Union’s Card Check Will Face Another Review

(CN) - A Nevada trade union and four contractors must sit down together to determine if their collective bargaining agreement allows the union to establish a majority through a card check of its members, the 9th Circuit ruled Monday.

The federal appeals panel in San Francisco denied arbitration in the same dispute last year by upholding the ruling of a lower court. On rehearing, however, the panel found that the parties' agreement requires arbitration.

The International Union of Painter and Allied Trades, Local 159, accused contractors J&R Flooring, Freeman's Carpet Service, FCS Flooring, and Flooring Solutions of Nevada of bad faith for refusing to recognize it as the majority representative of the companies' workers.

The union argues that it earned that name through a third-party card check of workers in 2007, as allowed by the parties' collective bargaining agreement. The contractors refused to join in the card check because they had been left out of the selection of the third party.

The union filed a federal complaint against the contractors in Nevada, seeking to compel arbitration over the card check's legality. The union argued that the companies' refusal to sit down over the issue violated the Labor Management Act.

Chief U.S. District Judge Roger Hunt dismissed the union's action for lack of jurisdiction, ruling that it should have first appealed to the National Labor Relations Board. The 9th Circuit affirmed but granted the union a rehearing in April.

Meantime, the union filed a separate but related action before the National Labor Relations Board accusing the contractors of unfair labor practices and bad faith. The board found that all but one of the contractors had reasonably interpreted the agreement in disputing the card check, but declined to consider whether the union had majority recognition. Both parties crossappealed, and the 9th Circuit consolidated the cases for rehearing.

"Article 4 of the CBA provides that the employers will recognize the union as a majority representative of their employees if the union establishes majority status through a third-party card check," Judge Mary Schroeder wrote for a three-judge panel. "The article further requires the parties to submit any disputes concerning that provision to expedited arbitration."

Reversing its former ruling, the three-judge panel found that the District Court did have jurisdiction to compel arbitration and remanded the case back to Nevada.

The panel also rejected crossappeals by the union and Flooring Solutions of Nevada related to the labor board's rulings. The panel affirmed the board's decision that Flooring Solutions, unlike its fellow contractors, had been motivated to reject the card check by bad faith rather than a "bona fide dispute over the interpretation of Article 4." The panel also rejected the union's petition for review of the board's ruling to dismiss the allegations of unfair labor practices against the other three contractors.

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