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01/21/86 62-B, v. National Labor

January 21, 1986

62-B, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT 1986.CDC.18 DATE DECIDED: JANUARY 21, 1986



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL

Petition for Review of an Order of the National Labor Relations Board.

APPELLATE PANEL:

Mikva and Starr, Circuit Judges, and McGowan, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge McGowan.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN

McGOWAN, Senior Circuit Judge:

In this case, the National Labor Relations Board ("Board") held that the International Longshoremen's and Warehousemen's Union, Local 62-B ("Union") violated the National Labor Relations Act, § 8(b)(4), 29 U.S.C. § 158(b)(4) (1982), and § 8(b)(4), 29 U.S.C. § 158(b)(4) (1982), when members of the Union, who are employed by a stevedoring company, picketed in the area of a timber company's docking facilities. We hold, however, that § 8(b)(4)of the Act does not apply in this situation. We therefore enforce the Board's order only insofar as it relates to § 8(b)(4)of the Act. I. BACKGROUND

A. The Dispute

The Alaska Timber Corporation , formed some 15 years ago, produces heavy lumber at its facilities on Prince of Wales Island, Klawock, Alaska. ATC owns a dock facility at Klawock from which it ships its products. Prior to 1981, ATC contracted with its customers to sell its products "FAS," or "free along side." Pursuant to these contracts, ATC would deliver lumber to the docking facilities at Klawock. ATC's customers were responsible for loading the lumber onto ships for transportation to the customer's port. ATC's customers would ordinarily contract with a longshore service company, South East Stevedoring Company , to load the ships for transportation. The stevedoring company, in turn, employed members of the Union.

In late 1980, ATC President Edward Head informed SES that ATC was changing its method of billing and shipment from FAS to "FOB" ("free on board"). Under this method, the price of lumber would include delivery from ATC'S sawmill to the dock and subsequent loading on the customers' ship. The obvious result was that SES would no longer perform a function in the loading operation.

On January 9, 1981, the Eastern Hope, which had been chartered by the Yuasa Trading Company of Japan to pick up a load of lumber from ATC, arrived at Klawock. The Eastern Hope was the first ship to be loaded under ATC's new FOB policy. To help with the loading of the ship, ATC recalled some employees who had been laid off due to lack of work.

On January 10, 1981, Jay Browne and Larry Cotter, officials of the Union, called Mr. Head of ATC. Browne and Cotter told Head that they wanted Union members to load the Eastern Hope. Head explained that ATC had changed its sales policy from FAS to FOB, and thus refused to accept the proposal to have Union members load the ship. The Union officials then informed Head that the Union would picket the ship when loading began.

ATC began loading the Eastern Hope on January 11, 1981. The loading operation, performed by ATC's sawmill employees, took about nine days. As the loading began, the Union commenced picketing the ATC facility. The picketing took place at the facility's two entrance gates and lasted from 7 a.m. to 6 p.m. The pickets carried signs which read "Picket Informational/ATC Unfair Substandard/ILWU 62-B."

On January 18, as the loading neared completion, the Union commenced a water-based picket. A small boat patrolled along the outboard side of the Eastern Hope carrying the same picket signs as the land-based pickets carried. At night, the boat remained beside the ship. The boat picketed from January 18 through January 22.

ATC employees completed the loading of the ship on January 19. On January 20, the pilot hired to take the ship out of port arrived at one of ATC's entrance gates. The pilot, a member of the South Eastern Pilots Association, refused to board the vessel after seeing the picket line. On January 21, the pilot returned, but again refused to cross the picket line. The next day, ATC employees cut the Eastern Hope adrift from the dock. The pilot then crossed the ...


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