Cannery Warehousemen, Food Processors, Drivers and Helpers for Teamsters Local Union 748 v. Haig Berberian, Inc., a Delaware Corporation

This case presents a direct conflict between an order of the National Labor Relations Board (Board) and the prior award of an arbitrator acting pursuant to a valid collective bargaining agreement. The district court gave precedence to the Board order by refusing to enjoin noncompliance with the arbitrator’s award. We affirm.

I.

Haig Berberian, Inc. (Company), operator of several almond, walnut, and apricot pit processing plants in the City of Modesto, California, has recognized Teamsters Local No. 748 (Teamsters) as the exclusive bargaining representative of its employees since 1960. In 1974 the Company commenced construction of a new processing facility outside Modesto in an area not previously covered by the Company-Teamsters collective bargaining agreement. While construction of the new facility was still in progress, the Teamsters and Company entered discussions concerning representation of employees at the new facility. No agreement was reached, and the Company proceeded to employ non-Teamsters at the new plant site. Further unsuccessful negotiations led the parties to submit the dispute to arbitration, an arbitrator was selected, and hearings were scheduled for early…

concurring:

I agree with the majority’s conclusion that a valid Board order takes precedence over an arbitrator’s award. I believe that it should be emphasized, however, that neither we nor the district court concluded that the Board order in question was in fact valid. We merely assumed for the purpose of this case that the Board order was valid, because, as discussed in Part II of the majority opinion, we do not have jurisdiction to consider whether the Board should have deferred to the arbitrator.

Should a future Board order properly raise the issue whether the Board abused its discretion in refusing to defer to the arbitrator (e. g., if the Board were to find that the Teamsters committed an unfair labor practice where that finding was based upon the underlying representation decision) the issue will be reviewable uninfluenced by anything in our opinion today. See generally Douglas Aircraft Co. v. NLRB, 609 F.2d 352 (9th Cir. 1979) (Board abused its discretion by failing to defer to arbitrator where arbitrator’s decision might have rested on ground that was not clearly repugnant to the Act).

623 F.2d 77 105 L.R.R.M. (BNA) 2172 , 89 Lab.Cas. P 12,121 CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS FOR TEAMSTERS LOCAL UNION # 748, Petitioner-Appellant, v. HAIG BERBERIAN, INC., a Delaware Corporation, Respondent-Appellee. No. 76-3077. United States Court of Appeals, Ninth Circuit. June 30, 1980. Arthur V. Azevedo, Sacramento, Cal., for petitioner-appellant. Robert E. Murphy, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Cal., for respondent-appellee. Appeal from the United States District Court for the Eastern District of California. Before CHOY and WALLACE, Circuit Judges, and GRANT, * District Judge. WALLACE, Circuit Judge: 1 This case presents a direct conflict between an order of the National Labor Relations Board (Board) and the prior award of an arbitrator acting pursuant to a valid collective bargaining agreement. The district court gave precedence to the Board order by refusing to enjoin noncompliance with the arbitrator's award. We affirm. I. 2 Haig Berberian, Inc. (Company), operator of several almond, walnut, and apricot pit processing plants in the City of Modesto, California, has recognized Teamsters Local No. 748 (Teamsters) as the…