NLRB Has Primary Jurisdiction of Representation Disputes; Parties Cannot Use Grievance Arbitration to Solve Those Issues

In International Union of Painters & Allied Trades District 15 v. J&R Flooring, Inc., the Ninth Circuit confronted and resolved an important labor law issue.  The dispute centered on a union’s attempt to establish majority support prior to the expiration of a collective bargaining agreement.  If the union could make out the showing, it was entitled to continue in its role as the employees’ exclusive representative. But if it lacked majority support, is could not do so.

When a disagreement arose between the union and the employer over this issue, the union sought to invoke the grievance arbitration procedure under the parties’ collective bargaining agreement, contending that in refusing to recognize the union’s majority status, the employer was violating the agreement.  The employer argued that the entire issue was not a “contractual” dispute under the parties’ collective bargaining agreement (which would have been subject to the agreement’s grievance procedure), but rather, was a “representational” dispute that should be properly decided by the National Labor Relations Board. 

The Ninth Circuit agreed with the employer. “Because we conclude that his particular dispute is principally representational, we affirm the district court’s decision dismissing the action on the ground that the dispute falls within the primary jurisdiction of the NLRB.”

For your convenience, a complete copy of the court’s opinion is attached.

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