530 F2d 849 International Association of Machinists and Aerospace Workers v. National Labor Relations Board

530 F.2d 849

91 L.R.R.M. (BNA) 2832, 78 Lab.Cas. P 11,301

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, DISTRICT LODGE NO. 87, LOCAL
LODGE NO. 1309, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
and
Valley Ford Sales, Inc., d/b/a Friendly Ford, Intervenor.

No. 74--3362.

United States Court of Appeals,
Ninth Circuit.

Feb. 25, 1976.

William R. Coleman (argued), Fresno, Cal., for petitioner.

Peter J. Carre, Atty. (argued), NLRB, Washington, D.C., for respondent.

James M. Bell, (argued), of Crossland, Crossland, Caswell & Bell, Fresno, Cal., for intervenor Valley Ford Sales, Inc.

OPINION

Before HUFSTEDLER and CHOY, Circuit Judges, and CHRISTENSEN,* District Judge.

PER CURIAM:

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1

The case is before us upon the petition of the International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, Local Lodge No. 1309 ('the Union') to review a decision of the NLRB.

2

Pursuant to a stipulation by The Union and the employer, Friendly Ford, the dispute was referred to an arbitrator. The dispute concerned the alleged illegality of the employer's unilateral rescission of its wage incentive plan, which the Union claimed was an unfair labor practice. The arbitrator concluded that the unilateral termination was not a violation of Sections 8(a)(1) and (5) of the Labor Management Relations Act of 1947 (29 U.S.C. §§ 158(a)(1) & (5)). The arbitrator's conclusion was based upon his determination that the contract permitted the employer unilaterally to terminate and that the Union, in any event, had waived its right to complain about such termination.

3

The narrow issue before us is whether the Board abused its discretion in deferring to the decision of the arbitrator and in dismissing the unfair labor practice complaint. We can find no basis upon which to conclude that the Board abused its discretion in deferring to the arbitrator. (E.g., Carey v. Westinghouse (1963) 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320; Spielberg Mfg. Co., (1955) 112 NLRB 1080.) For this reason we have no occasion to reach the merits of the underlying controversy.

4

Petition denied.

*

Honorable A. Sherman Christensen, Senior United States District Judge, District of Utah, sitting by designation