International Union of Painter & Allied Trades, District 15, Local 159 v. J & R Flooring, Inc.

This appeal raises interesting questions about the relationship between the primary jurisdiction of the National Labor Relations Board (“NLRB” or “the Board”) to determine representational disputes and the scope of arbitration under a construction industry collective bargaining agreement that, together with a broad arbitration clause, also contains a provision about determining majority representation. The underlying 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 Relations 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 filing 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…