FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTERNATIONAL UNION OF
PAINTER AND ALLIED TRADES,
DISTRICT 15, LOCAL 159,
Petitioner-Appellant, No. 08-17089
v. D.C. No.
J&R FLOORING, INC., dba J. Picini 2:07-cv-01677-
Flooring; FREEMAN’S CARPET RLH-PAL
SERVICE, INC.; FCS FLOORING, INC.; OPINION
FLOORING SOLUTIONS OF NEVADA,
INC., dba FSI,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief District Judge, Presiding
Argued and Submitted
December 10, 2009—San Francisco, California
Filed July 30, 2010
Before: Mary M. Schroeder and Consuelo M. Callahan,
Circuit Judges, and Barbara Lynn,* District Judge.
Opinion by Judge Schroeder
*The Honorable Barbara Lynn, United States District Judge for the
Northern District of Texas, sitting by designation.
11015
11018 INTERNATIONAL UNION v. J&R FLOORING
COUNSEL
David A. Rosenfeld, Alameda, California, for plaintiff-
appellant International Union of Painters and Allied Trades,
District 15, Local 159.
Gregorey E. Smith, Las Vegas, Nevada, for appellees J&R
Flooring, Inc., Freeman’s Carpet Service, Inc., and FCS
Flooring, Inc.
Thomas A. Lenz, Cerritos, California, for appellee Flooring
Solutions of Nevada, Inc.
OPINION
SCHROEDER, Circuit Judge:
This appeal raises interesting questions about the relation-
ship between the primary jurisdiction of the National Labor
Relations Board (“NLRB” or “the Board”) to determine repre-
INTERNATIONAL UNION v. J&R FLOORING 11019
sentational disputes and the scope of arbitration under a con-
struction industry collective bargaining agreement that,
together with a broad arbitration clause, also contains a provi-
sion about determining majority representation. The underly-
ing dispute involves whether the Union appropriately
established that it represented a majority of the employees
before the expiration of the agreement, so as to qualify for
recognition under Section 9(a) of the National Labor Rela-
tions Act (“NLRA” or “the Act”). If it did so, it would enjoy
a presumption of majority status giving rise to an obligation
on the part of the Employers to bargain for a new contract
with the Union.
The Union takes the position that it did establish majority
status, while the Employers say it did not. After originally fil-
ing a charge with the NLRB, the Union ultimately filed this
action to compel arbitration of the dispute in district court.
The Employers now take the position that the issue is properly
before the NLRB, where the Administrative Law Judge
(“ALJ”) ruled that the charges should be dismissed. The case
remains pending on appeal before the Board.
Under our Circuit’s law, the legal issue here is whether the
dispute is primarily representational or contractual. See Serv.
Employees Int’l Union, Local 399 v. St. Vincent Med. Ctr.,
344 F.3d 977, 982-83 (9th Cir. 2003). A primarily contractual
dispute would potentially be arbitrable, whereas a primarily
representational dispute would not be. Because we conclude
that this particular dispute is principally representational, we
affirm the district court’s decision dismissing the action on
the ground that the dispute falls within the primary jurisdic-
tion of the NLRB.
STATUTORY BACKGROUND
At issue in this case is whether the Union was the bargain-
ing agent for the employees pursuant to § 8(f) or § 9(a) of the
NLRA at the time the collective bargaining agreement
11020 INTERNATIONAL UNION v. J&R FLOORING
expired. Section 9(a) of the Act establishes that a union
selected by a majority of employees in a bargaining unit shall
be the employees’ exclusive bargaining representative. 29
U.S.C. § 159(a). Once a union has achieved § 9(a) majority
status, an employer’s obligation to bargain with the union
continues beyond the term of any particular collective bar-
gaining agreement. This is the result of long-standing Board
policy. See Levitz Furniture Co. of the Pacific, Inc., 333
NLRB 717, 721 (2001).
In most industries, it is an unfair labor practice for an
employer to bargain with a union that does not have majority
support, or for an employer to promise a union that it will
require prospective employees to join the union as a condition
of employment. NLRB v. Local Union No. 103, 434 U.S. 335,
344-45 (1978). The construction industry, however, operates
under its own set of statutory rules. In 1959, Congress recog-
nized that the short-term nature of the industry’s hiring often
precluded unionization pursuant to § 9(a), and responded by
adding § 8(f) to the NLRA. See 29 U.S.C. § 158(f); Todd v.
Jim McNeff, Inc., 667 F.2d 800, 801-02 (9th Cir. 1982). Sec-
tion 8(f) provides that employers may enter into a prehire
agreement requiring union membership as a condition of
employment, notwithstanding the union’s lack of majority sta-
tus. Todd, 667 F.2d at 801-02. Though it is easier for unions
to organize under § 8(f), it is Board policy that unions formed
under that provision do not enjoy a presumption of majority
status once the collective bargaining agreement expires; at
that point in time, the § 8(f) relationship is terminable by
either party. John Deklewa & Sons, 282 NLRB 1375, 1387
(1987), enforced sub nom. Iron Workers Local 3 v. NLRB,
843 F.2d 770 (3d Cir. 1988); Madison Indus. Inc., 349 NLRB
1306, 1307-08 (2007).
Because of the more tenuous nature of representation under
§ 8(f), some unions that initially organize under that provision
attempt to convert to § 9(a) majority status, and the Board has
held that an employer may contractually agree to voluntary
INTERNATIONAL UNION v. J&R FLOORING 11021
recognition on the basis of the union’s showing of majority
support. Staunton Fuel & Material, Inc., 335 NLRB 717, 719-
20 (2001); Madison Indus., Inc., 349 NLRB at 1308. The par-
ties dispute in this case whether the union was successful in
effectuating such a conversion before the contract expired.
FACTUAL BACKGROUND
Defendants are four Nevada contractors engaged in com-
mercial and industrial flooring—J&R Flooring, Inc., Free-
man’s Carpet Service, Inc., FCS Flooring, Inc., and Flooring
Solutions of Nevada, Inc. (collectively, “the Employers”).
The Employers and plaintiff International Union of Painters
and Allied Trades, District Council 15, Local 159 (“the
Union”) operated for several years under the auspices of a
common collective bargaining agreement (“the agreement” or
“CBA”) governed by § 8(f). That agreement, effective Febru-
ary 1, 2004, through January 31, 2007, established a mecha-
nism through which the Union’s representation pursuant to
§ 8(f) could be changed to one governed by § 9(a).
The parties’ agreement, at Article 4, provides that the
Employer will recognize the Union if it has majority status
and will permit a card check conducted by a third party to
determine whether the Union has achieved majority status.
Article 4 of the CBA provides:
The Employer hereby recognizes the Union as the
sole and exclusive bargaining agent of employees
classified herein . . . . The Employer agrees that if a
majority of its employees authorize the Union to rep-
resent them in collective bargaining, the Employer
will recognize the Union as the NLRA Section 9(a)
majority collective bargaining agent for all employ-
ees performing work within the jurisdiction of this
Agreement. The Employer agrees furthermore upon
demand by the Union to submit to a third party card
check to determine the majority status of the Union.
11022 INTERNATIONAL UNION v. J&R FLOORING
Any disputes concerning this provision shall be
resolved by expedited arbitration under the terms of
this Agreement.
A “card check” is a voluntary method for determining
whether a union enjoys majority status without resort to a
Board-supervised election. See John E. Higgins, Jr., The
Developing Labor Law 733-34 (5th ed. 2006). In a typical
card check procedure, the union collects signature cards from
employees designating the union as their bargaining represen-
tative. Hotel Employees, Rest. Employees Union, Local 2 v.
Marriott Corp., 961 F.2d 1464, 1465-66 n.1 (9th Cir. 1992).
Once the union collects cards from a majority of employees
and presents them to the employer, generally a mutually
agreeable neutral party verifies the cards for authenticity. Id.
In addition to the card check provision, Article 22 of the
agreement establishes a general grievance and arbitration pro-
cedure. Article 22 creates a joint labor-management commit-
tee that is charged with hearing “disputes and grievance[s]
that may arise out of the application or interpretation” of the
agreement in the first instance, and also provides for arbitra-
tion where a “decision cannot be reached” in committee.
Two months before the parties’ § 8(f) agreement was due
to expire, the Union notified the Employers that it wished to
bargain for a new contract. In part because they were not all
represented by the same counsel, the Employers reacted dif-
ferently to the Union’s bargaining request. FSI steadfastly
refused to negotiate at all with the Union, announcing that it
did not want to enter into a new agreement. The other three
defendants—J&R Flooring, Inc., Freeman’s Carpet Service,
Inc., and FCS Flooring, Inc.—met with the Union but failed
to reach an agreement. The Union then announced to all the
Employers its intention to conduct a third-party card check in
accordance with Article 4 of the agreement, prior to the expi-
ration of the contract. All of the Employers refused to recog-
INTERNATIONAL UNION v. J&R FLOORING 11023
nize the Union as representing an employee majority, and
they continue to maintain they have no duty to bargain.
With respect to FSI, the Union requested that the parties
hold a card check on January 23, 2007. FSI responded that it
was not available on that date. On January 30, 2007, the day
before the agreement was set to expire, the Union faxed FSI
a letter informing the company that the Union was scheduling
the card check for noon that day at a local church, by Father
Menchaca, a third party selected by the Union. No FSI repre-
sentative appeared at the card check, and Menchaca con-
ducted the check and reported that twenty of FSI’s twenty-
two employees had signed the authorization cards. In the card
check, Menchaca compared the signatures on union authoriza-
tion cards to the names of employees listed on the most recent
remittance report submitted by FSI to the Union. Menchaca
did not compare the employees’ signatures on the cards to
other signature samples, as required by the Board’s decision
in Cascade General, 303 NLRB 656, 671 (1991). Nor did he
utilize the Daniel-Steiny formula, a formula that governs
which construction employees are eligible to participate in
card check procedures unless the parties stipulate not to use
it. See Signet Testing Laboratories, 330 NLRB 1, 1 (1999).
The formula provides that, in addition to employees on the
payroll immediately preceding an election, employees who
have worked a certain number of days in the two year period
preceding an election are eligible to participate.
Following the card check, the Union’s president, Jack Mal-
lory, personally delivered copies of the card check results to
FSI along with a follow-up email to FSI’s vice president,
Bryan Price, asking him to meet with Mallory the following
day, January 31, 2007, for contract negotiations. Price indi-
cated he could not meet at that time. On the 31st, the day of
the collective bargaining agreement’s expiration, the Union,
in its purported capacity as the § 9(a) collective bargaining
representative, sent a letter to FSI proposing available bar-
gaining dates. FSI did not respond and maintains that it has
11024 INTERNATIONAL UNION v. J&R FLOORING
no duty to bargain with the Union following the expiration of
the agreement.
The remaining three employers were all represented by the
same attorney and all initially bargained with the Union to
enter into a new contract. As of January 30, 2007, however,
the parties were unable to reach an agreement. The parties
met for a sixth session on January 31, at which time the Union
announced its intention to conduct a card check. The attorney
for the three employers objected to the card check on the
grounds that the remittance reports that the Union intended to
use were not current, his clients had not participated in the
selection of the third-party neutral, and at least two employees
had complained about the Union misinforming them of the
purpose of the cards. The attorney threatened to walk out of
the negotiations if the card check proceeded, and although the
Union stated that it would proceed with the card check regard-
less of the attorney’s presence, the employers and their attor-
ney left.
A third party selected by the Union, Maria Castillo Couch,
proceeded to conduct the card check. She compared the
names on the cards with the names listed on the remittance
reports and concluded that a majority of employees from each
of the three employers agreed to representation by the Union.
Couch then signed a card check certification to that effect.
Couch, like Menchaca, did not verify the signatures or use the
Daniel-Steiny formula.
The Union then sent a letter dated January 31, 2007, notify-
ing the three employers of the results of the card check and
suggesting dates for negotiations. Following the collective
bargaining agreement’s expiration, these employers have met
with the Union but have refused to accept the card check
results.
Thus, all four of the Employers refused to accept the card
check and refused to recognize the Union as representing a
INTERNATIONAL UNION v. J&R FLOORING 11025
majority of employees so as to give rise to any duty to bargain
under § 9(a) of the NLRA.
PROCEDURAL BACKGROUND
In February 2007, the Union filed unfair labor practice
charges with the NLRB against the four Employers. At that
time, neither the Union nor the Employers had suggested pur-
suing grievance and arbitration procedures concerning the
third-party card check. The Board’s General Counsel brought
charges against the Employers and the case proceeded to trial
before an ALJ. The charge against the Employers was they
had refused to comply with Article 4’s card check provision
and had thereby unlawfully refused to bargain. The ALJ
found for the Employers, holding in essence that the Union
could not rely on the card check results because it had not fol-
lowed Article 4’s further agreement to arbitrate disputes when
the Union and the Employers failed to agree on the card check
procedures. The Union’s appeal of the ALJ’s decision to the
Board is still pending. After the ALJ issued her decision in
September 2007, the Union filed this action in United States
district court seeking an order compelling arbitration. The
issues the Union identified for arbitration were “[w]hether the
union established its status as the majority representative
under § 9(a) pursuant to the terms of the contract? If so, what
is the appropriate remedy?”
The district court granted the Employers’ motions for sum-
mary judgment, denied the Union’s motion to compel arbitra-
tion, and dismissed the case for lack of jurisdiction. The court
found that the issue the Union proposed for arbitration was
primarily representational and thus fell within the primary
jurisdiction of the NLRB. The Union appeals the district
court’s dismissal to this court.
ANALYSIS
The fundamental issue is whether the parties are required
to arbitrate their disagreement over whether the Employers
11026 INTERNATIONAL UNION v. J&R FLOORING
have a duty to bargain. Whether the Employers have a duty
to bargain in turn depends on whether the Union established
it represented a majority of employees in accord with Article
4 of the agreement.
[1] Section 301 of the Labor Management Relations Act
(“LMRA”) creates a cause of action, enforceable in either
state or federal court, for violation of collective bargaining
agreements. 29 U.S.C. § 185(a); Charles Dowd Box Co., Inc.
v. Courtney, 368 U.S. 502, 506 (1962); Textile Workers v.
Lincoln Mills, 353 U.S. 448, 449-51 (1957). The courts are to
apply federal common law. Teamsters Local 174 v. Lucas
Flour Co., 369 U.S. 95, 103-04 (1962); Lincoln Mills, 353
U.S. at 456-57. The threshold question for evaluating jurisdic-
tion under Section 301 is whether there is an alleged breach
of contract. Carpenters Health & Welfare Trust Fund v. Tri
Capital Corp., 25 F.3d 849, 858 (9th Cir. 1994) (overruled in
part on other grounds). A contract for purposes of § 301 may
be a collective bargaining agreement or another agreement
“significant to the maintenance of labor peace” between a
union and an employer. Id.
The Supreme Court has long supported arbitration of labor
disputes involving disagreements over the interpretation of
collective bargaining agreements, beginning with the famous
Steelworkers Trilogy. See United Steelworkers v. American
Mfg. Co., 363 U.S. 564 (1960); United Steelworkers v. War-
rior & Gulf Navigation Co., 363 U.S. 574 (1960); United
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593
(1960). In the trilogy, the Supreme Court resolved several
related issues concerning enforcement of arbitration clauses
and awards, in each case finding in favor of arbitrability. In
American Manufacturing, the Supreme Court held that when
the parties have negotiated an arbitration clause, the function
of the enforcing court is limited to determining “whether the
party seeking arbitration is making a claim which on its face
is governed by the contract.” 363 U.S. at 568. In Warrior &
Gulf, the Court considered the scope of arbitrability, and held
INTERNATIONAL UNION v. J&R FLOORING 11027
that all questions on which parties disagree come within the
scope of arbitration unless specifically excluded, instructing
that “[d]oubts should be resolved in favor of coverage.” 363
U.S. at 581-83. Finally, in Enterprise Wheel, the Court con-
templated judicial review of arbitral awards, and established
a very deferential standard, holding that a reviewing court
should not refuse to enforce an award merely because it
would read the collective bargaining agreement differently
than the arbitrator. 363 U.S. at 597-99. The pro-arbitration
orientation first articulated in the Steelworkers Trilogy contin-
ues to be a foundational principle of our labor law. See John
E. Higgins, Jr., The Developing Labor Law 1419-24 (5th ed.
2006).
[2] At the same time, the Supreme Court has long recog-
nized that where a dispute involves allegations that an
employer has committed an unfair labor practice, the Board
exercises primary jurisdiction, and the federal courts “must
defer to [its] exclusive competence.” San Diego Bldg. Trades
Council v. Garmon, 359 U.S. 236, 245 (1959); see also
Commc’n Workers v. Beck, 487 U.S. 735, 742 (1988); Kaiser
Steel Corp. v. Mullins, 455 U.S. 72, 83 (1982) (“The Board
is vested with primary jurisdiction to determine what is or is
not an unfair labor practice.”); Garner v. Teamsters, 346 U.S.
485, 490-91 (1953). The doctrine of primary jurisdiction
stems from Congress’s statutory delegation of duties to the
Board, including the responsibility to interpret the NLRA in
the first instance, and to investigate and adjudicate petitions
for relief under the Act. See Garner, 346 U.S. at 490; see also
29 U.S.C. §§ 151-169.
[3] This Court has applied the doctrine of primary jurisdic-
tion in declining to consider representational disputes that the
NLRA commits to the Board’s expertise. See, e.g., Local No.
3-193 Int’l Woodworkers of America v. Ketchikan Pulp Co.,
611 F.2d 1295, 1298 (9th Cir. 1980) (finding designation of
an exclusive bargaining agent and the definition of an appro-
priate bargaining unit within primary jurisdiction of the
11028 INTERNATIONAL UNION v. J&R FLOORING
Board); United Ass’n of Journeymen v. Valley Eng’rs, 975
F.2d 611, 614-15 (9th Cir. 1992) (declining to exercise juris-
diction under § 301 where issue of illegal doublebreasting
already decided by the NLRB).
The Supreme Court has not had occasion to consider a
§ 301 action to enforce an agreement in which the parties
have contracted for a means of resolving representational
issues. This court, however, has decided such cases. Among
the leading cases in the country are our decisions in Hotel
Employees, Restaurant Employees Union, Local 2 v. Marriott
Corp., 961 F.2d 1464 (9th Cir. 1992), and Service Employees
International Union, Local 399 v. St. Vincent Medical Center,
344 F.3d 977 (9th Cir. 2003). See The Developing Labor Law
at 1443; Laura J. Cooper, Privatizing Labor Law: Neutrali-
ty/Card Check Agreements and the Role of the Arbitrator, 83
Ind. L.J. 1589, 1596-97 (2008); George N. Davies, Neutrality
Agreements: Basic Principles of Enforcement and Available
Remedies, 16 Lab. Law. 215, 217 n.11 (2000).
In Marriott, a hotel chain contemplating construction of a
major hotel in downtown San Francisco entered into a letter
agreement with the union that, inter alia, bound the employer
to accept the results of a card check and not to express any
opinion to employees about whether they should choose the
union as their representative. 961 F.2d at 1465-66. We held
that those provisions were enforceable under § 301. Id. at
1468-70.
The union in Marriott had also argued that the district court
should require the employer to provide access on its premises
for the union to meet with employees, as well as names,
addresses, and phone numbers of employees, even though the
parties had no agreement as to these matters. Id. at 1469.
Those issues therefore went to the general obligations of the
employer during the organizing process. We held that such
issues were within the primary jurisdiction of the Board:
INTERNATIONAL UNION v. J&R FLOORING 11029
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. Congress directed
the NLRB, not the courts, to determine an employ-
er’s obligations during the process of selecting a bar-
gaining representative.
Id. (internal quotations and citations omitted).
[4] Marriott is significant because it established the princi-
ple that parties may contractually agree upon matters that
would otherwise fall within the primary jurisdiction of the
Board. Id. at 1468 (“[W]hile the courts may not resolve repre-
sentational issues, the parties may resolve these issues con-
tractually.”); see also Cooper, 83 Ind. L.J. at 1597 (“Lower
federal courts have applied the Supreme Court’s broad inter-
pretation of the scope of Section 301(a) specifically to hold
that neutrality/card check agreements are enforceable in fed-
eral court.”) (citing our decision in Marriott as well as Hotel
& Rest. Employees Union, Local 217 v. J.P. Morgan Hotel,
996 F.2d 561, 567 (2d Cir. 1993)).
We also considered contractual provisions dealing with
organizational issues more than ten years later in St. Vincent.
344 F.3d at 977. In St. Vincent, the parties had negotiated
detailed provisions aimed at preserving employer neutrality
during an organizing campaign. Id. at 980. Both the union and
the employer agreed not to coerce, intimidate, or threaten
employees, and to “communicate only that which is factual.”
Id. The employer additionally agreed not to imply that
employees would face less favorable wages or working condi-
tions if they supported the union or to initiate one-on-one con-
versations with employees about unionization. Id. The
agreement also set forth two options for determining majority
representation: a secret-ballot election conducted by the par-
ties and observed by a jointly selected Election Officer, or an
11030 INTERNATIONAL UNION v. J&R FLOORING
election conducted by the NLRB under the recognition rules
established in the agreement. Id.
The parties in St. Vincent also agreed to a broad arbitration
clause that encompassed disputes over the neutrality provi-
sions. Id. When the Union lost the election, it filed a § 301
action claiming the employer had violated the neutrality pro-
visions, and seeking arbitration, but not contesting the elec-
tion result. Id. at 979, 986 n.7. The employer moved to
dismiss on the ground that the issues were within the primary
jurisdiction of the Board, and we were faced squarely with
questions very similar to those in this case.
We framed the inquiry in St. Vincent as whether those
issues were “primarily representational or primarily contractu-
al,” citing the test first squarely adopted by this Court in Val-
ley Engineers. Id. at 983 (citing Valley Engineers, 975 F.2d
at 613-14). Building upon Marriott, we first followed its hold-
ing that parties can contract about representational issues, not-
ing the detailed provisions in the St. Vincent agreement. Id. at
984. We observed that because the Union was not challenging
the election itself, there was nothing to trigger automatic
Board jurisdiction. Id. at 984-86. We held in St. Vincent that
nothing in the union’s claim would require the district court
or the arbitrator to “resolve any other representational issues
not already resolved by the parties.” Id. at 984. We thus con-
cluded that the dispute in St. Vincent was fundamentally con-
tractual in nature and ordered the parties to arbitration.
[5] Our inquiry in this case must be framed in the same
manner as we framed the inquiry in St. Vincent, i.e., whether
the dispute is fundamentally contractual or representational.
The Union, in seeking arbitration, attempts to characterize the
dispute at this point as contractual because it is about the card
check provision in an agreement with a broad arbitration
clause. The Employers say it is representational, looking at
the issue that the Union actually seeks to arbitrate, which is
INTERNATIONAL UNION v. J&R FLOORING 11031
whether the Union represents an employee majority. The
Employers have the stronger argument.
[6] Indeed, this particular dispute has never been about
interpreting the actual language of the card check provision.
When the Union originally filed unfair labor practice charges
against the Employers, it charged that the Employers had
refused to bargain after the Union had established majority
status under the card check provision. The ALJ held that the
Union had not complied with the card check provision and
therefore could not establish majority status. What the Union
seeks to arbitrate in this action is “[w]hether the union estab-
lished its status as the majority representative under § 9(a)
. . . .” The Union candidly acknowledged during oral argu-
ment that if and when the Board decides the representational
issue it will trump any arbitration outcome.
[7] Accordingly, we must conclude that in this case the
fundamental dispute between the parties is not contractual,
but is representational. We reach that conclusion from our
examination of the nature of the particular dispute within the
context of the particular provisions bargained for by the par-
ties. We do not accept the extreme argument of the Union that
so long as there is any contractual provision touching upon
representation, then all representational issues are arbitrable.
This position is contrary to St. Vincent, which recognized that
a dispute is not arbitrable where a party is seeking arbitration
of representational issues on which the contract is silent. See
344 F.3d at 984. Nor do we accept the extreme position of FSI
that so long as a dispute touches upon representational issues
it can never go to arbitration. It is foreclosed by Marriott’s
holding that contracts between unions and employers about
representational issues are enforceable under § 301. See 961
F.2d at 1468.
[8] We hold that where the parties have contractually
agreed only to use a card check to determine whether a union
has established its § 9(a) majority status, the issue of whether
11032 INTERNATIONAL UNION v. J&R FLOORING
the union established its § 9(a) status remains primarily repre-
sentational and within the NLRB’s primary jurisdiction. The
district court correctly ruled as a matter of law that the issues
were representational and within the primary jurisdiction of
the Board. The Union asked the district court to order arbitra-
tion of the issue of whether the Union had achieved majority
status. The contract, however, only provides that the Employ-
ers agree to submit to a third-party card check. It does not
specify any details about how the card check is supposed to
occur, and the parties failed to agree on a mutually acceptable
procedure, either through negotiation or arbitration. We do
not see how an arbitrator could possibly resolve the dispute as
framed by the Union without resorting to general principles
derived from our national labor policy. The arbitrator would,
for example, have to consider the validity of the Union’s uni-
lateral card check procedures under NLRB policy that pre-
sumptively applies the Daniel-Steiny eligibility formula. The
Board is better suited to such a task.
[9] The Union suggests that the Federal Arbitration Act
(“FAA”) provides an alternative basis for ordering arbitration
in this case in light of Circuit City Stores, Inc. v. Adams, 532
U.S. 105, 119 (2001) (reversing this Circuit’s exclusion of all
employment contracts from the reach of the FAA). We
assume, without deciding, that the FAA applies to collective
bargaining agreements in this Circuit after Circuit City. See
Poweragent, Inc. v. Elec. Data Sys. Corp., 358 F.3d 1187,
1193 n.1 (9th Cir. 2004) (recognizing unresolved issue). The
FAA would provide a basis for arbitrating a contractual dis-
pute, see 9 U.S.C. § 4, but this dispute is representational
rather than contractual. It therefore remains under the Board’s
primary jurisdiction.
[10] Finally, both the Union and the Employers have
requested attorneys’ fees on appeal. The authority cited by the
parties does not justify the award as a matter of course, and
we do not find the Union’s appeal to be frivolous. The
requests for fees are therefore denied.
AFFIRMED.