Petition for Writ of Certiorari — Irvin H. Whitehouse & Sons Co. v. Local Union 118 of the International Brotherhood of Painters & Allied Trades

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

—

yir1 938 May

fupreme Court, UR ,

(VY FILED

1992

OFIOE OF THE CLERK

Case No.

UNITED STATES SUPREME COURT

1992 Term

IRVIN H. WHITEHOUSE & SONS

COMPANY, INC. Petitioner

LOCAL UNION 118 OF THE

INTERNATIONAL BROTHERHOOD OF

PAINTERS AND ALLIED TRADES,

AFL-CIO, et al.

Respondent

On Writ of Certiorari

to the United States Court of Appeals

For the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

LAURENCE J. ZIELKE

PEDLEY ROSS ZIELKE GORDINIER

1150 Starks Building

Louisville, Kentucky 40202

502-589-4600

QUESTIONS PRESENTED FOR REVIEW

ARE THE MANDATORY PROVISIONS OF THE

UNITED STATES ARBITRATION ACT (9

U.S.C. § 1) REQUIRING FEDERAL COURTS

TO CERTIFY ARBITRATION AWARDS

SUBSERVIENT TO THE NATIONAL LABOR

RELATIONS BOARD.

DID THE DISTRICT COURT ABUSE ITS

DISCRETION WHEN IT REFUSED TO

CERTIFY AN ARBITRATION AWARD

OBTAINED PURSUANT TO AN ARBITRATION

CLAUSE OF A COLLECTIVE BARGAINING

AGREEMENT, AS MANDATED BY THE UNITED

STATES ARBITRATION ACT (9 U.S.C. §

1, et seq.).

DOES THE NATIONAL LABOR RELATIONS

BOARD HAVE STANDING TO INTERVENE IN

PROCEEDINGS IN FEDERAL COURT

INITIATED UNDER THE UNITED STATES

ARBITRATION ACT (9 U.S.C. § 1).

PARTIES

Petitioners:

IRVIN H. WHITEHOUSE & SONS COMPANY

4600 JENNINGS LANE

P.O. BOX 32670

LOUISVILLE, KENTUCKY 40218

IRVIN H. WHITEHOUSE & SONS

PULP & PAPER DIVISION COMPANY, INC.

4600 JENNINGS LANE

P.O. BOX 32670

LOUISVILLE, KENTUCKY 40218

IRVIN H. WHITEHOUSE & SONS

COMPANY OF VIRGINIA

4600 JENNINGS LANE

P.O. BOX 32670

LOUISVILLE, KENTUCKY 40218

PROFESSIONAL APPLICATORS AND

MAINTENANCE COMPANY

4600 JENNINGS LANE

P.O. BOX 32670

LOUISVILLE, KENTUCKY 40218

Respondents:

LOCAL UNION 118

INTERNATIONAL BROTHERHOOD OF PAINTERS AND

ALLIED TRADES, AFL-CIO

1930 BISHOP LANE, SUITE 417

WATTERSON TOWERS

LOUISVILLE, KENTUCKY 40218

GENERAL DRIVERS, WAREHOUSEMEN & HELPERS,

LOCAL 89

3813 TAYLOR BOULEVARD

LOUISVILLE, KENTUCKY 40213

NATIONAL LABOR RELATIONS BOARD

REGION 9

550 MAIN STREET

SUITE 3003, JOHN WELD PECK

FEDERAL BUILDING

CINCINNATI, OHIO 45202

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW...

PARTIES

TABLE OF CONTENTS . . . +. © © « « «

TABLE OF AUTHORITIES .......

Il.

III. APPLICABLE CONSTITUTIONAL,

Iv.

REPORTS AND OPINIONS OF

OTHER COURTS AND

ADMINISTRATIVE AGENCIES .

JURISDICTION ..... .

STATUTORY AND REGULATORY

PROVISIONS .. «2... « « «

STATEMENT OF CASE... .

BASIS FOR ALLOWANCE OF

“eae = @ « 6 @ 8 6

A. The District

Court Abused

Its Discretion

As Limited By

The Arbitration

BGS « «© +6 * *

B. The District Court

Erroneously

Concluded It Lacked

Subject-Matter

Jurisdiction

SUMMARY ..+ + + *+ © «© « *

JUDGMENT, Entered 4/9/90. .

MEMORANDUM OF TELEPHONIC

PRETRIAL CONFERENCE AND

ORDER, Entered 5/10/90. . .

ORDER, Entered 8/14/90. . .

ORDER, Entered 8/14/90. .

DECISION AND ORDER,

Dated 10/19/90. . . +. +s. -

MEMORANDUM OPINION,

Entered 1/29/91 . . . + «+ +

ORDER, Entered 1/29/91. . .

JUDGMENT, Entered 2/5/92

Entered as MANDATE 2/28/92.

RELEVANT STATUTES ...- -;

American Arbitration

Act, 9 U.S.C. § l. .

9 U.S.C. § 2

9 U.S.C. § 9

9 U.S.C. § 10.

9 U.S.C. § ll.

9 U.S.C. § 13.

+ 24

App. A

App. B

App. C

App. D

App. E

App. F

App. G

App. H

App. I

National Labor Relations

Act, 29 U.S.C. § 151,

et seq. ° e °

29 U.S.C. § 159.

TABLE OF AUTHORITIES

Cases Cited:

Vv —_

_Denver Company, 415 U.S.

36, 94 S.Ct. 1011 (1974) ..

a Workers,

693 F.2d 35, 38

(6th Gis. 1902) 2. « 2 2 os

r v. W j us

’

375 U.S. 261, 84 S.Ct.

401 (1964) . . - ~ * + . .

Grand Bahama Petroleum

Oo. Vv si ic

_Petroleum Corp., 550

F.2d 1320 (5th Cir. 1977)

Moses H. Cone Hospital

v. Me onstruction

, 460 U.S.

1, 103 S.Ct. 927, 744

L.Ed.2da 765 (1983)

Perry v. Thomas, 482

U.S. 483, 107 S.Ct.

2520, 96 L.Ed.2d 426

ora rr

Smith v. Evening

News Association,

372 UcBs £299, Sa

S.Ct. 267, 9 L.Ed.2d

246 (1963) ..

vil

Southland Corporation v.

_Keating, 465 U.S. 1, 104

S.Ct. 852, 858-860, 79

L.BG.2G 2 (1984) . . « 2 «

_AFL-CIO v. Misco, Inc.,

484 U.S. 29, 108 S.Ct.

364, 370, 98 L.Ed.2da

Ee om

United Steelworkers of

_America v. Warrior &

80 S.Ct. 1347, 363 U.S.

574, 4 L.Ed.2d 1409 (1960).

U.86. 44 ..

Pee ee « ¢ wo Vee

a rrr ee

fe 2! Pere

oU.6.c. $6. .

S06 8.8.0. 6 2008 6 Sia ew

28 U.S.C. § 1254(1)

oe MeBeGs § B54 2 2 se} e %

viii

iS,

ee | eer ae eee ee

29 U.S.C. § 160(e) iMectet -s0e (ea 2a

REPORTS AND OPINIONS OF OTHER

COURTS AND ADMINISTRATIVE AGENCIES

Judgment of the United States

District Court for the Western

District of Kentucky in the matter

of Irvin H. Whitehouse & Sons Co.,

—

Inc. v. Local Union No. 118 of The

International Brotherhood of

Painters and Allied Trades, AFL-

CIO, et al., Civil Action No. 90-

0143-L-J, entered April 9, 1990

Memorandum of Telephonic Pretrial

Conference and Order in the matter

of Irvin _H. Whitehouse & Sons

Company _v. Local Union 118 of the

International Brotherhood of

Painters and Allied Trades, AFL-CIO

and General Drivers, Warehousemen

and Helpers, Local Union No. 89,

Civil Action No. 90-0143 L(J),

entered May 10, 1990

Order of the United States District

Court for The Western District of

Kentucky at Louisville vacating

April 4, 1990 Order and establishing

pretrial conference the matter of

Irvin H. Whitehouse & Sons Company,

ne. Vv Cc Unio of the

International Brotherhood of

Painters and Allied Trades General

Drivers, Civil Action No. 90-0143

L(J), entered August 14, 1990.

Order of the United States District

Court, Western District of Kentucky

at Louisville, reinstating action to

active docket, in the matter of

Irvin H. Whitehouse & Sons Company,

Inc. v. Local Union 118 of the

(e) of

Painters and Allied Trades, AFL-

CIO, et al., Civil Action No. 90-

0143-L(J), entered August 14, 1990

Decision and Order of the National

Labor Relations Board in the matter

of : itehous & Sons

° Cc. an n ivers

Warehousemen and Helpers Local Union

#89, Affiliated with the

nt ationa therhood of

Teamsters, Chauffeurs, Warehousemen

and Helpers of America, AFL-CIO,

Case No. 9-CA-27701, entered October

19, 1990

Memorandum Opinion of the United

States District Court, Western

District of Kentucky, Louisville

Division, in the matter of Irvin H.

Whitehouse & Sons Company, Inc. v.

1 uni = , ——

Brotherhood of Painters, etc., v.

Gene ivers Warehousemen &

Helpers, Local Union No. 89, etc.,

Civil Action No. C90-0413-L(J),

entered January 29, 1991

Order of the United States District

Court, Western District of Kentucky,

Louisville Division, granting

motions of the NLRB to intervene and

to dismiss the action with

prejudice, in the matter of Irvin H.

Whitehouse & Sons Company, Inc. v.

Local Union 118 of the International

Brotherhood of Painters, etc. v.

General Drivers, Warehousemen &

Helpers, Local Union No. 89, etc.,

Civil Action No. C90-0143-L(J),

entered January 29, 1991

Judgment and Mandate of the United

States Court of Appeals for the

Sixth Circuit, on appeal from the

United States District Court for the

Western District of Kentucky in the

matter of Irvin H. Whitehouse & Sons

an DG. Vs . 8

of the International Brotherhood of

in s j des -CIO

and Genera iv Warehousemen

and Helpers, Local _ Uni No. 89;

National Labor Relations Board, No.

91-5307 and on application for

enforcement of an Order of the

National Labor Relations Board in

the matter of National Labor

Relations Board Vv. Irvin H.

Whitehouse & Sons Company, Inc., No.

91-5867, entered as Judgment on

February 5, 1992; issued as Mandate

on February 28, 1992

JURISDICTION

A final and appealable decree was

entered by the United States Court of

Appeals for the Sixth Circuit on February

5, 1992.

Jurisdiction of the United States

Supreme Court is invoked pursuant to 28

U.S.C. § 1254(1).

IIt.

APPLICABLE CONSTITUTIONAL, STATUTORY

AND REGULATORY PROVISIONS.

The following statutes are relevant

to this matter:

- United States Arbitration Act, 9

7.8.€C. $6 1, 2, 9, 10, 11 and i3 set

forth in pertinent part in the

; Appendix hereto.

3. National Labor Relations Act, 29

U.S.C. § 158(a), set forth in the

Appendix hereto.

3 National Labor Relations Act, 29

v.8.¢. § i398, set forth in the

Appendix hereto.

Iv.

STATEMENT OF CASE

This case presents a direct conflict

between the purposes and objectives of,

and the public policy established by

Congress through the United States

Arbitration Act ("the Act")(9 U.S.C. § l,

et seq.), and judicial determinations as

to the scope of the National Labor

Relations Act (29 U.S.C. § 151, et. seq.)

and the jurisdictions of the National

Labor Relations Board ("NLRB").

Employees classified as painters,

apprentices and utility workers of Irvin

H. Whitehouse & Sons Company, Inc.

("Whitehouse") have been represented for

more than 40 years by Local Union No. 118

of the International Brotherhood of

Painters and Allied Trades, AFL-CIO

("Local 118") under a multi-employer

collective bargaining agreement. The

collective bargaining agreement describes

the work jurisdictions granted to Local

118 and contains a mandatory arbitration

clause. The labor contract recognized

three classifications of work, including

work performed by “utility workers."

Local 118 filed a grievance against

Whitehouse under the collective

bargaining agreement alleging that

Whitehouse breached the contract for

failure to require utility workers in

Whitehouse's paint shop to join, or

otherwise pay dues to, Local 118 as

required by union security provisions of

the collective bargaining agreement. The

matter was submitted to the arbitration

panel as required by the collective

bargaining agreement to determine if work

performed by paint shop utility workers

was within the scope of Local 118's

jurisdiction. Concurrently, the General

Drivers, Warehousemen and Helpers, Local

Union No. 89 ("Local 89") was engaged in

proceedings to obtain authority to

represent Whitehouse's paint shop utility

workers.

The arbitration panel found that the

work in question was work to which Local

118 was entitled under the terms of the

collective bargaining agreement. The

panel held that Whitehouse violated the

collective bargaining agreement by

allowing non-members of Local 118 to

perform work. Whitehouse was directed to

require the paint shop utility workers to

join Local 118 or otherwise pay dues to

Local 118 as required by the collective

bargaining agreement.

Whitehouse invoked the Act in the United

States District Court for the Western

District of Kentucky, seeking

certification of the arbitration award.

oOo

Local 118 agreed to a judgment certifying

the award and the District Court entered

an Order certifying the award on April 9,

1990 (Appendix A).

On the date the arbitration panel

issued its decision, the NLRB conducted

a hearing on allegations by Local 89 that

Local 89 should be designated as the

bargaining agent for Whitehouse's paint

shop utility workers. On October 19,

1990, the NLRB issued an Order sustaining

Local 89's position and directed

Whitehouse to bargain with Local 89 as

the agent for the paint shop utility

workers. (Appendix E).

Upon motion, the United States

District Court granted Local 89 and the

NLRB, individually, permission to

intervene in the Arbitration Act

proceedings. (Appendices B, G).

Subsequently, contrary to the black

letter law stated in the Arbitration Act

at 9 U.S.C. §§ 9 and 10, the District

Court vacated its certification order and

dismissed the action asserting that the

matter before it was not contractual but

was a "representational issue" over which

the District Court lacked jurisdiction.

(Appendix F, p. 6; Appendix G).

Whitehouse appealed the final

decision of the District Court to the

Sixth Circuit pursuant to 28 U.S.C. §

1291. The National Labor Relations Board

initiated action in the United States

Court of Appeals for the Sixth Circuit

for enforcement of its order pursuant to

29 U.S.C. § 160(e). The cases on appeal

were consolidated for hearing and

disposition. The decision of the

District Court and of the NLRB were

sustained.

Whitehouse seeks a writ of

certiorari from the decision of the Court

of Appeals on the grounds that (1) the

issues present questions which have not,

but should be, addressed by this Court;

(2) the ruling of the Court of Appeals

conflicts with prior rulings of this

Court; and (3) the Court of Appeals'

decision condones abuse of discretion of

the District Court.

Vv.

BASIS FOR ALLOWANCE OF WRIT

The Arbitration Act reflects

congressional establishment of a national

policy favoring arbitration to resolve

contract disputes. Southland Corporation

v. Keating, 465 U.S. 1, 104 S.Ct. 852,

858-860, 79 L.Ed.2d 1 (1984). The purpose

of the Arbitration Act is to require

arbitration where the parties to the

contract have agreed to arbitrate

disputes related to the contract. Perry

v. Thomas, 482 U.S. 483, 107 S.Ct. 2520,

96 L.Ed.2a 426 (1987). The objective of

the Arbitration Act is to establish an

entire body of substantive law applicable

to all arbitration agreements. Grand

Bahama Petroleum Co., Ltd. v. Asiatic

Petroleum Corp., 550 F.2d 1320 (5th Cir.

1977). This includes arbitration clauses

in collective bargaining agreements.

& Gulf Navigation Company, 80 S.Ct. 1347,

363 U.S. 574, 4 L.Ed.2d 1409 (1960).

Congress declared as "irrevocable"

the right to resolve and dispose by

arbitration a controversy involving a

contract containing a mandatory

arbitration clause, except “on _ such

grounds as exist at law or in equity for

the revocation of any contract." 9

U.S.C. § 2 (emphasis added). Congress

mandated that federal courts must certify

arbitration awards upon request of any

party. 9 U.S.C. §§ 6 and 9. A court

ruling which denies the parties to

arbitration court certification provided

for by the Arbitration Act on grounds

other than the limited basis prescribed

by Congress emasculates the Act, and

defies the congressional objectives. The

District Court had limited discretion to

deny the application for certification:

"The court must grant such an order

[certifying an arbitration award] unless

the award is vacated, modified or

corrected as prescribed [only] in

sections 10 and 11 of this Title." 9

U.S.C. § 9 (emphasis added). The only

alternative to certification of

arbitration awards provided by the Act is

to vacate or alter the arbitration award.

The District Court had no authority to

deny certification of the award.

The District Court's discretion is

first limited as to whom may appear in

regard to a proceeding under the Act.

Congress provided that "any party to the

arbitration" may be heard to object to

certification of the arbitration award (9

U.S.C. §§ 10 and 11 (emphasis added).

Neither the NLRB nor Local 89 were

"parties" to the arbitration proceeding.

They were specifically excluded by

Congress from intervening in the District

Court proceedings. The District Court

abused its discretion by permitting the

NLRB and Local 89 to intervene to object

to certification of the arbitration

award.

Second, the District Court's

authority to vacate or modify the

arbitration award only arises if there is

evidence of corruption, fraud or

misconduct of the parties involved in the

arbitral process or upon computational

errors, errors of procedure or scope of

arbitration. 9 U.S.C. §§ 10 and 11.

There was no evidence nor assertion of

corruption, fraud or misconduct by either

Whitehouse or Locai 118. Work

jurisdiction issues are arbitrable.

United Steelworkers v. Warrior & Gulf,

supra. Although the District Court did

not vacate or amend -the arbitration

award, its refusal to certify the award

rendered the award a nullity in defiance

of the Act.

Third, Congress specifically

restricted the scope of review allowed to

courts of arbitration awards. United

Paperworkers International Union, AFL-

CIO v. Misco, Inc., 484 U.S. 29, 108

S.Ct. 364, 98 L.Ed.2d 286 (1987). This

rule obtains even when the award is based

on errors of fact as well as of federal

law. Anaconda Co. v. District Lodge No.

Aerospace Workers, 693 F.2d 35, 38 (6th

Cir. 1982). The District Court abused

its discretion by looking beyond the four

corners of the collective bargaining

agreement to find a basis to deny

certification of the award.

B. The District Court Erroneously

Concluded It Lacked Subject-Matter

Jurisdiction.

At all times relevant hereto, Local

118 was the sole bargaining agent

authorized to represent any of

Whitehouse's employees. It was not until

approximately six (6) months after Local

iii iitnmia ier

118 filed its grievance against

Whitehouse that Local 89 was certified by

the NLRB as the bargaining agent for the

subject paint shop utility workers at

Whitehouse. The NLRB termed the issue

before the arbitration panel convened

under Whitehouse's contract with Local

118 as a representational issue as

opposed to the work jurisdictional issue,

citing to Section 301 of the Labor-

Management Relations Act (29 U.S.C. §

158).

The action initiated by Whitehouse

for certification of the arbitration

award was not a representational

proceeding nor did it entail a

representational issue. The sinpic issue

which was arbitrated was whether or not

Whitehouse's paint shop utility workers

were performing work within the

contractual jurisdiction of Local 118 and

whether Whitehouse was permitting

employees to perform work within the

jurisdiction of Local 118 without

requiring contribution to Local 118.

Local 89 was not certified to represent

any Whitehouse employee. Thus, there was

no dispute among unions as to which union

was then entitled to the work being

performed by Whitehouse's paint shop

utility workers.

Assuming, arguendo, that a

"representational issue" could be deemed

to exist, such did not deprive the

District Court of jurisdiction to certify

the arbitration award. In exa Vv.

Gardner-Denver Company, 415 U.S. 36, 94

S.Ct. 1011 (1974), this Court held that

the right to arbitrate, and the

consequent right to certification under

the Arbitration Act, are unaffected by

possible concurrent application of other

federal law. Jd. 415, U.S. at 52, 94

S.Ct. at 1022. Thus, in Smith v. Evening

News Association, 371 U.S. 195, 83 S.Ct.

267, 9 L.Ed.2d 246 (1963), this Court

held that the possibility of conflict

between the result of an arbitration

proceeding and certification and a

determination by the NLRB creates no

legitimate barrier to the contractual

parties obtaining benefit of the

arbitration proceeding for which they

contracted. id. 371 U.S. at 191, 83

S.Ct. at 3270. Similarly, in Carey v.

Westinghouse Electric Corporation, 375

U.S. 261, 84 S.Ct. 401 (1964), this Court

held that even if an issue could be

couched as a _ representative matter,

arbitration may have a persuasive and

curative effect even though one union is

not a party. id, 375 U.S. at 272, 84

S.Ct. at 409. In the instant case,

| a

certification of the arbitration award

would have the desired curative effect.

Most recently, in Moses H. Cone Hospital

v. Mercury Construction Corporation, 460

U.S. 1, 103 S.Ct. 927, 744 L.Ed.2d 765

(1983), this Court concluded that, as a

matter of federal law, all doubts

concerning the scope of arbitrable issues

should be resolved in favor of

arbitration. Id., 460 U.S. at 25, 103

S.Ct. at 941. The District Court's

rejection of jurisdiction with the

concurrence of the Court of Appeals is

contrary to the — history of law

developed by this Court. The Court is

urged to issue a Writ of Certiorari, to

entertain this case on its docket, and to

issue ite opinion putting to rest the

relationship of the Arbitration Act and

the National Labor Relations Act.

SUMMARY

The District Court abused its

discretion by permitting non-parties to

the arbitration to intervene, by refusing

to certify the arbitration award, and by

denying certification on questions

outside of the statutory scope of review

granted federal courts under the

Arbitration Act.

The District Court's determination

that it lacked jurisdiction to certify

the arbitration award is inconsistent

with established law.

WHEREFORE, for the foregoing

reasons, Irvin H. Whitehouse & Sons

Company, Inc. respectfully petitions the

United States Supreme Court for a Writ of

Certiorari.

Respectfully submitted

GORDINIER

1150 Starks Building

455 South Fourth Avenue

Louisville, KY 40202

(502) 589- -4600

Counsel for Petitioner

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

IRVIN H. WHITEHOUSE &

SONS COMPANY, INC.,

Civil Action No.

C-90-0143-L-J

Plaintiff,

LOCAL UNION 118 OF

THE INTERNATIONAL

BROTHERHOOD OF

PAINTERS AND ALLIED

)

TRADES, AFL-CIO, )

)

Defendant.

JUDGMENT

Complaint having been filed, and the

Court being sufficiently advised of the

terms of the Articles of Agreement

between Contracting Painting and

Decorators of Louisville and Vicinity and

Painters Local Union No. 118; and,

The Court having been advised that

Local Union 118, having filed a grievance

concerning the Shop employees employed by

Plaintiff, Irvin H. Whitehouse & Sons

Company, Inc., alleging that the Shop

employees should be members of Local

Union 118; and

The oouxt having been advised of the

Grievance and Arbitration Procedure,

Article xv of the Collective Bargaining

Agreement and having read the findings of

the Joint Trade Board for the Paint

Industry, dated February 6, 1990;

NOW, THEREFORE, BE IT ADJUDGED that

the Decision of the Joint Trade Board for

the Paint Industry decided and entered

February 6, 1990, is confirmed in its

entirety and is final and binding on

Plaintiff and Defendant, and that the

Shop employees of Irvin H. Whitehouse &

Sons Company, Inc., shall become members

of Local Union 118 in accordance with the

terms of the Collective Bargaining

Agreement.

THIS IS A FINAL AND APPEALABLE

ORDER.

EDWARD H. JOHNSTONE

Judge, United States District

Court, Western District of

Kentucky

DATED: 4/6/90

ENTERED: April 09, 1990

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 90-0143 L(J)

IRVIN H. WHITEHOUSE & SONS COMPANY

vs.

LOCAL UNION 118 OF THE INTERNATIONAL

BROTHERHOOD OF PAINTERS AND - ALLIED

TRADES, AFL-CIO

GENERAL DRIVERS, WAREHOUSEMEN AND

HELPERS, LOCAL UNION NO. 89

MEMORANDUM OF TELEPHONIC PRETRIAL

CONFERENCE AND ORDER

A telephonic pretrial conference was

held on May 7, 1990.

APPEARANCES:

For the Plaintiff: Mr. Lawrence J. Zielke

For the Defendants: Mr. Ralph H. Logan

Mr. Thomas J. Schultz

IT IS ORDERED:

i. The motion of General Drivers,

Warehousemen and _ Helpers, Local

Union No. 89 to intervene herein as

a party-defendant is GRANTED.

2. The effective date of the Judgment

entered April 9, 1990 is STAYED

pending further consideration of the

motion to set aside judgment.

r This 8th day of May, 1990

EDWARD H. JOHNSTONE, CHIEF JUDGE

UNITED STATES DISTRICT COURT

ENTERED MAY 10, 1990

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 90-0143 L(J)

IRVIN H. WHITEHOUSE &

SONS COMPANY, INC.

vs.

LOCAL UNION 118 OF THE INTERNATIONAL

BROTHERHOOD OF PAINTERS AND ALLIED

TRADES GENERAL DRIVERS

ORDER

The Court having considered the

above matter,

IT IS ORDERED:

1. The Order of this Court entered

April 4, 1990 is VACATED.

2. A pretrial conference will be held

September 13, 1990 at 4 P.M.

This 14th day of August, 1990

EDWARD H. JOHNSTONE, CHIEF JUDGE

UNITED STATES DISTRICT COURT

ENTERED 8/14/90

APPENDIX D

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

IRVIN H. WHITEHOUSE & SONS COMPANY, INC.

Vv. CIVIL ACTION NO.

90-0143-L(J)

LOCAL UNION 118 OF THE INTERNATIONAL

BROTHERHOOD OF PAINTERS AND ALLIED

TRADES, AFL-CIO, ET AL.

ORDER

This Court having reviewed the

above-styled action,

IT I8 HEREBY ORDERED that this

action shall be REINSTATED on the active

docket of the Court.

Dated: August 14, 1990

ENTERED BY ORDER OF THE COURT:

EDWARD H. JOHNSTONE, CHIEF JUDGE

UNITED STATES DISTRICT COURT

By: Deputy Clerk

ENTERED AUGUST 14, 1990

APPENDIX E

SDO

300 NLRB NO. 12 D--1515

Louisville, KY

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

IRVIN H. WHITEHOUSE & SONS

COMPANY, INC.

and Case 9--CA--27701

GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS

LOCAL UNION #89, AFFILIATED WITH THE

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, AFL-CIO

DECISION AND ORDER

On August 17, 1990, the General

Counsel of the National Labor Relations

Board issued a complaint alleging that

the Respondent has violated Section

8(a)(5) and (1) of the National Labor

Relations Act by refusing the Union's

request to bargain following the Union's

certification in Case 9--RC--15627.

(Official notice is taken of the "record"

in the representation proceeding as

D--1515

defined in the Board's’ Rules and

Regulations, Secs. 102.68 and 102.69(g);

Frontier Hotel, 265 NLRB 343 (1982) .)

The Respondent filed its answer admitting

in part and denying in part’ the

allegations in the complaint.

On September 10, 1990, the General

Counsel filed a Motion for Summary

Judgment. On September 13, 1990, the

Board issued an order transferring the

proceeding to the Board and a Notice to

Show Cause why the motion should not be

granted. The Respondent filed a response

on September 26, 1990.

The National Labor Relations Board

has delegated its authority in this

proceeding to a three-member panel.

Ruling on Motion for Summary Judgment

D--1515

In its answer the Respondent admits

its refusal to bargain, but attacks the

validity of the certification on the

basis of the Board's unit determination

in the representation proceeding. In its

reapenes to the Notice to Show Cause and

as an affirmative defense in its answer

the Respondent contends, as it did in the

underlying representation proceeding,

that the Board is without jurisdiction to

certify the Union because the unit

employees in question are currently

represented by another union, Local Union

118, International Brotherhood of

Painters and Allied Trades, AFL--CIO, to

which it has granted recognition, and

because it has a collective-bargaining

agreement with Local Union 118 covering

said unit of employees that has been

upheld in an arbitration award and

D--1515

confirmed by a U.S. district court. For

these reasons, it contends that it would

be legally impossible for the Respondent

to bargain with the Union.

All representation issues raised by

the Respondent were or could have been

litigated in the prior representation

proceeding. The Respondent does not

offer to adduce at a hearing any newly

discovered and previously unavailable

evidence, nor does it allege any special

circumstances that would require the

Board to reexamine the decision made in

the representation proceeding. We

therefore find that the Respondent has

not raised any representation issue that

is properly litigable in this unfair

labor practice proceeding. See

Pittsburqh Plate Glass Co. v. NLRB, 313

D--1515

U.S. 146, 162 (1941). Accordingly, we

grant the Motion for Summary Judgment.

On the entire record, the Board

makes the following

Findings of Fact

I. Jurisdiction

The Respondent is a Kentucky

corporation engaged in the application of

commercial and industrial coatings and

related services from its Louisville,

Kentucky facility. During the 12 months

preceding the issuance of the complaint

the Respondent, in the course of conduct

of its business, purchased and received

at its Louisville, Kentucky facility

products, goods, and materials valued in

excess of $50,000 directly from points

and places outside the State of Kentucky.

We find that the Respondent is an

D--1515

employer engaged in commerce within the

meaning of Section 2(6) and (7) of the

Act and that the Union is a labor

organization within the meaning of

Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. The Certificati

Following a secret mail ballot

election,’ the Union was certified on

June ae 1990, as the collective-

bargaining representatives of the

employees in the following appropriate

unit:

All shop employees employed by

Irvin H. Whitehouse & Sons

Company, Inc. at its

Louisville, Kentucky facility,

including all truck drivers,

warehousemen, mechanics,

: The mail ballots were

returnable by May 22, 1990, and

were opened and counted on May

24, 1990.

D--1515

maintenance employees and

receiving clerks, but excluding

all painters, apprentices,

field utility employees, office

clerical employees, sales

employees and all professional

employees, guards and

supervisors as defined in the

Act.

The Union continues to be the exclusive

representative under Section 9(a) of the

Act.

B. Refusal to Bargain

On or about July 5, 1990, the Union

requested the Respondent to bargain, and

since on or about that same date, the

Respondent has refused. We find that

this. refusal constitutes an unlawful

refusal to bargain in violation of

Section 8(a)(5) and (1) of the Act.

Conclusions of Law

By refusing on and after July 5,

1990, to bargain with the Union as the

D--1515

exclusive collective-bargaining

representative of employees of the

appropriate unit, the Respondent

has engaged in unfair labor practices

affecting commerce within the meaning of

Section 8(a)(5) and (1) and Section 2(6)

and (7) of the Act.

Remedy

Having found that the Respondent has

violated Section 8(a)(5) and (1) of the

Act, we shall order it to cease and

desist, to bargain on request with ine

Union, and, if an understanding is

reached, to embody the understanding in

a signed agreement.

To ensure that the employees are

accorded the services of their selected

bargaining agent for the period provided

by law, we shall construe the initial

D--1515

period of the certification as beginning

the date the Respondent begins to bargain

in good faith wit the Union. Mar-Jac

Poultry Co., 136 NLRB 785 (1962); Lamar

Hotel, 140 NLRB 226, 229 (1962), enfd.

328 F.2d 600 (5th Cir. 1964), cert.

denied 379 U.S. 817 (1964); Burnett

Construction Co., 149 NLRB 1419, 1421

(1964) enfd. 350 F.2d 57 (10th Cir.

1965).

ORDER

The National Labor Relations Board

orders that the Respondent, Irvin H.

Whitehouse & Sons Company, Inc.,

Louisville, Kentucky, its officers,

agents, successors and assigns, shall

1. Cease and desist from

(a) Refusing to bargain with General

Drivers, Warehousemen and Helpers Local

“4

D--1515

Union #89, affiliated with the

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of

America, AFL-CIO, as the exclusive

bargaining representative of the

employees in the bargaining unit.

(b) In any like or related manner

interfering with, restraining, or

coercing employees in the exercise of the

rights guaranteed them by Section 7 of

the Act.

2. Take the following affirmative

action necessary to effectuate the

policies of the Act.

(a) On request, bargain with the

Union as the exclusive representative of

the employees in the following

appropriate unit on terms and conditions

of employment and, if an understanding is

D--1515

reached, embody the understanding in a

signed agreement:

All shop employees employed by

Irvin H. Whitehouse & Sons

Company, Inc. at its

Louisville, Kentucky facility,

including all truck drivers,

warehousemen, mechanics,

maintenance employees and

receiving clerks, but excluding

all painters, apprentices,

field utility employees, office

clerical employees, sales

employees, guards and

supervisors as defined in the

Act.

(b) Post at its facility in

Louisville, Kentucky, copies of the

“attached notice marked "Appendix. "*

Copies of the notice, on forms provided

If this Order is enforced by a

judgment of the United States

court of appeals, the words in

the notice reading "POSTED BY

ORDER OF THE NATIONAL LABOR

RELATIONS BOARD" shall read

"POSTED PURSUANT TO A JUDGMENT

OF THE UNITED STATES COURT OF

APPEALS ENFORCING AN ORDER OF

THE NATIONAL LABOR RELATIONS

BOARD."

D--1515

by the Regional Director for Region 9,

after being signed by the Respondent's

authorized representative, shall be

posted by the Respondent immediately upon

receipt and maintained for 60 consecutive

days in conspicuous places including all

places where notices to employees are

customarily posted. Reasonable steps

shall be taken by the Respondent to

ensure that the notices are not altered,

defaced, or covered by any other

material.

writing within 20 days from the date of

this Order what steps the Respondent has

taken to comply.

Dated, Washington, D.C. October 19, 1990

James M. Stephens, Chairman

Dennis M. Devaney, Member

Clifford R. Oviatt, Jr., Member

NATIONAL LABOR RELATIONS BOARD

APPENDIX F

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

~ LOUISVILLE DIVISION

IRVIN H. WHITEHOUSE &

SONS COMPANY, INC.,

PLAINTIFF,

Vv. CIVIL ACTION

No. C90-0413-L(J)

LOCAL UNION 118 OF THE

INTERNATIONAL BROTHERHOOD

OF PAINTERS, etc.,

DEFENDANT.

V o

GENERAL DRIVERS, WAREHOUSEMEN &

HELPERS, LOCAL UNION NO. 89, etc.,

INTERVENER

MEMORANDUM OPINION

This case involving a

representational dispute between two

rival unions is complicated by

conflicting decisions from other

tribunals as to which union is the

appropriate representative. Before

deciding the issue, it is important to

understand the factual and procedural

history of the case.

oC et a, eb

Plaintiff Irvin H. Whitehouse & Sons

Company, Inc. is a commercial and

industrial painting contractor who is a

member of the Louisville Chapter of the

Painting and Decorating Chapter of

America (the Chapter). For nearly one

half a century, Whitehouse has recognized

the Defendant, Local Union 118 of the

International Brotherhood of Painters and

Allied Trades, AFL-CIO (the Painters) as

the official bargaining agent of its non-

management employees. The recognition is

memorialized in a Collective Bargaining

Agreement between the Chapter and the

Painters which establishes the scope of

work within the jurisdiction of the

Painters, and requires that disputes

arising under the Agreement be presented

to the Joint Trade Board for resolution.

The Joint Trade Board is composed of

representatives from the Painters of the

Chapter.

At the time the original collective

bargaining agreement was negotiated,

Whitehouse had only one paint’ shop

employee. He was excluded from the

Painters because he was too old to «nter

the appropriate program. As the number

of employees in the paint shop increased,

none paid union dues, voted for a

representative, or participated with the

Painters in any manner.

General Drivers, Warehousemen &

Helpers, Local Union No. 89, affiliated

with the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and

Helpers of America, AFL-CIO (the

Teamsters), filed a Petition for

Representation with the National Labor

Relations Board (the NLRB) seeking to

represent the nine paint shop employees.

After receiving notice of the Teamsters'

petition, Whitehouse filed a petition

with the NLRB seeking to determine

whether these nine employees should be

included in the existing bargaining unit

of the Painters.

| At the time the proceedings were

pending before the NLRB, the Painters

filed a grievance with the Joint Trade

Board charging Whitehouse with breach of

its Collective Bargaining Agreement for

assigning work within the jurisdiction of

the Painters to non-union employees. The

Joint Trade Board found that_ the

employees were members of the Painters

and covered by the Collective Bargaining

Agreement.

Whitehouse then filed this action

against the Painters seeking enforcement

of the decision of the Joint Trade Board

pursuant to 9 U.S.C. 1, et seq., and 29

U.S.C. 185(a). The case was presented as

a suit to enforce an arbitration award

between the parties then before the

court. The Painters admitted all

allegations in their answer, and Judgment

was entered. At the time judgment was

entered, this court was not aware that

other parties had an interest in this

action, and neither the NLRB nor the

Teamsters were aware of the proceedings.

On the Teamsters' motion, the judgment

was set aside and the Teamsters were

permitted to intervene.

Ironically, on the day this court

entered its judgment in this case, the

NLRB found that the work performed by

these employees was work ordinarily

performed by the Teamsters and ordered an

election. The Teamsters won the election

and were certified by the NLRB as the

bargaining agent for the nine employees.

si ee Tg te ee ee ee

The case is now before the court on

motions of the NLRB to intervene and to

dismiss the complaint for lack of

jurisdiction. Because the NLRB has a

protectable interest in this action which

is not adequately represented by the

existing parties, the motion to intervene

is granted. Having analyzed the issues

and applicable law, the NLRB's motion to

dismiss this action is also granted.

It is not the task of this court to

interpret the labor contract or decide

the representational issues. The court

need only decide whether it has

jurisdiction to consider the action. A

district court has jurisdiction to decide

cases involving breaches of collective

bargaining agreements. It does not have

jurisdiction to decide the

representational status of a bargaining

unit. J.S. Griffith Const. v. United

Bro. of Carpenters, 785 F.2d 706 (9th

Cir. 1986). When a representational

dispute arises under ae Collective

Bargaining Agreement, the court may

decide the representational dispute if it

is a minor component of the breach of

contract action. If, however, the breach

of contract action is primarily a

representational dispute, the court must

defer to the NLRB. Amalgamated Cloth. &

. Fac s ., 845 F.2d

1250 (4th Cir. 1985); Local Union 204,

Etc. v. Iowa Elec. Light, Etc., 668 F.2d

413 (8th Cir. 1982). A party cannot

avoid a NLRB determination of a

representational dispute by

characterizing it as an action for breach

of contract under a collective bargaining

agreement. ca oO. 3-193 Intern.

Ww Ww ers v. Ketchika ulp, 611 F.2d

1295 (9th Cir. 1980).

The parties to a collective

bargaining agreement can agree to

arbitrate representational issues. If

the parties have agreed to arbitrate

these issues, the NLRB will defer to the

arbitration award, U.A.W. v. Rockwell

International Corp., 619 F.2d 580 (6th

Cir. 1989); and the district court can

assert jurisdiction to enforce the award.

Carey. v. Westinghouse Electric

Corporation, 84 S.Ct. 401 (1964); Local

Union 204, Etc. v. Iowa Elec. Light,

Etc., 668 F.2d 413 (8th Cir. 1982).

However, the NLRB will not defer to the

arbitration award if all concerned

parties, including the rival union, did

not participate in the arbitration or a

party invokes the superior authority of

the NLRB. Carey v. Westinghouse Electric

Corporation, 84 S.Ce.. 403 (1964);

U.A.W. v. Rockwell] International Corp.,

619 F.2d at 580.

Here the dispute centers on the

appropriate unit to represent the paint

shop employees. Both Whitehouse and the

Teamsters petitioned the NLRB for a

deteratnetiion of this issue. It was only

after a hearing before the NLRB that the

Painters filed a grievance with the Joint

Trade Board. Since the authority of the

NLRB has been invoked, its decision takes

precedence over the decision of the Joint

Trade Board. The NLRB decided that the

employees were not covered by the

Collective Bargaining Agreement § and

ordered an election.

The argument that this election was

barred by the "contract bar" rule is not

persuasive. The "contract bar" rule

prohibits employees who have chosen a

union representative from changing that

union representative for a certain period

of time. It does not prohibit employees

who are not currently represented by a

union representative to elect one. NLRB

v. Mississippi Power & Light Co., 769

F.2d 267, 277 (5th Cir. 1985). tere the

paint shop employees were not represented

by a union. The "contract bar" rule does

not apply.

Accordingly, this action is

DISMISSED WITH PREJUDICE. An appropriate

order will accompany this opinion.

Dated: 1-28-91 EDWARD H. JOHNSTONE, JUDGE

UNITED STATES DISTRICT

COURT

ENTERED: January 29, 1991

APPENDIX G

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

IRVIN H. WHITEHOUSE &

SONS COMPANY, INC.

PLAINTIFF,

CIVIL ACTION

Vv. No. C90-0143-L(J)

LOCAL UNION 118 OF THE

INTERNATIONAL BROTHERHOOD

OF PAINTERS, etc.,

DEFENDANT,

Vv.

GENERAL DRIVERS, WAREHOUSEMEN &

HELPERS, LOCAL UNION NO. 89, etc.,

INTERVENER.

ORDER

For the reasons stated in the

accompanying memorandum opinion,’ the

Motions of the NLRB to intervene and to

dismiss are GRANTED. This action is

DISMISSED WITH PREJUDICE.

IT I8 8O ORDERED.

DATED: 1-28-91 ENTERED 1/29/91

EDWARD JOHNSTONE, JUDGE

UNITED STATES DISTRICT COURT

APPENDIX H

No. 91-5307

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IRVIN H. WHITEHOUSE & )

SONS COMPANY, INC. )

Plaintiff-Appellant, )

) ON APPEAL FROM

Vv. ) THE UNITED

) STATES

LOCAL UNION NO. 118 OF ) DISTRICT COURT

THE INTERNATIONAL ) FOR THE

BROTHERHOOD OF PAINTERS ) WESTERN

AND ALLIED TRADES, ) DISTRICT OF

AFL-CIO, ) KENTUCKY

Defendant-Appellee, )

)

and )

)

GENERAL DRIVERS,

WAREHOUSEMEN AND HELPERS, )

LOCAL UNION NO. 89; )

NATIONAL LABOR RELATIONS )

BOARD, )

Intervening )

Defendant-Appellees )

No. 91-5867

NATIONAL LABOR RELATIONS

BOARD,

Petitioner,

)

) ON APPLICATION

) FOR ENFORCE-

) MENT OF AN

) ORDER OF THE

)

Vv.

IRVIN H. WHITEHOUSE &

SONS COMPANY, INC.

Respondent.

NATIONAL LABOR

RELATIONS

BOARD

BEFORE: RYAN and BOGGS, Circuit Judges;

and HOOD, District Judge.”

PER CURIAM. This case involves nine

employees of Irvin H. Whitehouse & Sons

Company. Whitehouse and the International

Brotherhood of Painters contend that the

seutenses in question are part of a

bargaining unit represented by the

Painters. The Teamsters and the National

Labor Relations Board argue that they

constitute a separate bargaining unit

represented by the Teamsters. Because

the NLRB has legitimately used its power

to determine appropriate bargaining

units, we grant its application and

enforce its order against Whitehouse.

Because the NLRB has exclusive

jurisdiction over disputes of this kind,

The Honorable Joseph M. Hood,

United States District Judge for the

Eastern District of Kentucky, sitting by

designation.

we also affirm the district court's

decision to dismiss a suit brought by

Whitehouse involving these same facts.

Whitehouse applies commercial and

industrial paint and performs related

services at various locations throughout

‘the United States. It maintains a

central paint shop in Louisville,

Kentucky, consisting of three buildings

located on a three-acre site, where

various equipment is stored, cleaned, and

repaired. When Whitehouse employees

begin a new job, necessary equipment is

transported to the jobsite in a trailer;

the trailer then becomes a jobsite shop

for storing, cleaning, and repairing

equipment. After the job is finished,

the trailer is returned to the Louisville

facility.

As a member of the _ Louisville

Chapter of the Painting and Decorating

Contractors of America, Whitehouse has

recognized Local Union 1181 of the

International Brotherhood of Painters and

Allied Trades, AFL-CIO, as the official

bargaining agent of its non-management

employees for almost fifty years. aa

series of collective bargaining

agreements between the Contractors and

the Painters union has governed this

relationship, and requires that disputes

arising under the agreements be presented

to a Joint Trade Board, composed of

representatives from the Painters and the

Contractors, for resolution. When the

series of agreements began, Whitehouse

had only one employee in its Louisville

paint shop; as he was too old to enter

the apprentice program, he was. not

represented by the Painters. However,

Whitehouse began hiring additional paint

shop employees in the 1970's, and by

January 1990 it employed nine shop

workers. None of these employees paid

union dues, voted for a union

representative, or had official ties to

the Painters.

The particular agreement between the

Contractors and the Painters at issue in

this case covered the period between July

23, 1987 and July 22, 1990. It created

a a job classification, that of

"utility worker," and thereafter

Whitehouse began hiring utility workers

for its field jobs. However, prior to

January 1990, neither Whitehouse nor the

Painters recognized the paint shop

employees as utility workers, or treated

them as being covered by the bargaining

‘agreement. On January 8, 1990, General

Drivers, Warehousemen and Helpers Local

Union No. 89, affiliated with the

International Brotherhood of Teamsters,

Chesttoure, Warehousemen and Helpers of

America, AFL-CIO, filed a representation

petition with the National Labor

Relations Board seeking to represent the

nine paint shop employees. On January

25, Whitehouse responded by filing a unit

clarification petition with the NLRB in

which it sought to have the shop

employees added directly to the Painters

as an "accretion." On January 26, the

NLRB's Regional Director ordered the

cases consolidated and directed a

hearing; the Painters intervened in this

proceeding.

While the NLRB proceedings were

pending, the Painters filed a grievance

with the Joint Trade Board, accusing

Whitehouse of breaching its agreement by

assigning to non-union employees work

that should have been done by the

Painters. Specifically, the Painters

claimed the paint shop employees as union

members. On February 6, 1990, the Joint

Trade Board found that the paint shop

employees were covered by the "utility

worker" classification of the agreement.

On February 28, Whitehouse filed an

action in federal district court seeking

enforcement of the Joint Trade Board's

decision under the Federal Arbitration

Act. The Painters admitted all

allegations in their answer, and the

district court entered a judgment

confirming the decision on April 9.

However, neither the NLRB nor. the

Teamsters were aware of the district

court proceedings. Furthermore, when the

judgment was entered, the district court

did not know that other parties were

interested in the action.

Meanwhile, on January 29, 1990, the

NLRB held a hearing in the representation

cases. On April 9 -- the same day that

the district court entered judgment for

Whitehouse -- the Regional Director found

that Whitehouse's employees were not

covered by the agreement's "utility

worker" provision, and that the agreement

did not bar an election. He also

concluded that the paint shop employees

constituted a separate neiikibiet unit

from Whitehouse's other employees, and

directed an election to permit the shop

employees to vote on whether they wanted

to join the Teamsters. Whitehouse sought

a review of this decision, but on May 9,

the NLRB denied the request for review.

On May 22, the Teamsters won a secret

ballot election among the paint shop

employees; the Regional Director

subsequently certified the Teamsters as

the exclusive representative of the shop

employees.

On April 27, 1990, the Teamsters

filed a motion to intervene in the

district court proceeding. The district

court granted this motion on May 10 and

stayed its April 9 judgment. On June 26,

the NLRB filed motions to intervene, set

aside the judgment, and dismiss’ the

complaint. On January 29, 1991, the

district court concluded that the dispute

turned on the appropriate unit for

representation, and held that it lacked

jurisdiction to determine sxch an issue.

The district court also determined that

the NLRB's ruling took precedence over

the decision of the Joint Trade Board,

and dismissed the action with prejudice.

Whitehouse brought this timely appeal.

Shortly thereafter, on July 5, 1990,

the Teamsters attempted to bargain with

P 8

Whitehouse, but were refused. The

Teamsters then filed a charge of unfair

labor practice and, on August 17, the

NLRB's General Counsel alleged that

Whitehouse's refusal to bargain violated

the National Labor Relations Act, 29

U.S.C. §§ 158(a)(5) and (1). Whitehouse

responded that the NLRB's certification

of the Teamsters was invalid. On October

19, the NLRB issued a decision and order

granting the General Counsel's motion for

summary judgment. It concluded that

Whitehouse had given no good reason for

it to reexamine its representation

decision. Consequently, it determined

that Whitehouse had violated the law by

refusing to bargain with the Teamsters,

the legally recognized union. The NLRB

ordered Whitehouse to cease and desist

from refusing to bargain with the

Teamsters and from denying its employees

any of their legal rights; it also

required Whitehouse to bargain with the

Teamsters upon request. The NLRB then

applied to this court to enforce its

order, under 29 U.S.C. 160(3), and on

August 9, 1991, its petition was

consolidated with Whitehouse's' appeal

from the district court.

We shall first address the NLRB's

application for enforcement of its order.

Section 9(b) of the National Labor

Relations Act allows the NLRB to

determine "the unit appropriate for the

purposes of collective bargaining." 29

U.S.C. § 159(b). To determine whether

two groups of employees belong in the

same bargaining unit, the NLRB applies a

"community of interest test," which

includes the following factors:

‘ 10

(1) Similarity in skills,

interest, duties, and working

conditions; (2) functional

integration of the plant,

including interchange and

contact among employees; (3)

the employer's organizational

and supervisory structure; (4)

the bargaining history; and (5)

the extent of union

organization among the

employees.

Cc. V » 832 F.2d 356, 362

(6th Cir. 1987), cert. denied, 486 U.S.

1042 (1988). "The Board's unit

determination is conclusive if it is not

‘so unreasonable and arbitrary as to

exceed the board's power.'" LL.M. Berry

and Co. vy. NLRB, 668 F.2d 249, 251 (6th

Cir. 1982) (quoting ije ine, +.

564 F.2d 737, 743 (6th Cir. 1977)). See

also South Prairie Constr. Co. v. Local

627, Int'l Union of Operating Eng'rs, 425

U.S. 800, 805 (1976).

One option for the NLRB in making

unit decisions is to clarify an existing

unit by adding employees as an

"accretion," meaning that they would be

added to the unit directly, without

voting in a representation election.

Penn Traffic Co. v. NLRB, 546 F.2d 677

(6th Cir. 1976). Because accretion

limits employees' ability to choose their

own representatives, "'the accretion

doctrine should be applied

restrictively.'" International Ass'n of

Machinists v. NLRB, 759 F.2d 1477, 1480

(9th Cir. 1985) (quoting NLRB v. Sunset

House, 415 F.2d 545, 547 (9th Cir.

1969)). Thus, accretions are rarely

appropriate. "'A group of employees is

properly accreted to an existing

bargaining unit when they have such a

close community of interests with the

existing unit that they have no true

identity distinct from it,'" NLRB v. DMR

Corp., 795 F.2d 472 (5th Cir. 1986)

oie ——

(quoting NLRB v. St. Regis Paper Co., 674

F.2d 104, 107-08 (1st Cir. 1982))

(emphasis added by Fifth Circuit).

Because it concerns bargaining units, the

determination as to accretion is a

decision "involving the Board's

discretion and should not be set aside

unless a reviewing court is convinced

that the Board has acted in an arbitrary

and capricious manner." BV. :

Sweet Lumber Co., 515 F.2d 785, 794 (10th

Cir.) cert. denied, 423 U.S. 986 (1975).

The NLRB claims that the following

distinctions between the shop employees

and the field employees justify its

decision to treat shop employees as a

separate unit. The nine shop employees

work primarily at or from the Louisville

shop, while field employees work

primarily at customer jobsites. See NLRB

vy. American Seaway Foods, Inc., 702 F.2d

630, 633 (6th Cir. 1983) (office clericals

worked in main office; plant clericals

worked in warehouse). The field

employees are primarily supervised by

project directors at the jobsites, while

the shop employees are primarily

supervised by Shop Foreman Odell Sexton,

who has much greater authority over shop

employees than field employees. In

contrast to its usual method, Whitehouse

hires permanent shop employees without

utilizing the Painters' hiring hall.

Shop employees are paid from $5.15 to

$7.45 per hour, while utility workers

receive $4.60 to $4.80. Shop employees

receive company~-sponsored insurance

benefits; field employees derive benefit

from Painters' funds. Unlike field

employees, shop employees may participate

in a company-sponsored employee stock

ownership plan. See Automobile Club of

Mich. v. NLRB, 631 F.2d 82, 85 (6th Cir.

1989) ("differences in pay scales" justify

different units). Shop nplereds punch

time clocks and work from about 6 a.m. to

3 p.m.; field employees keep their time

on handwritten cards and work from 7 a.m.

to 4 p.m. See Mercy Hosp. of Buffalo v.

NLRB, 730 F.2d 75, 81 (2d Cir. 1984).

The NLRB also argues that the shop and

field employees have little contract with

one another. The parties' dispute over

these factual issues is quite involved;

we cannot explain their claims in full

without replicating the briefs.

Nonetheless, sufficient differences exist

to demonstrate that the NLRB did not

abuse its authority by designating the

shop employees a separate bargaining

unit.

Moreover, neither Whitehouse nor the

Painters ever indicated that the shop

employees should be union members until

the Teamsters filed their petition.

Employees may be added by unit

Clarification where, as in the

creation of new job [sic],

their existence was unforeseen

and they are functionally

identical to employee

classifications included within

the existing unit. Employees

cannot be added by unit

Clarification, however, where

they intentionally and

historically were excluded from

the existing bargaining unit.

NLRB _ v. Mississippi Power & Light Co.,

675 F.2d 267, 279 (5th Cir. i985)

(emphasis in original); see also Wallace-

Murray Corp., 192 NLRB 1090 (1971). In

this case, the shop employees' werk

changed gradually over twenty years, and

thus, their existence was not unforeseen

when the “utility worxer" category was

established. Neither Whitehouse nor the

Painters considered the shop employees to

be covered by their contract until the

Teamsters appeared on the scene.

Accretion under such circumstances is not

appropriate. See also Saints Mary and

Lizab sp. _v. NLRB, 808 F.2d 1211,

1212 (6th Cir. 1987).

Whitehouse attempts to avoid the

strict guidelines on accretion by

Claiming that the NLRB has turned a work

Jurisdiction issue into a

representational issue. Tt maintains

that under the terms of its collective

bargaining agreement the only issue

involved in cases of this type is whether

the work performed by the central paint

shop falls within the jurisdiction of the

Painters. It makes a similar claim in

its appeal from the district court. We

reject this argument. For this court to

consider this case an honest dispute

between Whitehouse and the Painters over

the status of these nine employees, we

would have to ignore almost all of the

relevant facts. For the past twenty

years, the shop employees have grown in

number and responsibility, yet they were

never considered to be union members.

Even after the 1987 contract introduced

the provision covering utility workers,

the shop employees were not treated as

union members. Only when the Teamsters

attempted to represent the shop employees

did the Painters suddenly try to claim

them. Thus, the real dispute, and the

only dispute, is whether these nine

employees will be represented by the

Teamsters or the Painters. This is a

question of the appropriate bargaining

unit, which Congress has refused to leave

in the realm of contract interpretation.

Whitehouse also attempts to

demonstrate that the nine employees in

question meet the five parts of the

community of interest test. But this

- 18

issue is not for us to decide. We merely

determine whether the NLRB has abused its

discretion by certifying a particular

unit. See NLRB v. Continental Corp. of

Mich., 612 F.2d 257, 259 (6th Cir. 1979)

("We do not necessarily believe that the

Board acted wisely in approving this

bargaining unit. We do believe that it

was within the Board's discretion to make

the choice it did.").

Finally, Whitehouse asserts that the

NLRB's decision is defective in this case

because it failed to comply with its own

rules. Section 11052.1 of the NLRB's

Casehandling Manual for representation

proceedings provides that the NLRB will

defer to the dispute resolution

proceedings of the AFL-CIO whenever two

Or more AFL-CIO affiliates are involved

in a representation battle. Since both

the Teamsters and the Painters belong to

the AFL-CIO, Whitehouse complains that

the NLRB violated its own procedures.

However § 11502.1 applies only when one

of the unions in dispute has_= an

"established bargaining relationship"

governing the “employees involved."

Since the Painters never established such

a relationship with the employees in this

case, the rule does not apply.

Itt

Next, we turn to the propriety of

the district court's determination that

Whitehouse's attempt to enforce the

decision of the Joint Trade Board should

be dismissed. The district court

reasoned that while it has jurisdiction

to decide cases involving breaches of

collective bargaining agreements, "[i]t

does not have jurisdiction to decide the

representational status of a bargaining

unit." Because the district court

concluded that "the dispute centers on

the appropriate unit to represent the

paint shop employees," it dismissed the

case.

Whitehouse contends that this

dispute is governed by tthe Federal

Arbitration Act, 9 U.S.C. § 1 et seq.

The Act provides for judicial enforcement

of arbitration awards whenever both

parties have agreed on arbitration and

agreed as to the enforcing court.

Whitehouse argues that the district court

below violated this provision by refusing

to enforce the decision of the Joint

Trade Board, and also violated a national

policy favoring arbitration. See

Southland Corp. v. Keating, 465 U.S. 1,

10-16 (1984).

We agree with Whitehouse that

arbitration clauses are widely favored in

the law. We also recognize that district

courts have a general jurisdiction over

contract disputes. However, as stated

earlier, representation issues of this

kind are within the NLRB's exclusive

jurisdiction. In International Bhd. of

Boilermakers Local 852 v. Olympic Plating

Indus., 870 F.2d 1085, 1089 (6th Cir.

1989), we held that the federal courts

should decline to exercise jurisdiction

over contract disputes that can be

resolved before the NLRB:

This outcome is particularly

appropriate because the instant

NLRB proceeding involves a

representation issue, i.e., a

determination of which union

should represent the S88

employees. ... That [the union]

has characterized the instant

claim as a § 301 {of the Labor

Management Relations Act]

contract claim is of no

consequence.