United Brotherhood of Carpenters & Joiners v. Operative Plasterers' & Cement Masons' International Ass'n

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2013 Decided July 5, 2013

No. 11-7155

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

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00353)

No. 11-7161

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF

AMERICA, AFL-CIO AND SOUTHWEST REGIONAL COUNCIL OF

CARPENTERS,

APPELLANTS

v.

2

OPERATIVE PLASTERERS’ & CEMENT MASONS’

INTERNATIONAL ASSOCIATION OF THE UNITED STATES &

CANADA, AFL-CIO,

APPELLEE

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 T ATEL, 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

3

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 assigning work to particular employees. But

given that more than thirty locals and dozens of contractors

and subcontractors are parties to the Agreement, opportunities

4

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 (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

(1971); Heavy Constr. Laborers’ Local 60, 305 N.L.R.B. 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

5

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

plastering work 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

1

The Plasterers brought the complaint because the Plan

requires that national and international unions arbitrate disputes on

their locals’ behalf.

2

We refer to Frye and Jordan collectively as the Employers.

6

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

3

Beginning in Part II, we refer to the Pagan Award in Frye and

the Kelly Award in Jordan collectively as the Awards.

7

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 appealed.

II. Mootness

The district court’s statutory jurisdiction to enforce the

Awards arises under 29 U.S.C. § 185(a), (c), Burns Int’l Sec.

Servs., Inc. v. Int’l Union, United Plant Guard Workers, 47

F.3d 14, 16 (2d Cir. 1995), and we have statutory jurisdiction

under 28 U.S.C. § 1291. Our constitutional jurisdiction,

however, is not so clear. See Mayor of Nashville v. Cooper,

73 U.S. (6 Wall.) 247, 252 (1867) (court must have statutory

and constitutional jurisdiction to hear case). Given that many

8

months had passed between the dates the Employers first

assigned the work pursuant to the PLA and the perfecting of

these appeals, at oral argument we ordered the parties to brief

whether these cases had become moot. The briefs revealed

that both the No. 7 and No. 11 Projects are complete. In light

of that fact, the Carpenters now contend that the cases are

moot and ask that we vacate the district court judgments on

that basis. The Plasterers argue that we have jurisdiction

under the “capable of repetition but evading review”

exception to the Article III mootness doctrine.

“Article III, Section 2 of the Constitution permits federal

courts to adjudicate only actual, ongoing controversies.”

McBryde v. Comm. to Review Circuit Council Conduct, 264

F.3d 52, 55 (D.C. Cir. 2001) (quotation marks omitted); see

also Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013). A case

remains live “[a]s long as the parties have a concrete interest,

however small, in the outcome of the litigation.” Knox v. Serv.

Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012)

(quotation marks omitted). The case must remain live “at all

stages of review, not merely at the time the complaint is

filed.” Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974);

see also Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–78

(1990). “[I]f an event occurs while a case is pending on

appeal that makes it impossible for the court to grant ‘any

effectual relief whatever’ to a prevailing party, the appeal

must be dismissed.” Church of Scientology of Cal. v. United

States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159

U.S. 651, 653 (1895)).

In National Football League Players Association v. Pro

Football, Inc., the labor arbitrator ordered the employer to

suspend delinquent employees before the end of the

professional football season. 56 F.3d 1525, 1527 (D.C. Cir.

1995), vacated in other part on reh’g, 79 F.3d 1215 (D.C. Cir.

1996). The employer refused to comply and the union sought

9

enforcement of the arbitration award; the professional football

season ended, however, before we heard the appeal. Id. at

1528. We held that the enforcement action was moot because

an order mandating compliance with the arbitrator’s award—

which required action before the season’s end—would be

wholly ineffectual as the season had ended. Id. at 1529.

Similarly here, vacatur of the arbitration awards would

provide the Carpenters no relief because the plastering work

to which vacatur would entitle them no longer exists.

These cases are therefore moot unless the “capable of

repetition but evading review” exception applies. The

exception applies if “ ‘(1) the challenged action was in its

duration too short to be fully litigated prior to its cessation or

expiration, and (2) there was a reasonable expectation that the

same complaining party would be subjected to the same

action again.’ ” Murphy v. Hunt, 455 U.S. 478, 482 (1982)

(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975));

see also S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515

(1911) (announcing exception). The party invoking the

exception bears the burden of showing that both elements are

satisfied. Del Monte Fresh Produce Co. v. United States, 570

F.3d 316, 322 (D.C. Cir. 2009).

We examine the “evading review” prong first. To evade

review, the challenged action must be incapable of surviving

long enough to undergo Supreme Court review. Christian

Knights of the Ku Klux Klan Invisible Empire, Inc. v. District

of Columbia, 972 F.2d 365, 369 (D.C. Cir. 1992). Recent

census data reveals that educational construction projects like

the No. 7 and No. 11 Projects typically last no longer than

approximately two years—and therefore individual work

assignments on those projects last for even shorter periods.

U.S. CENSUS BUREAU, Table 2: Average Number of Months

from Start to Completion for State and Local Construction

Projects Completed in 2010–2011, by Value and Type of

10

Construction (2011), available at http://www.census.gov/

construction/c30/pdf/t211.pdf. In light of the “rule-of-thumb”

that “orders of less than two years’ duration ordinarily evade

review,” the Awards comfortably satisfy the “evading review”

prong. LaRouche v. Fowler, 152 F.3d 974, 978 (D.C. Cir.

1998). Moreover, in the “quintessential jurisdictional

dispute” the employer is neutral as to which group of

employees should perform the work. Int’l Longshoremen’s &

Warehousemen’s Union, Local 14 v. NLRB, 85 F.3d 646, 652

(D.C. Cir. 1996) (Sierra Pacific); see also CBS, 364 U.S. at

579 (“[I]n most instances, [the quarrel] is of so little interest

to the employer that he seems perfectly willing to assign work

to either [group of employees] if the other will just let him

alone.”). A delay in the completion of a particular work

assignment can postpone the completion of an entire

construction project and jeopardize the employer’s ability to

obtain future contracts. It therefore has good reason to

comply quickly with an arbitration award and complete a

given work assignment notwithstanding an unresolved

judicial challenge to the award. Because the judiciary is

ordinarily unable to keep pace with the employer’s need to

complete the work assignment, the Awards are “by [their]

very nature short in duration, so that [they] could not, or

probably would not, be able to be adjudicated while fully

live.” Conyers v. Reagan, 765 F.2d 1124, 1128 (D.C. Cir.

1985) (quotation marks and emphases omitted).

Whether the disputes are “capable of repetition” is a

closer question. “This prong requires that the same parties

will engage in litigation over the same issues in the future.”

Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 633

(D.C. Cir. 2002). The party invoking the exception must

show “a reasonable degree of likelihood that the issue will be

the basis of a continuing controversy between the[] two

parties.” Id. (quotation marks and brackets omitted). The

11

relevant inquiry, however, is not “whether the precise

historical facts that spawned the plaintiff’s claims are likely to

recur.” Del Monte, 570 F.3d at 324. Rather, “[t]he ‘wrong’

that is, or is not, ‘capable of repetition’ must be defined in

terms of the precise controversy it spawns,” to wit, “in terms

of the legal questions it presents for decision.” People for the

Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d 416,

422–23 (D.C. Cir. 2005).

Here, the alleged “wrong” is the Carpenters’ loss of work

caused by the award of the work to a different union pursuant

to a standard arbitration provision in a PLA. The question,

then, is whether the Carpenters are reasonably likely to suffer

this legal wrong again. “In estimating the likelihood of an

event’s occurring in the future, a natural starting point is how

often it has occurred in the past.” Clarke v. United States, 915

F.2d 699, 704 (D.C. Cir. 1990) (en banc). Because the parties

have already arbitrated three jurisdictional disputes arising

under the Agreement, which continues to govern all

construction work awarded before its September 30, 2013

expiration, it is not unreasonable to expect another dispute to

arise between them before the Agreement expires.

But we do not confine our inquiry to disputes arising

under the Agreement. Admittedly, in reviewing an arbitration

award, we are reviewing the interpretation of the particular

terms of a particular contract. See Cole v. Burns Int’l Sec.

Servs., 105 F.3d 1465, 1475 (D.C. Cir. 1997). In an ordinary

contract dispute, the uniqueness of those terms might make

the case so “highly fact-specific” that it would not likely

recur. Gittens, 396 F.3d at 424. Here, however, the terms of

the Agreement are hardly unique. As the amici point out, the

Plan is incorporated into hundreds of PLAs worth tens of

billions of dollars. And the Agreement’s recognition clause—

the only specific clause on which the Carpenters base their

arguments—is a common provision in PLAs. See Bldg. Indus.

12

Elec. Contractors Ass’n v. City of New York, 678 F.3d 184,

186 (2d Cir. 2012) (BIECA). 4 Indeed, numerous

jurisdictional disputes have arisen between these parties under

other PLAs. See, e.g., Sw. Reg’l Council of Carpenters, 348

N.L.R.B. 1250, 1252 (2006) (Standard Drywall II) (resolving

jurisdictional disputes between SWRCC and Local 200 at

ninety-seven job sites, including three covered by PSA); Sw.

Reg’l Council of Carpenters, 346 N.L.R.B. 478, 478 (2006)

(Standard Drywall I) (resolving jurisdiction dispute between

SWRCC and Local 200 at educational construction site).

Granted, those disputes did not result in arbitration. But given

the ubiquity of the Plan in PLAs and the frequency of

jurisdictional clashes involving the Carpenters and the

Plasterers, future arbitrable jurisdictional disputes raising the

same legal issue between them seem reasonably likely to

4

Compare also PSA § 3.1, Frye JA 256 (“The Contractor

recognizes the Council and the signatory local Unions as the

exclusive bargaining representative for the employees engaged in

Project Work. Such recognition does not extend beyond the period

when the employee is engaged in Project Work.”), with BLDG. &

CONSTR. TRADES DEP’T, AFL-CIO, STANDARD PROJECT LABOR

AGREEMENT art. III, § 1, available at http://www.bctd.org/Field-

Services/Project-Labor-Agreement.aspx (“The Contractors

recognize the signatory Unions as the sole and exclusive bargaining

representatives of all craft employees within their respective

jurisdictions working on the Project within the scope of this

Agreement.”), and NEW YORK CITY DEP’ T OF DESIGN & CONSTR.,

PROJECT LABOR AGREEMENT COVERING NEW CONSTRUCTION OF

IDENTIFIED CITY OWNED BUILDINGS & STRUCTURES art. 4, § 1,

available at http://www.nyc.gov/html/mocs/downloads/pdf/pla/

PLA%20DDC%20New%20Construction.PDF (“The Contractors

recognize the signatory Unions as the sole and exclusive bargaining

representatives of all employees who are performing on-site

Program Work, with respect to that work.”).

13

occur. These cases, then, are not moot and we proceed to the

merits.

III. Procedural Issues

Although the Carpenters’ merits arguments are, in the

main, identical in both cases, each appeal presents unique

procedural arguments which we address first.

A. No. 11-7161 (Jordan Interiors I and II)

The Carpenters argue that the district court erred in

granting the Plasterers’ Rule 60(b)(1) motion in Jordan

Interiors II and further erred in denying its motion to

consolidate Jordan Interiors II and Frye or, in the alternative,

in not allowing rebriefing of the issues presented in Jordan

Interiors II. We review the grant of a Rule 60(b) motion, the

denial of a motion for consolidation and the denial of a

motion for further briefing for abuse of discretion. See

Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir.

1987) (Rule 60(b)); Moten v. Bricklayers, Masons &

Plasterers Int’l Union, 543 F.2d 224, 228 n.8 (D.C. Cir. 1976)

(consolidation); Asemani v. Islamic Republic of Iran, 167 Fed.

App’x 806, 806 (D.C. Cir. 2005) (briefing).

Designed to strike a balance between finality and the

demands of justice, see Smalls v. United States, 471 F.3d 186,

191 (D.C. Cir. 2006), Rule 60(b) authorizes the district court

to “relieve a party . . . from a final judgment . . . for . . .

mistake, inadvertence, surprise, or excusable neglect,” so long

as the motion is filed within “a year after entry of the

judgment.” FED. R. CIV . P. 60(b)(1), (c)(1). The Carpenters

claim that granting the Rule 60(b) motion was error because

14

the Plasterers’ failure to press their date-based “defense” 5

before Jordan Interiors I issued was strategic and therefore

not excusable. Br. of Appellants 50, United Bhd. of

Carpenters & Joiners v. Operative Plasterers’ and Cement

Masons’ Int’l Ass’n, No. 11-7166 (Jordan Br. of Appellants).

The Carpenters thus do not challenge the district court’s

determination that Jordan Interiors I was premised on a

factual error but instead argue that the Plasterers are

responsible for that error. But the Plasterers referred

specifically to the October 22, 2009 Letter of Assent in

multiple district-court filings. The district court nevertheless

missed the references and, realizing its mistake, sought to

correct Jordan Interiors I by granting the Plasterers’ motion.

Even if the Carpenters were correct in their reading of the

record below, the district court did not err in granting the

motion. See Good Luck Nursing Home, Inc. v. Harris, 636

F.2d 572, 577 (D.C. Cir. 1980) (“When a party timely

presents a previously undisclosed fact so central to the

litigation that it shows the initial judgment to have been

manifestly unjust, reconsideration under rule 60(b)[(1)] is

proper even though the original failure to present that

information was inexcusable.”). Given that Jordan Interiors I

turned on the district court’s mistaken understanding of the

record and that the Plasterers complied with the timing

requirement of Rule 60(c), the district court did not abuse its

discretion in granting the motion.

The district court denied the Carpenters’ motion for

consolidation or additional briefing because it concluded that

“the parties previously had ample opportunity to make

arguments concerning” the timing issue. Order at 4, United

5

The Carpenters call the question of when Jordan joined the

Agreement a “defense.” When Jordan joined is more correctly

characterized as a question of fact.

15

Bhd. of Carpenters & Joiners v. Operative Plasterers’ &

Cement Masons’ Int’l Ass’n, No. 09-cv-2212 (D.D.C. Dec. 1,

2011). The Carpenters nevertheless contend that the denial of

their motion “deprived [them] of the chance to thoroughly

argue” the timing issue. Jordan Br. of Appellants 49–50. But

they concede that they “would have proffered the largely

same legal theories” had the district court permitted

consolidation or rebriefing. Reply Br. of Appellants 31,

United Bhd. of Carpenters & Joiners v. Operative Plasterers’

& Cement Masons’ Int’l Ass’n, No. 11-7161. Because the

Carpenters had nothing new to say, the district court did not

abuse its discretion in denying briefing and argument on the

timing issue.

B. No. 11-7155 (Frye)

The Carpenters also argue that the district court erred by

failing to accord Jordan Interiors I preclusive effect in Frye.

In Jordan Interiors I, the district court held that the arbitrator

was without authority to award the disputed work to the

Plasterers because the Board’s section 9(a) certification of the

SWRCC, which occurred after Jordan became a party to the

Agreement, terminated the Agreement as between Jordan and

Local 200. Jordan Interiors I, 744 F. Supp. 2d at 57. In Frye,

the Carpenters argued that Jordan Interiors I estopped the

Plasterers from defending the validity of the Pagan Award.

The district court declined to give Jordan Interiors I estoppel

effect because to do so with a judgment premised on a

“misstatement of relevant fact . . . . would be unfair.” Frye,

826 F. Supp. 2d at 215.

Although we ordinarily review a district court’s estoppel

ruling premised on “basic unfairness” for abuse of discretion,

see Connors v. Tanoma Mining Co., 953 F.2d 682, 684 (D.C.

Cir. 1992) (citing Jack Faucett Assoc’s, Inc. v. Am. Tel. &

Tel. Co., 744 F.2d 118, 126 (D.C. Cir. 1984)), here, we need

16

not reach the merits of the issue. On the very day the district

court announced its judgment in Frye, it granted the

Plasterers’ Rule 60(b) motion and vacated Jordan Interiors I

with respect to the Kelly Award. Jordan Interiors II, 826 F.

Supp. 2d at 242–43 n.1; see also Klapprott v. United States,

335 U.S. 601, 614–15 (1949) (Rule 60(b) power is power to

“vacate judgments”). A judgment vacated either by the trial

court or on appeal has no estoppel effect in a subsequent

proceeding. See United States v. Lacey, 982 F.2d 410, 412

(10th Cir. 1992) (“A judgment that has been vacated,

reversed, or set aside on appeal is thereby deprived of all

conclusive effect, both as res judicata and as collateral

estoppel. The same is true, of course, of a judgment vacated

by a trial court.” (quotation marks omitted)); see also Dodrill

v. Ludt, 764 F.2d 442, 444 (6th Cir. 1985). The district court

therefore correctly declined to give Jordan Interiors I

estoppel effect in Frye.

IV. Merits

As this case is before us on appeal from summary

judgment grants, our review is de novo. Calhoun v. Johnson,

632 F.3d 1259, 1261 (D.C. Cir. 2011). We note at the outset

that the Carpenters do not challenge the merits of the Awards.

See Nat’l Postal Mail Handlers Union v. Am. Postal Workers

Union, 589 F.3d 437, 441 (D.C. Cir. 2009) (explaining

deferential standard of review of labor arbitration awards).

Instead, the Carpenters challenge the arbitrators’ authority to

make the Awards and also argue that the Awards contravene

public policy. Before addressing their arguments, we briefly

explain the law governing the Agreement.

A. Sections 8(f), 9(a) and PLAs

“Under sections 9(a) and 8(a)(5) of the [NLRA],

employers are obligated to bargain only with unions that have

17

been ‘designated or selected for the purposes of collective

bargaining by the majority of the employees in a unit

appropriate for such purposes.’ ” Nova Plumbing, Inc. v.

NLRB, 330 F.3d 531, 533 (D.C. Cir. 2003) (quoting 29 U.S.C.

§ 159(a)); see also 29 U.S.C. § 158(a)(5) (“It shall be an

unfair labor practice for an employer . . . to refuse to bargain

collectively with the representatives of his employees, subject

to the provisions of section [9(a)].”); see also Int’l Ladies’

Garment Workers’ Union v. NLRB, 366 U.S. 731, 738–39

(1961). “A union can achieve the status of a majority

collective bargaining representative through either Board

certification or voluntary recognition by the employer . . . .”

Raymond F. Kravis Ctr. for Performing Arts, Inc. v. NLRB,

550 F.3d 1183, 1188 (D.C. Cir. 2008).

Section 8(f) of the NLRA, 29 U.S.C. § 158(f), carves out

a limited exception to section 9(a)’s majority support

requirement within the construction industry. Section 8(f)

provides, in pertinent part:

It shall not be an unfair labor practice . . . for an

employer engaged primarily in the building and

construction industry to make an agreement covering

employees engaged (or who, upon their employment,

will be engaged) in the building and construction

industry with a labor organization of which building

and construction employees are members . . . because

[] the majority status of such labor organization has

not been established under the provisions of section

[]9 prior to the making of such agreement . . . .

29 U.S.C. § 158(f). “Under this exception, a contractor may

sign a ‘pre-hire’ agreement with a union regardless of how

many employees authorized the union’s representation.” Nova

Plumbing, 330 F.3d at 534; see also Allied Mech. Servs., Inc.

v. NLRB, 668 F.3d 758, 761 (D.C. Cir. 2012). The Congress

18

enacted this limited exception because construction employers

must know their labor costs up front in order to generate

accurate bids and must “have available a supply of skilled

craftsmen ready for quick referral.” NLRB v. Local Union No.

103, Int’l Ass’n of Bridge, Structural & Ornamental Iron

Workers, 434 U.S. 335, 348 (1978) (Higdon) (quotation

marks omitted). In addition, traditional union organization is

not conducive to the brief, project-to-project periods workers

spend in the employ of any single contractor. See Bldg. &

Constr. Trades Council v. Associated Builders & Contractors,

507 U.S. 218, 231 (1993) (Boston Harbor); see also Higdon,

434 U.S. at 349.

A union that is party to a section 8(f) agreement serves as

the section 9(a) exclusive bargaining representative of the unit

it purports to represent for the duration of the section 8(f)

agreement. Viola Indus.-Elevator Div., Inc., 286 N.L.R.B.

306, 306 (1987), enforced 979 F.2d 1384 (10th Cir. 1992);

John Deklewa & Sons, Inc., 282 N.L.R.B. 1375, 1385 (1987)

(Deklewa), enforced sub nom. Int’l Ass’n of Bridge,

Structural & Ornamental Iron Workers Local 3 v. NLRB, 843

F.2d 770 (3d Cir. 1988). But its section 9(a) status is limited

in significant respects. A union party to a section 9(a)

agreement is entitled to a conclusive presumption of majority

status for up to three years, during which time decertification

petitions are barred. 6 Auciello Iron Works, Inc. v. NLRB, 517

U.S. 781, 786 (1996). But under section 8(f), a union is

entitled to no such presumption and parties may therefore file

decertification petitions at any time during a section 8(f)

relationship. Nova Plumbing, 330 F.3d at 534. Moreover,

6

A section 9(a) certification absent any collective bargaining

agreement entitles the certified union to a one-year presumption of

majority status. See Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27, 37 (1987).

19

when a section 9(a) agreement expires, the presumption of

majority support requires the employer to continue bargaining

with the union unless the union has in fact lost majority

support or the employer has a good-faith reason to believe

such support has been lost. See Auciello Iron Works, 517 U.S.

at 786–87 (citing NLRB v. Curtin Matheson Scientific, Inc.,

494 U.S. 775, 778 (1990)). But “because the union enjoys no

presumption that it ever had majority support” under section

8(f), the employer can refuse to bargain once a section 8(f)

agreement expires. Nova Plumbing, 330 F.3d at 534.

Even while operative, a section 8(f) agreement is not set

in stone. If a union party to an 8(f) agreement “successfully

seeks majority support, the prehire agreement attains the

status of a [section 9(a)] collective-bargaining agreement

executed by the employer with a union representing a

majority of the employees in the unit.” Higdon, 434 U.S. at

350. “Generally, a union seeking to convert its section 8(f)

relationship to a section 9(a) relationship may either petition

for a representation election or demand recognition from the

employer by providing proof of majority support.” M & M

Backhoe Serv., Inc. v. NLRB, 469 F.3d 1047, 1050 (D.C. Cir.

2006). But “a vote to reject the signatory union will void the

8(f) agreement and will terminate the 8(f) relationship.”

Deklewa, 282 N.L.R.B. at 1385.

As a PLA, the Agreement is a particular type of section

8(f) pre-hire agreement. We have previously explained that

a PLA is a multi-employer, multi-union pre-hire

agreement designed to systemize labor relations at a

construction site. It typically requires that all

contractors and subcontractors who will work on a

project subscribe to the agreement; that all contractors

and subcontractors agree in advance to abide by a

master collective bargaining agreement for all work on

20

the project; and that wages, hours, and other terms of

employment be coordinated or standardized pursuant

to the PLA across the many different unions and

companies working on the project.

Bldg. & Constr. Trades Dep’t, AFL-CIO v. Allbaugh, 295

F.3d 28, 30 (D.C. Cir. 2002). Multi-employer, multi-union

PLAs are commonplace in the construction industry because

they serve the unique needs of the construction-industry labor

market. Robert W. Kopp & John Gaal, The Case for Project

Labor Agreements, CONSTR. LAW., Jan. 1999, at 5–7; Henry

H. Perritt, Keeping the Government out of the Way: Project

Labor Agreements under the Supreme Court’s Boston Harbor

Decision, 12 LABOR LAW. 69, 71–76 (1996). A PLA

typically requires employers to recognize the signatory unions

as the collective bargaining representatives of the employees

engaged in work thereunder; to secure labor from union hiring

halls; and to agree to the terms of the PLA before working on

projects governed by the PLA. BIECA, 678 F.3d at 186. A

PLA also typically standardizes wages, work rules and hours;

provides for the supremacy of the PLA over conflicting

provisions of individual collective bargaining agreements; and

contains no-strike, union security and dispute resolution

provisions. See id. The Agreement, a prototypical PLA,

contains all of these provisions.

B. Arbitrators’ Authority

The Carpenters argue that arbitrators Kelly and Pagan

lacked authority to enter their respective Awards. “An

arbitrator’s power is both derived from, and limited by, the

collective-bargaining agreement.” Barrentine v. Ark.-Best

Freight Sys. Inc., 450 U.S. 728, 744 (1981). Because an

arbitrator cannot rule on matters the parties have not agreed to

arbitrate, see AT&T Techs., Inc. v. Comm’cns Workers of Am.,

475 U.S. 643, 648–49 (1986) (“[A]rbitrators derive their

21

authority to resolve disputes only because the parties have

agreed in advance to submit such grievances to arbitration.”),

a fortiori he cannot decide the rights of non-parties.

The Carpenters challenge the arbitrators’ authority on

three bases. First, they argue that the Agreement is void as

between Local 200 and the Employers because the duty of

exclusive bargaining forbids an employer in a section 9(a)

relationship with one union from entering into a section 8(f)

agreement with any other union. Second, they argue that the

Board’s certification of the SWRCC in effect decertified

Local 200 as the representative of the Employers’ workers

and voided the Agreement as between Local 200 and the

Employers. Finally, the Carpenters argue that the disputes are

representational in nature and therefore beyond the

arbitrators’ authority.

1. SWRCC’s § 9(a) Certifications and Right of Exclusive

Representation in PLA Context

The Carpenters first argue that “the principle of exclusive

representation precludes any Section 8(f) agreement between

[the Employers] and [Local 200].” Br. of Appellants 32,

United Bhd. of Carpenters & Joiners v. Operative Plasterer’s

& Cement Masons’ Int’l Ass’n, No. 11-7155 (Frye Br. of

Appellants); Jordan Br. of Appellants 31. They contend that

because the section 9(a) certifications trigger the duty of

exclusive bargaining, the Employers cannot also enter a

multi-unit PLA—like the Agreement—because doing so

would violate their duty to bargain only with the SWRCC

over work assignments.

We need not decide whether section 9(a) categorically

permits the Agreement. The Carpenters concede that the

Agreement between the Employers and all signatory unions is

permissible under section 8(f). See Boston Harbor, 507 U.S.

22

at 230 (approving multiemployer, multi-union PLAs under

section 8(f)). But, they argue, the Agreement is unlawful

under section 9(a) because, unlike section 8(f), an employer in

a section 9(a) relationship owes the union a duty of exclusive

bargaining. Section 8(f) is an exception to the majority

support requirement, however, not to the exclusive bargaining

requirement of sections 9(a) and 8(a)(5). See Madison Indus.,

Inc., 349 N.L.R.B. 1306, 1307 (2007); Deklewa, 282

N.L.R.B. at 1387 & n.50. As we have explained, a union

party to a section 8(f) agreement serves as the limited section

9(a) representative of the bargaining unit it purports to

represent during the term of that agreement. Deklewa, 282

N.L.R.B. at 1387; see also id. at 1386 (“It is clear that the

imposition of enforceable contract obligations on signatories

to an 8(f) agreement is contingent, in part, on the signatory

union possessing exclusive representative status.”). 7 Section

8(a)(5) forbids an employer in a section 8(f) agreement from

repudiating the agreement and negotiating with a non-

signatory union (at least while the agreement is in effect) in

precisely the same way that section 8(a)(5) forbids an

employer from refusing to bargain with a union certified

under section 9(a). See Local No. 150, Int’l Union of

Operating Eng’rs v. NLRB, 480 F.2d 1186, 1191 (D.C. Cir.

7

We previously rejected the Board’s pre-Deklewa

interpretation of section 8(f) in favor of the one it articulated in

Deklewa. See Local 150, Int’l Union of Operating Eng’rs v. NLRB,

480 F.2d 1186, 1190–91 (D.C. Cir. 1973); see also Deklewa, 282

N.L.R.B. at 1387–88. Moreover, seven sister circuits have

explicitly adopted the Board’s interpretation of section 8(f). Am.

Automatic Sprinkler Sys., Inc. v. NLRB, 163 F.3d 209, 215 n.3 (4th

Cir. 1998) (citing cases). Only the Fourth Circuit has rejected

Deklewa and did so because of preexisting contrary circuit

precedent. Indus. TurnAround Corp. v. NLRB, 115 F.3d 248, 254

(4th Cir. 1997) (citing Clark v. Ryan, 818 F.2d 1102 (4th Cir.

1987)).

23

1973) (“[A]n employer[] who has entered into a validly

executed § 8(f) pre-hire agreement . . . should be held to the

same standard of conduct in regard to unfair labor practices as

an employer who has entered into a collective bargaining

agreement with a union certified to have majority status.”);

see also GEM Mgmt. Co., 339 N.L.R.B. 489, 501 (2003). The

Carpenters’ argument therefore fails because if, as the

Carpenters concede, the Agreement does not violate the duty

of exclusive bargaining under section 8(f), it does not do so

under section 9(a). 8

8

The Carpenters also argue that section 8(f) agreements cannot

“trump the Section 7 [of the NLRA, 29 U.S.C. § 157] rights of

workers at any time.” Frye Br. of Appellants 31; Jordan Br. of

Appellants 30. We agree but the Carpenters fail to point to

anything in the Agreement that violates section 7’s guarantee of the

rights of self-organization and collective bargaining. Unions and

employers are free to alter the scope of bargaining units—even

units certified pursuant to section 9(a)—by entering into multi-unit

agreements like the Agreement. See The Idaho Statesman v. NLRB,

836 F.2d 1396, 1400 (D.C. Cir. 1988); Utility Workers Union, 203

N.L.R.B. 230, 238 (1973), enforced 490 F.2d 1383 (6th Cir. 1974);

Shell Oil Co., 194 N.L.R.B. 988, 995 (1972) (“It is well settled that

the parties to a collective-bargaining relationship may voluntarily

agree . . . to the enlargement or alteration of an existing unit, or to

the merger of separate units, theretofore recognized by the parties

or found by the Board to be appropriate for the purposes of

collective bargaining.” (emphasis in original)), review denied sub

nom. Oil, Chem. & Atomic Workers, Int’l Union v. NLRB, 486 F.2d

1266 (D.C. Cir. 1973). We therefore cannot conceive of how the

voluntary merger of the units represented by the SWRCC and Local

200 in this run-of-the-mill PLA violates section 7. Moreover, given

that the NLRA “not only tolerates but actively encourages

voluntary settlements of work assignment controversies between

unions,” Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 266

(1964), we see nothing in the Agreement’s arbitration provisions

that violates section 7.

24

2. Certification of SWRCC qua Decertification of Local

200

Relying on Deklewa, the Carpenters next argue that by

certifying the SWRCC as the exclusive bargaining

representative of the Employers’ employees, the Board

necessarily decertified Local 200 as the representative of

those Employees, thereby voiding the Agreement as between

the Employers and Local 200. Their argument proceeds as

follows: the Agreement’s recognition clause—which provides

that “[t]he Contractor recognizes the Council and the

signatory local Unions as the exclusive bargaining

representative for the employees engaged in Project Work,”

PSA § 3.1, Frye JA 256—obligates signatory employers to

recognize all of the signatory unions as the exclusive

representatives of each and every employee. Under Deklewa,

if a bargaining unit subsequently votes to reject the union

purporting to represent it under a section 8(f) agreement, that

vote “will void the [section] 8(f) agreement and will terminate

the [section] 8(f) relationship.” Deklewa, 282 N.L.R.B. at

1385. The Carpenters reason that the employees’ vote in

favor of the SWRCC also in effect rejected, and therefore

decertified, Local 200. And under Deklewa those

decertifications voided the Agreement between Local 200 and

the Employer, terminating the arbitrator’s authority. 9

9

The parties dispute whether the Employers joined the

Agreement before or after the SWRCC was certified. If the

Employers became parties after the SWRCC was certified, its

certifications could not have decertified Local 200 because, even

under the Carpenters’ theory, the Employers had not yet recognized

Local 200. We decline to resolve the dispute because, even

assuming arguendo the Employers became parties to the

Agreement before the certifications, the certifications did not

decertify Local 200.

25

We reject the Carpenters’ reading of the Agreement’s

recognition clause. The clause merely requires what section

8(f) permits: employers must recognize the signatory unions

as the exclusive bargaining representatives of the employees

they purport to represent—for work governed by the

Agreement—irrespective of any showing of majority support

and irrespective of whether a particular employee is in fact a

member of the signatory union. See Trustees of S. Cal. IBEW-

NECA Pension Trust Fund v. Flores, 519 F.3d 1045, 1047–48

(9th Cir. 2008); see also Mastro Plastics Corp. v. NLRB, 350

U.S. 270, 279 (1956) (“Like other contracts, [a collective

bargaining agreement] must be read as a whole and in the

light of the law relating to it when it was made.”). Because

the Agreement’s recognition clause did not require the

Employers to recognize Local 200 as the representative of

their employees, the Board’s certification of the SWRCC did

not affect the contractual relationship between the Employers

and Local 200. In fact, assuming arguendo that the

representation certifications took place after the Employers

joined the Agreement, the employees’ election can be seen as

ratifying the Employers’ and the SWRCC’s decisions to enter

into the section 8(f) Agreement. See Comtel Sys. Tech., Inc.,

305 N.L.R.B. 287, 290 & n.14 (1991). The section 9(a)

certifications of the SWRCC therefore did not void the

Agreement as between the Employers and Local 200.

3. Representational vs. Jurisdictional Nature of the

Dispute

Finally, the Carpenters argue that the dispute between the

unions is representational, not jurisdictional. Because the

Board has exclusive jurisdiction over representation

questions, see Road Sprinkler Fitters Local Union 669 v.

Herman, 234 F.3d 1316, 1320 (D.C. Cir. 2000), they argue

that the arbitrators had no authority to decide the dispute

between the Carpenters and the Plasterers. But as the

26

Carpenters concede, Local 200 disclaims any interest in

representing the Employers’ employees. Local 200 claims

that it only wants to obtain the plastering work for its

members and nothing in the record suggests otherwise.

Because this case is simply “a contest between two groups of

employees . . . actively contend[ing] for disputed work,” the

dispute is paradigmatically jurisdictional. Sea-Land, 884 F.2d

at 1411 (emphases deleted); see also Sierra Pacific, 85 F.3d at

652. The Carpenters’ argument thus rests on an unstated

assumption, to wit, that the section 9(a) certifications entitle

their members to all work contracted out to the

Employers pursuant to the Agreement.

Their assumption—and therefore their argument—suffers

from a fatal flaw: the Board’s certification of a particular

bargaining unit is not a determination of the work to which

that unit is entitled. As the Supreme Court has explained:

[A] Board certification in a representation proceeding

is not a jurisdictional award; it is merely a

determination that a majority of the employees in an

appropriate unit have selected a particular labor

organization as their representative for purposes of

collective bargaining. It is true that such certification

presupposes a determination that the group of

employees involved constitute an appropriate unit for

collective bargaining purposes, and that in making

such determination the Board considers the general

nature of the duties and work tasks of such employees.

However, unlike a jurisdictional award, this

determination by the Board does not freeze the duties

or work tasks of the employees in the unit found

appropriate. Thus, the Board’s unit finding does not

per se preclude the employer from adding to, or

subtracting from, the employees’ work assignments.

While that finding may be determined by, it does not

27

determine, job content; nor does it signify approval, in

any respect, of any work task claims which the

certified union may have made before this Board or

elsewhere.

Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 269 (1964)

(quotation marks omitted). The Board has further clarified

that

its sole function in representation proceedings is to

ascertain and certify the name of the bargaining

representative, if any, that has been designated by the

employees in the appropriate unit. It is not the Board’s

responsibility in representation proceedings to decide

whether employees in the bargaining unit are entitled

to do any particular work or whether an employer has

properly reassigned work from employees in the

bargaining unit to other employees.

Gas Serv. Co., 140 N.L.R.B. 445, 447 (1963). The Board’s

certification of the SWRCC as the exclusive bargaining

representative of the Employers’ employees thus decides

nothing about the work to which those employees are entitled

under the Agreement. 10 Because this dispute is

10

In fact, when the Board resolves a jurisdictional dispute

under its section 10(k) authority, a section 9(a) certification is but a

single factor of a multi-factor test. See Int’l Ass’n of Machinists,

Lodge No. 1743, 135 N.L.R.B. 1402, 1410–11 (1962); see also,

e.g., Int’l Bhd. of Elec. Workers, Local 196, 358 N.L.R.B. No. 87,

slip op. at 5–6 (July 24, 2012). Although such certification “favors

awarding the disputed work to employees represented by” the

certified union, Int’l Union of Operating Eng’rs, Local 150, 354

N.L.R.B. No. 112, slip op. at 5 (Nov. 30, 2009), it is not

dispositive. Indeed, the Board has awarded work to an uncertified

union over a certified one. See, e.g., Int’l Longshoremen’s &

Warehousemen’s Union, Local 8, 324 N.L.R.B. 666, 667–68

28

quintessentially jurisdictional and a section 9(a) certification

does not resolve work assignment questions, the arbitrators

were plainly authorized to make the Awards.

C. Consistency with Other Law

The Awards are interpretations of the Agreement and

treated as part of the Agreement itself. See Cole, 105 F.3d at

1475 (“In the absence of fraud or an overreaching of authority

on the part of the arbitrator, he is speaking for the parties, and

his award is their contract.” (quotation marks omitted)). As

with any contract, “an arbitration award that is in explicit

conflict with other laws and legal precedents[] is

unenforceable.” Am. Postal Workers Union v. U.S. Postal

Serv., 550 F.3d 27, 32 (D.C. Cir. 2008) (quotation marks and

citations omitted); see also United Paperworkers Int’l Union

v. Misco, Inc., 484 U.S. 29, 42 (1987) (“A court’s refusal to

enforce an arbitrator’s award under a collective-bargaining

agreement because it is contrary to public policy is a specific

application of the more general doctrine, rooted in the

common law, that a court may refuse to enforce contracts that

violate law or public policy.”). “[T]he question of public

policy is ultimately one for resolution by the courts. Such a

public policy, however, must be well defined and dominant,

and is to be ascertained ‘by reference to the laws and legal

precedents and not from general considerations of supposed

public interests.’ ” W.R. Grace & Co. v. Local Union 759,

Int’l Union of United Rubber, Linoleum & Plastic Workers,

461 U.S. 757, 766 (1983) (quoting Muschany v. United States,

324 U.S. 49, 66 (1945)).

(1997). Moreover, the Supreme Court rejected the Board’s

previous approach that made representation certifications nearly

dispositive. See Plasterers’ Local, 404 U.S. at 130–31.

29

The Carpenters argue that the Awards are invalid because

they run counter to a sister circuit’s decision as well as a

Board order arising from a series of disputes between Local

200 and the SWRCC. The history of these disputes is laid out

in detail by the Ninth Circuit in Small v. Operative Plasterers’

& Cement Masons’ International Association, Local 200, 611

F.3d 483 (9th Cir. 2010), to which we refer only as necessary

to reject the Carpenters’ argument. In Small, the district court

enjoined Local 200 from prosecuting two state-court lawsuits

against the SWRCC while the Board determined whether that

litigation constituted an unfair labor practice. Id. at 489. The

Ninth Circuit affirmed, reasoning that because the law suits

would undermine two previous Board section 10(k)

determinations, see Standard Drywall II, 348 N.L.R.B. at

1252; Standard Drywall I, 346 N.L.R.B. at 478, the Board

was likely to conclude that the suits violated section

8(b)(4)(D) of the NLRA, 29 U.S.C. § 158(b)(4)(D). Id. at

493–94.

The Board subsequently ruled that the lawsuits enjoined

in Small, as well as several arbitration awards obtained by

Local 200, in fact constituted unfair labor practices under

section 8(b)(4)(D) because they conflicted with the Board’s

earlier section 10(k) determinations of several jurisdictional

disputes decided in the SWRCC’s favor. Operative

Plasterers’ & Cement Masons’ Int’l Ass’n, Local 200, 357

N.L.R.B. No. 160, slip op. at 4–7 (Dec. 30, 2011) (Standard

Drywall III). The Board ordered Local 200 to

[c]ease and desist from . . . [t]hreatening, coercing, or

restraining SDI, or any other person or employer

engaged in commerce or in an industry affecting

commerce, where an object of their actions is to force

or require the employer to assign plastering work to

Local 200’s members, rather than to its own

employees who are not members of Local 200.

30

Operative Plasterers’ & Cement Masons’ Int’l Ass’n, Local

200, 357 N.L.R.B. No. 179, slip op. at 6 (Dec. 31, 2011)

(Standard Drywall IV). This language closely tracks that of

section 8(b)(4)(D) and is plainly intended to enjoin Local 200

from violating that provision.

We begin with the proposition that seeking arbitration “is

not coercive for the purposes of § 8(b)(4)(D).” Ga.-Pac., 892

F.2d at 132; see also Brockton Newspaper Guild, 275

N.L.R.B. 135, 136 (1985). A party violates section

8(b)(4)(D), however, if it subverts a section 10(k) decision by

seeking arbitration of a jurisdictional dispute after the Board

has determined the dispute pursuant to section 10(k). Sea-

Land, 884 F.2d at 1413–14; see also N. Cal. Dist. Council of

Laborers, 292 N.L.R.B. 1035, 1035 (1989). Although the

Carpenters argue that the Board’s certification orders have the

same effect as a section 10(k) determination, “a Board

certification in a representation proceeding is not a

jurisdictional award.” Carey, 375 U.S. at 269 (quotation

marks omitted). Because the Board has made no section

10(k) determination that the Awards could subvert, the

Awards conflict neither with Small nor with the Board’s

Standard Drywall IV order.

The Carpenters next argue that, because the Employers

are not parties in this litigation, the district court could not

order the Employers to subcontract the disputed work to

Local 200-staffed subcontractors. We agree, but this issue is

of no significance because the district court did not order the

Employers to do anything. The Employers’ absence from this

litigation is therefore irrelevant.

The Carpenters also argue that, because the Awards will

likely require the Employers to subcontract the disputed work

to firms employing Local 200 members, the Awards violate

section 4107 of the California Public Contract Code, which

31

places certain limitations on the ability of prime contractors to

substitute subcontractors or permit the reassignment of

previously awarded subcontracts. C AL. PUB. CONT . CODE

§ 4107(a), (b). We need not wade into California public

contracting law. The arbitrators determined only that the

disputed work belonged to the Plasterers and the district court

affirmed their determinations. Nothing in the Awards or the

district court orders violates California law because they do

not require the Employers to enter into any subcontracts; they

leave the question of the nature of the parties’ compliance

unanswered. 11

Finally, the Carpenters argue that, because the Plasterers

disclaim any intent to represent the Employers’ employees,

the Agreement violates section 8(e) of the NLRA, 29 U.S.C.

§ 158(e). Relevant here, section 8(e) prohibits subcontracting

agreements—agreements between an employer and a union in

which the employer promises to subcontract work only to

unionized employers. See Truck Drivers Local Union No. 413

v. NLRB, 334 F.2d 539, 548 (D.C. Cir. 1964). But section

8(e) also contains a “construction industry proviso” excepting

the construction industry from its prohibition on

subcontracting agreements as to “contracting or

subcontracting work to be done at the site of the

construction.” 29 U.S.C. § 158(e); see also Woelke & Romero

Framing, Inc. v. NLRB, 456 U.S. 645, 657 (1982); Donald

Schriver, Inc. v. NLRB, 635 F.2d 859, 873 & n.21 (D.C. Cir.

1980).

The Carpenters do not identify a particular clause of the

Agreement that, they claim, violates section 8(e). Instead,

11

And, in any event, the rights protected by section 4107

belong to subcontractors. See S. Cal. Acoustics Co. v. C.V. Holders,

Inc., 71 Cal. 2d 719, 727 (1969); R.J. Land & Assocs. Const. Co. v.

Kiewit-Shea, 69 Cal. App. 4th 416, 421 (1999).

32

they contend that the Plasterers’ “scheme” violates section

8(e) under the Supreme Court’s decision in Connell

Construction Co. v. Plumbers & Steamfitters Local Union No.

100, 421 U.S. 616 (1975) because the Plasterers have no

intention of representing the Employers’ employees. But

Connell held only that a “stranger” agreement—a

subcontracting agreement between a union and contractor

where (1) the union does not seek to represent the contractor’s

employees and (2) the two parties are not in a collective

bargaining relationship—does not fall within the construction

industry proviso. Connell, 421 U.S. at 627–28, 636. In

contrast, the proviso protects “subcontracting clauses that are

sought or negotiated in the context of a collective-bargaining

relationship,” Woelke & Romero, 456 U.S. at 648, and Local

200 and the Employers are parties to a section 8(f)

multiemployer, multi-union collective bargaining agreement,

see Donald Schriver, 635 F.2d at 873, 875 (section 8(f)

agreement qualifies as collective bargaining agreement under

Connell). The Agreement therefore is not a stranger

agreement under Connell.

For the foregoing reasons, in No. 11-7155 and No. 11-

7161 we affirm the district court’s grants of summary

judgment to the Plasterers, thereby confirming the arbitrators’

Awards in their favor.

So ordered.