Philadelphia Marine Trade Association v. NLRB

• Decision Date: 06 April 1964
• Docket Number: No. 14225 and 14257.,14225 and 14257.
• Citation: 330 F.2d 492
• Parties: PHILADELPHIA MARINE TRADE ASSOCIATION and Its Members, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Local 1291, ILA, Intervenor. Local 1332, ILA, Intervenor. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION LOCALS 1291, 1332, 1566 AND 1242, Petitioners, Local 1332, ILA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Philadelphia Marine Trade Association and Its Members, Intervenors.
• Court: U.S. Court of Appeals — Third Circuit

330 F.2d 492 (1964)

PHILADELPHIA MARINE TRADE ASSOCIATION and Its Members, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Local 1291, ILA, Intervenor.

Local 1332, ILA, Intervenor.

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION LOCALS 1291, 1332, 1566 AND 1242, Petitioners, Local 1332, ILA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Philadelphia Marine Trade Association and Its Members, Intervenors.

Nos. 14225 and 14257.

United States Court of Appeals Third Circuit.

Argued November 4, 1963.

Decided April 6, 1964.

Robert G. Kelly, Philadelphia, Pa. (Kelly, Deasey & Scanlan, Philadelphia, Pa., on the brief), for Philadelphia Marine Trade Assn.

Abraham E. Freedman, Philadelphia, Pa. (Martin J. Vigderman, Wilfred F. Lorry, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for petitioners.

Elliott Moore, NLRB, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, on the brief), for National Labor Relations Board.

Lisbon U. Tillman, Philadelphia, Pa. (John Stuart Carnes, Philadelphia, Pa., on the brief), for Intervenor Local 1332, International Longshoremen's Union.

Before STALEY, HASTIE and SMITH, Circuit Judges.

STALEY, Circuit Judge.

The National Labor Relations Board has found that the employer-members of the Philadelphia Marine Trade Association ("PMTA") violated § 8(a) (3) and (1) of the National Labor Relations Act.¹ More specifically, the Board determined that these employers wrongfully locked out all of the longshoremen employed by them in the Port of Philadelphia because certain of those longshoremen properly refused to work under conditions found to be unsafe. 138 N.L.R.B. 737 (1962). The case is here on petitions for review filed by the PMTA and by the International Longshoremen's Association, Locals 1291, 1332, 1566, and 1242. The Board has requested enforcement of its order in its answer to the petition of the PMTA. The PMTA asserts that the Board's determination is unwarranted, while the union contends that the Board should have found additional violations and that its back pay award is inadequate.

The dispute which gave rise to the instant proceeding was based upon the insistence by one of the employer-members of the PMTA, Atlantic and Gulf Stevedores, Inc., that the longshoremen employed by it use wooden pallets instead of slings to unload a cargo of sugar on the S.S. Caribe. Perhaps the most concise statement of the factual circumstances attending this controversy is contained in the following excerpt from the decision of the Board:

"As the Trial Examiner found, on June 30, 1959, some 90 A & G employees, longshoremen members of Local 1291, reported to the S.S. Caribe to unload a full cargo of bagged sugar. Upon arrival, they learned that they were to unload the bags with the use of pallets rather than slings. They notified their union representatives that they would not unload with pallets as they considered such an operation unsafe. The representatives communicated the longshoremen\'s decision to Emery, the pier supervisor of A & G, and a compromise proposal was offered by Emery whereby the longshoremen would unload the ship with slings and then use pallets for rehandling the bags on the dock. By the time Local 1291 accepted, however, the proposal was abruptly withdrawn by William Toner, District Manager of A & G, who made his appearance while the Union representatives were conferring among themselves. The longshoremen then left the ship, and worked neither that day nor the following day, July 1. After several conferences between officials of ILA, A & G, and PMTA, an employers\' association of which A & G was a member, an agreement was reached between Toner and J. T. Moock, a vice-president of ILA, whereby the men would start unloading with pallets and a changeover to slings would be made shortly thereafter.

"At 8 a. m. on July 2, the A & G longshoremen began unloading with the use of pallets. It is clear, as the Trial Examiner found, that bags of sugar fell from the pallets during the unloading operation. And Toner admitted that even one falling bag was dangerous. When a shift to slings was not made by A & G during the morning despite the complaints of the longshoremen, they refused to return to work after lunch. The Respondents thereupon advised ILA by telegram that unless the A & G longshoremen resumed work on the Caribe at 8 a. m. on July 3, all longshoremen represented by Local 1291 would be locked out throughout the entire Port of Philadelphia commencing July 6. At 8 a. m. on July 3, however, A & G still had not shifted to slings, and the Caribe longshoremen accordingly continued to refuse to work. At noon all the other longshoremen members of Local 1291 in the Port of Philadelphia area stopped work to meet at the union hall for a discussion of the lockout threatened by the Respondents. They were directed by ILA officials to report for work as usual on July 6. When they did, however, the Respondents carried out their threat and locked them out. Moreover, the Respondents insisted that the lockout would not be lifted until the A & G longshoremen resumed work under the unsafe conditions which had caused them to cease work in the first place. The Respondent further refused to consider the safety question under the grievance and arbitration provisions of the contract until the longshoremen resumed work on the Caribe. On July 21, however, the Respondents finally receded from their position, agreed to end the lockout, and likewise agreed to arbitrate the safety question. On the following day, the arbitrator observed the operation of unloading the bagged sugar from the Caribe with the use of pallets, and found it to be an unsafe operation. Thereupon, A & G substituted slings, and the A & G longshoremen completed their work of unloading the Caribe, without further incident."

The Board held that, as the longshoremen's refusal to work resulted from an abnormally dangerous condition of work, this refusal did not constitute a strike under § 502 of the Act,² even assuming the existence of a no-strike contract. Accordingly, this quitting of labor was held to be protected by the Act, and the lockout was found to be in violation of § 8(a) (3) and (1). Back pay was awarded to all longshoremen, including those who had refused to work on the S.S. Caribe, from the date of the lockout on July 6, 1959, until July 22, 1959. However, the Board, reversing the trial examiner, concluded that, in the circumstances of this case, the employers did not discriminate against the members of sister unions who did not work during the period of the lockout and who were normally employed as maintenance men, timekeepers, checkers, or carloaders in the Port of Philadelphia.

The PMTA does not seriously challenge the Board's finding that the work stoppage was caused by an abnormally dangerous condition of work. See National Labor Relations Board v. Knight Morley Corp., 251 F.2d 753 (C.A. 6, 1957), cert. denied, 357 U.S. 927, 78 S.Ct. 1372, 2 L.Ed.2d 1370 (1958). The Association argues, however, that the lockout was justified because its purpose was to compel the union to abandon a "quickie strike," and to compel the submission of the dispute to arbitration. The short answer to this is that because the union's activity was found to come within the ambit of § 502, it was not a strike in violation of the contract but, on the contrary, was protected activity. In these circumstances, the Board properly concluded that the lockout by the PMTA in an attempt to compel the longshoremen to abandon this protected activity gave rise to a violation of § 8(a) (3) and (1). See, Utah Plumbing and Heating Contractors Assn. v. National Labor Relations Board, 294 F.2d 165 (C.A.10, 1961); Quaker State Oil Refining Corp. v. National Labor Relations Board, 270 F.2d 40 (C.A.3), cert. denied, 361 U.S. 917, 80 S.Ct. 261, 4 L.Ed.2d 185 (1959); National Labor Relations Board v. Knight Morley Corp., supra (discharge for refusal to work under...