electrical compounds. The men assigned there unload electrical materials and supplies and check, tally, place or "spot" these materials within the compound. The second kind of work involved in the jurisdictional dispute has to do with the loading of electrical materials and supplies into vehicles at the forward electrical compounds and the hauling to and unloading of such materials at the points of use.

On March 30, 1964, the Teamsters referred the disputes to the Joint Conference Board (AGC Board) for compulsory arbitration. This action was taken pursuant to grievance procedures provided for in a collective bargaining agreement between the Teamsters and the Nevada Chapter, Associated General Contractors of America, Inc., REECO being a signatory thereto. The Electricians were not a party to this agreement and therefore were not represented in this arbitration proceeding. The AGC Board award was issued on April 30, 1964 and clarified on May 6, 1964. It was favorable to the Teamsters on the hauling dispute, but was adverse to them on the compound staffing dispute.

On May 4, 1964, the Electricians, following grievance procedures provided for in a collective bargaining agreement between the Electricians and the Southern Nevada Chapter of the National Electrical Contractors Association (NECA), REECO being a signatory to that agreement, referred these same jurisdictional disputes to the NECA Joint Conference Committee.

On May 5, 1964, REECO filed a charge with the Board alleging that the Teamsters had violated 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). This section relates to jurisdictional disputes involving work assignments. REECO filed an amended charge on May 11, 1964. Beginning on the latter date, the Teamsters began resorting to self-help in the form of refusals by them to perform assigned work, a strike, and picketing at the entrance to the Nevada Test Site.

On May 13, 1964, the NECA Joint Conference Committee issued its report. It held that REECO's assignment of the work in dispute to the Electricians was proper. The Committee further concluded that if REECO complied with the AGC Board award, it would violate the contract between the Electricians and the NECA Contractors, and would not conform to the long-established practice in the area.

On May 21, 1964, the Teamsters filed a complaint against REECO in the United States District Court for the District of Nevada (case No. 666), seeking enforcement of the AGC Board's award and declaratory relief based on the Teamsters' contract with REECO. REECO answered and the Electricians and the Board intervened. On June 5, 1964, in another federal district court action filed by the Board in the same court (case No. 669), the Teamster picketing at the Nevada Test Site was enjoined.

On the basis of REECO's charge and amended charge, the Board, on May 27, 1964, instituted a proceeding under section 10(k) of the Act, 61 Stat. 146, 29 U.S.C. § 160(k), to hear and determine the dispute out of which the asserted unfair labor practice arose. On December 16, 1964, the Board issued its decision and determination of dispute in that proceeding. It found that the disputed work should be awarded to employees represented by the Electricians. Consistent with this finding, the Board held that the Teamsters were not lawfully entitled to force REECO to assign the work to employees represented by the Teamsters.

The Teamsters informed the Board that they would not voluntarily comply with the Board's determination in the section 10(k) proceeding. Thereupon an unfair labor practice proceeding was instituted on January 26, 1965, the charge being that the Teamsters had violated section 8(b) (4) (D) of the Act. On March 5, 1965, in case No. 666, the district court entered an order staying court action pending final disposition of the Board's unfair labor practice proceeding.

The Board issued its decision and order on April 12, 1966. In agreement with the trial examiner, the Board concluded that one object of the Teamsters' coercive action beginning May 11, 1964 was to affect the staffing of the forward electrical compounds. According to the Board, the Teamsters' specific objective in this regard was to force REECO either to assign Teamster employees to these compounds on a ratio of one to one with other craftsmen, or to require REECO to staff these installations exclusively with Teamster employees. The Board further determined, in this decision and order, that another object of the Teamsters' coercive conduct was to force REECO to assign Teamster employees to the work of transporting electrical supplies from forward electrical compounds to points of use.

The Board ruled that, having engaged in the described conduct with these objectives, the Teamsters violated section 8(b) (4) (D) of the Act. The Board order requires the Teamsters to cease and desist from these unfair labor practices with respect to REECO or any other person. The order also directs the Teamsters to post appropriate notices. The Teamsters failed to observe and comply with the Board decision and order of April 12, 1966, whereupon the Board instituted this enforcement proceeding.

In resisting enforcement of the Board order, the Teamsters do not contest, on the merits, the Board's determination of the work-assignment issues. Instead, they argue that, under the circumstances of this case, jurisdiction to determine the work-assignment issues was exclusively vested in the district court, in case No. 666, and that...