Waterway Terminals Company v. National Labor Relations Board , 467 F.2d 1011 ( 1972 )

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 Ware-housemen’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:

“[W]e 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(2) 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 eases 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)(4)(D) hearing because for all practical purposes the Board’s award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10(k) decision against it, a § 8(b) (4) (D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10(k) decision and the employer does not comply, the employer’s § 8(b)(4)(D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10 (k) decision, but both will lose their § 8(b)(4)(D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board’s decision. This is the design of the Act; Congress provided no other way to implement the Board’s § 10 (k) decision.” 404 U.S. at 126-127, 92 S.Ct. at 367.

To deny review of a refusal to proceed to award under a Section 10(k) proceeding is to nullify the effectiveness of Section 8(b)(4)(D). The only avenue to relief from a dispute under that section is by way of a Section 10 (k) proceeding. An order quashing a notice of hearing under Section 10(k) therefore constitutes a “final order” as to the underlying charge based on Section 8(b) (4)(D). Appellee’s argument would place the parties back to their original position, i. e., IBU claiming the work for its members and ILWU claiming the work for its members, and the employer and the public without power to solve the problem. Such is contrary to the scheme and purpose of Section 8(b)(4)(D) and Section 10(k). NLRB v. Plasterers’ Local Union No. 79, 404 U.S. 116, 130, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971); NLRB v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 576, 580-581, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961); cf. Leeds & Northrup Co. v. NLRB, 357 F.2d 527 (3rd Cir. 1966). The Board’s order was, as to this Section 8(b)(4)(D) dispute, a “final order of the Board.”

Having decided that jurisdiction exists, we proceed to consider whether the dispute in this case is one which falls within the ambit of an unfair labor practice under Section 8(b) (4) (D).

The Board position is not that Section 8(b)(4)(D) is totally inapplicable.⁹ It adopts the view that the remedy of Waterway is more properly under Section 8(b)(4), and that a “representational” issue is raised rather than a “jurisdictional” issue. The question whether a dispute is “representational” or “jurisdictional” is not of easy answer. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1963). In Carey, the Court recognized that even though a dispute between unions might involve a representation issue, a violation of Section 8(b)(4)(D) may arise if a union pickets or uses other coercive means.

In speaking of the “blurred line” that often exists between work assignment disputes and controversies over which of two or more unions is the appropriate bargaining unit, the Court in Carey stated that:

“If this is truly a representation case, either IUE or Westinghouse can move to have the certificate clarified. But the existence of a remedy before the Board for an unfair labor practice does not bar individual employees from seeking damages for breach of a collective bargaining agreement in a state court, as we held in Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246. We think the same policy considerations are applicable here; and that a suit either in the federal courts, as provided by § 301(a) of the Labor Management Relations Act of 1947 (61 Stat. 156, 29 U.S.C. § 185(a); Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972), or before such state tribunals as are authorized to act (Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483; Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593) is proper, even though an alternative remedy before the Board is available, which, if invoked by the employer, will protect him.” 375 U.S. at 268, 84 S.Ct. at 407.

Nor do we find the law to be that due deference to the expertise of the Board compels us to reject a litigant’s resort to an applicable section of the Act because there is another that might be equally applicable. In NLRB v. Local 825, International Union of Operating Engineers, 400 U.S. 297, 306, 91 S.Ct. 402, 408, 27 L.Ed.2d 398 (1971), the Court said:

“The practices here were unfair under both sections and there is no indication that Congress intended either section to have exclusive application.”

That relief may be parallel upon some facts in the representational and the jurisdictional sections of the Act does not mean that they are identical or mutually exclusive.

In McDonnell Co. & International Assn. of Machinists & Aerospace Workers, Dist. Lodge No. 90, and International Brotherhood of Electrical Workers, Local No. 1, 173 NLRB 225 (1968), the employer filed a petition to seek clarification of a craft unit of its electrical workers which had previously been certified to the Electrical Workers Union (IBEW). The Board noted approvingly that throughout several proceedings to resolve the dispute both unions involved had “laudably refrained from engaging in the type of conduct condemned by the Act’s Section 8(b)(4)(D).” Id. at 226. In a footnote at this point the Board said:

“That the issue resulting from the Employer’s introduction of new . equipment which was never anticipated ... at the time of the Board’s earlier certifications of the competing unions could now be raised for Board consideration by strike action and a charge of a violation of Section 8(b)(4)(D) does not bar us from exercising our parallel authority under Section 9(b) on proper motion to clarify the certification on the basis of the full record now before us.” 173 NLRB at 226 n.4.

Here it is undisputed that there were two discrete groups each insisting upon its sole right to perform the carloading duties; the IBU on behalf of its members who had a collective bargaining agreement with Waterway, and were then performing the work; and ILWU which insisted it had the right to have the work assigned to its members who had previously performed it as employees of Interstate. While the situation contains elements of representation, it does not exemplify the classic representation dispute where each of two vying unions insists that it represents the majority of the employees of a given employer.¹⁰

We readily recognize, as we should, that the findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. 29 U.S.C. § 160(e). NLRB v. International Longshoremen’s & Warehousemen’s Union, 378 F.2d at 35. Here the Board rejected Section 10 (k) jurisdiction solely on the basis of Local 8’s letter of October 22, 1969, supra- note 1. It characterized this letter as one in which ILWU “. . . merely demanded continued employment of those presently working and that the collective-bargaining agreement applicable to them be given force and effect.” Were this in truth the only evidence bearing on the issue of a jurisdictional dispute the bidding of the statute might well foreclose further examination of the Board’s finding. But there was more. ILWU made no effort to obtain jobs on behalf of its Interstate employees which might become available under the new Waterway plan. On the contrary, it immediately began picketing. It also filed charges of unfair labor practices against Waterway with the Board under Section 8(a) (1) (2) (3) and (5), asserting among other things Waterway’s refusal to bargain with ILWU Local 8, “the recognized representative of the employees of the operation.” It sought no relief under the provisions of the Act for certification of its right to representation. 29 U.S.C. § 159. And the ILWU representative at the hearing formally stipulated that Local 8 “did and does claim jurisdiction over the carloading jobs and functions at 3838 and 1788 Northwest Front.” In the light of all this we are of a firm persuasion that the findings of the majority of the Board are not supported by substantial evidence on the record considered as a whole.

The difficulties involved in the semantics of a characterization of the dispute as “representational” or “jurisdictional” are somewhat clarified by measuring the fact situation against the language of the statute to determine whether a labor organization is “(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization . . . rather than to employees in another labor organization. ft

It appears clear that this is exactly what the undisputed facts disclose is the problem. We accordingly remand to the Board for a determination in accordance with the requirement of Section 10 (k) of the Act, 29 U.S.C. § 160(k).

1 . Letter of October 22, 1969. Petitioner’s Brief at 13.

2 . The Board stated that “[a]lthough Waterway also had to hire a substantial number of now employees to assist in performing these newly expanded duties, there is no evidence to warrant a finding that, but for one or two exceptions, it made any job offers to the former Interstate employees.”

There is a dispute in the evidence as to this point. There was evidence that “the word was passed around” to a good many Interstate employees that work applications were being taken by Waterway. Several testified they did not api>ly because they might have to give up their ILWU rights. R.T. at 734, 769, 797, 817.

3 . Two members of the five-member Board dissented.

4 . Section 8(b) (4) (D) of the Act, 29 U.S.O. § 158, reads in part:

“(b) It shall be an unfair labor practice for a labor organization or its agents—

“ (4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—

“(D) forcing or requiring any em-X>loyer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to emxdoyees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order of certification of the Board determining the bargaining representative for employees performing such work.”

5 . NLRB v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961).

6 . UjWU also filed charges with the Board alleging Waterway violations as a result of the same conflict. (Exh. 11). Its complaint asserted:

“Since on or about November 1, 1969, it has extended recognition to the Inland Boatmen’s Union of the Pacific, Columbia River Division, for the operations of Interstate Carloading Company in Portland, Oregon, at a time when no members of IBU were employees of the operations.

“Since on or about November 1, 1969, it has discharged the employees of Interstate Carloading Company because of their membership in ILWU Local 8.

“Since on or about November 1, 1969, it has refused to bargain about its successor employer relationship for these operations with ILWU Local 8, the recognized representative of the employees of that operation.”

7 . “Here, the evidence is insufficient to establish a traditional jurisdictional dispute between two groups of employees. The employees represented by Local 8 were terminated during the term of an existing collective-bargaining agreement as a result of Waterway’s reorganization. The evidence bearing upon Local 8’s objectives is limited to its letter of October 22, 1969, in which it merely demanded continued employment of those presently working and that the collective-bargaining agreement applicable to them be given force and effect. No other demands were made and none can be implied.” International Longshoremen’s & Warehousemen’s Union Local 8 & Waterway Terminals Co. et al., 1970 CCH NLRB 28699, 28700.

8 . Section 10(f) of the Act, 29 U.S.C. § 160(f) provides in pertinent part:

“(f) Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside.”

9 . “The crucial determination, therefore, is whether, as the Company asserts (Br. 27), the applicability of Section 8(b)(4) (D) to the picketing is ‘beyond question.’ ” Brief for Appellee at 19.

10 . That the parties considered the dispute one of jurisdiction is made clear by a stipulation entered into at the close of the Section 10(k) hearing:

“MR. POZZI: [Attorney for ILWU] We also have a stipulation, rather than calling a witness, as to the jurisdiction claim of work by Local 8 of the work involved in this dispute at 3838.

“HEARING OFFICER: What were the terms of the stipulation?

“MR. POZZI: That Local 8 does claim the work for its people, that these men claim their jobs. AVas it any broader than that?

“MR. LUBERSKY: [For Waterway] You are proposing to stipulate that ILWU Local 8 did claim and does claim jurisdiction over the carloading jobs and functions at 3838 and 1788 Northwest Front. So stipulated.

“HEARING OFFICER: Thank you. The stipulation is received.

“MR. POZZI: I think that’s all.”