declining to uphold an arbitration award “premised on the application of the labor 12 agreement to [an entity involved in a double-breasted situation] when previous Board proceedings 13 establish that [the entity] is not bound by the agreement”
How later courts described this case
- declining to uphold an arbitration award “premised on the application of the labor 12 agreement to [an entity involved in a double-breasted situation] when previous Board proceedings 13 establish that [the entity] is not bound by the agreement”
- refusing to allow "a variance in the employer's obligations under the labor agreement merely because the arbitrator's decision arises in the context of a section 301 proceeding instead of a Board proceeding"
- "[A] showing [that employees of both companies constitute a single bargaining unit] is not required under the alter ego doctrine."
- “[A] showing [that employees óf both companies constitute a single bargaining unit] is not required under the alter ego doctrine.”
Written by the judges who cited it.
The opinion
BOOCHEVER, Circuit Judge,
dissenting.
There is no dispute that this case involves a construction industry prehire agreement under section 8(f) of the NLRA. Prehire contracts authorized by section 8(f) are unique. They may be entered between a union and an employer without the un *1281 ion’s majority status first having been established. Monetary obligations accrued under a prehire agreement prior to repudiation of the agreement by the employer, can be enforced in a section 301 suit even in the absence of proof the union represented a majority of the employees. Jim McNeff, Inc. v. Todd, 461 U.S. 260 , 103 S.Ct. 1753 , 75 L.Ed.2d 830 (1983).
Because the parties did not address the effect of the prehire status of the agreement, my first choice would be to request further briefing. Since the majority does not agree, I shall express my views without the benefit of such briefing.
I believe that an entirely different analysis from that of the majority is required because of the section 8(f) prehire agreement. The monetary obligations involved accrued prior to any attempt to repudiate the prehire agreement. Thus, there was no need for the arbitrator to delve into representational issues such as whether the union represented a majority of the employees in an appropriate unit. See Jim McNeff, Inc. v. Todd, 103 S.Ct. at 1753 .
The basic issue with which we are confronted is whether the NLRB has exclusive jurisdiction to determine whether EOS Enterprises Inc. (EOS) is bound by the pre-hire agreement executed by Neal Stevens Contracting (NSC), a sole partnership. The majority’s result conflicts with Roberts v. Ayala, 709 F.2d 520 (9th Cir.1983) (per curiam). In Roberts , this court held that a district court has jurisdiction under section 301 of the NLRA to determine whether one company is bound to a prehire agreement signed by another company when it is alleged that the two companies constitute a single employer. Id. The institutional competence of an arbitrator and of a district court in a section 301 suit to decide the issue involved in this case are similar. See United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593 , 80 S.Ct. 1358 , 4 L.Ed.2d 1424 (1960). Whether an employer is bound to a prehire agreement under a single employer theory is primarily a contractual, not a representational issue. Roberts v. Ayala, 709 F.2d at 521 . There is, therefore, no reason to presume the NLRB inherently more competent to decide the dispute.
Nor was the arbitrator precluded from determining that the two companies constituted a single employer by the doctrine of collateral estoppel. An NLRB finding has collateral estoppel effect only if it is essential to the Board’s judgment and was a necessary determination of an issue which was actually litigated. See Glaziers & Glassworkers Local 767 v. Custom Auto Glass Distributors, 689 F.2d 1339 , 1341 (9th Cir.1982); In re Duncan, 713 F.2d 538, 541 (9th Cir.1983). Mere opportunity to litigate an issue is insufficient. IB J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice ¶ 0.443[3] (2d ed. 1983). The Regional Director’s finding on the single employer issue was made as part of his determination of the appropriate bargaining unit. The union disclaimed any interest in representing EOS employees and took no position on the appropriate unit. Thus, there has been no actual adversary litigation of the single employer issue and the Regional Director’s finding should not be given collateral estoppel effect. Moreover, because significantly different legal issues were involved in the two proceedings, it is questionable whether the Regional Director’s finding would be entitled to collateral estoppel effect even if there had been actual litigation of the issue. See Metropolitan Detroit Bricklayers District Council v. J.E. Hoetger & Co., 672 F.2d 580, 583-84 (6th Cir.1982) (NLRB’s finding of single employer status in unfair labor practice proceeding not entitled to collateral estoppel effect in subsequent 301 suit, because Board had no authority to decide if parties were liable for violation of collective bargaining agreement).
Because the arbitrator’s award draws its essence from the collective bargaining *1282 agreement, United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. at 597 , 80 S.Ct. at 1361 , I would affirm the district court. 1
. On the merits of the dispute it seems ironic that NSC, which now seeks to disassociate itself from EOS, entered into the union agreement to confer union fringe benefits on a superintendent employed by EOS.