N.L.R.B. v. California Horse Racing Bd.

• Decision Date: 06 August 1991
• Docket Number: Nos. 90-15740,90-15744,s. 90-15740
• Citation: 940 F.2d 536
• Parties: 138 L.R.R.M. (BNA) 2139, 119 Lab.Cas. P 10,878 NATIONAL LABOR RELATIONS BOARD, Plaintiff-Appellee, v. CALIFORNIA HORSE RACING BOARD, Defendant-Appellant, and International Brotherhood of Electrical Workers, Local Union 1501, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 536

940 F.2d 536

138 L.R.R.M. (BNA) 2139, 119 Lab.Cas. P 10,878

NATIONAL LABOR RELATIONS BOARD, Plaintiff-Appellee, v. CALIFORNIA HORSE RACING BOARD, Defendant-Appellant, and International Brotherhood of Electrical Workers, Local Union

1501, Defendant-Appellant.

Nos. 90-15740, 90-15744.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 1991.

Decided Aug. 6, 1991.

Cathy Christian, Deputy Atty. Gen., Sacramento, Cal., for California Horse Racing Bd.

David A. Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for Intern. Broth. of Elec. Workers, Local Union 1501.

Corinna L. Metcalf, N.L.R.B., Washington, D.C., for plaintiff-appellee.

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

Before CHOY, GOODWIN and CANBY, Circuit Judges.

CANBY, Circuit Judge:

The California Horse Racing Board (CHRB) issued an administrative order requiring United Tote to negotiate a collective bargaining agreement with the International Brotherhood of Electrical Workers (Union). The National Labor Relations Board (Board) filed this action in federal district court, seeking an injunction against enforcement of the CHRB order and a declaration that the National Labor Relations Act (NLRA) preempted the CHRB jurisdiction over United Tote. The district court granted a preliminary injunction against the CHRB order, and the Union and the CHRB appeal. We affirm.

BACKGROUND

United Tote manufactures and maintains "totalisator" systems, used to calculate and display pari-mutuel betting odds at horse and dog racing tracks. When United Tote entered into a contract to supply and service totalisator systems for an association of California horse racing fairs, the Union sought to represent its employees and negotiate a labor contract. United Tote, whose employees are not represented by In response, United Tote filed an unfair labor practice charge with the Board, alleging that the Union's and the CHRB's actions violated sections 8(b)(1)(A) and (2) of the NLRA, 29 U.S.C. Secs. 158(b)(1)(A) and (2). The Union and the CHRB responded that the Board had no jurisdiction over United Tote's labor relations because the Board had previously declined to assert jurisdiction over labor relations in the horse racing industry, generally.

any union, refused to negotiate. The Union then sought, and was granted, an order from the CHRB requiring United Tote to enter into a collective bargaining agreement with the Union, pursuant to California statute. ¹

The Board held United Tote's unfair labor practices charge in abeyance and brought this action in federal district court. The Board sought a declaration that CHRB jurisdiction over United Tote was preempted by the NLRA, and an injunction against enforcement of the CHRB order. The Board asserted that United Tote was an employer falling within its exclusive jurisdiction. The Board argued that its declination of jurisdiction over the horse racing industry did not apply because United Tote was not sufficiently involved in that industry. The Board further argued that its determination that United Tote did not fall within the Board's general declination of jurisdiction over the horse racing industry was discretionary and not reviewable by the district court.

The district court granted a preliminary injunction restraining enforcement of the CHRB order, and any other CHRB regulation of United Tote's labor relations. In issuing that order, the district court ruled that, once it had satisfied itself that the Board's assertion of jurisdiction over United Tote was authorized by the NLRA, it did not have subject matter jurisdiction to review the merits of the Board's decision to assert jurisdiction. The district court alternatively ruled that, if it had such jurisdiction, the Board had not abused its discretion in asserting jurisdiction here. Under either ruling, the court held, a preliminary injunction was justified. This appeal followed. See 28 U.S.C. Sec. 1292(a)(1).

DISCUSSION

A. The Board's assertion of jurisdiction.

Section 14(c)(1) of the NLRA provides that

[t]he Board, in its discretion, may ... decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction.

29 U.S.C. Sec. 164(c)(1).

We have held that the Board's discretionary power, granted by section 14(c)(1), to decline jurisdiction over a class or category of employers is "a matter of administrative policy within the Board's discretion ... and is not a question for the courts, ... in the absence of extraordinary circumstances, such as unjust discrimination." NLRB v. Anthony Co., 557 F.2d 692, 695 (9th Cir.1977) (quotations omitted). See also New York Racing Ass'n v. NLRB, 708 F.2d 46, 56-57 (2d Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 276, 78 L.Ed.2d 256 (1983).

Pursuant to section 14(c)(1), the Board promulgated a rule declining to assert jurisdiction over any proceeding "involving the horse racing and dog racing industries." 29 C.F.R. 103.3. When United Tote filed its unfair labor practices charge with the Board, the Board made an administrative determination that United Tote was not sufficiently involved with the horse racing industry to fall within the Board's categorical declination of jurisdiction over that industry. It is this refusal to decline jurisdiction which the Union and the CHRB contest. For the reasons stated below, we

hold that the district court properly concluded that it lacked power to inquire into the merits of the Board's assertion of jurisdiction over United Tote.

B. The scope of district court review of Board action in a Nash-Finch proceeding.

The Union and the CHRB concede that the Board has statutory jurisdiction over United Tote, pursuant to sections 2(2) and 10(a) of the NLRA, 29 U.S.C. Secs. 152(2); 160(a). They also do not dispute that sections 10(e) and (f) of the NLRA normally confine judicial review of Board action to the courts of appeal, and provide for such review only upon petition for enforcement of, or appeal from, final Board orders. 29 U.S.C. Sec. 160(e) and (f); AFL v. NLRB, 308 U.S. 401, 407-08, 60 S.Ct. 300, 303-04, 84 L.Ed. 347 (1940); Bays v. Miller, 524 F.2d 631, 631-34 (9th Cir.1975); Hartz Mountain Corp. v. Dotson, 727 F.2d 1308, 1310 (D.C.Cir.1984). Finally, the parties do not dispute that when the Board properly exercises its jurisdiction under the NLRA, the district court, on the Board's motion, may enjoin the enforcement of state regulation as preempted by the Board's action. That power of the district court was confirmed by NLRB v. Nash-Finch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971).

The Union and the CHRB assert, however, that because the Board has declined to assert jurisdiction over the horse racing industry generally, the district court in the exercise of its Nash-Finch jurisdiction must review the merits of the Board's determination not to decline jurisdiction over United Tote. The propriety, under the Board's own regulations, of asserting jurisdiction over United Tote depends, at least in part, on the factual question of the degree of United Tote's involvement in the horse racing industry. We cannot accept the contention that decision of this issue, which involves no question of the Board's statutory power under the NLRA, was within the jurisdiction of the district court in a Nash-Finch injunctive proceeding.

The proper scope of district court review of Board action under the district court's Nash-Finch jurisdiction is an issue of first impression. ² In Nash-Finch, the Supreme Court crafted an exception to the Anti-Injunction Act's prohibition of district court injunctions of state court proceedings. 28 U.S.C. Sec. 2283. The Court held that, to "prevent frustrations of the purposes of the [NLRA]," Nash-Finch, 404 U.S. at 142, 92 S.Ct. at 376, the NLRA grants "implied authority of the Board, in spite of the command of Sec. 2283, to enjoin state action where its federal power preempts the field." Id. at 144, 92 S.Ct. at 377.

Thus, the source of Nash-Finch jurisdiction is the NLRA itself, ³ and its purpose is to protect NLRA preemption. Jurisdiction The nature of NLRA preemption confirms that conclusion. Nash-Finch expressly relied on Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953), for the proposition that the NLRA preempted state regulation of labor relations. In Garner, the court said:

designed to protect the NLRA's integrity should not operate in a way that does violence to that Act's express provisions for exclusive review by courts of appeals of final orders of the Board.

Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order.

346 U.S. at 490, 74 S.Ct. at 165 (emphasis added).

Thus, Garner demonstrates that the "superior federal interest[s]," Nash-Finch, 404 U.S. at 146, 92 S.Ct. at 378, which Nash-Finch authorized the district courts to protect, were not only the substantive powers of the Board, but also the integrated statutory scheme by which the Board is governed, including section 10's provision for exclusive appellate review of final orders by the courts of appeals. The court's most prominent NLRA preemption case, San Diego Building Trades v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), is even more explicit on this score.

When it is clear or may fairly be assumed that the activities which a state purports to regulate are protected by Sec. 7 of the [NLRA], or constitute...