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Operative Plasterers' & Cement v. Jordan Interiors

December 1, 2011

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

AMENDED MEMORANDUM OPINION*fn1

In this case, the United Brotherhood of Carpenters and Joiners of America ("Brotherhood of Carpenters") and the Southwest Regional Council of Carpenters ("Southwest RegionalCouncil") filed a petition with this Court to vacate an arbitration award issued by Arbitrator Tony A. Kelly pursuant to the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry ("Jurisdictional Plan"), which found in favor of the Operative Plasterers' and Cement Masons' International Association, ALF-CIO ("Association" or "OPCMIA"). Petition to Vacate Arbitration Award ("Pet. to Vacate") at 1. The Association then filed its answer and a counterclaim requesting that the Court: (1) confirm the award issued by Arbitrator Kelly, (2) order Jordan Interiors, Inc. ("Jordan Interiors"), a contractor, and the Brotherhood of Carpenters and the Southwest Regional Council, a national union and its local affiliate, respectively, to comply with the award; and (3) award it attorneys' fees, court costs, and expenses incurred seeking enforcement of Arbitrator Kelly's award. Association's Answer to Petition to Vacate Arbitration Award and Counter-Claim to Confirm Arbitration Award ("Ass'n's Ans.") at 12.

This matter is now before the Court on the parties' cross-motions for summary judgment under Federal Rule of Civil Procedure 56. See Brotherhood of Carpenters' and Southwest Regional Council's Consolidated Motion for Summary Judgment ("Council's Mot."); OPCMIA's Consolidated Motion for Summary Judgment ("Ass'n's Mot."). For the following reasons, the Court must grant the Association's cross-motion for summary judgment and confirm Arbitrator Kelly's award.*fn2

I. BACKGROUND

Central to the dispute at hand is the Los Angeles Unified School District Project Stabilization Agreement ("LAUSD 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, Exhibit ("Ex.") A (LAUSD Agreement). A contractor can enter into a § 8(f) collective bargaining agreement, such as the LAUSD Agreement here, recognizing one or more bargaining representatives despite a lack of majority support from its employees.*fn3 29 U.S.C. § 158(f) (2006). The LAUSD Agreement "establishes the labor relations [p]olicies and [p]rocedures for the [Los Angeles Unified School] District and for the craft employees represented by the

[u]nions engaged in the District's new school and building construction and substantial rehabilitation and capital improvement program." Pet. to Vacate, Ex. A (LAUSD Agreement) at 1.

Local unions and contractors bind themselves to the LAUSD Agreement in different ways. The unions are "signatory" parties to the LAUSD Agreement. Id. at 12 § 3.1; see also id. at 47-48 (listing all the local unions signatory to the Agreement). Contractors, on the other hand, are bound to the LAUSD Agreement on a project-to-project basis. Id. at 9 § 2.5(b). According to the LAUSD Agreement, all contractors and subcontractors of whatever tier, who have been awarded contracts for work covered by this Agreement, shall be required to accept and be bound to the terms and conditions of this Project Stabilization Agreement, and shall evidence their acceptance by the execution of the Agreement or of the

[l]etter of [a]ssent . . . prior to [the] commencement of work.

Id. Once a contractor is bound to the LAUSD Agreement, it is required to "recognize[] the [Los Angeles/Orange Counties Building and Construction Trades] Council and the signatory local [u]nions as the exclusive bargaining representatives for the employees engaged in Project Work." Id. at 12 § 3.1. On May 12, 2003, approximately thirty labor organizations, including the Brotherhood of Carpenters' local affiliate, the Southwest Regional Council, and the Association's local affiliate, Plasterers Local 200, executed the LAUSD Agreement. Id. at 47-48; Ass'n's Reply at 12.*fn4

Pursuant to § 8.1 of Article 8 of the LAUSD Agreement, all work assignments for construction projects covered by the LAUSD Agreement are required to be made "in accordance with the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry ["Jurisdictional Plan"]." Pet. to Vacate, Ex. A (LAUSD Agreement) at 28, § 8.1; Ass'n's Ans., Ex. 1 (Jurisdictional Plan) at 30. Under § 8.2 of the LAUSD Agreement, parties to the Agreement are required to abide by the Jurisdictional Plan's procedures for resolving jurisdictional disputes. Pet. to Vacate, Ex. A (LAUSD Agreement) at 28, § 8.2. As the Association explains, 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 (Association's Statement of Material Facts As to Which There Is No Genuine Issue ("Ass'n's Stmt. of Facts")) ¶ 4.

On June 22, 2009, pursuant to an election petition filed by Jordan Interiors with the National Labor Relations Board, an election was held by the employees of Jordan Interiors, and they unanimously voted for the Southwest Regional Council to be their exclusive representative. Council's Mot., Ex. 2 (Council's Statement of Material Facts to Which There Is No Genuine Issue ("Council's Stmt. of Facts")) ¶ 11. "Shortly[] thereafter," Council's Opp'n at 3, the National Labor Relations Board certified the Southwest Regional Council as the Jordan Interiors employees' exclusive representative. Id. A jurisdictional dispute then arose as a result of Jordan Interiors' assignment of plastering work to its workers who are represented by the Southwest Regional Council, rather than to workers represented by Plasterers Local 200. Id.¶ 27. In October 2009, the Association notified the Jurisdictional Plan's administrator of the jurisdictional dispute at Project No. 7, invoking the Jurisdictional Plan under the LAUSD Agreement.*fn5 Id.¶ 14. On October 22, 2009, Jordan Interiors executed a letter of assent for Project No. 7. Ass'n's Mot., Declaration of Rob Mason ("Mason Decl.") Ex. 1 (Letter of Assent for Project No. 7).

A hearing on the jurisdictional dispute was held by Arbitrator Kelly on November 5, 2009,*fn6 Council's Mot., Ex. 2, Council's Stmt. of Facts ¶ 18, but the Brotherhood of Carpenters, the 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, Arbitrator 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 failed to comply with Arbitrator Kelly's decision. Id. ¶ 34.

Currently before the Court are the parties' cross-motions for summary judgment under Federal Rule of Civil Procedure 56, arguing for or against the enforceability of the arbitration award awarding the Project No. 7 work to individuals represented by the Association. Specifically, the Brotherhood of Carpenters and the Southwest Regional Council request that the Court vacate the arbitration award, Council's Mot. at 1-2, while the Association requests that the Court affirm the award, Ass'n's Mot. at 1. The Brotherhood of Carpenters and the Southwest Regional Council argue that the award is invalid and should be vacated for two reasons. First, they maintain that there was no valid contract between the Association and Jordan Interiors authorizing the arbitration. Council's Reply at 1-2. They assert that once the Jordan Interiors employees 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 the award is "repugnant" to the National Labor Relations Act because ordering Jordan Interiors to assign work to workers represented by Plasterers Local 200 "impinge[s] on the Board's election certification of the [Southwest Regional Council] and the Section 7 rights of Jordan Interiors' employees." 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 LAUSD Agreement's incorporation of the Jurisdictional Plan and its procedures for the resolution of jurisdictional disputes. Ass'n's Reply at 16. The Association further contends that the arbitration award is not repugnant to the National Labor Relations Act because the dispute that resulted in the award is jurisdictional, rather than representational, in nature. They advance this argument based on the premise that the reassignment of the disputed work to Plasterers Local 200 would not interfere with the Jordan Interiors employees' choice of representation. Id.Thus, the two issues before the Court are: (1) whether the election, and the subsequent certification of the Southwest Regional Council by the National Labor Relations Board, as the exclusive representative of Jordan Interiors' employees prospectively ...


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