CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS FOR TEAMSTERS LOCAL UNION # 748, Pеtitioner-Appellant, v. HAIG BERBERIAN, INC., a Delaware Corporation, Respondent-Appellee.
No. 76-3077
United States Court of Appeals, Ninth Circuit
June 30, 1980
As we have already noted,
Judgment affirmed.
Arthur V. Azevedo, Sacramento, Cal., for petitioner-appellant.
Robert E. Murphy, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Cal., for respondent-appellee.
Before CHOY and WALLACE, Circuit Judges, and GRANT,* District Judge.
WALLACE, Circuit Judge:
This case presents a direct cоnflict between an order of the National Labor Relations Board (Board) and the prior award of an arbitrator acting pursuant to a valid collective bargaining agreement. The district court gave precedence to the Board order by refusing to enjoin noncompliance with the arbitrator‘s award. We affirm.
Haig Berberian, Inc. (Company), operator of sevеral almond, walnut, and apricot pit processing plants in the City of Modesto, California, has recognized Teamsters Local No. 748 (Teamsters) as the exclusive bargaining representative of its employees since 1960. In 1974 the Company commenced construction of a new processing facility outside Modesto in an area not previously covered by the Company-Teamsters collective bargaining agreement. While construction of the new facility was still in progress, the Teamsters and Company entered discussions concerning representation of employees at the new facility. No agreement was reached, and the Company proceeded to employ non-Teamsters at the new plant site. Further unsuccessful negotiations led the parties to submit the dispute to arbitration, an arbitrator was selected, and hearings were scheduled for early 1975.
One week before arbitration, the International Association of Machinists and Aerospace Workers (IAM) filed a petition with the Board seeking certification as the exclusive bargaining representative of the new facility‘s employees. This second claim to representative status led the Company to file a petition with the Board seeking resolution of the conflicting representation claims. The IAM and Company petitions were later consolidated for one representation hearing before the Board.
Simultaneous to its filing of the Board petition, the Company filed a complaint in federal district court to enjoin the scheduled arbitration. At hearings on this requested injunction the Company and Teamsters agreed by stipulation to defer the scheduled arbitration and to submit the issue of arbitrability to the district court for decision. On April 10, 1975, the district court denied the Company‘s injunction request and directed that the Company and Teamsters arbitrate. That directive was later affirmed by this court.
Arbitration proceedings were held on May 9 and 10, 1975, in Modesto. The subject of the arbitration was the Teamsters’ claim, filed with the Company during the previous unsuccessful negotiations, that the collective bargaining agreement applied to the new plant site and that the union security clause therefore required that all workers at the new site become Teamsters. On August 27, 1975, the arbitrator issued his decision sustaining the Teamsters’ grievance and finding that the new facility came within the coverage of the collective bargaining agreement.
Meanwhile, consideration of the consolidated representation petitions was in progress before the Board. The Teamsters, having successfully intervened in the Board action, requested that the Board grant a continuance to awаit the outcome of the court-ordered arbitration, then only a few weeks away. That request was denied immediately by the Regional Director and on appeal by the Board, and a similar request was denied at the representation hearings in late April and early May 1975. The
Prior to the Board decision, and in response to the Company‘s refusal to comply with the arbitrator‘s award, the Teamsters brought this action in federal district court to affirm the award and enjoin further Company disregard thereof. The district court dismissed the Teamsters’ action, holding that the Board decision takes precedence over the arbitration award. It is that dismissal which is appealed by the Teamsters.
Two arguments are made to us by the Teamsters. First, they contend that the Board erred in refusing to defer to the arbitrator‘s decision as required by Board guidelines and precedents. Second, they contend that because arbitration was undertaken pursuant to stipulation of the parties and an order of the federal court, and because federal labor policy favors settlement of industrial disputes through arbitration, the arbitrator‘s decision overrides the subsequent Board decision.
II.
By contending that the Board erred in refusing to defer to the arbitration award, the Teamsters request us to review the propriety of a Board representation decision. Normally, such a decision may not be reviewed by federal courts because a Board representation decision is not considered a reviewable “final order” within the meaning of section 10(f) of the National Labor Relations Act (Act),
The narrow exception to non-reviewability of representation decisions was created in Leedom v. Kyne, 358 U.S. 184 (1958).2 There, the Board had included nonprofessional employees in a professional employee bargaining unit without first obtaining the consent of a majority of the professional employees as specifically required by section 9(b)(1) of the Act,
The Leedom exception to non-reviewability of representation decisions has beеn construed narrowly. In Boire v. Greyhound Corp., supra, the Supreme Court stated:
The [Leedom] exception is a narrow one, not to be extended to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led to a conclusion which does not comport with the law. Judicial review in such a situation has been limited by Congress to the courts of appeals, and then only under the conditions explicitly laid down in * * * the Act.
Id. at 481-82. The Court in Boire then refused to set aside a Board unit determination which the district court had found to be inadequately supported by factual findings.3 We have interpreted Boire to preclude invocation of the Leedom exception where the Board has “violated neither statutes nor regulations,” stating that “[t]he Supreme Court in Boire * * * limited Leedom to violations of statutory guidelines, and refused to extend it to possible abuses of discretion.” Local 1547, IBEW v. Local 959, Int‘l Bhd. of Teamsters, 507 F.2d 872, 875 (9th Cir. 1974).
Under the Boire and Local 1547 interpretation of Leedom, we may not examine the propriety of the Board‘s refusal to defer to the arbitrator. Both the Teamsters and the Company agree that Board deferral to arbitration decisions involves discretion. See Douglas Aircraft Co. v. NLRB, 609 F.2d 352 (9th Cir. 1979); Local 1327, IAMAW v. Fraser & Johnston Co., 454 F.2d 88, 91 (9th Cir. 1971), cert. denied, 406 U.S. 920 (1972). The Teamsters do not contend that nondeferral in this case violated any statute or any regulation of the Board; the Teamsters’ sole contention is that the Board abused its discretion by not following its own precedents for exercise of that discretion. But we may not rely upon possible abuses of discretion as a basis for invoking the Leedom exception. Cf. Local 1547, IBEW v. Local 959, Int‘l Bhd. of Teamsters, supra, 507 F.2d at 875 (alleged abuse of discretion by Regional Director does not excuse failure to exhaust administrative remedies with Board, so district court lacked jurisdiction to review representation decision in § 301 contract action). Thus, we will not examine the propriety of the Board‘s refusal to defer to the arbitrator‘s decision.4
We are, therefore, faced with a direct conflict5 between a Board decision and a previous arbitration decision. The Teamsters argue that the arbitrator‘s decision, having been rendered pursuant to Company-Teamsters stipulation, and being consistent with national labor policy, takes precedence. We disagree. Case law clearly establishes the preeminent position of the Board in conflicts with arbitrators.
The rule that Board decisions override arbitrator decisions, sometimes referred to as the supremacy doctrine, was first articulated by the Supreme Court:
Should the Board disagree with the arbiter, by ruling, for example, thаt the employees involved in the controversy are members of one bargaining unit or another, the Board‘s ruling would, of course, take precedence; and if the employer‘s action had been in accord with that ruling, it would not be liable for damages under § 301. . . . The superior authority of the Board may be invoked at any time. Meanwhile the therapy of arbitration is brought to bear in a complicated and troubled area.
Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272 (1964). See also Alexander v. Gardner-Denver Co., 415 U.S. 36, 50 n.13 (1974). Although dicta when rendered, this statement by the Court has spawned a line of cases establishing the preeminent position of the Board vis-a-vis arbitrators. E. g., Boire v. Int‘l Bhd. of Teamsters, 479 F.2d 778, 801-02 (5th Cir. 1973); Local 7-210, Oil Workers v. Union Tank Car Co., 475 F.2d 194, 197-99 (7th Cir.), cert. denied, 414 U.S. 875 (1973); Smith Steel Workers v. A. O. Smith Corp. supra, 420 F.2d at 7; Local 7-210, Oil Workers v. Union Tank Car Co., 337 F.Supp. 83, 87-88 (N.D.Ill.1971); Dock Loaders Local 854 v. W. L. Richeson & Sons, Inc., 280 F.Supp. 402, 404-05 (E.D.La.1968). We agree with the Seventh Circuit‘s interpretation of these cases “that once the Board has acted, either before or after the arbitrator‘s award, the Board‘s order overrides thе arbitrator‘s decision.” Local 7-210, Oil Workers v. Union Tank Car Co., supra, 475 F.2d at 199.
The Teamsters have cited no cases holding that an arbitrator‘s decision takes precedence over a Board decision. They simply argue that federal labor policy and the parties’ stipulation require that the arbitrator‘s decision take precedence. We are convinced, however, that the policy behind the supremacy doctrine is sound; the Board‘s decision should take precedence.
The policy underlying the rule that a Board representation order overrides a conflicting arbitration is simply stated: the Board occupies a superior position for consideration of the laws involved and the individual interests that will be affected by a decision. This superior position results from the respective duties of the Board and arbitrators. The arbitrator‘s role is limited:
“He is not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept. He has no general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to thе parties. He serves their pleasure
only to administer the rule of law established by their collective agreement.”
His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the “industrial common law of the shop” and the various needs and desires of the parties. The arbitrator, however, has no general authority to invoke public laws that conflict with the bargain between the parties[.] Alexander v. Gardner-Denver Co., supra, 415 U.S. at 52 n.16, 53 (quoting Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999, 1016 (1955)). The Board, on the other hand, has a broader view. It may consider not only the union and employer before it, but all other individuals who may be affected by, and all provisions of the Act that may be relevant to, a representation decision. That arbitrators are more limited in their focus is clear:
The National Labor Relations Act guarantees certain rights to employees, employers, bargaining representatives, and the public, and the Board is charged with protecting these interests. An arbitrator is not. His function is to discern the intention of the parties to a contract, who have hired him to resolve their differences. The interests of third parties, such as аn individual employee, a group of employees or the public, are not his primary concern.
NLRB v. Horn & Hardart Co., 439 F.2d 674, 678 (2d Cir. 1971).
The importance of the Board‘s broader responsibility to further the purposes of the Act in regard to all parties involved in a dispute is amply illustrated by the facts of this case. Section 7 of the Act,
It is unfortunate that conflicts such as this occur. However, given our dual system for dealing with labor disputes it seems inevitable that some conflicts will arise. We hold that valid Board representation decisions take precedence over conflicting arbitration decisions. Accordingly, the district court‘s dismissal of the Teamsters’ suit to affirm the arbitration award was рroper.
AFFIRMED.
CHOY, Circuit Judge, concurring:
I agree with the majority‘s conclusion that a valid Board order takes precedence over an arbitrator‘s award. I believe that it should be emphasized, however, that neither we nor the district court concluded that the Board order in question was in fact valid. We merely assumed for the purpose of this case that the Board order was valid, because, as disсussed in Part II of the majority opinion, we do not have jurisdiction to consider whether the Board should have deferred to the arbitrator.
Should a future Board order properly raise the issue whether the Board abused its discretion in refusing to defer to the arbitrator (e. g., if the Board were to find that the Teamsters committed an unfair labor practice where that finding was based upon the undеrlying representation decision) the issue will be reviewable uninfluenced by anything in our opinion today. See generally Douglas Aircraft Co. v. NLRB, 609 F.2d 352 (9th Cir. 1979) (Board abused its discretion by failing to defer to arbitrator where arbitrator‘s decision might have rested on ground that was not clearly repugnant to the Act).
Notes
Ҥ 3238. Offenses not committed in any district
The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.”
The Board‘s ruling on a claim of unfair labor practice would be a reviewable final order that would give this court jurisdiction to examine the propriety of the Board‘s decision. See Boire v. Greyhound Corp., 376 U.S. 473, 476-79 (1964); Hecla Mining Co. v. NLRB, 564 F.2d 309, 313 (9th Cir. 1977). Where there is such a ruling, the court could consider whether the Board abused its discretion in refusing to defer to the arbitral award in the underlying representation рroceedings. Cf. Douglas Aircraft Co. v. NLRB, 609 F.2d 352 (9th Cir. 1979) (where petition to set aside Board order, court reviewed Board‘s refusal to defer). Here we have no reviewable final order of the Board; we have only an arbitrator‘s award.