AALRR Defeats Union Demand For Arbitration Over Card Check And Ongoing Representation At Ninth Circuit

AALRR represents Flooring Solutions of Nevada, Inc. ("FSI") in a dispute with the Painters Union. After FSI's labor agreement expired in early 2007 the Painters claimed to continue to represent FSI's employees. The Painters' claim was based upon a card check clause in the expired agreement and unilateral steps the Painters took just before contract expiration. A National Labor Relations Board ("NLRB") administrative law judge rejected the Painters' position and ruled in late 2007 that the Painters did not represent FSI's employees following expiration of FSI's labor agreement. Likewise, the Judge dismissed similar allegations against other contractors whose employees the Painters claimed to continue to represent after contract expiration. The Painters appealed the Judge's ruling.  The appeal remains pending with the NLRB in Washington, DC.

After the NLRB judge ruled, the Painters requested arbitration under the expired labor agreement to determine whether employees of FSI and the other contractors remain represented by the Painters. At no time had the Painters filed a grievance under the expired labor agreement on the issue they sought to arbitrate. The Painters did, however, file a lawsuit nearly a year after the agreement expired to compel arbitration.

The federal district court in Las Vegas dismissed the lawsuit on summary judgment, as the representation issue was already pending at NLRB. The Painters appealed to the Ninth Circuit Court of Appeals. In December 2009 the Ninth Circuit held oral argument on the case. Then, in a July 30, 2010 ruling, the Ninth Circuit's three judge panel ruled that the lawsuit was properly dismissed by the district court. The Court observed that the representation sought by the Painters through arbitration was the same presented as an issue in the pending NLRB case now on appeal. The Court acknowledged NLRB supremacy on questions of representation as well as labor policy favoring arbitration of labor disputes. The Court advised that not all representation issues would be barred from arbitration. However, under the circumstances in the present case, the Court determined that the NLRB was the better forum to determine the question of ongoing union representation and whether it has been achieved by a card check consistent with NLRB standards.

It is not clear when the NLRB will rule on the Painters' pending appeal from the 2007 administrative law judge's ruling. Nor is it clear at this time whether the Painters will challenge the Ninth Circuit's ruling.

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