author: DUNIWAY, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION, LOCAL NO. 50, Respondent, and International Union of Operating Engineers Local 701, Intervenor; INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION, LOCAL NO. 50, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Pacific Maritime Association, Intervenor. PACIFIC MARITIME ASSOCIATION et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Union of Operating Engineers Local 701, Intervenor.
    Nos. 72-1908, 72-2263 and 72-2315.
    United States Court of Appeals, Ninth Circuit.
    Aug. 29, 1974.

      Julius Rosenbaum (argued), NLRB, Washington, D. C., for petitioner in 72-1908 and for respondent in 72-2315.
    Norman Leonard (argued), of Glad-stein, Leonard, Patsey & Andersen, San Francisco, Cal., for respondent in 72-1908, for petitioners in 72-2263 and for interested party ILWU in 72-2315.
    Richard Ernst (argued), of Ernst & Daniels, San Francisco, Cal., for amicus Pacific Maritime etc. in 72-2263 and for petitioner in 72-2315.
    Don S. Willner (argued), of Willner, Bennett, Meyers, Riggs & Skarstad, Portland, Or., for charging parties in 72-1908 and for interested parties in 72-2315.
    Before MERRILL and DUNIWAY, Circuit Judges, and TAYLOR, District Judge.

       The Honorable Fred M. Taylor, Senior United States District Judge for the District of Idaho, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

The National Labor Relations Board petitions, in No. 72-1908, under 29 U.S. C. § 160(e), for enforcement of its cease and desist order against Local 50 of the International Longshoremen’s and Ware-housemen’s Union. In Nos. 72-2263 and 72-2315, Local 50 and the Pacific Maritime Association (PMA), an association representing the employers, petition to set the Board’s order aside. We deny enforcement in No. 72-1908 and grant the petitions in Nos. 72-2263 and 72-2315.

This is the fourth time that litigation stemming from this particular jurisdictional dispute between Local 50 (the Longshoremen) and Local 701 of the International Union of Operating Engineers (the Engineers) has reached this court. Two of our previous decisions have been published and in them we extensively reviewed both the underlying facts of the dispute and the administrative proceedings that led to judicial review. See Henderson v. International Longshoremen’s and Warehousemen’s Union, Local 50, 9 Cir., 1972, 457 F.2d 572; Henderson v. International Union of Operating Engineers, Local 701, 9 Cir., 1969, 420 F.2d 802. The Board’s decisions in this ease are reported at 193 N.L.R.B. 266 (1971) and 181 N.L.R.B. 315 (1970). Rather than once again burdening the books with a full recitation of the legal history of this dispute, we will state the facts only in the barest outline necessary for the present decision.

On April 3, 1969, in Astoria, Oregon, raftmen represented by the Longshoremen refused to hóok up logs to barge-mounted floating whirly cranes which were loading logs onto ships and were operated by employees represented by the. Engineers. This work stoppage resulted in the firing of the Engineer crane operators by Brady-Hamilton Co. and W. J. Jones & Son, Inc., the steve-doring companies which had leased the barges and cranes, with their crews, from their owners. Longshoremen then began operating the cranes and they have done so ever since. In the work assignment dispute that has culminated in this litigation, both the Longshoremen and the Engineers claim the right to be assigned to operate the barge-mounted floating whirly cranes loading logs on ships in Astoria.

Shortly after the work stoppage, the Engineers filed unfair labor practice charges against the Longshoremen with the Board. The Engineers also began picketing the Brady-Hamilton and Jones jobsites. PMA, representing the employers, then filed unfair labor practice charges against the Engineers. The Board’s Regional Director obtained an injunction under § 10(Z), 29 U.S.C. § 160(1) of the National Labor Relations Act (NLRA). See Henderson v. International Union of Operating Engineers, Local 701, supra. After a short investigation, the Board concluded that there was reasonable cause to believe that both the Longshoremen and the Engineers had violated § 8(b)(4)(D) of the NLRA (29 U.S.C. § 158(b)(4)(D)), which forbids coercive union activity designed to force any employer to assign work to one union instead of another. As a result of this preliminary finding, the Board held hearings under § 10 (k) (29 U.S.C. § 160(k)) to determine which set of employees was entitled to the work in dispute. At the conclusion of these hearings, the Board held that the employees represented by the Engineers were entitled to the work, 181 N. L.R.B. 315, 317.

The Longshoremen failed to notify the Board within the ten days fixed by the statute that it would comply with the Board’s determination, and therefore the Board issued an unfair labor practice complaint against the Longshoremen. Hearings were held, and the Trial Examiner found that the Longshoremen had violated § 8(b)(4) (i) (ii).(D) of the NLRA and the Board adopted his findings, conclusions and recommendations and issued a cease and desist order against Local 50, 193 N.L.R.B. 266. This is the order that the Board now seeks to have enforced and that the Longshoremen and PMA seek to have set aside.

In an enforcement proceeding such as this, based upon the Board’s determination that a union has violated § 8(b) (4) (Dj, there is usually no question that the union has committed unfair labor practices within the plain meaning of the statute, assuming that the Board’s § 10(k) decision is valid. As the Supreme Court has noted, § 8(b)(4)(D) is inextricably tied to § 10 (k). NLRB v. Plasterers’ Union, 1971, 404 U.S. 116, 123, 92 S.Ct. 360, 30 L.Ed.2d 312; NLRB v. Radio and Television Engineers, Local 1212, 1961, 364 U.S. 573, 576, 81 S.Ct. 330, 5 L.Ed.2d 302 (hereinafter referred to as the CBS case). Because the Board’s § 8(b)(4) (D) complaint is predicated upon its resolution of the work assignment dispute in the § 10 (k) hearing the crucial question, in this case, is whether the Board’s § 10(k) award is sustainable. NLRB v. International Longshoremen’s and Warehousemen’s Union, 9 Cir., 1967, 378 F.2d 33, 34. The only significant issues raised by the briefs submitted in this case concern the validity of the Board’s § 10(k) award. If we determine that the Board’s assignment of the disputed work to the Engineers is sustainable then the Board’s cease and desist order must be enforced. Conversely, if we determine that the § 10 (k) work award is not sustainable then enforcement should be denied.

THE BOARD’S WORK AWARD

Since it has begun making affirmative work awards under § 10(k) in jurisdictional disputes, the Board has formulated its decisions in the same manner in the overwhelming majority of its cases. These decisions generally segregate the factors evaluated, discuss them in separate paragraphs, and make individual determinations about which union a particular factor favors. In its conclusions the Board usually cites the most influential of these' factors. However, the Board almost always disclaims reliance upon any particular factor by asserting that the decision was made “[u]pon the entire record, and after full consideration of all relevant factors. . . .” Local 2, IUOE (PVO Int’l Inc.) 209 N. L.R.B. #109 at 10 (1974).

Unfortunately, the Board’s decision-making process was, if anything, more obtuse than usual in the § 10 (k) case under review. In its opinion the Board moved almost aimlessly from factor to factor without making explicit how much weight a particular factor was given or in some instances even which union the factor favored. Despite this unsatisfactory method of analysis, the Board did mention nine of the factors that it frequently evaluates in jurisdictional dispute decisions.

The Board noted that Engineers had operated the floating cranes loading logs on ships at Astoria from the time of their introduction there in 1964 until the work stoppage in 1969, and that the Longshoremen had “long acquiesced” in this assignment. Thus the factors of past practice and acquiescence were presumably found to favor the Engineers.

The Board was more explicit in holding that the factors of skill, economy and safety favored the Engineers. The Board found that the work in question was very difficult and that the Longshoremen were, without exception, inexperienced at this work while the Engineers were highly skilled floating crane operators. The Board also found that after the Engineers were fired and replaced by Longshoremen, the safety record of the crane operation deteriorated while the expense of it increased. Outside repairmen had to be hired after the Engineers were fired because the Longshoremen, unlike the Engineers, were unable to service the cranes.

Additionally, the Board held that the Longshoremen’s Board certification did not cover the disputed work because the certification was issued before the introduction of this type of crane. In considering the PMA-Longshoremen collective bargaining contract, to which the employers, Brady and Jones, were bound, the Board concluded that the agreement specifically excluded the disputed work from its provisions. The Board also distinguished prior Board § 10 (k) decisions which had accorded this PMA-Longshoremen contract significant weight. Finally, while the Board failed to discuss employer preference, it did mention the fact that the employers’ original work assignment was to the Engineers.

In sum, the Board’s § 10(k) decision appears to rest upon the finding that the Engineers were more skilled, efficient, and safe employees whose work assignment the factors of past practice and acquiescence also favored. In finding in favor of the Engineers, the Board rejected the Longshoremen’s claims that the factors of Board certifications, industry practice, collective bargaining agreements, employer preference, and Board precedent favored them.

JUDICIAL REVIEW OF § 10 (k) WORK AWARDS

There are two components of judicial review of § 10 (k) work assignments. First, in reviewing the Board’s findings of fact, we are statutorily bound to apply the substantial evidence test. 29 U.S.C. § 160(e). Therefore, “findings of the Board with respect to questions of fact, shall be conclusive, if supported by substantial evidence on the record considered as a whole.” NLRB v. International Longshoremen’s and Warehousemen’s Union, supra, 378 F.2d at 35; Waterway Terminals Co. v. NLRB, supra, 467 F.2d at 1018. Second, we examine the Board’s legal conclusions in light of its fact findings. At this stage of judicial review, we apply the arbitrary and capricious standard: “[w]e must accept the Board’s determination unless such determination is arbitrary and capricious.” NLRB v. International Longshoremen’s and Warehousemen’s Union, 9 Cir., 1969, 413 F.2d 30, 33. In turn we will apply these tests to the challenged work award.

Substantial Evidence Test

There is an abundance of evidence in the record to support the Board’s findings that at the time of the work stoppage the Engineers were more skilled, efficient and safe crane operators than were the Longshoremen. The findings as to past practice and acquiescence, which buttress these conclusions, are also supported by substantial evidence.

The Board’s finding and conclusion that the Longshoremen’s certification does not support a work award to them in this instance is also supported by the evidence. The 1938 Longshoremen certification, which is coastwide, covers only “longshore work.” Shipowners Ass. of Pacific Coast, 7 N.L.R.B. 1002, 1041 (1938). Nothing in that certification specifically places the operation of barge-mounted floating whirly cranes loading ships within the Longshoremen’s occupational jurisdiction. To assert that this work is by definition contained within the rubric “longshore work” would be to assume the answer to the central question at issue. The Board rejected such circular reasoning.

The main thrust of the PMA-Longshoremen argument for the denial of enforcement is that the Board misconstrued the PMA-Longshoremen collective bargaining contract. We agree.

In 1959, PMA and the Longshoremen entered into a coastwide mechanization agreement in an attempt to reconcile the need for the introduction of labor-saving machinery with the interests of the Longshoremen in job security. The PMA-Longshoremen briefs concede, as they must, that this agreement, as originally executed, explicitly excludes the operation of barge-mounted floating whirly cranes from the agreement’s terms. The Board relied upon this clause to hold that the contract did not apply to the work in question.

PMA and the Longshoremen argue, however, that the agreement must be read in light of the interpretation given to it by the parties to it. They point out that shortly after the work stoppage, the parties entered into arbitration pursuant to a clause in the agreement to determine whether or not 'the agreement covered the disputed work. At the conclusion of the arbitration, on May 8, 1969, the Coast Arbitrator held that: “The position of the ILWU that the Agreement has assigned the work of operating floating cranes in Astoria to Longshoremen is sustained.” This decision, we think, falls within the terms of the agreement, which contemplates the extension of the agreement to new types of equipment that may be introduced by the employers.

In its § 10 (k) opinion, the Board completely ignored the results of this arbitration. This position was consistent with the Board’s policy that it will not be bound by arbitration that does not include all of the parties to a jurisdictional dispute. See, e.g., Lithographers & Photoengravers Int’l (Beacon Journal Publishing Co.) 185 N.L.R.B. 464 (1970). See also Johns, Jurisdictional Disputes Under the NLRA, Labor Law Developments 1967 at 46 (1967). This Board policy may be prudent in most instances. However, it was not appropriately applied to the arbitration in this case.

In many cases a jurisdictional dispute will arise between two unions, each of which has a contract with the same employer. This is the type of case that was before the Court in CBS, supra. In such a case the Board can hardly be bound to give effect to an award under one of the contracts which gives the disputed work to one of the unions when the other was not a party to the arbitration.

This ease is different. The employers, Brady and Jones, never were parties to a collective bargaining contract with the Engineers. For some years they had leased the barges and cranes from owners who did have a contract with the Engineers. The leased barge-cranes had previously been used for different work in the heavy construction industry, not for loading logs on ships. The lessors provided the operators, who became loaned employees of Brady and Jones. This, however, did not give rise to a collective bargaining agreement between the Engineers and Brady and Jones.

Moreover, immediately after the dispute arose, Brady and Jones found that the owners would lease the barges and cranes to them “bare-boat,” i.e., without any crew. At that point the connection between Brady and Jones and the Engineers ceased. No one has claimed that there was any breach of contract between Brady and Jones and the Engineers when this was done. To hold that there was would be to lock the employers into a contract to which they were not parties merely because, when they first started to use the equipment, they leased it with crew. They would never be able to use the same equipment, whether leased or purchased, with their own employees as operators, unless they dealt with the same union as the one with which the former lessors had a contract. See I.L.W.U. (American Mail Line), 144 N.L.R.B. 1432, 1441 (1963).

Brady and Jones were parties to the coastwide PMA-Longshoremen agreement. The Longshoremen claimed that, under that agreement, they were entitled to the work. That is what the arbitration was about.

The fact that the Engineers were not a party to the arbitration does not undermine the validity of the award. The purpose of the arbitration was to decide upon the meaning of the agreement, and therefore the only logical or necessary parties to the arbitration were the parties bound by it, the Longshoremen and the PMA acting for Brady and Jones. The arbitration resulted in an interpretation of the contract that bound the parties to the contract. There was no legitimate ground for the Board’s refusal to accept the parties’ own interpretation of their contract.

We are not bound to accept the Board’s construction of a contract when it is not supported by substantial evidence or when it is not legally correct. NLRB v. Southern Calif. Dist. Council of Laborers, 9 Cir., 1971, 443 F.2d 220. We conclude that the PMA-Longshoremen contract did assign the disputed work to the Longshoremen and that the Board’s finding of fact to the contrary is incorrect.

This conclusion has a bearing upon the Board’s other findings of fact. In its opinion the Board failed to give weight to the factor of employer preference, yet the employers’ representative, PMA, has vigorously urged the vindication of the Longshoremen’s claim. Furthermore, since the inception of the work stoppage, Brady-Hamilton and Jones have at all times assigned the crane operation to the Longshoremen, which supports PMA’s contention that the employers prefer that the Longshoremen be awarded the work.

In response to this contention the Engineers point out that before the work stoppage the employers had always assigned the work to the Engineers. However, as we have noted, this work assignment was made pursuant to the employers’ lease agreement with the owners of the cranes.- It was made by the then owners of the cranes, not by Brady and Jones, the employers here involved. Ever since the employers have had the contractual freedom to make their own crane operation work assignment, they have given this work to the Longeshoremen.

The foregoing discussion points out two significant facts. First this work dispute does not involve an employer caught in a cross fire between two unions with which the employer has contracts. Rather, only one union has a contractual claim to this work. Second, the employers, once free from the lease agreement which permitted the barge owners to designate Engineers to do the work, have behaved continually in a manner consistent with the conclusion that they prefer the assignment of the work to the Longshoremen.

The Board’s misconstruction of the contract may also have led to a misplaced emphasis on the factors of skill, efficiency and safety. The purpose of the PMA-Longshoremen mechanization agreement was to allow the employers to introduce new machinery while preserving the Longshoremen’s right to fill all available jobs. Therefore, one of the employers’ express obligations under the agreement was to train the Longshoremen to safely and efficiently perform all work covered by the contract. In its § 10(k) opinion the Board noted that such training commenced after the work stoppage. If the Board had correctly determined that the contract covered the disputed work it might have given weight to the fact that the skill problem was anticipated by the agreement.

Perhaps more significantly, by determining that the PMA-Longshoremen contract did not bear upon the work dispute, the Board ignored the efforts of labor and management to provide for a peaceful and stable method of resolving labor crises caused by technological advancement. In its past decisions, the Board has been more responsive to these efforts. It has treated the very PMA-Longshoremen contract before us as persuasive evidence that the factor of industry practice favored a work assignment to the Longshoremen. In fact, the Board has praised this contract and has consistently shown deference to it. In United Industrial Workers of North America (Albin Stevedore Co.) 182 N.L.R.B. 633, 636 (1970), after determining that the collective bargaining contracts and Board certification were not controlling the Board stated:

“The trend in the maritime industry for the past decade has steadily been toward the replacement of manual labor by mechanized equipment. This reality was recognized early by parties concerned with shipping on the West Coast of the United States and it culminated in 1961 with the West Coast Longshore Agreement executed by the Pacific Maritime Association . and various craft unions. The primary aim of that agreement was to lighten the impact of unemployment upon longshoremen due to mechanization and thereby promote industrial peace in this area of American industry. The Board has recognized the soundness of this objective and indeed relied upon it as a factor favoring longshoremen in the hammerhead crane case even though that dispute also involved the Seafarers, which is not a signatory to the agreement, and the Alaskan port, which is not covered by the agreement.
We see no reason to deviate from implementation of the above policy in this case, ... we find that industry practice favors the longshoremen.”

See also United Industrial Workers of North America (Sea Land Service Co.) 188 N.L.R.B. 241 (1971); United Industrial Workers (Albin Stevedore) 162 N.L.R.B. 1005 (1967) ; ILWU (Howard Terminal) 147 N.L.R.B. 359 (1964); ILWU (American Mail Line) 144 N.L.R.B. 1432 (1963); ILWU (PMA) 137 N.L.R.B. 119 (1962). But see ILWU (Matson Terminals) 140 N.L.R.B. 449 (1963); Atleson, The NLRB and Jurisdictional Disputes: The Aftermath of CBS, 53 Geo.L.J. 93, 133-34 (1964).

The Board did attempt to distinguish the above cited cases. However, the Board’s misconstruction of the PMA-Longshoremen contract may have caused the Board to fail to find that industry practice favored the Longshoremen.

In sum, while many of the Board’s findings of fact are supported by substantial evidence, the Board’s erroneous finding or conclusion about the applicability of the PMA-Longshoremen contract casts doubt upon the validity of the Board § 10(k) decision. We must decide whether the Board’s fact finding errors undermine its § 10 (k) decision to the extent that the work assignment must be rejected as arbitrary and capricious.

Arbitrary and Capricious Standard

The Board’s authority to resolve jurisdictional disputes derives from the Taft-Hartley Act. However, from 1947 until 1961, the Board had a firm policy not to compel an employer to assign particular work to employees represented by one union, rather than another, unless the employer’s assignment was in violation of a Board order, certification or collective bargaining contract. In CBS, supra, the Supreme Court put an end to this administrative policy by requiring that the Board make affirmative work awards in all genuine jurisdictional disputes.

One of the Board’s reasons for its reluctance to intervene in jurisdictional disputes was that § 10(k) set forth no standards to guide it in resolving these disputes. The Court responded that it .had fdith in the Board’s ability to overcome this handicap.

“It is true that this forces the Board to exercise under § 10(k) powers which are broad and lacking in rigid standards to g’overn their application. But administrative agencies are frequently given rather loosely defined powers to cope with problems as difficult as those posed by jurisdictional disputes and strikes. It might have been better, as some persuasively argued in Congress, to intrust this matter to arbitrators. But Congress, after discussion and consideration, decided to intrust this decision to the Board. It has had long experience in hearing and disposing of similar labor problems. With this experience and a knowledge of the standards generally used by arbitrators, unions, employers, joint boards and others in wrestling with this problem, we are confident that the Board need not disclaim the power given it for lack of standards. Experience and common sense will supply the grounds for the performance of this job which Congress has assigned to the Board.” (CBS, supra, 364 U.S. at 583, 81 S.Ct. at 336.)

Almost fourteen months after CBS, the Board came down with its first § 10(k) decision under its new mandate. Int’l Ass. of Machinists, Lodge 1743 (J.A. Jones Construction Co.) 135 N.L.R.B. 1402 (1962). Once again the Board emphasized the difficulty of its task.

“Section 10(k) of the Act contains no standards to aid the Board in determining jurisdictional disputes. It says only that the Board is to ‘hear and determine’ the dispute. The legislative history is equally lacking in indication of standards.” (Jones, supra, 135 N.L.R.B. at 1410-11.)

The Board also stated that it was not going to establish any § 10 (k) decision-making standards until it had gained a sufficient amount of the experience that the Supreme Court had referred to in CBS.

“At this beginning stage in making jurisdictional awards as required by the Court, the Board cannot and will not formulate general rules for making them. Each case will have to be decided on its own facts. The Board will consider all relevant factors in determining who is entitled to the work in dispute, e. g. the skills and work involved, certifications by the Board, company and industry practice, agreements between unions and between employers and unions, awards of arbitrators, joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer’s business. This list of factors is not meant to be exclusive, but is by way of illustration. The Board cannot at this time establish the weight to be given the various factors. Every decision will have to be an act of judgment based on common sense and experience rather than on precedent. It may be that later, with more experience in concrete cases, a measure of weight can be accorded the earlier decisions.” (Jones, supra, 135 N.L.R.B. at 1410, emphasis added.)

Though the Board has subsequently resolved hundreds of § 10 (k) disputes, it has never altered its position nor reevaluated its decisionmaking process. In fact, as we observed earlier, the form of these decisions as well as the decisions’ reliance upon the “entire record and . all relevant factors” rarely deviate from a fixed pattern.

As might be expected, given the uncertainty surrounding the Board’s basis for decisionmaking, the Courts of Appeals have been reluctant to deny enforcement to Board orders stemming from § 10 (k) proceedings. We have been able to find only fourteen reported cases decided since CBS and Jones in which circuit courts have reviewed the merits of a § 10 (k) decision. In each of these cases, the Board’s work award was sustained, as the Courts of Appeals have granted the Board broad leeway in carrying out its CBS mandate.

The arbitrary and capricious standard has been applied in a manner that has led us, along with our sister circuits, to defer to the Board's judgment both in the creation of and implementation of § 10(k) decisionmaking standards.

“The broad scope of the Board’s functioning in section 10(k) proceedings is outlined in [CBS]. Under this section, Congress has committed to the Board a task which requires the exercise of a wide degree of discretion and its special expertise. Among other things, the Board considers the skills and work involved, certifications by the Board, company and industry practice, agreements between unions, and between employers and unions, the awards of arbitrators, the assignments made by the employer, and the efficient operation of the employer’s business.” (NLRB v. Teamsters, Chauffeurs, Warehousemen & H. Loc., U., 9 Cir., 1968, 403 F.2d 667, 673.)

The Third Circuit has stated that “it is the function of the Board and not this court to consider the relevant factors and to weigh and evaluate the evidence adduced with respect to each.” NLRB v. Local 825, International Union of Operating Engineers, supra, 326 F.2d at 218. And the Eighth Circuit has agreed:

“It is settled, however, that the Board’s area of discretion in disposing of § 10(k) controversies is wide and, indeed, ‘involves of necessity a large measure of informed discretion.’
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[T]he Board is thus free to resolve these matters on a case-by-case basis where experience and common sense are important factors.” NLRB v. St. Louis Pressmen & Assistants Union No. 6, Inc., supra, 385 F.2d at 960 (per Blackmun).

The Fifth and Seventh Circuits have also agreed: “We agree with the Third and Fifth Circuits that where the Board has made its determination on the totality of factors involved, the award should not be disturbed.” NLRB v. Int’l Die Sinkers’ Conference Milwaukee Lodge, supra, 402 F.2d at 411.

In general terms, the Courts of Appeals have also approved the Board’s reliance upon such varied criteria as skill, custom, efficiency, economy and past practice. See, e. g., NLRB v. Local 25, International Brotherhood of Electrical Workers, supra, 396 F.2d at 594; NLRB v. Denver Photoengravers’ Union No. 18, supra, 351 F.2d at 70-71. More significantly for the present controversy, the Third, Fifth and Eighth Circuits have all specifically approved the Board’s position that collective bargaining contracts are only one factor among many to be considered in resolving jurisdictional disputes. NLRB v. St. Louis Pressmen & Assistants Union, supra, 385 F.2d at 961; New Orleans Typographical Union #17 v. NLRB, supra, 368 F.2d at 763; NLRB v. AFL-CIO, supra, 345 F.2d at 10.

Our study of the Board’s numerous § 10(k) awards persuades us that in some respects its decisions can be characterized as both arbitrary and capricious. Many commentators have examined the Board’s 10(k) decisions and have been dismayed by the Board’s failure to articulate any decisionmaking standards. One observer complained that the “criteria have been shuffled and shifted to justify ... a pre-ordained result.” The conclusions of the American Bar Association’s special § 10(k) committee were even more critical:

“Due to the lack of proper guideposts, the complexity of the problem, the multiple criteria employed and the variance in the weights accorded such criteria, the Board, since the CBS decision, has accomplished little other than to inject additional doubt and uncertainty into an already troublesome and difficult area of labor relations.” (Supplementary Report of the Special 10(k) Committee 439 (1964).) Since its Jones decision, the Board

has consistently maintained that its policy in making § 10 (k) work awards is to decide each case on its own merits without announcing any standards or principles which govern the decisions that are made. Such a practice has relieved the Board of the burden of reconciling its decisions either with precedent or with any predetermined set of standards. Such a practice makes life easy for the Board’s Trial Examiners or Administrative Law Judges, and for the Board itself. To call the practice a policy, however, is a misnomer. It is a little like making a bouillabaisse or pot au feu. Various ingredients go into the pot and are stirred and simmered, and no matter what they are, or what quantity or quality of each is used, the product is always the same — a bouillabaisse or a pot au feu. Nobody can dispute the conclusion; nobody can say, except as a matter of personal taste, whether the result is good or bad.

While the practice may be easy and comfortable for the Board, it makes judicial review virtually impossible, because the decision is totally unprincipled. There is no way for the reviewing court to determine what principles, if any, led to the decision. When the Board lays the stew before the court, its position is essentially this: “We have put in everything relevant, we have stirred the mixture, and this is the result. Whether you like it or not, you must accept it, because we, not you, are the experts. The Supreme Court told you that in CBS. Who are you to say that we are not?”

We do not think that the Congress or the Supreme Court intended that judicial review should be such a paper tiger. Since CBS the Supreme Court has not had occasion to review the Board’s § 10 (k) decisionmaking process, though it has reiterated that it is the Board’s duty to make affirmative work awards. NLRB v. Plasterers’ Union, supra, 404 U.S. at 131, 92 S.Ct. 360. Most of the circuit court decisions cited above involved the review of § 10(k) decisions that were made within a few years after CBS and Jones. The courts could be expected to give greater deference to Board decisions during the period in which the Board’s decisionmaking process was developing. The time has come, however, for the Board to accord a measure of weight to its past decisions and to establish some rational principles governing the weight that it gives to the various factors it considers in § 10 (k) hearings. In short, there is need for a good recipe for the stew.

We do not doubt the Board’s ability to make principled decisions in this area. It has successfully done so in other areas in which the law also gives it wide discretion. It can do so here if it will. We think that it must. Its prior decisions in § 10 (k) cases can give some guidelines.

Most observers who have systematically studied the Board’s § 10 (k) decisions agree that the Board’s statement that no factor is necessarily more important than any other is simply false. Our own independent review of the Board’s § 10(k) decisions reveals that the commentators are correct in concluding that the Board’s work award coincides “in virtually every case” with the employer’s preference. Moreover, the Board’s consistent reliance upon employer preference is not the only observable decision-making pattern. Whenever the Board determines that a collective bargaining contract clearly and unambiguously binds an employer to one (and only one) union, then that union is almost invariably awarded the work.

We do not quarrel with the Board’s consistent reliance upon employer preference, collective bargaining contracts and to a lesser degree other factors. More often than not, other factors deemed relevant by the Board, such as skill, efficiency, safety and employee integration, are factors that the employer himself has relied upon in making his work assignment. Indeed, though the Board purports to rely upon its own evaluation of factors such as skill, efficiency and safety it is often apparent that the employer’s evaluation of these factors influences the Board. Furthermore, by giving significant weight to the employer’s preference, the Board anticipated the Supreme Court’s recognition of the critical stake that the employer has in the outcome of jurisdictional disputes. See NLRB v. Plasterers’ Union, supra, 404 U.S. at 124-125, 130, 92 S.Ct. 360. In deferring to clearly and unambiguously applicable collective bargaining agreements, the Board also promotes the policies of the TaftHartley Act. By recognizing the importance of collective bargaining agreements, the Board enables union and management to provide for the stable and predictable settlement of labor disputes, through arbitration and otherwise. See Id. at 133, 136-137, 92 S.Ct. 360; Carey v. Westinghouse, 1964, 375 U.S. 261, 266, 84 S.Ct. 401, 11 L.Ed.2d 320.

What we do object to is the Board’s refusal to acknowledge the extraordinary importance of these two factors in its § 10(k) decisionmaking process. As we have said, the failure of the Board to establish any standards precludes viable judicial review. The case before us is a good example of the problems created by standardless decisionmaking.

The Board’s work award to the Engineers conflicts with two of the factors that the Board often relies upon. It is possible, of course, that the Board may think that the Engineers should get the work despite the PMA-Longshoremen contract and the employers’ preference. On the other hand, the Board may determine that in light of the correct interpretation of the contract, the factors of skill, efficiency, safety, acquiescence and past practice are not controlling. Our reversal of the Board’s conclusion as to the applicability of the contract precludes us from sustaining the Board’s work assignment in this case. The Board must be given the first opportunity to use its accumulated expertise and make a principled rather than an arbitrary award of the work in light of the correct construction of the contract.

In exercising this discretion, it will not suffice for the Board again to merely list the relevant factors and then come to a conclusion without explaining why it comes to that conclusion. The Board must explicitly recognize that it has traditionally given importance to such factors as employer preference and collective bargaining contracts, absent countervailing circumstances, in its past decisions. In doing so, a body of precedent will be (and in reality has been) developed from which intelligible decision-making standards will emerge. The Board may still evaluate each jurisdictional dispute on its own merits and it need not be limited by a rigid set of standards or principles. But when the Board decides that certain factors take precedence over others, it must explain why and reconcile its decisions with its past judgments. Otherwise, § 10(k) will not bring the desired stability to the process by which jurisdictional disputes are resolved, and the courts will be unable to determine whether or not the Board’s decisions are arbitrary and capricious.

In this case the only applicable collective bargaining agreement assigns the disputed work to the Longshoremen. The employers also appear to prefer that the work assignment go to the Longshoremen. In light of the Board’s policy of giving controlling weight to these factors under similar circumstances, we are unable to conclude, absent convincing reasoning from the Board to the contrary, that the Board’s work assignment to the Engineers is not arbitrary and capricious.

In No. 72-1908, the Board’s petition for enforcement is denied. In Nos. 72-2263 and 72-2315, the petitions for review are granted, the Board’s order is set aside, and the case is remanded to the Board for further proceedings consistent with this opinion.

      . In its brief, PMA urges us to hold that § 10 (k) decisions are directly reviewable. Twice before wo have rejected this suggestion on the ground that no final order results from a § 10 (k) hearing. Henderson v. International Longshoremen’s and Warehousemen’s Union, Local 50, supra, 457 F.2d at 577-578; NLRB v. International Longshoremen’s and Warehousemen’s Union, supra, 378 F.2d at 35-36. The decisions of this court in Waterway Terminals Co. v. NLRB, 9 Cir., 1972, 467 F.2d 1011, and of the Supreme Court in NLRB v. Plasterers’ Union, supra, only serve to reinforce our holding that § 10(k) decisions are not directly reviewable.

        PMA and the Longshoremen also challenge the Board’s order on the grounds that the Board failed to conform to the procedural requirements of the statute. These claims by their terms involve a challenge to the Board’s procedures in all § 10 (k) hearings, We need not entertain such a sweeping challenge to the Board’s procedures because we grant the relief sought by the PMA and the Longshoremen on other grounds.

      . In an ambiguous passage, the Board’s decision quotes the barge crane owners’ labor agreement with the Engineers without drawing any conclusion about its effect. To the extent that the Board relied upon this contract to hold that either the factors of collective bargaining contracts or employer preference favored the Engineers, the Board’s reliance was misplaced. That agreement did not bind either Brady or Jones or the Longshoremen, and therefore has no bearing upon this jurisdictional dispute.

      . Local 134, International Brotherhood of Electrical Workers v. NLRB, 7 Cir., 1973, 486 F.2d 863; NLRB v. International Longshoremen’s and Warehousemen’s Union, 9 Cir., 1969, 413 F.2d 30; NLRB v. Int’l Die Sinkers’ Conference, Milwaukee Lodge, 7 Cir., 1968, 402 F.2d 407; NLRB v. Local 25, International Brotherhood of Electrical Workers, 2 Cir., 1968, 396 F.2d 591; NLRB v. St. Louis Printing Pressmen & Assistants Union No. 6, Inc., 8 Cir., 1967, 385 F.2d 956; NLRB v. International Longshoremen’s and Warehousemen’s Union, 9 Cir., 1967, 378 F.2d 33; NLRB v. Local 676, Int’l Bro. of Teamsters, etc., 3 Cir., 1967, 376 F.2d 3; New Orleans Typographical Union No. 17 v. NLRB, 5 Cir., 1966, 368 F.2d 755; NLRB v. Local 1291, International Longshoremen’s Association, 3 Cir., 1966, 368 F.2d 107; NLRB v. Denver Photo-Engravers’ Union No. 18, 10 Cir., 1965, 351 F.2d 67; NLRB v. Local 1291, International Longshoremen’s Association, AFL-CIO, 3 Cir., 1965, 345 F.2d 4; NLRB v. International Brotherhood of Electrical Workers, 2 Cir., 1964, 339 F.2d 145; NLRB v. Local 991, International Longshoremen’s Association, 5 Cir., 1964, 332 F.2d 66; NLRB v. Local 825, International Union of Operating Engineers, 3 Cir., 1964, 326 F.2d 218.

      . See ILWU (Matson Terminals) 140 N.L.R.B. 449, 455 n. 6 (1963) ; ILA (Pa. Sugar Div.) 137 N.L.R.B. 1458, 1465 (1962).

      . See, e. g., Cohen, the NLRB and Section 10 (k) : A Study of the Reluctant Dragon, 14 Lab.L.J. 905, 918 (1963) ; Oollister, Standards for Assignment of Work in Jurisdictional Work Disputes, 33 U.M.Kan. City L. Rev. 35, 58 (1965) ; O’Donogliue, Jurisdictional Disputes in the Construction Industry Since CBS, 52 Geo.L.J. 314, 358 (1963).

      . Atleson, The NLRB and Jurisdictional Disputes: The Aftermath of CBS, 53 Geo.L.J. 93, 150. One isolated though conspicuous example of this phenomenon was the Board’s divergent treatment of the factor of wage scale differences among competing unions in United Bro’hood of Carpenters and Joiners of America, Local 171 (Knowlton Const. Co.) 207 N.L.R.B. No. 57 (1973) and in Sheet Metal Workers Int’l Ass., Local 553 (Ray Proof Corp.) 198 N.L.R.B. No. 36 (1972).

      . 0. Morris, The Developing Labor Law, 1972 Supplement at 136 (1972). This is a consistent occurrence despite the Board’s protestations that employer preference is only one factor among the many to be considered. See Local 38, IBEW (Cleveland Illuminating Co.) 137 N.L.R.B. 1719, 1722 (1962). Every survey undertaken of Board § 10 (k) decisions bears out this conclusion. See Atle-son, supra, note 6 at 117, 151-52; Collister, supra, note 5 at 57-58; Gitlow, Technology and NLRB Decisions in Bargaining Unit and Jurisdictional Dispute Oases, 16 Lab.L.J. 731, 745 (1963) ; Johns, supra, at 52; O’Donoghue, supra, note 5 at 314; Note, Jurisdictional Disputes Since the CBS Decision, 39 N.Y.U.L.Rev. 657 (1964) ; ABA Section of Labor Relations Law: Report of the Committee on Development of Law under NLRA, 1964 at 124; 1965 at 445; 1967 at 99; 1968 at 110; 1970 at 97.

      . See generally surveys supra note 7 and cases cited therein. The Board has a firm policy that collective bargaining contracts will be deemed persuasive in § 10 (k) hearings only if they clearly and unambiguously assign the work. See 37th Annual Report of the NLRB for the Year Ending June 30, 1972 at 124.

      . See Johns, supra, at 52-53.

        . See, e. g., Local 10, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazo Workers (Unistress Corp.) 198 N.L.R.B. No. 67 (1972).


source: Caselaw Access Project

license: Public Domain

text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 701, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Brady-Hamilton Stevedore Co., Intervenor.
    No. 72-2334.
    United States Court of Appeals, Ninth Circuit.
    Sept. 11, 1974.
    Don S. Willner (argued), Willner, Bennett & Leonard, Portland, Or., for petitioner.
    Michael S. Winer (argued), N. L. R. B. Washington, D. C., for respondent.
    Richard Ernst (argued), Ernst & Daniels, San Francisco, Cal., for interve-nor.
    Before MERRILL and DUNIWAY, Circuit Judges, and TAYLOR, District Judge.

       The Honorable Fred M. Taylor, Senior United States District Judge for the District of Idaho, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

This is a companion case to those decided in NLRB v. International Longshoremen’s and Warehousemen’s Union, Local 50, No. 72-1908 and Nos. 72-2263 and 72-2315, 504 F.2d 1209 (1974).

Here, the Engineers petition for review of a decision and order of the Board in which the Engineers’ requests for relief were denied. The prayer for relief was predicated upon the Board’s award of work to the Engineers in a § 10 (k) hearing, involved in No. 72-1908, supra. There, we hold that the Board’s award was arbitrary and capricious and we deny enforcement of, and set aside, the Board’s order. It follows from our decision in No. 72-1908 that the Engineers’ petition in this case must be denied.

Petition denied.


author: ELY, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. Helmer J. OLSON, Appellee.
    No. 74-1604.
    United States Court of Appeals, Ninth Circuit.
    Oct. 17, 1974.

      A. Lee Petersen, Asst. U. S. Atty. (argued), Anchorage, Alaska, for appellant.
    Ernest Z. Rehbock, Anchorage, Alaska (argued), for appellee.
    Before BROWNING, ELY and GOODWIN, Circuit Judges.
   OPINION

ELY, Circuit Judge:

Olson, the appellee, was charged in a four-count indictment with various violations of 21 U.S.C. § 841(a)(1), § 846, and 18 U.S.C. § 2. Count I charged that on or about September 1, 1973, Olson aided in the distribution of 20,000 doses of methamphetamine. Counts II and III charged, respectively, Olson’s distribution of five pounds of marihuana in March of 1973 and two pounds of marihuana in April of 1973. Count IV charged Olson with conspiracy to distribute controlled substances. Three hours before trial was scheduled to begin, the Court, acting on its own motion, ordered the Government to elect one count of the indictment upon which the defendant would stand trial. The Court’s order recites as its sole rationale that because it was “highly improbable” that, even upon conviction as to all counts, the court would impose consecutive septences, nothing would be gained by prosecution on multiple counts.

The Government refused to elect one count for trial, on the ground that there was no showing that the joinder of the counts in the indictment and their simultaneous trial would prejudice either party. The Government also claimed that forcing it to elect only the conspiracy count, which encompassed all the evidence of the other counts, would not shorten the trial because the principal evidence in the case consisted of tape recorded conversations of Olson and an informant containing discussions of facts constituting the basis of the three substantive counts. Therefore, argued the prosecution, it would be impossible to play the tape recordings without the jury hearing information supporting all four counts of the indictment.

The Court then ordered the Government to elect one count for trial or suffer a dismissal of the indictment with prejudice, stating that the United States Attorney in the district had adopted a policy of presenting to the Grand Jury lengthy multi-count indictments which served only to burden an “already over-busy” court with lengthy jury trials and complex jury instructions. The Court reiterated that since consecutive sentences are rarely imposed, the same basic result could be reached by the prosecution of only one count. The Court’s order states: “It escapes the court, if the government has any case at all, why the successful prosecution of Count I, for example, which is a felony and carries a penalty of imprisonment of not more than 15 years, a fine of not more than $25,000 or both, is not sufficient blood under the circumstances.” The Government again declined to elect one count, and the Court dismissed the indictment with prejudice. The Government appeals.

Since no jury had been empaneled and sworn, jeopardy has not attached. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Alexander v. Fogliana, 375 F.2d 733, 734 (9th Cir. 1967).

Although the District Court’s order does not so state, both appellant and appellee assume that the authority claimed for the Court’s order rests upon Rule 14 of the Federal Rules of Criminal Procedure. It is uniformly recognized that even though counts are permissibly joined in the same indictment under Rule 8(a), if such joinder would create undue prejudice to an accused during his trial, the Court has the discretion under Rule 14 to order a prosecution election among counts or a severance of the counts for trial. Bradley v. United States, 140 U.S.App.D.C. 7, 433 F.2d 1113 (1969); Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 22 L.Ed.2d 221 (1969). It is also recognized that a motion under Rule 14 is addressed to the discretion of the trial judge, and that the Court’s exercise of such discretion, will not be disturbed, absent abuse. Tillman v. United States, 406 F.2d 930 (5th Cir. 1969) ; 8 J. Moore, Federal Practice |f 14.02 [1], at 14-3 (2d ed. 1968).

However, although Rule 14 explicitly grants the trial judge the power to order an election or separate trial of counts upon a finding that the defendant may be prejudiced by a joint trial of the alleged offenses, the rule does not provide for the dismissal of all counts with prejudice as a sanction for the Government’s refusal to elect. Moreover, there is nothing in the text of Rule 14, nor in the cases construing the rule, that supports the proposition that the rule confers such a power. Under Rule 14, the trial judge in his discretion is given the power to order separate trials of counts, and may sever one count for trial while the others are held in abeyance pending disposition of the first trial. As we reemphasize, however, we have found no authority that supports the recognition of any power to dismiss counts of the indictment in the circumstances presented in the present case.

A further consideration indicating that the trial judge lacked the power to dismiss the indictment here is the doctrine of separation of powers. In United States v. Cox, 342 F.2d 167 (5th Cir. 1965), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965), this principle was succinctly described by Judge Jones:

“Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.” 342 F.2d at 171.

This language has been quoted with approval in several other Circuits. United States v. Brown, 481 F.2d 1035, 1043 (8th Cir. 1973) ; Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973) ; Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479, 481 (1967). Although the District Court had commendable motives in seeking to deal with the United States Attorney’s policy of presenting overly lengthy indictments, this did not justify an invasion of the powers of the executive. “On the District Attorney rests the responsibility to determine whether to prosecute, when to prosecute, and on what charges to prosecute. A case is not to be summarily dismissed because the court disagrees with some policy of the District Attorney’s office.” United States v. Shaw, 226 A.2d 366, 368 (D.C.Ct.App.1967).

A somewhat analogous situation was presented to our court in Petition of United States, 306 F.2d 737 (9th Cir. 1962), a mandamus proceeding to compel a district court to vacate its order dismissing three counts of a four count indictment charging the accused with a willful attempt to evade income taxes for each of four consecutive years. After accepting a plea of nolo contendere as to one count, the trial judge dismissed the remaining three counts, stating his reason as follows: “I am going to dismiss them in the interests of justice. The defendant has been sentenced on one count and I think that is fair, and I will just say in the interests of justice. I think he has been punished enough. They have a civil remedy and I think that is sufficient.” In holding that the District Court lacked the power to dismiss, we wrote:

“Each of the four counts charged a .separate and independent offense. United States v. Johnson, 123 F.2d 111, 119 (7th Cir. 1941) ; United States v. Sullivan, 98 F.2d 79, 80 (2d Cir. 1938). We have concluded that dismissal of three of the counts over the government’s objection on the sole ground that the Court had already imposed a ‘sufficient’ sentence upon the fourth count denied the executive branch its right to prosecute, and the entry of the order was therefore beyond the Court’s power.” 306 F.2d at 738.

See also United States v. Gray, 448 F.2d 164 (9th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972); United States v. Gainey, 142 U.S.App.D.C. 262, 440 F.2d 290 (1971).

On the basis of the teaching of the foregoing authorities, we conclude that the District Court exceeded its authority in dismissing the whole indictment with prejudice. Accordingly, the District Court’s Order of dismissal is vacated, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . Fed.R.Crim.P. 14:
      “Relief from Prejudicial Joinder. If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. . . . ”

      . Fed.R.Crim.P. 8(a) :
      “Two or more offenses may be charged in tiie same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting part of a common scheme or plan.”

      . In Gray, the Court of Appeals held that the District Court liad no. authority to accept, without the consent of the Government, pleas of guilty to lesser offenses included in the offenses charged in the indictment, because “[t]he practice utilized by the respondent would terminate a criminal proceeding prior to the resolution of the factual issues raised by the indictment and would deprive the government of the right of trial by jury.” 448 F.2d at 168.

      . In Gainey, the District Court dismissed several cases over the Government’s objection because the Court had a large backlog of criminal cases. In its reversing opinion, the Court of Appeals stated:
      “The reasons for the dismissal reflected in the district court’s memorandum are entirely laudable. Faced with the duty to alleviate their clogged dockets, trial judges should address themselves to the backlog problem. Nevertheless, we conclude that it was not within the trial court’s discretion to enter these dismissals. In Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479, 480 (1967), this court said:
      ‘Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceeding^, or what precise charge shall be made, or whether to dismiss a proceeding once brought.’
      “We conclude that it is a proper function of the United States attorney to decide whether a person charged with crime should be brought to account as to other alleged crimes committed by the same de-feiulant. Accordingly, we find that the district court did not have the discretionary power to dismiss the two cases in question and that said cases must be remanded to said court for further proceedings.” 440 F.2d at 291-292, quoted with approval in United States v. Brown, supra, 481 F.2d at 1043.


author: WALLACE, Circuit Judge:

text:
    Miroslaw PASON, Plaintiff-Appellant, v. WESTFAL-LARSON CO., INC., a corporation, et al., Defendants, v. WEST WINDS, INC., Third-Party Defendant, Fireman’s Fund Insurance Company, Lien Claimant-Appellee.
    No. 72-2826.
    United States Court of Appeals, Ninth Circuit.
    Aug. 29, 1974.

      Siegfried Hesse (argued), Berkeley, Cal., for appellant.
    Michael G. Lowe (argued), of Hanna, Brophy, MacLean, McAleer & Jensen, San Francisco, Cal., for appellee.
   OPINION

Before CHOY and WALLACE, Circuit Judges, and BELLONI, District Judge.

WALLACE, Circuit Judge:

Pason, a harbor worker employed by West Winds, Inc. (Employer), was injured in May, 1966, while doing repair work aboard a completed vessel which was lying in navigable waters and filed a claim for workmen’s compensation with the California Workmen’s Compensation Board. He also filed a suit in the federal district court in admiralty against Westfal-Larson Co., Inc. (Shipowner) based on negligence and unseaworthiness of the vessel. Fireman’s Fund Insurance Company (Fireman’s Fund), as insurer of Employer, paid Pa-son $11,230.44 in medical care and disability benefits pursuant to state compensation law. Shipowner filed a third-party complaint for indemnification against Employer based on the doctrine of maritime warranty of safe, proper and workmanlike performance. Fireman’s Fund filed a lien against any recovery by Pason from Shipowner for the amount of benefits paid to Pason. California law provides the insurer with such a lien, Cal.Labor Code § 3856; admiralty compensation law provides for an assignment of the claim to the employer and subrogation to the insurer. 33 U.S.C. § 933. Fireman’s Fund attempts to utilize the lien to recover amounts paid to Pason for disability and other expenses.

Pason, Employer and Shipowner settled the case for $21,230.44 and Fireman’s Fund sought to recover the amount of its lien from Pason. Pason argued that the doctrine enunciated in Witt v. Jackson, 57 Cal.2d 57, 366 P.2d 641 (1961), applies to this case because compensation was awarded under the state compensation act rather than the federal compensation act (the Longshoremen’s and Harborworkers’ Compensation Act, 33 U.S.C. § 901 et seq.). If Witt applies, Fireman’s Fund could be barred from recovering sums paid to Pa-son because of the negligence of Employer. Had Pason’s action been based solely upon unseaworthiness of the vessel, Employer’s concurrent negligence may not have been available as a possible defense. See Curry v. Fred Olsen Lines, 367 F.2d 921 (9th Cir. 1966), cert. denied, 386 U.S. 971, 87 S.Ct. 1165, 18 L.Ed.2d 131 (1967). The trial court, although applying California law, declined to apply Witt and allowed the lien. We reverse and remand.

The question of whether maritime or state workmen’s compensation law applies is narrow but unclear. This area of the law has been in a state of flux on its judicial road from the Supreme Court decision in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), to the development of the maritime-but-Iocal exception to Jensen, Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 66 L.Ed. 210 (1921), to the development of the twilight zone, Davis v. Department of Labor and Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), and to the decision in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). Fortunately for future litigants, the 1972 amendments to the Longshoremen’s and Harborworkers’ Compensation Act provide the needed clarification. Unfortunately, this case is governed by the prior law.

Injuries such as Pason received while doing repair work aboard a completed vessel lying in navigable waters have traditionally given rise to a cause of action under the Longshoremen’s and Har-borworkers’ Compensation Act. Larson, The Conflict Of Laws Problem Between The Longshoremen’s Act And State Workmen’s Compensation Acts, 45 S. Cal.L.Rev. 699, 701, 705 (1972). Nonetheless, Pason filed for state eompensation benefits. While we think that this was not a twilight zone case and Pason’s filing for state compensation may have been inappropriate, that question is not in issue on this appeal and we are not prepared to say, nor need we hold, that he could not file under the state act. The state compensation board found jurisdiction. Fireman’s Fund did not appeal that finding although it had a good argument that Pason could file only under the federal act. As the carrier responsible under either act, Fireman’s Fund was content to compensate under the state act rather than challenge state jurisdiction. Fireman’s Fund acknowledged that the federal act would have required the carrier to pay-more money. Compare 33 U.S.C. § 908 with Cal.Labor Code §§ 4653, 4654 (1971). This obviously played a part in its decision not to attack the state jurisdiction.

Having now benefited from its failure to challenge the state jurisdiction and from its acceptance of California law, Fireman’s Fund resists application of all the California law because under Witt v. Jackson, Employer’s concurrent and contributory negligence might bar recovery of its lien. It argues that inserting this contributory negligence theory into a comparative negligence field will irrevocably damage the uniformity of admiralty laws. Although uniformity is a great virtue, it does not answer the question before us. The uniformity has already been damaged when a maritime claim, which was neither maritime-but-local nor twilight zone, was paid under state compensation laws. It is true that Pason may have erred in making the claim and that the state compensation board may have mistakenly found jurisdiction ; but Fireman’s Fund, to its own economic advantage, did not appeal that error. With the uniformity of maritime law already damaged and Fireman’s Fund, in part, responsible, we would only add to the confusion were we not to apply at least the California compensation law uniformly. Fireman’s Fund has used the California lien law to perfect its claim. It has partly allowed the door to open and we do not believe the door may now be shut as one-half of the body of law enters. With nonuniformity already extant by application of state compensation in an area which should have been governed by the federal act, we do not feel compelled to amputate part of the state law in the name of uniformity. What the Supreme Court said in The Tungus v. Skovgaard, 358 U.S. 588, 592, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959), about admiralty borrowing state statutory wrongful death claims is equally true to the use of state statutory compensation claims:

[W]hen admiralty adopts a State’s right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached. That is what was decided in The Harrisburg, [119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358] where the Court’s language was unmistakable: “ . . . [I]f the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. . . . The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right.” 119 U.S. 199, at 214 [, 7 S.Ct. 140, at page 147]. That is the doctrine which has been reiterated by the Court through the years. (Footnote omitted.)

See Curry v. Fred Olsen Line, 367 F.2d 921 (9th Cir. 1966), cert. denied, 386 U.S. 971, 87 S.Ct. 1165, 18 L.Ed.2d 131 (1967).

The Fireman’s Fund uniformity argument also fails to distinguish between the jurisdiction question and the question of the choice of law once jurisdiction has been determined. The Supreme Court decisions upon which Fireman’s Fund bases its uniformity argument dealt with the question of jurisdiction to grant an award. The question before us is once jurisdiction is established under the state compensation act, does any overriding maritime principle forbid the application of all of that state law. We think that the answer must be no. Once Fireman’s Fund elected to seek a lien against a possible recovery under state law, the question of whether or not that lien attaches must be determined completely by reference to state law. We cannot recognize a right created by a state statute and then ignore state cases that have developed limitations on that right. Had Fireman’s Fund wanted to avoid the Witt problem, it should have challenged the jurisdiction of the state compensation board. Having failed to do so, it now attempts a backdoor approach to stop the application of all of the state substantive law.

Fireman’s Fund interprets the law to its exclusive benefit by relying upon the California Workmen’s Compensation law to reduce its payments and then by asking us to recognize a lien under that same law but not to recognize case law that limits the right to the lien. We reject the insurance company’s argument that maritime policy precludes the application of Witt v. Jackson to a state compensation award made on a maritime claim. We also reject the argument that in this type of case the Supremacy Clause, as developed in Jensen, mandates that we so radically alter California law.

Fireman’s Fund charges that the application of the Witt doctrine in this case may allow a double recovery by Pa-son. Although the record does not disclose what damages were included in the negotiated settlement between Pason and Shipowner, the fact that the total was exactly $10,000 more than the compensation payments probably indicates that the settlement included an award for the damages for which Fireman’s Fund had already compensated Pason. But even if the record did clearly demonstrate that there was a double recovery, any double recovery would not occur because Pason was allowed to keep what was paid by Fireman’s Fund but because Shipowner failed to deduct that amount in arriving at a settlement. If Shipowner knew of the Witt doctrine, it should have negotiated a settlement with the nonrepayment of compensation benefits in mind. It is, therefore, Shipowner, if anyone, who made an unnecessary payment.

Nevertheless, under California law a third party (Shipowner) cannot settle with a plaintiff (Pason) so as to prejudice the plaintiff’s employer (Employer) or the employer’s carrier (Fireman’s Fund). Under the California Labor Code section in force at the time Pa-son’s accident occurred, an employee is precluded from settling with a third-party defendant without the consent of his employer and without the approval of the court:

No release or settlement of any claim under this chapter as to either the employee or the employer is valid without the written consent of both. The consent of both the employer and employee filed in court in writing together with the approval of the court, is sufficient in any action or proceeding where such approval is required by law.

Cal.Labor Code § 3859. Section 3860(a) and (b) further provided:

(a) No release or settlement under this chapter, with or without suit, is valid or binding as to any party thereto without notice to both the employer and the employee, with opportunity to the employer to recover the amount of compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, and opportunity to the employee to recover all damages he has suffered and with provision for determination of expenses and attorney’s fees as herein provided.
(b) The entire amount of such settlement, with or without suit, is subject to the employer’s full claim for reimbursement for compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, together with expenses and attorney fees, if any, subject to the limitations in this section set forth.

In Brown v. Superior Court, 3 Cal.3d 427, 90 Cal.Rptr. 737, 476 P.2d 105 (1970), the California Supreme Court was faced with the question of what effect Witt v. Jackson has on the operation of these two sections. In Brown an employee sued a third party, seeking recovery for personal injuries. The employer and the employer’s carrier filed notices of lien, claiming a lien upon any recovery by the employee for the amount of workmen’s compensation benefits that the carrier had paid to the employee. Prior to trial, the employee and the third party settled without providing for reimbursement to the carrier on its claimed lien. Accordingly, the carrier refused to consent to the settlement. The trial court nevertheless approved the settlement, but upon the carrier’s motion vacated its approval. The employee instituted a mandamus proceeding, seeking to have the trial court compelled to approve the settlement.

The Supreme Court denied the writ, holding that the trial court cannot approve a settlement agreement that does not resolve the negligence issue. The court stated:

As correctly pointed out in Smith v. Trapp, supra,, 249 Cal.App.2d 929, 940, [58 Cal.Rptr. 229] the employee makes an election to accept the benefits of the Labor Code in receiving a compensation award. His right to such an award is not defeated by his own negligence or by the employer’s lack thereof. (§ 3600.) However, after electing to receive workmen’s compensation from the employer or the latter’s carrier the employee cannot reasonably be heard to contend that, in disregard of and free 'from the reimbursement rights of those who paid his compensation, he should be permitted to settle his claims against a negligent third party without first securing a favorable determination of the negligence issues upon which both employee’s and employer’s right to recover will initially depend.

3 Cal.3d at 432, 90 Cal.Rptr. at 740, 476 P.2d at 108. The court further reasoned that an employee would not prejudice the employer’s interest by failing to resolve the issue of the employer’s negligence as long as the issue of the third party’s negligence was resolved and the settlement did not include the payment for the compensation that the employer had already paid. In such a case the employer could bring a separate action against the third party for the recovery of the benefits he had paid and, in that action, the issue of the employer’s negligence could be resolved. But when the settlement agreement has failed to resolve the issues of the third party’s negligence and the employee’s contributory negligence — -issues that will initially determine whether the employer will be able to recover — the employer has been prejudiced and the settlement agreement cannot be approved. Thus, the court concluded:

In this ease, not only did defendants raise no issue of concurrent negligence by the employer, but plaintiff has made no showing whatever that the issues with respect to negligence as between himself and defendants, upon which both plaintiff’s and the employer’s recovery rights would depend, had been finally determined in plaintiff’s favor in connection with or as an incident of the proposed settlement agreement between plaintiff and defendant. It follows that the trial court was correct in its ruling that the settlement, which excluded the carrier’s claimed lien, should not be approved.

3 Cal.3d at 433, 90 Cal.Rptr. at 741, 476 P.2d at 109.

We are unable to determine from the record in this case whether the settlement agreement resolved the issues of Pason’s and Shipowner’s negligence. In addition, since Employer also signed the settlement agreement, there is a possibility that the issue of Employer’s negligence may have been resolved to the prejudice of Fireman’s Fund. Since we have concluded that in recognizing a right to a lien created under California law, we must be governed by all of the conditions attached to that right, we must follow the requirements of Brown v. Superior Court, 3 Cal.3d 427, 90 Cal.Rptr. 737, 476 P.2d 105 (1970). In the present case the trial court did not apply these principles. Thus, we remand the case for the district court to determine whether the settlement agreement resolved the issues of negligence and whether it prejudiced Fireman’s Fund without its consent. The ultimate decision by the district court should then be guided by the principles enunciated in this opinion.

Reversed and remanded.

       Honorable Robert C. Belloni, United States District Judge, District of Oregon, sitting by designation.

      . 33 U.S.O. §§ 903, 905 (1972).

      . Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), Bethlehem Steel Co. v. Moores, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948), aff’g 323 Mass. 162, 80 N.E.2d 478 (1948), and Bas-kin v. Industrial Accident Comm., 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (1949), might be interpreted to allow Pason to file for state compensation. Larson, The Conflict Of Laws Problem Between The Longshoremen’s Act And State Workmen’s Compensation Acts, 45 S.Cal.L.Rev. 699, 705-07 (1972).
      The area of concurrent jurisdiction was re-.ently analyzed by Professor Larson :
      But a strong case can be made for the proposition that the dominant rationale of all the Court cases from Davis through Moores and 'Baskin to Galbeck is one that also applies to the present issue of state jurisdiction. That rationale can be bluntly stated: The Court simply does not want to be bothered with hair-splitting and archaic distinctions between activities of local concern and activities prejudicing the uniformity of maritime law, especially when what is at stake is no longer some compensation versus no compensation, but merely the possible differential between two compensation acts. It must be recalled that the main body of law that is still invoked in these cases was built up before the Longshoremen’s Act was passed, at a time when the effect of holding an activity to be non-local was to deprive the injured worker of all protection. It is not surprising that, although a few such cases reached the Supreme Court after passage of the Act in 1927, they dropped off almost completely after 1930.

        Id. at 727.

      . In one of the early cases dealing with the maritime-but-looal doctrine, the Court rejected an argument which is very similar to that of Fireman’s Fund. In Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), the Court held that a state compensation act could be applied. That act also abrogated the right of the injured worker to sue in an admiralty court to recover damages. In the instant case, the California compensation law abrogates the right of the insurance company to recoup its payments. The Court held:
      Assuming that the second question presents the inquiry whether in the circumstances stated the exclusive features of the Oregon Workmen’s Compensation Act would apply and abrogate the right to recover damages in an admiralty court which otherwise would exist, we also answer, yes.

        Id. at 478, 42 S.Ct. at 159.