United Bhd. of Carpenters & Joiners of Am., AFL–CIO v. Operative Plasterers' & Cement Masons' Int'l Ass'n of U.S. & Canada, AFL–CIO

• Decision Date: 05 July 2013
• Docket Number: Nos. 11–7155,11–7161.,s. 11–7155
• Citation: 721 F.3d 678
• Court: U.S. Court of Appeals — District of Columbia Circuit
• Parties: 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. 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.

721 F.3d 678

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.

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.

Nos. 11–7155, 11–7161.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb. 7, 2013.

Decided July 5, 2013.

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 TATEL, 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 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 assigningwork to particular employees. But given that more than thirty locals and dozens of contractors and subcontractors are parties to the Agreement, opportunities 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, 81 S.Ct. 330, 5 L.Ed.2d 302 (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, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971); Heavy Constr. Laborers' Local 60, 305 NLRB 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 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 plasteringwork 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 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 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...