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

National Labor Relations Board - Board Decisions

Dec 29, 2011

357 N.L.R.B. 1921 (N.L.R.B. 2011)

PLASTERERS LOCAL 200 (STANDARD DRYWALL, INC.)
357 NLRB No. 160
1921
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. and Southwest Regional Council of
Carpenters, United Brotherhood of Carpenters
and Joiners of America

Operative Plasterers’ & Cement Masons’ Interna-
tional Association Local 200, AFL–CIO and
Standard Drywall, Inc. and Southwest Regional
Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America. Cases 21–
CD–000659, 21–CD–000660, and 21–CD–000661
December 30, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On February 11, 2008, Administrative Law Judge John
J. McCarrick issued the attached decision. The Re-
spondents, Operative Plasterers’ & Cement Masons’ In-
ternational Association (the International), and Operative
Plasterers’ & Cement Masons’ International Association,
Local 200 (Local 200), each filed exceptions and sup-
porting briefs, the General Counsel and Charging Party
Standard Drywall, Inc. (SDI) filed answering briefs, and
the Respondents filed reply briefs. SDI filed cross-
exceptions,1 to which the Respondents jointly filed an
answering brief. Party-in-Interest, Southwest Regional
Council of Carpenters, United Brotherhood of Carpenters
and Joiners of America (Carpenters), filed cross-
exceptions and a supporting brief, and the International
filed an answering brief, in which Local 200 joined. The
Plan for the Settlement of Jurisdictional Disputes in the
Construction Industry (the Plan) filed an amicus brief to
which the General Counsel and SDI filed reply briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs,2 and has decided to affirm the judge’s rulings,
findings, and conclusions, and to adopt the recommended
Order, as modified and set forth in full below.3

1 Pursuant to Reliant Energy, 339 NLRB 66 (2003), SDI filed post-
brief letters calling the Board’s attention to recent case authority.
2 The Respondents have requested oral argument. The request is de-
nied as the record, exceptions and briefs adequately present the issues
and the positions of the parties.
3 In accordance with our decision in Kentucky River Medical Center,
354 NLRB 92 (2010), we modify the judge’s recommended remedy by
requiring that monetary awards shall be paid with interest compounded
on a daily basis.
We agree with the judge’s recommended award of reasonable legal
fees and costs incurred by SDI in defending the lawsuits, arbitrations
The complaint alleges that the Respondents violated
Section 8(b)(4)(ii)(D) of the Act by filing and pursuing
legal actions with an object of forcing SDI to assign cer-
tain plastering work to Local 200-represented employees,
contrary to two earlier 10(k) proceedings where the
Board awarded the work to Carpenters-represented em-
ployees.4 As found by the judge, and further explained
below, we agree that the Respondents violated the Act as
alleged.
Background—the Prior 10(k) Awards
SDI is a contractor in southern California that, among
other things, installs drywall on public works projects.
In 2002, SDI and Carpenters entered into an agreement
covering plastering work in 12 southern California coun-
ties. In October 2004, Local 200 Business Manager
Robert Pullen filed suit in California State court (the Pul-
len suit) alleging that SDI violated California State law
by failing to employ plastering apprentices on public
works projects and to pay prevailing wages at southern
California public worksites.5 In May 2005, Local 200
offered to withdraw the suit if SDI executed an agree-
ment assigning to Local 200-represented employees
SDI’s plastering work at a public works project in Fuller-
ton, California. Carpenters, whose members were per-
forming the Fullerton work, threatened to strike SDI if
the work was reassigned. SDI filed unfair labor practice
charges alleging that Carpenters’ threat violated Section
8(b)(4)(ii)(D).
In SDI-I, the Board issued a 10(k) determination con-
cerning this work. The Board found reasonable cause to
believe that Local 200 and Carpenters made competing
claims for the work, that Carpenters used proscribed
means to enforce its claim to the work in violation of
Section 8(b)(4)(ii)(D), and that there was no agreed-upon
method for voluntary adjustment of the dispute. Apply-
ing established criteria, the Board determined that em-
ployees represented by Carpenters were entitled to per-
form the work.6

and request for a Plan complaint. As explained below, we will also
award legal fees to Carpenters.
We shall also modify the judge’s recommended Order to conform to
the Board’s standard language and to provide for the posting of the
notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). For the
reasons stated in his dissenting opinion in J. Picini Flooring, Member
Hayes would not require electronic distribution of the notice.
4 Southwest Regional Council of Carpenters (Standard Drywall,
Inc.), 346 NLRB 478 (2006) (SDI-I), and Carpenters (Standard Dry-
wall), 348 NLRB 1250 (2006) (SDI-II).
5 Deleon v. Standard Drywall, Inc., Case RIC428011. 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.
6 The Board found that all of the relevant factors presented favored
awarding the work to Carpenters-represented employees: collective-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1922
One week after SDI-I issued, SDI filed new unfair la-
bor practice charges alleging that Carpenters had used
proscribed means to enforce its claim to SDI’s plastering
work in the 12 southern California counties covered by
the SDI-Carpenters agreement. In SDI-II, the Board
found competing claims for the disputed plastering work,
including Carpenters’ bona fide threat to strike SDI if
work was assigned to Local 200 and Local 200’s Pullen
lawsuit seeking compensatory damages and injunctive
relief that would require SDI to use Local 200-
represented employees. As evidence of Local 200’s
claim to the disputed work, the Board cited its secretary-
treasurer’s statement that he would have the Pullen suit
dismissed if SDI signed a contract with Local 200. 348
NLRB at 1253. The Board again awarded the contested
work to employees represented by Carpenters, relying on
established criteria and expressly noting that there was
“no basis for finding collusion” between Carpenters and
SDI. SDI-II, 348 NLRB at 1252, 1254. The Board fur-
ther found that Local 200’s claim that the parties were
bound to a voluntary dispute resolution mechanism at 3
of the 97 locations (the Plan for the Settlement of Juris-
dictional Disputes in the Construction Industry) was in-
sufficient to establish that such a mechanism bound the
parties at all of the disputed work locations.
Because of the likelihood of future jurisdictional dis-
putes, the Board issued a broad award, concluding that
“the determination 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 southern California counties, where the jurisdiction of
the two unions overlap.” SDI-II, 348 NLRB at 1256.
The Instant Case
A. The Arbitration Awards
Despite the Board’s 10(k) awards, the Respondents
persisted in their pursuit of the disputed work. Following
SDI-I’s issuance on January 31, 2006, the parent Interna-
tional of Local 200 pursued a grievance to arbitration in
May 2006, under the AFL–CIO’s Plan for the Settlement
of Jurisdictional Disputes in the Construction Industry
(the Plan). The arbitrator in that proceeding awarded
SDI’s plastering work at three southern California loca-
tions to employees represented by Local 200 (the Kelly
award). On July 7, 2006, the International alleged that
SDI’s unfair labor practice charge in SDI-II interfered
with the Kelly award, and Arbitrator Greenberg ordered

bargaining agreements, employer preference and past practice, area and
industry practice, relative skill, and economy and efficiency of opera-
tions. 346 NLRB at 481–483.
SDI to withdraw any unfair labor practice charges (the
Greenberg award).
Following the issuance of SDI-II on December 13,
2006, the Respondents continued to seek the disputed
work. On January 9, 2007, the International asked the
Plan administrator to file a complaint under the Plan
against SDI, seeking plastering work at all Los Angeles
Unified School district public works projects in the 12
southern California counties.7
B. The Lawsuits
In addition to the pending Pullen lawsuit, filed in 2004
and amended in 2005, Local 200 filed a second lawsuit
in California state court (the Tortious Interference law-
suit) on May 14, 2007.8 That suit alleges, among other
things, that SDI and Carpenters tortiously interfered with
Local 200’s prospective economic advantage by partici-
pating in a “kickback” scheme resulting in SDI assigning
its plastering work in the 12 southern California counties
to employees represented by Carpenters rather than by
Local 200. This lawsuit seeks punitive damages of $70
million, compensatory damages of $7 million, and in-
junctive relief.9
C. The Judge’s Decision
The instant complaint alleges, and the judge found,
that following the Board’s 10(k) award in SDI-II, the
Respondents violated Section 8(b)(4)(ii)(D) by continu-
ing to pursue their claims in the lawsuits and arbitration
proceedings.
The judge concluded that Local 200’s pursuit of the
Pullen and Tortious Interference lawsuits had the unlaw-
ful objective of forcing SDI to assign to Local 200-
represented employees the work the Board had awarded
to Carpenters-represented employees in SDI-II. The
judge rejected the Respondents’ defense that the lawsuits
were reasonably based and therefore could not be held
unlawful.
Similarly, the judge found that the International’s pur-
suit, as Local 200’s agent, of the Kelly and Greenberg
awards, and its request for a Plan complaint seeking the
disputed work, had the same coercive effect. The judge

7 Although the International sought to enforce the Kelly and Green-
berg awards following SDI-II, it later withdrew its request for enforce-
ment after SDI assigned some of the covered work to Local 200-
represented employees.
8 Plasterers Local 200 v. Standard Drywall, Inc., Case BC371053.
9 In Small v. Plasterers Local 200, 611 F.3d 483 (9th Cir. 2010), the
court affirmed the Federal district court’s preliminary injunction against
both the Pullen and the Tortious Interference lawsuits. The court found
that “because any favorable resolution of the state lawsuits would di-
rectly conflict with the Board’s section 10(k) determinations . . . Local
200’s suits have an illegal objective” and “are not protected by the
Petition Clause of the First Amendment.” Id. at 492.
PLASTERERS LOCAL 200 (STANDARD DRYWALL, INC.) 1923
found that the requests for enforcement of those awards
were threats within the meaning of 8(b)(4)(ii)(D).
The judge concluded that all these actions were unlaw-
ful because they sought to undermine the Board’s earlier
10(k) award and to force SDI to assign the work to Local
200-represented employees, even though SDI assigned
the work consistent with the Board’s 10(k) award.
Analysis
Section 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 employ-
ees represented by a particular labor organization rather
than to employees represented by another labor organiza-
tion. It is well settled that a union’s pursuit of a lawsuit
or arbitration to obtain work awarded by the Board under
Section 10(k) to employees represented by another un-
ion, or monetary damages in lieu of the work, has an
illegal objective and violates Section 8(b)(4)(ii)(D). See
Sheet Metal Workers Local 27 (E. P. Donnelly), 357
NLRB No. 131 (2011), and cases cited there. And while
the Supreme Court has held that a well-founded lawsuit
may not be enjoined as an unfair labor practice even if
filed with a retaliatory motive,10 the Court has recognized
that a suit that has an objective that is illegal may be en-
joined without violating the First Amendment. Bill
Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 737
fn. 5 (1983). Contrary to the Respondents, the judge
correctly held that the Court’s decision in BE&K did not
eliminate the illegal objective exception in Bill Johnson’s
footnote 5.
“Thus, where ‘the Board has previously ruled on a
given matter, and where the lawsuit is aimed at achieving
a result that is incompatible with the Board’s ruling, the
lawsuit falls within the “illegal objective” exception to
Bill Johnson’s.’” E. P. Donnelly, supra, quoting Team-
sters Local 776 (Rite Aid), 305 NLRB 832, 835 (1991),
enfd. 973 F.2d 230 (3d Cir. 1992), cert. denied 507 U.S.
959 (1993).11 See also Small v. Plasterers’ Local 200,
supra.
We agree with the judge that, applying these princi-
ples, the Respondents’ filing and pursuit of the lawsuits,
arbitrations, and Plan complaint after the Board issued its

10 In BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002), the Su-
preme Court held that the Board may not find that a completed, unsuc-
cessful lawsuit constituted an unfair labor practice where the suit was
objectively reasonable and filed with the purpose of obtaining the relief
requested.
11 The Board has held that the Supreme Court’s decision in BE&K
Construction did not affect the fn. 5 exemption in Bill Johnson’s for
lawsuits with an illegal objective. E. P. Donnelly, supra, slip op. at 2 fn.
4; Allied Trades Council (Duane Reade, Inc.), 342 NLRB 1010, 1013
fn. 4 (2004).
10(k) determination in SDI-II were aimed at achieving a
result contrary to the Board’s ruling, i.e., to have the
work awarded to employees represented by Local 200.12
The Pullen lawsuit, if successful, would undercut the
Board’s 10(k) determination and therefore has an illegal
objective. The amended Pullen complaint, filed after the
10(k) decisions, seeks recovery of wages that would have
been paid to Local 200 members had SDI hired them.
The Pullen lawsuit has an illegal objective because it
seeks damages for the loss of work the Board awarded to
Carpenters-represented employees in its 10(k) decision.
E. P. Donnelly, supra, slip op. at 3 (Board rejected un-
ion’s argument that its lawsuit was not unlawful because
it sought damages only for breach of contract, not pay-in-
lieu of the assignment of work; Board concluded “this is
a distinction without a difference”).
Similarly, in the Tortious Interference lawsuit, Local
200 seeks damages for work that its members allegedly
lost as a result of a kickback scheme, and an injunction
against further kickbacks. However, as noted above, the
Board previously found, in SDI-II, supra at 1252, 1254,
that there was no evidence of collusion between SDI and
Carpenters, and SDI-II encompassed all the work at issue
in the Respondents’ suit—SDI’s plastering work on all
current and future public works projects in 12 southern
California counties. It is therefore apparent that the Tor-
tious Interference lawsuit, like the Pullen lawsuit, con-
flicts directly with the 10(k) award and therefore harbors
an illegal objective.
As they argued with respect to the Pullen lawsuit, the
Respondents claim that the Tortious Interference lawsuit
does not necessarily conflict with the 10(k) awards.13 In
this regard, the Respondents argue that the lawsuit is

12 The Respondents renew their arguments that they should be per-
mitted to litigate in this proceeding certain threshold issues decided in
SDI-II, including whether there was an agreed-upon method for resolv-
ing the jurisdictional disputes and whether SDI and Carpenters engaged
in collusion regarding the assignment of the disputed work. It is well
settled that threshold issues are not subject to relitigation after a 10(k)
award. Longshoremen Local 6 (Golden Grain Macaroni Co.), 289
NLRB 1, 2 fn. 4 (1988). Additionally, on December 21, 2007, the
Board denied on the merits the Respondents’ Special Permission to
Appeal the judge’s ruling precluding the introduction of evidence con-
cerning threshold matters in this proceeding. The Board specifically
concluded that the collusion question was a threshold issue in the 10(k)
proceeding that could not be relitigated in this unfair labor practice
proceeding. See also SDI-II, supra at 1254.
13 The Respondents dispute the judge’s statement that Local 200
conceded in its pleadings, apparently referring to those in the Tortious
Interference lawsuit, that an object of the lawsuit was the reassignment
of the disputed work to employees it represents. As discussed below, it
is apparent that the effect of that lawsuit which sought, among other
things, compensatory damages in lieu of the work assignment, was to
cause such a reassignment and thus the reassignment was an object of
the lawsuit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1924
analogous to a suit to enforce a valid no-subcontracting
clause and, like such a suit, would require SDI only to
desist from engaging in the unlawful kickback scheme
and to compensate Local 200 for past employment op-
portunities lost because of the collusion.
There is no merit to that argument. SDI is not signato-
ry to a collective-bargaining agreement with Local 200
and, accordingly, cannot be found to have violated any
provisions of a Local 200 contract.14 Rather, by means
of its lawsuit, Local 200 seeks injunctive relief, compen-
satory damages in lieu of the work assignment, and puni-
tive damages. Like the Pullen lawsuit, the Tortious In-
terference lawsuit has the intent of causing SDI to reas-
sign the plastering work to employees represented by
Local 200, an unlawful objective that violates Section
8(b)(4)(ii)(D).
The arbitrations and the Plan complaint also have ille-
gal objectives. Both the Kelly and Greenberg awards run
counter to the Board’s awards of work in the 10(k) pro-
ceedings, as the former awarded work to Local 200 and
the latter enjoined SDI’s maintenance of unfair labor
practice charges against the Respondents. The Plan
complaint also sought the same work previously awarded
to Carpenters-represented employees. Accordingly,
those actions were for an illegal objective within the
meaning of Bill Johnson’s footnote 5. Therefore we find,
in agreement with the judge, that Local 200’s conduct
with regard to the lawsuits, and the International’s pur-
suit of the Plan complaint and the grievances to arbitra-
tion, after December 13, 2006, violated Section
8(b)(4)(ii)(D) of the Act.15

14 Accordingly, the cases the Respondents cite are clearly distin-
guishable. In Laborers International (Capitol Drilling), 318 NLRB
809, 810 (1995), the Board held that a union’s enforcement by arbitra-
tion of a collective-bargaining agreement’s subcontracting clause, when
the union did not claim the work from the subcontractor, did not
amount to a dispute within the meaning of Sec. 10(k) and did not vio-
late the Act. Similarly distinguishable are Iron Workers Local 3 (Span-
crete Northeast), 298 NLRB 800 (1990), and Associated General
Contractors v. Operating Engineers, 529 F.2d 1395, 1397–1398 (9th
Cir. 1976) (court concluded that Board’s 10(k) award did not preempt
damages case by Iron Workers against Spancrete for violating the no-
subcontracting provision).
15 We agree with the judge that the International acted as agent for
Local 200 in filing and pursuing these grievances and by filing a com-
plaint under the Plan.
As a remedy for the violations committed by the Respondents, the
judge ordered that they pay certain of SDI’s legal costs associated with
the Kelly and Greenberg awards as well as the Pullen and Tortious
Interference lawsuits. We agree with the judge. Carpenters excepted to
the judge’s failure to award it legal costs. We find merit in the excep-
tion. It is undisputed that the Tortious Interference lawsuit also named
the Carpenters as a defendant. To the extent that Carpenters was re-
quired to expend legal fees to defend that unlawful lawsuit, an appro-
priate remedy would also include reimbursement for those fees. See
generally Rite Aid Corp., 305 NLRB at 832–835 fn. 10.
ORDER
A. The National Labor Relations Board orders that the
Respondent, Operative Plasterers’ & Cement Masons’
International Association, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from threatening to and actually
seeking to enforce the Kelly and Greenberg arbitration
awards, and threatening to and actually seeking a Plan
complaint to obtain plastering work performed by SDI
employees represented by the Carpenters Union in the 12
southern California counties on public works projects
with an object of requiring SDI to assign the disputed
work to employees represented by Respondent Local 200
rather than to employees represented by Carpenters.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw the petition to enforce the Kelly and
Greenberg awards and withdraw the request for a Plan
complaint seeking plastering work at public works pro-
jects in the 12 southern California counties performed by
SDI employees represented by the Carpenters.
(b) Reimburse SDI for reasonable legal expenses and
fees associated with the defense of the Kelly and Green-
berg awards and the Plan after December 13, 2006, with
interest as computed in the manner prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010).
(c) Within 14 days after service by the Region, post at
its office and meeting halls copies of the attached Notice,
in English and Spanish, marked “Appendix A.”16 Copies
of the Notice, on forms provided by the Regional Direc-
tor for Region 21, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees/members are custom-
arily 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 Respondent custom-
arily communicates with its members by such means.
Reasonable steps shall be taken by the Respondents to
ensure that the notices aren’t 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

16 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
PLASTERERS LOCAL 200 (STANDARD DRYWALL, INC.) 1925
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.
(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.
B. Respondent Operative Plasterers’ & Cement Ma-
sons’ International Association, Local 200, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Threatening to and actually seeking to enforce the
Kelly and Greenberg arbitration awards and threatening
to and actually seeking a Plan complaint to obtain plas-
tering work performed by SDI employees represented by
the Carpenters Union in the 12 southern California coun-
ties with an object of requiring SDI to assign the disputed
work to employees represented by Respondent Local 200
rather than to employees represented by Carpenters.
(b) Maintaining after December 13, 2006, the lawsuits
entitled Deleon v. Standard Drywall, Inc., Case
RIC428011 (the Pullen lawsuit) and Plasterers Local
200 v. Standard Drywall, Inc., Case BC371053 (the Tor-
tuous Interference lawsuit) with an object of forcing or
requiring SDI to assign, contrary to the Board’s Decision
and Determination of Dispute in 348 NLRB 1250 (2006),
the plastering work on public works projects in 12 south-
ern California counties to employees represented by Lo-
cal 200 rather than to employees represented by Carpen-
ters.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw the petition to enforce the Kelly and
Greenberg awards and withdraw the request for a Plan
complaint seeking the above described plastering work at
public works projects in the 12 southern California coun-
ties performed by SDI employees represented by the
Carpenters.
(b) Withdraw the Pullen and Tortious Interference
lawsuits.
(c) Reimburse SDI and Carpenters for reasonable legal
expenses and fees associated with the defense of the Tor-
tious Interference lawsuit after December 13, 2006, and
SDI for reasonable legal expenses and fees associated
with the defense of the Pullen lawsuit, the Kelly and
Greenberg awards, and the Plan complaint after Decem-
ber 13, 2006. Interest is to be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
(d) Within 14 days after service by the Region, post at
its union office and meeting halls copies of the attached
notice, in English and Spanish, marked “Appendix B.”17
Copies of the notice, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees and members are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its members by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notic-
es are not altered, defaced, or covered by any other mate-
rial.
(f) 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.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 21 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX A
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 threaten to, or actually seek enforcement
of the Kelly and Greenberg arbitration awards or a Plan
complaint seeking plastering work on public works pro-
jects in 12 southern California counties with an object of
forcing Standard Drywall Inc. (SDI) to assign certain
work to employees represented by Local 200 rather than

17 See fn. 16, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1926
to employees represented by Carpenters, contrary to a
ruling by the National Labor Relations Board at 348
NLRB 1250 (2006).
WE WILL withdraw our request for enforcement of the
Kelly and Greenberg awards and our request for a Plan
complaint.
WE WILL reimburse SDI for reasonable legal expenses
and fees with interest incurred in defending against the
Kelly and Greenberg awards and the Plan complaint after
December 13, 2006.
OPERATIVE PLASTERERS’ & CEMENT MASONS’
INTERNATIONAL ASSOCIATION, AFL–CIO

APPENDIX B
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 threaten to, or actually seek enforcement
of the Kelly and Greenberg arbitration awards or a Plan
complaint seeking plastering work on public works pro-
jects in 12 southern California counties with an object of
forcing Standard Drywall Inc. (SDI) to assign that work
to employees represented by us rather than to employees
represented by Carpenters contrary to a ruling by the
National Labor Relations Board at 348 NLRB 1250
(2006).
WE WILL NOT maintain the Pullen and Tortious Inter-
ference lawsuits with an object of forcing SDI to assign
the plastering work on public works projects in 12 south-
ern California counties to employees represented by us
rather than to employees represented by Carpenters.
WE WILL withdraw our request for enforcement of the
Kelly and Greenberg awards and our request for a Plan
complaint.
WE WILL withdraw the Pullen and tortious interference
lawsuits.
WE WILL reimburse SDI for reasonable legal fees and
costs with interest incurred in defending against the Kel-
ley and Greenberg awards, the Plan complaint and the
lawsuits after December 13, 2006.
WE WILL reimburse Carpenters for reasonable legal
fees and costs with interest incurred in defending against
the tortious interference lawsuit after December 13,
2006.
OPERATIVE PLASTERERS’ & CEMENT MASONS’
INTERNATIONAL ASSOCIATION, LOCAL 200,
AFL–CIO

Ami Silverman, Esq., for the General Counsel.
Daniel Shanley, Esq. (DeCarlo, Connor & Shanley, PC), of
Los Angeles, California, for the Respondents Southwest
Regional Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America.
John J. Davis Jr., Esq. (Davis, Cowell & Bowe, LLP), of San
Francisco, California, for the Respondent, Operative Plas-
terers’ & Cement Masons’ International Association, Local
200.
Brian A. Powers, Esq. (O’Donoghue & O’Donoghue), of
Washington, D.C., for the Respondent Operative Plasterers’
& Cement Masons’ International Association, AFL–CIO.
Mark T. Bennett, Esq. (Marks, Golia & Finch, LLP), of San
Diego, California, for the Charging Party Standard Drywall,
Inc.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Los Angeles, California, on September 11 and 12,
2007, based upon the second order consolidating cases, second
amended consolidated complaint, and amended notice of hear-
ing (the complaint) issued on August 16, 2007, by the Acting
Regional Director for Region 21. The complaint alleges that
Respondents Operative Plasterers’ & Cement Masons’ Interna-
tional Association (International) and Operative Plasterers’ &
Cement Masons’ International Association, Local 200 (Local
200) have violated Section 8(b)(4)(ii)(D) of the Act by threat-
ening, restraining, and coercing Standard Drywall, Inc. (SDI)
with an object of forcing SDI to assign work to employees who
are members of or represented by, Local 200 rather than to
employees who are members of or represented by Southwest
Regional Council of Carpenters, United Brotherhood of Car-
penters and Joiners of America (Carpenters).
Specifically, complaint paragraphs 10(a) through (d), 12, and
13 allege that the Pullen lawsuit and its amendments has had
the effect of threatening restraining and coercing SDI with an
object of forcing or requiring SDI to assign plastering work to
Local 200 represented employees rather than to Carpenters
represented employees.
Complaint paragraphs 10(e), 12, and 13 allege that Local
200’s May 14, 2007 lawsuit in the Superior Court of the State
of California Los Angeles County against SDI and the Carpen-
ters seeking damages and injunctive relief based on SDI having
assigned plastering work to Carpenters represented employees
rather then Local 200 represented employees has had the effect
PLASTERERS LOCAL 200 (STANDARD DRYWALL, INC.) 1927
of threatening restraining and coercing SDI with an object of
forcing or requiring SDI to assign plastering work to Local 200
represented employees rather than to Carpenters represented
employees.
Complaint paragraphs 11(a) through (g) allege that the Inter-
national, as agent for Local 200, pursued the Kelly and Green-
berg grievances to arbitration, sought enforcement of the Kelly
and Greenberg awards and pursued a grievance before the ad-
ministrator for the Plan for the settlement of jurisdictional dis-
putes in the construction industry seeking plastering work per-
formed by SDI employees. Complaint paragraphs 14 and 15
allege the conduct described in paragraphs 11(a) through (g)
threatened, coerced, and restrained SDI with an object of forc-
ing or requiring SDI to assign plastering work to Local 200
represented employees rather than to Carpenters represented
employees.
Respondents filed timely answers to the complaint denying
any wrongdoing and affirmatively contend, inter alia, that pur-
suing the Pullen and Tortious Interference litigation, the Kelly
and Greenberg arbitration awards, and the Plan complaint are
not coercive conduct within the meaning of Section
8(b)(4)(ii)(D) of the Act, the Board’s underlying 10(k) determi-
nations are in error and that there was a method to resolve
jurisdictional disputes binding on all parties requiring the dis-
missal of the instant charges.
Findings of Fact
Upon the entire record herein, including briefs from the
General Counsel, the Charging Party, and Respondents, I make
the following findings of fact.
I. JURISDICTION
Charging Party SDI, a California corporation, with an office
and principle place of business located in Riverside County,
California, and offices located in Arizona, Utah, and Wyoming
where it is engaged as a contractor in the drywall construction
industry, has annually 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 located outside the State of California.
Based upon the above, I find that SDI is and has been at all
times material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS
Based upon Respondents’ admissions, I find that Respond-
ents and each of them is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts in this case are not in significant dispute. In their
answers, Respondents have admitted most of the operative facts
in the complaint except Respondents deny that Local 200 de-
manded the disputed work from SDI, that the International
continues to pursue grievances seeking the disputed work or
that the International acted as an agent of Local 200.
SDI began performing plastering work on the Fine Arts Pro-
ject at California State University at Fullerton in December
2004, using 10 of its employees represented by the Carpenters.
Prior to this time, on October 24, 2004, Local 200 Business
Manager Robert Pullen (Pullen) and Business Agent David
Fritchel, as individuals, filed a lawsuit in California Superior
Court for Santa Barbara County (the Pullen suit) alleging SDI
had violated California Labor Codes1 requiring contractors to
use State of California approved worker training programs and
failed to pay prevailing wage law at public worksites in south-
ern California. On August 9, 2005, an amended complaint was
filed in this lawsuit adding Local 200 as a plaintiff and seeking
back pay for all Local 200 apprentices not employed by SDI as
well as restitution and injunctive relief against SDI for failing
to make apprenticeship contributions for apprentices it did not
hire on all of its past, present, and future public works projects
in 12 southern California counties.2 The injunctive relief re-
quested that SDI comply with applicable statutes and regula-
tions including California Labor Code section 1777.5 requiring
use of Plasterers’ apprentices.
SDI filed unfair labor practice charges on February 2, 2005,
alleging the Carpenters violated Section 8(b)(4)(ii(D) of the Act
by forcing it to assign plastering work to employees represented
by Carpenters rather than Local 200.
A 10(k) hearing was held and on January 31, 2006, the
Board issued its order in Southwest Regional Council of Car-
penters (Standard Drywall, Inc.), 346 NLRB 478 (2006) (SDI-
I) awarding plastering work performed by SDI employees at the
California State University Fullerton, Fine Arts Project to SDI
employees represented by the Carpenters Union rather than
Local 200.
In SDI-I the Board found, and the record herein confirms,
that SDI’s California plastering employees were covered by a
memorandum agreement with the Carpenters effective from
January 1, 2002, to June 30, 2006, and that SDI and the Car-
penters had a bargaining relationship of at least 10 years while
SDI never had a bargaining relationship with the International
or Local 200. The Board concluded that both the Carpenters
and Local 200 laid claim on SDI for the disputed plastering
work and that Local 200’s disclaimer of the work was ineffec-
tive. In support of its finding that Local 200 made a claim on
the SDI plastering work, the Board concluded that on May
2005 Local 200 told SDI that if SDI would sign an agreement
assigning Local 200 the disputed work, Local 200 would try to
dismiss the Pullen suit. The Board also found that the Pullen
lawsuit had a jurisdictional object.3 The Board found, based on
the parties’ stipulation and the absence of evidence to the con-
trary, that there was no voluntary method for adjustment of the
work dispute.

1 California Labor Code 1777.5 requires on public works projects
that only apprentices in training under programs approved by the State
of California are eligible for apprentice wages. Until November 2006
the Plasterers’ apprenticeship program was the only program approved
by the State of California. Local 200 Exh. 20 and Tr. at p. 176.
2 GC Exhs. 2–3.
3 SDI-I, id., fn. 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1928
While both Respondents deny the International acted as an
agent of Local 200, they admit that on May 29, 2006, the Inter-
national pursued a grievance to arbitration under the AFL–
CIO’s plan for the Settlement of Jurisdictional Disputes in the
Construction Industry (Plan) before Arbitrator Tony A. Kelly
who awarded plastering work being performed by SDI’s em-
ployees in southern California at the Central Los Angeles High
School #2, the East Valley New Middle School #1, and the Cal
Trans Replacement Facilities Shop #7 to employees represented
by Local 200. (The Kelly award).
On February 7, 2006, SDI filed additional unfair labor prac-
tice charges alleging the Carpenters violated Section 8(b)(4)(D)
of the Act by threatening, coercing, and restraining SDI with an
object of forcing it to assign plastering work at three Los Ange-
les Unified School District projects to employees represented
by Local 200 rather than to employees represented by the Car-
penters.
On July 7, 2006, the International pursued a grievance under
the Plan, alleging impediments to the Kelly award, and Arbitra-
tor Paul Greenberg ordered SDI to withdraw any unfair labor
practice charges filed with the Board, including but not limited
to the charges at issue herein. (The Greenberg award.)
After a 10(k) hearing, on December 13, 2006, the Board is-
sued its decision in Southwest Regional Council of Carpenters
(Standard Drywall, Inc.), 348 NLRB 1250 (2006) (SDI-II)
awarding plastering work performed by SDI employees repre-
sented by the Carpenters in all similar jobs performed by SDI
on any public works projects in the 12 southern California
Counties. In SDI-II the Board found, and the instant record
establishes, that while Local 200 told SDI that it was not pursu-
ing its Pullen lawsuit with respect to the finished Fine Arts
project it continued to pursue the Pullen lawsuit against SDI on
continuing public works projects. Also in February 2006 Local
200 Secretary-Treasurer Patrick Finley told SDI that it would
drop the Pullen suit if SDI signed a contract covering SDI’s
California projects. On February 23, 2006, SDI informed the
Carpenters that it had no choice but to assign plastering work to
employees represented by Local 200, as Local 200 continued to
pursue the Pullen lawsuit. In response, on February 24, 2006,
the Carpenters told SDI that if SDI reassigned any work cur-
rently performed by members of the Carpenters Union, they
would immediately strike SDI.
In SDI-II the Board concluded that there were competing
claims for the disputed plastering work, including the Carpen-
ter’s bona fide threat to strike SDI if work was assigned to Lo-
cal 200. The Board reaffirmed Local 200’s Pullen suit is a
claim for the disputed work since it seeks compensatory dam-
ages and injunctive relief requiring that SDI use apprentices
trained by a State of California approved apprenticeship pro-
gram which only Local 200 can fulfill. In addition the Board
found, as evidence of Local 200’s claim to the disputed work,
Local 200 Secretary-Treasurer Finley’s statement that he would
get the Pullen suit dismissed if SDI signed a contract with Lo-
cal 200 covering SDI’s California projects. The Board found
that the Carpenter’s threat to strike was jurisdictional not repre-
sentational and that threat is proscribed by the Act. Further the
Board concluded that the Carpenter’s threat was genuine and
not the product of collusion between the Carpenters and SDI.
Next, the Board held that there was no voluntary means to
adjust the work dispute. The Board found that article VII and
VIII of the Project Stabilization Agreement (PSA), requiring
use of the Plan, was not a voluntary method to adjust work
disputes as it covered only 3 of 97 potential jobs in dispute and
because there are conflicting forums for resolving the work
disputes in SDI’s collective-bargaining agreement with the
Carpenters.
On January 9, 2007, the International requested the Plan ad-
ministrator file a complaint against SDI seeking plastering
work at all Los Angeles Unified School District public works
projects in the 12 southern California Counties.4 On January
13, 2007, the International withdrew this complaint conditional-
ly and stated that if it found work was included under the Plan
it would reinstate the complaint.5
On January 9, 2007, the International6 sought to enforce both
the Kelly and Greenberg awards.7 On January 13, 2007, the
International advised the Plan administrator it withdrew its
request for enforcement of the Kelly and Greenberg awards
because SDI was in compliance with those awards.8
It is admitted that on May 14, 2007, Local 200 filed a lawsuit
against SDI and the Carpenters in the Superior Court of the
State of California County of Los Angeles (Tortious Interfer-
ence Suit) seeking damages and injunctive relief requiring SDI
and the Carpenters to comply with all applicable statutes and
regulations including California Labor Code section 1777.5 that
would have required SDI to hire Local 200 apprentices. The
suit, which seeks $7 million damages for lost wages and union
dues, alleges that as a result of an unlawful kickback scheme,
the Carpenters have caused SDI to withdraw plastering work
from Plasterers’ Union signatory contractors and assign plaster-
ing work to SDI’s employees who are represented by the Car-
penters.9
Both the International and Local 200 admit in their answers
and the record establishes that on June 22, 2007, Local 200
filed an amended lawsuit substantially similar to the Pullen suit
and has continued to pursue that suit.10
B. Preliminary Rulings on Counsel for the General Counsel’s
Motion to Preclude Evidence and SDI Motion to
Revoke Subpoenas
On September 6, 2007, counsel for the General Counsel
(CGC) filed a motion to preclude evidence at unfair labor prac-
tice hearing. Both Respondents and SDI filed responses. After
the hearing opened on September 11, 2007, I issued an order
granting in part counsel for the General Counsel’s motion to
preclude evidence at unfair labor practice hearing.11 In the
order I found that Respondents could not relitigate certain

4 GC Exh. 11.
5 GC Exh. 12.
6 The record establishes that only the International may pursue a
grievance under the Plan even though it is for the benefit of the local
union.
7 GC Exh. 10.
8 GC Exhs. 17–18.
9 GC Exh. 14.
10 GC Exh. 19.
11 ALJ Exh. 3.
PLASTERERS LOCAL 200 (STANDARD DRYWALL, INC.) 1929
threshold issues decided by the Board in the underlying 10(k)
proceedings including whether the Board’s underlying work
determinations were valid, whether the matter was properly
before the Board on jurisdictional issues, whether there was
collusion between the Carpenters and SDI regarding the Car-
penters demand for the disputed work, and whether a voluntary
method for the resolution of work disputes existed binding the
parties. However, I ruled that the record of the 10(k) proceed-
ings in SDI-I and SDI-II should be made part of the record in
this proceeding under Section 102.92 of the Board’s Rules and
Regulations.12
On September 7, 2007, SDI filed motion to revoke subpoena
duces tecum nos. B-504775 and B-504776. Local 200 filed its
opposition on September 8, 2007. At the commencement of the
hearing on September 11, 2007, I issued an order granting
counsel for Standard Drywall, Inc.’s petition to revoke subpoe-
na duces tecum nos. B-504775 and B-50477613 on the grounds
that the subpoenas sought documents not relevant to issues in
this case, that is, issues previously decided by the Board in the
underlying 10(k) proceedings including whether there was a
jurisdictional dispute, whether there was collusion between SDI
and the Carpenters and whether an agreement for the resolution
of jurisdictional disputes exits that is binding on the parties to
this proceeding.
At the conclusion of the trial, Respondents filed requests for
special permission to appeal to the Board from the orders grant-
ing CGC’s motion to preclude evidence and SDI’s motion to
revoke subpoenas. On December 21, 2007, the Board granted
Respondents’ request for special permission to appeal only to
the extent that the record of the underlying 10(k) proceedings
should be admitted into this record.14
C. Parties’ Positions
In her posthearing brief CGC raises five contentions:

1. Local 200 violated section 8(b)(4)(ii)(D) of the Act by pur-
suing the Pullen lawsuit after the Board issued its Decision
and Determination of Dispute in SDI II.
2. Local 200 violated section 8(b)(4)(ii)(D) of the Act by fil-
ing and maintaining a lawsuit seeking damages for tortious in-
terference with prospective economic advantage after the
Board issued its Decision and Determination of Dispute in
SDI II.
3. The International, as agent for Local 200, violated section
8(b)(4)(ii)(D) of the Act by pursuing the Kelly award after the
Board issued its Decision and Determination of Dispute in
SDI II.

12 Id. at 4.
13 ALJ Exh. 4.
14 On January 2, 2008, SDI filed a motion of charging party to strike
and/or disregard portions of Respondents’ joint posthearing brief. The
motion contends that, in view of the Board’s order granting only that
portion of Respondents’ special appeal directing that the record of the
10(k) proceedings in SDI-I and SDI-II be included in the record herein,
certain portions of Respondents’ joint brief be stricken or disregarded
because they present evidence or arguments that are irrelevant to these
proceedings in light of the ALJ and Board’s rulings. I will disregard
those portions of Respondents’ brief that are not relevant to the issues
before me.
4. The International, as agent for Local 200, violated section
8(b)(4)(ii)(D) of the Act by filing and pursuing the Greenberg
award after the Board issued its Decisions and Determination
of Disputes in SDI I and SDI II.
5. The International, as agent for Local 200, violated section
8(b)(4)(ii)(D) of the Act by filing a jurisdictional complaint
under the Plan after the Board issued its Decision and Deter-
mination of Dispute in SDI II.

In their joint posthearing brief Respondents argue that nei-
ther of Local 200’s lawsuits may be enjoined by the Board
under BE&K Construction Co., 351 NLRB 451 (2007), since
the ongoing suits are not objectively or subjectively baseless
and because the suits do not conflict with the Board’s underly-
ing 10(k) decisions herein, that enforcement of the Kelly and
Greenberg awards is not coercive conduct violative of Section
8(b)(4)(ii)(D) of the Act, that pursuit of the Plan complaint is
not coercive conduct within the meaning of Section
8(b)(4)(ii)(D) of the Act, that there is a voluntary method for
the resolution of the work dispute herein and that there is no
jurisdictional dispute within the meaning of the Act.
D. The Analysis
Section 8(b)(4)(ii)(D) of the Act provides:

It shall be an unfair labor practice for a labor organiza-
tion or its agents,

(ii) to threaten, coerce or restrain any person engaged in
commerce or in an industry affecting commerce where in ei-
ther case an object thereof is:

(D) forcing or requiring any employer to assign particular
work to employees in a particular labor organization or in a
particular trade, craft, or class rather than to employees in an-
other labor organization, trade, craft, or class unless such em-
ployer is failing to conform to an order or certification of the
Board determining the bargaining representative for employ-
ees performing such work.
1. The Pullen and Tortious interference lawsuits
In this case, Respondents contend that the Pullen and Tor-
tious interference suits are reasonably based in law and fact and
do not conflict with the Board’s 10(k) determinations. Re-
spondents cite the various causes of action in the Pullen suit
and argue that they do not require SDI to assign work but rather
require compliance with state prevailing wage law, including
record keeping, apprentice ratios, and making payments to the
state approved apprenticeship programs. Respondents contend
that the Tortious Interference suit likewise does not seek as-
signment of work but rather compels SDI to cease engaging in
tortious conduct that interferes with Local 200’s economic
relations with signatory contractors.
To the contrary CGC and SDI contend that the Pullen suit
has no legal merit and the only object of the suit is the unlawful
coercion of SDI into making an assignment of work after the
Board has issued its 10(k) determination.
In their recent decision in BE&K, supra, on remand from the
Supreme Court in BE&K Construction Co. v. NLRB, 536 U.S.
516 (2002), the Board majority of Chairman Battista and Mem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1930
bers Schaumber and Kirsanow held that, “the filing and
maintenance of a reasonably based lawsuit does not violate
the Act, regardless of whether the lawsuit is ongoing or is
completed, and regardless of the motive for initiating the
lawsuit.”15 Thus in BE&K, the Board extended the prohibi-
tion on enjoining a well founded ongoing lawsuit as an un-
fair labor practice under Bill Johnson’s Restaurants, Inc. v.
NLRB, 461 U.S. 731 (1983), to completed litigation. In Bill
Johnson’s, the Court held, with respect to ongoing litiga-
tion, that “[t]he filing and prosecution of a well-founded
lawsuit may not be enjoined as an unfair labor practice,
even if [the suit] would not have been commenced but for
the plaintiff's desire to retaliate against the defendant for
exercising rights protected by the Act.”16 However, the Court
created an exception to this rule:

It should be kept in mind that what is involved here is an em-
ployer’s lawsuit that the federal law would not bar except for
its alleged retaliatory motive. We are not dealing with a suit
that is claimed to be beyond the jurisdiction of the state courts
because of federal law preemption, or a lawsuit that has an
objective that is illegal under federal law. . . . Nor could it be
successfully argued otherwise, for we have upheld Board or-
ders enjoining unions from prosecuting court suits for en-
forcement of fines that could not be lawfully imposed under
the Act, . . . , and this Court has concluded that, at the Board’s
request, a district Court may enjoin enforcement of a state
court injunction where the Board’s power preempts the
field.17

In Manufacturers Woodworking Association of Greater New
York, Inc., 345 NLRB 538 (2005), a case involving the filing of
a demand for arbitration to compel the union to engage in an
unlawful objective of causing the union to induce a work
stoppage that would violate Section 8(b)(4)(B) of the Act,
the Board concluded that the Bill Johnson’s principles have
been applied to arbitration actions. See, e.g., Service Employees
Local 32B–32J v. NLRB, 68 F.3d 490, 495 (D.C. Cir 1995).
The Board went on to find that:

Under Bill Johnson’s Restaurants, supra, 461 U.S. 731, as a
general rule a lawsuit enjoys special protection and can be
condemned as an unfair labor practice only if it is filed with a
retaliatory motive, i.e., motivated by a desire to retaliate
against the exercise of a Section 7 right, and if it has no rea-
sonable basis in fact or law. However, a lawsuit that is aimed
at achieving an “unlawful objective” (or is preempted) “en-
joys no special protection” under Bill Johnson’s and may be
enjoined. See Bill Johnson’s, supra, 461 U.S. 747 fn 5. A
lawsuit filed with an unlawful objective can be condemned as
an unfair labor practice “[i]f it is unlawful under traditional
NLRA principles.” Teamster’s Local 776 (Rite Aid), 305
NLRB 832, 835 (1991), enfd. 973 F. 2d 230 (3d Cir. 1992),
cert. denied 507 U.S. 959 (1993).18

15 BE&K, supra.
16 Bill Johnson’s, supra at 743.
17 Id. at 737 fn. 5.
18 Manufacturers Woodworking Assn., supra at 541.

In support of their argument that the Pullen suit has no rea-
sonable merit, CGC and SDI cite the Supreme Court’s decision
in California Division of Labor Standards Enforcement v. Dil-
lingham, 519 U.S. 316 (1997), and the Ninth Circuit Court of
Appeals decision in Assoc. Builders & Contractors of South
California Inc., v. Nunn, 356 F.3d 979, 986 fn. 4 (9th Cir.
2004), which hold that an employer is under no obligation un-
der California Labor Code section 1777.5 to hire apprentices
from an approved training program. These decisions hold that
contractors have the option of hiring apprentices at a reduced
wage or hiring journeymen at the prevailing journeyman rate.
The Supreme Court in interpreting Labor Code section 1777.5
in Dillingham stated, “In most circumstances, California public
works contractors are not obliged to employ apprentices, but if
they do, the apprentice wage is only permitted for those appren-
tices in approved programs.”19
A long line of Board cases has held that after a Board 10(k)
order and work determination a union that pursues a contrary
arbitration award, lawsuits for enforcement of the arbitration
award or lawsuits for damages in lieu of the work assignment
engages in coercive conduct to achieve an unlawful object
thereby violating Section 8(b)(4)(ii)(D) of the Act.
In Longshoremen ILWU Local 32 (Weyerhaeuser Co.), 271
NLRB 759 (1984), the Board rejected the argument that Bill
Johnson’s precluded a Board adjudication of whether an ongo-
ing 301 suit could be enjoined. The Board held:

Accordingly, we find that the Respondent's Section 301
action, which seeks to enforce an arbitration award contra-
ry to the Board's 10(k) award and also seeks to achieve a
prohibited objective, lacks a reasonable basis in fact and
law. Therefore, the Court's decision in Bill Johnson’s does
not require a stay of proceedings.

In Laborers Local 261 (W. B. Skinner, Inc.), 292 NLRB
1035, 1035 (1989), after a Board 10(k) award, the losing union
sought enforcement of an arbitrator’s award granting employ-
ees it represented in lieu of damages for lost wages and benefits
as a result of the Board’s award of the disputed work to em-
ployees represented by IBEW. The Board found:

In support of his finding, the judge also cited the Board's
decision in Longshoremen ILWU Local 7 (Georgia-
Pacific Corp.), 273 NLRB 363 (1984). In Georgia-Pacific,
the Board held, inter alia, that the filing of grievances for
payments in lieu of a work assignment, before, as well as
after, a contrary 10(k) award has issued, violates Section
8(b)(4)(D).20

The Board in Skinner concluded:

[T]hat by maintaining the suit after the Board had made its
10(k) determination, the Respondents sought to undermine
the Board's 10(k) award and to coerce the Employer into
reassigning to its members the work that the Board found
had been properly assigned by the Employer to employees

19 Dillingham, supra at 320.
20 Skinner, supra at 1035.
PLASTERERS LOCAL 200 (STANDARD DRYWALL, INC.) 1931
represented by IBEW Local 202. Accordingly, the Re-
spondents’ conduct in maintaining the suit after the 10(k)
determination issued violated Section 8(b)(4)(D) of the
Act.21

The first task in applying the above principles to the Pullen
and Tortious Interference lawsuits is to determine if the suits
fall within the Bill Johnson’s exception to lawsuits aimed at
achieving an unlawful objective.
The Pullen Lawsuit, as originally filed,22 in the 5th cause of
action alleges that under California Labor Code section 1777.5
SDI was required to hire Plasterers apprentices and failed to do
so. The amended Pullen lawsuit23 alleges that the only appren-
ticeship program SDI could hire apprentices from was the Plas-
terers program. Finally the Second Amended Pullen Lawsuit24
filed after the Board’s 10(k) awards herein seeks lost wages
and benefits for Local 200 apprentices SDI failed to hire from
October 29, 2000, to the present had it complied with Labor
Code section 1777.5.
Respondents contend that the Pullen litigation does not have
an unlawful objective but rather seeks to enforce state prevail-
ing wage laws. However, contrary to Respondent’s position,
Labor Code section 1777.5 does not compel an employer to
hire from approved apprenticeship programs. See Dillingham
& Nunn, supra. Thus, there appears to be no basis in law for the
Respondents’ position in the Pullen lawsuit that SDI violated
state labor codes when it failed to hire Local 200 apprentices.
Moreover, even if the Pullen suit claims to enforce State la-
bor code prevailing wage standards, the effect of Local 200’s
suit is to compel SDI to pay damages for lost wages and bene-
fits to employees represented by Local 200 SDI failed to hire
contrary to the Board’s 10(k) determination. The fact that since
November 2006 SDI could have hired apprentices from a state
approved Carpenter’s apprentice program is irrelevant since the
Pullen suit seeks damages both before and after November
2006. It appears that the purpose of the ongoing Pullen litiga-
tion is, like the court action in Weyerhaeuser Co. and W. B.
Skinner, Inc., supra, inimical to the Board’s 10(k) award. The
continued pursuit of the Pullen litigation has an unlawful objec-
tive of compelling SDI to assign work to Local 200 represented
employees or pay wages and benefits to Local 200 represented
employees in lieu of actual work assignments. The pursuit of
such lawsuits has an unlawful objective and has been found
coercive conduct under Section 8(b)(4)(ii)(D) of the Act.
I conclude that Local 200’s ongoing pursuit of the Pullen
suit, after the Board awarded plastering work to Carpenters
represented employees in SDI-II, is aimed at achieving the
unlawful objective of coercing SDI into assigning plastering
work to Local 200 represented employees and therefore enjoys
no special protection under Bill Johnson's or BE&K and vio-
lates Section 8(b)(4)(ii)(D) of the Act as alleged.
The Tortious Interference Lawsuit filed by Local 200, after
the Board’s 10(k) award in SDI-II, on May 14, 2007, in the

21 Id.
22 GC Exh. 2.
23 GC Exh. 3.
24 GC Exh. 19, p. 2 LL. 2–8.
Superior Court of California for the county of Los Angeles in
its preamble and its substantive allegations notes that the Car-
penters Union has sought to take over the work of Local 200,
that through illegal kickbacks the Carpenters have induced SDI
to withdraw its plastering work from Local 200 signatory con-
tractors and instead assign that work to their own employees
who are represented by the Carpenters, that but for the tortuous
interference SDI would have continued to assign plastering
work to Local 200 represented employees and that as a result of
this conduct plastering employees represented by Local 200
have lost work and income and Local 200 has lost dues income.
In this suit Local 200 seeks compensatory damages of $7 mil-
lion for members’ lost income and its lost dues income. This
lawsuit is similar in nature to the in lieu of damage lawsuits in
Weyerhaeuser Co. and W. B. Skinner, Inc., supra. While Re-
spondent’s claim they are only seeking to enjoin tortuous ac-
tivity by SDI, the effect is to cause SDI to assign work to Local
200 represented employees or pay over $77 million in compen-
satory and punitive damages. This is coercive conduct that
Local 200 concedes in its pleadings has as its object the return
of plastering work to employees it represents.
Like the Pullen suit, the Tortious Interference suit has an un-
lawful object and is exempt from the Bill Johnson’s and BE&K
prohibitions on enjoining ongoing litigation. The filing and
pursuit of this lawsuit is coercive conduct violative of Section
8(b)(4)(ii)(D) of the Act as alleged.
2. The Kelly and Greenberg arbitration awards and the
plan complaint
As noted above the Board has found that the pursuit of
grievances to arbitration after a contrary 10(k) award is coer-
cive conduct that violates Section 8(b)(4)(ii)(D) of the Act.
Where there is an unlawful object of the arbitration, the Bill
Johnson’s exception will apply and lawsuits and grievances
may be enjoined. See Longshoremen Local 32 (Weyerhaeuser
Co.), 271 NLRB 759 (1984), Laborers Local 261 (W. B. Skin-
ner, Inc.), 292 NLRB 1035, 1035 (1989), Ironworkers local
433 (Swinerton & Walberg Co.), 308 NLRB 757, 761 (1992).
Respondents contend that seeking enforcement of the Kelly
and Greenberg arbitration awards and requesting the Plan ad-
ministrator file a complaint were not coercive since Local 200
has no authority to file Plan grievances and neither the Local
nor the International have authority to enforce Plan awards.
Respondents argue further that their attempts to enforce the
Kelly and Greenberg awards are not coercive since they with-
drew their requests for enforcement of the arbitration awards
and the Plan complaint and since Respondents’ mere failure to
provide assurances that it will comply with a 10(k) award is
insufficient to establish coercion within the meaning of Section
8(b)(4)(ii)(D) of the Act.
a. Agency
In both Ironworkers Local 433 (Swinerton & Walberg Co.),
308 NLRB 757, 761 (1992), and Ironworkers Local 433 (Otis
Elevator Co.), 309 NLRB 273 (1992), the Board has found that
a parent union body is a proper respondent as an agent of its
local union in a 10(k) proceeding where the parent body has
initiated proceedings to compel arbitration on behalf of its lo-
cal. Thus, both Respondents are proper parties to this proceed-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1932
ing and the International by requesting Plan enforcement of the
Kelly and Greenberg awards on behalf of Local 200 and by
seeking a Plan complaint for the plastering work at all Los An-
geles Unified School District public works projects in the 12
southern California counties has acted as Local 200’s agent.
b. Effect of withdrawing the request for enforcement of the
Kelly and Greenberg awards and the Plan complaint
There is no merit to Respondents’ argument that their with-
drawal of the Kelly and Greenberg enforcement request and of
the Plan complaint nullifies their coercive effect. The mere
failure to state that there will be compliance with the Board’s
10(k) awards is not what occurred here. Rather, Respondents
sought to enforce arbitration awards contrary to the Board’s
10(k) order when the International sought enforcement of the
Kelly and Greenberg awards on January 9, 2007. Likewise by
seeking a Plan complaint awarding them the disputed plastering
work, Respondents acted contrary to the Board’s 10(k) deci-
sion. The International’s withdrawal of the enforcement re-
quest on January 13, 2007, was based on its understanding that
SDI was complying with Kelly and Greenberg, thus leaving the
door open for a renewed threat of enforcement. Respondent’s
January 13, 2007 withdrawal of the request for a Plan com-
plaint was conditional and left open the possibility that the
request for a complaint would be renewed if it found work was
included under the Plan. Both the Plan complaint and enforce-
ment of the Kelly and Greenberg awards continued to hang like
Damocles’ sword over SDI and constitute genuine threats under
Section 8(b)(4)(ii)(D) of the Act.
Respondents’ argument that neither the Respondents’ request
for enforcement of the arbitration awards nor the Plan com-
plaint can be coercive because only the Plan administrator can
authorize those actions must also fail since a threat to take ac-
tion may be coercive even if the threat is not carried out. The
Board has held a threat to picket may be coercive under Section
8(b)(4)(ii)(B) of the Act even if the threat is not carried out.
Amalgamated Packinghouse, 218 NLRB 853 (1975). Thus,
both the requests for enforcement of the Kelly and Greenberg
awards and the Plan complaint, notwithstanding their with-
drawal, were threats to SDI within the meaning of Section
8(b)(4)(ii)(D) of the Act.
I find that by pursuing the enforcement of the Kelly and
Greenberg awards and the Plan complaint after the Board is-
sued its award in SDI-II, Respondents have violated Section
8(b)(4)(ii)(D) of the Act.
3. The agreed-upon method for resolving
jurisdictional disputes
Respondents argue finally that by pursuing a Plan award was
proper because the parties were bound to the Plan through the
PSA. This argument has been previously decided by the Board
in SDI-II when in concluded that the parties were not bound to
an agreed-upon method of dispute resolution at all potential job
sites. Moreover, once the Board ruled in the 10(k) proceeding
in SDI-II, it preempted pursuit of a contrary result in any other
forum.
As, I ruled previously,25 Respondents’ argument that there
was no jurisdictional dispute herein has been decided by the
Board in SDI-I and SDI-II. It is a foundational issue that may
not be relitigated here.
CONCLUSIONS OF LAW
1. Standard Drywall, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Operative Plasterers’ & Cement Masons’ International
Association and Operative Plasterers’ & Cement Masons’ In-
ternational Association, Local 200 are labor organizations with-
in the meaning of Section 2(5) of the Act.
3. Respondent Operative Plasterers’ & Cement Masons’ In-
ternational Association and Operative Plasterers’ & Cement
Masons’ International Association, Local 200 have engaged in
unfair labor practices proscribed by Section 8(b)(4)(ii)(D) of
the Act since December 13, 2006, by pursuing after the Board’s
10(k) award in SDI-II the Kelly and Greenberg awards and
since January 9, 2007, by requesting a Plan complaint seeking
plastering work at public works projects in the 12 southern
California counties performed by SDI employees represented
by the Carpenters with an object of forcing or requiring SDI to
assign the work, described below, to employees represented by
Local 200 rather than to employees represented by Carpenters.
The work in question consists of plastering work on public
works projects in 12 southern California counties as set forth
more specifically in the Board’s above cited Decision and De-
termination of Dispute in SDI-II.
4. Respondent Operative Plasterers’ & Cement Masons’ In-
ternational Association, Local 200 has engaged in unfair labor
practices proscribed by Section 8(b)(4)(ii)(D) of the Act since
December 13, 2006, after the Board’s 10(k) award in SDI-II by
pursuing the Pullen and Tortious Interference lawsuits with an
object of forcing or requiring SDI to assign the work, described
below, to employees represented by Local 200 rather than to
employees represented by Carpenters. The work in question
consists of plastering work on public works projects in 12
southern California counties as set forth more specifically in the
Board’s above cited Decision and Determination of Dispute in
SDI-II.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
CGC and SDI as part of the remedy herein seek restitution of
legal costs and fees in conjunction with defending the Pullen
and Tortious Interference lawsuits, defending the enforcement
of the Kelly and Greenberg awards and defending the request
for a Plan complaint.
In Air Line Pilots Association (ABX Air, Inc.), 345 NLRB
820 (2005), the Board affirmed the judge’s remedy awarding
legal fees and expenses. In Air Line Pilots Association, after a
series of mergers and acquisitions, Respondent Airline Pilots
Association filed a grievance alleging that employer DHL had
violated its collective-bargaining agreement with the Pilots

25 ALJ Exh. 3.
PLASTERERS LOCAL 200 (STANDARD DRYWALL, INC.) 1933
Association by subcontracting out work. DHL filed an action
for declaratory relief in United States District Court seeking a
judgment that it had not violated the contract. The Pilots Asso-
ciation filed a counterclaim seeking expedited arbitration and
an injunction restraining DHL from contracting out its air oper-
ations services. The Board found that both pursuit of the griev-
ance and the counterclaim constituted unlawful secondary ac-
tivity within the meaning of Section 8(b)(4)(ii)(A) and (B) and
8(e). In granting an award of legal fees and expenses the Board
said:

The judge recommended that the Board order the Respondent
to reimburse DHL for “all reasonable expenses and legal fees,
with interest, incurred in defending against the grievance and
counterclaim.” Reimbursement is the appropriate remedy
where the Respondent has engaged in actual coercion. See
Food & Commercial Workers Local 367 (Quality Foods),
333 NLRB 771 (2001); Service Employees Local 32B-32J
(Nevins Realty), supra, 313 NLRB at 403. We clarify, how-
ever, that the Respondent is not liable for legal expenses relat-
ed to DHL's initiation of the district court litigation. The Re
spondent is liable only for expenses related to defending
against its grievance and counterclaim.26

Having found that the Respondents’ pursuit of the Kelly and
Greenberg awards and the Plan complaint after the Board’s
order in SDI-II and Local 200’s pursuit of the litigation in the
Pullen and Tortious Interference lawsuits subsequent to the
Board’s order in SDI-II constitute coercion within the meaning
of Section 8(b)(4)(ii)(D) of the Act, I will recommend to the
Board as part of the remedy herein an award of reasonable legal
fees and costs incurred after December 13, 2006, against Local
200 in conjunction with defending the Pullen and Tortious In-
terference lawsuits, defending the enforcement of the Kelly and
Greenberg awards and defending the request for a Plan com-
plaint and against the International in conjunction with defend-
ing the enforcement of the Kelly and Greenberg awards and
defending the request for a Plan complaint.
Having found that Respondents have engaged in and are en-
gaging in certain unfair labor practices, I shall recommend that
they be ordered to cease and desist and to take certain affirma-
tive action designed to effectuate the purposes of the Act.
[Recommended Order omitted from publication.]

26 Airline Pilots Assn., supra at 824.