International Union of Painter & Allied Trades, District 15 Local 890L v. J & R Flooring, Inc.

656 F.3d 860, 11 Cal. Daily Op. Serv. 11
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 29, 2011
DocketNos. 08-17089, 10-72727, 10-73383, 10-73561
StatusPublished
Cited by8 cases

This text of 656 F.3d 860 (International Union of Painter & Allied Trades, District 15 Local 890L v. J & R Flooring, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Union of Painter & Allied Trades, District 15 Local 890L v. J & R Flooring, Inc., 656 F.3d 860, 11 Cal. Daily Op. Serv. 11 (9th Cir. 2011).

Opinion

OPINION

SCHROEDER, Circuit Judge:

These consolidated cases arise out of a 2007 labor dispute between the Painters Union and Nevada contractors over whether the Union’s card check established its majority status under the terms of the collective bargaining agreement (“CBA”), thereby requiring the contractors to bargain with the Union pursuant to Section 9(a) of the National Labor Relations Act (“NLRA”). One set of cases arises from the Union’s charges before the National Labor Relations Board (“Board”) that the contractors failed to bargain in good faith during and following the card check. The other case arises from the district court, where the Union sought an order to arbitrate whether the card check established the Union’s majority status under the terms of the CBA. We have seen the appeal from the district court before when the district court declined to order arbitration. See Int’l Union of Painter and Allied Trades, Dist. 15, Local 159 v. J & R Flooring, Inc., 616 F.3d 953 (9th Cir.2010). We have now ordered the appeal reheard.

When we originally decided the district court appeal, the Union’s unfair labor practice charges had been pending before the Board for more than two years, a delay resulting from the Board’s inability to function because it lacked a third member. In our opinion, we considered Ninth Circuit precedent and the manner in which the dispute had been characterized by the Union. We concluded that the dispute was primarily representational and properly [863]*863belonged before the Board. Int’l Union of Painter, 616 F.3d at 962. We therefore affirmed the district court’s dismissal of the Union’s petition to compel arbitration. The Union petitioned for rehearing of our decision.

Soon after our opinion issued, the Board decided the unfair labor practice charges. J & R Flooring, Inc., 355 NLRB No. 123 (Aug. 26, 2010). In a bifurcated decision, the Board held that one of the employers, Flooring Solutions of Nevada, Inc. (“FSI”), had refused in bad faith to bargain with the Union, and ordered FSI to bargain. Id. at *8. As for the other employers, collectively known as the J & R Flooring Employers, the Board held they were not guilty of unfair labor practices because they had acted in good faith by relying on a reasonable interpretation of the CBA in disputing the card check. Id. at *7. The Board declined to consider which of the parties’ contract interpretations was correct, and whether the Union was entitled to majority recognition, because the resolution of the dispute was immaterial to whether the employers acted in good faith in relying on their interpretation of the CBA to dispute the card check. Id. at *22 n. 17.

FSI did not ask the Board to reconsider its decision. Instead, FSI petitioned this court for review of the Board’s decision and bargaining order; the Board cross-petitioned for enforcement of the bargaining order; and the Union petitioned for review of the Board’s ruling in favor of the J & R Flooring Employers. We ordered the Board petitions calendared before this panel, granted the Union’s petition for panel rehearing of the district court appeal, and consolidated all of the matters for argument and decision together.

Rehearing of the district court appeal was required because one of the practical effects of the Board’s decision, when coupled with our decision denying arbitration, was to leave the Union without any forum to determine whether it had established majority status under the CBA. This would have been an unfortunate result given the parties’ contractual agreement to determine majority status through a card check, and the CBA’s specific clause requiring expedited arbitration of any disputes concerning the card-check provision.

We now have the benefit of the Board’s decision, the petitions to this court emanating from it, and the rearguments of the parties. In the petitions for review from the Board’s decision, we enforce the Board’s order, and deny the Union’s and FSI’s petitions for review. In the appeal from the district court, we conclude that the dispute over whether the Union established majority status pursuant to the CBA’s card-check provision is primarily contractual and subject to arbitration. The parties contractually agreed to determine majority status through a card check, and to arbitrate any dispute concerning the card-check provision. We therefore withdraw our prior decision, Int’l Union of Painter and Allied Trades, Dist. 15, Local 159 v. J & R Flooring, Inc., 616 F.3d 953 (9th Cir.2010), and replace it with this opinion reversing the district court’s order denying arbitration. We remand for the district court to order all parties to arbitrate whether, under the CBA’s card-check provision, the Union established majority status. Any remedies fashioned in arbitration must be consistent with the Board’s bargaining order against FSI.

FACTUAL AND PROCEDURAL BACKGROUND

The background of this dispute is familiar to the parties and is set forth in the Board’s decision. J & R Flooring, 355 NLRB No. 123, at *2-8. We recount only those facts that are necessary to explain our decision.

[864]*864The employers are four Nevada contractors engaged in commercial and industrial flooring: FSI, J & R Flooring, Freeman’s Carpet Service, and FCS Flooring. The latter three employers are referred to collectively as the J & R Flooring Employers. The International Union of Painter and Allied Trades, Local 159, entered into a collective bargaining agreement with all of the employers, which was in effect from February 1, 2004, through January 31, 2007. Article 4 of the CBA provides that the employers will recognize the Union as a majority representative of their employees if the Union establishes majority status through a third-party card check. Article 4 further requires the parties to submit any disputes concerning that provision to expedited arbitration.

Before the CBA was due to expire, the Union notified the employers that it wished to bargain for a new contract and announced its intention to conduct a third-party card check, in accordance with Article 4, to determine whether it represented a majority of the employees. The J & R Flooring Employers met with the Union several times but failed to reach an agreement. On January 31, 2007, the day the contract was set to expire, the Union, for the first time, announced that it was conducting a card check. The J & R Flooring Employers objected to the card check on the grounds that the remittance reports that the Union intended to use were not current; that the J & R Flooring Employers were not involved in selecting the third party and were not assured of the third party’s neutrality; and that at least two employees had complained about the Union misinforming them of the purpose of the cards. Despite J & R Flooring Employers’ objections to the card-check procedures, the Union nevertheless conducted the card check. The J & R Flooring Employers then refused to accept the card-check results and refused to recognize the Union as the majority representative of their employees.

With respect to FSI, the Union requested that the parties hold a card check on January 23, 2007. FSI responded that it was not available on that date or any other dates suggested by the Union.

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Bluebook (online)
656 F.3d 860, 11 Cal. Daily Op. Serv. 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-union-of-painter-allied-trades-district-15-local-890l-v-j-ca9-2011.