Labor Law - LMRA - Ninth Circuit Holds That Dispute over Private Card Check Agreement Is Subject to Primary Jurisdiction of NLRB - International Union of Painter & Allied Trades, District 15, Local 159 V. J & R Flooring, Inc

Harvard Law Review, May 2011 | Go to article overview

Labor Law - LMRA - Ninth Circuit Holds That Dispute over Private Card Check Agreement Is Subject to Primary Jurisdiction of NLRB - International Union of Painter & Allied Trades, District 15, Local 159 V. J & R Flooring, Inc


Section 301 of the Labor Management Relations Act (1) (LMRA) grants federal courts broad jurisdiction over labor contract disputes to encourage adherence to these agreements. (2) But if a dispute is representational, (3) it falls within the primary jurisdiction of the NLRB. (4 )Private recognition agreements, which contractually resolve representational issues, have thus posed thorny jurisdictional questions. (5) Yet courts have enforced these bargains, (6) particularly those including arbitration clauses, which narrow a court's task to interpreting a clause's scope. (7) Recently, in International Union of Painter & Allied Trades, District 15, Local 159 v. J & R Flooring, Inc., (8) the Ninth Circuit deviated from this standard by holding that a union's action to compel arbitration under a private card check agreement was representational--and thus within the primary jurisdiction of the NLRB--because the contract's lack of specificity would force an arbitrator to rely on general principles of labor law to settle the claim. (9) By focusing on the arbitrator's representational task and not the parties' contractual commitment, the J & R Flooring court sidestepped precedent and policy concerns to rule in a manner limiting courts' ability to enforce these agreements. In so usurping the arbitrator's gap-filling role, the court provided a rationale to reroute private recognition claims to the NLRB. Though this effect may be blunted with greater specificity in future agreements, the court's reasoning may nonetheless be used to ease abrogation of these contracts, contrary to the parties' intent and the LMRA's stabilizing purpose.

From 2004 to 2007, four Nevada contractors (10) operated under a collective bargaining agreement with the International Union of Painters and Allied Trades, District Council 15, Local 159 under [section] 8(f) (11) of the National Labor Relations Act (12) (NLRA). (13) This section's carve-out for the construction industry permitted the Union to bargain prior to majority recognition but also allowed the employers to terminate that relationship when the agreement expired. Thus, to cement its bargaining status beyond the imminent end of its agreement, the Union had to convert to traditional majority recognition under [section] 9(a). (14)

To do so, the Union turned to the agreement's card check provision, (15) which required the employers to "submit" to a card check administered by a third party. (16) Under the agreement, "[a]ny disputes" arising over the provision would be subject to "expedited arbitration." (17) Though the timing of the employers' reactions differed, their responses did not. All of the employers refused to cooperate in a card check, with three employers objecting to the proposed procedures and one objecting to any card check. (18) The Union nevertheless conducted unilateral card checks, shortly before the expiration of its agreement and through third parties of its choosing, who verified employee names but did not follow other standard NLRB procedures. (19) All of the employers rejected the results, maintaining they had no duty to bargain with the Union under [section] 9(a). (20)

Following the agreement's expiration in January 2007, the Union filed unfair labor practice charges with the NLRB against the employers. (21) None of the parties sought arbitration at the time. (22) The NLRB General Counsel issued a complaint that the employers had illegally refused to bargain by failing to comply with the card check provision. (23) In September 2007, an administrative law judge held for the employers, ruling that the Union could not rely on the card check results because there had been no agreement on the procedures. (24) The refusal to accept certain procedures was a question of contract interpretation, not anti-union animus, and the Union should have first arbitrated that dispute. (25)

The Union next filed suit in federal district court, seeking to compel arbitration of whether it had established proof of majority support under the agreement and, if so, what the appropriate remedy should be.

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Labor Law - LMRA - Ninth Circuit Holds That Dispute over Private Card Check Agreement Is Subject to Primary Jurisdiction of NLRB - International Union of Painter & Allied Trades, District 15, Local 159 V. J & R Flooring, Inc
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