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 BROWNING, Chief Judge, and WRIGHT, CHOY, GOODWIN, SNEED, ANDERSON, SKOPIL, SCHROEDER, POOLE, FERGUSON and NELSON; FERGUSON; SKOPIL, Circuit Judge, with whom BROWNING, Chief Judge, and EUGENE A. WRIGHT, J. BLAINE ANDERSON, and POOLE
Parties110 L.R.R.M. (BNA) 3073, 95 Lab.Cas. P 13,746 & BECKER and Shurtleff & Andrews Constructors, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Docket NumberFOLEY-WISMER,No. 80-7272
Decision Date22 July 1982

Page 770

682 F.2d 770
110 L.R.R.M. (BNA) 3073, 95 Lab.Cas. P 13,746
FOLEY-WISMER & BECKER and Shurtleff & Andrews Constructors,
Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 80-7272.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 17, 1981.
Decided July 22, 1982.

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

Ruah Donnelly Lahey, Margery E. Lieber, Deputy Asst. Gen. Counsel, Washington, D. C., for respondent.

Page 771

Petition for Review of an Order of the National Labor Relations Board.

Before BROWNING, Chief Judge, and WRIGHT, CHOY, GOODWIN, SNEED, ANDERSON, SKOPIL, SCHROEDER, POOLE, FERGUSON and NELSON, Circuit Judges.

FERGUSON, Circuit Judge:

Petitioners seek review of an order of the National Labor Relations Board quashing notice of a hearing under section 10(k) of the National Labor Relations Act, 29 U.S.C. § 160(k). 1 Other circuits have held that such an order is not appealable. 2 This circuit has taken a different view, holding that such orders are appealable final orders. Waterway Terminals Co. v. NLRB, 467 F.2d 1011 (9th Cir. 1972). The present case was taken en banc to consider whether Waterway should be overruled. The considerations that supported our decision in Waterway are as compelling now as they were when that case was decided. We therefore decline to overrule it.

I. The Nature of the Case.

This case arises out of a labor dispute in connection with the construction of Washington Nuclear Power Units 1 and 4 on the Hanford atomic energy reservation near Richland, Washington. The petitioners, Foley-Wismer & Becker and Shurtleff & Andrews Constructors ("the Companies"), filed unfair labor practice charges with the National Labor Relations Board ("the Board") alleging violations of §§ 8(b)(4)(D) 3 and 8(b)(6) 4 of the National Labor Relations Act ("the Act"), 29 U.S.C. §§ 158(b)(4)(D), (b)(6). After investigation, the General Counsel dismissed the § 8(b)(6) charges, but issued a Notice of Hearing under § 10(k) 5 of the Act, 29 U.S.C. § 160(k), with respect to the § 8(b)(4)(D) charges. After the hearing, the Board, by a divided vote, found that there was no violation of § 8(b)(4)(D), and issued an order quashing the Notice of Hearing in the § 10(k) proceeding. 249 NLRB No. 10. The Companies brought this appeal from that order.

In dispute in this case, beyond the jurisdictional issue, are both the correct standard

Page 772

for determining whether a jurisdictional dispute within the meaning of § 8(b)(4)(D) exists, and the correct factual description of the labor dispute which gave rise to the § 10(k) hearing in the first place. The three-judge merits panel to which this case is referred as a result of our decision today will be able to examine the record and draw its own conclusions as to those facts and the applicable law. Because we only consider the jurisdictional question in this en banc proceeding, only the procedural facts recounted above are relevant to our decision. We express no opinion about, and attempt no characterization of, the substance of the dispute.

II. Section 10(k) Procedure.

Section 8(b)(4)(D) of the Act is aimed at "jurisdictional" strikes. It prohibits a union from striking or threatening to strike an employer to force the assignment of work to one group of employees rather than another. However, because Congress believed "that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon unions," NLRB v. Radio Engineers, 364 U.S. 573, 577, 81 S.Ct. 330, 333, 5 L.Ed.2d 302 (1961), it created in section 10(k) of the Act a special procedure for the prompt resolution of such disputes. Radio Engineers, supra, 364 U.S. at 576-77, 81 S.Ct. at 332-33.

Unfair labor practice charges brought under § 8(b)(4)(D) of the Act are handled in a way quite different from all other charges that may be brought under the Act. Compare 29 C.F.R. §§ 101.31-.36 (1981) (§ 10(k) procedure) with, e.g., id. §§ 101.2-.16 (procedure under §§ 10(a)-10(i)). That procedure has been explained and clarified several times by the Supreme Court. ITT v. Electrical Workers, 419 U.S. 428, 95 S.Ct. 600, 42 L.Ed.2d 558 (1975); NLRB v. Plasterers Union, 404 U.S. 116, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971); NLRB v. Radio Engineers, supra, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302. When a charge is brought under § 8(b)(4)(D), the Regional Director conducts an investigation and, if appropriate, issues a notice of hearing. 29 C.F.R. § 101.33 (1981). The hearing is to be within 10 days of the initial filing of charges. If the parties fail to reach a voluntary resolution of the dispute, a non-adversary hearing is held. The purpose of this hearing is simply to assemble a full record of the relevant facts. The hearing officer makes no recommendation as to resolution of the dispute. Id. § 101.35. The record thus assembled is transmitted to the Board, which either "determines the dispute" by issuing a § 10(k) award-an assignment of the disputed work to one of the contending unions-or ends the proceedings by determining that no jurisdictional dispute exists within the meaning of § 8(b)(4)(D). In the latter event, the Board issues an order "quashing notice" of the § 10(k) hearing that was already held, and dismissing the charge. That is what happened in the present case.

In the event that the Board determines that a jurisdictional dispute does exist, and makes a work award under § 10(k), the pressure on the parties to settle the dispute intensifies. If they comply with the work award, the Board dismisses the charges. If the losing union refuses to comply (by continuing to strike or threaten to strike), the Board issues a complaint and the prosecution of the § 8(b)(4)(D) charge goes forward against that union. A final Board decision on that complaint is then appealable under § 10(f) of the Act.

III. The Contrast Between § 10(k) Awards and Orders Quashing § 10(k) Hearings.

Cases holding that orders quashing § 10(k) hearings are not appealable have relied on the supposed analogy between such orders and § 10(k) work assignment awards. See, e.g., Shell Chemical Co. v. NLRB, supra, 495 F.2d at 1122-23. However, the differences between § 10(k) work assignment awards and orders quashing § 10(k) hearings are more striking than the similarities. First and most important, when a § 10(k) award has been made, there

Page 773

has been a preliminary determination by the Board that a jurisdictional dispute exists, and the machinery which Congress expressly designed for the resolution of such disputes-machinery which embodies a different combination of economic coercion and Board action than is available for any other kind of labor dispute-has been put in motion. Congress directed that such disputes be resolved as quickly as possible, and also that the resolution be achieved, if possible, by the parties themselves. Thus, if the § 10(k) award is in favor of the striking union, the employer's § 8(b)(4)(D) charges will be dismissed, and the outcome of the dispute will depend on the union's ability to coerce compliance through economic pressure. On the other hand, if the § 10(k) award goes against the striking union, it will be under pressure to negotiate a quick settlement of its dispute with the employer, since continued strike activity will almost surely result in an adverse ruling on the § 8(b)(4)(D) complaint against it.

In contrast, when the Board has quashed notice of a § 10(k) hearing, a finding is implied that there is no jurisdictional dispute. See NLRB v. Plasterers Union, supra, 404 U.S. 116, 134-35, 92 S.Ct. 360, 371, 30 L.Ed.2d 312. The machinery designed by Congress to resolve jurisdictional disputes stops operating, and the parties are relegated to pursuing whatever other remedies they can find. Such remedies may be provided by other provisions of federal or state law, either at the administrative or at the judicial level, or the parties may be forced to settle their differences through the familiar and unwelcome avenue of continued economic warfare. In any event, the special procedure which Congress saw fit to create for the speedy resolution of jurisdictional disputes will have been taken out of operation by the quashing of notice of the § 10(k) hearing. This result is appropriate, of course, if the Board is correct in its judgment that the dispute is not jurisdictional. But where the Board has erred in that determination, the congressional purpose in enacting § 10(k) and § 8(b)(4)(D) will have been frustrated.

Corollary to the distinction just noted between § 10(k) awards and orders quashing § 10(k) hearings is a point fundamental to analysis of the appealability issue. On the one hand, to allow appeals to be taken from § 10(k) awards would involve the courts in a direct interference with the normal operation of the § 8(b)(4)(D) machinery. Just at the point where Congress intended the parties to be under intense...

To continue reading

Request your trial
11 practice notes
  • Int'l Longshore & Warehouse Union v. ICTSI Or., Inc., Case No. 3:12–cv–01058–SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • March 15, 2013
    ...of the contending unions—or ends the proceedings by determining that no jurisdictional dispute exists within the meaning of § 8(b)(4)(D).682 F.2d 770, 772 (9th Cir.1982) ( en banc ) (internal citations omitted). The NLRB issued a § 10(k) hearing notice in response to ICTSI's charge. ILWU in......
  • Cement Antitrust Litigation (Mdl No. 296), In re, No. 81-7465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 1, 1982
    ...considering the limited authorities available, we were of the view that the "question decided below was a close one." Id. 682 F.2d at 770-71. We were not firmly convinced, either way, as to what the correct result should be. We concluded, therefore, that "(w) hether or not th......
  • Castillo v. Ice Field Office Dir., Case No. C12–502–MJP–MAT.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • November 14, 2012
    ...that “our primary duty must always be to apply the law as we understand Congress to have written it.” Foley–Wismer & Becker v. NLRB, 682 F.2d 770, 775 (9th Cir.1982). The Court need not defer to the BIA's interpretation of § 236(c) as requiring mandatory detention, because the language ......
  • Castillo v. ICE Field Office Dir., CASE NO. C12-502-MJP-MAT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • November 14, 2012
    ...primary duty must always be to apply the law as we understand Congress to have written it." Foley-Wismer & Becker v. NLRB, 682 F.2d 770, 775 (9th Cir. 1982). The Court need not defer to the BIA's interpretation of § 236(c) as requiring mandatory detention, because the language of t......
  • Request a trial to view additional results
11 cases
  • Int'l Longshore & Warehouse Union v. ICTSI Or., Inc., Case No. 3:12–cv–01058–SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • March 15, 2013
    ...of the contending unions—or ends the proceedings by determining that no jurisdictional dispute exists within the meaning of § 8(b)(4)(D).682 F.2d 770, 772 (9th Cir.1982) ( en banc ) (internal citations omitted). The NLRB issued a § 10(k) hearing notice in response to ICTSI's charge. ILWU in......
  • Cement Antitrust Litigation (Mdl No. 296), In re, No. 81-7465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 1, 1982
    ...considering the limited authorities available, we were of the view that the "question decided below was a close one." Id. 682 F.2d at 770-71. We were not firmly convinced, either way, as to what the correct result should be. We concluded, therefore, that "(w) hether or not th......
  • Castillo v. Ice Field Office Dir., Case No. C12–502–MJP–MAT.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • November 14, 2012
    ...that “our primary duty must always be to apply the law as we understand Congress to have written it.” Foley–Wismer & Becker v. NLRB, 682 F.2d 770, 775 (9th Cir.1982). The Court need not defer to the BIA's interpretation of § 236(c) as requiring mandatory detention, because the language ......
  • Castillo v. ICE Field Office Dir., CASE NO. C12-502-MJP-MAT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • November 14, 2012
    ...primary duty must always be to apply the law as we understand Congress to have written it." Foley-Wismer & Becker v. NLRB, 682 F.2d 770, 775 (9th Cir. 1982). The Court need not defer to the BIA's interpretation of § 236(c) as requiring mandatory detention, because the language of t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT