Sheet Metal Workers International Association Local 27, AFL-CIO (E.P. Donnelly, Inc.)

National Labor Relations Board - Board Decisions

Dec 8, 2011

357 N.L.R.B. 1577 (N.L.R.B. 2011)

SHEET METAL WORKERS LOCAL 27 (E. P. DONNELLY, INC.)
357 NLRB No. 131
1577

Sheet Metal Workers’ International Association, Lo-
cal 27, AFL–CIO and E.P. Donnelly, Inc. and
United Brotherhood of Carpenters and Joiners
of America, Local Union No. 623. Case 04–CD–
001188
December 8, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On August 18, 2008, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed exceptions and a supporting brief, and a
brief in answer to the Respondent’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.1
Facts
E.P. Donnelly, Inc. (Donnelly), a New Jersey contrac-
tor, installs prefabricated roofs. It had a collective-
bargaining agreement with the United Brotherhood of
Carpenters and Joiners of America, Local Union No. 623
(Local 623).
Sambe Construction Company, Inc. (Sambe) was the
general contractor for the Egg Harbor Township Com-
munity Center in New Jersey, a public works project
covered by a Project Labor Agreement (PLA) authorized
by New Jersey State law. Sambe and the Sheet Metal
Workers’ International Association, Local 27, AFL–CIO
(Respondent or Local 27) were signatories to the PLA.2
In March 2007, Sambe subcontracted roofing installation
work on the Egg Harbor Township Community Center
project to Donnelly, and Donnelly signed a Letter of As-
sent agreeing to be bound by the PLA.
In April 2007, Local 27 claimed the roofing work un-
der the PLA, but Donnelly assigned the work to its Car-
penters-represented employees. Local 27 invoked the

1 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s remedy by requiring that
backpay and other monetary awards shall be paid with interest com-
pounded on a daily basis. We shall modify the judge’s recommended
Order to conform to the violations found 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.
2 The PLA included a “supremacy” provision stating that it “super-
sedes any . . . other collective bargaining agreement of any type which
would otherwise apply to this Project.”
PLA’s procedure for resolving jurisdictional disputes.
Arbitrator Stanley Aiges found that Sambe and Donnelly
violated the PLA “by assigning the disputed work to
members of the Carpenters Union, Local 623” and di-
rected that the work be reassigned to employees repre-
sented by Local 27. (Aiges Award).3
10(k) Proceedings and Determination
In late April 2007, Local 623 threatened to picket if the
roofing work on the Egg Harbor Township Community
Center project was reassigned, and Donnelly filed
8(b)(4)(ii)(D) charges. In the subsequent 10(k) proceed-
ing, Local 27 contended that the Board could not award
the disputed work because the PLA was authorized by
New Jersey statute, which is not subject to preemption
under the Supreme Court’s decision in Building & Con-
struction Trades Council v. Associated Builders & Con-
tractors of Mass./R.I., Inc., 507 U.S. 218 (1993) (Boston
Harbor) (holding that the Act does not preempt a state
authority acting as owner of a construction project from
requiring that contractors abide by a PLA).
On December 31, 2007, the Board issued its 10(k) de-
termination, 351 NLRB 1417, awarding the work to em-
ployees represented by Local 623 based on employer
preference, current assignment and past practice, and
economy and efficiency of operations. The Board disa-
greed that an award of the work to Local 623 “would
effectively and impermissibly preempt New Jersey law”:

An award of the disputed work to Local 623 would not
prevent Egg Harbor Township from exercising its au-
thority under state law to negotiate and execute project
labor agreements, nor would it invalidate the PLA. The
Employer would continue to be bound under the terms
of the PLA, and the parties to the PLA would retain any
rights they may have under state law to bring a suit for
damages against the Employer for any breach of the
PLA. Id. at 1419. [Emphasis added.]

Local 27’s Complaints in Federal Court and Donnelly’s
Unfair Labor Practice Charges
In June 2007, Local 27 filed a complaint, and in Au-
gust filed a first amended complaint, against Donnelly,
Sambe, and Local 623 in Federal district court under
Section 301 of the Act. The first amended complaint
sought enforcement of the Aiges Award and the LJAB

3 Local 27 also filed a grievance under its collective-bargaining
agreement against Sambe and Donnelly with the Local Joint Adjust-
ment Board (LJAB) over the work assignment. The LJAB found that
Sambe and Donnelly had violated the agreement and the PLA, failed to
comply with the Aiges Award, and were liable for lost wages and bene-
fits.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1578
award, reassignment of the work to Local 27-represented
employees, and damages for breach of contract.
Donnelly filed new 8(b)(4)(ii)(D) charges with the
Board in January 2008, claiming that Local 27’s “refusal
to comply with the Board’s 10(k) award by continued
maintenance of its district court action” violated Section
8(b)(4)(ii)(D). The Region issued its complaint on April
16, 2008.
In June 2008, the Respondent filed a second amended
complaint against Sambe and Donnelly. In it, the Re-
spondent no longer sought reassignment of the Egg Har-
bor work. Count one of the second amended complaint
requested a declaratory judgment that the Aiges Award is
valid and binding on Sambe and Donnelly “. . . to the
extent that Arbitrator Aiges held that Donnelly and
Sambe violated said PLA.” Count two requested damag-
es for breach of the PLA, and count three requested dam-
ages for violation of the New Jersey statutes.
The Judge’s Decision
The administrative law judge found that by maintain-
ing its Section 301 lawsuit against Donnelly and Sambe
after the Board had issued its 10(k) determination, the
Respondent violated Section 8(b)(4)(ii)(D) of the Act.
For the reasons discussed below, we agree with the
judge that the Respondent unlawfully maintained its law-
suit against Donnelly. Contrary to the judge, however,
we do not find that the Respondent unlawfully main-
tained its lawsuit against Sambe.
Discussion
The Respondent and the General Counsel except to the
judge’s finding that the Respondent unlawfully main-
tained the lawsuit against Sambe. They argue that the
Respondent was denied due process because the com-
plaint did not allege that the lawsuit against Sambe vio-
lated the Act. They further contend that, under Board
precedent, because Sambe did not assign the disputed
work directly to employees, an award against Sambe
would not be inconsistent with the Board’s 10(k) award.
See, e.g., Carpenters Local 33 (AGC of Massachusetts),
289 NLRB 1482, 1484 (1988) (finding grievance seeking
damages from general contractor for breaching subcon-
tracting clause did not undermine 10(k) award of work to
subcontractor’s employees). We agree with these argu-
ments, and reverse the judge’s finding that the Respond-
ent violated Section 8(b)(4)(D) by maintaining its suit
against Sambe following the Board’s 10(k) determina-
tion.
However, we affirm the judge’s conclusion, based on
longstanding Board and court precedent, that Local 27
violated Section 8(b)(4)(ii)(D) by maintaining its lawsuit
against Donnelly after the Board’s 10(k) award issued in
December 2007. In doing so, we reject the Respondent’s
contention that the judge erred by failing to consider that
it had a reasonable basis for filing and maintaining its
lawsuit under Bill Johnson’s Restaurant v. NLRB, 461
U.S. 731 (1983).
As a general rule under Bill Johnson’s, an ongoing
lawsuit can be enjoined as an unfair labor practice only if
it is filed with a retaliatory motive and if it lacks a rea-
sonable basis in fact or law. But the Court noted an ex-
ception to the general rule in Bill Johnson’s, finding the
rule inapplicable to a lawsuit “that has an objective that
is illegal under federal law.” Bill Johnson’s, 461 U.S. at
747 fn. 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’ ex-
ception to Bill Johnson’s.” Teamsters Local 776 (Rite
Aid), 305 NLRB 832, 835 (1991), enfd. 973 F.2d 230 (3d
Cir. 1992), cert. denied 507 U.S. 959 (1993).4
It is well established that a union’s lawsuit to obtain
work awarded by the Board under Section 10(k) to a dif-
ferent group of employees, or monetary damages in lieu
of the work, has an illegal objective for purposes of Bill
Johnson’s footnote 5 and violates Section 8(b)(4)(ii)(D).5
Accordingly, we affirm the judge’s finding that, follow-
ing the Board’s 10(k) award, Local 27’s maintenance of
its 301 lawsuit was incompatible with the Board’s award
and, therefore, had an objective that was illegal under
Federal law.
The Respondent attempts to distinguish the clear case
precedent by asserting that the second amended com-
plaint’s count two seeks damages only for breach of the
PLA, not pay-in-lieu of assignment of the work. But this

4 In BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002), the Su-
preme Court held that the Board may not find that maintenance of a
completed, unsuccessful lawsuit constituted an unfair labor practice
where the suit was objectively reasonable and filed with the purpose of
receiving the relief requested. On remand from the Supreme Court, the
Board in BE&K Construction Co., 351 NLRB 451, 456 (2007), 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 com-
pleted, and regardless of the motive for initiating the lawsuit.”
The Board had held that the Supreme Court’s ruling in BE&K did
not affect the footnote 5 exceptions in Bill Johnson’s, supra, for law-
suits with an illegal objective. Allied Trades Council (Duane Reade,
Inc.), 342 NLRB 1010, 1013 fn. 4 (2004). See also Small v. Plasterers
Local 200, 611 F.3d 483 (9th Cir. 2010).
5 Small v. Plasterers Local 200, supra at 493; United Slate, Tile &
Composition Roofers Local 30 v. NLRB, 1 F.3d 1419, 1426 (3d Cir.
1993) (“[T]he pursuit of a . . . breach of contract suit [for pay-in-lieu]
that directly conflicts with a section 10(k) determination has an illegal
objective and is enjoinable as an unfair labor practice under section
8(b)(4)(ii)(D).”), enfg. Roofers Local 30 (Gundle Construction), 307
NLRB 1429 (1992). See also cases cited in Roofers Local 30, supra at
1430.
SHEET METAL WORKERS LOCAL 27 (E. P. DONNELLY, INC.) 1579
is a distinction without a difference. The basis of the
damages in count two is that the arbitrator “clearly and
unequivocally determined that . . . Donnelly violated the
PLA” and, as a result of that violation, Local 27 and its
members were “damaged. . . . as they lost wages and
benefits otherwise due.” The arbitrator’s rationale for
finding the violation was Donnelly’s having assigned the
work to employees represented by the Carpenters in ac-
cordance with the Board’s 10(k) award. The judge cor-
rectly concluded that the effect of count two’s request for
damages for breach of the PLA is the same as the first
amended complaint’s request that Donnelly pay damages
for assigning the work to employees represented by Lo-
cal 623.
Similarly, count three, though couched in terms of a
State-law violation, is founded on Donnelly’s assignment
of the disputed work in accordance with the Board’s
10(k) award. The Respondent’s claim that Donnelly
violated State law and owed damages to the Respondent
directly conflicts with the Board’s 10(k) award, and is
therefore unlawful.6
The judge saw “nothing improper” in the request in
count one of the second amended complaint for declara-
tory relief validating the Aiges Award’s finding that
Donnelly violated the PLA. We disagree. If granted, a
declaration validating the finding that Donnelly breached
the PLA by assigning the work to the Carpenters-
represented employees would also directly conflict with
the 10(k) award. Accordingly, we will modify the reme-
dy to require that the Respondent withdraw its lawsuit
against Donnelly in its entirety.
The Respondent’s other principal argument is that, de-
spite longstanding 8(b)(4)(ii)(D) precedent, the Board’s
10(k) award expressly permitted Local 27 to continue its
lawsuit seeking damages from Donnelly for breach of the
PLA. The Respondent’s argument focuses on a single
sentence from the 10(k) award stating that Donnelly
“would continue to be bound under the terms of the PLA,
and the parties to the PLA would retain any rights they
may have under state law to bring a suit for damages
against the Employer for any breach of the PLA.” 351
NLRB at 1420. The Respondent asserts that its interpre-
tation was confirmed by the district court’s decision
denying the Region’s request for an injunction pendente

6 We note that the district court denied the Respondent summary
judgment on this cause of action, finding that the New Jersey statute
authorizing PLAs did not create a private right of action. Sheet Metal
Workers’ Local 27 v. E.P. Donnelly, Inc. & Sambe Construction Co.,
673 F.Supp.2d 313, 331 (D.N.J. 2009).
lite. Moore-Duncan v. Sheet Metal Workers Local 27,
624 F.Supp.2d 367 (D.N.J. 2008).7
The court concluded that the Respondent’s second
amended complaint did not conflict with the Board’s
10(k) determination because it sought only damages for
breach of the PLA.8 It rejected as implausible the idea
that the Board was addressing only future, unrelated suits
that might arise under the PLA, and not Local 27’s exist-
ing lawsuit, given the Board’s “sweeping assurance that
parties would retain ‘any rights’ under the PLA to sue for
‘any breach.’ If the Board intended to exclude the ongo-
ing litigation from its broadly worded assurance, it would
have done so clearly.” 624 F.Supp.2d at 374. “In short,
the Board’s 10(k) decision specifically held the [the Re-
spondent’s] Action to be compatible with it.” Id. at 374–
75.9 With all due respect to the court, we believe that it
misconstrued (as did the Respondent) the meaning of the
Board’s language in the 10(k) determination.
Initially, if the Board had intended to overrule decades
of well-established precedent in its 10(k) decision and
permit a union to pursue a contractual claim conflicting
with the Board’s award, it would have done so explicitly.
Cf. Longshoremen ILWU Local 7 (Georgia-Pacific), 291
NLRB 89, 92–93 (1988), review denied 892 F.2d 130
(D.C. Cir. 1989) (explicitly reversing earlier precedent

7 See also Sheet Metal Workers Local 27 v. E.P. Donnelly, Inc. and
Sambe Construction Co., 673 F.Supp.2d at 331 (reaffirming the find-
ings in 624 F.Supp.2d and granting Local 27 summary judgment on
breach of contract claim).
8 Significantly, the court ruled only on the question of whether to
grant the Board’s request for temporary injunctive relief and not on the
merits of whether the Respondent violated Sec. 8(b)(4)(D). According-
ly, its statements regarding the merits of the allegation are not binding
on the Board. See Roofers Local 30, supra at 1431 fn. 7. Likewise, the
court’s reaffirmance of those statements in Local 27’s breach of con-
tract suit, Sheet Metal Workers Local 27 v. E.P. Donnelly, Inc. and
Sambe Construction Co., supra, is not binding on the Board and is
contrary to clear Third Circuit precedent. United Slate, Tile & Compo-
sition Roofers Local 30 v. NLRB, supra, 1 F.3d at 1429 (holding lawsuit
to recover damages for work awarded to employees represented by
another union in a 10(k) proceeding violates Sec. (b)(4)(ii)(D)).
9 The Respondent and the court treat the PLA as authoritative be-
cause of its “supremacy” provision. But a PLA is a “‘prehire’ collec-
tive bargaining agreement.” Boston Harbor, 507 U.S. at 230. In its
10(k) decision, the Board did not give the PLA special deference be-
cause of its “supremacy” provision, contrary to the Respondent’s con-
tention. Rather, the Board noted that “[e]very contract implies an ex-
pectation of the parties that its terms will be honored, notwithstanding
the existence of any conflicting agreements entered into by any of the
parties.” 351 NLRB at 1420. Accordingly, consistent with prior prece-
dent, the Board considered the PLA on the same basis it considered the
Donnelly-Carpenters’ collective-bargaining agreement and concluded
that “the factor of collective-bargaining agreements does not favor an
award to employees represented by either union.” Id. See Operat-
ing Engineers Local 318 (Kenneth E. Foeste Masonry), 322 NLRB
709, 712 (1996) (neither project agreement nor other union’s labor
agreement favored award of work to employees represented by either
union; work awarded based on other factors).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1580
and announcing it would no longer find union’s griev-
ances before issuance of 10(k) award to be coercive with-
in meaning of Section 8(b)(4)(ii)(D)).10
Further, the Respondent’s interpretation of the Board’s
language fails to consider it in the context of the Re-
spondent’s asserted defense in the 10(k) case. The
Board’s statement about the PLA was part of its response
to Local 27’s assertion that the Board “‘cannot make an
affirmative award of the disputed work’ . . . because the
PLA is authorized by a New Jersey statute . . . which
(according to Local 27) is not subject to NLRA preemp-
tion.” 351 NLRB at 1419. The Board rejected the asser-
tion that it lacked jurisdiction as “without merit,” be-
cause the award of the disputed work would neither pre-
clude Egg Harbor Township from negotiating and exe-
cuting project labor agreements pursuant to the state stat-
ute nor invalidate the PLA involved here. Id. at 1419–
1420.
The Board continued its response by stating, “the par-
ties to the PLA would retain any rights they may have
under state law to bring a suit for damages against the
Employer for any breach of the PLA.” Id. at 1420. In
context, the Board merely pointed out that the exercise of
its statutory authority to resolve this particular jurisdic-
tional dispute over certain roofing work would neither
amount to a general preemption of the New Jersey statute
nor generally nullify the parties’ rights and obligations
under the PLA.
The remainder of the Board’s analysis confirms this
interpretation. Immediately after the sentence relied on
by the Respondent, the Board emphasized that even if its
exercise of jurisdiction put it “at cross purposes with the
New Jersey statute” authorizing the PLA, “it does not
follow that the Board is precluded from exercising its
statutory authority,” or that “the Board has no jurisdic-
tion over this dispute. . . . . Such a suggestion is contrary
to the Constitution’s Supremacy Clause.” Id.
By invoking the Constitution’s Supremacy Clause, the
Board affirmed the primacy of its 10(k) determination in
this case over any conflicting contractual claims or arbi-
tral awards concerning the disputed work. Simply put, it
is unreasonable to interpret the Board as having sanc-
tioned the Respondent’s continuing pursuit of a contrac-
tual claim that would “totally frustrate” “the very pur-
pose of Section 10(k)—to authorize the Board to resolve

10 Indeed, the courts have found that the Board “acts unreasonably if
it departs from established policy without giving a reasoned explana-
tion for the change.” Chelsea Industries v. NLRB, 285 F.3d 1073,
1075–1076 (D.C. Cir. 2002); Bro-Tech Corp. v. NLRB, 105 F.3d 890,
897 (3d Cir. 1997) (“The Board may not, by ipse dixit, simply issue
new rules (or “interpret” its old ones) without explaining the reason for
their issuance (or reinterpretation).”) (citation omitted).
the jurisdictional dispute.” Longshoremen’s & Ware-
housemen’s Union v. NLRB, 884 F.2d at 1414.
Moreover, the legality of Local 27’s lawsuit was not at
issue in the 10(k) proceeding. As noted, Board precedent
is clear that, before the Board issued its 10(k) award,
Local 27’s lawsuit did not have an illegal objective. See
Longshoremen ILWU Local 7 (Georgia Pacific), 291
NLRB at 92–93 (union’s grievances before issuance of
10(k) award not coercive under Section 8(b)(4)(ii)(D)).
Once the Board issues a 10(k) award, a respondent has a
reasonable period to refrain from pursuing its conflicting
grievance or lawsuit. Council of Laborers (W. B. Skin-
ner, Inc.), 292 NLRB 1035, 1035 fn. 6 (1989). Local
27’s violation of Section 8(b)(4)(ii)(D) began only when
it continued its lawsuit after the Board awarded the work
to the Carpenters-represented employees. Because a
10(k) award takes precedence over contrary claims and
determinations, the Board would have had no reason to
even consider Local 27’s existing lawsuit in connection
with its 10(k) determination.
In sum, we agree with the judge that by maintaining
the suit against Donnelly after the Board made its 10(k)
determination, the Respondent sought to undermine the
Board’s 10(k) award and to coerce the Employer into
reassigning to members of Local 27 the work that the
Board found had been properly assigned to employees
represented by Local 623. Accordingly, the Respond-
ent’s conduct in maintaining the suit against Donnelly
after the 10(k) determination issued violated Section
8(b)(4)(ii)(D) of the Act.
ORDER
The Respondent, Sheet Metal Workers’ International
Association, Local 27, AFL–CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Threatening, coercing or restraining E.P. Donnelly,
Inc., or any person engaged in commerce, or in an indus-
try affecting commerce, where an object thereof is to
force or require Donnelly to assign the work of installing
prefabricated standing seam metal roofing, soffit, fascia
and related trim on the Community Center Project in Egg
Harbor Township, New Jersey, to employees who are
members of, or are represented by, Local 27, rather than
to employees who are members of, or represented by,
Local 623.
(b) Maintaining after December 31, 2007 a lawsuit en-
titled Sheet Metal Workers Local 27 v. E.P. Donnelly,
Inc. et al. Civil No. 07-3023 (RMB/JS) in the United
States District Court for the District of New Jersey, or
any lawsuit that it maintains, that requests that the Em-
ployer comply with the terms of the LJAB or the arbitra-
tor’s award herein, or requests monetary damages for its
SHEET METAL WORKERS LOCAL 27 (E. P. DONNELLY, INC.) 1581
failure to assign the disputed work to employees who are
members of, or are represented by, the Respondent or the
Sheet Metal Workers’ International Association.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw the above-described lawsuit. Within 7
days, notify the Employer of its action.
(b) Reimburse payments, if any, that were made by
E.P. Donnelly to the Respondent pursuant to the award
of the LJAB or the arbitrator, following the Board’s Sec-
tion 10(k) Determination issued on December 31, 2007,
with interest. Interest is to be computed in the manner
described in New Horizons, 283 NLRB 1173 (1987), and
as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
(c) Within 14 days after service by the Region, post at
its union office and hiring hall in Farmingdale, New
York, as well as any other offices it maintains, copies of
the attached notice marked “Appendix.”11 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its members by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 4 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
NOTICE TO EMPLOYEES AND MEMBERS
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 vio-
lated Federal labor law and has ordered us to post and obey
this Notice.

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 maintain a lawsuit seeking to require
E.P. Donnelly, Inc. to pay monetary damages to us, with
an object of forcing it to assign certain work to individu-
als who are members of, or are represented by us, contra-
ry to a ruling by the National Labor Relations Board at
351 NLRB 1417 (2007), in which the Board awarded the
work to employees who were represented by United
Brotherhood of Carpenters and Joiners of America, Local
Union No. 623.
WE WILL withdraw our lawsuit against Donnelly.
WE WILL reimburse Donnelly for any payments, with
interest as prescribed in the Board’s Order, it may have
made to us for the above described work following the
issuance of the Board’s 10(k) Determination.
SHEET METAL WORKERS’ INTERNATIONAL
ASSOCIATION, LOCAL 27, AFL–CIO

Henry Protas, Esq., for the General Counsel.
Robert O’Brien, Esq. (O’Brien, Belland & Bushinsky, LLC), for
the Respondent.
Louis Rosner, Esq., for the Employer.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on May 29, 2008, in Philadelphia, Pennsylva-
nia. The complaint herein, which issued on April 16, 2008, and
was based upon an unfair labor practice charge that was filed
on January 11, 2008, by E. P. Donnelly (the Employer), alleges
that Sheet Metal Workers’ International Association, Local 27,
AFL–CIO (Local 27 or the Respondent) violated Section
8(b)(4)(ii)(D) of the Act by filing and maintaining a lawsuit in
order to obtain certain work, even though the Board had issued
a 10(k) decision and determination of dispute awarding of the
work in question to United Brotherhood of Carpenters and
Joiners of America, Local Union No. 623 (Local 623), rather
than to Local 27.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that the Employer has been
an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1582
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it and Local 623 are each
labor organizations within the meaning of Section 2(5) of the
Act.
III. THE FACTS
The facts herein are straightforward and undenied. The Em-
ployer, a contractor in the construction industry, specializes in
the installation of prefabricated standing seam metal roofs and
related jobs mostly in south and central New Jersey. It has
maintained a collective-bargaining relationship with Local 623
since about 1999, and it is a signatory to the Carpenters’ inter-
national agreement, which binds it to the Local 623 agreements
when working within its jurisdiction. Further, it employs a
“core group” of seven or eight carpenter-represented employees
and supplements this group by hiring additional carpenters, as
needed, through the applicable local carpenter agreement.
On March 30, 2007,1 the Employer obtained a subcontract
from Sambe Construction Company, Inc. (Sambe), to install
prefabricated standing seam metal roofing and related work at
the Egg Harbor Township Community Center project (the Pro-
ject), which is covered by a project labor agreement (PLA).
The signatories to the PLA are the Egg Harbor Township,
Sambe, the South Jersey Building and Construction Trades
Council, and certain local unions, including Local 27; Local
623 was not a signatory to the PLA. Upon entering into the
subcontract with Sambe, the Employer signed a letter of assent
agreeing to be bound by the PLA. Pertinent portions of the
PLA are:

This Agreement, together with the local Collective
Bargaining Agreements appended hereto . . . represents the
complete understanding of all signatories and supersedes
any national agreement, local agreement or other collec-
tive bargaining agreement of any type which would oth-
erwise apply to this Project. . . . [Art. 2, sec. 4.]
Where there is a conflict, the terms and conditions of
this Project Agreement shall supersede and override terms
and conditions of any and all other national, area, or local
collective bargaining agreements. [Art. 3, sec. 1.]
The Contractors recognize the signatory Unions as the
sole and exclusive bargaining representative of all craft
employees who are performing on-site Project work within
the scope of this Agreement. . . . [Art. 4, sec. 1.]

The PLA also provides for a procedure for resolving jurisdic-
tional disputes, and appended to the PLA is a collective-
bargaining agreement between Local 27 and Sambe, effective
June 1, 2006, through May 31, 2009, encompassing the disput-
ed work in question.
On April 4, at a prejob meeting provided for in the PLA,
Sambe assigned the disputed work to the Employer, and Local
27 claimed the disputed work. On April 13, the Employer stat-
ed that it was assigning the work to employees represented by
Local 623. On April 16, Local 27 invoked the PLA’s provi-
sions for settlement of jurisdictional disputes, resulting in a

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2007.
hearing before Arbitrator Stanley Aiges on June 5; the Employ-
er, Sambe and Local 27 participated in this hearing, Local 623
did not. On July 2, Aiges issued his decision awarding the
disputed work to Local 27. The award states, inter alia: “For
the reasons set forth above, I find that based on area practice
within the jurisdiction of the South Jersey BCTC,
Sambe/Donnelly violated the Egg Harbor Community Center
PLA by assigning the disputed work to members of the Carpen-
ters Union, Local 623. They are directed to reassign that work
to members of Sheet Metal Workers Local 27.” On June 26,
Local 27 filed a grievance against Sambe and the Employer
with the Local Joint Adjustment Board (LJAB) concerning the
assignment of work at the Project. The LJAB met on July 16 to
consider the grievance; although Sambe and the Employer were
invited to attend, neither one did. On July 23, the LJAB issued
its decision finding that Sambe and the Employer, by assigning
the disputed work at the Project to Local 623 members rather
than to Local 27 members, were in violation of the collective-
bargaining agreement, as well as the PLA and, additionally
found that they failed to comply with the award issued by Arbi-
trator Aiges on July 2. The LJAB award concludes:

Assuming the aforementioned work is not reassigned to Sheet
Metal Workers from Local #27, the LJAB finds Sambe Con-
struction Company, Inc. and E. P. Donnelly, Inc. jointly, sev-
erally and in the alternative responsible to pay fair and justifi-
able compensation to Sheet Metal Workers Local Union #27
for lost wages and benefits in the amount of $428,319.26, as
determined by averaging the shop and field hours required to
complete the project, as estimated by Local 27 contractors,
and multiplying those hours by SMW Local Union #27’s
hourly rate of $67.42.

On April 30, Local 623 informed the Employer that the as-
signment of this work to another trade would be considered a
breach of its contract and would result in a grievance, picketing
or any other means available to preserve the work for its mem-
bers. On May 2, the Employer filed 8(b)(4)(D) charges against
both Local 623 and Local 27. The Board dismissed the charges
against Local 27 and a 10(k) proceeding ensued on July 2, 3,
and 5. On December 31, the Board issued its decision and
determination of dispute at 351 NLRB 1417 (2007). Based
upon employer preference, current assignment and past prac-
tice, and economy and efficiency of operations, the Board
awarded the work to employees represented by Local 623.
On June 27 and August 3, Local 27 filed a complaint and a
first amended complaint under Section 301 of the Act against
the Employer, Local 623, Sambe and the New Jersey Regional
Council of Carpenters. In the first amended complaint, Local
27 states, inter alia, that the Employer and Sambe have refused
to abide by the award issued by Arbitrator Aiges, which award
is legal and binding upon them as parties to the PLA of the
Project, and that this refusal has caused damage to Local 27 and
its membership, and that the Employer and Sambe have also
refused to abide by the award issued by the LJAB, which also
continues to damage Local 27 and its members. As a remedy,
Local 27 requested the reassignment of the work to employees
that it represents, monetary relief for the damages caused by the
Employer and Sambe’s breach of contract in accordance with
SHEET METAL WORKERS LOCAL 27 (E. P. DONNELLY, INC.) 1583
the LJAB award of July 23, permanent injunctive relief com-
pelling them to comply with the PLA and Aiges’ arbitration
award, and permanent injunctive relief enjoining them from
contracting work at the Project to any entity not a signatory to
the PLA.
On March 27, 2008, Renee Marie Bumb, United States Dis-
trict Judge of the District Court for the District of New Jersey,
issued an opinion wherein she denied the Plaintiff’s motion for
summary judgment, without prejudice, and granted the Re-
spondents’ motion to vacate the LJAB award that issued on
July 23. On June 25, 2008, the Respondent filed its second
amended complaint, amending its remedy request. In count one
of this complaint, the Respondent requests that declaratory
judgment be entered finding that the PLA is valid, legal, and
binding on the Employer and Sambe for the Project, and that
Aiges’ arbitration award is also valid, legal, and binding on
them “. . . to the extent that Arbitrator Aiges held that Donnelly
and Sambe violated said PLA.” Count two requests “monetary
relief” and costs and attorney’s fees for the damage caused by
the Employer and Sambe’s breach of the PLA, and count three
requests damages for their breach of the New Jersey statutes.
The important difference between this second amended com-
plaint and the earlier complaints is that this latter complaint
does not request compliance with, and damages pursuant to, the
arbitration award and the LJAB award. Rather, this second
amended complaint seeks “generic” monetary relief for the
breach of the PLA and enforcement of the arbitration decision
to the extent that the arbitrator found that the Employer and
Sambe violated the PLA.
IV. ANALYSIS
The complaint before me alleges that Local 27 violated Sec-
tion 8(b)(4)(D) of the Act by continuing to maintain this law-
suit in the United States District Court after the Board issued its
10(k) ruling on December 31, ordering that the work in ques-
tion be assigned to employees who were represented by, or
were members of, Local 623. As a defense, Local 27 points to
certain Board language in its 10(k) determination in response to
Local 27’s contention that the Board “cannot make an affirma-
tive award of the disputed work” because the PLA was author-
ized by New Jersey statute, which is not subject to preemption.
In that regard, the Board stated:

Local 27 thus appears to suggest that a Board award of the
work in dispute to employees represented by Local 623 would
effectively and impermissibly preempt New Jersey law au-
thorizing public entities such as Egg Harbor Township to ne-
gotiate project labor agreements. An award of the disputed
work to Local 623 would not prevent Egg Harbor Township
from exercising its authority under state law to negotiate and
execute project labor agreements, nor would it invalidate the
PLA. The Employer would continue to be bound under the
terms of the PLA, and the parties to the PLA would retain any
rights they may have under state law to bring a suit for dam-
ages against the Employer for any breach of the PLA. [Em-
phasis added.]

In addition to arguing that this language in the 10(k) determina-
tion permitted (in fact, encouraged) the Respondent to act as it
did, the Respondent has two additional defenses herein. That
even without this language, its second amended complaint does
not go over the line in seeking to abrogate or undermine the
effect of the 10(k) determination, and that under Bill Johnson’s
Restaurant v. NLRB, 461 U.S. 731 (1983), and BE&K Con-
struction Co., 351 NLRB 451 (2007), the Board cannot find a
violation enjoining its second amended complaint because its
lawsuit was “reasonably based.”
The law is clear (at least it was prior to December 31, when
Board issued the 10(k) determination herein) that any post-
award conduct (usually picketing, grievances, or a lawsuit) by
the losing party in a 10(k) proceeding that undermines that
determination is unlawful. In Local 30 United Slate (Gundle
Lining Construction Corp.), 307 NLRB 1429, 1430 (1992), the
Board stated: “Such post-award conduct is properly prohibited
under Section 8(b)(4)(D) because it directly undermines the
10(k) award, which under the congressional scheme, is sup-
posed to provide a final resolution to the dispute over which
group of employees are entitled to the work at issue.” The
court, at 1 F.3d 1419, 1426 (3d Cir. 1993), in enforcing, stated:
“The pursuit of a section 301 breach of contract suit that direct-
ly conflicts with a section 10(k) determination has an illegal
objective and is enjoinable as an unfair labor practice under
Section 8(b)(4)(ii)((D).” And in Iron Workers Local 433 (Otis
Elevator Co.), 309 NLRB 273, 274 (1992), the Board said, “. . .
allowing the losing party in a 10(k) dispute to pursue payments
for work that the Board awarded to employees other than those
involved in the grievance necessarily subverts the Board’s
10(k) award.”
I find that all of the complaints filed in its Section 301 suit,
including the second amended complaint, tend to undermine the
Board’s 10(k) determination herein. The original complaint
and the first amended complaint clearly undermined the 10(k)
determination by requesting the reassignment of the work that
the Board awarded to Local 623, ordering that the parties com-
ply with the arbitration award and requesting monetary relief in
accordance with the LJAB award. While the second amended
complaint is an improvement over the earlier complaint it still
tends to undermine the Board’s earlier determination. There is
nothing improper in count one, which requests a finding that
the PLA is valid and binding upon the Employer and Sambe
and that the arbitration award, to the extent that it found that the
Employer and Sambe violated the PLA, is also valid and bind-
ing on them. However, count two requests monetary relief for
damages caused by the Employer and Sambe’s breach of the
PLA. Although, on its face, this appears to be less objectiona-
ble than the demands in the earlier complaints, the end result is
the same as if the Respondent had requested that the Employer
and Sambe pay damages in accordance with the LJAB award—
that they would have to pay damages for assigning the work to
Local 623 members, as the Board determined in its 10(k) de-
termination, thereby undermining that ruling. I therefore find
that under normal circumstances, by filing and maintaining its
second amended complaint, the Respondent violated Section
8(b)(4)(D) of the Act. This is where the Respondent’s principal
defense comes in, i.e., the language contained on page 4 of the
Board’s determination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1584
Prior to deciding the merits of the dispute, the Board stated
that awarding the work to Local 623 would not prevent the
township from exercising its authority under state law to nego-
tiate or execute agreements, nor would it invalidate the PLA.
More relevant, and confusing, is the language that follows:
“The employer would continue to be bound under the terms of
the PLA, and the parties to the PLA would retain any rights
they may have under state law to bring a suit for damages
against the Employer for any breach of the PLA.” The Re-
spondent (correctly) points out that is all that it did herein, and
therefore the complaint should be dismissed. I, reluctantly,
disagree for two reasons. As stated by counsel for the General
Counsel, in his brief, if the Board wanted to overrule such
longstanding precedent, as the Respondent argues it meant to
do, it would have specifically stated that it was doing so, but it
did not do so. In addition, if the Board really meant to say what
the Respondent alleges, it should be for the Board to so state
rather than for me to make that determination and overrule
longstanding precedent.
Finally, the Respondent defends that under BE&K, supra,
there can be no finding of a violation herein, which would en-
join its lawsuit; I disagree. Initially, I find that because the
second amended complaint, if successful, would undermine the
Board’s 10(k) determination, it was not “reasonably based,”
i.e., the Respondent must have been aware that it conflicted
with that determination and would therefore be subject to chal-
lenge. In Northern California District Council of Laborers (W.
B. Skinner, Inc.), 292 NLRB 1035 (1989), the Board stated:

The Board issued a decision under Section 10(k) of the Act
awarding certain disputed work to employees of W. B. Skin-
ner who were represented by IBEW Local 202, rather than to
employees who were represented by Respondents. That deci-
sion put the Respondents, who fully participated in the 10(k)
hearing, on notice that there was no longer any reasonable ba-
sis for continuing to prosecute the lawsuit that they filed prior
to the 10(k) award to confirm a contrary arbitral award.

See also Longshoremen ILWU Local 32 (Weyerhaeuser), 271
NLRB 759 (1984), and ILWU Local 13 (Sea-Land), 290 NLRB
616, 617 (1988). In addition, as counsel for the General Coun-
sel states in his brief, BE&K, supra, did not affect footnote 5 in
the Supreme Court’s decision in Bill Johnson’s, supra, which
states: “We are not dealing with . . . a suit that has an objective
that is illegal under [F]ederal law. Petitioner concedes that the
Board may enjoin these latter types of suits.” As I have found
that the Respondent’s suits herein violate the Act because they
undermine the Board’s 10(k) determination, they can be en-
joined.
Based upon all of the above, I find that by bringing and
maintaining its Section 301 lawsuit, including the second
amended complaint on June 25, 2008, the Respondent violated
Section 8(b)(4)(ii)(D) of the Act.
CONCLUSIONS OF LAW
1. E. P. Donnelly, Inc. has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Sheet Metal Workers’ International Association, Local
27, AFL–CIO and United Brotherhood of Carpenters and Join-
ers of America, Local Union No. 623 have each been labor
organizations within the meaning of Section 2(5) of the Act.
3. By maintaining its Section 301 lawsuit against the Em-
ployer and Sambe after the Board issued its 10(k) determina-
tion, the Respondent violated Section 8(b)(4)(ii)(D) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action necessary
to effectuate the policies of the Act. As stated above, the diffi-
culty that I had with the Respondent’s lawsuit was its request
for damages. Whether it was stated as damages for breach of
the PLA and a violation of the New Jersey statutes (as set forth
in the second amended complaint), or as a request that the Em-
ployer and Sambe be ordered to comply with the LJAB and the
arbitrator’s award and pay damages pursuant to those awards,
the result is the same. The Employer and Sambe would be
penalized for complying with the Board’s 10(k) determination,
thereby undermining that determination. I recommend that the
Respondent be ordered to delete from its second amended com-
plaint paragraphs B and C in its remedy request for count one,
as well as its entire remedy request for counts two and three or,
in the alternative, to withdraw the lawsuit in its entirety.
[Recommended Order omitted from publication.]