Opcmia v. NLRB

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 07 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
OPERATIVE PLASTERERS’ AND No. 12-70151
CEMENT MASONS’ INTERNATIONAL
ASSOCIATION, AFL-CIO, OPCMIA; NLRB No. 21-CD-673
OPERATIVE PLASTERERS’ AND
CEMENT MASONS’ INTERNATIONAL
ASSOCIATION LOCAL 200, AFL-CIO, MEMORANDUM*
Plasters Local 200,
Petitioners,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent,
SOUTHWEST REGIONAL COUNCIL
OF CARPENTERS; STANDARD
DRYWALL, INC.,
Intervenors.
NATIONAL LABOR RELATIONS No. 12-70384
BOARD,
NLRB No. 21-CD-673
Petitioner,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
OPERATIVE PLASTERERS’ AND
CEMENT MASONS’ INTERNATIONAL
ASSOCIATION LOCAL 200, AFL-CIO;
OPERATIVE PLASTERERS’ AND
CEMENT MASONS’ INTERNATIONAL
ASSOCIATION, AFL-CIO, OPCMIA,
Respondents.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted August 28, 2013
Pasadena, California
Before: O’SCANNLAIN, BEA, and CHRISTEN, Circuit Judges.
Here, the Operative Plasterers & Cement Masons International and Local
200 (“Plasterers”) and the Southwest Regional Council of Carpenters
(“Carpenters”) dispute which union has the right to be the collective bargaining
agent of employees who work at a number of Southern California jobs of
contractor-employer Standard Drywall, Inc. (“SDI”). This case is a petition for
review from Operative Plasterers & Cement Masons International Ass’n Local
200, 357 NLRB No. 179 (Dec. 31, 2011) (“SDI IV”), which awarded the work to
the Carpenters.
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We deny the Plasterers’ petition for review, and dismiss their challenges to
the National Labor Relations Board’s (“NLRB”) remedial order for lack of
jurisdiction. We grant the NLRB’s motion for enforcement.
This court reviews the NLRB’s factual findings for substantial evidence and
reviews its legal conclusions under the “arbitrary and capricious” standard. Recon
Refractory & Constr. Inc. v. NLRB, 424 F.3d 980, 986–87 (9th Cir. 2005).
1. The NLRB had jurisdiction under Section 10(k) of the National Labor
Relations Act (“NLRA”) to hear and decide Southwest Regional Council of
Carpenters, 348 N.L.R.B. 1250 (2006) (“SDI II”). Section 10(k) provides that the
NLRB has jurisdiction over disputes arising from allegations of unfair labor
practices unless “the parties to such dispute submit to the Board satisfactory
evidence that they have adjusted, or agreed upon methods for the voluntary
adjustment of, the dispute.” 29 U.S.C. § 160(k). In SDI II, the NLRB analyzed the
Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (“the
Plan”), which provides a procedure for resolving disputes. The NLRB concluded
that the Plan did not constitute an agreed-upon method for voluntary adjustment
for two reasons.
First, even assuming that the Plan governed the jurisdictional disputes as to
which union should represent the workers at three of the job sites, ninety-four other
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projects were not governed by the Plan. The NLRB relied on Ironworkers, Local
563 (Spancrete Midwest Co.), 183 N.L.R.B. 1105 (1970), for the proposition that an
agreed-upon dispute resolution method that covers only a fraction of the projects at
issue does not qualify as an agreed-upon method for purposes of Section 10(k)
jurisdiction; such fractional coverage does not oust the Board’s jurisdiction over
the whole of the dispute.
Second, the NLRB found there was a risk that SDI would be subject to
conflicting arbitration awards because SDI’s collective-bargaining agreement with
the Carpenters provided for a different arbitration procedure than did the Plan. The
NLRB relied on its decision in Operating Engineers Local 318 (Kenneth E. Foeste
Masonry, Inc.), 322 N.L.R.B. 709 (1996), which held that the risk of conflicting
awards means that there is “no determinative agreed-on method” for resolving
jurisdictional disputes, thereby vesting the NLRB with jurisdiction. Id. at 712.
The question whether parties are bound by an agreed-upon method of
resolving a jurisdictional dispute is a fairly technical one, requiring industry
knowledge and expertise in labor disputes, to which knowledge and expertise we
owe deference. Recon Refractory, 424 F.3d at 987 (giving the Board “considerable
deference in . . . exercising its expertise” in adjudicating a jurisdictional dispute).
The NLRB reasonably relied on its own precedent in Spancrete and Foeste to
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conclude that the Plan was not an agreed-upon method within the meaning of
Section 10(k); this conclusion was neither arbitrary nor capricious.
2. We also uphold the NLRB’s determination in SDI IV that the Plasterers
violated Section 8(b)(4)(ii)(D) of the NLRA by pursuing enforcement of the
second Greenberg arbitration award contrary to the NLRB’s Section 10(k)
determination in SDI II. It is well-settled that pursuit of a legal action contrary to
determinations of representational rights by the Board can be an “unfair labor
practice” within the meaning of the NLRA. See Small v. OPCMIA Local 200, 611
F.3d 483, 489–93 (9th Cir. 2010).
3. Finally, the Plasterers claim that the NLRB erred in granting a broad
order requiring the Plasterers to cease and desist from “threatening, coercing, or
restraining SDI, or any other person or employer.” The Plasterers argue that this
remedial order was overbroad because it prohibited their actions as to unnamed
non-parties. Because the Plasterers failed to seek reconsideration of the NLRB’s
remedial orders, however, this court lacks the jurisdiction to review them. The
NLRA divests the courts of appeals of jurisdiction to consider “objection[s] that
ha[ve] not been urged before the Board, its member, agent, or agency . . . unless
the failure or neglect to urge such objection shall be excused because of
extraordinary circumstances.” 29 U.S.C. § 160(e). The NLRB retained concurrent
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jurisdiction over this case until the administrative record was filed, even though
SDI petitioned for review of the case in this Court before the deadline for seeking
reconsideration before the NLRB had expired. See NLRB v. Legacy Health System,
662 F.3d 1124, 1127 (9th Cir. 2011). Therefore, the Plasterers’ failure to file a
petition for rehearing before the NLRB divests this court of jurisdiction to consider
their challenge to the scope of the cease-and-desist order and grant of attorneys’
fees to SDI.
For the foregoing reasons, the Plasterers’ petition for review, case number
12-70151, is DENIED, and their challenges to the NLRB remedial order for lack of
jurisdiction, case number 12-70151, are DISMISSED. The NLRB’s motion for
enforcement, case number 12-70384, is GRANTED.
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