Cannery Warehousemen, Food Processors, Drivers and Helpers for Teamsters Local Union No. 748 v. Haig Berberian, Inc.

• Decision Date: 30 June 1980
• Docket Number: No. 76-3077,76-3077
• Citation: 623 F.2d 77
• Parties: 105 L.R.R.M. (BNA) 2172, 89 Lab.Cas. P 12,121 CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS FOR TEAMSTERS LOCAL UNION # 748, Petitioner-Appellant, v. HAIG BERBERIAN, INC., a Delaware Corporation, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 77

623 F.2d 77

105 L.R.R.M. (BNA) 2172, 89 Lab.Cas. P 12,121

CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS FOR TEAMSTERS LOCAL UNION # 748, Petitioner-Appellant, v. HAIG BERBERIAN, INC., a Delaware Corporation, Respondent-Appellee.

No. 76-3077.

United States Court of Appeals Ninth Circuit.

June 30, 1980.

Arthur V. Azevedo, Sacramento, Cal., for petitioner-appellant.

Robert E. Murphy, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Cal., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before CHOY and WALLACE, Circuit Judges, and GRANT, ^* District Judge.

WALLACE, Circuit Judge:

This case presents a direct conflict 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.

I.

Haig Berberian, Inc. (Company), operator of several 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 await 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 Board took the consolidated petitions under consideration and rendered a decision in March 1976, approximately ten months after the hearings had ended and six months after the August 1975 arbitration decision in favor of the Teamsters. Although the Board's Regional Director considered the arbitrator's August decision on a motion by the Teamsters to reopen the record, he nevertheless decided that the new plant was not covered by the Teamsters' collective bargaining agreement and that an election was appropriate. The decision was affirmed by the Board on appeal, and an election was held in November 1976, at which the new plant employees voted against unionization.

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), 29 U.S.C. § 160(f). Boire v. Greyhound Corp., 376 U.S. 473, 476-77, 84 S.Ct. 894, 896, 11 L.Ed.2d 849 (1964); AFL v. NLRB, 308 U.S. 401, 407-11, 60 S.Ct. 300, 303-304, 84 L.Ed. 347 (1940). See also Smith Steel Workers v. A. O. Smith Corp., 420 F.2d 1, 6 (7th Cir. 1969); Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1163-64 (5th Cir.), cert. denied, 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39 (1969); McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir. 1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969). ¹ Thus, unless the Board's order in this case comes within the narrow exception to this rule of non-reviewability, we may not examine the propriety of the Board's refusal to defer to the arbitrator's award.

The narrow exception to non-reviewability of representation decisions was created in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (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, 29 U.S.C. § 159(b)(1). The Supreme Court held that the professional employees could bring suit in federal court to "strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act." Leedom v. Kyne, supra, 358 U.S at 188, 79 S.Ct. at 184. The Court emphasized that " 'absence of jurisdiction of the federal courts' would mean 'a sacrifice or obliteration of a right which Congress' has given professional employees, for there is no other means, within their control . . . to protect and enforce that right." Id. at 190, 79 S.Ct. at 185 (quoting Switchmen's Union v. National Mediation Board, 320 U.S. 297, 300, 64 S.Ct. 95, 96, 88 L.Ed. 61 (1943)).

The Leedom exception to non-reviewability of representation decisions has been construed narrowly. In Boire v. Greyhound Corp., supra, 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 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, 84 S.Ct. at 899. 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, 92 S.Ct. 1775, 32 L.Ed.2d 119 (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...