Foley-Wismer & Becker v. N.L.R.B., FOLEY-WISMER

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore SKOPIL and POOLE; SKOPIL; POOLE
Parties112 L.R.R.M. (BNA) 2417, 96 Lab.Cas. P 13,959 & BECKER and Shurtleff & Andrews Construction, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Decision Date28 December 1982
Docket NumberFOLEY-WISMER,No. 80-7272

Page 424

695 F.2d 424
112 L.R.R.M. (BNA) 2417, 96 Lab.Cas. P 13,959
FOLEY-WISMER & BECKER and Shurtleff & Andrews Construction,
Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 80-7272.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 17, 1981.
Decided Dec. 28, 1982.

Page 425

Wesley M. Wilson, Yakima, Wash., for petitioners.

Ruah Donnelly Lahey, Washington, D.C., for respondent; Margery E. Lieber, N.L.R.B., Washington, D.C., on brief.

Petition for Review from the National Labor Relations Board.

Before SKOPIL and POOLE, Circuit Judges, and KENYON, * District Judge.

SKOPIL, Circuit Judge:

Petitioners, Foley-Wismer & Becker and Shurtleff & Andrews, seek review of a decision and order of the National Labor Relations Board quashing notice of hearing under section 10(k) of the NLRA ("the Act"), 29 U.S.C. Sec. 160(k). We deny the petition for review.

I.

Shurtleff & Andrews Constructors ("Shurtleff") and Foley-Wismer & Becker ("Foley-Wismer") (together, "the Companies") each employed members of the Teamsters, Operating Engineers, and other unions. The Companies both utilize large cranes to pull 40-foot flatbed trailers which are loaded with construction material from the storage yard to the construction site. Both Companies had previously awarded the operation of the cranes to a member of Operating Engineers, and the craft employees

Page 426

whose materials were being transported customarily assisted the crane operator by signaling the operator, tying down loads and hooking and unhooking the trailer.

On July 31, 1979 the Teamsters and the Operating Engineers executed a jurisdictional agreement providing that the work of pulling flatbed trailers would be manned by a composite crew consisting of an Operating Engineer and a Teamster, with the Operating Engineer operating the crane and the Teamster assisting by rigging or signaling the driver, directing the loading to ensure a balanced load, tying down the load, hooking and unhooking the trailer and dolly, landing the crane in proper position for the loading, and performing certain light maintenance tasks. The Unions notified the Companies of their jurisdictional agreement and requested that the Companies reassign crane operation to a composite crew. The Companies refused. The Teamsters struck and picketed Shurtleff for ten days, and after Shurtleff filed unfair labor practice charges gave assurances that it would not engage in further strikes. The Teamsters threatened Foley-Wismer with strike action, but later gave assurances against such strikes.

The Companies separately filed charges with the National Labor Relations Board ("the Board") alleging that the Teamsters had violated section 8(b)(4)(D) of the Act by picketing, striking, and threatening to picket and strike the Companies to force them to reassign crane operation work to a composite crew. The Companies also charged that the Teamsters' demand for the employment of composite crews constituted an unlawful attempt at featherbedding in violation of section 8(b)(6). The Board's Regional Office found insufficient evidence to support the allegations of a violation of section 8(b)(6) and dismissed the charges. The Board's regional director issued an order consolidating the cases filed by each Company and scheduled a hearing pursuant to section 10(k).

After the hearing, the Board found that the Companies had failed to establish the existence of a jurisdictional dispute between the unions since the two unions had not made rival claims to the same work. The Board, with one member dissenting, concluded there was no reasonable cause to believe that section 8(b)(4)(D) had been violated, and issued an order quashing the notice of hearing in the section 10(k) proceeding. 249 NLRB No. 10. This petition for review was filed challenging the Board decision and order.

The Board petitioned this court for an original en banc hearing, asserting that this court lacks appellate jurisdiction because the order to quash is not a final order subject to review by this court 1 and that prior Ninth Circuit precedent to the contrary should be overruled. See Stromberg-Carlson Communications, Inc. v. NLRB, 580 F.2d 939 (9th Cir.1978); Waterway Terminals Co. v. NLRB, 467 F.2d 1011 (9th Cir.1972). No judge requested a vote on the original en banc hearing suggestion, and thus the suggestion was deemed denied. General Order 5.2(a).

After argument, the panel requested en banc review to determine whether the Board's order quashing notice of hearing of the section 10(k) proceeding was reviewable and whether Waterway Terminals should be overruled. This court en banc determined that such a quashing order was reviewable. Foley-Wismer & Becker v. NLRB, 682 F.2d 770 (9th Cir.1982) (en...

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6 practice notes
  • Pepsi-Cola Co. v. R.I. Carpenters Dist. Council, Civ. A. No. 95-595ML.
    • United States
    • U.S. District Court — District of Rhode Island
    • April 24, 1997
    ...Garage Employees & Helpers Union Local 839 (Shurtleff & Andrews Constructors), 249 NLRB 176, 177, 1980 WL 11374 (1980), review denied, 695 F.2d 424 (9th Cir. 9. Pepsi points out that even if Pepsi and Fluor Daniel were construed to be a single entity, the Council's picketing would have stil......
  • Pepsi-Cola Company v. Rhode Island Carpenters District Council, No. CA 95-595ML (D. R.I. 4/__/1997), No. CA 95-595ML.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 1, 1997
    ...Warehousemen, Garage Employees & Helpers Union Local 839 (Shurtleff & Andrews Constructors), 249 NLRB 176, 177 (1980), review denied, 695 F.2d 424 (9th Cir. 9. Pepsi points out that even if Pepsi and Fluor Daniel were construed to be a single entity, the Council's picketing would have still......
  • Recon Refractory & Const. Inc. v. N.L.R.B., No. 03-73064.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2005
    ...as to the jurisdictional dispute must be upheld unless arbitrary and capricious." Foley-Wismer & Becker v. NLRB (Foley-Wismer II), 695 F.2d 424, 427 (9th Cir.1982). We have explained that this standard gives the Board "considerable deference" in interpreting the NLRA and exercising its expe......
  • International Longshoremen's & Warehousemen's Union, Local 10 v. Levin-Richmond Terminal Corp., LEVIN-RICHMOND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 1, 1995
    ...between two or more groups of employees over which is entitled to do certain work for an employer.' " Foley-Wismer & Becker v. NLRB, 695 F.2d 424, 427 (9th Cir.1982) (quoting NLRB v. Radio & Television Broadcast Eng'rs Union Local 1212, 364 U.S. 573, 579 (1961)); see also USCP-Wesco, Inc. v......
  • Request a trial to view additional results
6 cases
  • Pepsi-Cola Co. v. R.I. Carpenters Dist. Council, Civ. A. No. 95-595ML.
    • United States
    • U.S. District Court — District of Rhode Island
    • April 24, 1997
    ...Garage Employees & Helpers Union Local 839 (Shurtleff & Andrews Constructors), 249 NLRB 176, 177, 1980 WL 11374 (1980), review denied, 695 F.2d 424 (9th Cir. 9. Pepsi points out that even if Pepsi and Fluor Daniel were construed to be a single entity, the Council's picketing would have stil......
  • Pepsi-Cola Company v. Rhode Island Carpenters District Council, No. CA 95-595ML (D. R.I. 4/__/1997), No. CA 95-595ML.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 1, 1997
    ...Warehousemen, Garage Employees & Helpers Union Local 839 (Shurtleff & Andrews Constructors), 249 NLRB 176, 177 (1980), review denied, 695 F.2d 424 (9th Cir. 9. Pepsi points out that even if Pepsi and Fluor Daniel were construed to be a single entity, the Council's picketing would have still......
  • Recon Refractory & Const. Inc. v. N.L.R.B., No. 03-73064.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2005
    ...as to the jurisdictional dispute must be upheld unless arbitrary and capricious." Foley-Wismer & Becker v. NLRB (Foley-Wismer II), 695 F.2d 424, 427 (9th Cir.1982). We have explained that this standard gives the Board "considerable deference" in interpreting the NLRA and exercising its expe......
  • International Longshoremen's & Warehousemen's Union, Local 10 v. Levin-Richmond Terminal Corp., LEVIN-RICHMOND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 1, 1995
    ...between two or more groups of employees over which is entitled to do certain work for an employer.' " Foley-Wismer & Becker v. NLRB, 695 F.2d 424, 427 (9th Cir.1982) (quoting NLRB v. Radio & Television Broadcast Eng'rs Union Local 1212, 364 U.S. 573, 579 (1961)); see also USCP-Wesco, Inc. v......
  • Request a trial to view additional results

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