Foley-Wismer & Becker and Shurtleff & Andrews Constructors v. National Labor Relations Board

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). Other circuits have held that such an order is not appealable. 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) and 8(b)(6) of the National Labor Relations Act (“the Act”), 29 U.S.C. §§ 158 (b)(4)(D), (b)(6). After…