before the court today is whether the preemptive scope of the national labor relations board section tank a enforcement process renders a voluntary  resolution mechanism embodied in a state authorized project labor agreement and petitioners claim for damages invalid we believe it should not the history we know the history in just you think we know yet and i'll be cited just briefly to to try to separate the predicate for the positions that we have taken throughout the litigation the position that we wish the court to entertain today february of zero seven it harbor township i mean a small entity and to the laws of new jersey adopt a project labor agreement consistent with the new jersey project labor agreement statute injuriously fifty two called thirty eight ash one it sec the reasons for adoption of the project labor agreement are spelled out  n the agreement itself which is done appendix ninety two and that is for purposes of economy efficiency maybe i can help certain this little bit right many help me understand document from our way of looking at it that's really a superficial determination yes they didn't sign the document but a review of the state statute and a review of the project  agreement leads to the conclusion that in order for the statute to work properly in order for the intent particularly of the governing authority  to have labor peace and for the whole project labor agreement process to work simply put anybody working any part contract or union organization union he signatory to a contract or doesn't have some other nexus to a party that is that would justify filing an implicit country it's a good point but the nexus is quite simply the carpenters union and its members as employees of donnell decides it one way or the other from from our research and analysis as to whether a union must actually physically sign a project labor agreement to be bound to the dispute resolution mechanism the way we analyze it your honor is it's a matter of contract interpretation it's a matter of what did the parties intend we when you said parties are there's no because they're not project and the policy considerations for that in the policy considerations under riding the state statute are that you have a project labor agreement to make sure this harmony and to make sure that what happened here doesn't happen that there is no picketing there's no threats of picketing is no labor unrest that there's a peaceful dispute resolution mechanism so that's the intent of the the town all entities had a business decision to make whether it's donnelly is a subcontractor whether it's the carpenters union as an entity do they want to enter into a relationship that benefits them by working on this particular project and if so they can't benefit from working on a project without undertaking reasonable obligations where they're going to say it's not reasonable to require them to follow the terms of an obligation one and i understand that position we don't agree with it i don't believe that the technical the technical issue of signing the p l a should allow the carpenters as an organization to benefit from working on this project and not have any obligations so this is why wasn't there obligation just to do the work because the detriment to them is we do the work the benefit is we get paid and if that violated some agreement that somebody else had with somebody else that should be the problem of those other parties  why is it not that simple well it's not that simple because no one's a project labor agreement and i think there are significant policy considerations but how do you how do you bring them into that agreement how do you make how do you make them suffer the detriment of that agreement and white of what chief judge mckee was asking it's a good point number one for patient agreement and number two that are just utilizing and we brief this equitable principles they work on this project and you're right could it be as simple as they worked on the project they received wages and benefits and do the analysis it's one way of looking at it we think the better way to look at it and consistent with new jersey state law and the legislative policy considerations for the project labor agreement statute lead to a different conclusion and that is there's an expectation by any party any entity any organization which undertakes to work on a a project which is governed by a project labor agreement that there's obligations beyond just doing the work and being benefited by pay and benefits why wouldn't their expectations be that donnelley may have gotten itself in a bind and it's going to have to figure out how to deal with it that it's not our problem it's donnelly's and that's one of you know that's one of the expectations but i think you also have to have to look at it in terms of from an equitable standpoint in terms of fundamental fairness the rationale that the significant policy consideration for having a project labor agreement is to have a mechanism to resolve fights between labor organizations and to resolve jurisdictional and the dis that goes to our that's our threshold argument is that it was not necessary for the labor board to intervene because the project labor agreement statute mandates that there be a voluntary dispute resolution process t contract then you get the implied contract with arbitration when they take the job but that wasn't done here well it's not directly we believe a fair reading of of the state statute does it does it specify i that a union not working on a project is now doesn't use that language it does not but age a fair reading of the language in the statute consistent with the statute the legislative findings under fifty two thirty eight that one subsection f project labor agreements also make it possible to provide for peaceful orderly and mutually binding procedures for resolving labor issues it continues under subsection  specify but it continues the decision by the public entity to require inclusion of a project labor agreement requirement shall not be deemed to want duly restrict car competition if the public and that he finds that the project labor agreement reasonably related to the satisfactory performance completion of the public works project in any bidder for the public works project refusing to agree to abide by the conditions of the project waiver agreement or requirement to negotiate agreement statute to work you cannot have a project where you have five union signed on to the project labor agreements doing the majority of the work and one union or t unions not signing on to the project labor agreement it defeats the entire purpose of having a project labor agreement you you don't end up with harmonious labor relations if you look at the project labor agreement in this case it deals with all sorts of working conditions wages benefits scheduling flexibility of hours apprentices holidays a host of you know garden variety working conditions as well as the voluntary dispute resolution mechanism all of which goes out the window you've identified a valid it seems to me real world problem but whose fault is that if the p l a's defective because it did not encompass all the necessary unions for the very reasons you just described isn't that the fault of the signatories to the p l a the project the government and that's that's one way to look at it we feel when they brought in the trades coun they did they they knew the carpenters weren't part of the trades council they did why didn't they say well we better bring in the carpenters to every other union we can find that's not a number the trades council that might be a union that's going to be asked to do work and it's  is like forty percent of the work in this project was kirk newark sixty percent of what a big chunk of the workers comp it was a significant part of the work the majority the work was done by the signatory unions i think this is the the answer is and i understand that the the ten k process was kind of engineered by the carpenters union and a contractor that had a longstanding relationship with by technically not signing the project labor agreement it allowed the carpenters and donnelly to access the ten k process and you know the ten k process your honor is a mechanism to resolve workplace disputes the issue however is if he can this the ten k decisions which have been issued over any time period they're all based on employer preference but the well that's right so that's true but there's still pilate didn't like that they should have hired donnelly they surely they knew what was coming down the pike if they hired donnelly again for the reasons you just described well i think that goes to san conduct dolly was hired on signed a letter of a set saying that not only for itself but its employees were complying with the dictates of the project labor agreement and  at the the big picture of the policy considerations of the statute the reason for the project labor agreements and there was a reason why the carpenters union didn't sign in technically signed stock and they wanted to invoke the ten k process because it's could have and let's follow that it's a very good question let's follow the process if they had assigned it to the carpenters local twenty seven a sheet metal workers as we did access to jurisdictional dispute resolution mechanism by filing a and didn't like the area practice language in this jurisdictional clause on the award of work and the the work would have been awarded to the sheet metal workers but you know our view is that you can't have it both ways understand you know local twenty seven has made a claim for the work if you give the work we're going to pick it yes there's that letter now one of the bona fides of that letter you got to put it all in kind of temporal context donley signs a letter of a t all that happens in the month of april signs a letter of this and he signs the work to to the carpenter not undertaking any investigation as to whether the carpenter signed to the p l a what the p l a obligations are we've heard you know in this litigation every excuse for the letter sent from the owner of the company was legally blind never read the p l a never made any inquiry believe that only had to be a union project everything's been thrown against the wall so the assignments made local twenty seven files its grievance within a matter of days there's a threat to picket by the and in the real world data day stuff that us labor lawyers deal with every day the only way to get to the ten k process was for the carpenter to say you know what technically we're not  the benefits all the privileges of working on this project we get the work we get thirty percent of the work it takes care of our members that are unemployed they all get to go work on this project but you know what we don't like stanley a an arbitrator we don't like area practice there's only one arbitrator we like in these p l a's j j pierce and so we're going to the legal court because why it's employer preference that may sure but how does that change anything in terms of the legal outcome well i think i think you've got to look at it all of these facts in this lots of moving parts here from the analysis of the statute the policy considerations the reason harbor township adopted this project labor agreement i will be reading it now but there's a rationale for it and the factual scenario you know of that i just laid out argument here is is even if the voluntary dispute resolution mechanism was binding on the carpenters we believe it was and the board head the right to convene a ten k hearing to determine if simon to work we believe that our claim for damages should still be allowed to proceed and there's there's a couple different reasons for that number one the ten k award itself which was issued i think the last year december two thousand and seven  that a suit for damages in a situation like this is the same as a suit for lost wages it makes perfect sense because the measure of damages are going to be the wages i and we don't disagree with that proposition nineteen sixty four case we're dealing with a different situation that is appropriate and that is to project labor agreement creature of state law  to the doctor care yes and no and the rationale is it's a non preempted arena boston harbor and it there's significant policy considerations for i have in project labor agreements for all the reasons i've articulated and the intent of the parties again of those policy considerations that you have a project that is governed under one set of rules and want to agreement which makes it fundamentally different in the district court kind of went through this from the garden variety ten k process where you have a contractor one contractor on a project that may have two collective bargaining agreements to collective bargaining agreements that have existed for many years and kind of unintentionally ends up in the middle of a conflict that's what the ten k process is meant to resolve in particularly the insulation which a contractor receives by having the labor board decide which way to go the district court said you know that's fundamentally different from the facts of the situation here you have and want to project labor agreement for all the policy considerations but you have a contractor that's had a longstanding relationship with local six twenty three the carpenters union just kind of blindly walking in signing this project waiver agreement in a very powerful letter of assent certifying i can i can comply with all of the obligations in this p l a i don't have any commitments to the contrary it binds me in a bind wasn't very happy with the conduct employer so for from in terms of distinguishing this case from the garden variety ten k case where contractors yes and i understand it and rightly so you know from a  standpoint have the benefit of ten k absolution that is fundamentally different from the scenario in this case we are not here saying the labor board doesn't have jurisdiction in the ten k well we are not trying to supplant their jurisdiction what we're saying is in a very narrow area in a project labor agreement context for all of the policy considerations that we indicate that if you allow what happened here for one party to not technically sign access the ten k process as the district court said you will this  commercial construction of collector on or in fact the board on page three of its decision and order an unfair labor practice case in a footnote did take on directly the exact argument that you were speaking with my opposing counsel about phone case which is a longstanding board decision that treats a p l l a on the same footing as a collective bargaining agreement under the rationale that the board reasonably adhere to which is that appeal a is nothing more than a hire agreement between parties that has a attached to it perhaps as in this case other collective bargaining agreements that are incorporated into it and the the argument that there should be appealing exception was not only considered by the board and rejected by the board but i think it's important to point out here that the standard of review in this particular case for enforcement of the board's order is whether the board acted arbitrarily or capriciously in making these findings and it's illustrated by the i believe some of the discussion that you're having right now that the board's view here not only that it was not creating appeal exception in there isn't one but that also it had the jurisdiction in this ten k proceeding to go forward because the parties didn't demonstrate a voluntary dispute mechanism and everyone was attached to that's the phrase one of the milf and cases you ation there are often conflicting obligations in fact that point this court to its own precedent in the condo decision that we cite throughout our priest in that case the employer there entered into two different agreements and was accused in the candle case voluntarily entering into two conflicting agreements and the result because of the result of the ten k congress determination that that is what the board is here to do is that when there's a ballot k determination as there was in this case any litigation to get damages for the work that was assigned in the ten k it's something that cannot be cannot go forward that's going to right that's correct practice the rossouw for damages could not go forward so bundle two were in that situation here because we are ready unlike in going to one have a board final decision on the merits and we don't  does that change our holding in gun the one that a damages action that does not affect the work on the project doesn't interrupt it doesn't you know prevent the job from going forward can be brought up how do you get around that holding because your honor in the one that was decided as to whether or not the lawsuit was or was an unlawful to the benefit just like the district court judge here decision in order which the district court judge in this case as well being on the one did not have the benefit of before making that ruling so our position is that in this case on the merits is controlling and that under the holding of gundel to the standards under the procedural posture that we're in right now given that the board reasonably determined all of the jurisdictional prerequisites for holding a ten k determination so that the second  lack of a voluntary dispute mechanism because there was no signing by the carpenters the least reasonable minds in the board was reasonable in determining there wasn't something that could finally resolve this there's this issue continuously is raised that continuing lawsuits for damages undermines the same reasoning betting that was using kerry for having the power preeminence the prominence of a board section ten k determination and so it just seems like it's enforceable rights against the company to get paid what their do under that contract is that is that what the labor was teach us is that your argument that's what the the supreme court and labor like you teach us because it's important is that back for a minute before going through the looking glass because because to the overweight person i think might i think whether it's the guy on the street or maybe even the general litigator who hasn't gone into the the world of labor law it sounds like you're saying that you know when you have a contract where you have no remedy you're out you have no right to get paid and you can just you know you mazel rip out that contract you have that that's a it just strikes me as a tall order i don't know i would say that that's not what the labor law and supreme court mandate because the ten k process has has wheels on it the slippery a slippery slope is one without rails i learned that in law school and here we were told you that law s faith let's let's forget any aspersions that mr man might want to get cast on them i'm going to let's say he's wrong why don't they have a right to get paid while one of the have a right to enforce their contract and i understand why they don't have have a right to get injunction and prevent this building from being built that i understand why we want to make sure the work gets done we don't want to live in a country where you know we can go ahead and build things because people are going to have these fights but i as much as i understand that i don't understand why they care in force their contract and get paid i think the club most succinct answer to your question is found in gun bill to limit stated that the value of a part of a right to a particular job is to be paid for it and that the distinction between doing the work and getting paid for the work is a distinction that is a femoral so that if it was  allowed then for more there's always conflicting contractual obligations in the ten k situation that's why congress decided the board is going to spend the break when there is no dispute mechanism and come and come in and make a determination and if it was later that one of those conflicting claims was able to give the money for the work to the other union then the impair arised and followed the bird section ten k determination w contract to use the ten k process to avoid its obligations under the i disagree with that your honor because it better to play as you say use the ten here process this is what i meant about the rails on the ten k process there are three jurisdictional findings the point has to make in here that is the threat to strike that the carpenters made and what the bird did do is examine whether that threat was actually a valid threat and without evidence that it isn't the bird is going were many and there are those cases and that's why the board found here that the lawsuit as regards donnelly is the only unfair labor practice in this case because ten k is limited to determining who gets the work donnelly as the sub contractor who had two conflicting obligations led to the board the board took a lot of evidence determined it was a valid ten k situation and awarded the work to the carpenters once that was done the board's decision as of december thirty lost wages and you're back in the ground and i'm not sure the answer to that question your honor i can say in the facts of this case the lawsuit that the board found a model that we're asking this court to do you have a local twenty seven withdraw whereas in the second  complaint asking for damages against donnelly because of the arbitrators award finding that was a breach of the p l a and that's what the board walk on here as directly conflicting with the section ten k determination that the board reasonably made and under kerry and under gundel two and under a lot of the cases that we cited in our prepared it is black letter law that at that point given the circumstances a lawsuit for damages against a subcontractor is one that cannot stand so for purposes of the bird's decision in this case with the law in this case where asking forces the order having the particular lawsuit in this case to be withdrawn such that it isn't going against done to address judge hardman's concerns but it's also for the rights of the employer to be able to follow and here to appoint terminations so the board section ten k determination is allowed to have various exceptions raise for example given that it's judgment he asked there are a lot of cases with project labor agreements versus collective bargaining agreements and the board  found in those cases they're on equal footing we would be eviscerated in a great deal of what congress wanted the ports ten k proceeding to do which is to finally resolve these disputes just seems like a real you sign on to a job knowingly that you know we're going to be subject to the strictures of this job and you know with a wink and nod don't worry about that we'll just go see the feds and they'll bill us out we will have to comply that's what it seems happened here is that not right now that's different from the first assumption you were making about connelly acting in good faith because there's no evidence here of any wink or any not to donnelly and the carpenters you know no i that's a fair point and i don't i don't want to assume that that donnelly did that what i what i'm afraid of is if we accept your position we're opening the door we're inviting every unscrupulous actor to pursue that very course because you can they can look at this case and say well it's no big deal these p l a's are worth really isn't worth the paper they're not generally going forward worth the paper they're written on where we take issue with what you said is that if there isn't a wink and a nod going on which we're going to assume then it is not surely the employer's control to get the fa to get the ten k procedure to to come out with benefit the employer can file a charge only if one of the only ones takes an act like threatens to picket or some other act which is outside the control of the employer only then does the board think that then you may want to find out is it in here that it wasn't that there was a claim to the work by another union decide to exercise that is correct and that is why the board then has a very extensive hearing to determine exactly whether or not this threat by the union is a genuine rainham is not a sham and had the employer in the union be colluding i think the phrase that is used throughout the briefs had that been the case we may have a different situation as to whether the porch of exercise jurisdiction in the first instance under the ten k proceeding but again under the standard of review here where the bird considered all of this evidence in reasonably found that it had a valid basis to conduct the  where well i know that there have been large you other articles written i'm not one hundred percent familiar with them right now about how it a lot of times it does turn out to be employer preference and there are five factors that the board does take into consideration and i would point out as well here look at twenty seven never challenge the merits determination in this matter ever by the board in the section ten k determination so first of all that's not even an issue in this particular case but generally there are five different considerations that the board looks to i don't think in every single case although i'm not sure it goes with employer preference but certainly there are differing views as to the efficacy of how it has turned out but in this that that do turn on that are still as enforceable as as a ten k word that would not turn on that factor and that's because that's the way the labor law on the black letter law has gone and so in this case there's nothing other than there's no direct record evidence certainly to indicate there was any sort of collusion or non legitimate strike threat by the carpenters toward donnelly in order to start the ten k proceeding that the point found and again that analysis is to the merits was never challenged by by the sheet metal workers in this case let me be the same drum one more time in a different way because you've been very helpful in  helping me work through these things but let's assume that both unions acted in perfectly good faith and let's assume that both of them were rod because they were both promised something that the promise or could not deliver why wouldn't the board simply view the solution as ok the carpenters got the work you had to make a choice the board is then put in a in a difficult spot right under my assumption because the board has to unions seeking to do the work both have pretty good arguments you can't you know tell half the carpenters to do the work and have no workers back i think i know enough about labor was really that probably carpenters have their buy they get to do the work to get the make the money why not also let the other aggrieved party have its bite rather than you know just making it all or nothing game where one side is the complete what are the other side is the complete loser think because in that our case that you're presenting congress did make the choice and i think the choice the congress made with the ten k proceeding is that once the board decides who gets t fact is the point considers as well if the collective bargaining agreement relationship so that's something that comes into it along with the other factors and then once the board has made that decision that any allowance and what suits their damages or any actions stability in firing that ten k award for example if the employer had stopped didn't happen here doing the work while the ten k was going on and then the employer decided once the ten k was issue i choice to give the work to it gives the work to who the port said it did but if it also knew that it could later be sued for damages then it would still not have that stability in being able to follow the board decision in recognizing that the work and the paperwork which are essentially the same thing need to be final and need to be for for the purposes of labor stability is congress on the what or just the last piece of the puzzle why is it unstable if i find that company that made the competing promises i can keep the two entities and the board tells me i have to give the work to the carpenters and i know there's a risk that i'm going to have to pay money to the sheet metal workers that th instability that just makes me you know walk into my c f o sophos and say what the heck did you do here you just cost that you just cost the company one hundred thousand dollars or whatever the amount of money is and that you would have to pay in this job twice are you kidding me that's crazy well don't you know that make two promises that you can keep simultaneously that's the lesson here that it's the that's the just result and that way we don't have companies doing this anymore because what company in their right mind would want to pay twice on the same job i would say that the point of federal labor law and the kerry versus busting house case and the point that congress was making in the history of section ten  to avoid even that scenario that you just described where you have to have an employer that is going to be going through a process where it is not certain it should assign after a ten k determination because of the fact it's all over the over the place with regard to this in support as well as the findings that the board made in the section ten k determination urged that again the district court's decision in what the throughout the decision in order on all of these points and so given that we would submit that this court shouldn't force the board's determination and if i'm happy to answer any more questions if you do but i see my time is up if you had enough a few points number one just not to keep picking the horse but on the voluntary dispute mechanism not giving the port ten k jurisdiction i would we briefed the what we think there is support for the notion that merely not signing an agreement by getting all the benefits of the agreement party is equitably stopped from saying we don't but what i'm referencing is the equitable stoppel argument of conduct either expressed or implied reasonably misleads another to his prejudice that a repudiation of such conduct would be unjust and we cite the cases there the second thing that i think i want to focus on is the ten k process just in terms of of the timing of how this process works now the labor law litigator try ten k cases in our world we all know it's employer preference i think if we take a look at we cited some of the studies in our previous employer preference it's a number of factors in the labor board will go through that analysis but if an employer decides they want union a over union b it is a foregone conclusion they're going to get the work in terms of the timing of the labor port process decision and the ten k wasn't until the end of that year december thirty first last day of the year the work was done how meaningful is is is is that decision it really just ends up serving as absolution for in this case donnelly absolution for an employer that local twenty seven who really is on the side of the angels not hav threaten to picket not taking any any action while they're competing labor organization is doing the work even though we have an arbitration decision saying it's our work that was issue very quickly in an expedited fashion as called for under the project labor agreement statute in the project labor agreement over twenty seven doesn't do anything such by carpenters do the work work gets done and then argument though that if if there's a risk that these ten k decisions are not the end of the matter and that there can be satellite litigation for damages that  the party like a donnelly like a say in the there will be all kinds of labor disruption because they're not going to be sure to whom to give the work because of the lack of predictability i'm standing at and we're not here to say there's not some value to the ten k process i think it's it's not the best process but there's some value to that kind of labor stability in what we would term kind of a garden variety kind of context where you know it's not uncommon where you have a contractor that has collective bargaining agreement if agreements with multiple trades that generally do different work and there can be times when there is that overlap where kind of unintentionally end up in in that situation and sure there should be a ten k process and i understand the need to give the contractor some sense of stability that there's not going to be a problem we just have a completely different scenario here that we're urging the court to take a look at again a project labor agreement environment where you have one contract governing the whole project with the sup emacy clause you know governed under state law where there are just different considerations there's an expedited arbitration process within that project labor agreements where you have a but you know kerry predates the project labor agreements that you predates boston harbor where the supreme court very clearly carved out from print from labor board you know primary entity entering into or having bid specifications for a project labor agreement would be crimped on the national labor relations act but but what it allowed was municipalities to indeed enter into project labor agreements and you know the world has changed since kerry i guess is what i'm suggesting and it's particularly changed you know when you have a state like new jersey that has now authored a project labor agreement statute and you don't have as you were the entity they can respond that changes in our congress and this would have seemed to me to be disagreement i'm not sure we have as much the way these kind of the kind of policy argument as you might like you have now and i and i understand and again you know we're not trying to supplant the board's ten k process is what it is and whether it works or doesn't we can we can debate that all day long our view is you have a different factual scenario here you have a different regulatory scenario here with project labor agreements you have different commitments on a on a factual basis here then you do in other cases and i think on the  point that out that it is going to working consistent with kerry i don't think so i mean carrie's kind of a sweeping you know kind of sweeping conclusion that that you know in anything from an after ten k is an appropriate was done the one says look if you're not seeking reassign work and it's just a garden variety damage claim a breach of contract it's permissible in the ten k absolution wasn't meant to protect a contractor who says you know what i'm paying too much in labor rates with this union i'm going to go shop at a deal that's making a business decision and if you have to pay twice of contractor has to pay twice making that  contra to going to one because of the different procedural postures in those cases it was a to muse attend l and and the case on the merits but i think the observations and the conclusions and gone the one remain in those are the factors that i've that i've indicated that if you have a union that's not seeking a reassignment of the work which local twenty seven did not at any time after the ten k airing in as a claim for damages those