United Brotherhood of Carpenters & Joiners v. Operative Plasterers' & Cement Masons' International Ass'n , 721 F.3d 678 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2013 Decided July 5, 2013
No. 11-7155
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO AND SOUTHWEST REGIONAL COUNCIL OF
CARPENTERS,
APPELLANTS
v.
OPERATIVE PLASTERERS’ & CEMENT MASONS’
INTERNATIONAL ASSOCIATION OF THE UNITED STATES &
CANADA, AFL-CIO,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00353)
No. 11-7161
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO AND SOUTHWEST REGIONAL COUNCIL OF
CARPENTERS,
APPELLANTS
v.
2
OPERATIVE PLASTERERS’ & CEMENT MASONS’
INTERNATIONAL ASSOCIATION OF THE UNITED STATES &
CANADA, AFL-CIO,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-02212)
Alice Chih-Mei Chen argued the cause for the appellants.
Daniel M. Shanley was on brief.
Keith R. Bolek argued the cause for the appellee. Brian
A. Powers was on brief.
Robert D. Kurnick and Richard M. Resnick were on brief
for amici curiae Building and Construction Trades
Department, et al. in support of the appellee.
Before: HENDERSON and T ATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In
unconsolidated cases Nos. 11-7155 and 11-7161, two
unions—the United Brotherhood of Carpenters and Joiners of
America (UBCJA) and one of its locals, the Southwest
Regional Council of Carpenters (SWRCC) (collectively,
Carpenters)—appeal the district court’s confirmation of two
arbitration awards in favor of a third union, the Operative
Plasterers’ and Cement Masons’ International Association
(Plasterers). In addition to pressing their merits arguments,
the Carpenters contend that the cases are moot and request
3
vacatur of the district court judgments on either basis.
Concluding that we have jurisdiction, we affirm the district
court’s grants of summary judgment to the Plasterers.
I. Background
In 1997, voters in the Los Angeles Unified School
District (LAUSD) approved funding for a massive capital
improvement program involving both the renovation of
existing facilities and the construction of new ones (LAUSD
Program). In May 2003, the LAUSD executed a project labor
agreement (PLA)—the Project Stabilization Agreement (PSA
or Agreement)—with the Los Angeles/Orange Counties
Building and Construction Trades Council (LACTC) and the
local chapters of several unions in order to stabilize labor
relations on LAUSD Program construction sites. See infra
Part IV.A (discussing PLAs). The SWRCC and the
Plasterers’ Local 200 (Local 200)—the Plasterers’ local
chapter—are both parties to the Agreement. The Agreement
provides that all contractors and subcontractors awarded work
by the LAUSD must accept the Agreement’s terms and must
“evidence their acceptance by the execution of . . . [a] Letter
of Assent.” PSA § 2.5(b), Joint Appendix at 253, United Bhd.
of Carpenters & Joiners v. Operative Plasterers’ & Cement
Masons’ Int’l Ass’n, No. 11-7155 (Frye JA). Contractors and
subcontractors awarded work pursuant to the Agreement must
recognize “the [LACTC] and the signatory local Unions as
the exclusive bargaining representative for the employees
engaged in Project Work” for “the period when the
employee[s are] engaged in Project Work.” Id. § 3.1, Frye JA
256.
Under the Agreement, the contractors are exclusively
responsible for assigning work to particular employees. But
given that more than thirty locals and dozens of contractors
and subcontractors are parties to the Agreement, opportunities
4
for conflict over which employees should perform what work
abound. A conflict “between two or more groups of
employees over which is entitled to do work for an employer”
is known as a “jurisdictional dispute.” NLRB v. Radio &
Television Broad. Eng’rs Union, Local 1212, 364 U.S. 573,
579 (1961) (CBS). Section 10(k) of the National Labor
Relations Act (NLRA), 29 U.S.C. 160(k), authorizes the
National Labor Relations Board (Board) to decide a
jurisdictional dispute if it arises as part of an unfair labor
practice charge under section 8(b)(4)(D), Int’l
Longshoremen’s & Warehousemen’s Union v. NLRB, 884
F.2d 1407, 1409 (D.C. Cir. 1989) (Sea-Land), unless “the
parties to such dispute . . . agree[] upon methods for the
voluntary adjustment of[] the dispute,” 29 U.S.C. § 160(k);
see also Ga.-Pac. Corp. v. NLRB, 892 F.2d 130, 132 (D.C.
Cir. 1989) (“National labor policy favors the private
settlement of jurisdictional disputes between two unions.”).
The Agreement contains a jurisdictional dispute
resolution provision declaring that “[a]ll jurisdictional
disputes between or among Building and Construction Trades
Unions party to th[e] Agreement[] shall be settled and
adjusted according to the” Plan for the Settlement of
Jurisdictional Disputes in the Construction Industry (Plan).
PSA § 8.2, Frye JA 272. Established in 1948 by the Building
and Construction Trades Department of the AFL-CIO, the
Plan is an arbitration mechanism the courts and the Board
have long recognized as an adequate jurisdictional dispute
resolution method under section 10(k). See NLRB v.
Plasterers’ Local Union No. 79, 404 U.S. 116, 120 n.5
(1971); Heavy Constr. Laborers’ Local 60, 305 N.L.R.B. 762,
763 (1991). All decisions rendered pursuant to the Plan are
“final, binding and conclusive on the contractors and Union
parties to” the Agreement, PSA § 8.2, Frye JA 272, and all
5
employers must make work assignments “in accordance with
the Plan,” id. § 8.1, Frye JA 272.
A. Arbitration Awards in No. 11-7161 and No. 11-7155
On June 30, 2009, the Board certified the SWRCC as the
exclusive bargaining representative of the construction
employees of Jordan Interiors, Inc. (Jordan). At some point in
2009, Clark Construction Group, LLC subcontracted with
Jordan to perform plastering work at the Central Region
Middle School No. 7 Project (No. 7 Project) and Jordan
became a party to the Agreement. After learning that Jordan
intended to assign the work to its own SWRCC-represented
employees, the Plasterers filed a complaint with the Plan
Administrator claiming that the plastering work at the No. 7
Project fell within Local 200’s jurisdiction. 1 The UBCJA (on
behalf of its local, the SWRCC) refused to participate in the
Plan arbitration, arguing that the Board’s then-recent
certification of the SWRCC as the exclusive bargaining
representative of Jordan’s construction employees ousted the
arbitrator of authority to arbitrate the dispute. On November
10, 2009, Plan arbitrator Tony A. Kelly determined that the
plastering work at the No. 7 Project belonged to the Plasterers
(Kelly Award).
In 2010, S.J. Amaroso Construction (Amaroso)
subcontracted with Frye Construction, Inc. (Frye) 2 to perform
plastering work at the South Region Elementary School No.
11 Project (No. 11 Project) and Frye thereafter became a party
to the Agreement either in 2010 or 2011. Frye assigned the
1
The Plasterers brought the complaint because the Plan
requires that national and international unions arbitrate disputes on
their locals’ behalf.
2
We refer to Frye and Jordan collectively as the Employers.
6
work to its own employees, who were represented by the
SWRCC. The Plasterers filed a complaint pursuant to the
Plan alleging that the plastering work at the No. 11 Project
fell within Local 200’s jurisdiction. While the complaint was
pending, on February 2, 2011, the Board certified SWRCC as
the exclusive bargaining representative of the bargaining unit
consisting of all of Frye’s construction employees. Before
arbitrator Thomas G. Pagan, the UBCJA (again, on behalf of
the SWRCC) argued that Pagan lacked authority to arbitrate.
On February 7, 2011, Pagan determined that the plastering
work at the No. 11 Project also belonged to the Plasterers
(Pagan Award). 3
B. District Court Proceedings
The Carpenters petitioned the district court to vacate the
Kelly Award and the Plasterers counterclaimed to confirm it.
The district court granted summary judgment to the
Carpenters and vacated the Kelly Award. Operative
Plasterers’ & Cement Masons’ Int’l Ass’n v. Jordan Interiors,
Inc., 744 F. Supp. 2d 49 (D.D.C. 2010) (Jordan Interiors I).
It concluded that Jordan became a party to the Agreement on
January 20, 2009. Id. at 52. Because the June 30, 2009 Board
certification of the SWRCC postdated Jordan’s entry into the
Agreement, the court reasoned that the certification
effectively terminated the contractual relationship between
Jordan and Local 200, thereby stripping the arbitrator of
authority to arbitrate the jurisdictional dispute. Id. at 57. The
Plasterers timely appealed.
While their appeal was pending, the Plasterers also
moved before the district court under Federal Rule of Civil
Procedure 60(b)(1), seeking relief from the summary
3
Beginning in Part II, we refer to the Pagan Award in Frye and
the Kelly Award in Jordan collectively as the Awards.
7
judgment grant against them. They argued that, although the
district court correctly determined that Jordan became a party
to the Agreement in January 2009 on a different project, it did
not become a party as to the No. 7 Project until October 2009.
Because Jordan joined the Agreement after the Board’s June
30, 2009 section 9(a) certification, the certification could not
have terminated the Agreement with respect to Jordan and
Local 200. The district court agreed and entered an order
notifying this Court that, were the case remanded, the district
court would grant the Plasterers’ Rule 60(b) motion. We
remanded; the district court then granted the Plasterers’
motion, vacated its summary judgment grant to the Carpenters
and granted summary judgment to the Plasterers, thereby
confirming the Kelly Award. Operative Plasterers’ & Cement
Masons’ Int’l Ass’n v. Jordan Interiors, Inc., 826 F. Supp. 2d
241, 242–43 n.1, 247–48 (D.D.C. 2011) (Jordan Interiors II).
The Carpenters timely appealed.
The Carpenters also petitioned the district court to vacate
the Pagan Award and the Plasterers counterclaimed for
enforcement. The district court granted summary judgment to
the Plasterers, thus confirming the arbitration award. United
Bhd. of Carpenters & Joiners v. Operative Plasterers’ &
Cement Masons’ Int’l Ass’n, 826 F. Supp. 2d 209, 221
(D.D.C. 2011) (Frye). The Carpenters timely appealed.
II. Mootness
The district court’s statutory jurisdiction to enforce the
Awards arises under 29 U.S.C. § 185(a), (c), Burns Int’l Sec.
Servs., Inc. v. Int’l Union, United Plant Guard Workers, 47
F.3d 14, 16 (2d Cir. 1995), and we have statutory jurisdiction
under 28 U.S.C. § 1291. Our constitutional jurisdiction,
however, is not so clear. See Mayor of Nashville v. Cooper,
73 U.S. (6 Wall.) 247, 252 (1867) (court must have statutory
and constitutional jurisdiction to hear case). Given that many
8
months had passed between the dates the Employers first
assigned the work pursuant to the PLA and the perfecting of
these appeals, at oral argument we ordered the parties to brief
whether these cases had become moot. The briefs revealed
that both the No. 7 and No. 11 Projects are complete. In light
of that fact, the Carpenters now contend that the cases are
moot and ask that we vacate the district court judgments on
that basis. The Plasterers argue that we have jurisdiction
under the “capable of repetition but evading review”
exception to the Article III mootness doctrine.
“Article III, Section 2 of the Constitution permits federal
courts to adjudicate only actual, ongoing controversies.”
McBryde v. Comm. to Review Circuit Council Conduct, 264
F.3d 52, 55 (D.C. Cir. 2001) (quotation marks omitted); see
also Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013). A case
remains live “[a]s long as the parties have a concrete interest,
however small, in the outcome of the litigation.” Knox v. Serv.
Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012)
(quotation marks omitted). The case must remain live “at all
stages of review, not merely at the time the complaint is
filed.” Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974);
see also Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–78
(1990). “[I]f an event occurs while a case is pending on
appeal that makes it impossible for the court to grant ‘any
effectual relief whatever’ to a prevailing party, the appeal
must be dismissed.” Church of Scientology of Cal. v. United
States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159
U.S. 651, 653 (1895)).
In National Football League Players Association v. Pro
Football, Inc., the labor arbitrator ordered the employer to
suspend delinquent employees before the end of the
professional football season. 56 F.3d 1525, 1527 (D.C. Cir.
1995), vacated in other part on reh’g, 79 F.3d 1215 (D.C. Cir.
1996). The employer refused to comply and the union sought
9
enforcement of the arbitration award; the professional football
season ended, however, before we heard the appeal. Id. at
1528. We held that the enforcement action was moot because
an order mandating compliance with the arbitrator’s award—
which required action before the season’s end—would be
wholly ineffectual as the season had ended. Id. at 1529.
Similarly here, vacatur of the arbitration awards would
provide the Carpenters no relief because the plastering work
to which vacatur would entitle them no longer exists.
These cases are therefore moot unless the “capable of
repetition but evading review” exception applies. The
exception applies if “ ‘(1) the challenged action was in its
duration too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same
action again.’ ” Murphy v. Hunt, 455 U.S. 478, 482 (1982)
(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975));
see also S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515
(1911) (announcing exception). The party invoking the
exception bears the burden of showing that both elements are
satisfied. Del Monte Fresh Produce Co. v. United States, 570
F.3d 316, 322 (D.C. Cir. 2009).
We examine the “evading review” prong first. To evade
review, the challenged action must be incapable of surviving
long enough to undergo Supreme Court review. Christian
Knights of the Ku Klux Klan Invisible Empire, Inc. v. District
of Columbia, 972 F.2d 365, 369 (D.C. Cir. 1992). Recent
census data reveals that educational construction projects like
the No. 7 and No. 11 Projects typically last no longer than
approximately two years—and therefore individual work
assignments on those projects last for even shorter periods.
U.S. CENSUS BUREAU, Table 2: Average Number of Months
from Start to Completion for State and Local Construction
Projects Completed in 2010–2011, by Value and Type of
10
Construction (2011), available at http://www.census.gov/
construction/c30/pdf/t211.pdf. In light of the “rule-of-thumb”
that “orders of less than two years’ duration ordinarily evade
review,” the Awards comfortably satisfy the “evading review”
prong. LaRouche v. Fowler, 152 F.3d 974, 978 (D.C. Cir.
1998). Moreover, in the “quintessential jurisdictional
dispute” the employer is neutral as to which group of
employees should perform the work. Int’l Longshoremen’s &
Warehousemen’s Union, Local 14 v. NLRB, 85 F.3d 646, 652
(D.C. Cir. 1996) (Sierra Pacific); see also CBS, 364 U.S. at
579 (“[I]n most instances, [the quarrel] is of so little interest
to the employer that he seems perfectly willing to assign work
to either [group of employees] if the other will just let him
alone.”). A delay in the completion of a particular work
assignment can postpone the completion of an entire
construction project and jeopardize the employer’s ability to
obtain future contracts. It therefore has good reason to
comply quickly with an arbitration award and complete a
given work assignment notwithstanding an unresolved
judicial challenge to the award. Because the judiciary is
ordinarily unable to keep pace with the employer’s need to
complete the work assignment, the Awards are “by [their]
very nature short in duration, so that [they] could not, or
probably would not, be able to be adjudicated while fully
live.” Conyers v. Reagan, 765 F.2d 1124, 1128 (D.C. Cir.
1985) (quotation marks and emphases omitted).
Whether the disputes are “capable of repetition” is a
closer question. “This prong requires that the same parties
will engage in litigation over the same issues in the future.”
Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 633
(D.C. Cir. 2002). The party invoking the exception must
show “a reasonable degree of likelihood that the issue will be
the basis of a continuing controversy between the[] two
parties.” Id. (quotation marks and brackets omitted). The
11
relevant inquiry, however, is not “whether the precise
historical facts that spawned the plaintiff’s claims are likely to
recur.” Del Monte, 570 F.3d at 324. Rather, “[t]he ‘wrong’
that is, or is not, ‘capable of repetition’ must be defined in
terms of the precise controversy it spawns,” to wit, “in terms
of the legal questions it presents for decision.” People for the
Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d 416,
422–23 (D.C. Cir. 2005).
Here, the alleged “wrong” is the Carpenters’ loss of work
caused by the award of the work to a different union pursuant
to a standard arbitration provision in a PLA. The question,
then, is whether the Carpenters are reasonably likely to suffer
this legal wrong again. “In estimating the likelihood of an
event’s occurring in the future, a natural starting point is how
often it has occurred in the past.” Clarke v. United States, 915
F.2d 699, 704 (D.C. Cir. 1990) (en banc). Because the parties
have already arbitrated three jurisdictional disputes arising
under the Agreement, which continues to govern all
construction work awarded before its September 30, 2013
expiration, it is not unreasonable to expect another dispute to
arise between them before the Agreement expires.
But we do not confine our inquiry to disputes arising
under the Agreement. Admittedly, in reviewing an arbitration
award, we are reviewing the interpretation of the particular
terms of a particular contract. See Cole v. Burns Int’l Sec.
Servs., 105 F.3d 1465, 1475 (D.C. Cir. 1997). In an ordinary
contract dispute, the uniqueness of those terms might make
the case so “highly fact-specific” that it would not likely
recur. Gittens, 396 F.3d at 424. Here, however, the terms of
the Agreement are hardly unique. As the amici point out, the
Plan is incorporated into hundreds of PLAs worth tens of
billions of dollars. And the Agreement’s recognition clause—
the only specific clause on which the Carpenters base their
arguments—is a common provision in PLAs. See Bldg. Indus.
12
Elec. Contractors Ass’n v. City of New York, 678 F.3d 184,
186 (2d Cir. 2012) (BIECA). 4 Indeed, numerous
jurisdictional disputes have arisen between these parties under
other PLAs. See, e.g., Sw. Reg’l Council of Carpenters, 348
N.L.R.B. 1250, 1252 (2006) (Standard Drywall II) (resolving
jurisdictional disputes between SWRCC and Local 200 at
ninety-seven job sites, including three covered by PSA); Sw.
Reg’l Council of Carpenters, 346 N.L.R.B. 478, 478 (2006)
(Standard Drywall I) (resolving jurisdiction dispute between
SWRCC and Local 200 at educational construction site).
Granted, those disputes did not result in arbitration. But given
the ubiquity of the Plan in PLAs and the frequency of
jurisdictional clashes involving the Carpenters and the
Plasterers, future arbitrable jurisdictional disputes raising the
same legal issue between them seem reasonably likely to
4
Compare also PSA § 3.1, Frye JA 256 (“The Contractor
recognizes the Council and the signatory local Unions as the
exclusive bargaining representative for the employees engaged in
Project Work. Such recognition does not extend beyond the period
when the employee is engaged in Project Work.”), with BLDG. &
CONSTR. TRADES DEP’T, AFL-CIO, STANDARD PROJECT LABOR
AGREEMENT art. III, § 1, available at http://www.bctd.org/Field-
Services/Project-Labor-Agreement.aspx (“The Contractors
recognize the signatory Unions as the sole and exclusive bargaining
representatives of all craft employees within their respective
jurisdictions working on the Project within the scope of this
Agreement.”), and NEW YORK CITY DEP’ T OF DESIGN & CONSTR.,
PROJECT LABOR AGREEMENT COVERING NEW CONSTRUCTION OF
IDENTIFIED CITY OWNED BUILDINGS & STRUCTURES art. 4, § 1,
available at http://www.nyc.gov/html/mocs/downloads/pdf/pla/
PLA%20DDC%20New%20Construction.PDF (“The Contractors
recognize the signatory Unions as the sole and exclusive bargaining
representatives of all employees who are performing on-site
Program Work, with respect to that work.”).
13
occur. These cases, then, are not moot and we proceed to the
merits.
III. Procedural Issues
Although the Carpenters’ merits arguments are, in the
main, identical in both cases, each appeal presents unique
procedural arguments which we address first.
A. No. 11-7161 (Jordan Interiors I and II)
The Carpenters argue that the district court erred in
granting the Plasterers’ Rule 60(b)(1) motion in Jordan
Interiors II and further erred in denying its motion to
consolidate Jordan Interiors II and Frye or, in the alternative,
in not allowing rebriefing of the issues presented in Jordan
Interiors II. We review the grant of a Rule 60(b) motion, the
denial of a motion for consolidation and the denial of a
motion for further briefing for abuse of discretion. See
Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir.
1987) (Rule 60(b)); Moten v. Bricklayers, Masons &
Plasterers Int’l Union, 543 F.2d 224, 228 n.8 (D.C. Cir. 1976)
(consolidation); Asemani v. Islamic Republic of Iran, 167 Fed.
App’x 806, 806 (D.C. Cir. 2005) (briefing).
Designed to strike a balance between finality and the
demands of justice, see Smalls v. United States, 471 F.3d 186,
191 (D.C. Cir. 2006), Rule 60(b) authorizes the district court
to “relieve a party . . . from a final judgment . . . for . . .
mistake, inadvertence, surprise, or excusable neglect,” so long
as the motion is filed within “a year after entry of the
judgment.” FED. R. CIV . P. 60(b)(1), (c)(1). The Carpenters
claim that granting the Rule 60(b) motion was error because
14
the Plasterers’ failure to press their date-based “defense” 5
before Jordan Interiors I issued was strategic and therefore
not excusable. Br. of Appellants 50, United Bhd. of
Carpenters & Joiners v. Operative Plasterers’ and Cement
Masons’ Int’l Ass’n, No. 11-7166 (Jordan Br. of Appellants).
The Carpenters thus do not challenge the district court’s
determination that Jordan Interiors I was premised on a
factual error but instead argue that the Plasterers are
responsible for that error. But the Plasterers referred
specifically to the October 22, 2009 Letter of Assent in
multiple district-court filings. The district court nevertheless
missed the references and, realizing its mistake, sought to
correct Jordan Interiors I by granting the Plasterers’ motion.
Even if the Carpenters were correct in their reading of the
record below, the district court did not err in granting the
motion. See Good Luck Nursing Home, Inc. v. Harris, 636
F.2d 572, 577 (D.C. Cir. 1980) (“When a party timely
presents a previously undisclosed fact so central to the
litigation that it shows the initial judgment to have been
manifestly unjust, reconsideration under rule 60(b)[(1)] is
proper even though the original failure to present that
information was inexcusable.”). Given that Jordan Interiors I
turned on the district court’s mistaken understanding of the
record and that the Plasterers complied with the timing
requirement of Rule 60(c), the district court did not abuse its
discretion in granting the motion.
The district court denied the Carpenters’ motion for
consolidation or additional briefing because it concluded that
“the parties previously had ample opportunity to make
arguments concerning” the timing issue. Order at 4, United
5
The Carpenters call the question of when Jordan joined the
Agreement a “defense.” When Jordan joined is more correctly
characterized as a question of fact.
15
Bhd. of Carpenters & Joiners v. Operative Plasterers’ &
Cement Masons’ Int’l Ass’n, No. 09-cv-2212 (D.D.C. Dec. 1,
2011). The Carpenters nevertheless contend that the denial of
their motion “deprived [them] of the chance to thoroughly
argue” the timing issue. Jordan Br. of Appellants 49–50. But
they concede that they “would have proffered the largely
same legal theories” had the district court permitted
consolidation or rebriefing. Reply Br. of Appellants 31,
United Bhd. of Carpenters & Joiners v. Operative Plasterers’
& Cement Masons’ Int’l Ass’n, No. 11-7161. Because the
Carpenters had nothing new to say, the district court did not
abuse its discretion in denying briefing and argument on the
timing issue.
B. No. 11-7155 (Frye)
The Carpenters also argue that the district court erred by
failing to accord Jordan Interiors I preclusive effect in Frye.
In Jordan Interiors I, the district court held that the arbitrator
was without authority to award the disputed work to the
Plasterers because the Board’s section 9(a) certification of the
SWRCC, which occurred after Jordan became a party to the
Agreement, terminated the Agreement as between Jordan and
Local 200. Jordan Interiors I, 744 F. Supp. 2d at 57. In Frye,
the Carpenters argued that Jordan Interiors I estopped the
Plasterers from defending the validity of the Pagan Award.
The district court declined to give Jordan Interiors I estoppel
effect because to do so with a judgment premised on a
“misstatement of relevant fact . . . . would be unfair.” Frye,
826 F. Supp. 2d at 215.
Although we ordinarily review a district court’s estoppel
ruling premised on “basic unfairness” for abuse of discretion,
see Connors v. Tanoma Mining Co., 953 F.2d 682, 684 (D.C.
Cir. 1992) (citing Jack Faucett Assoc’s, Inc. v. Am. Tel. &
Tel. Co., 744 F.2d 118, 126 (D.C. Cir. 1984)), here, we need
16
not reach the merits of the issue. On the very day the district
court announced its judgment in Frye, it granted the
Plasterers’ Rule 60(b) motion and vacated Jordan Interiors I
with respect to the Kelly Award. Jordan Interiors II, 826 F.
Supp. 2d at 242–43 n.1; see also Klapprott v. United States,
335 U.S. 601, 614–15 (1949) (Rule 60(b) power is power to
“vacate judgments”). A judgment vacated either by the trial
court or on appeal has no estoppel effect in a subsequent
proceeding. See United States v. Lacey, 982 F.2d 410, 412
(10th Cir. 1992) (“A judgment that has been vacated,
reversed, or set aside on appeal is thereby deprived of all
conclusive effect, both as res judicata and as collateral
estoppel. The same is true, of course, of a judgment vacated
by a trial court.” (quotation marks omitted)); see also Dodrill
v. Ludt, 764 F.2d 442, 444 (6th Cir. 1985). The district court
therefore correctly declined to give Jordan Interiors I
estoppel effect in Frye.
IV. Merits
As this case is before us on appeal from summary
judgment grants, our review is de novo. Calhoun v. Johnson,
632 F.3d 1259, 1261 (D.C. Cir. 2011). We note at the outset
that the Carpenters do not challenge the merits of the Awards.
See Nat’l Postal Mail Handlers Union v. Am. Postal Workers
Union, 589 F.3d 437, 441 (D.C. Cir. 2009) (explaining
deferential standard of review of labor arbitration awards).
Instead, the Carpenters challenge the arbitrators’ authority to
make the Awards and also argue that the Awards contravene
public policy. Before addressing their arguments, we briefly
explain the law governing the Agreement.
A. Sections 8(f), 9(a) and PLAs
“Under sections 9(a) and 8(a)(5) of the [NLRA],
employers are obligated to bargain only with unions that have
17
been ‘designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit
appropriate for such purposes.’ ” Nova Plumbing, Inc. v.
NLRB, 330 F.3d 531, 533 (D.C. Cir. 2003) (quoting 29 U.S.C.
§ 159(a)); see also 29 U.S.C. § 158(a)(5) (“It shall be an
unfair labor practice for an employer . . . to refuse to bargain
collectively with the representatives of his employees, subject
to the provisions of section [9(a)].”); see also Int’l Ladies’
Garment Workers’ Union v. NLRB, 366 U.S. 731, 738–39
(1961). “A union can achieve the status of a majority
collective bargaining representative through either Board
certification or voluntary recognition by the employer . . . .”
Raymond F. Kravis Ctr. for Performing Arts, Inc. v. NLRB,
550 F.3d 1183, 1188 (D.C. Cir. 2008).
Section 8(f) of the NLRA, 29 U.S.C. § 158(f), carves out
a limited exception to section 9(a)’s majority support
requirement within the construction industry. Section 8(f)
provides, in pertinent part:
It shall not be an unfair labor practice . . . for an
employer engaged primarily in the building and
construction industry to make an agreement covering
employees engaged (or who, upon their employment,
will be engaged) in the building and construction
industry with a labor organization of which building
and construction employees are members . . . because
[] the majority status of such labor organization has
not been established under the provisions of section
[]9 prior to the making of such agreement . . . .
29 U.S.C. § 158(f). “Under this exception, a contractor may
sign a ‘pre-hire’ agreement with a union regardless of how
many employees authorized the union’s representation.” Nova
Plumbing, 330 F.3d at 534; see also Allied Mech. Servs., Inc.
v. NLRB, 668 F.3d 758, 761 (D.C. Cir. 2012). The Congress
18
enacted this limited exception because construction employers
must know their labor costs up front in order to generate
accurate bids and must “have available a supply of skilled
craftsmen ready for quick referral.” NLRB v. Local Union No.
103, Int’l Ass’n of Bridge, Structural & Ornamental Iron
Workers, 434 U.S. 335, 348 (1978) (Higdon) (quotation
marks omitted). In addition, traditional union organization is
not conducive to the brief, project-to-project periods workers
spend in the employ of any single contractor. See Bldg. &
Constr. Trades Council v. Associated Builders & Contractors,
507 U.S. 218, 231 (1993) (Boston Harbor); see also Higdon,
434 U.S. at 349.
A union that is party to a section 8(f) agreement serves as
the section 9(a) exclusive bargaining representative of the unit
it purports to represent for the duration of the section 8(f)
agreement. Viola Indus.-Elevator Div., Inc., 286 N.L.R.B.
306, 306 (1987), enforced 979 F.2d 1384 (10th Cir. 1992);
John Deklewa & Sons, Inc., 282 N.L.R.B. 1375, 1385 (1987)
(Deklewa), enforced sub nom. Int’l Ass’n of Bridge,
Structural & Ornamental Iron Workers Local 3 v. NLRB, 843
F.2d 770 (3d Cir. 1988). But its section 9(a) status is limited
in significant respects. A union party to a section 9(a)
agreement is entitled to a conclusive presumption of majority
status for up to three years, during which time decertification
petitions are barred. 6 Auciello Iron Works, Inc. v. NLRB, 517
U.S. 781, 786 (1996). But under section 8(f), a union is
entitled to no such presumption and parties may therefore file
decertification petitions at any time during a section 8(f)
relationship. Nova Plumbing, 330 F.3d at 534. Moreover,
6
A section 9(a) certification absent any collective bargaining
agreement entitles the certified union to a one-year presumption of
majority status. See Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27, 37 (1987).
19
when a section 9(a) agreement expires, the presumption of
majority support requires the employer to continue bargaining
with the union unless the union has in fact lost majority
support or the employer has a good-faith reason to believe
such support has been lost. See Auciello Iron Works, 517 U.S.
at 786–87 (citing NLRB v. Curtin Matheson Scientific, Inc.,
494 U.S. 775, 778 (1990)). But “because the union enjoys no
presumption that it ever had majority support” under section
8(f), the employer can refuse to bargain once a section 8(f)
agreement expires. Nova Plumbing, 330 F.3d at 534.
Even while operative, a section 8(f) agreement is not set
in stone. If a union party to an 8(f) agreement “successfully
seeks majority support, the prehire agreement attains the
status of a [section 9(a)] collective-bargaining agreement
executed by the employer with a union representing a
majority of the employees in the unit.” Higdon, 434 U.S. at
350. “Generally, a union seeking to convert its section 8(f)
relationship to a section 9(a) relationship may either petition
for a representation election or demand recognition from the
employer by providing proof of majority support.” M & M
Backhoe Serv., Inc. v. NLRB, 469 F.3d 1047, 1050 (D.C. Cir.
2006). But “a vote to reject the signatory union will void the
8(f) agreement and will terminate the 8(f) relationship.”
Deklewa, 282 N.L.R.B. at 1385.
As a PLA, the Agreement is a particular type of section
8(f) pre-hire agreement. We have previously explained that
a PLA is a multi-employer, multi-union pre-hire
agreement designed to systemize labor relations at a
construction site. It typically requires that all
contractors and subcontractors who will work on a
project subscribe to the agreement; that all contractors
and subcontractors agree in advance to abide by a
master collective bargaining agreement for all work on
20
the project; and that wages, hours, and other terms of
employment be coordinated or standardized pursuant
to the PLA across the many different unions and
companies working on the project.
Bldg. & Constr. Trades Dep’t, AFL-CIO v. Allbaugh, 295
F.3d 28, 30 (D.C. Cir. 2002). Multi-employer, multi-union
PLAs are commonplace in the construction industry because
they serve the unique needs of the construction-industry labor
market. Robert W. Kopp & John Gaal, The Case for Project
Labor Agreements, CONSTR. LAW., Jan. 1999, at 5–7; Henry
H. Perritt, Keeping the Government out of the Way: Project
Labor Agreements under the Supreme Court’s Boston Harbor
Decision, 12 LABOR LAW. 69, 71–76 (1996). A PLA
typically requires employers to recognize the signatory unions
as the collective bargaining representatives of the employees
engaged in work thereunder; to secure labor from union hiring
halls; and to agree to the terms of the PLA before working on
projects governed by the PLA. BIECA, 678 F.3d at 186. A
PLA also typically standardizes wages, work rules and hours;
provides for the supremacy of the PLA over conflicting
provisions of individual collective bargaining agreements; and
contains no-strike, union security and dispute resolution
provisions. See id. The Agreement, a prototypical PLA,
contains all of these provisions.
B. Arbitrators’ Authority
The Carpenters argue that arbitrators Kelly and Pagan
lacked authority to enter their respective Awards. “An
arbitrator’s power is both derived from, and limited by, the
collective-bargaining agreement.” Barrentine v. Ark.-Best
Freight Sys. Inc., 450 U.S. 728, 744 (1981). Because an
arbitrator cannot rule on matters the parties have not agreed to
arbitrate, see AT&T Techs., Inc. v. Comm’cns Workers of Am.,
475 U.S. 643, 648–49 (1986) (“[A]rbitrators derive their
21
authority to resolve disputes only because the parties have
agreed in advance to submit such grievances to arbitration.”),
a fortiori he cannot decide the rights of non-parties.
The Carpenters challenge the arbitrators’ authority on
three bases. First, they argue that the Agreement is void as
between Local 200 and the Employers because the duty of
exclusive bargaining forbids an employer in a section 9(a)
relationship with one union from entering into a section 8(f)
agreement with any other union. Second, they argue that the
Board’s certification of the SWRCC in effect decertified
Local 200 as the representative of the Employers’ workers
and voided the Agreement as between Local 200 and the
Employers. Finally, the Carpenters argue that the disputes are
representational in nature and therefore beyond the
arbitrators’ authority.
1. SWRCC’s § 9(a) Certifications and Right of Exclusive
Representation in PLA Context
The Carpenters first argue that “the principle of exclusive
representation precludes any Section 8(f) agreement between
[the Employers] and [Local 200].” Br. of Appellants 32,
United Bhd. of Carpenters & Joiners v. Operative Plasterer’s
& Cement Masons’ Int’l Ass’n, No. 11-7155 (Frye Br. of
Appellants); Jordan Br. of Appellants 31. They contend that
because the section 9(a) certifications trigger the duty of
exclusive bargaining, the Employers cannot also enter a
multi-unit PLA—like the Agreement—because doing so
would violate their duty to bargain only with the SWRCC
over work assignments.
We need not decide whether section 9(a) categorically
permits the Agreement. The Carpenters concede that the
Agreement between the Employers and all signatory unions is
permissible under section 8(f). See Boston Harbor, 507 U.S.
22at 230 (approving multiemployer, multi-union PLAs under
section 8(f)). But, they argue, the Agreement is unlawful
under section 9(a) because, unlike section 8(f), an employer in
a section 9(a) relationship owes the union a duty of exclusive
bargaining. Section 8(f) is an exception to the majority
support requirement, however, not to the exclusive bargaining
requirement of sections 9(a) and 8(a)(5). See Madison Indus.,
Inc., 349 N.L.R.B. 1306, 1307 (2007); Deklewa, 282
N.L.R.B. at 1387 & n.50. As we have explained, a union
party to a section 8(f) agreement serves as the limited section
9(a) representative of the bargaining unit it purports to
represent during the term of that agreement. Deklewa, 282
N.L.R.B. at 1387; see also id. at 1386 (“It is clear that the
imposition of enforceable contract obligations on signatories
to an 8(f) agreement is contingent, in part, on the signatory
union possessing exclusive representative status.”). 7 Section
8(a)(5) forbids an employer in a section 8(f) agreement from
repudiating the agreement and negotiating with a non-
signatory union (at least while the agreement is in effect) in
precisely the same way that section 8(a)(5) forbids an
employer from refusing to bargain with a union certified
under section 9(a). See Local No. 150, Int’l Union of
Operating Eng’rs v. NLRB, 480 F.2d 1186, 1191 (D.C. Cir.
7
We previously rejected the Board’s pre-Deklewa
interpretation of section 8(f) in favor of the one it articulated in
Deklewa. See Local 150, Int’l Union of Operating Eng’rs v. NLRB,
480 F.2d 1186, 1190–91 (D.C. Cir. 1973); see also Deklewa, 282
N.L.R.B. at 1387–88. Moreover, seven sister circuits have
explicitly adopted the Board’s interpretation of section 8(f). Am.
Automatic Sprinkler Sys., Inc. v. NLRB, 163 F.3d 209, 215 n.3 (4th
Cir. 1998) (citing cases). Only the Fourth Circuit has rejected
Deklewa and did so because of preexisting contrary circuit
precedent. Indus. TurnAround Corp. v. NLRB, 115 F.3d 248, 254
(4th Cir. 1997) (citing Clark v. Ryan, 818 F.2d 1102 (4th Cir.
1987)).
23
1973) (“[A]n employer[] who has entered into a validly
executed § 8(f) pre-hire agreement . . . should be held to the
same standard of conduct in regard to unfair labor practices as
an employer who has entered into a collective bargaining
agreement with a union certified to have majority status.”);
see also GEM Mgmt. Co., 339 N.L.R.B. 489, 501 (2003). The
Carpenters’ argument therefore fails because if, as the
Carpenters concede, the Agreement does not violate the duty
of exclusive bargaining under section 8(f), it does not do so
under section 9(a). 8
8
The Carpenters also argue that section 8(f) agreements cannot
“trump the Section 7 [of the NLRA, 29 U.S.C. § 157] rights of
workers at any time.” Frye Br. of Appellants 31; Jordan Br. of
Appellants 30. We agree but the Carpenters fail to point to
anything in the Agreement that violates section 7’s guarantee of the
rights of self-organization and collective bargaining. Unions and
employers are free to alter the scope of bargaining units—even
units certified pursuant to section 9(a)—by entering into multi-unit
agreements like the Agreement. See The Idaho Statesman v. NLRB,
836 F.2d 1396, 1400 (D.C. Cir. 1988); Utility Workers Union, 203
N.L.R.B. 230, 238 (1973), enforced 490 F.2d 1383 (6th Cir. 1974);
Shell Oil Co., 194 N.L.R.B. 988, 995 (1972) (“It is well settled that
the parties to a collective-bargaining relationship may voluntarily
agree . . . to the enlargement or alteration of an existing unit, or to
the merger of separate units, theretofore recognized by the parties
or found by the Board to be appropriate for the purposes of
collective bargaining.” (emphasis in original)), review denied sub
nom. Oil, Chem. & Atomic Workers, Int’l Union v. NLRB, 486 F.2d
1266 (D.C. Cir. 1973). We therefore cannot conceive of how the
voluntary merger of the units represented by the SWRCC and Local
200 in this run-of-the-mill PLA violates section 7. Moreover, given
that the NLRA “not only tolerates but actively encourages
voluntary settlements of work assignment controversies between
unions,” Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 266
(1964), we see nothing in the Agreement’s arbitration provisions
that violates section 7.
24
2. Certification of SWRCC qua Decertification of Local
200
Relying on Deklewa, the Carpenters next argue that by
certifying the SWRCC as the exclusive bargaining
representative of the Employers’ employees, the Board
necessarily decertified Local 200 as the representative of
those Employees, thereby voiding the Agreement as between
the Employers and Local 200. Their argument proceeds as
follows: the Agreement’s recognition clause—which provides
that “[t]he Contractor recognizes the Council and the
signatory local Unions as the exclusive bargaining
representative for the employees engaged in Project Work,”
PSA § 3.1, Frye JA 256—obligates signatory employers to
recognize all of the signatory unions as the exclusive
representatives of each and every employee. Under Deklewa,
if a bargaining unit subsequently votes to reject the union
purporting to represent it under a section 8(f) agreement, that
vote “will void the [section] 8(f) agreement and will terminate
the [section] 8(f) relationship.” Deklewa, 282 N.L.R.B. at
1385. The Carpenters reason that the employees’ vote in
favor of the SWRCC also in effect rejected, and therefore
decertified, Local 200. And under Deklewa those
decertifications voided the Agreement between Local 200 and
the Employer, terminating the arbitrator’s authority. 9
9
The parties dispute whether the Employers joined the
Agreement before or after the SWRCC was certified. If the
Employers became parties after the SWRCC was certified, its
certifications could not have decertified Local 200 because, even
under the Carpenters’ theory, the Employers had not yet recognized
Local 200. We decline to resolve the dispute because, even
assuming arguendo the Employers became parties to the
Agreement before the certifications, the certifications did not
decertify Local 200.
25
We reject the Carpenters’ reading of the Agreement’s
recognition clause. The clause merely requires what section
8(f) permits: employers must recognize the signatory unions
as the exclusive bargaining representatives of the employees
they purport to represent—for work governed by the
Agreement—irrespective of any showing of majority support
and irrespective of whether a particular employee is in fact a
member of the signatory union. See Trustees of S. Cal. IBEW-
NECA Pension Trust Fund v. Flores, 519 F.3d 1045, 1047–48
(9th Cir. 2008); see also Mastro Plastics Corp. v. NLRB, 350
U.S. 270, 279 (1956) (“Like other contracts, [a collective
bargaining agreement] must be read as a whole and in the
light of the law relating to it when it was made.”). Because
the Agreement’s recognition clause did not require the
Employers to recognize Local 200 as the representative of
their employees, the Board’s certification of the SWRCC did
not affect the contractual relationship between the Employers
and Local 200. In fact, assuming arguendo that the
representation certifications took place after the Employers
joined the Agreement, the employees’ election can be seen as
ratifying the Employers’ and the SWRCC’s decisions to enter
into the section 8(f) Agreement. See Comtel Sys. Tech., Inc.,
305 N.L.R.B. 287, 290 & n.14 (1991). The section 9(a)
certifications of the SWRCC therefore did not void the
Agreement as between the Employers and Local 200.
3. Representational vs. Jurisdictional Nature of the
Dispute
Finally, the Carpenters argue that the dispute between the
unions is representational, not jurisdictional. Because the
Board has exclusive jurisdiction over representation
questions, see Road Sprinkler Fitters Local Union 669 v.
Herman, 234 F.3d 1316, 1320 (D.C. Cir. 2000), they argue
that the arbitrators had no authority to decide the dispute
between the Carpenters and the Plasterers. But as the
26
Carpenters concede, Local 200 disclaims any interest in
representing the Employers’ employees. Local 200 claims
that it only wants to obtain the plastering work for its
members and nothing in the record suggests otherwise.
Because this case is simply “a contest between two groups of
employees . . . actively contend[ing] for disputed work,” the
dispute is paradigmatically jurisdictional. Sea-Land, 884 F.2d
at 1411 (emphases deleted); see also Sierra Pacific, 85 F.3d at
652. The Carpenters’ argument thus rests on an unstated
assumption, to wit, that the section 9(a) certifications entitle
their members to all work contracted out to the
Employers pursuant to the Agreement.
Their assumption—and therefore their argument—suffers
from a fatal flaw: the Board’s certification of a particular
bargaining unit is not a determination of the work to which
that unit is entitled. As the Supreme Court has explained:
[A] Board certification in a representation proceeding
is not a jurisdictional award; it is merely a
determination that a majority of the employees in an
appropriate unit have selected a particular labor
organization as their representative for purposes of
collective bargaining. It is true that such certification
presupposes a determination that the group of
employees involved constitute an appropriate unit for
collective bargaining purposes, and that in making
such determination the Board considers the general
nature of the duties and work tasks of such employees.
However, unlike a jurisdictional award, this
determination by the Board does not freeze the duties
or work tasks of the employees in the unit found
appropriate. Thus, the Board’s unit finding does not
per se preclude the employer from adding to, or
subtracting from, the employees’ work assignments.
While that finding may be determined by, it does not
27
determine, job content; nor does it signify approval, in
any respect, of any work task claims which the
certified union may have made before this Board or
elsewhere.
Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 269 (1964)
(quotation marks omitted). The Board has further clarified
that
its sole function in representation proceedings is to
ascertain and certify the name of the bargaining
representative, if any, that has been designated by the
employees in the appropriate unit. It is not the Board’s
responsibility in representation proceedings to decide
whether employees in the bargaining unit are entitled
to do any particular work or whether an employer has
properly reassigned work from employees in the
bargaining unit to other employees.
Gas Serv. Co., 140 N.L.R.B. 445, 447 (1963). The Board’s
certification of the SWRCC as the exclusive bargaining
representative of the Employers’ employees thus decides
nothing about the work to which those employees are entitled
under the Agreement. 10 Because this dispute is
10
In fact, when the Board resolves a jurisdictional dispute
under its section 10(k) authority, a section 9(a) certification is but a
single factor of a multi-factor test. See Int’l Ass’n of Machinists,
Lodge No. 1743, 135 N.L.R.B. 1402, 1410–11 (1962); see also,
e.g., Int’l Bhd. of Elec. Workers, Local 196, 358 N.L.R.B. No. 87,
slip op. at 5–6 (July 24, 2012). Although such certification “favors
awarding the disputed work to employees represented by” the
certified union, Int’l Union of Operating Eng’rs, Local 150, 354
N.L.R.B. No. 112, slip op. at 5 (Nov. 30, 2009), it is not
dispositive. Indeed, the Board has awarded work to an uncertified
union over a certified one. See, e.g., Int’l Longshoremen’s &
Warehousemen’s Union, Local 8, 324 N.L.R.B. 666, 667–68
28
quintessentially jurisdictional and a section 9(a) certification
does not resolve work assignment questions, the arbitrators
were plainly authorized to make the Awards.
C. Consistency with Other Law
The Awards are interpretations of the Agreement and
treated as part of the Agreement itself. See Cole, 105 F.3d at
1475 (“In the absence of fraud or an overreaching of authority
on the part of the arbitrator, he is speaking for the parties, and
his award is their contract.” (quotation marks omitted)). As
with any contract, “an arbitration award that is in explicit
conflict with other laws and legal precedents[] is
unenforceable.” Am. Postal Workers Union v. U.S. Postal
Serv., 550 F.3d 27, 32 (D.C. Cir. 2008) (quotation marks and
citations omitted); see also United Paperworkers Int’l Union
v. Misco, Inc., 484 U.S. 29, 42 (1987) (“A court’s refusal to
enforce an arbitrator’s award under a collective-bargaining
agreement because it is contrary to public policy is a specific
application of the more general doctrine, rooted in the
common law, that a court may refuse to enforce contracts that
violate law or public policy.”). “[T]he question of public
policy is ultimately one for resolution by the courts. Such a
public policy, however, must be well defined and dominant,
and is to be ascertained ‘by reference to the laws and legal
precedents and not from general considerations of supposed
public interests.’ ” W.R. Grace & Co. v. Local Union 759,
Int’l Union of United Rubber, Linoleum & Plastic Workers,
461 U.S. 757, 766 (1983) (quoting Muschany v. United States,
324 U.S. 49, 66 (1945)).
(1997). Moreover, the Supreme Court rejected the Board’s
previous approach that made representation certifications nearly
dispositive. See Plasterers’ Local, 404 U.S. at 130–31.
29
The Carpenters argue that the Awards are invalid because
they run counter to a sister circuit’s decision as well as a
Board order arising from a series of disputes between Local
200 and the SWRCC. The history of these disputes is laid out
in detail by the Ninth Circuit in Small v. Operative Plasterers’
& Cement Masons’ International Association, Local 200, 611
F.3d 483 (9th Cir. 2010), to which we refer only as necessary
to reject the Carpenters’ argument. In Small, the district court
enjoined Local 200 from prosecuting two state-court lawsuits
against the SWRCC while the Board determined whether that
litigation constituted an unfair labor practice. Id. at 489. The
Ninth Circuit affirmed, reasoning that because the law suits
would undermine two previous Board section 10(k)
determinations, see Standard Drywall II, 348 N.L.R.B. at
1252; Standard Drywall I, 346 N.L.R.B. at 478, the Board
was likely to conclude that the suits violated section
8(b)(4)(D) of the NLRA, 29 U.S.C. § 158(b)(4)(D). Id. at
493–94.
The Board subsequently ruled that the lawsuits enjoined
in Small, as well as several arbitration awards obtained by
Local 200, in fact constituted unfair labor practices under
section 8(b)(4)(D) because they conflicted with the Board’s
earlier section 10(k) determinations of several jurisdictional
disputes decided in the SWRCC’s favor. Operative
Plasterers’ & Cement Masons’ Int’l Ass’n, Local 200, 357
N.L.R.B. No. 160, slip op. at 4–7 (Dec. 30, 2011) (Standard
Drywall III). The Board ordered Local 200 to
[c]ease and desist from . . . [t]hreatening, coercing, or
restraining SDI, or any other person or employer
engaged in commerce or in an industry affecting
commerce, where an object of their actions is to force
or require the employer to assign plastering work to
Local 200’s members, rather than to its own
employees who are not members of Local 200.
30
Operative Plasterers’ & Cement Masons’ Int’l Ass’n, Local
200, 357 N.L.R.B. No. 179, slip op. at 6 (Dec. 31, 2011)
(Standard Drywall IV). This language closely tracks that of
section 8(b)(4)(D) and is plainly intended to enjoin Local 200
from violating that provision.
We begin with the proposition that seeking arbitration “is
not coercive for the purposes of § 8(b)(4)(D).” Ga.-Pac., 892
F.2d at 132; see also Brockton Newspaper Guild, 275
N.L.R.B. 135, 136 (1985). A party violates section
8(b)(4)(D), however, if it subverts a section 10(k) decision by
seeking arbitration of a jurisdictional dispute after the Board
has determined the dispute pursuant to section 10(k). Sea-
Land, 884 F.2d at 1413–14; see also N. Cal. Dist. Council of
Laborers, 292 N.L.R.B. 1035, 1035 (1989). Although the
Carpenters argue that the Board’s certification orders have the
same effect as a section 10(k) determination, “a Board
certification in a representation proceeding is not a
jurisdictional award.” Carey, 375 U.S. at 269 (quotation
marks omitted). Because the Board has made no section
10(k) determination that the Awards could subvert, the
Awards conflict neither with Small nor with the Board’s
Standard Drywall IV order.
The Carpenters next argue that, because the Employers
are not parties in this litigation, the district court could not
order the Employers to subcontract the disputed work to
Local 200-staffed subcontractors. We agree, but this issue is
of no significance because the district court did not order the
Employers to do anything. The Employers’ absence from this
litigation is therefore irrelevant.
The Carpenters also argue that, because the Awards will
likely require the Employers to subcontract the disputed work
to firms employing Local 200 members, the Awards violate
section 4107 of the California Public Contract Code, which
31
places certain limitations on the ability of prime contractors to
substitute subcontractors or permit the reassignment of
previously awarded subcontracts. C AL. PUB. CONT . CODE
§ 4107(a), (b). We need not wade into California public
contracting law. The arbitrators determined only that the
disputed work belonged to the Plasterers and the district court
affirmed their determinations. Nothing in the Awards or the
district court orders violates California law because they do
not require the Employers to enter into any subcontracts; they
leave the question of the nature of the parties’ compliance
unanswered. 11
Finally, the Carpenters argue that, because the Plasterers
disclaim any intent to represent the Employers’ employees,
the Agreement violates section 8(e) of the NLRA, 29 U.S.C.
§ 158(e). Relevant here, section 8(e) prohibits subcontracting
agreements—agreements between an employer and a union in
which the employer promises to subcontract work only to
unionized employers. See Truck Drivers Local Union No. 413
v. NLRB, 334 F.2d 539, 548 (D.C. Cir. 1964). But section
8(e) also contains a “construction industry proviso” excepting
the construction industry from its prohibition on
subcontracting agreements as to “contracting or
subcontracting work to be done at the site of the
construction.” 29 U.S.C. § 158(e); see also Woelke & Romero
Framing, Inc. v. NLRB, 456 U.S. 645, 657 (1982); Donald
Schriver, Inc. v. NLRB, 635 F.2d 859, 873 & n.21 (D.C. Cir.
1980).
The Carpenters do not identify a particular clause of the
Agreement that, they claim, violates section 8(e). Instead,
11
And, in any event, the rights protected by section 4107
belong to subcontractors. See S. Cal. Acoustics Co. v. C.V. Holders,
Inc., 71 Cal. 2d 719, 727 (1969); R.J. Land & Assocs. Const. Co. v.
Kiewit-Shea, 69 Cal. App. 4th 416, 421 (1999).
32
they contend that the Plasterers’ “scheme” violates section
8(e) under the Supreme Court’s decision in Connell
Construction Co. v. Plumbers & Steamfitters Local Union No.
100, 421 U.S. 616 (1975) because the Plasterers have no
intention of representing the Employers’ employees. But
Connell held only that a “stranger” agreement—a
subcontracting agreement between a union and contractor
where (1) the union does not seek to represent the contractor’s
employees and (2) the two parties are not in a collective
bargaining relationship—does not fall within the construction
industry proviso. Connell, 421 U.S. at 627–28, 636. In
contrast, the proviso protects “subcontracting clauses that are
sought or negotiated in the context of a collective-bargaining
relationship,” Woelke & Romero, 456 U.S. at 648, and Local
200 and the Employers are parties to a section 8(f)
multiemployer, multi-union collective bargaining agreement,
see Donald Schriver, 635 F.2d at 873, 875 (section 8(f)
agreement qualifies as collective bargaining agreement under
Connell). The Agreement therefore is not a stranger
agreement under Connell.
For the foregoing reasons, in No. 11-7155 and No. 11-
7161 we affirm the district court’s grants of summary
judgment to the Plasterers, thereby confirming the arbitrators’
Awards in their favor.
So ordered.