                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1284
                                    ___________

Sheet Metal Workers International      *
Association, Local Union No. 36,       *
                                       *
                  Appellee,            *
                                       * Appeal from the United States
      v.                               * District Court for the Eastern
                                       * District of Missouri.
Murphy Construction Co., doing         *
business as Grossman Sheet Metal,      *
                                       *
                  Appellant.           *
                                  ___________

                            Submitted: September 13, 1999
                                Filed: September 22, 1999
                                   ___________

Before McMILLIAN, FAGG, and MURPHY, Circuit Judges.
                            ___________

FAGG, Circuit Judge.

       Murphy Construction Co. (Murphy) maintains collective bargaining agreements
with both Sheet Metal Workers International Association, Local Union No. 36 (Local
36) and United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry, Local Union No. 562 (Local 562). After Murphy assigned two
jobs to Local 562, Local 36 filed a grievance, claiming it was entitled to the work. The
arbitrator agreed and awarded Local 36 damages. Local 562 threatened to strike if the
work was reassigned to Local 36, and, faced with the unions’ conflicting demands,
Murphy requested that the National Labor Relations Board (NLRB) resolve the
dispute. See National Labor Relations Act (NLRA) § 8(b)(4)(D), 29 U.S.C. §
158(b)(4)(D) (1994) (unfair labor practice for union to strike in support of its claim to
disputed work); NLRA § 10(k), 29 U.S.C. § 160(k) (authorizing NLRB to hear and
decide work disputes involving threatened strikes). The NLRB held a § 10(k) hearing
in which both unions and Murphy participated, but has not yet decided which union is
entitled to the work. Meanwhile, Local 36 brought this lawsuit in district court to
enforce the arbitration award. The district court denied Murphy’s motion to stay
proceedings pending the NLRB’s decision and granted summary judgment for Local
36.

       On appeal, Murphy contends the district court abused its discretion by denying
Murphy’s motion to stay proceedings. We agree. “It is well-established law that
courts are not to enforce an arbitration award that conflicts with a § 10(k)
determination.” J.F. White Contracting Co. v. Local 103 Int’l Bhd. of Elec. Workers,
890 F.2d 528, 529 (1st Cir. 1989); accord Carey v. Westinghouse Elec. Corp., 375
U.S. 261, 272 (1964) (“Should the [NLRB] disagree with the [arbitrator], . . . the
[NLRB’s] ruling would, of course, take precedence . . . .”); Local 7-210, Oil, Chem.
& Atomic Workers, Int’l Union v. Union Tank Car Co., 475 F.2d 194, 199 (7th Cir.
1973) (“[O]nce the [NLRB] has acted, either before or after the arbitrator’s award, the
[NLRB’s] order overrides the arbitrator’s decision.”). Here, the NLRB’s pending
decision will address the same issue presented to the arbitrator, and, if the NLRB
decides Local 562 is entitled to the disputed work, the arbitrator’s conflicting
conclusion must bow to the NLRB’s determination. Given that the district court will
be unable to enforce the arbitration award to Local 36 in the face of a contrary NLRB
decision, we conclude in this instance that “[a]ppropriate deference to the jurisdiction
and expertise of the [NLRB] . . . require[d] a stay of judicial proceedings.” Northern
Calif. Dist. Council of HOD Carriers, Bldg. & Constr. Laborers v. Opinski, 673 F.2d
1074, 1075 (9th Cir. 1982); accord International Org. of Masters, Mates & Pilots v.
Trinidad Corp., 803 F.2d 69, 74 (2d Cir. 1986) (“[S]ince the NLRB has . . . scheduled

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a hearing on the very issue involved here, . . . it would be inopportune to preempt the
NLRB’s jurisdiction and risk conflicting determinations by this court and the NLRB.
. . . Accordingly, the most efficient procedure at this time is to stay the matter pending
resolution . . . by the NLRB.”); cf. Sheet Metal Workers Local Union No. 20 v. Baylor
Heating & Air Conditioning, Inc., 877 F.2d 547, 550-51 (7th Cir. 1989) (district court
did not abuse its discretion in denying stay pending NLRB decision because “the
underlying controversy [was] primarily contractual [and] the [NLRB] should defer to
the courts”); International Bhd. of Elec. Workers, Local 532 v. Brink Constr. Co., 825
F.2d 207, 213 (9th Cir. 1987) (stay not compelled because “district court’s order
addressed no issues within the NLRB’s primary jurisdiction”).

      Thus, we vacate the district court’s entry of summary judgment for Local 36 and
remand to the district court with directions to grant Murphy’s motion for a stay pending
the NLRB’s decision. Because our conclusion disposes of Murphy’s appeal, we do not
consider Murphy’s remaining contentions.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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