describing Fay as an “obscure” exception to the rule of “non-reviewability of representation decisions”
How later courts described this case
- describing Fay as an “obscure” exception to the rule of “non-reviewability of representation decisions”
- noting that arbitrators may employ “industrial common law” to interpret a CBA
- "[V]alid Board representation decisions take precedence over conflicting arbitration decisions."
- “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 [NLRA]”
Written by the judges who cited it.
The opinion
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 discussed 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 underlying 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).