Before STALEY, GANEY and FREEDMAN, Circuit Judges.
FREEDMAN, C. J.: The Board seeks enforcement under § 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) of its cease and desist order, entered in a jurisdictional dispute. The order would require Local 1291, International Longshoremen's Association, AFL-CIO, to refrain from seeking to force Northern Metal Company, the employer, to assign certain work related to the loading and unloading of vessels to its own members rather than to members of Local 14, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO.*fn1
The controversy arises out of rather unusual circumstances. Northern operates a dockside terminal in the Port of Philadelphia for the loading and unloading of ocean-going vessels. Adjoining the piers is a large yard and warehouse. From 1946 until 1951 Northern was primarily engaged in dismantling ships and selling the salvaged scrap. During that time all of the work at Northern's terminal, including the loading and unloading of vessels, was performed by members of Local 14, which was the certified bargaining representative of Northern's maintenance and production employees. In 1951 Northern substantially changed the nature of its business. It discontinued the dismantling and scrapping of ships and began to do stevedoring work. Most of this was by contract with the Army and consisted of loading and unloading military vehicles for shipment overseas; a small amount of its work was the handling of general cargo for private shippers. Before commencing this work for the Army Northern met with representatives of Local 14 and Local 1291 concerning possible jurisdictional problems in carrying out the contract. An oral agreement was reached for the division of work between the two unions. Local 14 was to move the vehicles within Northern's terminal to and from the point on the pier where the "hook" on the winch or crane falls to pick up or unload cargo. Local 1291 was given all the remaining work in the loading and unloading of vessels. It was specifically agreed that the longshoremen of Local 1291 would perform their duties in 15-man gangs. A written memorandum of agreement was prepared by Northern, but remained unsigned. After this arrangement was made in 1951 Northern joined the Philadelphia Marine Trade Association (PMTA), the collective bargaining agent for Philadelphia port employers engaged in waterfront activities. Northern thus became subject to the successive collective bargaining agreements made by PMTA with Local 1291 and other locals of ILA. The agreement of PMTA and Local 1291 provided for a minimum gang size of 22 men in loading and discharging "general cargo" and 15-man gangs for cargos of "heavy lift", which require less men because of the use of special hoisting equipment.
Thereafter - from 1951 to 1960 - Northern continued the use of 15-man gangs composed of members of Local 1291, in conformity with the 1951 arrangement, even though more than 80% of the Army vehicles it handled were not within the classification of "heavy lift". Northern used the 22-man gangs provided for in the PMTA contract in all its other stevedoring operations when loading general cargo or mixtures of general cargo and vehicles.
In 1960 Northern was awarded a new Army contract for the loading of 30,000 to 60,000 privately owned automobiles of servicemen, referred to as POV's. The POV's were similar in size, weight and method of handling to a great portion of the vehicles which Northern had handled under the previous Army contract with 15-man gangs. Shortly before the first ship was due in port Northern notified Local 1291 that it would use 15-man gangs for this cargo. The Union replied that it would be considered "general cargo" and that unless 22-man gangs were used Northern would have trouble. Northern prevailed on the loading of the first ship, but the Union persisted in its objection and a temporary arrangement was made for the use of 19-man gangs in the loading of the second ship. On the arrival of the third ship a short time later the dispute reached the point where some longshoremen failed to arrive for work. The Union insisted that they would not come to work unless the gangs numbered 22 men for the POV work. After first rejecting this demand, Northern yielded in order to have the work done, but immediately filed a grievance under the PMTA-ILA contract. A hearing was held the following day before a panel consisting of representatives of PMTA and of Local 1291. Local 14 was not notified of the hearing and was not represented. The panel orally decided that under the practice in the Port the handling of automobiles was regarded as general cargo and required 22-man gangs. It recognized the existence of a jurisdictional problem peculiar to Northern because it was the only Port employer which dealt with two separate unions, but stated that it had no power to resolve this problem.*fn2
After losing the grievance decision Northern filed an unfair labor practice charge with the Board's regional director, alleging that Local 1291 had violated § 8(b)(4)(D) of the National Labor Relations Act (29 U.S.C. § 158(b)(4)(D) by engaging in a strike and by inducing and encouraging individuals to refuse to perform services for the Company, with the object of forcing or requiring the assignment of the disputed work to the longshoremen it represented rather than to the yardmen represented by Local 14.*fn3 The Board, having determined after investigation that there was reasonable cause to believe the charge made, held the hearing prescribed by § 10(k) of the Act (29 U.S.C. § 160(k)). It determined that the yardmen of Local 14 were entitled to perform the work of moving vehicles to and from the shore side of the "hook" and that Local 1291 was not entitled to compel the Company to hire 22-man gangs rather than 15-man gangs when this would force it to assign the moving of vehicles to longshoremen rather than yardmen. The Board therefore directed Local 1291 to comply with this determination*fn4 and on its refusal to do so, general counsel issued a complaint against it. The parties, by agreement, rested on the record in the § 10(k) proceeding. Meanwhile, the Board, acting under § 10(1) of the Act (29 U.S.C. § 160(1)), secured in the District Court a temporary injunction pending its final disposition of the charge. The Court enjoined Local 1291 from encouraging conduct which had as an object the coercion of Northern "to assign the work of moving motor vehicles to be loaded upon or unloaded from ships, to and from the point where such vehicles are taken over by, or released from 'the hook', to employees who are members of . . . Local 1291, . . . rather than to employees who are members of . . . Local 14 . . ." Schauffler v. Local 1291, ILA, 188 F. Supp. 203 (E. D. Pa. 1960).*fn5 This Court affirmed, 292 F.2d 182 (3 Cir. 1961). We held that the finding of the District Court that there was reasonable cause to believe that Local 1291 demanded that Northern assign work to its members rather than to employees represented by Local 14 was supported by substantial evidence. We also rejected the claim that the District Court should have declared at that stage of the case that the PMTA-ILA contract and the grievance panel's decision constituted a legal defense to the charge. Chief Judge Biggs, speaking for the Court, said:
"It is apparent that many questions of fact and of law would have had to have been resolved by the court below before it could have determined the precise effect of the PMTA-ILA contract and the June 21, 1960 grievance proceeding on the present controversy. At least some of these questions must be recognized to be other than frivolous in nature. If, in a Section 10(1) proceeding, a district court or a court of appeals undertook to finally adjudicate such questions it would not be acting consistently with the congressional policy underlying Section 10(1). That Section's usefulness as a tool with which the status quo may be preserved pending final adjudication would be diminished insofar as the Board would be required to finally litigate questions of substance at a preliminary stage. Moreover, the court would not have the benefit of the Board's opinion on questions of fact and novel questions of labor law when making its decision. Thus, the court would, to some extent, usurp the Board's function as the primary fact finder in cases arising under the Act and its function as primary interpreter of the statutory scheme. . . ." (292 F.2d at p. 188).
The Board has now decided these questions and the problem before us is whether its findings are based upon substantial evidence and, if so, whether the charge of unfair labor practice within the meaning of § 8(b)(4)(D) of the Act has been made out.
The Board was fully warranted in refusing to accept the claim of Local 1291 that the work stoppage was the spontaneous and isolated action of some of its members but was not the act of Local 1291. Indeed, any other finding would have been contrary to the great weight of the evidence. The real question in the case is whether an "object" of Local 1291's inducement and encouragement of the strike or refusal to work was to force or require Northern, as an employer, "to assign particular work" to members of Local 1291 "rather than to" members of Local 14.
Northern filed a so-called "featherbedding" charge under § 8(b)(6) of the Act*fn6 after the decision of the grievance panel, which it later withdrew. Although "feather-bedding" as such is not before us, the withdrawal of that charge does not limit the scope of the factual inquiry in the present proceeding as to the object of Local 1291 in seeking to compel Northern to increase the size of the gangs handling POV's from 15 to 22 men.
The contention of Local 1291 has an attractive simplicity. Shortly stated it is that it has not sought or coveted any of the work that belongs to employees in Local 14, but seeks only Northern's compliance with its contract with Local 1291. Such compliance, it argues, requires gangs of 22 men because POV shipments constitute general cargo, a matter on which the employer invoked the arbitration machinery provided in the contract and which the grievance panel decided against the employer. Local 1291 insists that it has not sought to break the arrangement by which its members are limited to work on the ship side of the "hook", and that the use of 22-man gangs in harmony with the practice prevailing throughout the Port is a matter of concern between Local 1291 and Northern, which is not in the slightest degree intended to affect Northern's relationship with Local 14.
This contention requires consideration of two elements: (1) was it an object of the effort of Local 1291 to force or require Northern to assign work to its members rather than to employees who were members of Local 14; and (2) if such was the object, how is it affected because the effort was to obtain compliance with Local 1291's contract with Northern.
(1) The evidence contained in the printed appendix and in the typewritten proceedings before the hearing examiner of the Board justify the Board's conclusion that an object of the demand made by Local 1291 was to force or require Northern to give particular work to its members rather than to members of Local 14. It is not necessary to narrate this evidence in detail.
The triangular oral agreement among Northern, Local 14 and Local 1291 originated in a meeting called by Northern to make certain that there would be no jurisdictional dispute. The purpose of the negotiations therefore was to settle the jurisdictional claims that the two Locals might have before Northern entered into its contract with the Army and before it joined PMTA. The arrangement made resolved the fundamental elements of a jurisdictional problem. For it fixed the "hook" as the jurisdictional boundary line for the Locals and by limiting the gang size to 15 men it made this boundary line realistic by leaving enough work to be done on the shore side of the "hook" to justify the economic use of the men of Local 14.Thus the geographical and numerical terms of the oral agreement made the settlement of the jurisdictional problems practical for both Locals and for the employer. The fact that the agreement, although reduced to writing, was not signed loses its significance in the circumstances revealed by the record. It was in fact carried out over a period of nine years and thus received a recognition of greater significance than its mere signing would have had. Moreover, it is readily understandable why Local 1291 would not sign the agreement. Contracts of this nature require the signature of the International Vice President in charge of this area. It was one thing to enter into an oral arrangement which established a modus vivendi between these two Locals, one of ILA and the other of IUMSWA. It would ...