Standard Drywall, Inc. v. National Labor Relations Board

NOT FOR PUBLICATION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

STANDARD DRYWALL, INC., No. 12-70047

Petitioner,

v. MEMORANDUM*

NATIONAL LABOR RELATIONS
BOARD,

Respondent.

OPERATIVE PLASTERERS’ AND No. 12-70139
CEMENT MASONS’ INTERNATIONAL
ASSOCIATION, AFL-CIO, OPCMIA; NLRB No. 21-CD-659
OPERATIVE PLASTERERS’ AND
CEMENT MASONS’ INTERNATIONAL
ASSOCIATION LOCAL 200, AFL-CIO,
Plasters Local 200,

Petitioners,

v.

NATIONAL LABOR RELATIONS
BOARD,

Respondent,

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
SOUTHWEST REGIONAL COUNCIL
OF CARPENTERS; STANDARD
DRYWALL, INC.,

Intervenors.

NATIONAL LABOR RELATIONS No. 12-70379
BOARD,
NLRB No. 21-CD-659
Petitioner,

STANDARD DRYWALL, INC.,

Intervenor,

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.

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 Here, the Operative Plasters & Cement Masons International and Local 200

(“Plasterers”) and the Southwest Regional Council of Carpenters (“Carpenters”)

dispute rights to represent employees of contractor-employer Standard Drywall,

Inc. (“SDI”). SDI petitions for review of the National Labor Relations Board

(“NLRB”)’s decision in Operative Plasterers’ & Cement Masons’ International

Ass’n Local 200, 357 NLRB No. 160 (Dec. 30, 2011) (“SDI III”). Plasterers

petition for review of SDI III and Operative Plasterers & Cement Masons

International Ass’n, Local No. 200, 348 NLRB 1250 (2006) (“SDI II”). We deny

the Plasterers’ and SDI’s petitions for review and grant the NLRB’s petition for

enforcement.

This court reviews the NLRB’s factual findings for substantial evidence and

reviews its legal conclusions under the “arbitrary and capricious” standard. See

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 SDI II. See 29 U.S.C. § 160(k). The

Pullen lawsuit and Plasterers’ Secretary-Treasurer Finley’s statements constitute

substantial evidence sufficient to support the NLRB’s holding that the

representational rights to the plastering work involved were in dispute. The NLRB

did not act arbitrarily when it rejected the Plasterers’ proffered evidence of

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collusion and determined that the Carpenters had engaged in proscribed conduct.

The Board properly considered and rejected the Plasterers’ allegation, which

distinguishes this case from Construction & General Laborers Local 190 v. NLRB,

998 F.2d 1064 (D.C. Cir. 1993).

Further, in SDI II, the NLRB analyzed 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 to

representational rights of the two unions at three of the job sites, ninety-four other

projects were not governed by the Plan. The NLRB relied on Ironworkers, Local

563 (Spancrete Midwest Co.), 183 NLRB 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.

Second, because SDI’s agreement with the Carpenters also contained an

arbitration clause which provided for an arbitration panel different from the Plan,

there was a risk that SDI would be subject to conflicting arbitration awards. The

NLRB relied on its decision in Operating Engineers Local 318 (Kenneth E. Foeste

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Masonry, Inc.), 322 NLRB 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. The NLRB reasonably relied on its

own precedent in Spancrete and Foeste to conclude that the Plan was not an

agreed-upon method within the meaning of Section 10(k), and this conclusion was

not “arbitrary and capricious.”

2. The NLRB’s broad order in SDI II was not arbitrary. The NLRB’s

finding that the Carpenters had a proclivity to engage in wrongful conduct was

supported by substantial evidence. It was reasonable for the Board to conclude that

the Carpenters would continue to engage in proscribed conduct given that this was

the second instance of such conduct and given the breadth of the Carpenters’

threatened future strikes.

3. The NLRB’s determination in SDI III that Local 200’s California state

court lawsuits against SDI (the Pullen and Tortious Interference lawsuits) had an

illegal objective is supported by substantial evidence and is not arbitrary or

capricious. The NLRB found that favorable resolutions of the Pullen and Tortious

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Interference lawsuits would directly conflict with the NLRB’s section 10(k)

determinations. Thus, the suits had an illegal objective, were not protected by the

First Amendment, and could be enjoined. See Small v. Operative Plasterers’ and

Cement Masons’ Int’l Ass’n, Local 200, 611 F.3d 483, 489–93 (9th Cir. 2010).

4. The award of reasonable legal fees was not punitive. Because the NLRB

did not err in holding that the Pullen and Tortious Interference lawsuits had illegal

objectives, the Plasterers’ argument that they should have to pay attorneys’ fees for

only those claims that could be construed as a demand to work is without merit.

5. SDI does not have standing to complain of the admission of the

Operative Plasterers & Cement Masons International Ass’n, Local No. 200, 346

NLRB 478 (2006) (“SDI I”) and SDI II records into evidence in SDI III because

SDI prevailed in SDI III. See 29 U.S.C. § 160(f) (only aggrieved parties may

obtain review of a final order of the Board).

6. The NLRB did not abuse its discretion when it issued its standard cease-

and-desist order in SDI III instead of the broader order requested by SDI.

Challenges to NLRB remedial orders are “subject to limited judicial review.”

Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216 (1964). We must not

disturb NLRB remedial orders unless it can be shown that the order is a “patent

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attempt to achieve ends other than those which can fairly be said to effectuate the

policies of the Act.” Id. SDI did not make such a showing.

For the foregoing reasons, the Plasterers’ petition for review, case number

12-70139, is DENIED, SDI’s petition for review, case number 12-70047, is

DENIED, and the NLRB’s petition for enforcement, case number 12-70379, is

GRANTED.

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