William C. Waggoner, Plaintiffs-Appellees/cross-Appellants v. Northwest Excavating, Inc., Defendant-Appellant/cross-Appellee

This case is before us on remand from the Supreme Court, Northwest Excavating Inc. v. Waggoner, - U.S. -, 102 S.Ct. 1417 , 71 L.Ed.2d 640 (1982). The Court vacated our earlier opinion, Waggoner v. Northwest Excavating, Inc., 642 F.2d 333 (9th Cir. 1981) and remanded the case for further consideration in light of Kaiser Steel Corp. v. Mullins, - U.S. -, 102 S.Ct. 851 , 70 L.Ed.2d 833 (1982).

In Kaiser Steel, the Supreme Court ruled that a court must entertain a “hot cargo” defense under 29 U.S.C. § 158 (e) (“Section 8(e)”) “where [that] defense is raised by a party which § 8(e) was designed to protect, and where the defense is not directed to a collateral matter but to the portion of the contract for which enforcement is sought . 102 S.Ct. at 860.

In Waggoner, we declined to address a section 8(e) defense because of our prior ruling that “district courts may not decide, independent of the National Labor Relations Board, the merits of an unfair labor practice defense to enforcement of a collective bargaining agreement in a Section 301 action.” 642 F.2d at 338, n.2 , citing Waggoner v. R. McGray, Inc., 607 F.2d 1229 , 1235 (9th Cir. 1981).

The Supreme Court in Kaiser Steel…