                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
OPERATIVE PLASTERERS’ & CEMENT )
MASONS’ INTERNATIONAL               )
ASSOCIATION OF THE UNITED           )
STATES AND CANADA, AFL-CIO, et al. )
                                     )
            Petitioner,             )
                                     )   Civil Action No. 09-1160 (RBW)
                                     )
      v.                             )
                                     )
                                     )
JORDAN INTERIORS, INC, et al.        )
                                     )
            Respondent.             )
___________________________________ )
                                    )
UNITED BROTHERHOOD OF               )
CARPENTERS AND JOINERS OF           )
AMERICA, et al.                      )
                                     )
            Petitioner,             )
                                     )
                                     )
      v.                             )   Civil Action No. 09-2212 (RBW)
                                     )
                                     )
OPERATIVE PLASTERERS’ & CEMENT )
MASONS’ INTERNATIONAL                )
ASSOCIATION OF THE UNITED            )
STATES AND CANADA, AFL-CIO          )
                                    )
            Respondent.             )
___________________________________ )

                                 MEMORANDUM OPINION

       These two cases arise from similar underlying facts. In Civil Action 09-cv-1160 (RBW),

the Operative Plasterers’ and Cement Masons’ International Association, AFL-CIO (the

“Association”) petition to confirm an arbitration award entered in its favor by Arbitrator Paul




                                                 1
Greenberg pursuant to the Plan for the Settlement of Jurisdictional Disputes in the Construction

Industry (“Plan”). Petition to Confirm Arbitration Award (“Pet. to Confirm”) ¶ 1. In response,

the Southwest Regional Council of Carpenters (“Southwest Regional Council”) and the United

Brotherhood of Carpenters and Joiners of America (“Brotherhood of Carpenters”) brought a

counterclaim to vacate the award. Respondents’ Answer to Petition to Confirm Arbitration

Award and Counter-Claim (“Council Ans.”). Correspondingly, in Civil Action 09-cv-2212

(RBW), the Southwest Regional Council and the Brotherhood of Carpenters brought a petition to

vacate an arbitration award issued by Arbitrator Tony Kelly pursuant to the same Plan, which

was also entered in favor of the Association. Petition to Vacate Arbitration Award (“Pet. to

Vacate”). The Association then filed its answer and a counterclaim in this second case

requesting that the Court: (1) confirm the award issued by Arbitrator Kelly, (2) order Jordan

Interiors and its representatives, the Brotherhood of Carpenters and the Southwest Regional

Council, to comply with the award; and (3) award attorneys fees, court costs, and expenses to the

Association. Respondent’s Answer to Petition to Vacate Arbitration Award and Counter-Claim

to Confirm Arbitration Award ( “Ass’n’s Ans.”) at 12. In short, both cases involve the same

parties and their resolution turns on the question of whether the awards entered by arbitrators

Greenberg and Kelly are enforceable.

         This matter is now before the Court on the parties’ consolidated cross-motions for

summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. 1 See



1
         The Association also moves for leave to file a notice of supplemental authority, see Petitioner’s Motion for
Leave to File Notice of Supplemental Authority (the “Ass’n’s Mot. for Leave”), which is opposed by the Southwest
Regional Council and the Brotherhood of Carpenters, see Respondents’ Opposition to Petitioner [the Association]’s
Motion for Leave to File Notice of Supplemental Authority. Over objection, the Court consulted the supplemental
authority in rendering its decision and therefore the respondent’s opposition is denied. The Court also considered
the following submissions in reaching its decision in these cases: the Petitioner [Association]’s Memorandum in
Support of its Motion for Leave to File Notice of Supplemental Authority; Petitioner [Association]’s Notice of
                                                                                                       (continued . . .)


                                                           2
Respondents’ Consolidated Motion for Summary Judgment (“Council’s Mot.”); Petitioner

[Association]’s Consolidated Motion for Summary Judgment in Case Nos. 1:09-cv-[1]160-

(RBW) and 1:09-cv-02212-(RBW) (“Ass’n’s Mot.”). 2 Because the employees of Jordan

Interiors elected the Southwest Regional Council as their exclusive representative, resulting in

the National Labor Relations Board’s certification of the Southwest Regional Council for that

representation, the Court must grant summary judgment in part in favor of the Brotherhood of

Carpenters, the Southwest Regional Council, and Jordan Interiors; vacate the award issued by

Kelly; and accordingly deny the Association’s motion for summary judgment in part as to the

Kelly award. In regards to Arbitrator Greenberg’s award, the Court must grant summary

judgment in part in favor of the Association, because at the time of the arbitration Jordan

Interiors was still subject to the Agreement and the award was therefore not unlawful. In

addition, based on the affirmance of Arbitrator Greenberg’s award, the Association is awarded

the cost of its attorney fees and court expenses related to their expenditures enforcing the

Greenberg award.

                                             I. BACKGROUND

        Central to the disputes at hand is the Los Angeles Unified School District Project

Stabilization Agreement (“Agreement”), a pre-hire collective bargaining agreement authorized

under 29 U.S.C. § 158(f) (commonly referred to as an “8(f)” agreement). Pet. to Vacate, Ex. A



(. . . continued)
Supplemental Authority; and the Petitioner’s Reply Brief to Respondents’ Opposition to Petitioner [Association]’s
Motion for Leave to File Supplemental Authority (the “Ass’n’s Reply Re: Leave”).
2
         The Court also considered the following documents in resolving the motions for summary judgment:
Petitioner [Association]’s Memorandum in Support of its Consolidated Motion for Summary Judgment; the
Respondent’s Memorandum of Points and Authorities in Support of Consolidated Motion for Summary Judgment;
the Respondents’ Opposition to Consolidated Motion for Summary Judgment; the Petitioner [Association]’s
Memorandum in Opposition to Respondent’s Motion for Summary Judgment (the “Ass’n’s Opp’n.”); the
Respondents’ Reply Brief in Support of Their Consolidated Motion for Summary Judgment (“Council’s Reply”).



                                                        3
(Agreement). A contractor can enter into a § 8(f) collective bargaining agreement, such as the

Agreement here, recognizing one or more bargaining representatives despite a lack of majority

support from employees. 29 U.S.C. § 158(f) (2006). The Agreement “establishes the labor

relations Policies and Procedures for the District and for the craft employees represented by the

Unions engaged in the District’s new school and building construction and substantial

rehabilitation and capital improvement program . . . .” Agreement at 1. The Agreement also

contains a clause providing that those parties bound by the Agreement must recognize all

signatory unions as the bargaining representatives of its employees. Id. at 12, § 3.1.

        On May 12, 2003, approximately thirty labor organizations, including the Brotherhood of

Carpenters and its affiliate the Southwest Regional Council, the Association and its affiliated

local union (Plasterers Local 200), executed the Agreement. Petitioner [Association]’s Reply

Brief in Support of its Consolidated Motion For Summary Judgment (“Ass’n’s Reply”) at 12. 3

Jordan Interiors, an employer that performed plastering work at construction projects, became a

party to the pre-existing Agreement by signing a letter of assent on January 20, 2009, after it had

been awarded contracts on two projects covered by the Agreement—the Valley Region High

School No. 9 Project (“Project No. 9”) and the Central Region Middle School No. 7 Project

(“Project No. 7”). Id. at 14.

        Pursuant to § 8.1 of Article 8 of the Agreement, all work assignments for the School

District’s construction projects are required to be made “in accordance with the Plan for the

Settlement of Jurisdictional Disputes in the Construction Industry." Agreement § 8.1; Ass’n’s

Ans., Ex. 1 (Plan for the Settlement of Jurisdictional Disputes in the Construction Industry) at

30. Under § 8.2 of the Agreement, parties to the Agreement are required to abide by the Plan’s

3
         The Agreement was amended on or about October 31, 2003, to remain in effect through September 2013.
Pet. to Confirm, Ex. 3.



                                                      4
procedures in resolving jurisdictional disputes. Agreement at 28, § 8.2 As the Association

states, a jurisdictional dispute arises “when two labor organizations have a disagreement over

whether an employer has properly assigned work to be performed by a group of employees

represented by one of those unions rather than a different group of employees represented by the

other union.” Ass’n’s Mot., Ex. 1 (Ass'n's Statement of Facts) ("Ass'n's Stmt. of Facts") ¶ 4.

After Jordan Interiors became bound by the Agreement, two separate jurisdictional disputes

arose over Jordan Interiors’ assignment of plastering work. Id. ¶¶ 15, 27. The first dispute

occurred at Project No. 9, id. ¶ 15, and the second dispute developed at Project No. 7, id. ¶ 27.

Both disputes arose as a result of Jordan Interiors’ assignment of plastering work to workers

represented by the Southwest Regional Council and the Brotherhood of Carpenters, instead of

workers represented by Plasterers Local 200. Id. ¶¶ 15, 27.

       As required by the Agreement, the Association notified the Plan’s administrator of the

jurisdictional dispute at Project No. 9 and the administrator assigned Arbitrator Greenberg to

resolve that dispute. Id. ¶ 18. Although the Brotherhood of Carpenters, the Southwest Regional

Council, and Jordan Interiors were provided notice of the arbitration hearing scheduled for June

12, 2009, both failed to attend or otherwise participate. Id. ¶ 19. Greenberg then issued his

opinion on June 13, 2009, holding that the parties had stipulated to the Plan and ordered the

disputed plastering work at Project No. 9 to be assigned to workers represented by the

Association. Pet. to Confirm, Ex. 6 (Decision and Award of Arbitrator Paul Greenberg) at 8.

Jordan Interiors, the Brotherhood of Carpenters, and the Southwest Regional Council have not

complied with this award. Ass’n’s Mot., Ex. 1 (Ass'n's Stmt. of Facts) ¶ 26.

        Shortly after Arbitrator Greenberg issued his decision, on June 22, 2009, pursuant to an

election petition filed by Jordan Interiors with the National Labor Relations Board, an election




                                                 5
was held and the employees of Jordan Interiors unanimously voted for the Southwest Regional

Council to be their exclusive representative. 4 Council’s Mot., Ex. 2 (Respondents’ Statement of

Material Facts to Which There is no Genuine Issue) ¶ 11. Accordingly, the National Labor

Relations Board certified the Southwest Regional Council as Jordan Interiors employee’s

exclusive representative. Id. In October 2009, the Association notified the Plan’s administrator

of the second jurisdictional dispute at Project No. 7, again invoking the Plan under the

Agreement. Id. ¶ 14. A hearing on this dispute was held by Arbitrator Kelly on November 5,

2009, id. ¶ 18, and again the Brotherhood of Carpenters, Southwest Regional Council, and

Jordan Interiors did not attend or participate despite being provided notice of the hearing,

Ass’n’s Mot., Ex. 1 (Ass'n's Stmt. of Facts) ¶ 31. On November 10, 2009, Kelly issued his

opinion which ordered Jordan Interiors to assign the disputed work at Project No. 7 to employees

represented by the Association. Id. ¶ 33. Jordan Interiors, the Brotherhood of Carpenters, and

the Southwest Regional Council have not complied with the decision making this award. Id. ¶

34.

         Currently before the Court are the parties’ consolidated cross-motions for summary

judgment under Rule 56 of the Federal Rules of Civil Procedure, arguing for or against the

enforceability of the two arbitration awards. Specifically, the Brotherhood of Carpenters and the

Southwest Regional Council request that the Court vacate both arbitration awards, Council’s

Mot. at 1-2, while the Association requests that the Court affirm the awards, Ass’n’s Mot. at 1.




4
         Unlike the sequence of events portrayed by the Brotherhood of Carpenters and the Southwest Regional
Council, that “the election certification occurred before the Plan arbitrators issued their contractual arbitration
award,” Council’s Reply Brief in Support at 4, it appears based on the record that the election was held over one
week after Arbitrator Greenberg issued his award on June 13, 2009. See Pet. to Vacate, Ex. B (Tally of Ballots);
Pet. to Confirm., Ex. 1 (Decision and Award of Arbitrator Paul Greenberg) at 8.



                                                          6
        The Brotherhood of Carpenters and the Southwest Regional Council argue that the

awards are invalid and should be vacated for two reasons. First, they maintain that there was no

valid contract between the Association and Jordan Interiors that authorized the arbitration.

Respondents’ Reply Brief in Support of Their Consolidated Motion for Summary Judgment at 1-

2 (“Council’s Reply”). They assert that once the employees of Jordan Interiors exercised their

rights under 29 U.S.C. § 157 and selected the Southwest Regional Council as their exclusive

representative, any conflicting contractual rights that the Association had with Jordan Interiors

under the § 8(f) pre-hire Agreement were rendered void. Id. Second, the Brotherhood of

Carpenters and the Southwest Regional Council allege that both awards are “repugnant” to the

National Labor Relations Act because ordering Jordan Interiors to assign work to workers

represented by Plasterers Local 200 “not only impinge[s] on the Board’s election certification of

the [Southwest Regional Council] and the Section 7 rights of Jordan Interiors’ employees but

directly violate[s] both . . . .” Id. at 14.

        In contrast, the Association asserts that the certification of the Southwest Regional

Council as Jordan Interiors employees’ representative is irrelevant as a matter of law and that all

of the parties remain contractually bound by the Agreement and accordingly the Plan and its

jurisdictional dispute resolution procedures. Ass’n’s Reply at 16. Moreover, the Association

contends that the arbitration awards are not repugnant to the National Labor Relations Act

because the disputes that resulted in the awards are jurisdictional and to reassign the disputed

work to Plasterers Local 200 would not interfere with the employees of Jordan Interiors choice

of representation. Id. Thus, the two issues before the Court are: (1) whether the election and

subsequent certification of the Southwest Regional Council as the exclusive representative of

Jordan Interiors’ employees voided the Agreement between the parties, but, if the Agreement




                                                 7
was valid, (2) whether the arbitration awards are “repugnant” to or violate § 7 the National Labor

Relations Act. Council’s Reply at 14.



                                 II. STANDARD OF REVIEW

       This Court will grant a motion for summary judgment under Federal Rule of Civil

Procedure 56 if “the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). When evaluating such a motion, the

Court must view the evidence “in the light most favorable to the non-moving party.” Evans v.

Sebelius, 674 F. Supp. 2d 228, 238 (D.D.C. 2009) (citations omitted). The Court must also

accept evidence provided by the non-moving party as true, drawing “all justifiable inferences” in

the non-moving party's favor. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)).

       With respect to this Court’s review of arbitration awards, “when parties to a collective

bargaining agreement have agreed to submit to arbitration, the function of the court is extremely

limited.” Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 254 F. Supp. 2d 12, 14

(D.D.C. 2003) (citing Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1473 (D.C. Cir. 1997)

(internal citations omitted)). Accordingly, in such circumstances a court “ha[s] no business

weighing the merits of the grievance, considering whether there is equity in a particular claim, or

determining whether there is particular language in the written instrument which will support the

claim,” because it is the arbitrator who determines the validity of the moving party’s position.

United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 568 (1960) (footnote omitted).




                                                 8
       “Although [c]ourts exercise only limited review of the merits of an arbitrator’s decision

in a labor dispute, they retain full authority to vacate awards that fail to confine themselves to

matters within the scope of the arbitrator’s assigned jurisdiction.” Howard Univ. v. Metro.

Campus Police Officer’s Union, 519 F. Supp. 2d 27, 32 (D.D.C. 2007) (alteration in original)

(quoting Commc’n Workers of Am., AFL-CIO, CLC v. Am. Tel. & Tel. Co., 903 F.Supp. 3, 5

(D.D.C. 1995) (internal quotations and citations omitted)). Moreover, it is well established that

an arbitration award must “draw its essence from the parties collective bargaining agreement.”

Id.

                                          III. ANALYSIS

A.     The Arbitration Awards

       For an arbitration award rendered pursuant to a collective bargaining agreement to be

enforced, the arbitrator must “have the contractual authority to” issue the award. Barrentine v.

Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 744 (1981) (“An arbitrator’s power is both

derived from, and limited by, the collective-bargaining agreement.”). Even though parties

entered into a valid collective bargaining agreement, and despite the great deference courts must

accord to arbitrators, an arbitration award may nonetheless be unenforceable if: (1) the collective

bargaining agreement was subsequently terminated and the arbitrator was not able to consider

the full effects of the award given the agreement’s termination, see Pioneer Natural Res. USA,

Inc. v. Paper, Allied Indus., Chem. & Energy Int'l Union, 338 F.3d 440, 441 (5th Cir. 2003) (per

curiam); or (2) the award “is in ‘explicit conflict’ with ‘other laws and legal precedents,’” Am.

Postal Workers Union v. U.S. Postal Serv., 550 F.3d 27, 32 (D.C. Cir. 2008) (citing United

Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 43 (1987)) (internal quotation marks

omitted).




                                                  9
        While there is a general requirement for employers to obtain majority support from

employees before signing collective bargaining agreements, the National Labor Relations Act

creates a limited exception to this requirement for the construction industry. 29 U.S.C. § 158(f).

Because of the unique nature of the construction industry, under § 8(f) a contractor may enter

into a pre-hire agreement that recognizes one or more representatives despite the lack of majority

employee support. Id. However, § 8(f) also offers protection to employees in such

circumstances by allowing them to decertify or change representatives at anytime during the

relationship through an election. Id.; see also Nova Plumbing v. NLRB, 330 F.3d 531, 534 (D.C.

Cir. 2003).

        As the National Labor Relations Board concluded: “In the event of an election, a vote in

favor of the signatory union, or a rival union, will result in that union's certification and the full

panoply of [§] 9 rights and obligations. A vote to reject the signatory union will void the [§] 8(f)

agreement and will terminate the [§] 8(f) relationship.” Deklewa v. Int’l Ass'n of Bridge,

Structural & Ornamental Iron Workers, Local 3, AFL-CIO, 282 N.L.R.B. 1375, 1385 (1987). 5

Termination of the § 8(f) relationship occurs because the § 7 protections accorded to employees,

including the “right to self-organization, to form, join, or assist labor organizations, [and] to

bargain collectively through representatives of their own choosing,” 29 U.S.C. § 157, are

fundamental; these rights are often considered superior to the contractual obligations derived

from collective-bargaining agreements, such as those derived from pre-hire agreements, which



5
         While the National Labor Relations Board’s interpretation of the National Labor Relations Act in the
Deklewa decision is not binding on this Court, the District of Columbia Circuit in Nova Plumbing recognized the
persuasiveness of the Board’s decisions in giving meaning to the Act. See 330 F.3d at 537–38; see also Joyce v.
Silveri Tile Co., L.C., 27 F. Supp. 2d 251, 255-56 (D.D.C. 1998).




                                                       10
were not endorsed by majority employee support. See Nova Plumbing, 330 F.3d at 537. When a

union is elected as the exclusive bargaining representative for a group of employees, that union is

the sole representative of the employees on issues concerning “rates of pay, wages, hours of

employment, or other conditions of employment.” 29 U.S.C. § 159(a) (2006).

         I.     Arbitrator Kelly’s Award

         Upon the National Labor Relations Board certifying a union as the exclusive

representative of a group of employees, any pre-existing contractual obligations arising from a §

8(f) agreement that recognizes other signatory unions as the employees’ representatives are

nullified. See Nova Plumbing, 330 F.3d at 536–37 (“An agreement between an employer and

union is void and unenforceable, [Int’l Ladies' Garment Workers' Union, AFL-CIO v. NLRB,

366 U.S. 731, 738 (1961)], if it purports to recognize a union that actually lacks majority support

as the employees’ exclusive representative.”); M.R.S. Enters., Inc. v, Sheet Metal Workers Int'l

Ass’n, Local 40, 429 F. Supp. 2d 72, 81 (D.D.C. 2006) (citing Mesa Verde Constr. Co. v. N. Cal.

Dist. Council of Laborers, 861 F.2d 1124, 1128 (9th Cir.1988)) (reiterating that “collective

bargaining agreements, including pre-hire agreements may . . . be . . . terminated during their

term [if] a National Labor Relations Board-certified election reveals that the union does not hold

the support of the majority of the bargaining unit”); Pioneer, 338 F.3d at 441 (holding that

“[w]hen the [National Labor Relations Board] decertified the Union . . . , the [collective

bargaining agreement] automatically terminated by operation of law"); Cent. States, Se. & Sw.

Areas Pension Fund v. Schilli Corp., 420 F.3d 663, 669–70 (7th Cir. 2005) (holding that,

although decertification normally terminates a union’s rights to enforce an agreement, the

agreement was nonetheless enforced because action to enforce it was brought under 29 U.S.C. §

1145).




                                                11
       Here, the arbitration award issued by Arbitrator Kelly in November 2009 required Jordan

Interiors to reassign the Project No. 7 plastering work to members of Plasterers Local 200.

Ass’n’s Mot., Ex. 1 (Ass'n's Stmt. of Facts) ¶ 33. However, that award was undisputedly made

after the employees of Jordan Interiors unanimously elected the Southwest Regional Council to

serve as their exclusive bargaining representative in June 2009. See Pet. to Vacate ¶¶ 1, 19

(indicating the election occurred on June 22, 2009); Pet. to Vacate ¶ 25 (indicating Arbitrator

Kelly issued his decision on November 10, 2009). In Pioneer, the National Labor Relations

Board decertified the union that was a party to the collective bargaining agreement, 338 F.3d at

441, while here the National Labor Relations Board certified the Southwest Regional Council as

the exclusive representative of Jordan Interiors’ employees. See Pet. to Vacate ¶ 19. The two

situations are analogous as a practical matter, as the certification of the Southwest Regional

Council, giving it exclusive bargaining rights under 29 U.S.C. § 159, effectively operated as a

decertification of the other signatory unions to the Agreement, one being the Association, by

relinquishing their bargaining power in regard to the Jordan Interiors employees. See 28 U.S.C.

§ 159; Ass’n’s Opp'n. at 17 (acknowledging that the National Labor Relation Board’s

certification of the Southwest Regional Counsel gave the Southwest Regional Counsel exclusive

bargaining rights in regard to Jordan Interiors’ employees). Like the court in Pioneer, which

found the entire collective bargaining agreement void prospectively as a matter of law from the

date of the National Labor Relations Board’s decertification of the signatory union, 338 F.3d at

441, this Court finds that the entire Agreement between Jordan Interiors and the Association was

invalidated by the election of June 22, 2009.

       Unlike the facts of Schilli Corp., cited by the Southwest Regional Council and the

Brotherhood of Carpenters, where the court noted that the “decertification terminated the union’s




                                                12
right to enforce the agreement” but nonetheless enforced the collective bargaining agreement in

an action brought under 29 U.S.C. § 1145, which accords greater rights to “to enforce the writing

without regard to understandings or defenses applicable to the original parties,” 420 F.3d at 669-

70 (internal quotations and citations omitted), the claims here were not filed pursuant to any such

statute that mandate the Agreement’s enforcement, see generally Pet. to Confirm; Pet. to Vacate.

       The employees of Jordan Interiors exercised their rights guaranteed by 29 U.S.C. § 157

and unanimously selected the Southwest Regional Council as their exclusive representative. Pet.

to Vacate ¶ 19. From the date of their vote, the pre-hire Agreement, which purported to

recognize multiple representatives, was terminated. See Deklewa, 282 N.L.R.B. at 1386.

Although Jordan Interiors was subject to the Plan and its arbitration clause through the

Agreement, Ass’n’s Reply at 13, once the Agreement was terminated, Jordan Interiors was no

longer bound by the terms of the Plan. Thus, summary judgment as to the Kelly award must be

granted in favor of the Southwest Regional Council and the Brotherhood of Carpenters, and

Kelly’s arbitration award approving the grant of work at Project No. 7 to Plasterers Local 200 is

vacated because a valid agreement did not exist when the arbitration award was issued. See

Barrentine, 450 U.S. at 744.

       II.     Arbitrator Greenberg’s Award

       An arbitration award is invalid if: (1) there was no valid collective bargaining agreement

at the time the arbitration was conducted, see Barrentine, 450 U.S. at 744; (2) there was a valid

collective bargaining agreement at the time of the arbitration but the agreement was subsequently

terminated and the arbitration award has the impact of enforcing the agreement, Pioneer, 338

F.3d at 441; Int’l Chem. Workers Union v. BASF Wyandotte Corp., 774 F.2d 43, 45 (2d Cir.




                                                13
1985); or (3) the award is unlawful or repugnant to the National Labor Relations Act, see Am.

Postal Workers, 550 F.3d at 32.

       When an arbitration award is issued pursuant to an arbitration clause of a collective

bargaining agreement that is subsequently terminated, some courts have been unwilling to

enforce the award after the agreement’s termination if the award has the effect of reinforcing the

agreement. See, e.g., Pioneer, 338 F.3d at 441; Int’l Chem., 774 F.2d at 45. The Fifth Circuit in

Pioneer, for instance, affirmed the district court’s ruling that an arbitration award requiring the

payment of back pay to employees was unenforceable following the union’s decertification and

termination of the collective bargaining agreement negotiated by the union that provided for

back pay because the arbitrators “could not have considered the effect of the award after the

termination of the [agreement],” 338 F.3d at 441 (citing Int’l Chem., 774 F.2d at 45). The court

reasoned that the disputed award, even though administered before the agreement was

terminated, had the practical effect of enforcing the agreement after its termination. Id.

Similarly in International Chemical Workers Union, the Second Circuit held that “the district

court erred in requiring reinstatement and back pay [imposed by the arbitration award] . . . after .

. . the date of the expiration of the old collective bargaining agreement” because the arbitration

award had the effect of enforcing the terminated agreement. 774 F.2d at 47.

       Here, the record clearly shows that Arbitrator Greenberg’s award was issued on June 13,

2009, while the Jordan Interiors employee’s election was held over a week later on June 22,

2009. See Pet. to Confirm, Ex. 6 at 8; Council’s Mot., Ex 2 ¶ 11. While Jordan Interiors’

obligations under the Agreement may have been terminated as a matter of law on the day of the

election, June 22, 2009, Council’s Mot., Ex 2 ¶ 11, the Court finds that Greenberg did have

authority to issue his award on June 13, 2009, because the election had not yet occurred and the




                                                 14
Agreement had therefore not been terminated at that time. Similar to the facts of both Pioneer

and International Chemical Workers Union, where the arbitrators issued their awards before the

termination of the collective bargaining agreement, 338 F.3d at 441; 774 F.2d at 45, here,

Greenberg issued his decision before the termination of the Agreement. See Pet. to Confirm, Ex.

6 at 8. However, in contrast to both Pioneer and International Chemical Workers Union, where

the courts refused to enforce the awards after the termination of the collective bargaining

agreements because requiring back pay and the reinstatement of employees had the practical

effect of enforcing those agreements, Pioneer, 338 F.3d at 441; Int’l Chem., 774 F.2d at 45,

Greenberg’s award requiring Jordan Interiors to reassign the disputed work at Project No. 9 to

workers represented by Plasterers Local 200 does not have the impact of enforcing the

Agreement and does not violate the representational rights of Jordan Interiors’ employees.

Ass’n’s Opp’n. at 4.

       The Southwest Regional Council and Brotherhood of Carpenters argue that in order to

enforce Greenberg’s award, Jordan Interiors would have to violate the National Labor Relations

Act by refusing to honor its workers’ § 7 rights and “forc[ing] its employees to accept the

[Association] as their representative or terminat[ing] the employees and replac[ing] them with

[Association-]represented workers . . . ” Council’s Reply at 3. The Association contends that as

an alternative Jordan Interiors could “subcontract the plastering work to a contractor who

employs workers represented by Plasterers Local 200 and the [Association]” without violating

any § 7 rights because the certification of representation extends only to the employees and

reassignment of work does not affect such representation. Ass’n’s Opp’n. at 3–4. In response,

while admitting that such an alternative is possible, the Southwest Regional Council and the

Brotherhood of Carpenters state that this approach “punishes Jordan Interiors’ employees for




                                                15
having selected the [Southwest Regional Council] as their representative by forcing Jordan

Interiors to take the disputed work away from the [Southwest Regional Council]-represented

employees and giving it to [Association]-represented employees.” Council’s Reply at 13.

However, given that the Southwest Regional Council and the Brotherhood of Carpenters have

not conclusively established that complying with the award would violate the National Labor

Relations Act, and because the National Labor Relations Board states that certification of a union

as the exclusive bargaining representative of a unit of employees "'does not per se preclude the

employer from adding to, or subtracting from, the employees' work assignments,'" Employing

Plasterers Ass'n of D. C., Inc., 118 N.L.R.B. 17, 19 (1957) (quoting Plumbing Contractors Ass'n,

93 N.L.R.B. 1081, 1087 (1951)), the Court is more persuaded by the Association’s position on

the issue.

        And if, as the Southwest Regional Council and the Brotherhood of Carpenters

acknowledge, it is possible for Jordan Interiors to subcontract the disputed work to employees

represented by Plasterers Local 200 without infringing upon its employees' choice of their

exclusive bargaining representative, then there is a manner in which the arbitration award can be

enforced lawfully. See Council’s Reply at 13. And while the result of such subcontracting may

deprive Jordan Interiors’ employees of performing certain work, id., neither party has established

that the subtraction or addition of work by an employer is precluded by certification, nor that so

doing is repugnant to the National Labor Relations Act or otherwise unlawful. 6 See Plumbing

Contractors Ass'n., 93 N.L.R.B. at 1087.

        Therefore, because Greenberg’s award must be confirmed, summary judgment is granted

in part to the Association and denied in part to the Southwest Regional Council and the

6
        The Court leaves for the parties to resolve the method of complying with the award, so long as the method
adopted does not violate the National Labor Relations Act.



                                                       16
Brotherhood of Carpenters. Specifically the Court finds: (1) that the Agreement was valid when

Greenberg issued his arbitration award; (2) that implementation of the award, despite the

subsequent termination of the Agreement, will not have the effect of enforcing the Agreement;

and (3) that the award may be enforced in a manner that is not unlawful or repugnant to the

National Labor Relations Act.

B.       Attorney Fees and Costs associated with Civil Action 09-cv-1160-RBW

         Article VII § 2(c) of the Plan provides that a “party seeking enforcement of an

Arbitrator’s decision . . . due to the failure of another party to abide by the decision or ruling

shall be reimbursed by the party failing to abide by the decision or ruling for any attorneys' fees,

court costs and expenses incurred.” Ass’n’s Ans., Ex. 1 at 30. Because the Court has found that

the parties to this dispute are bound to comply with the terms of the Agreement and therefore

also the Plan in regards to the Greenberg award, and given that it is undisputed that Jordan

Interiors, the Southwest Regional Council, and the Brotherhood of Carpenters have failed to

comply with Greenberg’s decision, Ass’n’s Mot., Ex. 1 ¶¶ 26, the Court finds that the

Association is entitled to an award of attorney’s fees and court costs associated with enforcing

the Greenberg award. On the other hand, regarding the Kelly award, because the Court finds that

this award must be vacated due to a lack of a valid Agreement when the award was issued,

attorney’s fees and costs cannot be awarded to the Association based on its efforts to enforce this

award.

                                        IV. CONCLUSION

         Because the Kelly arbitration award regarding Project No. 7 was issued months after the

termination of Jordan Interiors’ obligations under the Agreement, which required Jordan

Interiors to comply with the Plan, Kelly had no authority to issue the award and thus his award




                                                  17
must be vacated. With respect to the Greenberg arbitration award, regarding Project No. 9, the

award must be confirmed given that: (1) the Agreement was terminated over a week after

Greenberg issued his award, (2) the implementation of the award will not have the effect of

enforcing the terminated Agreement; and (3) the award is not unlawful or repugnant to the

National Labor Relations Act. For these reasons, the Court must grant summary judgment in

part in favor of the Brotherhood of Carpenters and the Southwest Regional Council in regards to

the Kelly arbitration award and therefore vacate that award, and accordingly must deny summary

judgment in part in regards to the Association as to the Kelly award. Further, the Court must

grant summary judgment in part in favor of the Association in regards to the Greenberg

arbitration award and therefore confirm that award, and must deny summary judgment in part

with respect to the Southwest Regional Council and the Brotherhood of Carpenters as to the

Greenberg award. Additionally, the Court finds that the Association is entitled to recover its

attorney fees and court costs associated with the enforcement of the Greenberg award but not in

regards to its efforts to enforce the Kelly award. 7



                                                 ________/s/_______________
                                                 REGGIE B. WALTON
                                                 United States District Judge




7
       The Court will issue an Order consistent with this Memorandum Opinion.



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