Waterway Terminals Company v. NLRB

• Citation: 467 F.2d 1011
• Decision Date: 28 November 1972
• Docket Number: No. 26630.,26630.
• Parties: WATERWAY TERMINALS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

467 F.2d 1011 (1972)

WATERWAY TERMINALS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 26630.

United States Court of Appeals, Ninth Circuit.

October 10, 1972.

Rehearing Denied November 28, 1972.

James H. Clarke (argued), of McColloch, Dezendorf, Spears & Lubersky, Portland, Or., for petitioner.

Elliot Moore, Atty. (argued), Stanley R. Zirkin, Atty., Glen M. Bendixsen, Chief of Special Litigation, Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, NLRB, Washington, D.C., Robert J. Weiner, Officer in Charge, NLRB, Portland, Or., Charles M. Henderson, Director, NLRB, Seattle, Wash., Richard Carney, of Carney, Haley, Probst & Levak, Pozzi, Wilson & Atchison, Herndon & Ofelt, Portland, Or., for respondent.

Before DUNIWAY and TRASK, Circuit Judges, and FERGUSON,^* District Judge.

TRASK, Circuit Judge:

This case comes before the court on the petition of Waterway Terminals Company (Waterway) to review a decision and order quashing notice of hearing issued by the National Labor Relations Board on August 27, 1970, at the conclusion of a hearing under Section 10(k) of the National Labor Relations Act, as amended (29 U.S.C. § 160(k)). The Board's Decision and Order quashing the notice of hearing is reported at 185 N.L.R.B. 35 (1970). If thereafter denied a motion for reconsideration and a motion to reopen the record. On December 11, 1970, the Board filed a motion to dismiss Waterway's petition for review in this court upon the ground that the decision in the Section 10(k) proceeding was not a final order subject to review. We denied that motion.

Taking the facts largely from the Board's statement, we note that the work involved is that of loading and unloading freight at Waterway's Front Street terminal in Portland, Oregon.

Waterway is a freight interchanger unloading freight from barges and reloading it upon trucks or railcars. Prior to the middle of 1968 it subcontracted most of the barge unloading to Western Transportation Company (Western) and the reloading on railcars to Interstate Carloading Company. Western's employees were represented by the Inlandboatmen's Union (IBU), and Interstate's employees by the International Longshoremen's and Warehousemen's Union (ILWU).

In 1968, Waterway became Western's corporate successor. Shortly thereafter, Waterway and IBU negotiated a new collective bargaining agreement which provided, as did the preceding IBU-Western agreement, that employees of Waterway represented by IBU would handle the barge operations and place barge freight on a marked area from whence Interstate employees would load it into railcars.

In 1969, in response to Interstate's request for a rate increase, Waterway decided to perform the railcar work with its own employees and notified Interstate it was terminating that subcontract on October 31. Prior to the effective date of that termination ILWU acknowledged notice of the proposed change and wrote Waterway that:

"We assume that those men Interstate\'s will continue to work in their present jobs, and that our collective bargaining agreement will remain in full force and effect.

"Please be advised that we are prepared to bargain with you in good faith.

"Will you please advise us as to time and place for our meeting, because it appears to us that time is of prime essence in this matter."¹

By letter to IBU, however, Waterway agreed with IBU's claim to this railcar work which Interstate had been performing. It also informed ILWU that it would be guilty of an unfair labor practice if it negotiated with any other union than IBU. On November 1, Waterway took over the railcar functions previously performed by Interstate employees.²

ILWU thereupon picketed Waterway with signs reading "Waterways sic unfair to Longshoremen—ILWU Local 8." Waterway and IBU filed charges of violation by ILWU of Section 8(b)(4)(D) of the Act and the district court granted an injunction under Section 10(l) of the Act. Hearings were had pursuant to Section 10(k) at the conclusion of which the Board determined that the object of the picketing was to obtain reinstatement of Interstate employees under the existing collective bargaining agreement. Accordingly the Board concluded that no jurisdictional dispute existed within the meaning of Section 10(k) and quashed the notice of the 10(k) hearing previously issued.³ This petition for review followed.

Initially the jurisdiction of this court is brought into question. Lack of jurisdiction was raised by motion and a motion to dismiss was denied. The point is renewed on appeal and our ruling is the same.

Section 8(b)(4)(D) defines actions which constitute unfair labor practices on the part of a labor organization.⁴ However where disputes between two competing unions are concerned, Congress afforded a procedural opportunity for the two to settle their differences voluntarily rather than to undergo a lengthy and perhaps traumatic hearing which might satisfy no one and inflict unprovoked punishment upon the public and the employer in its course.⁵ Section 10(k) provides that machinery.

Section 10(k) of the Act, 29 U.S.C. § 160(k), reads:

"Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed."

Taking advantage of it, both Waterway and IBU, after the picketing began, filed charges alleging that ILWU had violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing or requiring Waterway to assign certain work in dispute to employees represented by ILWU rather than to employees represented by IBU.⁶ The Board's Regional Director investigated the charges and found reasonable cause to believe that they were true; on December 10, the General Counsel on behalf of the Regional Director, sought and obtained from the district court a temporary injunction against the ILWU picketing and the Section 10(k) hearing proceeded. In the hearing before an official examiner, witnesses were sworn, over 800 pages of testimony were taken and numerous exhibits were introduced on behalf of the Board and the parties.

The majority members found that there was insufficient evidence to support the charge of a "traditional" jurisdictional dispute and quashed the notice of hearing⁷ instead of determining the dispute.

The Board relies here upon the argument that under Section 10(f)⁸ review lies only from a "final order of the Board," and that an order quashing a notice of hearing under Section 10(k) is not such a final order. Reliance is placed upon NLRB v. International Longshoremen's & Warehousemen's Union, 378 F.2d 33 (9th Cir.1967), and upon a series of cases holding that the General Counsel's refusal to issue a complaint based upon an unfair labor practice charge and a Board representation petition under Section 9 of the Act is not reviewable.

We do not read NLRB v. International Longshoremen's & Warehousemen's Union, supra, nor the recent decision of this court in Henderson v. International Longshoremen's & Warehousemen's Union, Local 50, 457 F.2d 572 (9th Cir. 1972), as supporting the Board's position. In both NLRB v. ILWU and in Henderson there was an actual award under Section 10(k). This court in NLRB v. ILWU and in Henderson was thereupon concerned with the consequences which flow from the award.

Nor do we find that this case is controlled by the absence of appealability of a Section 9 representation proceeding or the General Counsel's refusal to issue a complaint. In American Federation of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940), the Court made the distinction plain as to the Section 9 argument.

"Here it is evident that the entire structure of the Act emphasizes, for purposes of review, the distinction between an `order\' of the Board restraining an unfair labor practice and a certification in representation proceedings. The one authorized by § 10 may be reviewed by the court on petition of the Board for enforcement of the order, or of a person aggrieved, in conformity to the procedure laid down in § 10, which says nothing of certifications. The other, authorized by § 9, is nowhere spoken of as an order, and no procedure is prescribed for its review apart from an order prohibiting an unfair labor practice." 308 U.S. at 409, 60 S.Ct. at 304.

The cases cited by the Board holding that the General Counsel's refusal to issue a complaint is not appealable, are likewise inapposite. In those instances no proceedings were instituted upon which review could have been based. This Section 10(k) proceeding is distinctly to the contrary. A proceeding was begun by the Regional Director; facts were developed and a record made, pursuant to formal charges instituted by all three interested parties. It was tantamount to a hearing on a complaint issued by the Regional Counsel because the Board is required to make a determination, NLRB v. Radio & Television Broadcast Engineers Union. Local 1212, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961), and that determination both completes the Section 10(k) proceedings, and resolves the Section 8(b)(4)(D) charge. In NLRB v. Plasterers' Local Union No. 79, 404 U.S. 116, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971), the Court said:

"But the § 10(k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceeding; the impact of the § 10(k) decision is felt in the § 8(b

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