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Operative Plasterers' & Cement Masons' International Association of the United States and Canada, AFL-CIO v. Jordan Interiors

September 22, 2010

OPERATIVE PLASTERERS' & CEMENT MASONS' INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA, AFL-CIO, ET AL. PETITIONER,
v.
JORDAN INTERIORS, INC, ET AL. RESPONDENT.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, ET AL. PETITIONER,
v.
OPERATIVE PLASTERERS' & CEMENT MASONS' INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA, AFL-CIO RESPONDENT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

These two cases arise from similar underlying facts. In Civil Action 09-cv-1160 (RBW), the Operative Plasterers' and Cement Masons' International Association, AFL-CIO (the "Association") petition to confirm an arbitration award entered in its favor by Arbitrator Paul Greenberg pursuant to the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry ("Plan"). Petition to Confirm Arbitration Award ("Pet. to Confirm") ¶ 1. In response, the Southwest Regional Council of Carpenters ("Southwest Regional Council") and the United Brotherhood of Carpenters and Joiners of America ("Brotherhood of Carpenters") brought a counterclaim to vacate the award. Respondents' Answer to Petition to Confirm Arbitration Award and Counter-Claim ("Council Ans."). Correspondingly, in Civil Action 09-cv-2212 (RBW), the Southwest Regional Council and the Brotherhood of Carpenters brought a petition to vacate an arbitration award issued by Arbitrator Tony Kelly pursuant to the same Plan, which was also entered in favor of the Association. Petition to Vacate Arbitration Award ("Pet. to Vacate"). The Association then filed its answer and a counterclaim in this second case requesting that the Court: (1) confirm the award issued by Arbitrator Kelly, (2) order Jordan Interiors and its representatives, the Brotherhood of Carpenters and the Southwest Regional Council, to comply with the award; and (3) award attorneys fees, court costs, and expenses to the Association. Respondent's Answer to Petition to Vacate Arbitration Award and Counter-Claim to Confirm Arbitration Award ( "Ass'n's Ans.") at 12. In short, both cases involve the same parties and their resolution turns on the question of whether the awards entered by arbitrators Greenberg and Kelly are enforceable.

This matter is now before the Court on the parties' consolidated cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 See Respondents' Consolidated Motion for Summary Judgment ("Council's Mot."); Petitioner [Association]'s Consolidated Motion for Summary Judgment in Case Nos. 1:09-cv-[1]160-(RBW) and 1:09-cv-02212-(RBW) ("Ass'n's Mot.").*fn2 Because the employees of Jordan Interiors elected the Southwest Regional Council as their exclusive representative, resulting in the National Labor Relations Board's certification of the Southwest Regional Council for that representation, the Court must grant summary judgment in part in favor of the Brotherhood of Carpenters, the Southwest Regional Council, and Jordan Interiors; vacate the award issued by Kelly; and accordingly deny the Association's motion for summary judgment in part as to the Kelly award. In regards to Arbitrator Greenberg's award, the Court must grant summary judgment in part in favor of the Association, because at the time of the arbitration Jordan Interiors was still subject to the Agreement and the award was therefore not unlawful. In addition, based on the affirmance of Arbitrator Greenberg's award, the Association is awarded the cost of its attorney fees and court expenses related to their expenditures enforcing the Greenberg award.

I. BACKGROUND

Central to the disputes at hand is the Los Angeles Unified School District Project Stabilization Agreement ("Agreement"), a pre-hire collective bargaining agreement authorized under 29 U.S.C. § 158(f) (commonly referred to as an "8(f)" agreement). Pet. to Vacate, Ex. A (Agreement). A contractor can enter into a § 8(f) collective bargaining agreement, such as the Agreement here, recognizing one or more bargaining representatives despite a lack of majority support from employees. 29 U.S.C. § 158(f) (2006). The Agreement "establishes the labor relations Policies and Procedures for the District and for the craft employees represented by the Unions engaged in the District's new school and building construction and substantial rehabilitation and capital improvement program...." Agreement at 1. The Agreement also contains a clause providing that those parties bound by the Agreement must recognize all signatory unions as the bargaining representatives of its employees. Id. at 12, § 3.1.

On May 12, 2003, approximately thirty labor organizations, including the Brotherhood of Carpenters and its affiliate the Southwest Regional Council, the Association and its affiliated local union (Plasterers Local 200), executed the Agreement. Petitioner [Association]'s Reply Brief in Support of its Consolidated Motion For Summary Judgment ("Ass'n's Reply") at 12.*fn3

Jordan Interiors, an employer that performed plastering work at construction projects, became a party to the pre-existing Agreement by signing a letter of assent on January 20, 2009, after it had been awarded contracts on two projects covered by the Agreement-the Valley Region High School No. 9 Project ("Project No. 9") and the Central Region Middle School No. 7 Project ("Project No. 7"). Id. at 14.

Pursuant to § 8.1 of Article 8 of the Agreement, all work assignments for the School District's construction projects are required to be made "in accordance with the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry." Agreement § 8.1; Ass'n's Ans., Ex. 1 (Plan for the Settlement of Jurisdictional Disputes in the Construction Industry) at 30. Under § 8.2 of the Agreement, parties to the Agreement are required to abide by the Plan's procedures in resolving jurisdictional disputes. Agreement at 28, § 8.2 As the Association states, a jurisdictional dispute arises "when two labor organizations have a disagreement over whether an employer has properly assigned work to be performed by a group of employees represented by one of those unions rather than a different group of employees represented by the other union." Ass'n's Mot., Ex. 1 (Ass'n's Statement of Facts) ("Ass'n's Stmt. of Facts") ¶ 4. After Jordan Interiors became bound by the Agreement, two separate jurisdictional disputes arose over Jordan Interiors' assignment of plastering work. Id. ¶¶ 15, 27. The first dispute occurred at Project No. 9, id. ¶ 15, and the second dispute developed at Project No. 7, id. ¶ 27. Both disputes arose as a result of Jordan Interiors' assignment of plastering work to workers represented by the Southwest Regional Council and the Brotherhood of Carpenters, instead of workers represented by Plasterers Local 200. Id. ¶¶ 15, 27.

As required by the Agreement, the Association notified the Plan's administrator of the jurisdictional dispute at Project No. 9 and the administrator assigned Arbitrator Greenberg to resolve that dispute. Id. ¶ 18. Although the Brotherhood of Carpenters, the Southwest Regional Council, and Jordan Interiors were provided notice of the arbitration hearing scheduled for June 12, 2009, both failed to attend or otherwise participate. Id. ¶ 19. Greenberg then issued his opinion on June 13, 2009, holding that the parties had stipulated to the Plan and ordered the disputed plastering work at Project No. 9 to be assigned to workers represented by the Association. Pet. to Confirm, Ex. 6 (Decision and Award of Arbitrator Paul Greenberg) at 8. Jordan Interiors, the Brotherhood of Carpenters, and the Southwest Regional Council have not complied with this award. Ass'n's Mot., Ex. 1 (Ass'n's Stmt. of Facts) ¶ 26.

Shortly after Arbitrator Greenberg issued his decision, on June 22, 2009, pursuant to an election petition filed by Jordan Interiors with the National Labor Relations Board, an election was held and the employees of Jordan Interiors unanimously voted for the Southwest Regional Council to be their exclusive representative.*fn4 Council's Mot., Ex. 2 (Respondents' Statement of Material Facts to Which There is no Genuine Issue) ¶ 11. Accordingly, the National Labor Relations Board certified the Southwest Regional Council as Jordan Interiors employee's exclusive representative. Id. In October 2009, the Association notified the Plan's administrator of the second jurisdictional dispute at Project No. 7, again invoking the Plan under the Agreement. Id. ¶ 14. A hearing on this dispute was held by Arbitrator Kelly on November 5, 2009, id. ¶ 18, and again the Brotherhood of Carpenters, Southwest Regional Council, and Jordan Interiors did not attend or participate despite being provided notice of the hearing, Ass'n's Mot., Ex. 1 (Ass'n's Stmt. of Facts) ¶ 31. On November 10, 2009, Kelly issued his opinion which ordered Jordan Interiors to assign the disputed work at Project No. 7 to employees represented by the Association. Id. ¶ 33. Jordan Interiors, the Brotherhood of Carpenters, and the Southwest Regional Council have not complied with the decision making this award. Id. ¶ 34.

Currently before the Court are the parties' consolidated cross-motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, arguing for or against the enforceability of the two arbitration awards. Specifically, the Brotherhood of Carpenters and the Southwest Regional Council request that the Court vacate both arbitration awards, Council's Mot. at 1-2, while the Association requests that the Court affirm the awards, Ass'n's Mot. at 1.

The Brotherhood of Carpenters and the Southwest Regional Council argue that the awards are invalid and should be vacated for two reasons. First, they maintain that there was no valid contract between the Association and Jordan Interiors that authorized the arbitration. Respondents' Reply Brief in Support of Their Consolidated Motion for Summary Judgment at 1-2 ("Council's Reply"). They assert that once the employees of Jordan Interiors exercised their rights under 29 U.S.C. § 157 and selected the Southwest Regional Council as their exclusive representative, any conflicting contractual rights that the Association had with Jordan Interiors under the § 8(f) pre-hire Agreement were rendered void. Id. Second, the Brotherhood of Carpenters and the Southwest Regional Council allege that both awards are "repugnant" to the National Labor Relations Act because ordering Jordan Interiors to assign work to workers represented by Plasterers Local 200 "not only impinge[s] on the Board's election certification of the [Southwest Regional Council] and the Section 7 rights of Jordan Interiors' employees but directly violate[s] both...." Id. at 14.

In contrast, the Association asserts that the certification of the Southwest Regional Council as Jordan Interiors employees' representative is irrelevant as a matter of law and that all of the parties remain contractually bound by the Agreement and accordingly the Plan and its jurisdictional dispute resolution procedures. Ass'n's Reply at 16. Moreover, the Association contends that the arbitration awards are not repugnant to the National Labor Relations Act because the disputes that resulted in the awards are jurisdictional and to reassign the disputed work to Plasterers Local 200 would not interfere with the employees of Jordan Interiors choice of representation. Id. Thus, the two issues before the Court are: (1) whether the election and subsequent certification of the Southwest Regional Council as the exclusive representative of Jordan ...


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