Operative Plasterers' and Cement Masons' International Association; Operative Plasterers' and Cement

National Labor Relations Board - Board Decisions

Dec 31, 2011

357 N.L.R.B. 2212 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 179
2212
Operative Plasterers’ & Cement Masons’ Interna-
tional Association Local 200, AFL–CIO and Op-
erative Plasterers’ & Cement Masons’ Interna-
tional Association, AFL–CIO and Standard
Drywall, Inc. Case 21–CD–673
December 31, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
The General Counsel of the National Labor Relations
Board issued a complaint on July 31, 2009, alleging that
the Respondents, Operative Plasterers’ & Cement Ma-
sons’ International Association, Local 200, AFL–CIO
(Local 200) and Operative Plasterers’ & Cement Ma-
sons’ International Association, AFL–CIO (the Interna-
tional), acting as Local 200’s agent, violated Section
8(b)(4)(ii)(D) of the Act. The Respondents each filed an
answer admitting in part and denying in part the allega-
tions in the complaint, and raising affirmative defenses.
On September 24, 2009, the Charging Party, Standard
Drywall, Inc. (SDI) filed a Motion for Summary Judg-
ment and a Motion to Strike Affirmative Defenses. On
September 25, 2009, the Respondents filed an opposing
Motion for Summary Judgment. The General Counsel
filed an opposition to the Respondents’ motion and a
statement in support of SDI’s motion. The Respondents
filed an opposition to SDI’s motion and SDI filed an
opposition to the Respondents’ motion.
On November 17, 2009, the Board issued an order
transferring this proceeding to the Board and a Notice to
Show Cause why the Respondents' and SDI's motions
should not be granted. The General Counsel and SDI
filed responses.1
Ruling on Motions for Summary Judgment
The issue presented in this case is whether the Re-
spondents, Local 200 and the International, violated Sec-
tion 8(b)(4)(ii)(D) of the Act by pursuing legal actions
against SDI with an object of forcing and requiring SDI
to assign certain plastering work to Local 200-
represented employees.
SDI and the General Counsel contend that no material
facts are in dispute and that, under well-established
Board law, the Respondents violated the Act by pursuing
and maintaining legal actions contrary to the Board’s
award of plastering work in an earlier 10(k) proceeding.

1 We deny the Respondents' motion to consolidate this proceeding
with Plasterers Local 200, (Standard Drywall, Inc.), 357 NLRB No.
160 (2011) (SDI-III). We also deny the Respondents’ request for oral
argument as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
See Carpenters (Standard Drywall), 348 NLRB 1250
(2006) (SDI-II) (2006) (Board awarded work in dispute
to SDI’s employees represented by Southwest Regional
Council of Carpenters, United Brotherhood of Carpenters
and Joiners of America (Carpenters), rather than employ-
ees represented by Local 200); see also Southwest Re-
gional Council of Carpenters (Standard Drywall, Inc.),
346 NLRB 478 (2006) (SDI-I) (same).2 SDI and the
General Counsel further contend that the Respondents’
defenses should be rejected, as they constitute attempts
to relitigate threshold issues that the Board decided in
SDI-I and SDI-II.
The Respondents agree that there are no facts in dis-
pute but they contend that their pursuit of legal actions to
obtain work contrary to the Board’s 10(k) award in SDI-
II did not violate the Act. The Respondents argue that
the Board lacked jurisdiction under Section 10(k) to issue
the award in that case because, contrary to the Board’s
findings in SDI-II, all parties are bound to a voluntary
method of resolving the underlying jurisdictional dispute.
The Respondents further argue that this case presents a
work-preservation dispute and not a jurisdictional dispute
as contemplated by Section 10(k), and that the Board
improperly refused to allow the Respondents to present
evidence of collusion in SDI-II, supra. In support of their
contentions, the Respondents seek to introduce evidence,
including declarations and documents, that they claim
show that SDI and Carpenters colluded to ensure that the
disputed work would be awarded to Carpenters-
represented employees in SDI-II. Thus, the Respondents
contend that they did not violate the Act as a matter of
law, and summary judgment should be granted in their
favor.
In their responses to the Notice to Show Cause, the
General Counsel and SDI reiterate that the Respondents’
motion should be denied because it raises threshold is-
sues previously decided that may not be relitigated in this
proceeding. The General Counsel and SDI further con-
tend that the Respondents’ motion improperly attempts
to introduce unauthenticated evidence that has not been
subject to cross-examination and that was previously
rejected by the Board in SDI-III and in the 10(k) pro-
ceedings.
Based on the factual findings in SDI-I, SDI-II, and
SDI-III, the Respondents’ admissions in their answers to
the complaint, and their acknowledgment that this case
presents nearly identical facts and overlapping legal is-
sues with SDI-III, we find that there are no material is-

2 SDI further asserts that the Board should take official notice of the
record in SDI-III, as well as defer to the court’s factual findings in
Standard Drywall Industries v. Plasterers Local, 633 F.Supp.2d 1114
(C.D.Cal. 2009).
PLASTERERS LOCAL 200 (STANDARD DRYWALL) 2213
sues of fact warranting a hearing and that, as a matter of
law, the Respondents have violated Section
8(b)(4)(ii)(D) as alleged.
Accordingly, we grant SDI’s Motion for Summary
Judgment and deny the Respondents’ Motion for Sum-
mary Judgment.
On the entire record the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, SDI, a California corporation,
with a principal place of business in Riverside, Califor-
nia, and offices located in Arizona, Wyoming, and Utah,
has been engaged as a contractor and/or subcontractor in
the drywall construction industry. During the 12-month
period ending December 31, 2008, a representative peri-
od, SDI, in conducting its business operations, derived
gross revenues in excess of $500,000, and purchased and
received at its California projects goods and materials
valued in excess of $50,000 directly from points outside
the State of California. We find that SDI is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and a person engaged in
commerce or in an industry affecting commerce within
the meaning of Section 8(b)(4)(ii) of the Act. We also
find that the Respondents International and Local 200, as
well as Carpenters, are labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts3
SDI is a contractor in the drywall construction industry
in southern California. As stated above, in two prior
10(k) proceedings—SDI-I and SDI-II—the Board award-
ed SDI’s disputed plastering work to employees repre-
sented by Carpenters rather than to employees represent-
ed by Local 200. In SDI-III, the Board found that the
Respondents violated Section 8(b)(4)(ii)(D) by filing and
maintaining grievances, arbitration claims, and state law-
suits that sought to obtain work assignments contrary to
the Board’s 10(k) award in SDI-II.
The relevant background to this fourth SDI proceeding
can be briefly stated. In 2002, SDI and Carpenters en-
tered into an agreement covering plastering work in 12
southern California counties. In October 2004, Local
200 filed suit in California state court (the Pullen suit)
alleging that SDI violated California state law by failing
to employ plastering apprentices on public works pro-
jects and failing to pay prevailing wages at public

3 The recited facts are based on the Board’s findings in SDI–I, II,
and III.
worksites in southern California.4 In May 2005, Local
200 offered to withdraw the suit if SDI executed an
agreement assigning its plastering work on a public
works project in Fullerton, California to Local 200-
represented employees. Carpenters, whose members
were performing the Fullerton work, threatened to strike
SDI if it reassigned the disputed work. SDI filed charges
alleging that Carpenters’ threat violated Section
8(b)(4)(ii)(D).
In SDI-I, a 10(k) proceeding, the Board issued a Deci-
sion and Determination of Dispute awarding the disputed
Fullerton work to employees represented by Carpenters.
Within days of the Board’s Decision in SDI-I, SDI
filed new charges alleging that Carpenters had used pro-
scribed means to enforce its claim to SDI’s plastering
work in 12 southern California counties. In SDI-II, an-
other 10(k) proceeding, the Board again awarded the
contested work to employees represented by Carpenters,
relying on established criteria and expressly rejecting
Local 200’s claim of collusion between Carpenters and
SDI. SDI-II, 348 NLRB at 1252, 1254. The Board also
rejected Local 200’s contention that all parties were
bound to a voluntary dispute resolution mechanism, the
AFL–CIO’s Plan for the Settlement of Jurisdictional
Disputes in the Construction Industry (the Plan).
Because of the likelihood of future jurisdictional dis-
putes, SDI-II included a broad work award: “the determi-
nation of this dispute applies not only to the jobs in
which the dispute arose but to all similar work done by
[SDI] on any other public works projects in the 12 south-
ern California counties, where the jurisdiction of the two
unions overlap.” SDI-II, 348 NLRB at 1256.
Following SDI-II, the Respondents continued pursuing
lawsuits and grievances (the latter under the Plan) against
SDI related to its plastering work. These actions includ-
ed the Pullen lawsuit, still pending in state court; another
state lawsuit alleging that SDI and Carpenters tortiously
interfered with Local 200’s prospective economic ad-
vantage by participating in a kickback scheme that re-
sulted in SDI’s assignment of plastering work to

4 Pullen v. Standard Drywall, Inc., Case RC 428011. At that time
Local 200 operated the only State-approved apprentice program. Local
200 sought backpay for SDI’s failure to employ its apprentices on
public works projects and an injunction against future violations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2214
employees represented by Carpenters rather than by Lo-
cal 200; the International’s pursuit of a grievance to arbi-
tration under the Plan seeking SDI’s plastering work; and
the International’s request that the Plan administrator file
a complaint against SDI.5
In SDI-III, the Board found that the Respondents’ pur-
suit of these legal actions violated Section
8(b)(4)(ii)(D).6 Relying on well-settled precedent, the
Board held that the Respondents’ actions to obtain the
work, or monetary damages in lieu of the work, were
contrary to the Board’s 10(k) award, and thus had an
illegal objective and violated Section 8(b)(4)(ii)(D).7
In SDI-III, applying settled precedent, the Board first
rejected the Respondents’ attempts to relitigate issues
decided in SDI-II, including whether the dispute was
properly before the Board, whether there was another
agreed-upon method of resolution, whether there was
collusion between SDI and Carpenters,8 and the correct-
ness of the Board’s 10(k) determination. See SDI-III, slip
op. at 3. The Board observed that threshold issues are
not subject to relitigation after a 10(k) award. Long-
shoremen Local 6 (Golden Grain Macaroni Co.), 289
NLRB 1, 2 fn. 4 (1988).
B. The Instant Complaint
On July 31, 2009, the General Counsel issued a new
unfair labor practice complaint alleging that the Re-
spondents violated Section 8(b)(4)(ii)(D) by pursuing
another arbitration award involving different jobsites but
still contrary to SDI-II’s broad 10(k) award. The com-
plaint alleges that the International, acting as Local 200’s

5 On September 15, 2008, the district court granted a 10(l) injunction
against the Respondents, ordering them to cease and desist from unlaw-
fully threatening, restraining, or coercing SDI in any manner or by any
means. Small v. Plasterers, Local 200, 2008 WL 4447684 (C.D.Cal.
2008). The Ninth Circuit denied the Respondents’ challenge to the
scope of the court’s Order Small v. Operative Plasterers’ and Cement
Masons’ International Assn. Local 200, 611 F.3d 483 (9th Cir. 2010).
6 Sec. 8(b)(4)(ii)(D) prohibits unions from using threats, coercion or
restraint with an object of forcing or requiring an employer to assign
certain work to employees represented by a particular labor organiza-
tion rather than to employees represented by another labor organization.
7 The Board noted that the Supreme Court’s decision in BE&K Con-
struction Co. v. NLRB, 536 U.S. 516 (2002), did not undermine the
Court’s earlier statement that legal proceedings that have an objective
that is illegal may be enjoined without infringing on the First Amend-
ment. Bill Johnson's Restaurants, NLRB, 461 U.S. 731, 737, fn. 5
(1983). SDI-III, supra, slip op. at 3, relying on E. P. Donnelly, 357
NLRB No. 131, slip op. at 2 fn. 4 (2011).
8 7The Board specifically concluded that the issue of collusion, i.e.,
the Respondents’ argument that collusion between the Carpenters and
SDI led to SDI’s assignment of work traditionally performed by Local
200-represented employees to Carpenters-represented employees, was a
threshold issue in the 10(k) proceeding that could not be relitigated in
the unfair labor practice proceeding. In so ruling, the Board rejected
the Respondents’ contention that its conduct amounted to lawful work
preservation. See also SDI-II, supra at 1254.
agent, pursued to arbitration a grievance seeking plaster-
ing work performed by SDI’s employees. Specifically,
the complaint alleges, and the Respondents admit, that
about January 5, 2009, the International pursued a griev-
ance seeking plastering work being performed by SDI’s
employees at Valley Regional Elementary Schools Nos.
7 and 9, both located in southern California. Arbitrator
Greenberg awarded the plastering work at the two
schools to employees represented by Local 200. Addi-
tionally, the complaint alleges, and the Respondents ad-
mit, that in response to SDI’s request to vacate the arbi-
tration award, the International filed a counterclaim in
the United States District Court for the Central District of
California to enforce and confirm the Greenberg award.9
The Respondents’ answer denies that the Board’s ear-
lier awards were in compliance with 10(k) and raises
affirmative defenses.10
C. Discussion
It is undisputed that, despite a contrary 10(k) award,
the Respondents filed a grievance resulting in Arbitrator
Greenberg’s award of SDI plastering work to employees
represented by Local 200, as well as a subsequent claim
in federal court to enforce and confirm that award.11 As
noted above, the Board found in SDI-III that the Re-
spondents’ pursuit of grievances and lawsuits to obtain
such work had an illegal objective and violated Section
8(b)(4)(ii)(D). See slip op. at 3; see also E. P. Donnelly,
supra, slip op. at 3. In SDI-III, the Board also found that
the Respondents could not relitigate threshold matters
already decided in an underlying 10(k) proceeding. See
slip op. at [12] fn. 12.
Here, as they concede in their motion to consolidate,
the Respondents engaged in conduct that is virtually
identical to that found to be unlawful in SDI-III. Further,
the Respondents’ defenses and proffered evidence have
already been considered and rejected by the Board in
SDI-III.

9 The court ultimately dismissed the counterclaim and vacated the
Greenberg award as being contrary to the Board’s 10(k) award. Stand-
ard Drywall, Inc. v. Plasterers, Local 200, 633 F.Supp.2d 1114
(C.D.Cal. 2009).
10 Among other things the Respondents raise a 10(b) defense. How-
ever, we reject this defense as the Respondents have not presented any
evidence or argument in support.
11 In its answer to the complaint, the International admits that it acted
as Local 200’s agent when it pursued the grievance and filed the coun-
terclaim in district court. Local 200 denies that the International acted
as its agent. We find, consistent with our conclusion in SDI-III, slip op.
at 3, that the International acted as Local 200’s agent as alleged.
PLASTERERS LOCAL 200 (STANDARD DRYWALL) 2215
Accordingly, consistent with our decision in SDI-III as
well as our recent decision in E. P. Donnelly, we grant
SDI’s motion and find that the Respondents violated Sec-
tion 8(b)(4)(ii)(D) as alleged.12
CONCLUSION OF LAW
By pursuing to arbitration a grievance seeking plaster-
ing work performed by employees of SDI that had been
awarded by the Board to employees represented by Car-
penters; and by filing a counterclaim in the United States
District Court for the Central District of California to
enforce the Greenberg award resulting from that griev-
ance, the Respondents violated Section 8(b)(4)(ii)(D) of
the Act. The Respondents are jointly and severally liable
for the unfair labor practices found in this proceeding.
REMEDY
Having found that the Respondents have violated Sec-
tion 8(b)(4)(ii)(D) of the Act, we shall order them to
cease and desist13 and to take certain affirmative action
designed to effectuate the purposes of the Act, including
paying attorney fees to SDI.14
ORDER
The National Labor Relations Board orders that the
Respondents, Operative Plasterers’ & Cement Masons’
International Association, its officers, agents, and repre-
sentatives, and Operative Plasterers' & Cement Masons’
International Association, Local 200, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Pursuing a grievance to arbitration and seeking to
enforce the arbitration award in order to obtain plastering
work performed by SDI employees represented by Car-
penters at the Valley Regional Elementary Schools Nos.
7 and 9, both located in southern California, with an ob-
ject of requiring SDI to assign the disputed work to em-
ployees represented by Respondent Local 200 rather than
to employees represented by Carpenters.
(b) Threatening, coercing, or restraining SDI, or any
other person or employer engaged in commerce or in an
industry affecting commerce, where an object of their

12 In light of our decision, we deny the Respondents’ Motion for
Summary Judgment. We also deny SDI’s Motion to Strike.
13 We find that a broad cease-and-desist order against the Respond-
ents is warranted based on their repeated violations of Sec.
8(b)(4)(ii)(D) in this case and in SDI-III. See generally Five Star Mfg.,
348 NLRB 1301 (2006); Hickmott Foods, 242 NLRB 1357 (1979)
(proclivity to violate the Act justifies a broad order).
14 See SDI-III, slip op. at 10, citing Teamsters Local 776 (Rite Aid),
305 NLRB 832 fn. 10 at 835 (1991), enfd. 973 F.2d 230 (3d Cir. 1992),
cert. denied 507 U.S. 959 (1993); see also Food & Commercial Work-
ers Local 367 (Quality Foods), 333 NLRB 771 (2001); Service Em-
ployees Local 32B-32J (Nevins Realty), 313 NLRB 392, 403 (1993),
enfd. in relevant part 68 F.3d 490 (D.C. Cir. 1995).
actions is to force or require the employer to assign plas-
tering work to Local 200’s members, rather than to its
own employees who are not members of Local 200, until
Local 200 is certified by the Board as the bargaining rep-
resentative of the employees performing such work.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw the petition to enforce the Greenberg
award.
(b) Reimburse SDI for reasonable legal expenses and
fees associated with the defense against the Greenberg
award and the Respondents’ counterclaim in federal dis-
trict court, with interest as computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB No. 8 (2010),
enf. denied on other grounds sub nom. Jackson Hospital
Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
(c) Within 14 days after service by the Region, post at
their respective offices and meeting halls copies of the
attached notice, in English and Spanish, marked “Ap-
pendix.”15 Copies of the Notice, on forms provided by
the Regional Director for Region 21, after being signed
by the Respondents’ authorized representatives, shall be
posted by the Respondents and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees/members are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondents customarily
communicates with its members by such means.16 Rea-
sonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Within 14 days after service by the Region, deliver
to the Regional Director for Region 21 signed copies of
the notice in sufficient number for posting by SDI at its
jobsite, if it wishes, in all places where notices to em-
ployees are customarily posted.

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
16 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2216
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT pursue a grievance to arbitration and
seek to enforce the arbitration award in order to obtain
plastering work performed by Standard Drywall, Inc.
employees represented by Carpenters at the Valley Re-
gional Elementary Schools Nos. 7 and 9, both located in
southern California, with an object of requiring Standard
Drywall, Inc. to assign the disputed work to employees
represented by Respondent Local 200 rather than to em-
ployees represented by Carpenters.
WE WILL NOT threaten, coerce, or restrain Standard
Drywall, Inc., or any other person or employer engaged
in commerce or in an industry affecting commerce,
where an object of our actions is to force or require the
employer to assign plastering work to Local 200’s mem-
bers, rather than to its own employees who are not mem-
bers of Local 200, until Local 200 is certified by the
Board as the bargaining representative of the employees
performing such work.
WE WILL withdraw our petition to enforce the Green-
berg award.
WE WILL reimburse SDI for reasonable legal expenses
and fees with interest incurred in defending against the
Greenberg award after December 13, 2006.

OPERATIVE PLASTERERS’ & CEMENT MASONS’
INTERNATIONAL ASSOCIATION, AFL–CIO