FILED

NOT FOR PUBLICATION

MAY 13 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTERNATIONAL ASSOCIATION OF No. 19-70585

HEAT & FROST INSULATORS AND

ALLIED WORKERS, LOCAL 5, NLRB No. 21-CA-139031

Petitioner,

MEMORANDUM*

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent.

On Petition for Review of an Order of the National Labor Relations Board

Submitted May 11, 2020** San Francisco, California

Before: THOMAS, Chief Judge, and FRIEDLAND and BENNETT, Circuit Judges.

International Association of Heat & Frost Insulators and Allied Workers,

Local 5, (“HFIAW”) petitions for review of a decision of the National Labor

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Relations Board dismissing an unfair labor practice complaint against Coastal

Marine Services, Inc. We have jurisdiction pursuant to 29 U.S.C. § 160(f), and we

deny the petition. Because the parties are familiar with the history of this case, we

need not recount it here.

“This court upholds decisions of the NLRB ‘if its findings of fact are

supported by substantial evidence and if the Board correctly applied the law,’ and

defers to any ‘reasonably defensible’ interpretation of [the National Labor

Relations Act (“NLRA”)].” Int’l Union of Operating Eng’r Local 501 v. NLRB,

949 F.3d 477, 479 (9th Cir. 2020) (quoting Retlaw Broad. Co. v. NLRB, 53 F.3d

1002, 1005 (9th Cir. 1995)).

1. The NLRB acted within its discretion in declining to entertain

arguments not raised by its General Counsel, including HFIAW’s arguments that

the Federal Arbitration Act does not apply to the Coastal Marine employment

agreement, that the agreement violates the NLRA by prohibiting other protected

activity such as strikes and leafleting, and, to the extent that such an argument was

made, that federal and state law may provide independent grounds for invalidating

the agreement. See Kimtruss Corp. & Local Union No. 3-433 of Int’l

Woodworkers of Am., 305 N.L.R.B. 710, 711 (1991) (“It is settled that a charging

party cannot enlarge upon or change the General Counsel’s theory” of a case.); see

2 also Int’l Ass’n of Machinists & Aerospace Workers v. Lubbers, 681 F.2d 598, 602

(9th Cir. 1982) (explaining that 29 U.S.C. § 153(d) “vests in the General Counsel

exclusive prosecutorial authority over unfair labor practices”).

2. The NLRB did not err in dismissing the complaint in light of the

Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

The NLRB’s General Counsel brought and litigated this case on the grounds that

Coastal Marine’s employment agreement was unlawful under the Board’s decision

in Murphy Oil USA, Inc., 361 N.L.R.B 774 (2014). Epic Systems overruled the

Board’s holding in Murphy Oil. See Epic Systems, 138 S. Ct. at 1619. The

agreement at issue in this case is no broader in scope than those at issue in Epic

Systems, and HFIAW’s efforts to distinguish this case are unavailing.

For these reasons, we deny the petition for review.

PETITION DENIED.

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