International Longshoremen'S And Warehousemen'S Local 13; International Longshoremen'S And Warehousemen'S Local 63

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 704 (N.L.R.B. 1989)

704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Longshoremen's and Warehousemen's
Local 13 ; International Longshoremen's and
Warehousemen's Local 63 and The Careau
Group d/b/a Egg City
International Longshoremen's and Warehousemen's
Local 13; International Longshoremen's and
Warehousemen's Local 63 ; Metropolitan Steve-
doring Company ; Long Beach Container Termi-
nal, Inc.; Pacific Maritime Association and The
Careau Group d/b/a Egg City and International
Longshoremen's and Warehousemen's Union,
Party to the Contract . Cases 31-CC-1895 and
31-CE-196
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 29, 1988, Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief; International Longshoremen's and
Warehousemen's Local 13 and International Long-
shoremen's and Warehousemen's Local 63 (Re-
spondent Locals 13 and 63) filed cross-exceptions
and a supporting brief; and Respondents Metropoli-
tan Stevedoring Company, Long Beach Container
Terminal, Inc., and Pacific Maritime Association
filed an opposition brief to the General Counsel's
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
We agree with the judge, as does our dissenting
colleague, that Respondent Local 63 has violated
Section 8(b)(4)(i)(B) and 8(b)(4)(ii)(B) and that Re-
spondent Local 13 has violated Section
8(b)(4)(ii)(B) of the Act. We further agree with the
judge, contrary to our dissenting colleague and for
the reasons set forth below, that there was no vio-
lation of Section 8(e) or Section 8(b)(4)(A).
The Respondents were all bound to a collective-
bargaining agreement that provided in part:
11.51 Refusal to cross a legitimate and bona
fide picket line, as defined in this paragraph,
' Respondent Locals 13 and 63 have excepted to some of the judge's
credibility findings . The Board 's established policy is not to overrule an
administrative law judge 's credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings
shall not be deemed a violation of this Agree-
ment . Such a picket line is one established and
maintained by a union, acting independently of
the ILWU longshore locals, about the prem-
ises of an employer with whom it is engaged
in a bona fide dispute over wages, hours or
working conditions of employees, a majority
of whom it represents as the collective bar-
gaining agency. Collusive picket lines, jurisdic-
tional picket lines, hot cargo picket lines, second-
ary boycott picket lines and demonstration
picket lines are not legitimate and bona fide
picket lines within the meaning of this Agree-
ment. [Emphasis added.]
During the week preceding August 20, 1986, a
container of Egg City products was delivered to
the facility of Respondent Metropolitan Stevedor-
ing Company (Respondent Metropolitan). The con-
tainer was stored in a refrigerated area to await the
arrival of a ship due about a week later. On August
20, 1986, United Farm Workers (UFW) pickets pa-
trolled the main gate at the Metropolitan terminal
with signs stating , "On strike against Egg City."
Metropolitan representatives had been told that
UFW would picket unless the Egg City container
was removed.
After the picket line was established, representa-
tives of Respondents Local 13 and Local 63 told
representatives of Respondent Metropolitan that
labor would be removed from the terminal unless
the picket line was moved inside the terminal and
the UFW picketing allowed around the Egg City
container . (Such conduct by Local 13 and Local 63
is found to have violated Sec. 8(b)(4)(ii)(B) of the
Act.) Metropolitan allowed the picketing inside the
terminal that night.
That same day a representative of Respondent
Pacific Maritime Association (Respondent PMA),
of which Metropolitan was a member, participated
in a labor relations committee meeting pursuant to
the grievance procedures of the contract. Repre-
sentatives of Respondent Local 63, Respondent
Metropolitan, and UFW were present. An Egg
City representative participated by telephone. Re-
spondent Local 63 took the position that the UFW
picketing of the container inside the terminal was
bona fide, while Respondent PMA claimed the
picketing was a secondary boycott and not bona
fide under the provisions of section 11 of the col-
lective-bargaining agreement.
The same day a telephone arbitration hearing
was conducted by arbitrator George Love. The
parties stated their positions, and the arbitrator im-
mediately ruled that the situs of the Egg City strike
295 NLRB No. 74
LONGSHOREMEN ILWU LOCAL 13 (EGG CITY) 705
had been expanded and that the picket line was
bona fide under section 11.5 of the contract.
Our dissenting colleague would find that Re-
spondents Metropolitan , Long Beach Container
Terminal , Inc., and PMA , as well as Respondents
Local 13 and Local 63, violated Section 8(e)2 by
"enter[ing] into" an agreement that is unlawful
within the meaning of Section 8(e) of the Act be-
cause the parties submitted the dispute to an arbi-
trator which resulted in an arbitration award stat-
ing: "The UFW picket, placed at the one contain-
er, is bonafide [sic], the ILWU work force does not
have to handle it."3
We agree with the judge that the contract as in-
terpreted by the arbitrator was violative of Section
8(e). However, we also agree , contrary to our dis-
senting colleague, that neither the Respondent Em-
ployers nor the Respondent Unions, by virtue of
the arbitrator's decision , entered into an agreement
that violated Section 8(e). The collective-bargain-
ing agreement , on its face at section 11 . 51, clearly
stated that "hot cargo picket lines, secondary boy-
cott picket lines . . . are not legitimate and bona
fide picket lines within the meaning of this Agree-
ment ." The contract explicitly stated also that it
would not allow its provisions to be interpreted as
a "hot cargo" agreement.
We do not agree that the cases cited by our dis-
senting colleague support a finding that submission
of the dispute to an arbitrator, under the terms of
this collective -bargaining agreement , constituted
entering into an agreement in violation of Section
8(e). We agree that there are circumstances under
which the Board will find a violation of Section
8(e) by virtue of an arbitrator 's award issued within
the 10(b) period , even if the collective-bargaining
agreement was not unlawful on its face .4 However,
in the circumstances of this case , the collective-bar-
gaining agreement was not only valid on its face,
but also was not amenable to an unlawful interpre-
tation, despite the arbitrator's award. Although the
Board acknowledges an arbitrator 's power to inter-
pret a contract, we are not bound to find a viola-
tion of the Act here on the basis of the arbitrator's
award . The parties drafted a collective -bargaining
agreement that clearly avoided any suggestion that
2 Sec 8(e) provides-
It shall be an unfair labor practice for any labor organizalon and any
employer to enter into any contract or agreement, express or im-
plied , whereby such employer ceases or refrains or agrees to cease
or refrain from handling, using , selling, transporting or otherwise
dealing in any of the products of any other employer, or to cease
doing business with any other person ... .
8 Respondent Local 13 did not participate in the arbitration hearing.
Respondent Long Beach Container Terminal, Inc was not present, al-
though it is a member of Respondent PMA which did participate
4 Retail Clerks Union Local 770 (Hughes Market), 218 NLRB 680, 683
fn. 11 (1975).
hot cargo or other secondary picket lines would be
protected. We would not find, 10(b) considerations
aside, that the signers of this contract entered into
an agreement in violation of Section 8(e), either at
the execution of the contract or at the submission
of a grievance to arbitration . Even our dissenting
colleague acknowledges it is "problematic" to find
that the Respondent Employers violated Section
8(e) where , as here, their bargaining representative
took pains to avoid committing such an unfair
labor practice when the contract was drafted and
argued against the Respondent Unions' position at
the time of the arbitration hearing. Rather than un-
dermining the policy of collective bargaining, this
approach encourages parties to enter into valid
contracts and to submit disputes to arbitration. We
are not called on here to enforce the contract nor
to rescind an arbitrator 's decision , but merely to
pass on whether Section 8(e) of the Act has been
violated. We decline to find such a violation.
With respect to the Respondent Unions, we
agree with the judge that although Locals 13 and
63 consistently maintained a position , accepted by
the arbitrator, that the contract protected their
members' refusal to perform the work in question,
there is no violation of Section 8(e) because there
was no "enter[ing] into" an agreement prohibited
by Section 8(e). We further agree with the judge
that the Respondent Unions did not violate Section
8(b)(4)(A) because the core of the Unions' efforts
was to require the Respondent Employers to refuse
to handle Egg City products, which is found to
violate Section 8(b)(4)(B), rather than to "enter
into" an 8(e) agreement.
We do not find that the Respondent Employers'
actions or lack of action after the arbitration award
constitute entering into an agreement prohibited by
Section 8(e). We agree with the judge 's conclusion
that the Respondent Employers took no action to
honor the arbitrator's award. We therefore need
not pass on whether the Respondent Employers
would have "honored" the award if they had ac-
quiesced to the unlawful secondary pressures of the
Respondent Unions. Accordingly, we adopt the
judge 's recommendation that the 8 (b)(4)(A) and
8(e) allegations of the complaint be dismissed.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge , and orders that the Respondents, Interna-
tional Longshoremen 's and Warehousemen's Local
13 and International Longshoremen 's and Ware-
housemen's Local 63, Wilmington, California, their
officers, agents, and representatives, shall take the
action set forth in the Order.
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CHAIRMAN STEPHENS , dissenting in part.
I agree with my colleagues' affirmance of the
judge's conclusion that Longshoremen 's Locals 13
and 63 violated Section 8 (b)(4)(ii)(B) by threaten-
ing work stoppages with regard to the presence of
Egg City products at port facilities, and that Local
63 violated Section 8 (b)(4)(i)(B) by inducing or en-
couraging employees to refuse to transport or oth-
erwise work on containers with Egg City products.
Unlike my colleagues, however, I would reverse
the judge and find that Locals 13 and 63 violated
Section 8(b)(4)(A) by forcing the Respondent Em-
ployers to enter into an agreement that is prohibit-
ed by Section 8(e). In addition, I would find that
all the Respondents violated Section 8(e) as a result
of the binding decision of an arbitrator interpreting
section 11 . 51 of the bargaining agreement in a
clearly unlawful manner . All parties to the present
proceeding either have executed or are otherwise
bound by this bargaining agreement , which pro-
vides for final and binding arbitration.
The facts of this case are set forth in the judge's
decision, and no party contests the accuracy of his
factual presentation . In short, Locals 13 and 63
acted in support of secondary picketing by another
labor organization , the United Farm Workers, di-
rected at the Egg City products. In advance of this
picketing, the secretary-treasurer of Local 13 sent a
letter to the Pacific Maritime Association (PMA)
informing it, an employer association for stevedore,
terminal , and shipping companies, that Local 13
would be honoring the Farm Workers' picket lines
under section 11 . 51 of the bargaining agreement.'
In mid-August 1986 a container of Egg City
products was delivered to the Metropolitan Steve-
doring Company terminal. Picketing at this facility
by the Farm Workers commenced on the morning
of August 20, 1986 , and work at the terminal came
to a standstill . Business agents from each of the
two respondent locals threatened Metropolitan that
labor would be removed from the terminal unless
the picketers were allowed to picket inside the ter-
minal around the Egg City container . The vice
president of Local 63 took the further position,
similar to the one earlier taken by Local 13, that
the picketing of the container inside the terminal
' Sec. 11.51 of the contract states:
Refusal to cross a legitimate and bona fide picket line , as defined
in this paragraph , shall not be deemed a violation of this Agreement.
Such a picket line is one established and maintained by a union,
acting independently of the ILWU longshore locals, about the prem-
ises of an employer with whom it is engaged in a bona fide dispute
over wages, hours or working conditions of employees, a majority of
whom it represents as the collective bargaining agency . Collusive
picket lines, jurisdictional picket lines , hot cargo picket lines , second-
ary boycott picket lines and demonstration picket lines are not legiti-
mate and bona fide picket lines within the meaning of this Agree-
ment.
was bona fide under section 11 . 51 of the bargaining
agreement . Representatives of Metropolitan dis-
agreed , and the matter was submitted for arbitra-
tion. Representatives of Local 63 and PMA partici-
pated in the arbitration proceeding , as a result of
which the arbitrator made an immediate ruling that
the situs of the Egg City strike had been expanded
and that the picket line was bona fide under section
11.51 of the bargaining agreement.
Following this arbitration award , Metropolitan
informed a customer who handled Egg City prod-
ucts about what had occurred in the arbitration
proceeding. PMA also published the award and
distributed it to all members. In October 1986 there
was an attempted delivery of an Egg City contain-
er at the Long Beach Container Terminal (LBCT).
The president of Local 63 informed an LBCT clerk
of the contents of the above arbitration award and
indicated that the container did not have to be re-
ceived. The next day delivery was again attempted
and was refused by LBCT. In a letter written that
day to the steamship company, the LBCT terminal
manager explained that the Egg City container was
rejected , and that, "this has been arbitrated as a
bonafide [sic] strike and in as much as the ILWU is
honoring the UFW picket lines we do not want to
tie up the terminal nor your vessel . . . ." A simi-
lar attempted delivery of an Egg City container at
the LBCT facility was rejected by an LBCT guard
in December 1986. My colleagues have affirmed
the judge's conclusion in this case that the con-
tract, as interpreted by the arbitrator , violated Sec-
tion 8(e) because it thereby allowed unit employees
to honor secondary picket lines . However, not-
withstanding that this was precisely the interpreta-
tion advanced by Locals 13 and 63 when they ear-
lier had referred to section 11.51 of the contract as
privileging their work stoppage in response to the
Egg City picketing , my colleagues adopt the
judge 's conclusion that the Respondent Unions did
not "enter into" any unlawful agreement within the
meaning of Section 8(e). Furthermore, notwith-
standing that following the issuance of the award,
agents of the Respondent Employers made refer-
ence to it while taking actions that facilitated the
Unions' achievement of their unlawful objective,
my colleagues find that the Employers did not
"honor" the award and cannot be found guilty of
entering into section 11.51 as interpreted by the ar-
bitrator . I do not believe that these conclusions
accord with the law.
First, with respect to the liability of the Re-
spondent Unions, in a similar setting the Board in
Bricklayers Local 2 (Johnson & Sons), 224 NLRB
1021 (1976), enfd. 562 F.2d 775 (D.C. Cir. 1977),
found that the respondent unions, by submitting a
LONGSHOREMEN ILWU LOCAL 13 (EGG CITY) 707
contract interpretation dispute to arbitration, as
well as by obtaining an arbitration award, "entered
into" the contract clause in question within the
meaning of Section 8(e). The Board there found
that the respondent union violated Section 8(e) in
light of the broad reading the arbitrator gave to the
contract provision.2
The judge's present attempt to distinguish Brick-
layers by noting that in that case there was no alle-
gation of employer misconduct is wholly irrelevant
to whether the respondent unions violated Section
8(e) by their conduct. In any event, the judge's
analysis is a frontal assault on the capacity of an ar-
bitrator to provide an authoritative reading of the
parties' intent regarding contract provisions alleged
to violate Section 8(e). Whatever the legality of
such an arbitral decision under Section 8(e), the
Board has never previously expressed a doubt that
an arbitrator (or an equivalent entity) has the
power to interpret a contract. See Liquid Carbonic
Corp., 277 NLRB 851 (1985); Teamsters Local 42
(Inland Concrete), 225 NLRB 209, 217 fn. 24
(1976); Bricklayers, supra at 1026; Retail Clerks
Local 770 (Hughes Markets), 218 NLRB 680, 683
fn. 11 (1975). It follows from this that Locals 13's
and 63's interpretation of article 11.51 of the con-
tract, ultimately sanctioned by the arbitrator as the
correct interpretation, entailed an unlawful objec-
tive within the meaning of Section 8(b)(4)(A) and
that their threat to strike and the actual work stop-
page provides a compelling basis for finding a vio-
lation of Section 8(b)(4)(A).3
Admittedly more problematic is the remaining
allegation of whether the Respondent Employers in
this proceeding (PMA, Metropolitan, and LBCT)
violated Section 8(e) as a result of the arbitrator's
interpretation of article 11 of the contract. Al-
though it might seem at first glance that these par-
ties were innocent bystanders (particularly PMA
which argued before the arbitrator against the un-
lawful interpretation of the provision), it remains
that the arbitrator gave the parties what they
sought: a binding interpretation of the contract
under a mutually agreed-on procedure. The judge's
emphasis in this proceeding that the employers
here never "acquiesced" in this interpretation-
even were I to accept this as factually accurate-
misses the point. The Board has construed the lan-
s As a separate issue , the Board also found the contract provision was
unlawful on its face.
8 It bears noting that my colleagues ' affirmance of the judge 's dismissal
of the 8(b)(4)(A) allegation is contradicted by the express statutory lan-
guage . This section expressly prohibits forcing or requiring any employer
to enter into any agreement that is prohibited by Sec . 8(e). My col-
leagues , however , have now ruled that "unlawful union pressures" pre-
cludes there being any agreement . If this is true, then it appears that Sec.
8(b)(4XA) is self-contradictory.
guage "to enter into" in Section 8(e) very broadly,
and where a provision is reaffirmed, there need be
neither compliance nor a demand for compliance.
See Masters, Mates & Pilots (Cove Tankers), 224
NLRB 1626 (1976), enfd. 575 F.2d 896 (D.C. Cir.
1978). As noted above, the arbitrator's award estab-
lishes that the agreement was "entered into" by an
entity empowered by the Respondent Employers
to do so in a manner binding on all the Respond-
ents, thus establishing the 8(e) violation as to all.
Moreover, if any of the Respondent Employers
had continued to disagree with the arbitrator's in-
terpretation, they could have sought to contest the
propriety of the arbitrator's award in district court
proceedings. No such action to set aside the award
was ever taken. On the contrary, as stated above, it
appears that each of the Respondent Employers
took steps to publicize and thereby implement the
arbitrator's ruling. The obvious purpose of such
publicity was to provide forewarning to shipping
companies so that they would not try to transport
Egg City products through the Respondent Em-
ployers' terminals. Although it is not illogical that
the Respondent Employers may have desired to
avoid work stoppages, their actions in this regard
were in support of an agreement that violates Sec-
tion 8(e).
Finally, contrary to the suggestion of my col-
leagues, in proposing to find the 8(e) and 8(b)(4)(A)
violations here, I am not seeking to "rescind" the
arbitration award itself, and I recognize that we are
not called on to "enforce" the contract. We do,
however, have before us the issue of whether these
parties have entered into an agreement that violates
Section 8(e). Concerning this issue , I do not regard
the parties' intent when they originally negotiated
the agreement to be dispositive. Certainly it could
not be disputed that if the parties chose to amend
their contract midterm so as to add an unlawful
hot cargo clause, there would be no question that
they violated Section 8(e). In my view, the parties
accomplished such an amendment through the
Union's successful effort to get the arbitral con-
struction it sought and the Respondent Employers'
failure to contest the award in court as void under
the National Labor Relations Act. Under generally
accepted arbitral principles, the award became "a
binding part of the [collective-bargaining] agree-
ment,"4 and certainly both parties' conduct after is-
suance of the award was consistent with that un-
derstanding.
For these reasons, I would find the additional
violations noted above.
4 F. Elkouri and E. Elkouri, How Arbitration Works, 425 (4th ed. 1985).
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bernard Hopkins, Esq., for the General Counsel.
William Carder, Esq. (Leonard, Carder & Zuckerman), of
San Francisco , California, for Respondent Local 63
and Party to the Contract ILWU.
George Shibley, Esq., of Long Beach, California, for Re-
spondent Local 13.
John Meyers and Dennis Gladwell, Esqs. (Gibson, Dunn &
Crutcher), of Newport Beach , California , for Respond-
ents Metropolitan Stevedoring Company, Long Beach
Container Terminal , Inc., and Pacific Maritime Asso-
ciation.
Wayne Hersh, Esq. (Finkle, Hersh & Stolly), of Irvine,
California , for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD D . TAPLITZ, Administrative Law Judge.
This case was tried in Los Angeles, California, on March
23 and April 5, 1988 . The charge, first amended charge,
and second amended charge in Case 31 -CE-196 were
filed respectively on October 30, November 10, and De-
cember 24, 1986 , by The Careau Group d/b/a Egg City
(Egg City). The charge in Case 31 -CC-1895 was filed
on January 23, 1987, by the same Charging Party. An
order consolidating cases and complaint issued on March
31, 1987, alleging that the International Longshoremen's
and Warehousemen 's Local 13 (Local 13), International
Longshoremen's and Warehousemen 's Local 63 (Local
63), and Metropolitan Stevedoring Company (Metropoli-
tan) violated the National Labor Relations Act. The
complaint alleged that Local 13 and Local 63 violated
Section 8(b)(4)(ii)(B) of the Act and that all three Re-
spondents violated Section 8(e) of the Act. By order
dated May 4, 1987, the Regional Director for Region 31
of the Board granted the motion of Pacific Maritime As-
sociation (PMA) to intervene in these proceedings. An
order consolidating cases and amended complaint in
Cases 31 -CC-1895 and 31-CE-196 issued on November
19, 1987, alleging that Local 63 violated Section
8(b)(4)(i)(B); that Local 13 and Local 63 violated Section
8(b)(4)(ii)(A) and (B); and that those Locals, PMA, Met-
ropolitan , and Long Beach Container Terminal (LBCT)
violated Section 8(e) of the Act.
Issues
The primary issues are:
1. Whether Locals 13 and 63 engaged in unlawful sec-
ondary activity by threatening to honor picket lines of
the United Farm Workers Union (UFW) at longshore
docks operated by Metropolitan and LBCT. The UFW
had a primary dispute with Egg City and containers of
Egg City products were delivered to the docks.
2. Whether an arbitration award finding that Locals 13
and 63 would not be in violation of their collective-bar-
gaining agreement by honoring the UFW picket line,
when combined with the language of the relevant collec-
tive-bargaining agreement and the alleged acceptance of
that arbitration award by Local 13, Local 63, Metropoli-
tan, LBCT , and PMA constituted a "hot cargo" agree-
ment within the ambit of Sections 8(b)(4)(A) and 8(e) of
the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally , and to file briefs. Briefs,
which have been carefully considered , were filed on
behalf of the General Counsel, Local 13, Local 63, the
ILWU, PMA, Metropolitan, and LBCT.
On the entire record of the case and from my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Egg City, the primary employer in this case, has a
place of business in Egg City, Moorpark, California,
where it produces , processes, and distributes eggs and
egg products . During the calendar year preceding issu-
ance of complaint Egg City's gross volume of business
was between $32 and $36 million ; it purchased commod-
ities outside of California valued at about $20 million;
and it sold products valued at about $10 million outside
of California. Egg City is an employer engaged in com-
merce within the meaning of the Act.
PMA is an employer association whose members are
stevedore , terminal , and shipping companies, and their
agents, engaged in the movement of cargo on oceango-
ing vessels to and from Pacific Coast ports of the United
States . PMA is authorized to enter into collective-bar-
gaining agreements on behalf of its members . During the
year immediately preceding issuance of complaint PMA
and its members, including Metropolitan and LBCT, en-
gaged in the movement of cargo from ports in California
to ports outside of California and the United States and
to ports in foreign countries, and received in excess of
$100,000 in payment therefore. PMA, Metropolitan, and
LBCT are persons engaged in commerce within the
meaning of the Act.
Local 13 and Local 63 are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Egg City produces , processes , and distributes eggs and
egg products from its facility in Egg City, Moorpark,
California. At one time Egg City had a contract with the
UFW covering all employees on an hourly basis except
for clerical workers who worked in the processing facili-
ty. The UFW was certified by the California Agricultur-
al Labor Relations Board as the representative of the
Egg City employees. During 1986 there was a labor dis-
pute between Egg City and the UFW. I
' The primary labor dispute between Egg City and the UFW led to
litigation before the California Agricultural Labor Relations Board. On
January 15 , 1988, an administrative law judge from that agency issued a
decision in which he found that the UFW violated state law by engaging
in certain proscribed secondary activity Some of the facts in that case
parallel matters alleged in the instant case The administrative law judge's
Continued
LONGSHOREMEN ILWU LOCAL 13 (EGG CITY)
The issues in this case arose when containers of Egg
City products were delivered to longshore docks in Los
Angeles and Long Beach , California , for overseas ship-
ment. Egg City had sold egg products to Ocura and
Company, a company that imported products into Japan
and sold them there. Egg City used Federal Transport
and Unlimited Express to deliver the egg products to the
docks . Ocura and Company took possession at the dock
or at public warehouses.
Metropolitan and LBCT are members of PMA. PMA
and the ILWU are parties to a collective -bargaining
agreement known as the ILWU-PMA Pacific Coast
Longshore and Clerks Agreement 1984-1987. That con-
tract was in effect at all times material herein. PMA
members including Metropolitan and LBCT as well as
ILWU Locals, including Locals 13 and 63, were bound
by that agreement . Members of Local 63 check cargoes
or containers and verify documents . Members of Local
13 do the physical work of loading cranes, latching con-
tainers, moving equipment , and lifting containers. The
collective-bargaining agreement provided in part:
11.51 Refusal to cross a legitimate and bona fide
picket line, as defined in this paragraph , shall not be
deemed a violation of this Agreement. Such a
picket line is one established and maintained by a
union , acting independently of the ILWU longshore
locals, about the premises of an employer with
whom it is engaged in a bona fide dispute over
wages, hours or working conditions of employees, a
majority of whom it represents as the collective
bargaining agency . Collusive picket lines, jurisdic-
tional picket lines, hot cargo picket lines, secondary
boycott picket lines and demonstration picket lines
are not legitimate and bona fide picket lines within
the meaning of this Agreement.
The contract also contains a comprehensive grievance
and arbitration provision culminating in a final and bind-
ing decision of an arbitrator . Section 17.52 of the con-
tract provides that the:
Powers of arbitrators shall be limited strictly to the
application and interpretation of the Agreement as
written . The arbitrators shall have jurisdiction to
decide any and all disputes arising under the Agree-
ment including cases dealing with the resumption or
continuation of work.
Arbitration awards are binding on all parties to the
agreement.
On August 19, 1986, James Gyerman, secretary- treas-
urer of Local 13, sent the following letter to the Pacific
Maritime Association:
The intent of this letter is to inform you that the
United Farm Workers of America (AFL-CIO) has
notified Local 13 that picket lines will be estab-
lished throughout the docks of the Long Beach and
decision was pending appeal at the time of the trial herein I have consid-
ered the administrative law judge 's decision in that case However, the
findings set forth here are based solely on the record in the instant case.
709
Los Angeles Harbors wherever containers of the
Julius Goldman Egg City are located.
Local 13 will be honoring these picket lines under
Section 11 of the PCLCD.
The letter was received by PMA but copies were not
sent by PMA to its employer-members and PMA did not
give instructions to those members with regard to how
they should react when picketing began . Some copies of
the letter were circulated at the Metropolitan facility and
Andreas Hoebich, Metropolitan 's terminal manager, saw
the letter.
On about August 18, 1986, three individuals from the
UFW told Thomas Warren , the president and business
agent of Local 63, that the UFW was on strike at Egg
City and that they were going to establish picket lines in
front of some of the Egg City containers. They asked if
Local 63 would support them in their action . Warren re-
plied that Local 63 would decide whether it would help
the UFW when the picket lines went up.
B. The Incidents at Metropolitan's Facility
During the week preceding August 20, 1986, a con-
tainer with Egg City products was delivered to Metro-
politan 's facility in Los Angeles . Such containers are re-
ceived in a gated area by members of Local 63. They are
then placed in a container yard where they are stored
until they are loaded on a ship. The Egg City container
was placed in a refrigerated storage area with a number
of other containers . The ship on which the container was
to be loaded had not yet arrived and it was not due until
August 26 or 27, 1986.
On about August 18 , 1986 , representatives of the
United Farm Workers came to the Metropolitan facility
and told Andreas Hoebich , Metropolitan 's terminal man-
ager, that the UFW intended to picket the terminal
unless the Egg City container which was on the premises
was removed. On August 20, 1986, the container was
still on the premises . That morning UFW pickets ap-
peared at the Metropolitan terminal in Los Angeles. The
pickets walked back and forth near the main gate which
was 60 or 70 yards past the guard shack through which
trucks had to go to unload containers . They carried signs
saying "On strike against Egg City ." Thomas Warren,
the president and business agent of Local 63, received a
telephone call from one of the clerks at the Metropolitan
terminal about 10 a.m. on August 20 . He arrived at the
terminal about 10 minutes later and found that the termi-
nal was at a standstill . Some truckers honored the picket
line and turned around and some individuals walked off
the job.2
After the picket line was established , Metropolitan's
terminal manager, Andreas Hoebich , and General Man-
ager Robert Chiu approached the picket line and spoke
to Thomas Warren , president and business agent of
Local 63, and Bill Marino , a business agent for Local 13.
2 Dino Rossi, the vice president of labor and marketing at LBCT, ap-
peared quite credible when he described the general situation in his in-
dustry . He averred that when a picket line goes up there is a common
bond between the different labor organizations and everybody walks,
whether the picket line is legal or illegal.
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Warren and Marino told Hoebich and Chiu that labor
would be removed from the terminal as well as from the
vessel unless Metropolitan agreed to move the picket line
inside the terminal and have the pickets picket just the
Egg City container .3 At the time of the picketing the
Egg City container was in a refrigerated area with other
containers about 300 yards from the picket line. It had
been there for some time and there were no Egg City
employees or trucking employees near it . The container
was not scheduled to be loaded for another 6 or 7 days.
The pickets were allowed to enter Metropolitan's termi-
nal and picket around the Egg City container . The pick-
ets remained there that night picketing the container.
The rest of Metropolitan's operation continued without
interruption . On August 20 Charles Young, the labor re-
lations administrator for PMA, arrived at the Metropoli-
tan terminal to participate in a joint clerks' labor rela-
tions committee meeting pursuant to the grievance pro-
cedures in the contract . Warren and Tom Harrison, vice
president of Local 63, participated on behalf of Local 63.
Representatives of Metropolitan and UFW were present.
A representative of Egg City participated by telephone.
No representative of Local 13 participated . Local 63
took the position that the UFW picketing of the contain-
er inside the terminal was bona fide while the employers
took the position that the picketing was a secondary boy-
cott and was not bona fide under section 11 of the con-
tract . No agreement was reached and the issue was re-
ferred for immediate arbitration.
Charles Young from PMA called Richard Carrott, the
chairman and chief executive officer of Egg City. Young
told Carrott that PMA had been informed that if Egg
City did not remove some containers from the dock,
there would be a general strike and shutdown on the
docks. Young also said that PMA wanted to avoid that
situation , that arbitration would take place, and that Gar-
rott would be called . Carrott replied that Egg City did
not own the product and that it was owned by Ocura
and Company . Young said that the purpose of the call
was not to establish that kind of activity but simply to
arrange to contact Carrott later during the course of the
arbitration.
Later the same day an arbitration hearing by telephone
conference call was held by arbitrator George Love.
Young spoke for PMA and Warren spoke for Local 63.
The minutes of the clerks' labor relations committee
meeting were read to the arbitrator and the parties stated
their positions . Local 13 did not participate . Carrots of
Egg City received a phone call while the arbitration was
taking place and he was asked some questions . The arbi-
trator rendered an immediate decision on the telephone.
He ruled that the situs of the Egg City strike had been
expanded and that the picket line was bona fide under
section 11.5 of the contract . The telephone decision was
confirmed by a written decision dated August 26, 1986,
entitled "In the Matter of a Controversy Between Inter-
8 This finding is based on the credited testimony of Hoebich Warren's
testimony about the incident was in some ways similar to that of Hoe-
bich's . Where it differs I credit Hoebich . Warren was either unsure of
himself or less than candid with regard to certain important matters. He
averred that there might have been a business agent present from Local
13 but he was not sure. Marino and Chiu did not testify
national Longshoremen's and Warehousemen 's Union,
Local 63 and Pacific Maritime Association Involving a
United Farm Workers picket line at Berth 233, Terminal
Island , Evergreen ." The written decision stated in part:
"The following decision , applicable to any other contain-
ers of a like fact situation as in this issue was then given.
The UFW picket, placed at the one container , is bona-
fide, the ILWU work force does not have to handle it."
Shortly after the arbitrator rendered his decision on
the telephone , Hoebich from Metropolitan contacted
Japan Lines, who is responsible for the movement of the
container . Metropolitan 's dealings with regard to the
container were with its "customer" Japan Lines. Hoe-
bich reported to Japan Lines that UFW pickets were sur-
rounding one of their containers . He also told Japan
Lines what had occurred at the arbitration . He asked
what Japan Lines wanted to do . Japan Lines then made
arrangements to have the container removed from Me-
tropolitan 's terminal . A day or two later the container
was removed.
Charles Young, the labor relations administrator for
PMA, administers the contract on behalf of the PMA
members . He credibly averred that once an arbitration
decision issues, it remains in effect until revoked or oth-
erwise overruled . However he also credibly testified that
because of the passage of time, the grievance machinery
would be again invoked if an Egg City container came
to the terminal . Warren , the president and business agent
of Local 63 , testified that if an Egg City container came
in today the clerks would probably not receive it if there
were a picket line. The arbitration award was published
and sent to all members of PMA.
In about November or December 1986 there was a
second incident of UFW picketing at Metropolitan's ter-
minal. Metropolitan permitted the pickets to come into
the terminal and picket the container . Hoebich once
again notified Japan Lines concerning what was taking
place and the arbitrator 's decision . Japan Lines decided
to have the container removed from the terminal and
that was done.
C. The Incidents at LBCT
About 4:30 p.m. on August 20, 1986, UFW pickets ap-
peared at LBCT's terminal in Long Beach Harbor.
LBCT allowed two pickets to come inside the terminal
and stand near the container which held the Egg City
products. Dino Rossi, LBCT's vice president of labor
and marketing , credibly testified that he permitted the
pickets to come onto the premises in order to keep the
terminal open . He told Terminal Manager Bill Smith to
call the steamship line that was to transport the container
and tell them what happened. Smith did so and at 8:30
the next morning the steamship line told Smith that it did
not want the container and that the container was to be
removed from the terminal . A short time later the con-
tainer was placed outside the gate.
On October 23, 1986, the UFW picketed while an Egg
City container was coming through the gate . The termi-
nal manager asked Rossi what to do and once again
Rossi told him to call the steamship line. The steamship
LONGSHOREMEN ILWU LOCAL 13 (EGG CITY) 711
line told the terminal manager that it did not want the
container and that LBCT should not receive it.
While the picketing was going on on that day, Thomas
Warren , the president and business agent of Local 63, re-
ceived a call from an LBCT clerk who was one of his
members . The member told him that an Egg City con-
tainer was being picketed and asked what he should do.
Warren read to the member the arbitration award and
said that the issue had already been arbitrated and that
they did not have to receive the container.
A similar incident of picketing on the arrival of an
Egg City container occurred the following day, October
24, 1986 . Once again the steamship line was called and
the steamship line told LBCT not to accept the contain-
er. Delivery of the container was refused. On that day
Rossi , the vice president of labor and marketing for
LBCT, had a conversation with Richard Carrott, the
chairman and chief executive officer of Egg City. Rossi
told Carrott that LBCT did not have a relationship with
Egg City, and that the problem was with the steamship
line which did the booking . Rossi added "You know, as
far as I'm concerned , there's pickets out there and I want
to keep the terminal open."
Also on October 24, 1986 , LBCT Terminal Manager
Bill Smith sent a memo to steamship company Y.S. Line
with a conformed copy to Rossi, which stated that Egg
City again attempted to deliver a container ; that Channel
2 News was across the street from the main gate; that
the container was again rejected from receiving at the
terminal ; and that "This has been arbitrated as a bonafide
strike and in as much as the ILWU is honoring the UFW
picket lines we do not want to tie up the terminal nor
your vessel the Yamashin Maru upon its arrival at the
dock."
The last incident testified to occurred on December
17, 1986 . On that day Ernest Ward , a truckdriver for
Federal Produce Transportation , picked up a load at the
Egg City facility and attempted to deliver it to the
LBCT's terminal . He was denied entry to the terminal
by a guard . The guard inspected a paper that had con-
tainer numbers on it and then said that he could not
accept the container because it was from Egg City.
Ward then left the LBCT's terminal without making the
delivery.
D. Analysis and Conclusions
1. The allegation that Local 13 and Local 63
violated Section 8(b)(4)(B) of the Act
The complaint alleges that Local 13 violated Section
8(b)(4)(ii)(B) that Local 63 violated Section 8(b)(4)(i) and
(ii)(B) of the Act.4 Those sections are commonly re-
ferred to as the secondary boycott provisions and they
are designed to reach only secondary boycott activities.
Primary action is not prohibited . The proviso to Section
8(b)(4)(B) specifically states that "nothing contained in
this clause (B) shall be construed to make unlawful,
where not otherwise unlawful , any primary strike or pri-
mary picketing ." In the instant case, Egg City is the pri-
mary employer . The UFW had a dispute with Egg City
and had no dispute with Metropolitan or LBCT except
to the extent that those companies handled Egg City
products . Metropolitan and LBCT were neutrals or sec-
ondary employers with regard to UFW's dispute with
Egg City. Local 13 and Local 63 joined forces with the
UFW in furtherance of UFW's primary dispute with
Egg City. However Metropolitan and LBCT remained
neutrals or secondary employers with regard to the pri-
mary dispute . The secondary boycott provisions of the
Acts have "the dual congressional objectives of preserv-
ing the right of labor organizations to bring pressure to
bear on offending employers in primary labor disputes
and of shielding unoffending employers and others from
pressures in controversies not their own." NLRB v.
Denver Building Trades Council (Gould & Preisner), 341
U.S. 675, 692 (1951).
In some situation there is substantial difficulty in dis-
tinguishing between primary and secondary activities,
particularly where that activity takes place at the situs of
the secondary employer . However none of those difficul-
ties are present in the instant case . This is not a situation
where a primary and a secondary employer are both en-
gaged in work at a common situs . Cf. Sailors' Union
(Moore Dry Dock), 92 NLRB 547 (1950); Iron Workers
Local 1433 (Benchmark Contractors), 285 NLRB 1089
(1987). The primary employer was performing no work
at the premises of the secondary employer. It is not a sit-
uation where there was a common and ambulatory situs.
Cf. Electrical Workers Local 861 (Plausche Electric), 135
NLRB 250 (1962). There were never any employees of
the primary employer at the premises of the secondary
employer . It is not an ally situation where the employees
of the secondary employer performed farmed out struck
work which but for the strike would have been per-
formed by employees of the primary employer . Sacra-
mento Area District Council of Carpenters (Malek Con-
struction Co.), 244 NLRB 890, 894 (1979). The secondary
employers were performing their normal longshore work
which had never been done by employees of the primary
employer . In addition there was no consumer picketing.
The consumers were in Japan . There was no common
ownership , control , or integration of operations under
which the primary and secondary employers could be
4 Those sections provide that it shall be an unfair labor practice for a
labor organization:
(4)(1) to engage in, or to induce or encourage any individual em-
ployed by any person engaged in commerce or in an industry affect-
ing 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 (u) to threaten , coerce , or restrain any
person engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is-
(B) forcing or requiring any person to cease using , selling, han-
dling, transporting, or otherwise dealing in the products of any other
producer, processor , or manufacturer, or to cease doing business
with any other person , or forcing or requiring any other employer to
recognize or bargain with a labor organization as the representative
of his employees unless such labor organization has been certified as
the representative of such employees under the provisions of section
9 section 159 of this title - Provided, That nothing contained in this
clause (B) shall be construed to make unlawful , where not otherwise
unlawful, any primary strike or primary picketing
5 Formerly Sec. 8(b)(4)(A) of the Act.
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
treated as a single employer or a straight line operation.
The secondary employers were independent and were
engaged in the transportation industry . In sum , none of
the exceptions appear to apply. The actions of Local 13
and Local 63 described above were secondary boycotts
proscribed both by the literal wording and the underly-
ing intention of Section 8(b)(4)(B).
In order to establish her case, the General Counsel
must prove both an action encompassed by Section
8(b)(4)(i) and (ii) as well as an object proscribed by Sec-
tion (B).
On October 23, 1986, an LBCT clerk who was a
member of Local 63 told Thomas Warren, the president
and business agent of Local 63, that an Egg City con-
tainer was being picketed. Warren told him that they did
not have to receive the container . That statement consti-
tuted an inducement or encouragement of an "individual
employed by any person engaged in commerce . . . to
engage in, a strike or a refusal in the course of his em-
ployment to . . . process , transport, or otherwise handle
or work on any goods." within the meaning of Section
8(b)(4)(i) of the Act.
On August 20 Warren, on behalf of Local 63, and Bill
Marino, the business agent for Local 13, told Andreas
Hoebich, Metropolitan 's terminal manager, that labor
would be removed from the terminal as well as from the
vessel unless Metropolitan agreed to move the picket line
inside the terminal and have the pickets picket just the
Egg City container . That amounted to a threat to engage
in a complete strike or work stoppage if the UFW pick-
ets remained outside the gate and, by clear implication, a
threat to engage in a partial strike by refusing to process,
transport or otherwise handle or work on a container
with Egg City products if the pickets limited the picket-
ing to the area around the container. That threat to
engage in a complete or partial strike was action within
the contemplation of Section 8(b)(4)(ii ) which reads "to
threaten , coerce, or restrain any person engaged in com-
merce."
By letter dated August 19, 1986 , James Gyerman, sec-
retary-treasurer of Local 13, informed PMA that Local
13 would be honoring UFW picket lines that were to be
established throughout the docks of the Long Beach and
Los Angeles harbors wherever containers of Egg City
were located . PMA was the bargaining representative of
Metropolitan , LBCT, and many other employers on the
longshore . PMA was the agent of those employers and
notice to PMA was notice to its members . In addition
copies of the letter were circulated around the longshore
and Andreas Hoebich , Metropolitan 's terminal manager,
saw one of the letters . The letter constituted a threat
within the meaning of Section 8(b)(4)(ii).6
6 On December 17, 1986 , a guard at LBCT refused entry to a truck
delivering a container of Egg City's product However there was no evi-
dence to indicate whether the guard was acting on his own initiative,
under orders from a union , or under orders from his employer. There
were other incidents , as described above, in which deliveries from Egg
City were prevented or in which Egg City containers were removed.
However there was no evidence of any inducement of employees or
threats to employers by Local 13 or Local 63 other than those set forth
above.
The object of Local 13's and Local 63's actions was
clear. It was to force Metropolitan, LBCT, and other
members of PMA to cease "handling, transporting, or
otherwise dealing" in the products of Egg City. The
threats to engage in a total strike if the UFW picket line
remained outside the gate and a partial strike if the con-
tainers themselves were picketed established that Local
13 and Local 63 did not want the PMA members to
handle the containers in question. The object of Local 13
and Local 63 was that of forcing or requiring any person
to cease . . . handling, transporting , or otherwise dealing
in the products of any other producer, processor, or
manufacturer..." within the meaning of Section
8(b)(4)(B).
For the reasons set forth above, I find that Local 13
violated Section 8(b)(4)(ii)(B) and that Local 63 violated
Section 8(b)(4)(i) and (ii)(B) of the Act.7
2. The allegation that Local 13 and Local 63
violated Section 8(b)(4)(A) and that those Unions
and PMA, Metropolitan, and LBCT violated
Section 8(e) of the Act
Section 8(e) of the Act prohibits unions and employers
from "entering into" a contract under which an employ-
er "ceases or refrains or agrees to cease or refrain from
handling . . . transporting or otherwise dealing in any of
the products of any other employer, or to cease doing
business with any other person."8 Section 8(b)(4)(A)
makes it an unfair labor practice for a union to force or
require an employer to enter into any agreement which
is prohibited by Section 8(e).
Both Sections 8(e) and 8(b)(4)(A) are aimed at pro-
scribing agreements with secondary objectives. As the
Supreme Court held in National Woodwork Mfg. Assn. v.
NLRB, 386 U.S. 612, 645 (1967):
The touchstone is whether the agreement or its
maintenance is addressed to the labor relations of
the contracting employer vis-a-vis its own employ-
ees.
7 Pars. 17 and 21 of the complaint allege that an object of Local 13's
and Local 63 's conduct was to force or require Metropolitan and LBCT
to cease doing business with Egg City. Metropolitan and LBCT had no
direct business contact with Egg City . Metropolitan 's and LBCT 's direct
dealings were only with truckers , shipping companies , and perhaps the
person to whom Egg City sold its products However, the actions of the
Unions were intended to force Metropolitan and LBCT to stop doing
business with those persons or anyone else who wanted to handle Egg
City products, and in a broader sense the pressure , at least indirectly, was
to get Metropolitan and LBCT to cease doing business with Egg City. In
any event the matter was fully litigated and I have found that the object
of Local 13 's and Local 63's actions was to force Metropolitan and
LBCT to cease handling , transporting , or otherwise dealing in the prod-
ucts of Egg City and that the actions of the Unions for that object were
proscribed by Sec . 8(bX4)(B).
a Sec 8(e) reads:
It shall be an unfair labor practice for any labor organization and
any employer to enter into any contract or agreement , express or im-
plied, whereby such employer ceases or refrains or agrees to cease
or refrain from handling , using, selling, transporting or otherwise
dealing in any of the products of any other employer, or to cease
doing business with any other person , and any contract or agreement
entered into heretofore or hereafter containing such an agreement
shall be to such extent unenforceable and void
LONGSHOREMEN ILWU LOCAL 13 (EGG CITY) 713
Contract clauses that are geared to work preservation or
other primary purposes are not banned. There is no con-
tention in this case that there is a "work preservation"
issue.
A contract clause providing that it is not a violation of
the contract for employees to honor a picket line consti-
tutes a violation of Section 8(e) if the clause is broad
enough to apply to secondary activity . Dan McKinney
Co., 137 NLRB 649, 652 (1962). However, the General
Counsel does not contend that the contract clause in the
instant case is on its face violative of Section 8(e) of the
Act. The clause by its terms has no application to sec-
ondary picket lines.9
As found above Local 13 and Local 63 violated Sec-
tion 8(b)(4)(B) of the Act by putting unlawful pressure
on Metropolitan and LBCT in an attempt to force those
companies to refuse to handle containers with Egg City
products . However, the General Counsel has not estab-
lished that those companies acquiesced or agreed to take
the actions demanded of them by the Unions . Metropoli-
tan and LBCT simply called the shipping companies
who were their customers and informed them what was
going on . The reality of the situation was that the ILWU
Locals would not handle the containers in question and
there was no practical way for Metropolitan or LBCT to
load them on the ships. The shippers decided to have the
containers removed from the terminals . They had no
other alternative if they wanted to find a means to trans-
port the containers . ) ° However even if Metropolitan,
LBCT, or PMA had acquiesced to the unlawful pressure
by Local 13 and Local 63, that would not constitute an
agreement between those unions and employers within
the contemplation of Section 8(e). In Teamsters Local 282
(General Contractors Assn. of New York), 262 NLRB 528,
547-548 ( 1982), the Board adopted that part of the Trial
Examiner's decision which held:""
It therefore would appear that Congress intend-
ed, by enacting Section 8(e), to supplement and not
supplant the secondary boycott provisions of the
Act which are now designated as Section
8(b)(4)(B). Moreover, it seems unlikely that Section
8(e), in utilizing the words "contract or agreement,"
was intended to encompass those situations where
an employer , in the absence of a prior agreement,
acquiesces in union pressure to cease doing business
with a person with whom the union has a dispute.
9 In Pacific Maritime Assn, 256 NLRB 769, 770 ( 1981), the Board reit-
erated the position it had taken in prior cases , holding-
Thus, if the meaning of the clause is clear , the Board will determine
forthwith its validity under 8(e), and where the clause is not clearly
unlawful on its face , the Board will interpret it to require no more
than what is allowed by law On the other hand , if the clause is am-
biguous, the Board will not presume unlawfulness , but will consider
extrinsic evidence to determine whether the clause was intended to
be administered in a lawful or unlawful manner . In the absence of
such evidence , the Board will refuse to pass on the validity of the
clause.
10 There was evidence that a guard prevented a delivery at the LBCT
terminal However as noted above , there is no evidence that LBCT was
responsible for or even knew of the guard's actions . The guard might
very well have been acting under union instructions or on his own
13 See also Teamsters Local 208 (De Anza Delivery System), 224 NLRB
1116, 1124 (1967); Teamsters Local 754 (Glenora Farms Dairy), 210 NLRB
483, 490 (1974)
. . . [T]he secondary boycott provisions of the Act,
in Section 8(b)(4)(i) and (ii)(B) were designed to
provide the appropriate Board relief . . . . There-
fore, it seems to me that the words "contract or
agreement" used in Section 8(e) contemplates the
entering into of an agreement between a union and
an employer, on a continuing basis, whereby the
employer agrees to cease doing business with other
persons with whom the Union may have future dis-
putes.
The real questions presented here are whether the ar-
bitrator's decision that the ILWU work force did not
have to handle the container in question constituted an
interpretation of the contract that violated Section 8(e)
of the Act and whether LBCT, Metropolitan, and PMA
could reasonably have been said to have "entered into"
such an 8(e) contract. As found above the action of the
Unions was secondary and unlawful. The contract as in-
terpreted by the arbitrator was violated of Section 8(e)
that the employers were bound by that interpretation in
the sense that they "entered into" an agreement within
the meaning of Section 8(e). In a sense , an arbitration
agreement is a blank check and the interpretation of the
arbitrator can be binding on all the parties . However in
the circumstances of this case, I think something more is
needed to impute unlawful conduct on the part of the
employers. The contract was lawful on its face. The arbi-
tration clause was lawful . Both collective -bargaining
agreements and arbitration clauses are encouraged by
and consistent with Federal labor policy . If an employ-
er's only action is to enter into a lawful contract with an
arbitration clause and the arbitrator gives some unlawful
meaning to the contract, the arbitrator 's decision may be
void and unenforceable but the employer should not be
found guilty of committing an unfair labor practice. Here
there is no evidence that the Employers took any action
to honor the arbitrator 's award . Even if the Employers
had acquiesced to the unlawful secondary pressures of
the Unions, there would be no inference that the Compa-
nies were honoring the award . The Companies' acquies-
cence would be easily explainable in terms of the unlaw-
ful union pressures . Paragraph 10 of the complaint al-
leges that "the arbitrator 's award constituted a bilateral
reaffirmation and entering into of an agreement whereby
Respondents and all members of PMA have agreed to
cease and refrain from doing business with Egg City
unless and until the award is revoked ." In support of that
contention the General Counsel cites Bricklayers Local 2
(Gunnar I. Johnson & Sons), 224 NLRB 1021 (1976),
enfd. 562 F.2d 775 (D.C. Cir. 1977). In that case the
Board held that certain clauses in a contract as interpret-
ed by an arbitrator were violative of Section 8(e). How-
ever that case differed from the instant one in critical
ways . There the complaint alleged wrongdoing only by
the unions . There was no allegation of employer wrong-
doing . As explained by the court of appeals, the Unions
"entered into" the contract within the 10 (b) period (6-
month statute of limitations) by consistently maintaining
the position that had been accepted by the arbitrator that
the contract clauses protected their members from refus-
ing to enter a jobsite through a reserved gate. It was the
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union 's "entering into" the contract through its actions
rather than the arbitration award in itself which formed
the basis for the finding of violation . In the instant case
there were no actions by the Employers which could
reasonably be interpreted as an "entering into" the con-
tract as interpreted by the arbitrator.
In sum I find that the contract clause was legal on its
face, that the arbitration clause was legal and that Metro-
politan , LBCT, and PMA did no "enter into" the con-
tract as improperly interpreted by the arbitrator . It fol-
lows that the allegations in the complaint that allege that
Metropolitan , LBCT, and PMA "entered into" a con-
tract in violation of Section 8(e) of the Act must be dis-
missed.
It could be argued that Local 13 and Local 63 did
"enter into" an 8(e) contract by consistently maintaining
the position , accepted by the arbitrator, that the contract
clause protected their members from refusing to do the
work in question . In effect , that would require a finding
that the Unions were estopped from denying the exist-
ence of the contract by their actions in attempting to en-
force the contract as interpreted by the arbitrator's
award . However, I am reluctant to find any "entering
into" a contract unless there is a mutually binding con-
tract and there cannot be one unless both the employers
and the unions agreed to one . An argument could also be
made that the Unions' actions, which had an unlawful
object under Section 8(b)(4)(B) of the Act, had the addi-
tional unlawful object of forcing the Employers to enter
into an 8(e) agreement . However, the core of the Unions'
effort was to require the Employers to refuse to handle
Egg City products and not to force those employers to
"enter into" an agreement . Teamsters Local 282 (General
Contractors Assn. of New York), supra at 547-548. In any
event the findings with regard to the 8(b)(4)(B) viola-
tions and the remedies set forth below appear sufficient
to prevent further unlawful conduct. I shall therefore
recommend that the 8(b)(4)(A) and 8(e) allegations of the
complaint be dismissed.
CONCLUSIONS OF LAW
1. Local 63 violated Section 8(b)(4)(i)(B) of the Act by
inducing and encouraging an individual employed by
LBCT to refuse to transport or otherwise handle or
work on containers with Egg City products with an
object of forcing LBCT to cease handling, transporting
or otherwise dealing in the products of Egg City.
2. Local 13 and Local 63 violated Section 8(b)(4)(ii)(B)
of the Act by threatening Metropolitan, LBCT, and
PMA with an object of forcing those employers to cease
handling, transporting , or otherwise dealing in the prod-
ucts of Egg City.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Local 63 has engaged in unfair
labor practices within the meaning of Section
8(b)(4)(i)(B) and that Local 63 and Local 13 have en-
gaged in unfair labor practices within the meaning of
Section 8(b)(4)(ii)(B) of the Act, I recommend that they
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Local 63 used an arbitration award
to justify its unlawful conduct as set forth above, I shall
recommend that it be ordered to cease and desist from
honoring any arbitration award involving Egg City to
the extent that such award purports to justify conduct
that is violative of Section 8(b)(4)(i) or (ii) of the Act.
Local 13 did not participate in the arbitration proceed-
ing, but it was bound by the award as a party to the con-
tract. Local 13's letter of August 19, 1987, which stated
that it would honor the picket line under section 11 of
the contract, relied on the contract for justification of its
unlawful threat and Local 13's position was supported by
the arbitrator the following day. A similar order is there-
fore appropriate with respect to Local 13.
On these findings of fact and conclusions of law and
on the entire record of this case , I issue the following
recommended 12
ORDER
A. Respondent International Longshoremen's and
Warehousemen 's Local 63, its officers , agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Inducing or encouraging any individual employed
by Long Beach Container Terminal, Inc. or any other
person engaged in commerce or in an industry affecting
commerce to refuse to transport or otherwise handle or
work on containers holding products of the Careau
Group d/b/a Egg City, with an object of forcing such
person to cease handling, transporting , or otherwise deal-
ing in the products of the Careau Group d/b/a Egg
City.
(b) Threatening, coercing , or restraining Metropolitan
Stevedoring Company, Long Beach Container Terminal,
Inc., Pacific Maritime Association or any other person
engaged in commerce or in an industry affecting com-
merce with an object of forcing such person to cease
handling , transporting, or otherwise dealing in the prod-
ucts of the Careau Group d/b/a Egg City.
(c) Honoring any arbitration award involving the
Careau Group d/b/a Egg City to the extent that such
award purports to justify conduct that is violative of
Section 8(b)(4)(i) or (ii)(B) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix."' a Copies of
'$ If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1' If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
LONGSHOREMEN ILWU LOCAL 13 (EGG CITY)
the notice, on forms provided by the Regional Director
for Region 31, after being signed by Respondent Local
63's authorized representative, shall be posted by Re-
spondent Local 63 immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respond-
ent Local 63 to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Furnish the Regional Director with signed copies
of the aforesaid notice for posting by the Pacific Mari-
time Association and its members if those companies are
willing to post them.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
Local 63 has taken to comply.
B. Respondent International Longshoremen's and
Warehousemen's Local 13, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Threatening, coercing, or restraining Metropolitan
Stevedoring Company, Long Beach Container Terminal,
Inc., Pacific Maritime Association or any other person
engaged in commerce or in an industry affecting com-
merce with an object of forcing such person to cease
handling, transporting, or otherwise dealing in the prod-
ucts of the Careau Group d/b/a Egg City.
(b) Honoring any arbitration award involving the
Careau Group d/b/a Egg City to the extent that such
award purports to justify conduct that is violative of
Section 8(b)(4)(ii)(B) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its business office and meeting halls copies
of the attached notice marked "Appendix." 114 Copies of
the notice, on forms provided by the Regional Director
for Region 31, after being signed by Respondent Local
13's authorized representative, shall be posted by Re-
spondent Local 13's immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respond-
ent Local 13 to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Furnish the Regional Director with signed copies
of the aforesaid notice for posting by the Pacific Mari-
time Association and its members if those companies are
willing to post them.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
Local 13 has take to comply herewith.
IT IS FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found are
dismissed.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
715
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT induce or encourage any individual em-
ployed by Long Beach Container Terminal, Inc., or any
other person engaged in commerce or in an industry af-
fecting commerce to refuse to transport or otherwise
handle or work on containers holding products of the
Careau Group d/b/a Egg City, with an object of forcing
such person to cease handling, transporting, or otherwise
dealing in the products of the Careau Group d/b/a Egg
City.
WE WILL NOT threaten, coerce, or restrain Metropoli-
tan Stevedoring Company, Long Beach Container Ter-
minal , Inc., Pacific Maritime Association, or any other
person engaged in commerce or in an industry affecting
commerce with an object of forcing such person to cease
handling, transporting, or otherwise dealing in the prod-
ucts of the Careau Group d/b/a Egg City.
WE WILL NOT honor any arbitration award involving
the Careau Group d/b/a Egg City to the extent that
such award purports to justify conduct that is violative
of Section 8(b)(4)(i) or (ii)(B) of the Act.
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S LOCAL 63
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten, coerce, or restrain Metropoli-
tan Stevedoring Company, Long Beach Container Ter-
minal , Inc., Pacific Maritime Association or any other
person engaged in commerce or in an industry affecting
commerce with an object of forcing such person to cease
handling, transporting, or otherwise dealing in the prod-
ucts of the Careau Group d/b/a Egg City.
14 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT honor any arbitration award involving such award purports to justify conduct that is violative
the Careau Group d/b/a Egg City to the extent that of Section 8(b)(4)(ii)(B) of the Act.
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S LOCAL 13