Petition for Writ of Certiorari — St. Vincent Medical Center v. Service Employees Intenational Union

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Suprise Court, Us.

(i) FILED

03108 3 JAN 29 2004

z No. 03-

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In The =

Supreme Court of the Anited States

ST. VINCENT MEDICAL CENTER; DAUGHTERS OF

CHARITY HEALTH SYSTEMS INC.,

Petitioners,

SERVICE EMPLOYEES INTERNATIONAL

UNION; SERVICE EMPLOYEES

INTERNATIONAL UNION, LOCAL 399,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROBERT F. MILLMAN PHILIP L. Ross *

LITTLER MENDELSON LITTLER MENDELSON

A Professional Corporation A Professional Corporation

2049 Century Park East 650 California Street,

5th Floor 20th Floor

Los Angeles, CA 90067-3107 San Francisco, CA 94108-2693

(310) 553-0308 (415) 433-1940

Counsel for Petitioners

January 29, 2004 * Counsel of Record

AMERICAN FINANCIAL PRINTERS ® (202) 464-5500

QUESTION PRESENTED

Whether it was error for the United States Court of

Appeals for the Ninth Circuit, in conflict with decisions of

this Court and other federal courts of appeals, to hold that

a labor union may compel private arbitration of election

objections to a National Labor Relations Board (NLRB)

conducted representation election, whose outcome has

already been certified by the NLRB?

LIST OF PARTIES AND

CORPORATE DISCLOSURE STATEMENT

All parties to the proceeding in the court of appeals

below are listed in the case caption.

Pursuant to Rule 29.6, corporate Petitioners St.

Vincent Medical Center and Daughters of Charity Health

Systems, Inc. provide the following corporate disclosure

information:

St. Vincent Medical Center is a non-profit corporation

whose parent corporation is the Daughters of Charity

Health Systems, Inc.

Daughters of Charity Health Systems, Inc. is a

non-profit corporation that has no parent corporations and

no publicly held company owns 10% or more of its stock.

TABLE OF CONTENTS

QUESTION PRESENTED ........................ ..

LIST OF PARTIES AND CORPORATE DISCLOSURE

I il

TABLE OF AUTHORITIES ................. rr iv

JUDGMENT FOR WHICH REVIEW IS SOUGHT .... 1

JURISDICTION ES ES ene eee ee 1

CONSTITUTIONAL, STATUTORY, OR OTHER LEGAL

ETE 1

STATEMENT OF THE CASE ..................... 3

REASONS FOR GRANTING THE PETITION ........ 8

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT AND OTHER

COURTS OF APPEALS RECOGNIZING THAT

A DETERMINATION OF ELECTION

OBJECTIONS IS WITHIN THE "PRIMARY

JURISDICTION" OF THE NLRB .......... 11

Il. THE NINTH CIRCUIT DECISION

UNDERMINES EXISTING FEDERAL LABOR

POLICY AS IT ERRONEOUSLY DISREGARDS

THE BINDING NATURE OF A NLRB

STIPULATED ELECTION AGREEMENT ... 18

IN. BY PERMITTING A LATER COLLATERAL

ATTACK ON THE ALREADY "CERTIFIED"

RESULTS OF AN NLRB ELECTION, THE

NINTH CIRCUIT'S DECISION

IMPERMISSIBLY UNDERMINES THE

FINALITY OF THE NLRB'S ELECTION

ee 21

a eo yak pos eo ves h asec devs cees 25

ill

TABLE OF AUTHORITIES

Cases

Amalgamated Clothing & Textile Workers Union,

AFL-CIO v. Facetglas, Inc., 845 F.2d 1250 (4th

oe Beer rr rey ery rere rar ee ree 21

Baja Place Inc., 268 NLRB 868 (1984) .............. 14

Carey v. Westinghouse Elec. Corp., 375 U.S. 261 (1964). 24

Caron International, 246 NLRB 1120 (1979) ........ 14

Communications Workers of Am. v. U.S. West Direct, 847

Pie BETO Cie et. FD 6k hoe ei eed ace teanarere 12

General Shoe Corporation, 77 NLRB 124 (1948) ... 14, 16

Gissel Packing Co. v NLRB, 395 U.S. 575 (1969) ..... 17

Grant's Home Furnishings, Inc., 229 NLRB 1305

Pe cee oe a ka ee ee ea mee een 18, 20

International Bhd. of Boilermakers [etc.] v. Hardeman,

Se TE CUE ED 55-6 css ees Po eee aes wee es 8, 11

Local Union 204 of Int'l Bhd. of Elec. Workers v.

Iowa Elec. Light & Power Co., 668 F.2d 413

ee SU so gh a a ete eee 12, 18, 22, 23

Local Union 257, Intern. Broth. of Elec. Workers,

AFL-CIO v. Sebastian Elec., 121 F.3d 1180 (8th Cir.

SE Se ee ee a ee ee eee ee 12

McGuire v. Humble Oil & Refining Co., 355 F.2d 352 (2d

6 | ee reer ree Pere ere Tee ee 24

Newport News Shipbuilding and Drydock Co., 239 NLRB

ee Fake eR ee eee 14

NLRB v. A.J. Tower Co., 329 U.S. 324 (1946) ........ 13

NLBB v. Chicago Tribune Co., 943 F.2d 791

Ce Ra: SE ooo os ee ee eee 16

NLRB v. Dixie Lime & Stone Co., 737 F.2d 1556 (11th

Seen) cis ce eaa ss ee ae eee ee 13

NLRB v. Reliance Steel Products Co., 322 F.2d 49 (5th

RA SU 3 ce kei de ned ee eee 23

NLRB v. Southern Health Corp., 514 F.2d 1121 (7th Cir.

i MES PE Te ee ol Tk) 13, 14

NLRB v. The Standard Transformer Company, 202 F.2d

ee es, OOO a oo cn es eee 19

Pace v. Honolulu Disposal Service, Inc., 227 F.3d 1150

NE: EE & sade xe eee eee 12

Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67 (2d

ee iy ar rade yr a MIN ec 15

Reichart Furniture Co., 236 NLRB 1698 (1978) ...... 23

Retail Delivery Drivers, Local 588 v. Servomation Corp.,

717 F.2d 475 (th Cir, 8663)... occ ccc ccc ccc canes 22

Rosehill Cemetery, 275 NLRB 180 (1985) ........... 14

Smith Steel Workers v. A.O. Smith Corp., 420 F.2d 1 (7th

ie fe eos San 24

SPX Corp., 320 NLRB 219 (1995) ......----ce eee. 14

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

eee See Gates CRA Re RA 22

Tyler Pipe Industries, Inc., 180 NLRB 880 (1970)..... 16

United Ass'n of Journeymen v. Valley Engineers,

Dre Fe Oil Cem Cir. 1908)... 6. ec eee. Li, 12

United Bhd. of Carpenters, Local Union No. 1694 v. W.T.

Galliher & Bros., 787 F.2d 953 (4th Cir. 1986) ...... 12

United States v. United Mine Workers, 330 U.S. 258

eek ee et ag a ugg Seu tes gag oe whale 6

Constitutional and Statutory Provisions

Ce ee 1

i 2,4

29 U.S.C. § 185(a) oo. eee cece cece e eens 1, 6, 12

Administrative Rules and Regulations

ee ee ee ere 2, 18, 20

MOC Em 6 10RO)........ 6-5-0 c ccc cece cess 5, 22

I NY ic ccs hn de eceosee yess 5, 22

29 C.F.R. § 102.69(c)-(f) 0.2.20. e cece eee e eee ceee 18

ky casas avacsvesnsecdanxdias 6

POE PN eo ee cee ec oa es tae ee es 7

Other Authorities

Cohen, "Neutrality Agreements: Will the NLRB Sanction

Its Own Obsolescence?" 16 The Labor Lawyer 201

SO el esi Gu vents et enn tre eee 10

NLRB Case-Handling Manual, Part II, 11392.3 ..... 22

Office of the NLRB General Counsel, An Outline of Law &

Procedure in Representation Cases §22-116 (1999) .... 15

vil

St. Vincent Medical Center and Daughters of Charity

Health Systems, Inc. (collectively "St. Vincent") respectfully

petition this Court to issue a writ of certiorari to the United

States Court of Appeals for the Ninth Circuit.

JUDGMENT FOR WHICH REVIEW IS SOUGHT

The judgment for which review is sought is Service

Employees International Union v. St. Vincent Medical

Center, 344 F.3d 977 (9th Cir. 2003), which is reproduced in

the Petition Appendix ("Pet. App.") at pages la-20a. The

unpublished order of the court of appeals denying the

petition for rehearing en banc is reproduced at Pet. App.

‘21a. The unpublished order of the district court granting

petitioners’ motion to dismiss the complaint to compel

arbitration with prejudice is reproduced at Pet. App.

22a-24a.

JURISDICTION

The judgment of the court of appeals was entered on

September 19, 2003. Rehearing en banc was denied on

November 5, 2003. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, OR OTHER

LEGAL PROVISIONS

The Labor Management Relations Act § 301, 29

U.S.C. § 185(a) provides:

Suits for violations of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this chapter, or between any such labor

organizations, may be brought in any district court

of the United States having jurisdiction of the

parties, without respect to the amount in

controversy or without regard to the citizenship of

the parties.

The National Labor Relations Act § 9, 29 U.S.C. §

159, provides in relevant part:

accordance with such regulations as may be

prescribed by the Board - (A) by an employee or

labor organization acting on their behalf alleging

that a substantial number of employees (i) wish to

be represented for collective bargaining and that

their employer declines to recognize their

representative as the representative defined in

subsection (a) of this section .... the Board shall

investigate such petition and if it has reasonable

cause to believe that a question of representation

affecting commerce exists shall provide for an

appropriate hearing upon due notice. .... If the

Board finds upon the record of such hearing that

such a question of representation exists, it shall

direct an election by secret ballot and shall certify

the results thereof.

The Rules and Regulations of the National Labor

Relations Board, Rule 102.69, 29 C.F.R. § 102.69, provides

in relevant part:

Sec. 102.69 Election procedure; tally of ballots;

objections; certification by the Regional Director;

report on challenged ballots; report on objections;

exceptions; action of the Board; hearing

(a) Unless otherwise directed by the Board, all

elections shall be conducted under the supervision

of the Regional Director in whose Region the

proceeding is pending. All elections shall be by

secret ballot. ... Upon the conclusion of the election

eas daLasa.iSSiSiaissnssesis sities.

the ballots will be counted and a tally of ballots

prepared and immediately made available to the

parties. Within 7 days after the tally of ballots has

been prepared, any party may file with the -

Regional Director an original and five copies of

objections to the conduct of the election or to

conduct affecting the results of the election, which

shall contain a short statement of the reasons

therefor. Such filing must be timely whether or not

the challenged ballots are sufficient in number to

affect the results of the election. ...

(b) If no objections are filed within the time set

forth above, if the challenged ballots are—

insufficient in number to affect the results of the

election, and if no runoff election is to be held

pursuant to section 102.70, the Regional Director

shall forthwith issue to the parties a certification of

the results of the election, including certifications

of representative where appropriate, with the same

force and effect as if issued by the Board, and the

proceeding will thereuon be closed.

STATEMENT OF THE CASE

This case arises from an attempt by Respondents,

Service Employees International Union and Service

Employees International Union Local 399 (collectively, the

"SEIU"), to compel Petitioner St. Vincent to privately

arbitrate the SEIU's untimely objections to the results of a

union representation election conducted by the NLRB. The

NLRB conducted the representation election pursuant to an

express written agreement by the parties to have the

election, including any post-election objections, processed by

the NLRB in accord with the NLRB's Rules and

Regulations.

SEE CNET IeT Ho

On January 24, 2000, the SEIU filed with the NLRB

a petition for a representation election to be held among a

unit of service and skilled maintenance employees of St.

Vincent Medical Center (SER 9).' The SEIU's election

petition was filed with the NLRB pursuant to Section 9(e)

of the National Labor Relations Act ("NLRA"), 29 U.S.C. §

159(e) (1935). Subsequent to the filing of its NLRB election

petition, the SEIU signed a private agreement in April 2001

with Catholic Healthcare West ("Agreement") (ER 6-17).

The terms of that Agreement later became applicable to St.

Vincent Medical Center. Among its terms, the Agreement

provided for representation elections to be conducted, at the

SEIU's option, either by the NLRB or by a private election

officer (ER 12 at 4/E(7)). Under the parties' Agreement,where

the SEIU chose to have an NLRB conducted election, "[{i]n

such situation, the NLRB shall substitute for the role of

Election Officer" applying the Agreement's recognition

procedure "except as adjustments may be required by the

NLRB" (ER 12 at 4§/E(7), emphasis added). The parties'

Agreement also placed certain restrictions on the nature

and scope of the parties’ pre-election campaign conduct.

The SEIU voluntarily chose to continue to pursue an

NLRB-conducted election in this matter. Thus, on

September 7, 2001, the SEIU and St. Vincent Medical

Center signed a NLRB "Stipulation" agreeing that a secret

ballot election would be conducted by the NLRB. The

Stipulation provided that "terms and conditions as

contained in the Stipulated Election Agreements previously

executed by the parties in these matters shall still apply"

(SER 11-14). Ina NLRB "Stipulated Election Agreement"

previously entered into between the parties in February

2000, the SEIU expressly agreed that all post-election

"procedures after the ballots are counted shall conform with

: "ER" refers to the appellate Excerpt of Record; "SER" refers to the

appellate Supplemental Excerpt of Record.

the Board's Rules and Regulations" (SER 15, emphasis

added).

Pursuant to the parties' NLRB "Stipulation" and the

previous NLRB "Stipulated Election Agreement," the NLRB

conducted a representation election on September 26 and

27, 2001. On September 27, 2001, the NLRB issued a Tally

of Ballots stating that the SEIU did not have enough votes

cast in its favor to become the collective bargaining

representative for the bargaining unit (SER 22). Under the

NLRB's Rules and Regulations governing representation

proceedings, the SEIU had seven (7) days after the Tally of

Ballots was prepared to file any "objections to the conduct

of the election or to conduct affecting the results of the

election" with the NLRB Regional Director (29 C.F.R. §

102.69(a)). The SEIU did not file any election objections

with the NLRB. After the seven-day statutory period

within which to file objections had elapsed, the NLRB

certified the results of the election on October 16, 2001,

pursuant to NLRB Rule 102.69(b) (SER 24-25).

After the SEIU's time to file election objections with

the NLRB had already expired, the SEIU first raised a

claim directly with St. Vincent that it had allegedly engaged

in pre-election campaign conduct in violation of the parties'

Agreement. With respect to that alleged pre-election

conduct, the SEIU stated, "/p/lease consider these objections

to the election among the service, maintenance, and skilled

maintenance employees at St. Vincent Medical Center that

took place on September 26 and 27th, 2001" (ER 52,

emphasis added). Thereafter, the SEIU requested that its

"elections objections" be submitted for resolution by a

private arbitrator under an arbitration provision contained

in the parties' Agreement. (ER 19, 24). St. Vincent, in turn,

rejected the SEIU's request to arbitrate the election

objections, pointing out that "no timely objections were ever

filed with the Board [NLRB]" and that the NLRB had

already certified the results of the election (ER 21, 26).

Proceedings and Disposition in the District Court.

Rather than properly pursue any election objections

through the NLRB's established post-balloting procedure,

the SEIU waited more than six months and on April 3,

2002, filed a Complaint to Compel Arbitration ("Complaint")

in the U.S. District Court for the Northern District of

California seeking to have a private arbitrator rule on its

election objections to the NLRB-conducted election (ER 1-5).

The SEIU's Complaint specifically sought an order

compelling St. Vincent "to arbitrate the dispute regarding

the SEIU's objections te the September 26 and 27, 2001

election" (ER 5, emphasis added).

As it was undisputed that the NLRB had already

certified the results of the election when no election

objections were filed with the Board, St. Vincent responded

to the SEIU's Complaint to Compel Arbitration by filing a

Motion to Dismiss the Complaint pursuant to the Federal

Rule of Civil Procedure ("FRCP") 12(b)(1) on the ground that

the district court lacked subject matter jurisdiction over the

matter. St. Vincent submitted that, although the SEIU's

Complaint was purportedly brought under Section 301 of

the Labor Management Relations Act ("LMRA"), 29 U.S.C.

§185(a) (1947), the district court lacked subject matter

jurisdiction to entertain the SEIU's Complaint because it

raised a representational matter over which the NLRB

possessed primary jurisdiction.” Alternatively, St. Vincent

. Pursuant to Rule 14(g)(ii) of the Rules of this Court, Petitioners

state that the district court's jurisdiction was based on the inherent

power that every federal court has to determine as a preliminary matter

its own subject matter jurisdictior United States v. United Mine

Workers, 330 U.S. 258, 290-92 & n. &1 (1947). As noted, Respondents

also claimed that jurisdiction for the district court existed under 29

U.S.C. § 185(a).

also submitted that the SEIU's Complaint should be

~ dismissed under FRCP 12(b)(6) for failure to state a claim

upon which relief could be granted because the NLRB had

already certified the results of the election following the

SEIU's failure to file any timely objections with the Board

(ER 27-29).

After the parties fully briefed and argued the issues,

on June 3, 2002, the district court, per the Honorable

Manuel L. Real, granted St. Vincent's Motion to Dismiss

(Pet. App. 19a-20a). The SEIU thereafter appealed that

dismissal to the Ninth Circuit Court of Appeals.

The Court of Appeals’ Decision. On appeal, the Ninth

Circuit reversed. In a dramatic departure from existing

law, the Ninth Circuit found that although the NLRB

conducted the election at St. Vincent Medical Center and

already certified the election's result, that did not prohibit

the district court from compelling the private arbitration of

the SEIU objections to the September 26-27, 2001 election

(Pet. App. at 13a). The Ninth Circuit noted that LMRA §

301 provides concurrent jurisdiction with the NLRB over

suits for violations of contracts between an employer anda

labor organization. Although the court of appeals

recognized that federal courts must defer to the NLRB's

"primary jurisdiction" where an issue is primarily

representational, the Ninth Circuit concluded that simply

because the SEIU's election objections were based on

alleged violations of the Agreement's restrictions on the

parties’ pre-election campaign conduct, "the major issue

cannot be characterized as primarily representational" (Pet.

App. at 15a). In reaching this conclusion, the Ninth Circuit

relied heavily on the fact that under the parties’ Agreement,

an arbitrator could not compel recognition of the Union

where a majority of voters had not selected representation

by the Union. (Pet. App. at 16a). The Court, however,

ignored that the SEIU acknowledged on appeal that one of

the remedies it might seek from an arbitrator was another

"re-run" election — something that directly impacts the

representational decision in this case.

The Ninth Circuit further found that the district court

had supposedly erred in finding that SEIU's complaint to

compel arbitration failed to state a valid claim for which

relief could be granted. The Ninth Circuit concluded that

the fact that the NLRB had already certified the results of

the election did not prevent an arbitrator from reopening

the representation proceeding since the union's election

objections again concerned pre-election conduct that

involved "alleged violations of the Agreement" (Pet App. at

18a). The Ninth Circuit also held that the NLRB

"Stipulated Election Agreement" entered into by the parties,

which included the SEIU's agreement that all "postelection

and runoff procedures ... after the ballots are counted shall

conform with the [NLRB's] Rule and Regulations" did not

bar an arbitration of the SEIU's election objection since the

union was supposedly challenging pre-election conduct and

not the election itself (Pet. App. at 19a). The Ninth Circuit

therefore reversed the district court and remanded the case

for entry of an order compelling arbitration (Pet. App. at

20a).

REASONS FOR GRANTING THE PETITION

In conflict with both prior opinions of this Court and

other circuit courts of appeal, the Ninth Circuit's decision in

this case erroneously permits arbitral intrusion into a

matter that falls squarely within the NLRB's "primary

jurisdiction" that Congress intended be decided by the

administrative expertise of the NLRB. As this Court has

made clear, in "cases requiring the exercise of

administrative discretion, agencies created by Congress for

regulating the subject matter should not be passed over...."

International Bhd. of Boilermakers [etc.] v. Hardeman, 401

U.S. 233, 238 (1971). This rule has particular application to

the NLRB, and while LMRA § 301 provides federal court

jurisdiction over "suits for violation of contracts between an

employer and a labor organization," the courts must

nonetheless defer to the NLRB when cases involve

"primarily representational" matters within the NLRB's

primary jurisdiction.

Until the decision below, both this Court and the other

circuit courts of appeals had repeatedly recognized that the

determination of "election objections" is a matter uniquely

of an administrative nature within the NLRB's special

expertise. That is because the NLRB has held that not all

improper pre-election conduct by a party, including conduct

in violation a_ private agreement limiting campaign

activities, is sufficiently egregious to require a re-run

election. Rather, the NLRB uses its administrative

expertise to determine how much misconduct is "too much

misconduct" such that the voters could no longer cast a free

and fair ballot and a new re-run election is required.

Contrary to the Ninth Circuit's decision, the resolution of

the SEIU's election objections to the NLRB election cannot

be decided by looking within the four-corners of parties'

Agreement regulating pre-election campaigning, and, as

such, the issue in this case was "primarily

representational," not primarily contractual. By permitting

the arbitration of elecé:ion objections to an NLRB-conducted

election, the Ninth Circuit's decision not only conflicts with

rulings of this Court and the other circuit courts of appeals,

but also strikes at the heart of the NLRB's "primary

jurisdiction." A grant of certiorari is warranted so that this

Court can clarify and reaffirm the primary jurisdiction of

the NLRB in the resolution of election objections to an

NLRB-conducted election, and prevent an evisceration of

the "primary jurisdiction" doctrine that will otherwise occur

as a result of the Ninth Circuit's decision.

Private agreements limiting pre-election campaign

conduct are an increasingly common "part of the

contemporary labor-management landscape and an issue of

errs es sre esmare

highest priority to major national unions." (Cohen,

"Neutrality Agreements: Will the NLRB Sanction Its Own

Obsolescence?" 16 The Labor Lawyer 201, 202 (2000).)

Accordingly, the issues raised by the Ninth Circuit's

decision regarding the resolution of election objections to an

NLRB-conducted election based upon an alleged violation of

campaign limitations found in a private agreement are of

widespread and practical significance.

The Ninth Circuit's decision further erroneously fails

to require compliance with the NLRB Stipulated Election

Agreement voluntarily entered into by the parties, by which

the SEIU expressly agreed to submit any election objections

to the NLRB for decision in accordance with NLRB

post-election procedures. By permitting the SEIU to

disregard that NLRB Stipulation, the Ninth Circuit decision

not only undermines the NLRB's procedures and therefore

federal labor policy, but the effect of the Ninth Circuit's

ruling is to convert the NLRB into nothing more than the

parties' agent for the physical conduct of the election — a

role restriction that is also contrary to federal labor law.

By fundamentally redefining the role of the NLRB in a

manner that diminishes and is directly contrary to the

Board's established responsibilities, the Ninth Circuit's

ruling raises an important issue of federal law that has not

been, but clearly should be, settled by this Court.

Finally, the Ninth Circuit's decision further

undermines federal labor policy by creating uncertainty and

a lack of finality in the NLRB's election procedures. The

NLRB's Rules and Regulations state that election objections

must be filed within seven days, or they will not be

considered. Here, no timely election objections were filed

with the NLRB, which, in turn, certified the election's

result. To permit an arbitrator to decide election objections

months, and here years, after an NLRB election has already

been certified does violence to the primary objective of

Congress in enacting the NLRA, which was to achieve

stability of labor relations. Such a collateral arbitral attack

on an already "final" election result necessarily creates

uncertainty and fosters instability in the NLRB's election

procedures. It is also in direct conflict with the heretofore

well-established rule that the courts must refrain from

exercising LMRA § 301 jurisdiction when representational

matters have been already decided by the NLRB. As such}

this petition should be granted so that this Court can

address and rectify the Ninth Circuit's ruling that, if

permitted to stand, will severely undermine federal labor

policy.

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT AND OTHER

COURTS OF APPEALS RECOGNIZING THAT A

DETERMINATION OF ELECTION OBJECTIONS

IS WITHIN THE "PRIMARY JURISDICTION" OF

THE NLRB

As declared by this Court, the "primary jurisdiction"

doctrine provides that in "cases reauiring the exercise of

administrative discretion, agencies created by Congress for

regulating the subject matter should not be passed over..."

International Bhd. of Boilermakers [etc.] v. Hardeman, 401

U.S. 233, 238 (1971). Where the NLRB is concerned, "the

doctrine of primary jurisdiction is a recognition of

congressional intent to have matters of national labor policy

decided in the first instance by the National Labor

Relations Board." United Ass'n of Journeymen v. Valley

Engineers, 975 F.2d 611, 613 (9th Cir. 1992).

Squarely within the NLRB's acknowledged "primary

jurisdiction" are issues involved in the designation of an

exclusive bargaining agent under § 9 ("representatives and

elections") of the NLRA. As the circuit courts of appeals,

including the Ninth Circuit, have repeatedly recognized,

"representational issues [those pertaining to

representatives and elections under NLRA § 9] fall within

aati caiaaialliddiaieiaaiadiiiaaial

the NLRB's primary jurisdiction." Valley Engineers, supra,

975 F.2d at 613. See also, Pace v. Honolulu Disposal

Service, Inc., 227 F.3d 1150, 1156 (9th Cir. 2000)

("representational issues are more appropriately resolved by

the NLRB than by the courts, given the agency's superior

expertise" (interior quotation marks and citation omitted); -

Local Union 257, Intern. Broth. of Elec. Workers, AFL-CIO

v. Sebastian Elec., 121 F.3d 1180, 1185 (8th Cir. 1997)

("[r]epresentational issues fall within the NLRB's primary

jurisdiction").

While LMRA § 301, 29 U.S.C. § 185(a), provides

federal court jurisdiction over "suits for violation of

contracts between an employer and a labor organization,"

Section 301 jurisdiction sometimes conflicts with the

NLRB's primary jurisdiction. In such a case, the circuit

courts have held that if the matters at issue in the Section

301 litigation are "primarily representational," the NLRB's

primary jurisdiction must be honored and the courts must

continue to defer to the NLRB. See, Pace, supra, 227 F.3d

at 1156-1157 (a district court loses jurisdiction where "the

major issues to be decided ... can be characterized as

primarily representational," rather than _ primarily

contractual); Local Union 204 of Int'l Bhd. of Elec. Workers

v. Iowa Elec. Light & Power Co., 668 F.2d 413, 418-19 (8th

Cir. 1982) (same); Communications Workers of Am. v. U.S.

West Direct, 847 F.2d 1475, 1479 n. 1 (10th Cir. 1988) (if .

case is "primarily representational," Section 301 jurisdiction

is precluded); United Bhd. of Carpenters, Local Union No.

1694 v. W.T. Galliher & Bros., 787 F.2d 953, 954 (4th Cir.

1986) (jurisdiction under Section 301 is precluded if the

contractual dispute is "primarily representational").

While the Ninth Circuit in the decision below -

acknowledged that the courts must defer to the NLRB's

primary jurisdiction where the major issue to be decided is

"primarily representational," its decision nonetheless

constitutes a fundamental departure from existing law.

Until the Ninth Circuit's decision below, both this Court

and the other circuit courts of appeals had long recognized

that the determination of "election objections” is a matter

uniquely of an administrative nature within the NLRB's

special expertise. NLRB v. A.J. Tower Co., 329 U.S. 324,

330 (1946) ("Congress has entrusted the Board with a wide

degree of latitude in establishing the procedure and

safeguards necessary to ensure the fair and free choice of

bargaining representatives by employees"); NLRB uv.

Southern Health Corp., 514 F.2d 1121, 1123-1124 (7th Cir.

1975) (the NLRB is "entrusted with the responsibility of

conducting elections and of supervising the conduct and

actions of the parties therein concerned to insure a free,

unfettered exercise of self-determination ..., [t]he conduct of

representation elections is the very archetype of a purely

administrative function, with no quasi about it ..-"); NLRB

v. Dixie Lime & Stone Co., 737 F.2d 1556, 1559 (11th Cir.

1984) (the "[djetermination of whether a_ union

representation election was unfairly conducted and should

be set aside is primarily a question for the National Labor

Relations Board").

In exercising its "primary task of insuring an

acceptable democratic labor election process," NLRB v.

Southern Health Corp. supra, 514 F.2d at 1123, the NLRB

has administratively established a broad standard,

sometimes known as the "laboratory conditions" standard,

to govern pre-election conduct by the parties to a

representation election. The NLRB has described this

standard, as well as its role in enforcing the standard, as

follows:

In election proceedings, it is the Board's function to

provide a laboratory in which the experiment may

be conducted, under conditions as nearly ideal as

possible, to determine the uninhibited desires of

the employees. It is not only our duty to establish

these conditions; it is also our duty to determine

whether they have been fulfilled. When in the rare

extreme case, the standard drops too low, because

of our fault or the fault of others, the requisite

laboratory conditions are not present and the

experiment must be conducted over again.

General Shoe Corporation, 77 NLRB 124, 127 (1948). Not

all wrongful conduct is sufficiently egregious to require a

re-run election. Caron International, 246 NLRB 1120

(1979). The NLRB has stated that ultimate question to be

decided under its laboratory conditions standard is

"whether the conduct reasonably tends to interfere with the

employee's freedom of choice." Baja Place Inc., 268 NLRB

868 (1984). In evaluating whether employees can freely and

fairly exercise their choice in a representation election, the

NLRB will examine the "totality of the campaign

circumstances," SPX Corp., 320 NLRB 219, 222 (1995),

including factors such as (1) the size of the voting unit; (2)

the closeness of the election; (3) the number of objectionable

incidents; and (4) the extent to which reports of the

misconduct were disseminated to unit employees. Rosehill

Cemetery, 275 NLRB 180 (1985). As the NLRB has

recognized, what is unfair in one situation, may be fair in

another, Newport News Shipbuilding and Drydock Co., 239

NLRB 32 (1978), and the NLRB uses its administrative

expertise to decide which is the case. NLRB v. Southern

Health Corp., supra, 514 F.2d at 1123 ("before resorting to

the serious remedy of invalidating an election, with its

attendant dangers of delay, administrative over-extension,

and frustration of the goal of self-determination, the Board

relies upon its experience and expertise in labor elections to

determine, under all of the peculiar circumstances present,

‘whether the conduct could reasonably be expected to have

an impact on the election.")

In finding that the SEIU's Complaint to Compel

Arbitration of its election objections did not raise a

"primarily representational" issue, the Ninth Circuit chose

to characterize that Complaint as seeking nothing more

than the arbitration of contractual "violations of the

Agreement" (Pet. App. at 15a-17a). However, as noted, the

Complaint sought "[a]n order compelling St. Vincent and

DOCHS to arbitrate the dispute regarding SEIU's objections

to the September 26 and 27, 2001 election (ER 4-5 emphasis

added). The making of an "election objection" is the

procedure by which a party seeks to invalidate the results

of a representation election and obtain a "re-run" election.

"The validity of an election may be questioned by filing

objections to the conduct of an election or to conduct

affecting the results of an election. ... Objections may have

the effect of invalidating an election. If this occurs, the

election may be 'rerun’..." Office of the NLRB General

Counsel, An Outline of Law & Procedure in Representation

Cases § 22-116 (1999). Where, as here, a party raises

"objections" to an election, it is asserting that alleged

pre-election misconduct prevented a free and fair choice in

the election.”

While the SEIU's election objections involve claimed

violations of the pre-election campaign limitations found in

the Agreement, the determination of the SEIU's objections

to such conduct allegedly affecting the results of the NLRB

election was still a "primarily representational" matter.

: While the SEIU claimed for the first time on appeal that it was

supposedly not seeking to invalidate the results of the NLRB election, in

deciding a Rule 12 motion to dismiss, the courts are obligated to base

their ruling on the "four corners of the complaint" and not a party's

revisionist attempt to recharacterize the complaint on appeal. Pani v.

Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998). To the

extent the Ninth Circuit in its Opinion at n. 7 (Pet. App. at 19a) adopted

the SEIU's revisionist position; the court of appeal violated this

fundamental rule.

The NLRB will consider as possible objectionable conduct to

an NLRB-conducted election a party's failure to abide by a

private agreement that limits pre-election conduct. See,

e.g., Tyler Pipe Industries, Inc., 180 NLRB 880, 881, 890

(1970) (finding that a party failed to abide by a private

agreement limiting pre-election campaigning, but holding

that the agreement's violation in that case was not of

sufficient severity to preclude a free and uncoerced election).

As the NLRB's Tyler Pipe decision reflects, "election

objections" are not resolved simply by determining whether

any conduct occurred in violation of the four-corners of a

party's contractual agreement limiting _ pre-election

campaigning. Rather, objections to an NLRB election

require an additional analysis of whether such conduct,

even if it clearly violated the terms of a private agreement,

was of such severity that a "free and fair choice" by voters

was precluded. Again, under the General Shoe "laboratory

conditions" standard the answer to that question requires

an exercise of the NLRB's administrative expertise to

determine at what point such a degree of misconduct has

occurred that a new election must be ordered. As stated in

NLRB v. Chicago Tribune Co., 943 F.2d 791, 795 (7th Cir.

1991), "the Board utilizes its expertise to determine how

much misconduct is too much misconduct to guarantee that

the result of the election truly reflects the choice of the

employees." Because the SEIU's election objections do not

turn on whether the complained-of pre-election campaign

conduct constitutes a violation of the contractual

Agreement, but, rather, on whether that alleged conduct, if

it occurred, unduly impacted the employees' right to vote

freely and without coercion, the issue raised by the SEIU's

election objections is "primarily representational" and not

primarily contractual.

While the Ninth Circuit stated in its opinion that

"t]he interpretation of the Agreement in this case does not

depend even partially on 'the question of whom the union

represents" (Pet. App. at 14a), that pronouncement fails to

recognize that in permitting private arbitration of objections

to the election conducted by the NLRB, the ultimate issue

before the arbitrator will be whether the employees' vote in

the NLRB election rejecting union representation should

stand or be re-run.’ Manifestly, that is an issue that is

"primarily representational."

By authorizing an order compelling arbitration of

objections to an NLRB-conducted election, the Ninth

Circuit's ruling directly conflicts with the decisions of this

Court and the other circuit courts that recognize that

election objections raise not only a "representation issue,"

but one that uniquely requires an application of

administrative expertise in order to determine when alleged

misconduct is "too much misconduct" so that a new re-run

election must be ordered. Not only does the Ninth Circuit's

decision conflict with the pronouncements of this Court and

create an inter-circuit conflict requiring clarification by this

Court, but the Ninth Circuit's decision strikes at the heart

’ In reaching-the erroneous conclusion that the SEIU's Complaint

"raises no representational issue" (Pet. App. at 16a), the Ninth Circuit

relied heavily on the fact that the Agreement provides the arbitrator may

not "compel recognition of the Union where a majority of the voters have

not selected representation by the Union." However, even if the

arbitrator cannot issue the arbitral equivalent of an NLRB Gissel

bargaining order (see Gissel Packing Co. v NLRB, 395 U.S. 575 (1969)

(holding that for particularly egregious pre-election misconduct the

NLRB may order an employer to recognize and bargain with a union

without the need for a new election), that provision in the Agreement

would not prevent an arbitrator from effectively invalidating the result

of the NLRB election by ordering a re-run election. Indeed, during the

appellate oral argument, the SEIU suggested that it believed that a new

election would be a permissible arbitral remedy in answer to its election

objections.

of the doctrine of NLRB primary jurisdiction. It not only

countenances, but itself fosters, a prohibited "end run’

around provisions of the NLRA under the guise of contract

interpretation," Jowa Elec. Light & Power Co., supra, 668

F.2d at 418, and by so doing, undermines the "strong policy

in favor of using the procedures vested in the Board for

representational determinations in order to promote

industrial peace." Id.

Il. THE NINTH CIRCUIT DECISION UNDERMINES

EXISTING FEDERAL LABOR POLICY AS IT

ERRONEOUSLY DISREGARDS THE BINDING

NATURE OF A NLRB STIPULATED ELECTION

AGREEMENT

In voluntarily signing the NLRB "Stipulated Election

Agreement," the SEIU expressly agreed that all

post-election proceedings involving the NLRB-conducted

election would "conform with the Board's Rules and

Regulations" (SER 15). The NLRB's Rules and Regulations,

in turn, clearly require that all post-election objections to

conduct affecting an NLRB election be filed within seven

days with the NLRB (29 C.F.R. § 102.69(a)), and that the

NLRB will be the decisionmaker of any such objections (29

C.F.R. § 102.69(c)-(f)). Federal labor policy provides that a

party's obligations under an NLRB Stipulated Election

Agreement are binding on the party. As stated by the

NLRB in Grant's Home Furnishings, Inc., 229 NLRB 1305,

n. 3 (1977):

The [election] stipulation by its very terms provides

for the parties' agreeing to certain matters and

little would seem to be added by denominating the

agreement a contract. Nevertheless, on occasion

the Board has stated that an "agreement: for

consent election" - which is the same as a

Stipulation for Certification [now called a

Stipulated Election Agreement] except for certain

rights of review — "is a contract ... binding upon the

parties who have expressed their mutual assent

thereto." [Citation omitted.] The point seems to be

to emphasize that the parties are bound by the

agreement, a conclusion that scarcely turns on the

use of the word "contract." See, e.g., NLRB v. The

Standard Transformer Company, 202 F.2d 846,

848-849 (C.A. 6, 1953), where the court in dealing

with a stipulation for certification holds it, without

use of the word "contract," to be "binding upon the

parties according to its terms

The Ninth Circuit's decision mistakenly dismisses the

binding effect of the NLRB Stipulated Election Agreement

by asserting "the Union's allegations that the employer

violated the Agreement arises out of the Agreement and not

the Board's Rules and Regulations" (Pet. App. at 19a).

However, the legal issue before the Ninth Circuit as raised

by the SEIU's Complaint to Compel Arbitration of election

objections was not whether there were violations of the

Agreement's provisions regarding pre-election campaigning.

Rather, the legal question was who (the NLRB or a private

arbitrator) would decide whether such alleged violations

impacted the NLRB election, when raised as post-election

objections. The SEIU by signing the binding "Stipulated

Election Agreement" expressly agreed that, irrespective of

the source of their objections, it would be the NLRB.’ It is

Not only did the SEIU agree in the NLRB Stipulated Election

Agreement to file any post-election objections in accord with the NLRB's

Rules and Regulations, but the parties' Agreement likewise confirmed

that where an NLRB-conducted election was held, "the NLRB shall

substitute for the role of the Election Officer, but all other aspects of the

[Agreement's] recognition procedure shall apply, except as adjustments

may be required hy the NLRB" (emphasis added). The Ninth Circuit

plainly erred in holding that the NLRB's Rules and Regulations do not

require any adjustment in the Agreement's provisions that allow for

pas

not up to an arbitrator to interpret the meaning and effect

of a NLRB election stipulation; especially where the NLRB

has already ruled in Grant's Home Furnishing's, supra, that

NLRB election stipulations are binding on the parties that

sign them. By permitting private arbitration of the SEIU's

post-election objections to the NLRB election, the Ninth

Circuit's decision wrongly provides for a result that directly

contravenes the federal labor policy that holds that the

terms of an NLRB Stipulated Election Agreement are

binding on the parties that signed it.

Indeed, under the Ninth Circuit decision, the SEIU's

choice to pursue an election through the NLRB's processes,

rather than through the Agreement's private election

mechanism, did nothing more than make the NLRB the

parties' agent for the physical conduct of the election. The

NLRB, however, has expressly rejected just such an-attempt

to restrict its role. In Grant's Home Furnishings, supra, 229

NLRB at 1306, the Board also declared:

It is largely a matter of indifference, at least for

purposes here, whether one chooses to call [an

NLRB election stipulation] a contract or not, for,

however described, the stipulation does not by

some alchemy change what was initiated as a

public proceeding under Section 9(c)(1) of the Act

into some private arrangement’ between

management and labor with the Board's role

reduced to that of an organization engaged by these

parties to conduct an election pursuant to their

instructions and arrangements... . [T]he Board's

rules, regulations, and pertinent decisional law are

arbitration of all disputes arising under the Agreement (Pet. App. at

18a), as, again, the Board Rules and Regulations specifically require that

post-election objections toa NLRB conducted election must be filed with,

and ruled on, by the NLRB itself, and not some other person such as a

private arbitrator. (29 C.F.R. § 102.69).

the same for stipulated elections as for

Board-directed elections. One of the consequences

of the foregoing is that complaints concerning an

election must, if they are to have lawful effect, be

raised by properly filed objections at the postelection

stage of the proceeding; and, as the Board has held,

the standards applied in _ judging alleged

objectionable conduct in stipulated proceedings are

the same as those applied in Board-directed

proceedings. ... (Emphasis added)

As the effect of the Ninth Circuit's ruling is to

fundamentally redefine the role of the NLRB in a manner

that diminishes, and is directiy contrary, to the NLRB's

established responsibilities, the court of appeals decision

calls for an exercise of this Court's supervisory power to

reaffirm the NLRB's proper role in the administration of

national labor policy.

Ill. BY PERMITTING A LATER COLLATERAL

ATTACK ON THE ALREADY "CERTIFIED"

RESULTS OF AN NLRB ELECTION, THE NINTH

CIRCUIT'S DECISION IMPERMISSIBLY

UNDERMINES THE FINALITY OF THE NLRB'S

ELECTION PROCESSES

As stated in Amalgamated Clothing & Textile Workers

Union, AFL-CIO v. Facetglas, Inc., 845 F.2d 1250, 1252 (4th

Cir. 1988):

There is a strong policy in favor of using the

procedures vested in the Board for representational

determinations in order to promote industrial

peace and "[t]o fail to apply this policy to section

301 actions would allow an a prohibited "end run’

around provisions of the NLRA under the guise of

contract interpretation." Local Union 204, Int'l

Bhd. of Elec. Workers v. Iowa Elec. Light & Power

Co., 668 F.2d 413, 418-19 (8th Cir.1982).

By permitting the arbitration of election objections

that were never filed with the NLRB, the Ninth Circuit

decision authorizes just such an "end run" around the

provisions of the NLRA. The Ninth Circuit's ruling

erroneously and all too blithely dismisses the SEIU's

complete failure to file any timely election objections with

the NLRB — even though NLRB's Rules and Regulations

state that election objections must be filed within seven

days, or they will not be considered (29 C.F.R. § 102.69(b),

see also NLRB Case-Handling Manual, Part II, 4]11392.3

(SER 125)).° Moreover, by allowing the SEIU's election

objections to be heard by an arbitrator, despite the election's

result having already been "certified" by the NLRB, the

Ninth Circuit's decision directly conflicts with federal labor

policy as intended by Congress. As stated in NLRB uv.

Reliance Steel Products Co., 322 F.2d 49, 55 (5th Cir. 1963):

. The timeliness issue raised by the SEIU's failure to file its election

objections in a timely manner with the NLRB concerns the NLRB's seven

day timeliness requirement as found in the Board's Rules and

Regulations, 29 U.S.C. § 102.69(a). While the Ninth Circuit's decision

cites to cases that hold the timeliness of contractual grievances is for an

arbitrator to decide (e.g., Retail Delivery Drivers, Local 588 v.

Servomation Corp., 717 F.2d 475 (9th Cir. 1983) (Pet. App. at 20a), here,

the NLRB's seven-day limitation for filing election objections is set by the

NLRB's Rules and Regulations, not the parties' Agreement. While an

arbitrator can decide contractual timeliness issues, it is an improper

invasion of the NLRB's primary authority over enforcement of its own

Rules and Regulations governing representation proceedings to entrust

an arbitrator with interpretation and enforcement of the NLRB's

procedural rules. Here, by certifying the results of the election the NLRB

has already found that no timely objections were filed. The Ninth Circuit

erred in failing to give that finding substantial deference. Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (courts "must give

substantial deference to an agency's interpretation of its own

regulations").

The primary objective of Congress in enacting the

National Labor Relations. Act was to achieve

stability of labor relations. [Citation] To introduce

a doctrine that would subject "final" elections to

collateral attack would, we believe, do violence to

that primary objective. It does not appear illogical

to require a party seeking to set aside the result of

a Board-conducted election to adhere to rules, such

. as the one here involved requiring objections to be

filed within 5 [now 7] days, promulgated by the

Board for the purpose of encouraging the desirable

objective of stability and finality.

As the NLRB has itself stated, to "leave open to

continual questioning the validity of a Board certification,

once properly issued, ... necessarily would create

uncertainty and a lack of finality in [the Board's] election

procedures." Reichart Furniture Co., 236 NLRB 1698

(1978). The Ninth Circuit's decision, which fosters such

uncertainty and lack of finality more than two years after

the election result in this case was "certified" and "closed"

by the NLRB, plainly constitutes an obstacle to the

Congressional objective of achieving stability in labor

relations.

Finally, in allowing a collateral arbitral attack on an

already certified and closed election proceeding, the Ninth

Circuit's decision also violates the general rule that in

striking a balance between the NLRB's primary jurisdiction

and a trial court's concurrent authority under § 301, the

courts should decline to assert jurisdiction where the NLRB

has already made a determination made in a representation

matter. As noted in, Jowa Elec. Light & Power Co., supra,

668 F.2d at n. 11:

courts have consistently refused to order

arbitration where the Board had _ previously

resolved the dispositive representational issue. See,

e.g., Smith Steel Workers v. A.O. Smith Corp., 420

F.2d 1, 10 (7th Cir. 1969); McGuire v. Humble Oil

& Refining Co., 355 F.2d 352, 358 (2d Cir. 1966),

cert. denied, 384 U.S. 988 (1966). See also Carey v.

Westinghouse Elec. Corp., 375 U.S. [261,] 272

[((1964)]. When the Board issues an_ order

determining the dispositive representational issue,

no contractual issues remain to be decided through

arbitration or bargaining. Smith Steel Workers,

supra.

Here, by certifying the results of the election, the

NLRBalready ruled on and disposed of the representational

issue raised the SEIU's claim that St. Vincent Medical

Center had allegedly engaged in objectionable pre-election

campaign conduct impacting the election. That earlier

representation decision by the NLRB should have been

deferred to by the Ninth Circuit, and should have been

found to preclude any exercise of LMRA § 301 jurisdiction

over this representation dispute.

CONCLUSION

This Court should grant the petition for certiorari.

Respectfuliy submitted,

ROBERT F. MILLMAN PHILIP L. ROSS *

LITTLER MENDELSON ~— LITTLER MENDELSON

A Professional Corporation A Professional Corporation

2049 Century Park East 650 California Street

5th Floor 20th Floor

Los Angeles, CA 90067-3107 San Francisco, CA 94108-2693

(310) 553-0308 (415) 433-1940

Counsel for Petitioners

January 29, 2004 * Counsel of Record

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Service Employees International

Union; Service Employees

International Union, Local 399,

Plaintiffs-Appellants,

No. 02-56058

Vv. D.C. No. CV-02-02740-R

OPINION

St. Vincent Medical Center;

Daughters of Charity Health

Systems, Inc.,

Defendar ts-Appellees.

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

April 8, 2003—Pasadena, California

Filed September 19, 2003

Before: Harry Pregerson, A. Wallace Tashima, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Pregerson

SUMMARY

Labor and Employment/Arbitration

The court of appeals reversed a judgment of the

district court. The court held that when the heart of a case

involving the arbitrability of alleged violationsofe-anion-

employer agreement is a contractual rather than

representational dispute, the doctrine of primary

jurisdiction does not prevent a district court from

compelling arbitration of alleged violations of the

agreement governing the parties’ conduct during an

organizing drive.

Appellants Service Employees International Union

(SEIU) and Service Employees International Union, Local

399 (collectively the Union) filed a complaint in district

court to compel arbitration after appellees St. Vincent

Medical Center and the Daughters of Charity Health

Systems, Inc. (DOCHS) refused to arbitrate a dispute that

the Union claimed was a violation of an agreement between !

the Union and the Employer. The Agreement provided that

the Union and the Employer would work together to

advance common concerns, and would not engage in

personal attacks or derogatory comments concerning the

basic mission of their respective organizations. The

Employer agreed to communicate only that which was

factual and not to initiate one-on-one conversations with

employees about unionization. The Union contended that

during the course of its organizing campaign, the Employer

did not comply with the Agreement's mandated restrictions

on the Employer's conduct. The Employer moved to dismiss,

arguing that the district court lacked subject matter '

jurisdiction because the complaint raised a_ purely

representational matter over which the National Labor

Relations Board (NLRB) possessed primary jurisdiction and

thus was not subject to the court's jurisdiction under § 301

of the Labor Management Relations Act (LMRA). The

district court agreed and ordered that the Union's complaint

to compel arbitration be dismissed in its entirety with

prejudice.

ie etme DAE eK toa TC

ee a Pics et Meee

The Union appealed. |

[1] Section 301 of the LMRA vests federal courts

with jurisdiction over cases involving the violation of

private labor agreements. Although district courts have

concurrent jurisdiction with the NLRB over such cases,

federal courts must tread lightly in areas of the NLRB's

primary jurisdiction and must defer to the NLRB when, on

close examination, § 301 cases fall within the NLRB's

primary jurisdiction.

[2] To determine whether a case is within the

NLRB's primary jurisdiction, courts have drawn the

jurisdictional line by asking whether the major issues to be

decided can be characterized as primarily representational

or primarily contractual. It had to be concluded that the

major issue to be decided — the arbitrability of the alleged

violations of the Agreement — was primarily contractual.

The interpretation of the Agreement did not depend even

partially on the question of whom the union represented.

Rather, the interpretation of the Agreement depended on

whether the arbitration clause in the Agreement was

susceptible to an interpretation that covered the asserted

dispute. Although this case concerned alleged violations of

the Agreement's restrictions on the parties' behavior during

an organizing drive before a representational election, the

major issue could not be characterized as primarily

representational. A case does not fall on the NLRB's

primary jurisdiction side of the jurisdictional line merely by

having representational overtones.

[3] The district court would merely be required to

determine whether the arbitration clause in the Agreement

was susceptible of an interpretation that covered the

asserted dispute, and if so to compel arbitration. It had to

be concluded that while this case concerned allegations

regarding the parties’ behavior before a representational

election, and thus has representational overtones,

compelling arbitration of the alleged violations of the

Agreement raised no representational issue.

I ese essaienssthesnensnsec

[4] The presence of the NLRB does not place all

issues of a case within the NLRB's primary jurisdiction.

Instead, a court still must ask whether the major issues to

be decided can be characterized as_ primarily rep-

resentational or primarily contractual. The major issue in

this case-the arbitrability of alleged violations of the

Agreement — was contractual. Therefore, it had to be held

that the district court had jurisdiction to compel arbitration

of alleged contractual violations under § 301 of the LMRA.

[5] Where the contract contains an arbitration

clause, there is a presumption of arbitrability. [6] The

presumption of arbitrability applied in this case because the

arbitration clause was susceptible to an interpretation that

covered the asserted dispute. [7] It had to be held that

under Supreme Court law and the law of the Ninth Circuit,

the Union stated a claim for which relief could be granted,

namely that the district court should compel arbitration

under the Agreement based on the Employer's alleged

violations of the Agreement. [8] Accordingly the district

court's order dismissing the Union's complaint to compel

arbitration had to be reversed and the case remanded for

entry of an order compelling arbitration of the alleged

contractual violations.

COUNSEL

Benjamin Sachs, Staff Attorney, SEIU, Washington, D.C.,

for the plaintiffs-appellants.

Philip L. Ross, Littler Mendelson, PC, San Francisco,

California, for the defendants-appellees:

OPINION

PREGERSON, Circuit Judge:

At issue in this case is the arbitrability of alleged

Se eda ernie aie

violations of an agreement between Plaintiffs-Appellants

Service Employees International Union ("SEIU") and

Service Employees International Union, Local 399 ("SEIU

Local 399") (collectively "the Union") and Defendants-

Appellees St. Vincent Medical Center and the Daughters of

Charity Health Systems, Inc. ("DOCHS") (collectively "the

Employer"). The National Labor Relations Board ("NLRB")

conducted a representational election at St. Vincent Medical

Center. The Union lost the election. The Union then alleged

that the Employer violated various provisions of an

agreement that restricted the parties’ behavior during

union organizing campaigns. Specifically, the Union

contended that during the union organizing drive at St.

Vincent Medical Center, the Employer committed eighteen

acts in direct violation of the agreement, including

encouraging workers to vote against unionization, giving

support and assistance to anti-union workers, unreasonably

restricting access to conference rooms, interrogating

workers about their support for the union, and making

inflammatory religious appeals to employees. Pursuant to

the agreement, the Union sought to arbitrate these alleged

violations. When the Employer refused to arbitrate, the

Union filed a complaint with the district court to compel

arbitration. In response, the Employer filed a motion to

dismiss the complaint arguing, in part, that the Union's

complaint dealt with "a purely representational matter" and

thus the district court lacked jurisdiction under § 301 of the

Labor Management Relations Act ("LMRA"), 29 U.S.C. §

185(a). The district court granted the Employer's motion to

dismiss the Union's complaint and dismissed the Union's

complaint to compel arbitration in its entirety, with

prejudice.

We conclude that the dispute before us is primarily

contractual, not representational. We further conclude that

‘ the arbitration clause in the agreement is susceptible of an

interpretation that covers the present dispute. We,

therefore, reverse the district court's order dismissing with

prejudice the Union's complaint to compel arbitration.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Union and Catholic Healthcare West ("CHW")

signed an agreement ("the Agreement") on April 4, 2001.!

CHW entered into the Agreement on behalf of itself and its

facilities, including St. Vincent Medical Center. The

Agreement stated that the parties had "decided to

undertake a new approach to providing quality care for

patients and quality jobs for health care employees."

Through the Agreement, the parties committed themselves

"to a process that resolves issues between us in a manner

that not only reduces conflict, but also fosters a growing

appreciation for our respective missions."”

The Agreement provided that the Union and CHW

would work together to advance common concerns, such as

a commitment to quality, accessible health care, and would

not "engage in personal attacks or derogatory comments

concerning the basic mission of their respective

organizations." Pertinent to the appeal before this court, the

Agreement also provided Guidelines and a New Recognition

Procedure: "The parties agree[d] that the following

commitments and recognition procedure will govern with

respect to organizing and recognition processes at all

'CHW transferred its interest in St. Vincent Medical Center to

the DOCHS, on or about January 1, 2002; CHW is not a party in these

proceedings. In an agreement with CHW, DOCHS agreed to be bound by

the above mentioned Agreement between the Union and CHW.

“The Union notes in its brief that "[t]he Agreement at issue here

reflects the parties' recognition that, despite the National Labor

Relations Board's (‘NLRB’s' or 'Board's') efforts to regulate the process,

union organizing campaigns are too often marred by ‘bitter and extreme

charges, countercharges, unfounded rumors, vituperations, personal

accusations, misrepresentations and distortion.'" (quoting Linn v. United

Plant Guard Workers of Am., Local 114, 383 U.S. 53, 58 (1966)).

existing... CHW facilities [including St. Vincent Medical

Center]." The Guidelines, setting forth the rules that would

govern the parties' conduct during an organizing drive,

stated that:

1. CHW and SEIU agree that employees

shall be entitled to make a decision regarding

union representation free from coercion,

intimidation, promises, or threats.

2. CHW and SEIU agree that their

representatives will communicate only that

which is factual... |

3. CHW representatives will not inform or

imply to eligible voters that they will lose

benefits, wages or be subject to less favorable

working conditions by unionizing.

4. CHW agrees that its communication with

employees regarding unionization shall take

place through literature or in group meetings

and that its supervisors and managers shall

not initiate one-onone conversations with

employees about unionization...

5. Employee participation in any group

meeting for the primary purpose of

discussing unionization shall be voluntary.

6. No employee shall have his/her right to

determine whether or not to be represented

by a Union abridged in any manner by

reason of his/her citizenship or immigration

status...

The Agreement set forth a procedure run by a jointly

selected Election Officer for a secret ballot election to

determine the employees' preference regarding union

representation. Under the Agreement, however, the Union

had the option to "petition the NLRB for an election under

the same rules in [the Agreement's] recognition procedure.

In such situation, the NLRB shall substitute for the role of

the Election Officer, but all other aspects of the recognition

procedure shall apply, except as adjustments may be

required by the NLRB" ("the NLRB election option"). The

Agreement further provided that "disputes under this

Agreement, including the Guidelines and Recognition

Procedure will be resolved according to the Mediation and

Arbitration provision in this Agreement.”

After the Agreement was executed, the Union

embarked on an organizing drive at St. Vincent Medical

Center. The Union contends that during the course of the

union organizing campaign, the Employer did not comply

with the Agreement's mandated restrictions on the

Employer's conduct.

Consistent with the terms of the Agreement, the

Union elected to invoke the NLRB election option. On

September 7, 2001, the Union signed a stipulation agreeing

that the NLRB would conduct the secret ballot election on

‘The arbitration provision states:

Arbitration: Except as otherwise provided herein, the

Parties agree to submit any unresolved disputes about

compliance with or construction of this Agreement for

final and binding resolution by an Arbitrator selected

through the American Arbitration A[ssociation] (AAA)

Special Panel or by mutual agreement... As part of

his/her decision, the Arbitrator shall have the

discretion to order remedy to resolve the dispute.

However, in no case, may the Arbitrator or Election

Official compel recognition of the Union where a

majority of the voters have not selected representation

by the Union.

ree ge, OT

Jan tsa ie: Naat ate

September 26 and 27, 2001. According to the stipulation,

the "terms and conditions as contained in the Stipulated

Election Agreements previously executed by the parties in

these matters shall still apply." Under the Stipulated

Election Agreement signed by the Union and the Employer

in 2000, "postelection and runoff procedures" after the

ballots were counted would conform to the NLRB's Rules

and Regulations.

The NLRB conducted an election at St. Vincent

Medical Center on September 26 and 27, 2001. The Union

lost; the NLRB issued a Tally of Ballots on September 27,

2001, showing that a majority of the valid votes plus

challenged ballots had not been cast for the Union. On

October 16, 2001, the NLRB certified the election results:

"It is certified that a majority of the valid ballots have not

been cast for any labor organization and that no labor

organization is the exclusive representative of these

employees in the bargaining unit described below."

On October 2, 2001, the Union sent a letter via fax

to CHW. The letter charged CHW with committing eighteen

violations of the Agreement during the Union's organizing

drive at St. Vincent Medical Center. The alleged violations

included:

2. CHW, acting through its agents, violated

Section II.C.9 of the Agreement by

encouraging workers to vote against

unionization.

3. CHW, acting through its agents, violated

Section II.C. of the Agreement by having its

supervisors wear anti-union buttons.

5. CHW, acting through its agents, violated

the Agreement by granting more favorable

working conditions to employees on the "Vote

No" committee, and by granting less

favorable working conditions to open union

supporters.

8. CHW, acting through its agents, violated

Section II.C.2 and II.C.9 of the Agreement by

posting information about unions (and

specifically SEIU Local 399) that was not

factual.

10. CHW, acting through its agents, violated

Section II.C.1 of the Agreement by

threatening workers with loss of benefits in

order to discourage them from voting to

unionize.

11. CHW, acting through its agents, violated

Section II.C.5 of the Agreement by holding

mandatory group meetings with workers

regarding unionization.

12. CHW, acting through its agents, violated

Section II.C.1 of the Agreement by

interrogating workers about their support for

the union.

16. CHW, acting through its agents, violated

the Agreement by making inflammatory

religious appeals to employees.

10a

On December 20, 2001, the Union sent a letter to

CHW and DOCHS regarding the transfer of governance of

seven CHW hospitals, including St. Vincent Medical Center,

to DOCHS. The letter stated that based on previous

conversations, the Union understood that "DOCHS will

take over CHW's obligations, if any, with respect to any

outstanding legal claim (such as litigation, ULP or

arbitration matter) regarding labor relations at DOCHS

facilities, including, but not limited to, the Union's pending

objections/arbitration over the St. Vincent Hospital

election." :

On January 3, 2002, counsel for DOCHS responded

to the Union's letter and agreed that "effective January 1,

2002 the Daughters of Charity Health Systems (DOCHS)

hospitals... inherit[ ] the labor relations situation and

obligations at that specific hospital as of January 1, 2002."

The letter, however, stated that:

concerning St. Vincent Medical Center and

the National Labor Relations Board election

in the unit involving the service and

maintenance employees, I am advised that

no timely objections were ever filed with the

[NLRB]. I am further advised that no request

for arbitration has been made regarding any

purported objections to the election. Ac-

cordingly, no valid objections to the NLRB

election exist.

In response, on January 16, 2002, the Union sent a

letter to DOCHS stating that "SEIU has the right to submit

the St. Vincent election objections, which were filed under

the April 4, 2001 Agreement, to arbitration under that

Agreement's arbitration clause. Please consider this letter

to be a reaffirmation that SEIU wishes to submit this

unresolved dispute to arbitration."

iden eRe DEM CSIs as 2: 00 ik ha tas atte ie

lla

In a letter dated January 24, 2002, DOCHS replied

and refused the Union's request for arbitration, asserting

that the Agreement did not apply to the election because

the NLRB — and not a private election officer — ran the

election.

On April 3, 2002, the Union filed a complaint to

compel arbitration in the United States District Court for

the Central District of California arguing that the refusal

of the Employer to arbitrate the dispute was a violation of

the Agreement. The Union stated that the district court had

jurisdiction under § 301 of the LMRA. The Union sought an

order compelling the Employer "to arbitrate the dispute

regarding SEIU'S objections to the September 26 and 27,

2001 election."

On May 13, 2002, the Employer filed a motion to

dismiss the Union's complaint pursuant to Fed. R. Civ. P.

12(b)(1) and 12(b)(6). The Employer argued that the district

court lacked subject matter jurisdiction because the

complaint raised a purely representational matter over

which the NLRB possessed primary jurisdiction and thus

was not subject to the court's jurisdiction under § 301 of the

LMRA. The Employer further argued that the Union's

complaint failed to state a claim upon which relief could be

granted because "[a]s a matter of law, [the Union is] not

entitled to have untimely election objections to an NLRB-

conducted election heard and decided by an arbitrator."

"After considering all papers submitted and oral

argument heard and for good cause appearing," the district

court, Honorable Manuel L. Real presiding, granted the

Employer's motion without further explanation. The district

court ordered that the Union's complaint to compel

arbitration be dismissed in its entirety with prejudice. The

Union now appeals.

. ne ee ee

II. DISCUSSION

To determine whether the district court erred in

granting the Employer's motion to dismiss we must decide

whether the district court had jurisdiction under § 301 of

the LMRA and whether the Union stated a claim upon

which relief could be granted.’ Because we find that "[t]he

heart of the case is a contractual rather than rep-

resentational dispute," Pace v. Honolulu Disposal Serv.,

Inc., 227 F.3d 1150, 1152 (9th Cir. 2000), we hold that the

doctrine of "primary jurisdiction" does not prevent the

district court from compelling arbitration of alleged

violations of the Agreement governing the parties' conduct

during an organizing drive. Therefore, the district court has

jurisdiction under § 301 of the LMRA.

The fact that the NLRB conducted the election at St.

Vincent Medical Center or certified the election results does

not prevent the district court from compelling arbitration of

the alleged contractual violations. The Agreement states that

"disputes under this Agreement, including the Guidelines

and Recognition Procedure, will be resolved according to the

Mediation and Arbitration provision in this Agreement;" the

arbitration clause provides that "the Parties agree to submit

any unresolved disputes about compliance with or

construction of this Agreement for final and binding

resolution by an Arbitrator." We therefore hold that because

the arbitration clause in the Agreement is "susceptible of an

interpretation that covers the asserted dispute," AT&T

Techs., Inc. v. Communication Workers of Am., 475 U.S. 643,

650 (1986), the Union stated a claim upon which relief can be

granted. The district court erred in not compelling

arbitration of the alleged contractual violations.

‘This court reviews de novo the grant of a motion to dismiss.

Inland-boatmens Union of the Pac. v. Dutra Group, 279 F.3d 1075, 1078

(9th Cir. 2002).

at AIA, ste PROSE. cit

13a

A. The district court erred in determining it

lacked subject matter jurisdiction

[1] Section 301 of the LMRA vests federal courts

with jurisdiction over cases involving the violation of

private labor agreements: "Suits for violation of contracts

between an employer and a labor organization... may be

brought in any district court in the United States having

jurisdiction of the parties, without respect to the amount in

controversy or without regard to the citizenship of the

parties." 29 U.S.C. § 185(a). Although district courts have

concurrent jurisdiction with the NLRB over such cases,

federal courts "must tread lightly" in areas of the NLRB's

primary jurisdiction and must defer to the NLRB "when, on

close examination, section 301 cases fall within the NLRB's

primary jurisdiction." United Ass'n of Journeymen &

Apprentices of the Plumbing & Pipefitting Indus., Local 342

v. Valley Eng 'rs, 975 F.2d 611, 613-14 (9th Cir. 1992).

[2] To determine whether a case is within the

NLRB's_ primary jurisdiction, "we have drawn the

jurisdictional line by asking 'whether the major issues to be

decided... can be characterized as_ primarily rep-

resentational or primarily contractual.'" Pace, 227 F.3d at

1157 (quoting Valley Eng'rs, 975 F.2d at 614). We conclude

that the major issue to be decided in this case — the

arbitrability of the alleged violations of the Agreement — is

primarily contractual. Unlike Valley Eng ‘rs, in which we

found that the case was "primarily representational," the

interpretation of the Agreement in this case does not

"depend[ ] entirely on the resolution of the question of

whom the union represents." 975 F.2d at 614 (quoting

Cappa v. Wiseman, 659 F.2d 957, 960 (9th Cir. 1981)

(Fletcher, J., dissenting)). The interpretation of the

Agreement in this case does not depend even partially on

"the question of whom the union represents." Jd. Rather,

the interpretation of the Agreement depends on whether

l4a

}

; 3

the arbitration clause in the Agreement is "susceptible of an

interpretation that covers the asserted dispute." AT&T

Techs., 475 U.S. at 650. Although this case concerns alleged

violations of the Agreement's restrictions on the parties'

behavior during an organizing drive before a

representational election, the major issue cannot be

characterized as primarily representational. A case does not

fall on the NLRB's primary jurisdiction side of the

jurisdictional line merely by having "representational'

overtones." Pace, 227 F.3d at 1157.

[3] Although the Agreement in this case is not

labeled a "neutrality agreement," the Agreement is similar

in many regards to the "employer neutrality" clause in

Hotel and Restaurant Employees Union v. Marriott Corp.,

961 F.2d 1464, 1469 (9th Cir. 1992). In Marriott, we held

that the district court had jurisdiction under § 301 over the

neutrality clause because "[e]nforcement of the neutrality

clause raises no representational issues." Jd. Like the

"employer neutrality" clause in Marriott, the contested

portion of the Agreement in this case governs and restricts

the parties' actions during an organizing drive. While the

hotel in Marriott agreed not to express any opinion on

whether its employees should choose the union as their

exclusive bargaining representative, here, the Employer

agreed to communicate only that "which is factual" and "not

[to] initiate one-on-one conversations with employees about

unionization." Just as in Marriott, the district court in the

present case will not be required to "designate... an

exclusive bargaining agent" or "identify... an appropriate

collective bargaining unit." Jd. (quoting Local No. 3-193

Int'l Woodworkers v. Ketchikan Pulp Co., 611 F.2d 1295,

1298 (9th Cir. 1980)). Nor will the district court be required

‘See Charles I. Cohen, Neutrality Agreements, 16 Lab. Law. 201

(2000); George N. Davies, Neutrality Agreements: Basic Principles of

Ertforcement and Available Remedies, 16 Lab. Law. 215 (2000).

15a

to “resolve any other representational issues not already

resolved by the parties." /d. Rather, the district court in the

present case would merely be required to determine

whether the arbitration clause in the Agreement is

"susceptible of an interpretation that covers the asserted

dispute," and if so to compel arbitration. Dutra Group, 279

F.3d at 1078. Compelling arbitration of the alleged

contractual violations will not require the naming of an

exclusive bargaining agent or a collective bargaining unit.

Marriott, 961 F.2d at 1469 (quoting Ketchikan Pulp Co., 611

F.2d at 1298). The Agreement clearly states that "in no

case, may the Arbitrator... compel recognition of the Union

where a majority of the voters have not selected

representation by the Union." We therefore conclude that

while this case concerns allegations regarding the parties'

behavior before a representational election, and thus has

representational overtones, compelling arbitration of the

alleged violations of the Agreement — like the enforcement

of the neutrality clause in Marriott — "raises no

representational issue." Jd. at 1469.° Rather, "[t]he heart of

th[is] case is a contractual rather than representational

dispute." Pace, 227 F.3d at 1152.

[4] The Employer, however, argues that this case is

entirely distinguishable from Marriott, because here the

Union chose an NLRB-conducted election; the NLRB was

not involved in Marriott. The Employer argues that once

the Union chose the NLRB election option, any dispute

“We recognize that our conclusion would be different if the Union

had challenged the outcome of the election before this court, and not

alleged violations of a contract: "Indeed, we have warned that ‘end run{s]

around Section 9 of the [National Labor Relations] Act... under the guise

of contract interpretation... cannot be countenanced." Pace, 227 F.3d at

1157 (quoting Ketchikan Pulp, 611 F.2d at 1299-1300). We further have

"recognized repeatedly that courts must refuse to exercise jurisdiction

over claims involving representational issues." Marriott, 961 F.2d at

1468

16a

following the election became a "representational issue"

under the primary jurisdiction of the NLRB. We disagree.

The presence of the NLRB does not place all issues of a case

within the NLRB' s primary jurisdiction. Instead, the court

still must ask "whether the major issues to be decided... can

be characterized as primarily representational or primarily

contractual." Pace, 227 F.3d at 1157 (quoting Valley Eng'rs,

975 F.2d at 614). We have already answered that question

and found that the major issue in this case — the

arbitrability of alleged violations of the Agreement — is

contractual. Therefore, we hold that the district court has

jurisdiction to compel arbitration of alleged contractual

violations under § 301 of the LMRA.

B. The district court erred in finding that the

Union failed to state a claim upon which relief

can be granted

[5] In Dutra Group, we recently reiterated a general

principle of labor law stating a strong preference for the

arbitration of labor-management disputes:

Where the contract contains an arbitration

clause, there is a presumption of arbitrability

in the sense that "[a]n order to arbitrate the

particular grievance should not be denied

unless it may be said with positive assurance

that the arbitration clause is not susceptible

of an interpretation that covers the asserted

dispute. Doubts should be resolved in favor of

coverage.

Dutra Group, 279 F.3d at 1078 (quoting AT&T Techs., 475

U.S. at 650).

Notwithstanding this presumption of arbitrability

when a _ labor-management agreement contains an

arbitration clause, as the present Agreement does, the

17a

_—

Employer contends that the district court was correct in

granting the Employer's motion to dismiss under Fed. R.

Civ. P. 12(b)(6) — failure to state a claim upon which relief

can be granted. The Employer argues that because the

NLRB has already "certified" the results of the election, it

is "improper for a federal court to permit a re-opening of the

representation proceeding through the guise of permitting

an arbitrator to decide untimely election objections." But as

we stated above, the issue before us is not "the question of

whom the union represents," Valley Eng'rs, 975 F.2d at 614,

or any other representational issue. Rather, the issue is the

arbitrability of the alleged violations of the Agreement.

[6] We find that the presumption of arbitrability

applies in this case because the arbitration clause is

"susceptible of an interpretation that covers the asserted

dispute." AT&T Techs., 475 U.S. at 650. The Agreement

states that "disputes under this Agreement, including the

Guidelines [governing the parties’ behavior during

organizing campaigns] and Recognition Procedure, will be

resolved according to the Mediation and Arbitration

provision in this Agreement." The arbitration clause

provides that "the Parties agree to submit any unresolved

disputes about compliance with or construction of this

Agreement for final and binding resolution by an

Arbitrator." Furthermore, the Agreement states that under

the NLRB election option, "the NLRB shall substitute for

the role of the Election Officer, but all other aspects of the

recognition procedure shall apply, except as adjustments

may be required by the NLRB." (emphasis added). There is

no evidence that the NLRB required any "adjustments" to

the Agreement governing the parties' behavior during the

organizing drive or to the parties' contractual obligation to

arbitrate disputes "about compliance with or construction

of this Agreement."

: 18a

pliant:

The Employer, however, contends that the

Agreement does not cover any objections to the election’

because the NLRB conducted the election and all objections

needed to be brought according to NLRB procedure. To

support its argument, the Employer points to the stipulation

signed by the Union on September 7, 2001, agreeing that the

NLRB would conduct the secret ballot election. The

September 7, 2001 stipulation referred to a previous

"Stipulated Election Agreement" signed by the parties in

2000, in which "postelection and runoff procedures... after

the ballots are counted shall conform with the Board's Rules

and Regulations." If the Union were objecting to the validity

of the NLRB-conducted election, as the Employer claims,

then such "postelection procedure" would have to conform to

the NLRB's Rules and Regulations. But the Union's

allegations that the Employer violated the Agreement arises

out of the Agreement and not the NLRB's Rules and

Regulations. Even assuming, arguendo, that the Employer

is correct that the Union became bound by the NLRB's rules

and procedures when it opted for an NLRB election, there is

a valid argument that the arbitration clause covers the

asserted dispute concerning the Employer's violations of the

Agreement. "Doubts should be resolved in favor of coverage."

AT&T Techs., 475 US. at 650.

’The parties dispute whether the Union is contesting "objections

to the election," "election objections," or "violations of our Agreement."

Regardless of the technical label, the Union is objecting to the behavior

of the Employer in violation of the Guidelines that the parties agreed

upon to govern their conduct during the organizing and pre-election

drive. The Union's request in its complaint that the district court compel

arbitration of "the dispute regarding SEIU's objections to the September

26 and 27, 2001 election," is not “fatal to its argument that it is

supposedly not raising a representational issue" as the Employer

contends. Reading the complaint, it appears that the Union is not

objecting to the end result of the election, or attempting to invalidate the

results of the election. But rather, the Union is attempting to arbitrate

"(t]hese objections [that] consisted of a series of allegations that Catholic

Healthcare West, St. Vincent, and DOCHS violated the Agreement."

19a

Likewise, the Employer's other argument as to why

the district court was correct in finding that the Union did

not state a claim upon which relief can be granted is not

persuasive. The issue whether the Union timely filed the

alleged violations of the agreement is an issue left to the

arbitrator, not this court. See Retail Delivery Drivers, Local

588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir. 1983);

United Food & Commercial Workers Union, Local 770 v.

Geldin Meat Co., 13 F.3d 1365, 1368 (9th Cir. 1994)

(quoting United Steelworkers v. Warrior & Gulf Navigation

Co., 363 U.S. 574, 582 (1960) ("|J]udicial inquiry... must be

strictly confined to the question whether the reluctant party

did agree to arbitrate.").

[7] Therefore, we hold that under Supreme Court

law and the law of this circuit, the Union stated a claim for

which relief may be granted, namely that the district court

should compel arbitration under the Agreement based on

the Employer's alleged violations of the Agreement.

CONCLUSION

[8] Accordingly, we REVERSE the district court's

order dismissing the Union's complaint to compel

arbitration and REMAND for entry of an order compelling

arbitration of the alleged contractual violations.

REVERSED and REMANDED.

20a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[DATE STAMP]

FILED

NOV 05 2003

j CATHY CATTERSON, CLERK

U.S. COURT OF APPEALS

Service Employees International

Union; Service Employees

International Union, Local 399,

Plaintiffs-Appellants,

No. 02-56058

: v.

ORDER

St. Vincent Medical Center;

Daughters of Charity Health

Systems, Inc.,

Defendants-Appellees.

i Before: PREGERSON, TASHIMA, and CLIFTON, Circuit

Judges.

The panel, as constituted above, has unanimously

voted to deny defendants-appellees' petition for rehearing

en banc.

The full court has been advised of the petition for

: rehearing en banc, and no judge of the court has requested

4 en banc rehearing. See Fed. R. App. P. 35(b).

The petition for rehearing en banc is denied.

2la

ROBERT F. MILLMAN, Bar No. 062152

ROBERT D. VOGEL, Bar No. 63091

LAURA S. SHIPLEY, Bar No. 212051

LITTLER MENDELSON

A Professional Corporation

2049 Century Park East, 5th Floor

Los Angeles, CA 90067.3107

Telephone: 310.553.0308

Facsimile: 310.553.5583

[DATE STAMP]

FILED

CLERK, U.S. DISTRICT COURT

JUN-3 2002

CENTRAL DISTRICT OF CALIFORNIA

BY /s/ DEPUTY

[DATE STAMP]

ENTERED

CLERK, U.S. DISTRICT COURT

JUN-4 2002

CENTRAL DISTRICT OF CALIFORNIA

BY /s/ DEPUTY

Attorneys for Defendants

ST. VINCENT MEDICAL CENTER AND DAUGHTERS OF

CHARITY HEALTH SYSTEMS, INC.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

[DATE STAMP]

LODGED

2002 MAY 13 PM 1:57

U.S. DISTRICT COURT

CENTRAL DIST. OF CALIF.

LOS ANGELES

BY /s/

22a

a en me

Sitar erm. LmR , e

SERVICE EMPLOYEES INTERNATIONAL

UNION, and SERVICE EMPLOYEES

INTERNATIONAL UNION, LOCAL 399,

a Plaintiffs,

ST. VINCENT MEDICAL CENTER and

DAUGHTERS OF CHARITY HEALTH

SYSTEMS, INC.,

Defendants.

Case No. 02-2740 R (RZx)

Assigned for all purposes to the Judge Manuel L. Real

Dept. 8

Date Filed: April 3, 2002

ORDER GRANTING DEFENDANTS’ MOTION TO

DISMISS COMPLAINT TO COMPEL ARBITRATION

WITH PREJUDICE

[Fed.R.Civ.P. 12(b)(1) and 12 (b)(6)]

Date: June 3, 2002

Place: Dept. 8

Time: 10:00 a.m.

_v¥_ Docketed

_¥_ Copies / NTC Sent

vV_JS-5/JS-6

___J8-2/J38-3

23a

On June 3, 2002, in Department 8 of the above-

entitled court, Defendants ST. VINCENT MEDICAL-

CENTER and DAUGHTERS OF CHARITY HEALTH

SYSTEMS, INC.'s (collectively "Defendants") Motion To

Dismiss Complaint To Compel Arbitration came on

regularly for hearing in the above-captioned matter. After

considering all papers submitted and oral argument heard

and for good cause appearing,

IT IS THEREFORE ORDERED that Defendants'

Motion be and hereby is GRANTED and that Plaintiffs

SERVICE EMPLOYEES INTERNATIONAL UNION, and

SERVICE EMPLOYEES INTERNATIONAL UNION,

LOCAL 399's Complaint To Compel Arbitration be

dismissed in its entirety with prejudice.

Dated:_ June 3__, 2002 /s/

U.S. District Court Judge

24a -

AAAS TE PNET

TEN NES

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.