LOCAL 814, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Karl J. Leib, Jr., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SANTINI BROTHERS, INC., Respondent.
Nos. 74-1036, 74-1243.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 15, 1975.
Decided April 30, 1975.
Bruce H. Simon, New York City, of the bar of the Supreme Court of New York, pro hac vice, by special leave of court with whom H. Reed Ellis, New York City, was on the brief for petitioners in 74 — 1036 and respondent in 74— 1243.
Alan Banov, Atty., N. L. R. B., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick H. Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert A. Giannasi, Asst. Gen. Counsel, N. L. R. B., were on the brief for respondent in 74 — 1036 and petitioner in 74-1243.
Karl J. Leib, Jr., Miami, Fla., was on the brief for intervenor.
Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.
Opinion
PER CURIAM.
Opinion filed by Chief Judge BAZELON, concurring in part and dissenting in part.
PER CURIAM:
This case involves a determination by the National Labor Relations Board (the Board) that Local 814 of the Teamsters Union violated sections 8(b)(4) and 8(e) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(4) and 158(e) (1970), by entering into and attempting to enforce a provision of its collective bargaining agreement with Santini Brothers, Inc. For the reasons stated herein, we remand the record for clarification.
Prior to 1948, movers of household goods and office furniture in the New York metropolitan area utilized employees represented by Local 814 of the Teamsters Union to perform all aspects of their business. However, in that year, a large interstate moving company began utilizing “owner-operators” for so-called long distance hauling, moves in excess of 500 miles. The owner-operators own the tractors that pull the trailers used in long distance moving, contract with the moving companies for hauling business and generally lease the trailers from the company. This method of performing long distance hauling proved attractive to both drivers and companies, and presently, the twenty New York area carriers that perform the bulk of long distance hauling use owner-operators. Santini Brothers, Inc., one of the largest movers in that area, began using owner-operators in 1962 to counteract the deterioration in its long distance moving business as its best drivers became owner-operators for competitors; by 1967, Santini used owner-operators for virtually all of its long distance moving.
Local 814’s concern with the practice of using owner-operators first manifested itself in the 1962 — 1965 collective bargaining agreement between the union and the Moving and Storage Industry of New York, a multi-employer bargaining unit representing approximately 300 area moving and storage companies including Santini. This agreement, and subsequent contracts through 1971, provided that: “the owner-operator, commission or percentage method of operation shall not be practiced on local work covered by this agreement. The percentage or commission method of operation shall likewise not be practiced on long distance moving.” These agreements also provided for joint study to explore the effects of utilizing owner-operators for long distance hauling.
In the 1971 negotiations between the union and the industry, the union demanded that all persons involved in long distance moving be treated as employees under the contract, regardless of whether they had been defined as owner-operators. From initial opposition, the employers acceded to .the union’s demands, accepting the following provision in Article 24 of the agreement.
A.l. All persons performing long distance driving under contract to an employer covered by this agreement (whether as “owner-operator,” “percentage driver,” “commission driver,” or otherwise) shall be covered by this agreement as employees (hereinafter referred to as contract employees).
Since the collective bargaining agreement contained a union security clause, the effect of this provision was to require that the owner-operators join Local 814 or lose their contracts.
The union sought to enforce Article 24 in the spring and summer of 1972 by advising Santini that it was violating the agreement and by notifying the owner-operators that they were required to join the union. On October 30, 1972, Local 814 engaged in a work stoppage to protest Santini’s failure to implement Article 24. The work stoppage ended only after Santini’s President agreed to transmit signed membership applications from the owner-operators as he obtained them and to forbid nonsigners to load or unload in the New York metropolitan area. Several owner-operators refused to apply for membership. Thereafter, Santini allowed those who joined Local 814 to load and unload in New York, but not those who refused to join.
On November 8, 1972, Karl J. Lieb, on behalf of several owner-operators, filed unfair labor practice charges against Local 814 and Santini. On June 29, 1973, an Administrative Law Judge (ALJ) found that Local 814 had violated the “secondary boycott” provisions of the National Labor Relations Act and that Local 814 and Santini had entered into an illegal agreement because Article 24 was a prohibited “hot cargo” clause. On January 8, 1974, the Board affirmed this decision without comment. Local 814, Teamsters (Santini Brothers, Inc.) 208 NLRB No. 22 (1974).
By adopting the ALJ’s opinion, the Board held that the owner-operators were not employees within the meaning of section 2(3) of the Act, 29 U.S.C. § 152(3) (1970), but rather were “independent contractors.” Therefore, the Board concluded that Article 24 itself and the union activity aimed at enforcing Article 24 were directed at forcing Santini to engage in conduct prohibited by the Act, specifically to coerce the independent contractors to join the union or to cease doing business with them.
Local 814 contends initially that the Board erred in concluding that the union violated sections 8(b)(4) and 8(e) of the Act, for even if the owner-operators were independent contractors, Article 24 is a legitimate work preservation clause. We cannot agree. As written, Article 24 neither establishes union work standards for the subcontracting of work nor requires that specific work be done by members of the bargaining unit. Rather, Article 24 purports to require the owner-operators to join the union by defining them as “employees,” and hence subjecting them to the union security agreement.. If Article 24 were drafted to require that only members of Local 814 may engage in long distance hauling or that any subcontracting to owner-operators must be consistent with union work standards, the case would be much different. However, the provision before us is clearly a union signatory agreement violative of sections 8(b)(4) and 8(e) if the owner-operators are not “employees.”
As to this question, the Board adopted the opinion of the ALJ, which concluded that the owner-operators were not employees within the meaning of section 2(3) of the National Labor Relations Act. However, shortly thereafter, the Board also adopted the decision of another ALJ in Local 814, Teamsters (Molloy Brothers Moving and Storage, Inc.), 208 N.L.R.B. No. 43 (1974), which concluded that owner-operators who contracted with another member of the Moving and Storage Industry of New York were employees within the meaning of the Act. We believe the two decisions are factually similar and ostensibly inconsistent. Because the Board has not explained its reasons for reaching different results, see Greater Boston Television Corp. v. F. C. C., 143 U.S.App.D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971), we remand the record for clarification. If the Board finds the two indistinguishable, it should so inform the court. See N. L. R. B. v. Metropolitan Life Insurance Co., 380 U.S. 438, 442, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965).
Chief Judge Bazelon dissents from the scope of this remand, arguing that it can only produce a post hoc rationalization for the Board’s actions. We cannot agree. This court has continually stressed that we are partners with, rather than adversaries to, the administrative agencies. See, e. g., Greater Boston Television Corp., v. F. C. C., supra, 444 F.2d at 851. As such, we think it only fair to give the agency a full and frank opportunity to explicate its actions before we consider reversal. While the possibility exists that the agency will offer a post hoc rationalization, that possibility also exists under Judge Bazelon’s broader proposal. Indeed, we believe that Judge Bazelon’s proposal would heighten the possibility that the agency might substitute rationalization for reasoning, since his call for a “thorough reconsideration of the doctrinal quicksand in this area” would place the court firmly in an adversary position to the Board.
Moreover, we cannot agree with the dissent’s characterization of the circumstances under which the remand for clarification may be utilized. Most recently, this device was utilized in Local 441, IBEW v. N. L. R. B., 167 U.S.App. D.C. 53, 510 F.2d 1274 (1975) the division sought clarification, inter alia, of the Board’s position concerning the legal effect of the conduct at issue. We therefore believe that the remand for clarification remains a useful and appropriate device for determining that an agency has engaged in reasoned decision making.
So ordered.
. On November 10, 1972, the Union requested that Santini discharge 13 owner-operators for not joining the Union and paying dues. Santini refused and another work stoppage occurred on November 20. On January 22, 1973, the Board’s Regional Director sought a preliminary injunction against the Union under section 10(7) of the Act, 29 U.S.C. § 160(1) (1970). The injunction was granted on March 16, 1973. Danielson v. Local 814, Teamsters, 355 F.Supp. 1293 (S.D.N.Y.1973).
. Section 8(b)(4)(i), (ii)(A), (B), 29 U.S.C. § 158(b)(4)(i), (ii)(A), (B) (1970).
. Section 8(e), 29 U.S.C. § 158(e) (1970).
. See National Woodwork Mfg. Ass’n. v. N. L. R. B„ 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967); Orange Belt Dist. Council No. 48 v. N. L. R. B., 117 U.S.App.D.C. 233, 328 F.2d 534 (1964).
. See Local 1288, Retail Clerks v. N. L. R. B., 129 U.S.App.D.C. 92, 390 F.2d 858, 861-62 (1968); A. Duie Pyle, Inc. v. N. L. R. B„ 383 F.2d 772, 777-78 (3rd Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 819, 19 L.Ed.2d 871 (1968); cf. Denver Bldg. & Constr. Trades Council v. N. L. R. B., 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951); Marriot Corp. v. N. L. R. B., 491 F.2d 367 (9th Cir.), cert. denied sub nom. International Ass’n of Machinists v. N. L. R. B., 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974); Local 710, Meat & Highway Drivers v. N. L. R. B., 118 U.S.App.D.C. 287, 335 F.2d 709 (1964); Local 5, Plumbers & Pipefitters v. N. L. R. B., 116 U.S.App.D.C. 100, 321 F.2d 366 (1963), cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1964); District No. 9, Machinists v. N. L. R. B.,114 U.S.App.D.C. 287, 315 F.2d 33, 36 (1962); Washington Oregon Shingle Weavers Dist. Council, 101 N.L.R.B. 1159 (1952), aff’d, 211 F.2d 149 (9th Cir. 1954). See also N. L. R. B. v. Local 825, Operating Eng’rs, 400 U.S. 297, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). Of course, if the owner-operators were “employees” (and thus presumably within the union’s jurisdiction and certification), then the union’s actions are permissible attempts to enforce a union security agreement on its unit employees. Absent state law to the contrary, union security agreements are permitted under present law subject to certain restrictions. NLRA §§ 8(a)(3), (b)(2), (5), 14(b), 29 U.S.C. §§ 158(a)(3), (b)(2), (5), 164(b) (1970). On the relationship of a finding of “independent contractor” status and a finding of a violation of the secondary boycott provisions of the NLRA, see Local 417, Carpet Layers v. N. L. R. B„ 151 U.S.App.D.C. 338, 467 F.2d 392, 399-401, 404-06 (1972).
. The Administrative Law Judge in Santini Brothers, although cognizant of his colleague’s position in Molloy Brothers, did not attempt to distinguish the two cases.