Hfiaw, Local 5 v. NLRB ( 2020 )

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NOT FOR PUBLICATION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
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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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