FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GRANITE ROCK COMPANY, 

Plaintiff-Appellee,

v.

INTERNATIONAL BROTHERHOOD OF No. 07-16142

TEAMSTERS, FREIGHT,

D.C. No. CONSTRUCTION, GENERAL DRIVERS,

WAREHOUSEMEN & HELPERS, LOCAL 

CV-04-02767-JW

Northern District of 287 (AFL-CIO),

Defendant-Appellant, California,

San Jose

and

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS,

Defendant. 

GRANITE ROCK COMPANY, 

Plaintiff-Appellant, No. 07-16236

v. D.C. No.

INTERNATIONAL BROTHERHOOD OF CV-04-02767-JW

TEAMSTERS, FREIGHT,  Northern District of

CONSTRUCTION California, , GENERAL DRIVERS,

WAREHOUSEMEN & HELPERS, LOCAL San Jose

287 (AFL-CIO) and INTERNATIONAL ORDER

BROTHERHOOD OF TEAMSTERS,

Defendants-Appellees. 

Filed May 20, 2011

6655
Before: Ronald M. Gould and Carlos T. Bea, Circuit Judges,

and John W. Sedwick, District Judge.*

ORDER

Granite Rock Company (“Granite Rock”) sued International Brotherhood of Teamsters, Local 287 (“Local”) and

International Brotherhood of Teamsters (“IBT”) under section

301(a) of the Labor Management Relations Act (“LMRA”)

with claims relating to a collective bargaining agreement

(“CBA”). Granite Rock seeks remedies against Local for

breach of the CBA. We reversed the district court’s denial of

Local’s motion to compel arbitration on the question of contract formation. The Supreme Court subsequently granted certiorari and reversed this court on this issue. Granite Rock Co.

v. Int’l Bhd. of Teamsters, 130 S. Ct. 2847 (2010). On

remand, we ordered the parties to file supplemental briefs

addressing what further proceedings are required consistent

with the Supreme Court’s opinion.

The parties filed supplemental briefs discussing the following issues: (1) whether the district court erred by denying

Local’s motion to strike Granite Rock’s jury demand; and (2)

whether the district court erred when it held that the National

Labor Relations Board’s (“NLRB”) decision that the CBA

was not ratified on July 2, 2004, did not collaterally estop

Granite Rock from re-litigating the issue in the district court.

We conclude the district court did not err on these issues. We

thus affirm the district court’s holding on these two issues and

remand the case to the district court for further proceedings

consistent with this disposition.

*The Honorable John W. Sedwick, District Judge for the U.S. District

Court for Alaska, Anchorage, sitting by designation. 

6656 GRANITE ROCK CO. v. TEAMSTERS
I 

The district court did not err by denying Local’s motion to

strike Granite Rock’s jury demand. A district court’s decision

to grant a jury trial is reviewed de novo. United States v. Cal.

Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1377 (9th Cir.

1997). The resolution of that issue depends upon whether

plaintiff’s claim is properly characterized as legal or equitable. Chauffeurs, Teamsters and Helpers, Local 391 v. Terry,

494 U.S. 558, 564 (1990). The Supreme Court has established

a two-part test for making that determination. Tull v. United

States, 481 U.S. 412, 417 (1987). First, a court determines

whether the claim was historically tried to juries in the court

of law before the courts of law and equity merged. Id. Second,

a court determines whether the remedy sought is legal or equitable. Id. at 417-18. In close cases, a court should err on the

side of preserving the right to a jury trial. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510 (1959). 

In this case, Granite Rock asserted a cause of action under

section 301(a) of the LMRA for breach of the no-strike provision in the July 2, 2004, CBA. As to the first prong of Terry,

the issues in this case—the existence and breach of contract

and the amount of damages—traditionally were legal in

nature and tried by a jury under the Seventh Amendment. See,

e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479-80 (1962);

Scott v. Neely, 140 U.S. 106, 110 (1891). Furthermore, in

Terry, the Supreme Court held that employees who brought

a section 301 action alleging breach of a CBA had a constitutional right to a trial by jury. Terry, 494 U.S. at 573-74. Specifically, Terry held that the section 301 issue “is comparable

to a breach of contract claim—a legal issue.” Id. at 569-70

(emphasis added).

As to the second prong of the Terry test, Granite Rock was

seeking monetary damages. A request for monetary damages

is also generally legal in nature in these circumstances. See id.

at 570-71. Hence, because Granite Rock’s claim was one for

GRANITE ROCK CO. v. TEAMSTERS 6657
monetary damages for a breach of contract—an essentially

legal claim—the district court did not err in submitting the

issue of the CBA formation to the jury.

II

The district court did not err by denying Local’s summary

judgment motion, which contended collateral estoppel precluded Granite Rock from asserting Local ratified the CBA on

July 2, 2004. The availability of issue preclusion is reviewed

de novo. Robi v. Five Platters, Inc., 838 F.2d 318, 321 (9th

Cir. 1988). 

In Reyn’s Pasta Bella, LLC v. Visa USA, Inc. 442 F.3d 741

(9th Cir. 2006), we explained that collateral estoppel applies

to preclude an issue adjudicated in an earlier proceeding if:

(1) the issue was necessarily decided at the previous proceeding and is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment

on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first

proceeding. Id. at 746 (citing Kourtis v. Cameron, 419 F.3d

989, 994 (9th Cir. 2005)). 

Here, these requirements are not met. First, the parties in

the administrative proceeding—the NLRB and Local—did

not contest whether Local held a ratification vote on July 2,

2004, so the administrative law judge (“ALJ”) did not decide

the issue on the merits. Rather, both the NLRB and Local

averred Local did not hold a ratification vote on that date.

Issues not litigated on the merits are not subject to collateral

estoppel. See Sekaquaptewa v. MacDonald, 575 F.2d 239,

247 (9th Cir. 1978). 

Second, Granite Rock was not a party or in privity with

Local in the administrative hearing. Granite Rock filed a complaint with the NLRB; NLRB investigated the complaint and

brought an enforcement action, on the government’s behalf,

6658 GRANITE ROCK CO. v. TEAMSTERS
against Local. Thus, the parties were the NLRB and Local—

not Granite Rock. 

Furthermore, Granite Rock and the NLRB were not in privity. Although Granite Rock, as a “charging party,” is allowed

a significant role in NLRB proceedings, it may not direct the

course of litigation or control the theories of the case. It is a

longstanding principle in this court that a privity finding “necessitates a showing that control was exercised over the litigation by the party alleged to be in privity.” Troy Co. v. Prods.

Research Co., 339 F.2d 364, 367 (9th Cir. 1964). Because

Granite Rock could not control the NLRB’s litigation strategy, it was not in privity with the agency. Accordingly, the

district court’s denial of Local’s summary judgment motion as

to issue preclusion was proper.

III

In light of Granite Rock Co., 130 S. Ct. 2847, which

reversed the judgment of this court, 546 F.3d 1169, and

remanded, we in turn remand this case to the district court for

further proceedings in accordance with the Supreme Court’s

decision and with this order. 

AFFIRMED and REMANDED.

GRANITE ROCK CO. v. TEAMSTERS 6659