FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTERNATIONAL UNION OF 

PAINTER AND ALLIED TRADES,

DISTRICT 15, LOCAL 159,

Petitioner-Appellant, No. 08-17089

v. D.C. No.  2:07-cv-01677- J&R FLOORING, INC., dba J. Picini

RLH-PAL Flooring; FREEMAN’S CARPET

SERVICE, INC.; FCS FLOORING, INC.; OPINION

FLOORING SOLUTIONS OF NEVADA,

INC., dba FSI,

Respondents-Appellees. 

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, Chief District Judge, Presiding

Argued and Submitted

December 10, 2009—San Francisco, California

Filed July 30, 2010

Before: Mary M. Schroeder and Consuelo M. Callahan,

Circuit Judges, and Barbara Lynn,* District Judge.

Opinion by Judge Schroeder

*The Honorable Barbara Lynn, United States District Judge for the

Northern District of Texas, sitting by designation. 

11015
COUNSEL

David A. Rosenfeld, Alameda, California, for plaintiffappellant International Union of Painters and Allied Trades,

District 15, Local 159.

Gregorey E. Smith, Las Vegas, Nevada, for appellees J&R

Flooring, Inc., Freeman’s Carpet Service, Inc., and FCS

Flooring, Inc.

Thomas A. Lenz, Cerritos, California, for appellee Flooring

Solutions of Nevada, Inc.

OPINION

SCHROEDER, Circuit Judge:

This appeal raises interesting questions about the relationship between the primary jurisdiction of the National Labor

Relations Board (“NLRB” or “the Board”) to determine repre11018 INTERNATIONAL UNION v. J&R FLOORING
sentational 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 Administrative Law Judge

(“ALJ”) ruled that the charges should be dismissed. The case

remains pending on appeal before the Board. 

Under our Circuit’s law, the legal issue here is whether the

dispute is primarily representational or contractual. See Serv.

Employees Int’l Union, Local 399 v. St. Vincent Med. Ctr.,

344 F.3d 977, 982-83 (9th Cir. 2003). A primarily contractual

dispute would potentially be arbitrable, whereas a primarily

representational dispute would not be. Because we conclude

that this particular dispute is principally representational, we

affirm the district court’s decision dismissing the action on

the ground that the dispute falls within the primary jurisdiction of the NLRB.

STATUTORY BACKGROUND

At issue in this case is whether the Union was the bargaining agent for the employees pursuant to § 8(f) or § 9(a) of the

NLRA at the time the collective bargaining agreement

INTERNATIONAL UNION v. J&R FLOORING 11019
expired. Section 9(a) of the Act establishes that a union

selected by a majority of employees in a bargaining unit shall

be the employees’ exclusive bargaining representative. 29

U.S.C. § 159(a). Once a union has achieved § 9(a) majority

status, an employer’s obligation to bargain with the union

continues beyond the term of any particular collective bargaining agreement. This is the result of long-standing Board

policy. See Levitz Furniture Co. of the Pacific, Inc., 333

NLRB 717, 721 (2001). 

In most industries, it is an unfair labor practice for an

employer to bargain with a union that does not have majority

support, or for an employer to promise a union that it will

require prospective employees to join the union as a condition

of employment. NLRB v. Local Union No. 103, 434 U.S. 335,

344-45 (1978). The construction industry, however, operates

under its own set of statutory rules. In 1959, Congress recognized that the short-term nature of the industry’s hiring often

precluded unionization pursuant to § 9(a), and responded by

adding § 8(f) to the NLRA. See 29 U.S.C. § 158(f); Todd v.

Jim McNeff, Inc., 667 F.2d 800, 801-02 (9th Cir. 1982). Section 8(f) provides that employers may enter into a prehire

agreement requiring union membership as a condition of

employment, notwithstanding the union’s lack of majority status. Todd, 667 F.2d at 801-02. Though it is easier for unions

to organize under § 8(f), it is Board policy that unions formed

under that provision do not enjoy a presumption of majority

status once the collective bargaining agreement expires; at

that point in time, the § 8(f) relationship is terminable by

either party. John Deklewa & Sons, 282 NLRB 1375, 1387

(1987), enforced sub nom. Iron Workers Local 3 v. NLRB,

843 F.2d 770 (3d Cir. 1988); Madison Indus. Inc., 349 NLRB

1306, 1307-08 (2007). 

Because of the more tenuous nature of representation under

§ 8(f), some unions that initially organize under that provision

attempt to convert to § 9(a) majority status, and the Board has

held that an employer may contractually agree to voluntary

11020 INTERNATIONAL UNION v. J&R FLOORING
recognition on the basis of the union’s showing of majority

support. Staunton Fuel & Material, Inc., 335 NLRB 717, 719-

20 (2001); Madison Indus., Inc., 349 NLRB at 1308. The parties dispute in this case whether the union was successful in

effectuating such a conversion before the contract expired.

FACTUAL BACKGROUND

Defendants are four Nevada contractors engaged in commercial and industrial flooring—J&R Flooring, Inc., Freeman’s Carpet Service, Inc., FCS Flooring, Inc., and Flooring

Solutions of Nevada, Inc. (collectively, “the Employers”).

The Employers and plaintiff International Union of Painters

and Allied Trades, District Council 15, Local 159 (“the

Union”) operated for several years under the auspices of a

common collective bargaining agreement (“the agreement” or

“CBA”) governed by § 8(f). That agreement, effective February 1, 2004, through January 31, 2007, established a mechanism through which the Union’s representation pursuant to

§ 8(f) could be changed to one governed by § 9(a). 

The parties’ agreement, at Article 4, provides that the

Employer will recognize the Union if it has majority status

and will permit a card check conducted by a third party to

determine whether the Union has achieved majority status.

Article 4 of the CBA provides: 

The Employer hereby recognizes the Union as the

sole and exclusive bargaining agent of employees

classified herein . . . . The Employer agrees that if a

majority of its employees authorize the Union to represent them in collective bargaining, the Employer

will recognize the Union as the NLRA Section 9(a)

majority collective bargaining agent for all employees performing work within the jurisdiction of this

Agreement. The Employer agrees furthermore upon

demand by the Union to submit to a third party card

check to determine the majority status of the Union.

INTERNATIONAL UNION v. J&R FLOORING 11021
Any disputes concerning this provision shall be

resolved by expedited arbitration under the terms of

this Agreement. 

A “card check” is a voluntary method for determining

whether a union enjoys majority status without resort to a

Board-supervised election. See John E. Higgins, Jr., The

Developing Labor Law 733-34 (5th ed. 2006). In a typical

card check procedure, the union collects signature cards from

employees designating the union as their bargaining representative. Hotel Employees, Rest. Employees Union, Local 2 v.

Marriott Corp., 961 F.2d 1464, 1465-66 n.1 (9th Cir. 1992).

Once the union collects cards from a majority of employees

and presents them to the employer, generally a mutually

agreeable neutral party verifies the cards for authenticity. Id.

In addition to the card check provision, Article 22 of the

agreement establishes a general grievance and arbitration procedure. Article 22 creates a joint labor-management committee that is charged with hearing “disputes and grievance[s]

that may arise out of the application or interpretation” of the

agreement in the first instance, and also provides for arbitration where a “decision cannot be reached” in committee. 

Two months before the parties’ § 8(f) agreement was due

to expire, the Union notified the Employers that it wished to

bargain for a new contract. In part because they were not all

represented by the same counsel, the Employers reacted differently to the Union’s bargaining request. FSI steadfastly

refused to negotiate at all with the Union, announcing that it

did not want to enter into a new agreement. The other three

defendants—J&R Flooring, Inc., Freeman’s Carpet Service,

Inc., and FCS Flooring, Inc.—met with the Union but failed

to reach an agreement. The Union then announced to all the

Employers its intention to conduct a third-party card check in

accordance with Article 4 of the agreement, prior to the expiration of the contract. All of the Employers refused to recog11022 INTERNATIONAL UNION v. J&R FLOORING
nize the Union as representing an employee majority, and

they continue to maintain they have no duty to bargain.

With respect to FSI, the Union requested that the parties

hold a card check on January 23, 2007. FSI responded that it

was not available on that date. On January 30, 2007, the day

before the agreement was set to expire, the Union faxed FSI

a letter informing the company that the Union was scheduling

the card check for noon that day at a local church, by Father

Menchaca, a third party selected by the Union. No FSI representative appeared at the card check, and Menchaca conducted the check and reported that twenty of FSI’s twentytwo employees had signed the authorization cards. In the card

check, Menchaca compared the signatures on union authorization cards to the names of employees listed on the most recent

remittance report submitted by FSI to the Union. Menchaca

did not compare the employees’ signatures on the cards to

other signature samples, as required by the Board’s decision

in Cascade General, 303 NLRB 656, 671 (1991). Nor did he

utilize the Daniel-Steiny formula, a formula that governs

which construction employees are eligible to participate in

card check procedures unless the parties stipulate not to use

it. See Signet Testing Laboratories, 330 NLRB 1, 1 (1999).

The formula provides that, in addition to employees on the

payroll immediately preceding an election, employees who

have worked a certain number of days in the two year period

preceding an election are eligible to participate.

Following the card check, the Union’s president, Jack Mallory, personally delivered copies of the card check results to

FSI along with a follow-up email to FSI’s vice president,

Bryan Price, asking him to meet with Mallory the following

day, January 31, 2007, for contract negotiations. Price indicated he could not meet at that time. On the 31st, the day of

the collective bargaining agreement’s expiration, the Union,

in its purported capacity as the § 9(a) collective bargaining

representative, sent a letter to FSI proposing available bargaining dates. FSI did not respond and maintains that it has

INTERNATIONAL UNION v. J&R FLOORING 11023
no duty to bargain with the Union following the expiration of

the agreement. 

The remaining three employers were all represented by the

same attorney and all initially bargained with the Union to

enter into a new contract. As of January 30, 2007, however,

the parties were unable to reach an agreement. The parties

met for a sixth session on January 31, at which time the Union

announced its intention to conduct a card check. The attorney

for the three employers objected to the card check on the

grounds that the remittance reports that the Union intended to

use were not current, his clients had not participated in the

selection of the third-party neutral, and at least two employees

had complained about the Union misinforming them of the

purpose of the cards. The attorney threatened to walk out of

the negotiations if the card check proceeded, and although the

Union stated that it would proceed with the card check regardless of the attorney’s presence, the employers and their attorney left. 

A third party selected by the Union, Maria Castillo Couch,

proceeded to conduct the card check. She compared the

names on the cards with the names listed on the remittance

reports and concluded that a majority of employees from each

of the three employers agreed to representation by the Union.

Couch then signed a card check certification to that effect.

Couch, like Menchaca, did not verify the signatures or use the

Daniel-Steiny formula.

The Union then sent a letter dated January 31, 2007, notifying the three employers of the results of the card check and

suggesting dates for negotiations. Following the collective

bargaining agreement’s expiration, these employers have met

with the Union but have refused to accept the card check

results. 

Thus, all four of the Employers refused to accept the card

check and refused to recognize the Union as representing a

11024 INTERNATIONAL UNION v. J&R FLOORING
majority of employees so as to give rise to any duty to bargain

under § 9(a) of the NLRA.

PROCEDURAL BACKGROUND

In February 2007, the Union filed unfair labor practice

charges with the NLRB against the four Employers. At that

time, neither the Union nor the Employers had suggested pursuing grievance and arbitration procedures concerning the

third-party card check. The Board’s General Counsel brought

charges against the Employers and the case proceeded to trial

before an ALJ. The charge against the Employers was they

had refused to comply with Article 4’s card check provision

and had thereby unlawfully refused to bargain. The ALJ

found for the Employers, holding in essence that the Union

could not rely on the card check results because it had not followed Article 4’s further agreement to arbitrate disputes when

the Union and the Employers failed to agree on the card check

procedures. The Union’s appeal of the ALJ’s decision to the

Board is still pending. After the ALJ issued her decision in

September 2007, the Union filed this action in United States

district court seeking an order compelling arbitration. The

issues the Union identified for arbitration were “[w]hether the

union established its status as the majority representative

under § 9(a) pursuant to the terms of the contract? If so, what

is the appropriate remedy?” 

The district court granted the Employers’ motions for summary judgment, denied the Union’s motion to compel arbitration, and dismissed the case for lack of jurisdiction. The court

found that the issue the Union proposed for arbitration was

primarily representational and thus fell within the primary

jurisdiction of the NLRB. The Union appeals the district

court’s dismissal to this court.

ANALYSIS 

The fundamental issue is whether the parties are required

to arbitrate their disagreement over whether the Employers

INTERNATIONAL UNION v. J&R FLOORING 11025
have a duty to bargain. Whether the Employers have a duty

to bargain in turn depends on whether the Union established

it represented a majority of employees in accord with Article

4 of the agreement.

[1] Section 301 of the Labor Management Relations Act

(“LMRA”) creates a cause of action, enforceable in either

state or federal court, for violation of collective bargaining

agreements. 29 U.S.C. § 185(a); Charles Dowd Box Co., Inc.

v. Courtney, 368 U.S. 502, 506 (1962); Textile Workers v.

Lincoln Mills, 353 U.S. 448, 449-51 (1957). The courts are to

apply federal common law. Teamsters Local 174 v. Lucas

Flour Co., 369 U.S. 95, 103-04 (1962); Lincoln Mills, 353

U.S. at 456-57. The threshold question for evaluating jurisdiction under Section 301 is whether there is an alleged breach

of contract. Carpenters Health & Welfare Trust Fund v. Tri

Capital Corp., 25 F.3d 849, 858 (9th Cir. 1994) (overruled in

part on other grounds). A contract for purposes of § 301 may

be a collective bargaining agreement or another agreement

“significant to the maintenance of labor peace” between a

union and an employer. Id.

The Supreme Court has long supported arbitration of labor

disputes involving disagreements over the interpretation of

collective bargaining agreements, beginning with the famous

Steelworkers Trilogy. See United Steelworkers v. American

Mfg. Co., 363 U.S. 564 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593

(1960). In the trilogy, the Supreme Court resolved several

related issues concerning enforcement of arbitration clauses

and awards, in each case finding in favor of arbitrability. In

American Manufacturing, the Supreme Court held that when

the parties have negotiated an arbitration clause, the function

of the enforcing court is limited to determining “whether the

party seeking arbitration is making a claim which on its face

is governed by the contract.” 363 U.S. at 568. In Warrior &

Gulf, the Court considered the scope of arbitrability, and held

11026 INTERNATIONAL UNION v. J&R FLOORING
that all questions on which parties disagree come within the

scope of arbitration unless specifically excluded, instructing

that “[d]oubts should be resolved in favor of coverage.” 363

U.S. at 581-83. Finally, in Enterprise Wheel, the Court contemplated judicial review of arbitral awards, and established

a very deferential standard, holding that a reviewing court

should not refuse to enforce an award merely because it

would read the collective bargaining agreement differently

than the arbitrator. 363 U.S. at 597-99. The pro-arbitration

orientation first articulated in the Steelworkers Trilogy continues to be a foundational principle of our labor law. See John

E. Higgins, Jr., The Developing Labor Law 1419-24 (5th ed.

2006).

[2] At the same time, the Supreme Court has long recognized that where a dispute involves allegations that an

employer has committed an unfair labor practice, the Board

exercises primary jurisdiction, and the federal courts “must

defer to [its] exclusive competence.” San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236, 245 (1959); see also

Commc’n Workers v. Beck, 487 U.S. 735, 742 (1988); Kaiser

Steel Corp. v. Mullins, 455 U.S. 72, 83 (1982) (“The Board

is vested with primary jurisdiction to determine what is or is

not an unfair labor practice.”); Garner v. Teamsters, 346 U.S.

485, 490-91 (1953). The doctrine of primary jurisdiction

stems from Congress’s statutory delegation of duties to the

Board, including the responsibility to interpret the NLRA in

the first instance, and to investigate and adjudicate petitions

for relief under the Act. See Garner, 346 U.S. at 490; see also

29 U.S.C. §§ 151-169. 

[3] This Court has applied the doctrine of primary jurisdiction in declining to consider representational disputes that the

NLRA commits to the Board’s expertise. See, e.g., Local No.

3-193 Int’l Woodworkers of America v. Ketchikan Pulp Co.,

611 F.2d 1295, 1298 (9th Cir. 1980) (finding designation of

an exclusive bargaining agent and the definition of an appropriate bargaining unit within primary jurisdiction of the

INTERNATIONAL UNION v. J&R FLOORING 11027
Board); United Ass’n of Journeymen v. Valley Eng’rs, 975

F.2d 611, 614-15 (9th Cir. 1992) (declining to exercise jurisdiction under § 301 where issue of illegal doublebreasting

already decided by the NLRB). 

The Supreme Court has not had occasion to consider a

§ 301 action to enforce an agreement in which the parties

have contracted for a means of resolving representational

issues. This court, however, has decided such cases. Among

the leading cases in the country are our decisions in Hotel

Employees, Restaurant Employees Union, Local 2 v. Marriott

Corp., 961 F.2d 1464 (9th Cir. 1992), and Service Employees

International Union, Local 399 v. St. Vincent Medical Center,

344 F.3d 977 (9th Cir. 2003). See The Developing Labor Law

at 1443; Laura J. Cooper, Privatizing Labor Law: Neutrality/Card Check Agreements and the Role of the Arbitrator, 83

Ind. L.J. 1589, 1596-97 (2008); George N. Davies, Neutrality

Agreements: Basic Principles of Enforcement and Available

Remedies, 16 Lab. Law. 215, 217 n.11 (2000). 

In Marriott, a hotel chain contemplating construction of a

major hotel in downtown San Francisco entered into a letter

agreement with the union that, inter alia, bound the employer

to accept the results of a card check and not to express any

opinion to employees about whether they should choose the

union as their representative. 961 F.2d at 1465-66. We held

that those provisions were enforceable under § 301. Id. at

1468-70. 

The union in Marriott had also argued that the district court

should require the employer to provide access on its premises

for the union to meet with employees, as well as names,

addresses, and phone numbers of employees, even though the

parties had no agreement as to these matters. Id. at 1469.

Those issues therefore went to the general obligations of the

employer during the organizing process. We held that such

issues were within the primary jurisdiction of the Board: 

11028 INTERNATIONAL UNION v. J&R FLOORING
The doctrine of primary jurisdiction is a recognition

of congressional intent to have matters of national

labor policy decided in the first instance by the

National Labor Relations Board. Congress directed

the NLRB, not the courts, to determine an employer’s obligations during the process of selecting a bargaining representative. 

Id. (internal quotations and citations omitted). 

[4] Marriott is significant because it established the principle that parties may contractually agree upon matters that

would otherwise fall within the primary jurisdiction of the

Board. Id. at 1468 (“[W]hile the courts may not resolve representational issues, the parties may resolve these issues contractually.”); see also Cooper, 83 Ind. L.J. at 1597 (“Lower

federal courts have applied the Supreme Court’s broad interpretation of the scope of Section 301(a) specifically to hold

that neutrality/card check agreements are enforceable in federal court.”) (citing our decision in Marriott as well as Hotel

& Rest. Employees Union, Local 217 v. J.P. Morgan Hotel,

996 F.2d 561, 567 (2d Cir. 1993)). 

We also considered contractual provisions dealing with

organizational issues more than ten years later in St. Vincent.

344 F.3d at 977. In St. Vincent, the parties had negotiated

detailed provisions aimed at preserving employer neutrality

during an organizing campaign. Id. at 980. Both the union and

the employer agreed not to coerce, intimidate, or threaten

employees, and to “communicate only that which is factual.”

Id. The employer additionally agreed not to imply that

employees would face less favorable wages or working conditions if they supported the union or to initiate one-on-one conversations with employees about unionization. Id. The

agreement also set forth two options for determining majority

representation: a secret-ballot election conducted by the parties and observed by a jointly selected Election Officer, or an

INTERNATIONAL UNION v. J&R FLOORING 11029
election conducted by the NLRB under the recognition rules

established in the agreement. Id.

The parties in St. Vincent also agreed to a broad arbitration

clause that encompassed disputes over the neutrality provisions. Id. When the Union lost the election, it filed a § 301

action claiming the employer had violated the neutrality provisions, and seeking arbitration, but not contesting the election result. Id. at 979, 986 n.7. The employer moved to

dismiss on the ground that the issues were within the primary

jurisdiction of the Board, and we were faced squarely with

questions very similar to those in this case. 

We framed the inquiry in St. Vincent as whether those

issues were “primarily representational or primarily contractual,” citing the test first squarely adopted by this Court in Valley Engineers. Id. at 983 (citing Valley Engineers, 975 F.2d

at 613-14). Building upon Marriott, we first followed its holding that parties can contract about representational issues, noting the detailed provisions in the St. Vincent agreement. Id. at

984. We observed that because the Union was not challenging

the election itself, there was nothing to trigger automatic

Board jurisdiction. Id. at 984-86. We held in St. Vincent that

nothing in the union’s claim would require the district court

or the arbitrator to “resolve any other representational issues

not already resolved by the parties.” Id. at 984. We thus concluded that the dispute in St. Vincent was fundamentally contractual in nature and ordered the parties to arbitration. 

[5] Our inquiry in this case must be framed in the same

manner as we framed the inquiry in St. Vincent, i.e., whether

the dispute is fundamentally contractual or representational.

The Union, in seeking arbitration, attempts to characterize the

dispute at this point as contractual because it is about the card

check provision in an agreement with a broad arbitration

clause. The Employers say it is representational, looking at

the issue that the Union actually seeks to arbitrate, which is

11030 INTERNATIONAL UNION v. J&R FLOORING
whether the Union represents an employee majority. The

Employers have the stronger argument.

[6] Indeed, this particular dispute has never been about

interpreting the actual language of the card check provision.

When the Union originally filed unfair labor practice charges

against the Employers, it charged that the Employers had

refused to bargain after the Union had established majority

status under the card check provision. The ALJ held that the

Union had not complied with the card check provision and

therefore could not establish majority status. What the Union

seeks to arbitrate in this action is “[w]hether the union established its status as the majority representative under § 9(a)

. . . .” The Union candidly acknowledged during oral argument that if and when the Board decides the representational

issue it will trump any arbitration outcome.

[7] Accordingly, we must conclude that in this case the

fundamental dispute between the parties is not contractual,

but is representational. We reach that conclusion from our

examination of the nature of the particular dispute within the

context of the particular provisions bargained for by the parties. We do not accept the extreme argument of the Union that

so long as there is any contractual provision touching upon

representation, then all representational issues are arbitrable.

This position is contrary to St. Vincent, which recognized that

a dispute is not arbitrable where a party is seeking arbitration

of representational issues on which the contract is silent. See

344 F.3d at 984. Nor do we accept the extreme position of FSI

that so long as a dispute touches upon representational issues

it can never go to arbitration. It is foreclosed by Marriott’s

holding that contracts between unions and employers about

representational issues are enforceable under § 301. See 961

F.2d at 1468. 

[8] We hold that where the parties have contractually

agreed only to use a card check to determine whether a union

has established its § 9(a) majority status, the issue of whether

INTERNATIONAL UNION v. J&R FLOORING 11031
the union established its § 9(a) status remains primarily representational and within the NLRB’s primary jurisdiction. The

district court correctly ruled as a matter of law that the issues

were representational and within the primary jurisdiction of

the Board. The Union asked the district court to order arbitration of the issue of whether the Union had achieved majority

status. The contract, however, only provides that the Employers agree to submit to a third-party card check. It does not

specify any details about how the card check is supposed to

occur, and the parties failed to agree on a mutually acceptable

procedure, either through negotiation or arbitration. We do

not see how an arbitrator could possibly resolve the dispute as

framed by the Union without resorting to general principles

derived from our national labor policy. The arbitrator would,

for example, have to consider the validity of the Union’s unilateral card check procedures under NLRB policy that presumptively applies the Daniel-Steiny eligibility formula. The

Board is better suited to such a task. 

[9] The Union suggests that the Federal Arbitration Act

(“FAA”) provides an alternative basis for ordering arbitration

in this case in light of Circuit City Stores, Inc. v. Adams, 532

U.S. 105, 119 (2001) (reversing this Circuit’s exclusion of all

employment contracts from the reach of the FAA). We

assume, without deciding, that the FAA applies to collective

bargaining agreements in this Circuit after Circuit City. See

Poweragent, Inc. v. Elec. Data Sys. Corp., 358 F.3d 1187,

1193 n.1 (9th Cir. 2004) (recognizing unresolved issue). The

FAA would provide a basis for arbitrating a contractual dispute, see 9 U.S.C. § 4, but this dispute is representational

rather than contractual. It therefore remains under the Board’s

primary jurisdiction. 

[10] Finally, both the Union and the Employers have

requested attorneys’ fees on appeal. The authority cited by the

parties does not justify the award as a matter of course, and

we do not find the Union’s appeal to be frivolous. The

requests for fees are therefore denied. 

AFFIRMED. 

11032 INTERNATIONAL UNION v. J&R FLOORING