Human Resource & Labor News
www.agc.orgMarch 21, 2012 / Issue No. 2-12
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On the Inside
Labor Relations
First Court to Rule on NLRB Notice Posting Regulation Upholds Posting Requirement
Construction Industry Experiences Slight Increase in Union Representation in 2011
CDW and Chamber Join Lawsuit Challenging NLRB Recess Appointments
Contractor Must Give Work to Plasterers Even Though Carpenters Won Representation Election
Federal Contracting
AGC Urges OFCCP to Exempt Construction Industry from Section 503 Disabilities Regulations
Recruiting & Hiring
EEOC Clarifies Hiring Guidance on High School Diploma Requirements, Disabled Veterans
IRS Issues Guidance for Employers on Tax Credit for Hiring Veterans
Leave & Benefits
Affordable Care Act Questions Answered
Labor Department Updates FMLA E-Laws Advisor
Justice Department Issues Guidance for Employers on I-9 Audits
DOL Issues Final Rule on Temporary Foreign Workers
E-Verify “Self-Check” Available Nationwide
Contractor Must Give Work to Plasterers Even Though Carpenters Won Representation Election

A contractor must comply with an arbitration award assigning work to members of the Plasterers union rather than the Carpenters despite the fact that the contractor’s employees have elected the Carpenters as their exclusive collective bargaining representative, the U.S. District Court for the District of Columbia has held.

The case arose out of Frye Construction’s assignment of work at an elementary school project in Los Angeles, CA, to its employees who were represented by the Southwest Regional Council of Carpenters.  At the time, Frye was not signatory to the Los Angeles Unified School District Project Stabilization Agreement (LAUSD Agreement) – an 8(f) project agreement used for such school construction projects – but numerous unions were, including the Southwest Regional Council of Carpenters and Plasterers Local 200.  Plasterers Local 200 disputed Frye’s assignment under the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry, which was incorporated into the LAUSD Agreement.  An arbitrator ruled in favor of the Plasterers Local 200, finding that its members were entitled to the work.  However, just five days prior to the arbitrator’s ruling, the Carpenters council was certified by the National Labor Relations Board as the exclusive bargaining representative for Frye’s employees following a unanimous vote by the workers.  One month after the arbitrator’s ruling, Frye signed a letter of assent binding itself to the LAUSD Agreement.  Still, Frye refused to comply with the arbitrator’s decision.  The Carpenters filed a petition with the court to vacate the arbitration award, and the Plasters filed a motion to enforce the award.

The court held that the arbitration award is enforceable.  The Carpenters argued that the arbitration award directly conflicts with its election and certification as Frye’s employee’s exclusive bargaining representative.  While the court noted that such a certification nullifies any conflicting contractual obligations arising out of a pre-existing 8(f) agreements with another union, the court rejected the Carpenters’ argument for several reasons.

First, the court said, the LAUSD Agreement did not require Frye's employees to recognize another union as their bargaining representative.  Frye's adoption of the agreement was therefore valid and requires its adherence to jurisdictional decisions made in accordance with the Plan.  Second, the Carpenters' argument overlooks the differences between a jurisdictional dispute and a representational dispute.  The Carpenters’ certification as the exclusive bargaining representative of Frye’s employees “pertains only to the representation of those employees, and not to the work assigned to those employees by the employer,” the court explained.  Third, the arbitration award can be enforced in a manner that does not violate the National Relations Labor Act and that requires Frye to fulfill the obligations it assumed with its letter of assent.  The court agreed with the Plasterers that Frye could comply with the award without interfering with Frye’s employees’ choice of representation by subcontracting the work to a subcontractor that uses employees represented by Plasterers Local 200.  Requiring Frye to subcontract the disputed work would hold it to its contractual obligations, the court said.

United Bhd. of Carpenters v. Operative Plasterers & Cement Masons, Case No. 11-353 (D.D.C., 12/1/11).
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