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

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. 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: 1 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. 2 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…

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. § 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 employ *426 ees 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…

concurring specially.

I concur in Judge Skopil’s conclusion but only under the compulsion of this court’s en banc determination that an order of the Board quashing notice of hearing under section 10(k) proceeding is reviewable. Foley-Wismer & Becker v. NLRB, 682 F.2d 770 (9th Cir.1982) (en banc).

I thought that decision en banc to be wrong and I still believe it to be wrong. To the extent it rests upon Waterway Terminals Co. v. NLRB, 467 F.2d 1011 (9th Cir. 1972), it is on infirm ground, for the logic of that prior decision is no more compelling today than it was 10 years ago. It was certainly inconsistent, when decided, with NLRB v. Plasterers Union, 404 U.S. 116 , 92 S.Ct. 360 , 30 L.Ed.2d 312 (1971), and with our own still earlier holding in Henderson v. International Longshoremen’s and Warehousemen’s Union Local 50, 457 F.2d 572, 577 (9th Cir.1972). Today’s adherence to an illogical precedent erodes the statutory-administrative scheme and promises to increase contest in an area which should be left to the Board’s expert determination. I venture the speculation that this decision may not outlast time.