Shell Chemical Company v. NLRB, 73-1399

• Citation: 495 F.2d 1116
• Decision Date: 14 June 1974
• Docket Number: No. 73-1399,73-1401.,73-1399
• Parties: SHELL CHEMICAL COMPANY, a Division of Shell Oil Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

495 F.2d 1116 (1974)

SHELL CHEMICAL COMPANY, a Division of Shell Oil Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 73-1399, 73-1401.

United States Court of Appeals, Fifth Circuit.

June 14, 1974.

COPYRIGHT MATERIAL OMITTED

Vincent J. Apruzzese, Francis A. Mastro, Springfield, N. J., for petitioner.

Lawrence M. Cohen, Chicago, Ill., Otto F. Wenzler, Labor Relations Counsel, Chamber of Commerce of U. S. A., Washington, D. C., amicus curiae.

Elliott Moore, Deputy Associate Gen. Counsel, Stanley Zirkin, Glen M. Bendixsen, Chief of Spec. Litigation, N. L. R. B., Washington, D. C., Bernard L. Samoff, Reg. Director, Philadelphia, Pa., for respondent.

Robert F. O'Brien, Camden, N. J., for intervenor Teamsters Local 676 Union.

Before TUTTLE, GEWIN and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

These cases are before us on the petitions of Shell Chemical Company (Shell) to review two decisions by the National Labor Relations Board (Board). They stem from charges filed by Shell with the Board against Teamsters Local 676 for picketing and other conduct in violation of section 8 (b) (4) (D) and section 8(b)(7) of the National Labor Relations Act (Act). Carried with the suit dealing with the section 8 (b) (4) (D) charge, petition No. 73-1399, is a motion by the Board to dismiss the petition for want of jurisdiction.

FACTS

Shell is a Delaware corporation engaged in the manufacture and non-retail sale of chemicals at its plant located in West Deptford, New Jersey. For the past ten years, Catalytic, Inc., (Catalytic) has performed maintenance services at Shell's plant. In connection with this work, Catalytic employed a truck driver named William Pollinger. Pollinger functioned primarily as a truck driver, transporting Catalytic personnel and equipment to the job site, and occasionally operated a forklift. During this time Catalytic was a party to a collective bargaining agreement with Local 676 of the Teamsters, of which Pollinger is a member. On December 9, 1971, Catalytic laid off eleven of its employees, including Pollinger, because Shell had increased the amount of maintenance work done by its own employees and withdrawn from Catalytic the use of its truck and forklift which had been operated by Pollinger. Catalytic still employed fourteen or fifteen men at the Shell plant.

Subsequent to Pollinger's lay off and the return of the truck to Shell, Catalytic employees walked to the job site and equipment deliveries were handled by other means. The truck, which had been driven by Pollinger but which was owned by Shell, was driven by a number (approximately eight) of Shell employees, who handled maintenance support tasks involving the truck on an ad hoc basis. At no time after Pollinger's lay off did Shell employ anyone classified as a truck driver.

On December 13, 1971, Moses Jackson, Local 676 Business Agent, unsuccessfully protested Pollinger's lay off to Catalytic. Attempting a different tack, on December 21, Jackson wrote a letter to Shell which stated in part: "On behalf of Mr. Pollinger, we request that he be permitted to remain on the job performing his duties as before, and the terms of the Teamsters Local 676 agreement covering him be permitted to remain in effect." Shell replied suggesting that Local 676 direct its request that Pollinger be reinstated to Catalytic. Thereafter, on January 20, 1972, Local 676 set up a picket line and picketed the Shell plant for twenty-two days, ceasing on February 11. The pickets carried signs stating, "Shell unfair to William Pollinger/unfair to Teamster Local 676." Meanwhile, Local 676 had written, on January 26, Shell a letter stating it was not seeking recognition from Shell as Pollinger's bargaining representative, and added, "We simply request that you employ Mr. Pollinger under similar conditions with similar duties to those he enjoyed while employed by his former employer."

On February 9, 1972, the Board conducted an election at Shell's plant for a unit of production and maintenance employees, including those employees doing the maintenance formerly performed by the laid off Catalytic employees. This election was held pursuant to a petition filed on December 22, 1971, (shortly after Catalytic had laid off eleven employees doing maintenance work at Shell's plant) by the Oil, Chemical and Atomic Workers International Union (OCAW). Teamsters Local 676 did not intervene or participate in any manner in that election. In June, 1972, OCAW was certified as the representative of the Shell employees. At no time has OCAW claimed assignment for its members of the truck driver job previously held by Pollinger. In fact no such particular job any longer existed.

On January 27, 1972, Shell filed charges alleging that Teamsters Local 676 had violated the Act, section 8(b) (4) (D),¹ by attempting to force Shell to assign work to Local 676 rather than to the employees represented by OCAW, and section 8(b) (7),² by picketing Shell with a recognitional object. In processing the section 8(b) (4) (D) charge, the Board instituted the prerequisite proceeding under section 10(k) of the Act.³ The Board found that the object of Local 676 picketing was to gain reinstatement for Pollinger, and did not involve a contest with another union over the work performed by Pollinger. Accordingly, the Board concluded that no jurisdictional dispute existed between the unions within the meaning of section 10(k) and quashed the notice of hearing under section 10(k). 199 N.L.R.B. No. 95 (1973). In their motion to dismiss, the Board asserts that the quashing of the notice of hearing is not reviewable under the Act, therefore denying jurisdiction to this Court. In the proceeding on the section 8(b) (7) charge, the Board concluded that the picketing by Local 676 did not have a recognitional object. Finding no violation of section 8(b) (7), the complaint was dismissed. Shell petitions for review.

SECTION 10(k) AND REVIEWABILITY

Except as authorized by statute, a court of appeals does not have jurisdiction to review actions of the Board. American Federation of Labor v. NLRB, 308 U.S. 401, 404, 60 S.Ct. 300, 84 L.Ed. 347 (1940). Section 10 of the Act, 29 U.S.C.A. § 160, is the sole provision vesting review with the courts of appeal. The Board argues, and the structure of the Act and case law support, that "order" as employed in sections 10(e)⁴ and section 10(f)⁵ refer to an order issuing from an unfair labor practice proceeding. In section 10(c), which first utilizes the term "order," and in section 10(f), under which petitioner must establish the jurisdiction of this Court, the order referred to is clearly that resulting from the culmination of the procedure outlined in section 10(b) and (c), 29 U.S.C.A. § 160(b) and (c)⁶, which involves either the dismissal of an unfair labor practice complaint or the granting of relief relating to an unfair labor practice. The courts of appeal have consistently viewed the Board's actions accepted for review in this framework.⁷ In Laundry Workers v. NLRB, supra, 197 F.2d 701, where this Court specifically addressed the question of what constitutes a final order under section 10(f), we stated:⁸

"Agreeing with, we adopt as our own, the following from the brief of the Board:

`Under the decisions of the Supreme Court and the courts of appeals it has long been established that the phrase "a final order of the Board", as used in this section, refers solely to an order of the Board either dismissing a complaint in whole or in part or directing a remedy for the unfair labor practices found — in either case an order entered as the culmination of the procedure described in Section 10(b) and (c) of the Act.

`Accordingly, attempts to obtain review in the courts of appeals of Board action, short of an order issued at the completion of the procedure specified in 10(b) and (c), have uniformly failed. Thus, it has been held that 10(f) does not confer jurisdiction upon the courts of appeals: to review certifications, which the Board has either issued or declined to issue, at the conclusion of representation proceedings under Section 9; to review other Board decisions in representation proceedings, respecting such things as the holding of an election, the appropriateness of particular units, and the labor organizations eligible to appear on the ballot; or to review the Board\'s action in scheduling hearings in unfair labor practice cases.

`Similarly, it has been held that the action of the General Counsel, in dismissing an unfair labor practice charge and declining to issue a complaint, is not a "final order" within Section 10(f), so that the courts of appeals are without jurisdiction to review such action\'."

Id. at 703.

Since a section 10(k) proceeding is not the dismissal of a complaint of an unfair labor practice or the granting of relief, as provided in section 10(b) and (c), the quashing of the notice of a section 10(k) proceeding should not be considered a reviewable order under section 10(f).⁹

The legislative history of section 10(k) is not conclusive on this question, but does offer some support for denying review. When section 10(k) was added to the Act, Congress did not amend section 10(e) and (f) or indicate any intention to expand the term "final order." Congress, in fact, rejected a proposal which would have achieved this result. The Taft-Hartley Act, as originally drafted, provided only that a jurisdictional dispute was an unfair labor practice. Section 10(k) was added in the Senate Bill which required the appointment of arbitrators by the Board to determine any jurisdictional dispute. Their decision was to be given the status of "a final order of the Board." Sen.Rep.No.105, 80th Congress, 1st Sess. at 40; I Legislative History of the Labor Management Relations Act of 1947, at 466 (1948). In a conference of the House and Senate committees, however, Congress decided not to employ the arbitration approach and rejected these provisions.¹⁰

The...