NOT FOR PUBLICATION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

OPERATIVE PLASTERERS’ AND No. 12-70151

CEMENT MASONS’ INTERNATIONAL

ASSOCIATION, AFL-CIO, OPCMIA; NLRB No. 21-CD-673

OPERATIVE PLASTERERS’ AND

CEMENT MASONS’ INTERNATIONAL

ASSOCIATION LOCAL 200, AFL-CIO, MEMORANDUM*

Plasters Local 200,

Petitioners,

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent,

SOUTHWEST REGIONAL COUNCIL

OF CARPENTERS; STANDARD

DRYWALL, INC.,

Intervenors.

NATIONAL LABOR RELATIONS No. 12-70384

BOARD,

NLRB No. 21-CD-673 Petitioner,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 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.

Here, the Operative Plasterers & Cement Masons International and Local

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

(“Carpenters”) dispute which union has the right to be the collective bargaining

agent of employees who work at a number of Southern California jobs of

contractor-employer Standard Drywall, Inc. (“SDI”). This case is a petition for

review from Operative Plasterers & Cement Masons International Ass’n Local

200, 357 NLRB No. 179 (Dec. 31, 2011) (“SDI IV”), which awarded the work to

the Carpenters.

2 We deny the Plasterers’ petition for review, and dismiss their challenges to

the National Labor Relations Board’s (“NLRB”) remedial order for lack of

jurisdiction. We grant the NLRB’s motion for enforcement.

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

reviews its legal conclusions under the “arbitrary and capricious” standard. 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 Southwest Regional Council of

Carpenters, 348 NLRB 1250 (2006) (“SDI II”). Section 10(k) provides that the

NLRB has jurisdiction over disputes arising from allegations of unfair labor

practices unless “the parties to such dispute submit to the Board satisfactory

evidence that they have adjusted, or agreed upon methods for the voluntary

adjustment of, the dispute.” 29 U.S.C. § 160(k). In SDI II, the NLRB analyzed the

Plan for 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 as to

which union should represent the workers at three of the job sites, ninety-four other

3 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; such fractional coverage does not oust the Board’s jurisdiction over

the whole of the dispute.

Second, the NLRB found there was a risk that SDI would be subject to

conflicting arbitration awards because SDI’s collective-bargaining agreement with

the Carpenters provided for a different arbitration procedure than did the Plan. The

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

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, to which knowledge and expertise we

owe deference. Recon Refractory, 424 F.3d at 987 (giving the Board “considerable

deference in . . . exercising its expertise” in adjudicating a jurisdictional dispute).

The NLRB reasonably relied on its own precedent in Spancrete and Foeste to

4 conclude that the Plan was not an agreed-upon method within the meaning of

Section 10(k); this conclusion was neither arbitrary nor capricious.

2. We also uphold the NLRB’s determination in SDI IV that the Plasterers

violated Section 8(b)(4)(ii)(D) of the NLRA by pursuing enforcement of the

second Greenberg arbitration award contrary to the NLRB’s Section 10(k)

determination in SDI II. It is well-settled that pursuit of a legal action contrary to

determinations of representational rights by the Board can be an “unfair labor

practice” within the meaning of the NLRA. See Small v. OPCMIA Local 200, 611

F.3d 483, 489–93 (9th Cir. 2010).

3. Finally, the Plasterers claim that the NLRB erred in granting a broad

order requiring the Plasterers to cease and desist from “threatening, coercing, or

restraining SDI, or any other person or employer.” The Plasterers argue that this

remedial order was overbroad because it prohibited their actions as to unnamed

non-parties. Because the Plasterers failed to seek reconsideration of the NLRB’s

remedial orders, however, this court lacks the jurisdiction to review them. The

NLRA divests the courts of appeals of jurisdiction to consider “objection[s] that

ha[ve] not been urged before the Board, its member, agent, or agency . . . unless

the failure or neglect to urge such objection shall be excused because of

extraordinary circumstances.” 29 U.S.C. § 160(e). The NLRB retained concurrent

5 jurisdiction over this case until the administrative record was filed, even though

SDI petitioned for review of the case in this Court before the deadline for seeking

reconsideration before the NLRB had expired. See NLRB v. Legacy Health System,

662 F.3d 1124, 1127 (9th Cir. 2011). Therefore, the Plasterers’ failure to file a

petition for rehearing before the NLRB divests this court of jurisdiction to consider

their challenge to the scope of the cease-and-desist order and grant of attorneys’

fees to SDI.

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

12-70151, is DENIED, and their challenges to the NLRB remedial order for lack of

jurisdiction, case number 12-70151, are DISMISSED. The NLRB’s motion for

enforcement, case number 12-70384, is GRANTED.

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