United Bhd. of Carpenters & Joiners of America v. Operative Plasterers' & Cement Masons' Int'l Ass'n of the United States & Canada, AFL-CIO

• Decision Date: 01 December 2011
• Docket Number: Civil Action No. 11-353 (RBW)
• Parties: UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, et al., Petitioners, v. OPERATIVE PLASTERERS' & CEMENT MASONS' INTERNATIONAL ASSOCIATION OF THE UNITED STATES & CANADA, AFL-CIO, Respondent.
• Court: U.S. District Court — District of Columbia

UNITED BROTHERHOOD OF

CARPENTERS & JOINERS OF

AMERICA, et al., Petitioners,

v.OPERATIVE PLASTERERS' & CEMENT

MASONS' INTERNATIONAL

ASSOCIATION OF THE UNITED

STATES & CANADA, AFL-CIO, Respondent.

Civil Action No. 11-353 (RBW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Dated: December 1, 2011

MEMORANDUM OPINION

This case arises from a jurisdictional dispute over the assignment of work for the South Regional Elementary School No. 11 Project ("No. 11 Project"), a public elementary school construction project in Los Angeles, California. The dispute was submitted to arbitration, and Arbitrator Thomas G. Pagan entered an award in favor of the Operative Plasterers' and Cement Masons' International Association ("Association"). See Respondent's Motion for Summary Judgment ("Ass'n's Mot."), Exhibit ("Ex.") 8 (February 7, 2011 Arbitration Award ("Award")) at 6. The United Brotherhood of Carpenters and Joiners of America ("Brotherhood of Carpenters") and the Southwest Regional Council of Carpenters ("Southwest Regional Council") petitioned the Court to (1) vacate the arbitration award; and (2) award attorneys' fees, costs, and expenses to the United Brotherhood of Carpenters and the Southwest Regional Council. Petition to Vacate Arbitration Award ("Council's Pet.") at 7. The Association filed an answer and a counterclaim,requesting the Court to: (1) confirm the arbitration award; (2) order Frye Construction, a contractor, the United Brotherhood of Carpenters, and the Southwest Regional Council to comply with the award; (3) compensate the Association for losses suffered as a result of the United Brotherhood of Carpenters' and the Southwest Regional Council's non-compliance with the award; and (4) award attorneys' fees, costs, and expenses to the Association. Respondent's Answer to the Petition to Vacate Arbitration Award ("Ass'n's Answer") at 4; Respondent's First Amended Counterclaim to Confirm Arbitration Award ("Ass'n's Am. Countercl.") at 10.

The matter is now before the Court on the parties' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. Petitioners' Motion for Summary Judgment ("Council's Mot."); Ass'n's Mot. For the following reasons, the Court must grant the Association's motion for summary judgment and confirm Arbitrator Pagan's award. ¹

I. BACKGROUND

The petitioners, United Brotherhood of Carpenters and its local affiliate the Southwest Regional Council, and the respondent, the Association on behalf of its local affiliate Plasterers Local 200, are labor organizations engaged in the building and construction industry. Council's Answer to Countercl. ¶¶ 6, 9. 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, entered into the Los Angeles Unified SchoolDistrict Project Stabilization Agreement ("LAUSD Agreement").² Ass'n's Mot., Ex. 2 (Agreement) at 47-48. The LAUSD Agreement is a pre-hire collective bargaining agreement authorized in the construction industry pursuant to 29 U.S.C. § 158(f) (commonly referred to as an "8(f)" agreement). Council's Pet. ¶ 1. The LAUSD Agreement "establishes the labor relations Policies and Procedures 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 . . . ." Ass'n's Mot., Ex. 2 (the Agreement) at 1. In other words, the LAUSD Agreement creates a uniform standard of procedures and policies for construction projects in the Los Angeles Unified School District. See id.

The local unions and contractors bind themselves to the LAUSD Agreement in different ways. The local unions are "signatory" parties to the LAUSD Agreement. Ass'n's Mot., Ex. 2 (LAUSD Agreement) at 12 § 3.1; see also id. at 47-48 (identifying the thirty 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 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.

In an effort to prevent and efficiently resolve jurisdictional disputes, the LAUSD Agreement requires contractors to make work assignments "in accordance with the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the 'Jurisdictional Plan')." Ass'n's Mot., Ex. 2 (LAUSD Agreement) at 28 § 8.1. A jurisdictional dispute is "[a] dispute between unions over the assignment of work and in which a [c]ontractor has an interest." Id. at 10. Further, any jurisdictional dispute that does arise "shall be settled and adjusted according to the [Jurisdictional] Plan." Id. § 8.2. The Jurisdictional Plan calls for the submission of all jurisdictional disputes to arbitration, Ass'n's Mot., Ex. 1 (Jurisdictional Plan) at 21, at which an arbitrator will determine the proper work assignment based upon a variety of factors including "the established trade practice in the industry and the prevailing practice in the locality." Id. at 24.

The present case arises from Frye Construction Incorporated's assignment of work at the No. 11 Project to its employees, who are represented by the Southwest Regional Council. Council's Answer to Countercl. ¶ 2(a). The Association disputed Frye Construction's work assignment, arguing that the work should have been assigned to employees represented by the Plasterers Local 200, Ass'n's Am. Countercl. ¶ 2(b), and submitted the dispute to the Administrator of the Jurisdictional Plan for resolution on January 10, 2011,³ Ass'n's Mot., Ex. 7 (January 10, 2011 Article IV Complaint for Arbitration ("Complaint for Arbitration")) ¶¶ d, e. On January 24, 2011, the Frye Construction employees unanimously voted in favor of representation by the Southwest Regional Council. Ass'n's Answer ¶ 19. As a result of the election, the National Labor Relations Board certified the Southwest Regional Council as theexclusive bargaining representative for the Frye Construction employees on February 2, 2011. Council's Mot., Ex. B (Certification of Representative Southwest Regional Council ("Certification")). On February 7, 2011, Arbitrator Pagan ruled on the dispute, finding that the work should have been assigned to workers represented by Plasterers Local 200. Ass'n's Mot., Ex. 8 (Award) at 1, 7. Then, on March 8, 2011, Frye Construction signed a letter of assent binding itself to the LAUSD Agreement.⁴ Ass'n's Mot., Ex. 9 (March 8, 2011 Letter of Assent). Frye Construction, the Brotherhood of Carpenters, and the Southwest Regional Council have not complied with Arbitrator Pagan's award. Council's Ans. ¶ 5.

Currently before the Court are the parties' cross-motions for summary judgment under Rule 56, arguing for or against the enforceability of the arbitration award. Specifically, the Brotherhood of Carpenters and the Southwest Regional Council request that the Court vacate the arbitration award, Council's Mem. at 3, while the Association requests that the Court affirm the award, Ass'n's Mem. at 1. The Brotherhood of Carpenters and the Southwest Regional Councilcontend that the award is invalid and should be vacated for three reasons. Council's Mot. at 6-10. First, they argue the Association should be precluded from litigating the same issue that was previously decided by this Court in Operative Plasterers' & Cement Masons' International Association, AFL-CIO v. Jordan Interiors, Inc., 744 F. Supp. 2d 49 (D.D.C. 2010). Council's Mem. at 6. Second, the Brotherhood of Carpenters and the Southwest Regional Council assert that Arbitrator Pagan lacked contractual authority to enter the award because once the employees of Frye Construction had selected the Southwest Regional Council as their exclusive representative, Frye Construction was prohibited from entering into the LAUSD Agreement. Council's Mot. at 10, 13. Third, they argue that enforcement of the award would be unlawful and "repugnant" to the National Labor Relations Act. Id. at 10, 13-14; Council's Reply at 17.

In contrast, the Association maintains that the certification of the Southwest Regional Council as the Frye Construction employees' exclusive representative cannot nullify Frye's assent to the LAUSD Agreement because certification does not terminate prospective agreements where such agreements do not infringe employees' rights to collectively bargain with their employers and vote on their representation. Ass'n's Mem. at 3. Thus, the Association argues, all parties are contractually bound to the LAUSD Agreement and accordingly also to the Plan's jurisdictional dispute resolution procedures. Id. at 4. The Association further maintains that the enforcement of Arbitrator Pagan's award would not interfere with the Frye Construction employees' choice of representation because Frye Construction can subcontract the work to employees represented by Plasterers Local 200. Id. Finally, the Association asserts that even though Frye Construction was not bound by the Agreement or the Plan at the time of the arbitration, Frye Construction still must comply with the award because the award constitutes the proper work assignment in accordance with the Plan, to which it is now bound. Id. at 18-19.Thus, the three issues...