Waterway Terminals Company v. National Labor Relations Board

467 F.2d 1011 81 L.R.R.M. (BNA) 2449 , 69 Lab.Cas. P 13,089 WATERWAY TERMINALS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 26630. United States Court of Appeals, Ninth Circuit. Oct. 10, 1972. Rehearing Denied Nov. 28, 1972. James H. Clarke (argued), of McColloch, Dezendorf, Spears & Lubersky, Portland, Or., for petitioner. Elliot Moore, Atty. (argued), Stanley R. Zirkin, Atty., Glen M. Bendixsen, Chief of Special Litigation, Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, NLRB, Washington, D. C., Robert J. Weiner, Officer in Charge, NLRB, Portland, Or., Charles M. Henderson, Director, NLRB, Seattle, Wash., Richard Carney, of Carney, Haley, Probst & Levak, Pozzi, Wilson & Atchison, Herndon & Ofelt, Portland, Or., for respondent. Before DUNIWAY and TRASK, Circuit Judges, and FERGUSON, * District Judge. TRASK, Circuit Judge: 1 This case comes before the court on the petition of Waterway Terminals Company (Waterway) to review a decision and order quashing notice of hearing issued by the National Labor Relations Board on August 27, 1970, at the conclusion of a hearing under Section 10(k) of the National Labor Relations…

This case comes before the court on the petition of Waterway Terminals Company (Waterway) to review a decision and order quashing notice of hearing issued by the National Labor Relations Board on August 27, 1970, at the conclusion of a hearing under Section 10(k) of the National Labor Relations Act, as amended ( 29 U.S.C. § 160 (k)). The Board’s Decision and Order quashing the notice of hearing is reported at 185 N.L.R.B. 35 (1970). If thereafter denied a motion for reconsideration and a motion to reopen the record. On December 11, 1970, the Board filed a motion to dismiss Waterway’s petition for review in this court upon the ground that the decision in the Section 10 (k) proceeding was not a final order subject to review. We denied that motion.

Taking the facts largely from the Board’s statement, we note that the work involved is that of loading and unloading freight at Waterway’s Front Street terminal in Portland, Oregon.

Waterway is a freight interchanger unloading freight from barges and reloading it upon trucks or railcars.. Prior to the middle of 1968 it subcontracted most of the barge unloading to Western Transportation Company (Western) and the reloading on railcars to…

(dissenting) :

While I am in full agreement with the conclusion that the Board’s order is subject to judicial review, I must respectfully dissent from that part of the majority opinion overturning the Board’s order.

The evidence before the Board showed the following facts:

1. Prior to mid-1968, Waterway Terminals Co. (“Waterway”) subcontracted most of its work at its two terminals in Portland, Oregon, to Western Transportation Co. and to Interstate Carloading Co. Western, whose employees were represented by the Inlandboatmen’s Union of the Pacific, Columbia River Division (“I.B.U.”) handled only barge freight at these sites while Interstate, whose employees were members of International Longshoremen’s and Warehousemen’s Union, Local 8 (“Local 8”) performed the railcar operations.

2. At other Waterway sites, Western handled both barge and rail freight pursuant to a collective bargaining agreement which provided that employees represented by the I.B.U. would handle both kinds of freight.

3. In 1968, Western discontinued its shoreside operations and Waterway became its successor. Western’s employees, both supervisory and nonsuper-visory, were hired en masse by Waterway and…