Summary of NLRB Decisions for Week of October 7 - 11, 2013
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
No published decisions.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
No unpublished decisions.
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Appellate Court Decisions
Operative Plasterers and Cement Masons Int'l Ass'n, Local 200 (Standard Drywall, Inc.), Board Case No. 21-CD-659 (reported at 357 NLRB No. 160) and Board Case No. 21-CD-673 (reported at 357 NLRB No. 179) (9th Cir. decided October 7, 2013)
In two unpublished opinions in companion cases, the Court enforced the Board’s orders finding that the Operative Plasterers’ and Cement Masons’ International Association and Local 200 ("the Plasterers") repeatedly violated Section 8(b)(4)(ii)(D) of the Act by pursuing work that the Board had awarded to a rival union in two Section 10(k) proceedings.
In 2002, Standard Drywall, Inc. (“SDI”) and the Southwest Regional Council of Carpenters entered into an agreement for plastering work covering 12 southern California counties. Two years later, the Plasterers asserted a claim for the plastering work covered by the agreement, initially attempting to enforce its demand for work at one such jobsite through a state court lawsuit against SDI seeking to force it to use an apprenticeship program run by the Plasterers at public works projects throughout southern California. Local 200’s demand for the jobs prompted a threat by the Carpenters to strike if SDI moved the work at the disputed jobsite. SDI filed a charge with the Board alleging that the strike threat violated Section 8(b)(4)(ii)(D), which prohibits unions from striking to reassign work unless the employer is acting contrary to a Board order awarding the work pursuant to Section 10(k) of the Act.
In response to the charge, the Board convened a Section 10(k) jurisdictional-dispute proceeding in which it found that the two unions had made competing claims for the work in dispute, and it awarded the work at that jobsite to the Carpenters. The Plasterers, however, continued to demand work at 97 other jobsites by further pursuing its lawsuit, and by telling SDI that it would drop the lawsuit only if SDI reassigned the work. In response, the Carpenters again threatened to strike if the work was reassigned, and SDI filed another charge, prompting the Board to convene a second 10(k) hearing. At that hearing, the Board rejected the Plasterers' contentions that it was not seeking the work, that the Carpenters' strike threat was the result of collusion between the Carpenters and SDI, and that the two unions had an agreed-upon method for voluntarily resolving their far-ranging dispute. Because of the likelihood of future jurisdictional disputes, the Board issued a broad award of work to the Carpenters on all similar jobs done by SDI on any other public work projects in Southern California. With the work awarded to the Carpenters under Section 10(k), SDI’s Section 8(b)(4)(ii)(D) charges against the Carpenters were dismissed.
After the Board issued its Section 10(k) awards, the Plasterers continued to demand the work, maintaining its state court lawsuit, filing an additional lawsuit against SDI and the Carpenters for tortious interference, and pursing grievances and arbitration under a plan for the settlement of jurisdictional disputes that at most covered only three of the jobsites at issue, and that conflicted with the plan specified in the Carpenters' agreement with SDI. In a December 30, 2011 Decision and Order, the Board found that the Plasterers’ continued pursuit of the work in the face of the Board’s 10(k) awards to the Carpenters violated Section 8(b)(4)(ii)(D), noting the well settled law that a union’s pursuit of a lawsuit or arbitration to obtain work awarded by the Board to another union under Section 10(k) has an illegal objective under the Act. Because the lawsuit had an illegal purpose, the Board held that it may be enjoined as an unfair labor practice without running afoul of the Supreme Court’s decision in Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 737 n.5 (1983). In a Decision and Order issued the next day, the Board found that the Plasterers again violated Section 8(b)(4)(ii)(D) by continuing to pursue grievances and arbitration awards against the Carpenters. To tame this unlawful conduct, the Board issued a broad cease and desist order directing the Plasterers to cease and desist from threatening "any other person or employer."
Before the Ninth Circuit, Local 200 challenged the Board’s initial jurisdiction to convene the Section 10(k) hearings, its findings that Local 200 violated the Act by continuing to pursue the work after the Board’s award to the Carpenters, and the Board’s broad order in its second decision. Reviewing the Board’s factual findings for substantial evidence and its legal conclusions under the arbitrary and capricious standard, the Court upheld the Board’s orders in all respects. As the Court observed, questions like these are “fairly technical . . . requiring industry knowledge and expertise in labor relations.”
The Court’s opinions are available here and here.
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Administrative Law Judge Decisions
No Administrative Law Judge decisions.
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