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.
J&R FLOORING, INC., dba J. Picini D.C. No.
2:07-cv-01677-
Flooring; FREEMAN’S CARPET RLH-PAL
SERVICE, INC.; FCS FLOORING, INC.;
FLOORING SOLUTIONS OF NEVADA,
INC., dba FSI,
Respondents-Appellees.
INTERNATIONAL UNION OF
PAINTER AND ALLIED TRADES,
DISTRICT 15, LOCAL 159,
Petitioner,
No. 10-72727
J&R FLOORING, INC.,
Intervenor, NLRB No.
28-CA-21229
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
16495
16496 INTERNATIONAL UNION v. J&R FLOORING
FLOORING SOLUTIONS OF NEVADA,
INC., DBA FSI,
Petitioner,
DISTRICT COUNCIL OF PAINTERS NO.
No. 10-73383
16,
Intervenor-Pending, NLRB No.
28CA-21233
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
NATIONAL LABOR RELATIONS
BOARD,
No. 10-73561
Petitioner,
v. NLRB No.
28-CA-21229
FLOORING SOLUTIONS OF NEVADA,
OPINION
INC., DBA FSI,
Respondent.
On Petitions for Review of an Order of the
National Labor Relations Board and
Appeal from the United States District Court
for the District of Nevada,
Roger L. Hunt, Chief District Judge, presiding
Argued and Submitted
July 14, 2011—San Francisco, California
Filed August 29, 2011
INTERNATIONAL UNION v. J&R FLOORING 16497
Before: Mary M. Schroeder and Consuelo M. Callahan,
Circuit Judges, and Barbara M. G. Lynn, District Judge.*
Opinion by Judge Schroeder
*The Honorable Barbara M. G. Lynn, District Judge for the United
States District Court for the Northern District of Texas, sitting by designa-
tion.
INTERNATIONAL UNION v. J&R FLOORING 16499
COUNSEL
David A. Rosenfeld, Alameda, California, for petitioner-
appellant International Union of Painter & Allied Trades, Dis-
trict, Council 15, Local 159.
Thomas A. Lenz, Cerritos, California, for respondent-appellee
Flooring Solutions of Nevada, Inc., dba FSI.
16500 INTERNATIONAL UNION v. J&R FLOORING
Gregory E. Smith, Las Vegas, Nevada, for respondents-
appellees J&R Flooring, Inc., et al.
Steven B. Goldstein, NLRB, Washington, D.C., for
respondent-petitioner National Labor Relations Board.
OPINION
SCHROEDER, Circuit Judge:
These consolidated cases arise out of a 2007 labor dispute
between the Painters Union and Nevada contractors over
whether the Union’s card check established its majority status
under the terms of the collective bargaining agreement
(“CBA”), thereby requiring the contractors to bargain with the
Union pursuant to Section 9(a) of the National Labor Rela-
tions Act (“NLRA”). One set of cases arises from the Union’s
charges before the National Labor Relations Board (“Board”)
that the contractors failed to bargain in good faith during and
following the card check. The other case arises from the dis-
trict court, where the Union sought an order to arbitrate
whether the card check established the Union’s majority sta-
tus under the terms of the CBA. We have seen the appeal
from the district court before when the district court declined
to order arbitration. See Int’l Union of Painter and Allied
Trades, Dist. 15, Local 159 v. J&R Flooring, Inc., 616 F.3d
953 (9th Cir. 2010). We have now ordered the appeal reheard.
When we originally decided the district court appeal, the
Union’s unfair labor practice charges had been pending before
the Board for more than two years, a delay resulting from the
Board’s inability to function because it lacked a third mem-
ber. In our opinion, we considered Ninth Circuit precedent
and the manner in which the dispute had been characterized
by the Union. We concluded that the dispute was primarily
representational and properly belonged before the Board. Int’l
INTERNATIONAL UNION v. J&R FLOORING 16501
Union of Painter, 616 F.3d at 962. We therefore affirmed the
district court’s dismissal of the Union’s petition to compel
arbitration. The Union petitioned for rehearing of our deci-
sion.
Soon after our opinion issued, the Board decided the unfair
labor practice charges. J&R Flooring, Inc., 355 NLRB No.
123 (Aug. 26, 2010). In a bifurcated decision, the Board held
that one of the employers, Flooring Solutions of Nevada, Inc.
(“FSI”), had refused in bad faith to bargain with the Union,
and ordered FSI to bargain. Id. at *8. As for the other employ-
ers, collectively known as the J&R Flooring Employers, the
Board held they were not guilty of unfair labor practices
because they had acted in good faith by relying on a reason-
able interpretation of the CBA in disputing the card check. Id.
at *7. The Board declined to consider which of the parties’
contract interpretations was correct, and whether the Union
was entitled to majority recognition, because the resolution of
the dispute was immaterial to whether the employers acted in
good faith in relying on their interpretation of the CBA to dis-
pute the card check. Id. at *22 n.17.
FSI did not ask the Board to reconsider its decision.
Instead, FSI petitioned this court for review of the Board’s
decision and bargaining order; the Board cross-petitioned for
enforcement of the bargaining order; and the Union petitioned
for review of the Board’s ruling in favor of the J&R Flooring
Employers. We ordered the Board petitions calendared before
this panel, granted the Union’s petition for panel rehearing of
the district court appeal, and consolidated all of the matters
for argument and decision together.
Rehearing of the district court appeal was required because
one of the practical effects of the Board’s decision, when cou-
pled with our decision denying arbitration, was to leave the
Union without any forum to determine whether it had estab-
lished majority status under the CBA. This would have been
an unfortunate result given the parties’ contractual agreement
16502 INTERNATIONAL UNION v. J&R FLOORING
to determine majority status through a card check, and the
CBA’s specific clause requiring expedited arbitration of any
disputes concerning the card-check provision.
We now have the benefit of the Board’s decision, the peti-
tions to this court emanating from it, and the rearguments of
the parties. In the petitions for review from the Board’s deci-
sion, we enforce the Board’s order, and deny the Union’s and
FSI’s petitions for review. In the appeal from the district
court, we conclude that the dispute over whether the Union
established majority status pursuant to the CBA’s card-check
provision is primarily contractual and subject to arbitration.
The parties contractually agreed to determine majority status
through a card check, and to arbitrate any dispute concerning
the card-check provision. We therefore withdraw our prior
decision, Int’l Union of Painter and Allied Trades, Dist. 15,
Local 159 v. J&R Flooring, Inc., 616 F.3d 953 (9th Cir.
2010), and replace it with this opinion reversing the district
court’s order denying arbitration. We remand for the district
court to order all parties to arbitrate whether, under the CBA’s
card-check provision, the Union established majority status.
Any remedies fashioned in arbitration must be consistent with
the Board’s bargaining order against FSI.
FACTUAL AND PROCEDURAL BACKGROUND
The background of this dispute is familiar to the parties and
is set forth in the Board’s decision. J&R Flooring, 355 NLRB
No. 123, at *2-8. We recount only those facts that are neces-
sary to explain our decision.
The employers are four Nevada contractors engaged in
commercial and industrial flooring: FSI, J&R Flooring, Free-
man’s Carpet Service, and FCS Flooring. The latter three
employers are referred to collectively as the J&R Flooring
Employers. The International Union of Painter and Allied
Trades, Local 159, entered into a collective bargaining agree-
ment with all of the employers, which was in effect from Feb-
INTERNATIONAL UNION v. J&R FLOORING 16503
ruary 1, 2004, through January 31, 2007. Article 4 of the CBA
provides that the employers will recognize the Union as a
majority representative of their employees if the Union estab-
lishes majority status through a third-party card check. Article
4 further requires the parties to submit any disputes concern-
ing that provision to expedited arbitration.
Before the CBA was due to expire, the Union notified the
employers that it wished to bargain for a new contract and
announced its intention to conduct a third-party card check, in
accordance with Article 4, to determine whether it represented
a majority of the employees. The J&R Flooring Employers
met with the Union several times but failed to reach an agree-
ment. On January 31, 2007, the day the contract was set to
expire, the Union, for the first time, announced that it was
conducting a card check. The J&R Flooring Employers
objected to the card check on the grounds that the remittance
reports that the Union intended to use were not current; that
the J&R Flooring Employers were not involved in selecting
the third party and were not assured of the third party’s neu-
trality; and that at least two employees had complained about
the Union misinforming them of the purpose of the cards.
Despite J&R Flooring Employers’ objections to the card-
check procedures, the Union nevertheless conducted the card
check. The J&R Flooring Employers then refused to accept
the card-check results and refused to recognize the Union as
the majority representative of their employees.
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 or any other dates suggested by
the Union. The Union then informed FSI that it was conduct-
ing a card check on January 30, 2007, but FSI did not appear
at the card check. FSI subsequently refused to recognize the
Union as the majority representative of its employees and
maintained that it had no duty to bargain with the Union fol-
lowing the expiration of the CBA.
16504 INTERNATIONAL UNION v. J&R FLOORING
In February 2007, the Union filed unfair labor practice
charges against the employers, alleging that the Union had
established that it represented a majority of the employees,
but that the employers had wrongfully refused to bargain with
the Union. The ALJ recommended dismissing the charges in
September 2007. The Union filed exceptions to the ALJ’s
decision before the Board in October 2007.
While the unfair labor charges were still pending before the
Board, the Union asked the employers to arbitrate the dispute
over whether the Union had established majority status under
the terms of the CBA, but the employers refused. In Decem-
ber 2007, the Union filed a petition to compel arbitration in
the district court. The district court dismissed the Union’s
petition for lack of jurisdiction, concluding that the issue the
Union sought to arbitrate was primarily representational and,
thus, within the Board’s primary jurisdiction. We affirmed.
Int’l Union of Painter, 616 F.3d at 962.
The Union then petitioned for rehearing of our decision,
and while that petition was pending, the Board, in August
2010, decided the unfair labor practice charges. It agreed with
the ALJ that the J&R Flooring Employers acted in good faith
in relying on their interpretation of Article 4 of the CBA to
refuse the card-check results. The Board, however, noted that
it was not the proper forum to decide which of the parties’
“equally plausible interpretations of art. 4” of the CBA was
correct. J&R Flooring, 355 NLRB No. 123, at *9 n.16. As for
FSI, the Board found that FSI’s unreasoned refusal both to
participate in, and then accept the results of, the card check
was motivated by bad faith, and not by a bona fide dispute
over the interpretation of Article 4. Id. at *8. It therefore
ordered FSI to recognize the Union as the majority represen-
tative and to bargain with the Union. FSI did not seek recon-
sideration from the Board. Instead, FSI petitioned for review
of the Board’s bargaining order; the Board cross-petitioned
for enforcement of its order; and the Union petitioned for
INTERNATIONAL UNION v. J&R FLOORING 16505
review of the Board’s decision dismissing the charges against
the J&R Flooring Employers.
In April 2011, this panel granted the Union’s petition for
rehearing of the appeal from the district court’s judgment dis-
missing the arbitration petition, and we consolidated that
appeal for argument and decision with the petitions for review
and enforcement of the Board’s decision on the unfair labor
practice charges.
ANALYSIS
I. The Union’s Petition for Review of the Board’s Order
Dismissing the Charges Against J&R Flooring
Employers
[1] The Union argues that the J&R Flooring Employers
acted in bad faith by refusing to recognize the Union as the
majority representative even though the Union had obtained
authorization cards from the majority of the employees. The
Board, however, found that the Union and the J&R Flooring
Employers disagreed as to how the card check should be con-
ducted. The J&R Flooring Employers refused to participate in
the card check because they were not involved in the selection
of the third party, they were not assured of the third party’s
neutrality, and the remittance reports were not current. The
Union, however, interpreted Article 4 of the CBA as allowing
it unilaterally to select its own third party to conduct the card
check.
The Board noted that Article 4 is silent as to how the card
check should be conducted. The Board then concluded that
J&R Flooring Employers’ interpretation, requiring both par-
ties to mutually agree on the procedures of the card check,
was reasonable and that the J&R Flooring Employers did not
act in bad faith in refusing to honor the card check results.
[2] We must decide whether the Board’s conclusion of
good faith is supported by substantial evidence in the record
16506 INTERNATIONAL UNION v. J&R FLOORING
as a whole. See Allentown Mack Sales & Serv., Inc. v. NLRB,
522 U.S. 359, 366 (1998). We conclude that it is. The Union
did not inform the J&R Flooring Employers of its intention to
conduct a card check until January 31, 2007, at which time
the J&R Flooring Employers immediately objected on the
ground that they disagreed with the manner in which the card
check was conducted. The CBA is silent as to the procedures
to be used in conducting a card check, and the J&R Flooring
Employers relied on a permissible interpretation of the card-
check provision in raising their objections. Thus, the Board
reasonably concluded that the J&R Flooring Employers did
not act in bad faith when they objected to the Union’s unilat-
eral imposition of the card-check procedures.
The Board’s decision to dismiss the unfair labor charges
against the J&R Flooring Employers is consistent with the
Board’s precedent. The Board has previously held that it will
dismiss an unfair labor practice charge against an employer
for failing to comply with its collective bargaining agreement
if the employer has a sound arguable basis for its interpreta-
tion. See Phelps Dodge Magnet Wire Corp., 346 NLRB 949,
951-52 (2006) (dismissing charges against the employer
because, although the employer’s “construction of [the agree-
ment] may have been erroneous, its interpretation had a sound
arguable basis”); NCR Corp., 271 NLRB 1212, 1213 (1984)
(“[W]hen ‘an employer has a sound arguable basis for ascrib-
ing a particular meaning to his contract and his action is in
accordance with the terms of the contract as he construes it,’
the Board will not enter the dispute to serve the function of
arbitrator in determining which party’s interpretation is cor-
rect.” (citation omitted)).
[3] The Board’s conclusion, that the J&R Flooring
Employers acted in good faith because their refusal to accept
the card-check results was done in reliance on a reasonable
interpretation of Article 4, is supported by the record as well
as in accordance with the Board’s precedent. We therefore
INTERNATIONAL UNION v. J&R FLOORING 16507
deny the Union’s petition for review of the dismissal of the
unfair labor charges against the J&R Flooring Employers.
II. FSI’s Petition for Review, and the Board’s Cross-
Petition for Enforcement of, the Board’s Bargaining
Order Against FSI
[4] The Board concluded that FSI acted in bad faith in
refusing to accept the card-check results, because it did not
rely on its own interpretation of the card-check provision.
This conclusion is supported by substantial evidence in the
record. Even though FSI had ample notice of the Union’s
demands for a card check, and how it would be conducted,
FSI failed to object to the card-check procedures until after
the Union had conducted the card check. Indeed, FSI deliber-
ately dodged the Union’s requests to meet and did not partici-
pate in the card check.
On January 17, 2007, the Union informed FSI that it had
obtained authorization cards from a majority of FSI’s employ-
ees and that it intended to conduct a card check pursuant to
Article 4 to establish its majority status. The Union proposed
that the card check be conducted on January 23, but FSI
responded that it was unavailable to meet that day. When the
Union requested that FSI provide dates and times when it
would be available to meet, FSI did not respond. On January
25, the Union provided FSI with copies of signed authoriza-
tion cards from nineteen of FSI’s twenty-two unit employees
and again asked FSI to meet to negotiate. FSI responded that
it was unavailable to meet. On January 30, the Union
informed FSI that it would conduct a card check that day and
requested FSI’s presence. FSI did not respond, and did not
attend the card check. After the card check was conducted, the
Union sent FSI the authorization cards and FSI admitted that
it had “no doubt” that a majority of its employees signed the
cards. Later, FSI indicated its belief that a Board election,
rather than a card check, was the fairest and only method for
determining majority status. This evidence supports the
16508 INTERNATIONAL UNION v. J&R FLOORING
Board’s determination that FSI’s refusal to honor the card
check results was not based on a disagreement over the proce-
dures or results and therefore constituted bad faith.
[5] Having concluded that FSI engaged in an unfair labor
practice by acting in bad faith, the Board ordered FSI to rec-
ognize the Union as the majority representative and to bargain
with the Union. In addition to challenging the Board’s find-
ings, FSI asks us to undo the Board’s bargaining order, argu-
ing that even if FSI did act in bad faith, requiring FSI to
bargain was too extraordinary a remedy. FSI, however, did
not seek reconsideration of the Board’s bargaining order and,
thus, did not give the Board the opportunity to consider its
objection. Therefore, we lack jurisdiction to consider the
Board’s choice of remedies.
Section 10(e) of the NLRA provides that “[n]o objection
that has not been urged before the Board . . . shall be consid-
ered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary circum-
stances.” 29 U.S.C. § 160(e). FSI contends that it could not
have raised objections to the Board’s bargaining order
because the ALJ had recommended dismissal of the charges
against FSI and, therefore, FSI could not have known that the
Board would sua sponte order FSI to bargain. We have, how-
ever, applied the § 10(e) bar in cases where a party could have
asked the Board to reconsider its sua sponte remedial order,
but failed to do so. See NLRB v. Sambo’s Rest., Inc., 641 F.2d
794, 796 (9th Cir. 1981) (holding that “because of the avail-
ability of a rehearing before the Board, the Board’s sua sponte
adoption of an unargued remedy is not a statutory extraordi-
nary circumstance under section 10(e) that would allow the
Company to assert an objection for the first time on appeal”).
We explained that the Board should have the first opportunity
to apply its labor relations expertise to address a party’s argu-
ments, so that we may have the benefit of the Board’s opinion
when we review its decision. Id. A year later, the Supreme
Court held that appellate courts lack jurisdiction to consider
INTERNATIONAL UNION v. J&R FLOORING 16509
an objection raised by a party for the first time on appeal
when that party had the opportunity to ask the Board for
rehearing but failed to do so. See Woelke & Romero Framing,
Inc. v. NLRB, 456 U.S. 645, 666 (1982) (stating that when a
party “could have objected to the Board’s decision in a peti-
tion for reconsideration or rehearing,” its “failure to do so pre-
vents consideration of the question by the courts”).
Accordingly, we may not consider FSI’s objection to the
Board’s bargaining order, because FSI failed to seek rehear-
ing.
[6] When § 10(e) bars our consideration of a party’s objec-
tion to the Board’s order, the Board is entitled to enforcement
unless the Board has “patently traveled outside the orbit of its
authority.” NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385,
388 (1946). In such a case, there would be “legally speaking
no order to enforce.” Id. The Supreme Court has held that the
Board has broad discretion to fashion remedies, including
ordering parties to bargain. See NLRB v. Gissel Packing Co.,
395 U.S. 575, 610-12 (1969). The Board did not err in order-
ing FSI to bargain on the basis of its findings, which are sup-
ported by substantial evidence in the record. Thus, the Board
is entitled to enforcement of its order.
III. The Union’s Appeal of the District Court’s Dismissal
for Lack of Jurisdiction
[7] In the district court proceedings, the Union sought to
compel the employers to arbitrate whether the Union had
established majority status under the card-check provision.
The Union claimed the employers’ refusal to bargain or arbi-
trate was a breach of the CBA. Section 301 of the Labor Man-
agement Relations Act (“LMRA”) creates a cause of action,
enforceable in either state or federal court, for violation of
collective bargaining contracts. 29 U.S.C. § 185(a); Charles
Dowd Box Co. v. Courtney, 368 U.S. 502, 506 (1962). “All
that is required for jurisdiction to be proper under § 301(a) is
that the suit be based on an alleged breach of contract
16510 INTERNATIONAL UNION v. J&R FLOORING
between an employer and a labor organization and that the
resolution of the lawsuit be focused upon and governed by the
terms of the contract.” Painting & Decorating Contractors
Ass’n v. Painters & Decorators Joint Comm., 707 F.2d 1067,
1071 (9th Cir. 1983). Because the parties contractually agreed
to determine the Union’s majority status through a card check,
and to arbitrate any disputes concerning the card-check provi-
sion, we conclude that the district court has jurisdiction under
§ 301 to compel arbitration.
[8] All of the parties to the dispute, including the Union,
FSI, and the J&R Flooring Employers, were signatories to the
CBA. 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.
Any disputes concerning this provision shall be
resolved by expedited arbitration under the terms of
this Agreement (emphasis added).
[9] Pursuant to Article 4, the Union sought to establish its
majority status through a card check, but the employers
refused to participate. The J&R Flooring Employers disagreed
with the Union over the procedures of the card check, includ-
ing the unilateral selection of a third party, the accuracy of the
remittance reports for determining eligibility to vote, and
whether adherence to the Board’s Daniel-Steiny eligibility
formula was required. When the Union demanded arbitration
to resolve this dispute and to determine whether the Union
INTERNATIONAL UNION v. J&R FLOORING 16511
was entitled to majority status, the employers refused. The
Union then requested the district court to compel arbitration,
stating that the employers breached the CBA by refusing to
arbitrate the dispute, as required by Article 4 of the CBA.
Because the parties expressly agreed to arbitrate any disputes
concerning the card-check provision, we conclude that the
employers’ refusal to do so was in violation of the CBA and
the Union is entitled to arbitration.
[10] We note that the Board has already ordered FSI to
bargain with the Union as a remedy for its labor violation,
which presumably overlaps with the contractual remedies that
the Union seeks in arbitration. However, the Union argues,
with considerable force, that FSI should be included in arbi-
tration because there is a separate value in whatever decision
the arbitrator reaches and there may be additional remedies
available for any breach of contract. We agree. Thus, if an
arbitrator were to find that the card check was valid, the arbi-
trator could fashion a contractual remedy in addition to the
existing bargaining order. Alternatively, if an arbitrator finds
that the card check was invalid, FSI would nonetheless have
to comply with the bargaining order.
Were we to separate FSI from the other employers in the
arbitration, it could have the unfortunate effect of fragmenting
the resolution of the dispute into bargaining and arbitration
proceedings. This would be a less than comprehensive resolu-
tion of all the issues. The Supreme Court has recognized the
importance of avoiding such fragmentation and achieving
conciliation through comprehensive arbitration. See Carey v.
Westinghouse Elec. Corp., 375 U.S. 261, 272 (1964) (“By
allowing the dispute to go to arbitration its fragmentation is
avoided to a substantial extent; and those conciliatory mea-
sures which Congress deemed vital to ‘industrial peace’ . . .
and which may be dispositive of the entire dispute, are
encouraged.” (citing Textile Workers v. Lincoln Mills, 353
U.S. 448, 455 (1957))). Including all of the parties in the arbi-
tration therefore avoids such fragmentation.
16512 INTERNATIONAL UNION v. J&R FLOORING
Our holding that all parties should proceed to arbitration of
the contractual dispute is consistent with the Board’s decision
and our precedent. The Board declined to reach the contrac-
tual dispute, explaining that it was “not the proper forum for
determining which of the parties’ equally plausible interpreta-
tions of art. 4 is more appropriate.” See J&R Flooring, 355
NLRB No. 123, at *9 n.16. Arbitration is the appropriate
forum to resolve the parties’ dispute. Similarly, while we have
recognized that courts generally lack jurisdiction over claims
involving representational issues that are reserved for the
Board, we have held that courts have jurisdiction over repre-
sentational issues that the parties themselves have purported
to resolve by contract. Hotel Emps., Rest. Emps. Union, Local
2 v. Marriott Corp., 961 F.2d 1464, 1468 (9th Cir. 1992). We
also note that the Second Circuit has recognized that courts
may order arbitration of representational issues where, as
here, a clause in the collective bargaining agreement autho-
rizes it. See N.Y. Health and Human Serv. Union v. NYU
Hosps. Ctr., 343 F.3d 117, 119 (2d Cir. 2003); Hotel & Rest.
Emps. Union, Local 217 v. JP Morgan Hotel, 996 F.2d 561,
566-67 (2d Cir. 1993).
Our decision is also supported by longstanding Supreme
Court precedent encouraging the use of contractual arbitration
provisions to resolve labor disputes. See United Steelworkers
v. Am. Mfg. Co., 363 U.S. 564, 567-68 (1960) (holding 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”); United Steel-
workers v. Warrior & Gulf Navigation Co., 363 U.S. 574,
581-83 (1960) (holding that all questions on which parties
disagree come within the scope of arbitration unless specifi-
cally excluded, instructing that “[d]oubts should be resolved
in favor of coverage”); United Steelworkers v. Enter. Wheel
& Car Corp., 363 U.S. 593, 597-99 (1960) (holding that a
reviewing court should not refuse to enforce an arbitral award
INTERNATIONAL UNION v. J&R FLOORING 16513
merely because it would read the collective bargaining agree-
ment differently than the arbitrator).
[11] Accordingly, we conclude that the district court has
jurisdiction to compel arbitration, and that the Union is enti-
tled to arbitration among all the parties. We remand to the dis-
trict court for further proceedings consistent with this opinion.
CONCLUSION
In appeal Nos. 10-72727, 10-73383, and 10-73561, the
Board’s petition for enforcement of the order requiring FSI to
bargain is GRANTED, and FSI’s and the Union’s petitions
for review are DENIED.
In appeal No. 08-17089, the judgment of the district court
dismissing the Union’s petition to compel arbitration is
REVERSED, and the matter is REMANDED to the district
court to order all parties to arbitrate for resolution of the dis-
pute consistent with the Board’s order requiring FSI to bar-
gain.
Each party shall bear its own costs on appeal.