NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0395n.06
Case No. 16-3737
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jul 03, 2017
DEBORAH S. HUNT, Clerk
DHSC, LLC, d/b/a Affinity Medical Center, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
CALIFORNIA NURSES ) OHIO
ASSOCIATION/NATIONAL NURSES )
ORGANIZING COMMITTEE, AFL-CIO, )
)
Defendant-Appellee. )
____________________________________/
Before: MERRITT, GILMAN, and DONALD, Circuit Judges.
MERRITT, Circuit Judge. In this case brought under the Labor Management Relations
Act by plaintiff DHSC, LLC, d/b/a Affinity Medical Center (“Affinity”), against the California
Nurses Association/National Nurses Organizing Committee, AFL-CIO (“Union”), Affinity
claims that the Union violated a so-called “implied” agreement to arbitrate election disputes by
filing charges with the National Labor Relations Board (“Board”). The district court dismissed
Affinity’s complaint for lack of subject-matter jurisdiction because federal case law holds that it
cannot exercise jurisdiction over “primarily representational” claims that have been decided by
the Board. On appeal, Affinity argues that its claim is not primarily representational, but is
instead a matter of contract interpretation within federal court jurisdiction.
Case No. 16-3737, DHSC, LLC v. California Nurses Association
We agree with the district court that this case has been decided by the National Labor
Relations Board. Although Affinity characterizes its complaint as presenting a contract
interpretation issue, this case is fundamentally about whether the Union was properly elected and
certified as the bargaining representative of Affinity’s employees. The Board expressly rejected
Affinity’s argument that relies on the alleged existence of an implied agreement to arbitrate
representational disputes. That decision is now on appeal to the D.C. Circuit as part of the
Union’s unfair labor practices claim against Affinity.
Alternatively, we find that Affinity signed an express agreement recognizing the Board’s
authority over representational disputes, and this agreement makes it clear that no implied
agreement to arbitrate representational disputes exists. Accordingly, we affirm the judgment of
the district court.
I. Factual and Procedural Background
Affinity Medical Center is a medical facility in Massillon, Ohio that employs registered
nurses. In early 2012, the nurses explored joining a labor union, the California Nurses
Association. During that time, the Union and Affinity negotiated a “Labor Relations
Agreement” to govern the organization efforts of the nurses. The Labor Relations Agreement
provided that “[t]he Parties agree to submit any unresolved disputes about [the Agreement] to
final and binding arbitration[.]” The Labor Relations Agreement also incorporated a document
called the “Election Procedure Agreement” that stated, “[i]f the parties are unable to resolve a
dispute, either party may . . . submit the unresolved dispute about [the election procedures] for
final and binding resolution by . . . the permanent Arbitrator[.]” But neither the Labor Relations
Agreement nor the Election Procedure Agreement was ever signed or executed by the parties.
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Case No. 16-3737, DHSC, LLC v. California Nurses Association
Subsequently, the initial negotiations between the parties soured. On August 20, 2012,
the Union directly petitioned the National Labor Relations Board to represent the nurses as their
exclusive bargaining representative in the negotiations with Affinity. Two days later, both
Affinity and the Union signed a “Consent Election Agreement” using the Board’s standard form,
which the Board’s Regional Director approved. This agreement recognized the Regional
Director, not an arbitrator, as the final authority over representational disputes. Paragraph 12 of
the Consent Election Agreement states:
Objections to the conduct of the election or conduct affecting the results of the
election, or to a determination of representation based on the results of the
election, may be filed with the Regional Director within 7 days after the tally of
ballots has been prepared and made available to the parties . . . . The method of
investigation of objections and challenges, including whether to hold a hearing,
shall be determined by the Regional Director, whose decision shall be final.
(emphasis added). At the time of the agreement’s signing, neither party informed the Regional
Director of any prior agreements governing election disputes.
On August 29, 2012, the Board’s Regional Office conducted an election to determine
whether the Union would represent the nurses. The Union received one hundred votes, while
ninety-six votes were cast against it. Although the Union won the election to represent the
nurses, Affinity challenged the legitimacy of seven of the ballots. Since seven ballots could have
swung the vote, the Board’s Regional Director launched an investigation into the election. On
September 7, 2012, the Regional Director requested that Affinity provide supporting evidence
for its objections regarding the election, warning that a failure to do so “will result in [Affinity’s]
objections being overruled without further investigation.” Despite the warning, Affinity
provided no evidence to support its objections, nor did it request a time extension to submit
evidence. On September 21, 2012, the Regional Director issued a “Report on Challenged Ballots
and Objections,” recommending that Affinity’s objections be overruled because it did not submit
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any evidence. The Report allowed four of the seven challenged ballots to be counted, which did
not change the outcome of the election. Accordingly, a majority of the voters were still in favor
of unionizing, and, on October 5, 2012, the Regional Director certified the Union as the National
Labor Relations Act Section 9(a) representative of the Affinity nurses. 29 U.S.C. § 159(a).1
The Union, in its capacity as the nurses’ representative, attempted to begin bargaining
with Affinity. Affinity allegedly refused to bargain with the Union and denied the Union
representatives access to Affinity’s facilities. Affinity also allegedly took adverse actions against
nurses who had been associated with organizing activities. The Union consequently filed
charges with the National Labor Relations Board, alleging that Affinity’s actions amounted to
unfair labor practices. Responding to the charges, the National Labor Relations Board’s Office
of General Counsel investigated and issued a complaint on March 29, 2013, alleging that
Affinity had violated the National Labor Relations Act. Among Affinity’s defenses to the
General Counsel’s complaint was the argument that the Board’s certification of the Union was
unenforceable because “the election was conducted pursuant to . . . an oral ‘ad hoc’ agreement
by which the parties gave exclusive jurisdiction to determine challenged ballots and objections to
an arbitrator[.]” DHSC, LLC, 2013 NLRB LEXIS 483, at *7 (April 30, 2015). Affinity claimed
that the prior negotiations between the parties had implied the existence of a binding agreement
to arbitrate election disputes despite the failure to execute any such agreement.
On July 1, 2013, an Administrative Law Judge assigned to the case rejected all of
Affinity’s defenses, finding that Affinity had violated multiple provisions of the National Labor
Relations Act through its conduct toward the Union and Affinity’s own employees. Id. at *82–
1
Section 9(a) of the National Labor Relations Act states: “Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive
representatives of the employees in such unit for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment. . . .” 29 U.S.C. § 159(a).
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Case No. 16-3737, DHSC, LLC v. California Nurses Association
83. Addressing Affinity’s affirmative defense concerning an oral “ad hoc” agreement to
arbitrate, the Judge found that Affinity had waived the argument by failing to submit evidence of
such an agreement to the Board’s Regional Director and by entering into the Consent Election
Agreement that gave final authority over election disputes to the Regional Director. See id. at
*7–8.
On April 30, 2015, a three-member panel of the Board, reviewing the findings of the
Administrative Law Judge, issued a decision for the Union, finding that Affinity had violated the
National Labor Relations Act. DHSC, LLC, 362 NLRB No. 78, 2015 WL 1956191, at *1 (April
30, 2015). The panel still rejected Affinity’s defense that an implied agreement had given
authority to an arbitrator to determine election disputes instead of the Board. See id. at *1 n.3
(“[W]e reject on different grounds [Affinity’s] defense that an oral ad hoc agreement between the
parties gave exclusive jurisdiction to an arbitrator to determine the complaint allegations.”). In
addition to finding that no formal agreement to arbitrate existed, the panel also found there was
not “a long and productive collective bargaining relationship” between the parties that would
imply the existence of such an agreement. See id. Affinity’s appeal of that decision and the
Board’s cross-application for enforcement of the order are currently pending before the United
States Court of Appeals for the District of Columbia Circuit.2
Affinity also filed an Amended Complaint in the United States District Court for the
Northern District of Ohio, alleging that the Union was liable under Section 301 of the Labor
Management Relations Act, 29 U.S.C. § 185(a), for breaching the so-called “ad hoc” or
“implied” agreement to submit election disputes to arbitration. Despite the failure to sign any
arbitration agreement and the execution of the “Consent Election Agreement” provided by the
2
The case, DHSC, LLC v. NLRB, Nos. 15-1426, 15-1499, is in abeyance pending the resolution of another case
before the D.C. Circuit, Hospital of Barstow v. NLRB, Nos. 16-1289, 16-1343.
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Board, Affinity’s complaint alleged that the parties agreed to arbitration and that the Union
“breached the Agreement by, among other acts and conduct, failing and refusing to submit
unresolved disputes to final and binding arbitration as required by the Agreement.” Affinity
requested relief in the form of damages and interest for the Union’s alleged breach of the
“implied contract,” an order that the Union submit to arbitration, a declaratory judgment to that
effect, an order for a speedy hearing pursuant to Fed. R. Civ. P. 57, and attorneys’ fees.
On December 4, 2015, the Union filed a motion to dismiss Affinity’s district court claim
for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), which the court
construed as a Rule 12(c) motion for judgment on the pleadings. The district court granted the
motion to dismiss, reasoning that the Board had already decided the fundamental issues in the
claim Affinity presented. The court recognized that labor claims deemed to be “primarily
representational” disputes are under the primary jurisdiction of the Board, and found that
Affinity “failed to identify any disputes that [fell] outside primarily representational
preemption.”
Now on appeal, Affinity continues to challenge the district court’s finding that the
National Labor Relations Board has already exercised exclusive jurisdiction over the
representational dispute at the center of the complaint. Affinity argues that the Union breached
an implied agreement to arbitrate election disputes “by refusing to join Affinity in requesting that
the Board hold resolution of its unfair labor practices in abeyance or submit its challenges in
arbitration” and “breached the parties [sic] Implied Agreement regarding post-election access.”
Accordingly, Affinity asserts on appeal that the dispute cannot be “primarily representational”
because it involves only pre-election and post-election conduct. In a related argument, Affinity
contends that the issue before the court is primarily one of contract interpretation, and that the
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Board’s certification of the election and Union’s status as the nurses’ representative are merely
peripheral issues.
II. Analysis
We review de novo a district court’s decision to dismiss a complaint for lack of subject-
matter jurisdiction. Joelson v. United States, 86 F.3d 1413, 1416 (6th Cir. 1996). Federal courts
are courts of limited jurisdiction, and the plaintiff has the burden of proving jurisdiction to
survive a motion to dismiss. See Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 474 (6th Cir.
2008). That jurisdiction extends only to cases that the Constitution and Congress have
empowered the federal courts to resolve. See id. To comply with jurisdictional boundaries, a
plaintiff “must allege in his pleading the facts essential to show jurisdiction . . . [and] must carry
throughout the litigation the burden of showing that he is properly in court.” McNutt v. Gen.
Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936).
Section 301(a) of the Labor Management Relations Act provides district courts with
jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization
representing employees[.]” 29 U.S.C. § 185(a). This jurisdiction includes the power to grant a
contracting party “specific enforcement of an arbitration clause in a collective-bargaining
agreement.” Buffalo Forge Co. v. United Steelworkers of Am., 428 U.S. 397, 420 (1976). In
reviewing such claims under Section 301(a), “a court’s role is limited to deciding if the party
seeking arbitration is making a claim which on its face is governed by the contract.” Int’l Bhd. of
Elec. Workers, Local 71 v. Trafftech, Inc., 461 F.3d 690, 693 (6th Cir. 2006) (quoting Gen.
Drivers, Salesmen & Warehousemen’s Local Union No. 984 v. Malone & Hyde Inc., 23 F.3d
1039, 1043 (6th Cir. 1994) (internal quotation marks omitted)).
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Case No. 16-3737, DHSC, LLC v. California Nurses Association
However, while district courts have concurrent authority over collective bargaining
disputes between unions and employers, the federal courts must recognize the primary
jurisdiction of the National Labor Relations Board over disputes concerning employees’ right to
organize. See San Diego Bldg. Trades Council, Millmen’s Union, Local 2020 v. Garmon,
359 U.S. 236, 244–45 (1959). A dispute is representational when it “implicates an employer’s
statutory duty . . . to bargain collectively with a union chosen under [Section 9(a) of the National
Labor Relations Act, 29 U.S.C. 159(a)].” United Steel, Paper, & Forestry, Rubber, Mfg.,
Energy, Allied Indus. and Serv. Workers Int’l Union v. Ky. W. Va. Gas Co., LLC, 795 F. Supp.
2d 596, 599 (E.D. Ky. 2011) (citing Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 266
(1964)). There is a strong policy presumption in favor of using the Board procedures to decide
disputes involving issues of union representation to promote industrial peace. See Amalgamated
Clothing & Textile Workers Union v. Facetglas, Inc., 845 F.2d 1250, 1252 (4th Cir. 1988).
To that end, the Supreme Court has recognized the Board as the tribunal of “exclusive primary
competence” for deciding representational labor issues. See Garmon, 359 U.S. at 244–45.
There are at least two circumstances where “primarily representational” disputes require
the exclusive jurisdiction of the Board: “where the Board has already exercised jurisdiction over
a matter and is either considering it or has already decided the matter, or where the issue is an
initial decision in the representation area[.]” See Trafftech, Inc., 461 F.3d at 695 (internal
citations and quotation marks omitted). Meanwhile, matters primarily concerning contract
interpretation remain within federal court jurisdiction. See id. at 695 (citing Paper, Allied-Indus.,
Chem. & Energy Workers Int’l Union v. Air Prods. & Chems., Inc., 300 F.3d 667, 675 (6th Cir.
2002)). Accordingly, where a dispute is brought under Section 301 of the Labor Management
Relations Act, the district court properly defers to the primary jurisdiction of the Board if (1) the
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Board has exercised jurisdiction over a dispute involving representation, or (2) resolving the
dispute requires an initial decision in the representation area. See DiPonio Constr. Co., Inc. v.
Int’l Union of Bricklayers & Allied Craftworkers, Local 9, 687 F.3d 744, 750 (6th Cir. 2012). In
the present case, Affinity’s complaint is “primarily representational” under both prongs, and is
therefore under the primary jurisdiction of the Board.
Turning to the first of the two “primarily representational” prongs, we ask whether or not
the National Labor Relations Board has already exercised jurisdiction over the issue at the center
of Affinity’s complaint, namely: did the Union breach an implied contract with Affinity by
pursuing unfair labor practices violations with the Board instead of with an arbitrator? If the
Board “has already exercised jurisdiction over a matter and is either considering it or has already
decided the matter,” the dispute is deemed primarily representational. See Trafftech, 461 F.3d at
695. We agree with the district court that the Board has already exercised its jurisdiction over
this issue.
On October 5, 2012, the Regional Director of the Board, pursuant to his final authority
over election challenges outlined in the Consent Election Agreement signed by both parties,
certified the Union as the nurses’ representative. In April 2015, a three-member panel of the
Board issued a decision explicitly rejecting Affinity’s arguments concerning an “oral ad hoc
agreement” to arbitrate the election challenges. See DHSC, LLC, 2015 WL 1956191, at *1 n.3
(citing Ariz. Portland Cement Co., 281 NLRB 304, at *1 n.2 (1986)) The district court in the
present case found that when the Board addressed Affinity’s argument during the 2015 case, the
Board determined whether election challenges should be decided by the Board or an arbitrator.
Thus, the district court reasoned that the Board “definitively decided” the dispute brought in
Affinity’s complaint.
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On appeal, Affinity claims the district court was in error because Affinity does not
technically seek to undo the Board’s certification of the election, but instead asserts breaches of
contract that occurred before and after the election. Affinity argues that by allowing a union to
breach an implied contract with an employer and then “strip federal courts of subject-matter
jurisdiction to hear such disputes (if [Board] proceedings are subsequently initiated),” a union
can simply file a petition with the Board to deny an employer a forum to hear its contract claim.
Affinity’s timing argument is unconvincing. The plain language of the statute outlining
the Board’s jurisdiction says nothing about limitations on whether the conduct occurs before or
after a Board-certified election. See 29 U.S.C. § 159(c)(1). The statute reads in relevant part:
Whenever a petition shall have been filed, in accordance with such regulations as
may be prescribed by the Board . . . [,] 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.
29 U.S.C. § 159(c)(1). The Board’s jurisdiction, pursuant to the above statute, kicked in as soon
as the Union filed its original election petition. The Board then decided the issue at the center of
this dispute – whether the Union was properly elected as the representative of the nurses. Since
at least the time it began considering the election of the Union, the Board had primary
jurisdiction over representational disputes between the parties, including those in the present
case. See Trafftech, Inc., 461 F.3d at 695. Affinity cannot cite convincing support that this is the
incorrect result.
Moreover, the original unfair labor practices suit brought by the Union is now pending on
appeal before the D.C. Circuit. In that proceeding, an appellate court will be able to review
Affinity’s challenges to the election. The district court below recognized that it couldn’t
effectively reverse the Board’s resolution of the question “whether the Board can decide the
election challenges.” That issue must instead work its way through the proper procedures in the
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D.C. Circuit. See Bakers Union Local No. 4 of Greater St. Louis v. Schnuck Baking Co. Inc.,
614 F. Supp. 178, 182 (E.D. Mo. 1985) (finding that a district court cannot compel arbitration
between an employer and a union on an issue of representation that has been decided by the
Board).
Turning to the second “primarily representational” prong, the Board has primary
jurisdiction over labor disputes requiring “an initial decision in the representation area.” See
DiPonio Constr. Co., Inc., 687 F.3d at 750 (quoting Hotel & Rest. Emps. Union Local 217 v. J.P.
Morgan Hotel, 996 F.2d 561, 565 (2nd Cir. 1993) (brackets omitted)). Although Affinity frames
its complaint as: “whether the Union breached an implied contract by pursuing unfair labor
practices violations with the Board instead of an arbitrator,” the complaint actually requires the
district court to determine whether the Board has the authority to decide election challenges, and
therefore the outcome of the election itself. See Trafftech, Inc., 461 F.3d at 695 (“[W]here the
court could not possibly determine whether there has been a violation of the collective
bargaining agreement without first deciding whether the union was elected as the employees’
bargaining representative, the district court should not exercise jurisdiction” (quoting
Amalgamated Clothing & Textile Workers Union, 845 F.2d at 1253) (internal quotation marks
omitted)). At its core, Affinity’s challenge to the Board’s authority over the election is a
challenge to the Union’s representational rights. To fulfill Affinity’s claim for relief, a court
would have to revoke the Board’s certification of the Union as the nurses’ representative.
Affinity asserts that the district court could have granted relief without reaching an initial
decision concerning representation, arguing that the complaint involves contract interpretation
and not the Union’s election. In arguing that this is a case fundamentally about whether a
contract exists, Affinity relates the case to labor disputes where representational issues are
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peripheral. See Dist. No. 1, Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n v. Liberty Mar.
Corp., 815 F.3d 834, 843 (D.C. Cir. 2016). Affinity claims that its argument concerning the so-
called “implied” agreement is outside the scope of the board decision currently before the D.C.
Circuit. See Int’l Union of Operating Eng’rs, Local 18 v. Laborers’ Int’l Union of N. Am.,
580 F.App’x 344, 346 (6th Cir. 2014). In Affinity’s view of the case, the district court below
needed only to decide whether an actual agreement existed and whether the Union violated it.
It is true that when an arbitration clause is merely “related” to labor representation issues,
the federal courts do not necessarily lack jurisdiction to hear the claim. See Carey, 375 U.S. at
268. This court, following Supreme Court precedent, has held that “even if the contract dispute
involves a representational question, and ‘even though an alternative remedy before the Board . .
. is available,’ under Section 301(a) of the [Labor Management Relations Act], federal courts
have jurisdiction to enforce an arbitration clause.” Paper, Allied Indus., Chem. & Energy
Workers Int’l Union, 300 F.3d at 673 (quoting Carey, 375 U.S. at 268.). The mere fact that an
arbitral award might lead to eventual conflict with a Board’s ruling is not in itself a barrier to
pursuing a claim in the district courts. See Carey, 375 U.S. at 268. Accordingly, “the [Board]
and federal courts may have concurrent jurisdiction over some disputes” brought under Section
301 of the Labor Management Relations Act. See DiPonio Constr. Co., Inc., 687 F.3d at 749.
This court has characterized these circumstances where the federal courts can exercise
concurrent jurisdiction as “collaterally representational” disputes. See Trafftech, Inc., 461 F.3d
at 695.
The circumstances do not indicate that the case before us is a “collaterally
representational” contract dispute. See Int’l Bhd. of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, & Helpers v. Olympic Plating Indus., Inc., 870 F.2d 1085, 1089 (6th Cir.
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1989) (declining to exercise jurisdiction over a preempted dispute that is disguised as a breach of
contract claim). Instead, this case is fundamentally about whether or not the Union is a
legitimate representative of the nurses. Affinity has couched the complaint as a breach of
contract claim, but that does not change the reality of the case. “When a dispute is primarily
representational . . . simply referring to the claim as a ‘breach of contract’ is insufficient for the
purposes of § 301 federal courts’ jurisdiction.” Trafftech, Inc., 461 F.3d at 695 (citing Paper
Workers Int’l Union, 300 F.3d at 675) (brackets and internal quotation marks omitted).
Affinity’s claim appears to be an attempted “end run” around the proper procedures for deciding
these disputes. See Olympic Plating Indus., Inc., 870 F.2d at 1089.
That there is a representational issue at the heart of this complaint is obvious from
Affinity’s requests for relief. Affinity seeks specific performance of the so-called “implied”
agreement’s terms, including submission of unresolved disputes to arbitration, and a declaratory
judgment to that effect. Affinity claims that, to award relief, a district court need only decide
whether an actual agreement existed. But this “initial decision” about whether or not the implied
agreement exists effectively decides the representational question of whether the Union was
legitimately elected. The Board’s decision in the original unfair labor practices suit relied on the
factual predicate that the Union was properly elected as the nurses’ representative. Similarly, in
the present case, the status of the Union as the nurses’ representative is a determination that
would have to be made to decide whether to compel the parties to arbitrate. The Board has
exclusive competence to make such a status determination, and therefore has primary jurisdiction
in this case. See Garmon, 359 U.S. at 245.
Affinity also argues that the legislative history of Labor Management Relations Act
Section 301, 29 U.S.C. § 185, proves that Congress did not intend for the district court to decline
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jurisdiction in this case. The purpose of Section 301 was to expand the availability of forums to
hear disputes about employer-union agreements. See Charles Dowd Box Co. v. Courtney, 368
U.S. 502, 508 (1962). However, Affinity was not denied a forum to hear its claim that the
contract existed, as the issue was put to the Board in 2015. See DHSC, LLC, 2015 WL 1956191,
at *1 n.3. While there is a congressionally developed presumption in favor of arbitration in cases
that turn on interpretations of collective bargaining agreements, the Board has already decided
that no such agreement existed between the parties here. The purpose of Section 301 is not “‘to
vest in the courts initial authority to consider and pass upon questions of representation and
determination of appropriate bargaining units’ under the guise of interpreting the collective
bargaining agreement.” Local Union 204 of Int’l Bhd. of Elec. Workers v. Iowa Elec. Light &
Power Co., 668 F.2d 413, 418 (8th Cir. 1982) (quoting Local 3-193 Int’l Woodworkers of Am. v.
Ketchikan Pulp Co., 611 F.2d 1295, 1301 (9th Cir. 1980) (footnote omitted)). The case before us
turns on a jurisdictional question and not on contractual language. See Wright v. Universal Mar.
Serv. Corp., 525 U.S. 70, 78–79 (1998). Accordingly, the legislative history of Section 301 does
not create a presumption toward arbitration here.
Finally, Affinity’s challenge to the Board’s authority to make election decisions is
seriously undermined by the fact that it signed an agreement explicitly giving the Board’s
Regional Director the final authority to rule on election challenges and objections. To once
again quote the Consent Election Agreement, signed and executed by both parties: “Objections
to the conduct of the election or conduct affecting the results of the election, or to a
determination of representation based on the results of the election, may be filed with the
Regional Director . . . whose decision shall be final.” This decisive language should end the
matter. Accordingly, we AFFIRM the judgment of the district court.
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