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McLeod v. National Maritime Union of America

decided: March 17, 1972.

IVAN C. MCLEOD, REGIONAL DIRECTOR OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PETITIONER-APPELLEE,
v.
NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, RESPONDENT-APPELLANT, AND SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA AND ITS AFFILIATES, INCLUDING THE SAILORS' UNION OF THE PACIFIC, RESPONDENT



Lumbard, Waterman and Feinberg, Circuit Judges.

Author: Waterman

WATERMAN, Circuit Judge:

This is an appeal from Judge Pierce's decision and order in the United States District Court for the Southern District of New York granting, after a full hearing, temporary injunctive relief pursuant to Section 10(l) (29 U.S.C. § 160(l)) of the National Labor Management Relations Act, as amended,*fn1 against the appellant, National Maritime Union of America, AFL-CIO (NMU), restraining that union from refusing to man two ships owned by Prudential-Grace Lines, Inc. (Prudential-Grace). The injunction was granted upon petitions filed by Ivan C. McLeod, the Regional Director of the Second Region of the National Labor Relations Board. The petitions were based upon and followed after a charge filed with the Board by Prudential-Grace Lines in which Prudential-Grace alleges that the Seafarers' International Union of North America (SIU)*fn2 and NMU had engaged in, and were engaging in, unfair labor practices within the meaning of Section 8(b) (4) (i) (D) or Section 8(b) (4) (ii) (D) of the Act (29 U.S.C. § 158(b) (4) (i, ii) (D)). Judge Pierce held that the Regional Director had reasonable cause to believe that NMU was violating or had violated the Act, and, in an opinion dated October 12, 1971, reported in 334 F. Supp. 34 (SDNY 1971), enjoined that union (334 F. Supp. 47) from refusing to man the ships pending a final disposition of the pertinent proceedings before the National Labor Relations Board.

The issues which were before Judge Pierce reach back into December 1969, when Prudential Steamship Company, Inc. acquired 100% of the stock of Grace Line, Inc., and changed the latter's name to Prudential-Grace Lines, Inc. Shortly thereafter Prudential transferred all of its ships to its newly acquired subsidiary. Prior to these transactions Prudential, which had operated solely from the east coast, had been a party to a collective bargaining agreement with NMU. Grace Line, Inc., however, had an operating government subsidy which covered two fleets: one fleet based on, and operating from, the east coast, whose unlicensed personnel had been represented by NMU; the other fleet based on, and operating from, the west coast, whose unlicensed personnel had been represented by SIU.

The present dispute was triggered in March 1971, when Prudential-Grace decided for economic reasons to transfer two ships from the east coast to the west coast.*fn3 Prior to the acquisition those ships, the S.S. "Oceanjet" and the S.S. "Seajet," had been part of the Prudential fleet. When NMU was informed of the proposed transfer its president demanded that the ships continue to be manned by NMU after they reached the west coast. SIU, understandably unenthusiastic about such a plan, asserted, through its vice-president, that SIU would man them. Thus Prudential-Grace finds itself caught between two unions: NMU refuses to sail the ships to the west coast unless Prudential-Grace agrees to its demand that it represent the crews after the transfer, and SIU may back up, with a strike if necessary, its demands to represent them.*fn4

In response to this situation, on June 23, 1971, Prudential-Grace filed with the National Labor Relations Board its charge that the two unions were acting in violation of Section 8(b) (4) (i) (ii) (D) of the Act. That section makes it 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 employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.

It is well settled that those provisions were intended to apply to disputes between "two or more employee groups claiming the right to perform certain work tasks . . . ." N.L.R.B. v. Radio and Television Broadcast Engineers Union, 364 U.S. 573, 586, 81 S. Ct. 330, 338, 5 L. Ed. 2d 302 (1961); see also Highway Truckdrivers & Helpers, Local 107, Etc., 134 N.L.R.B. 1320, 1322 (1961). Its purpose was to see that such disputes are "settled peaceably and without work stoppages." McLeod for and on Behalf of N.L.R.B. v. Truck Drivers, etc., Local, 210 F. Supp. 769, 772 (SDNY 1962). The Regional Director of the NLRB determined that there was in fact reasonable cause to believe that the two unions were acting in violation of that section of the Act and petitioned the court below for 10(l) injunctions to preserve the status quo pending final determination of the matter before the Board.

The district court correctly construed its role to be a narrow one. Within the meaning of the statute the court had to make two determinations: first, "whether the [Regional] Director could have 'reasonable cause to believe' that the charges filed were true," Douds v. Milk Drivers & Dairy Employees Union, Local 584, 248 F.2d 534, 537 (2 Cir. 1957) and, second, whether the issuance of an injunction would be "just and proper" under the circumstances. While Judge Pierce ruled that the Regional Director had not satisfied his burden of showing "reasonable cause to believe" that SIU had violated the statute, he deemed that it was appropriate to enter an injunction against NMU. NMU had maintained that its actions were within the outside perimeter of the "work preservation" defense as that defense had been recently defined by the Board in its decision in International Longshoremen's & Warehousemen's Union Local 8 (Waterways Terminals Co.), 185 N.L.R.B. No. 35. The court held, however, that the motive for the union's action was not merely to protect the jobs of any dislocated members of the crews of the vessels, but was also to protect the job opportunities of its entire hiring hall, and, because of this, NMU's actions were not within the scope of the "work preservation" defense as defined. Moreover, the court wisely declined to broaden the scope of the defense, or to adopt NMU's concept of its geographical domain. We agree with the approach taken by Judge Pierce and will do little more in this opinion than endorse the lower court's reasoning.

After the decision below was handed down and while the case had been sub judice, the National Labor Relations Board, pursuant to Section 10(k) of the Act, conducted a hearing on the merits of the jurisdictional dispute which had given rise to the unfair labor practice charge filed by Prudential-Grace. In its decision dated January 20, 1972, and reported in 194 N.L.R.B. No. 199 the Board determined that the work in dispute "should be assigned to the unlicensed seamen who are members of or represented by SIU" and that NMU "is not entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require Prudential-Grace Lines, Inc., to assign such work to individuals represented by the aforesaid labor organization."

Before reaching the merits of the controversy the Board was required to decide whether there was reasonable cause to believe that Section 8(b) (4) (D) of the Act had been violated. As in the district court, the determination of that issue turned upon whether NMU's actions were protected by the "work preservation" defense. To quote the Board at page 11 of its decision:

The Regional Director has not informed us that NMU has decided to abide by the Board's order or to comply with the Board's 10(k) determination; therefore the appeal from the 10(l) injunction issued by the district court upon the petition of the Board's Regional Director has not been mooted by the Board's disposition of the 10(k) proceeding which it began following the unfair labor practice charge presented to it by Prudential-Grace.

If NMU declines to comply, the Board's General Counsel normally initiates proceedings to determine whether NMU has committed or is committing "unfair labor practices," and, by its specific terms,*fn5 the court's injunction, if justifiably issued, should be continued until all ...


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