PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

____________

Nos. 10

- 2201, 10

- 2202 & 10

- 2325

____________

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION LOCAL UNION NO. 27, AFL

- CIO, Appellant in No. 10

- 220 2

v.

E.P. DONNELLY, INC.; SAMBE CONSTRUCTION CO., INC.

E.P. DONNELLY, INC,

Appellant in No. 10

- 2201

SAMBE CONSTRUCTION CO., INC,

Appellant in No. 10

- 2325

___________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1

- 07

- cv

- 03023 ) District Judge: Honorable Renee M. Bumb2 ____________

11

- 4480

____________

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION LOCAL UNION NO. 27, AFL

- CIO,
Petitioner

v.

NATIONAL LABOR RELATIONS BOARD; UNITED
BROTHERHOOD OF CARPENTERS AND JOI NERS OF AMERICA, LOCAL UNION NO. 623; E.P.

DONNELLY, Respondents

___________

12

- 1047

___________

NATIONAL LABOR RELATIONS BOARD,
Petitioner

v.

SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 27, AFL

- CIO;

UNITED BRO THERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 623, Respondents3 ___________

On Petition for Review and Cross

- Application for
Enforcement of a Decision and Order of the
National Labor Relations Board (NLRB Docket No. 4

- CD

- 1188)

___________

Argued February 13, 2013

Before: McKEE

, Chief Judge , HARDIMAN , AND

VANASKIE, Circuit Judges

.

(Filed: December 13, 2013 )

Louis Rosner, Esq. ( ARGUED )
Suite 2020
123 South Broad Street Philadelphia, PA 19109 Counsel for E.P. Donnelly Inc.

Mark E. Belland, Esq. ( ARGUED )
S teven J. Bushinsky, Esq. O’Brien, Belland & Bushinsky
1526 Berlin Road Cherry Hill, NJ 08003 Counsel for Sheet Metal Workers International

Association AFL

- CIO Local Union No. 27

Melissa C. Angeline, Esq.
6352 Lancaster Avenue Philadelphia, PA 191514 Marc Furman, Esq.
Jonathan Landesman , Esq. ( ARGUED ) Cohen, Seglias, Pallas, Greenhall & Furman
30 South 17th Street
19th Floor Philadelp hia, PA 19103

- 0000 Counsel for Sambe Construction Co. Inc.

Heather S. Beard, Esq. ( ARGUED ) Julie B. Broido, Esq. Linda Dreeben, Esq.
National Labor Relations Board 1099 14th Street, N.W. Washington, D.C. 20570 Counsel for the National Labor Relati ons Board

Raymond G. Heineman, Esq.
Kroll Heineman
99 Wood Avenue South Metro Corporate Campus I, Suite 307 Iselin, NJ 08830

- 0000 Counsel for United Brotherhood of Carpenters and Joiners of America Local Union No. 623

___________

OPINION

___________

VANASKIE, Circuit Judge.

These consolidated appeals arise out of a construction trades jurisdictional dispute concerning whether certain work on a public building should be conducted by sheet metal5 workers or by carpenters. Sheet Me tal Workers’ International

A ssociation, Local 27, AFL

- CIO ( “ Sheet Metal ” ) petitions
this Court for review of the d ecision and o rder of the National Labor Relations Board ( “ the Board ” or “NLRB” ) of
December 8

, 2011 , finding that Sheet Metal violated the

Nat i onal Labor Relations Act by maintaining a section 301 suit against E

. P

. Donnelly , Inc. ( “ Donnelly ” ) and Sambe
Con struction Company, Inc. ( “ Sambe ” ) following the Board’s

decision in a section 10(k) proceeding to assign the disputed
work to the New Jersey R egional Council of Carpenters and the United States Brotherhood of Carpenters and Joiners of America, Local 623 ( “ Carpenters ” )

. The Board cross

petitions for enfor cement of its order

. Also before this Cour t are three appeals from orders of the District C ourt entered in
connection with the jurisdictional labor dispute. Donnelly appeals from an order of the District Court granting summary j udgment in favor of Sheet Metal on its breach of contract
claim and awarding Sheet Metal $ 365,349.75 in
compensatory d amages. Sheet Metal appeals the District Court’s award of nominal damages of $1.00 against Sambe,

and Sambe cross

- appeals against Sheet Metal on the matters
of contract liability and damages. For the reasons that follow,
we will deny Sheet Metal’s petiti on for review; grant the Board’s petition for enforcement of its December 8, 2011

decision and or der; vacate the judgment of the District Court
in favor of Sheet Metal on the breach of contract claims against Donnelly and Sambe ; and remand the case to the
District Court with directions to enter judgment in favor of Donnelly and to conduct further proceedings with respect to Sheet Metal’s contract claim asserted against Sambe

.

I. FACTS AND PROCEDURAL HISTORY6 In 2006, Egg Harbor Township , located in Atlan tic County, New Jersey, authorized the construction of the Egg Harbor Township Community Center ( “ the Project ” ). In accordance with New Jersey law governing public works projects , the Townshi p adopted a project labor a greement ( “ the PLA ” or “Agreement” ), which governed the terms and
conditions of the Project ’s construction. 1 A ll contractors working on the Project were required to become signatories to

1 New Jersey law authorizes p ublic entities to adopt project labor agreements to govern public works projects

if the public entity determines, taking into consideration the size, complexity and cost of the public works project, that, with respect to that project the project labor

ag reement will meet the requirements of section 5 of this act, including promoting labor stability and advancing the interests of the public entity in cost, efficiency, skilled labor force, quality, safety and
timeliness.

N.J.S.A. § 52:38

- 3 (2002). The sta tute further provides that “[a]ny project labor agreement negotiated pursuant to this act between the public entity or its representative or a construction manager and one or more labor organizations shall be binding on all contractors and subcontractors

w orking on the public works project . . . .” Id. § 52:38

- 4.7 the PLA. The PLA also contained a “supremacy provision,” which provided that the PLA “together with the local Collective Bargaining Agreements appended hereto as Schedule A represent [] the complete understanding of all signatories and supersede [] any national agreement, local agreement or other collective bargaining agreement of any type which would otherwis e apply to this Project(s)

, in whole or in part ” ( “the Supremacy Clause”). (Board Appeals Joint Appendix [“B. J.A.”] 100 .)

Sambe was selected as the g ene ral c ontractor on the Project and, as required, became a signatory to the PLA. In early 2007, Sambe subcontracted the Project roofing work to Donnelly. In accordance with the PLA’s requirement that general contractors obtain signed letters of assent from all subcontractors hired to work on the Project, on March 30, 2007, Don n elly e xecuted a letter of a ssent in which it

consent ed to be bound by the terms and conditions of the PLA, and further agreed that any party it selected to perform the roofing work would also be required to become a signatory to the PLA.

A dispute arose when Donnelly selected Car penters to perform the roofing work, even though Carpenters was not a signatory to the PLA. Donnelly apparently hired Carpenters because the two were parties to a collective b argaining

a greement ( “ CBA ” ). 2 Sheet Metal, which was a signatory to

2 Both Donnelly and Sambe are signatories to CBAs with Carpenters. Before the District Court, the parties disputed whether Donnelly and Sambe assented to Sheet
Metal’s CBA and whether its CBA was appended to the PLA. The District Court in its March 26, 2010 decision awarding8 the PLA, pr otested the work assignment and informed Donnelly that Carpenters could not complete the Project because it had not executed the PLA. Carpenters, in turn, threatened to picket if Donnelly reassigned the roofing work
to Sheet Metal. A lthough Donnelly crea ted conf licting contractual obligations by assenting to both the Carpenters’
CBA and the PLA, it refused to reas sign the work to Sheet
Metal.

In an attempt to settle the work dispute, Sheet Metal
initiated an arbitration proceeding pursuant to Article 10 of
the PLA. 3 An arbitration hearing was held before arbitrator Stanley Aiges . Donnelly, Sambe, and Sheet Metal participated in the hearing ; Carpenters , although made aware

Sheet Metal damages concluded that Sheet Metal’s CBA was appended to the PLA and was thus binding on Donnelly. See
Sheet Metal Workers Int’l Ass’n Local Union No. 27 v. E. P. Donnelly, Inc. , No. 07

- 3023, 2010 WL 1257741, at *4 (D.N.J. Mar. 26, 2010) (“ Sheet Metal III ”). The parties apparently do not challenge this conclusion on appeal.

3 Article 10 sets forth the procedure for resolving jurisdictional disputes between unions and contractors. In summary, a union disputing the assignment of Project

- related work is required to submit its objection in writing to a designated administrator, in accordance with the procedure set forth in Article 10. The dispute is then submi tted to an arbitrator, whose award is “final and binding on the disputing Local Unions and the involved Contractor on this Project only, and may be enforced in any court of competent jurisdiction.” (B. J.A. 122.)9 of the hearing, did not appear at the proceeding

. 4 O n June 15, 2007, Arbitrato r Aiges issued a short form arbitration decision awarding the disputed work to Sheet Metal ( “ the Aiges arbitration award ” ). 5

Carpenters nonetheless persisted in its assertion that it
woul d picket the P roject if the work were assigned to Sheet
Metal. D onnelly subsequently filed an unfair labor practice charge with the Board pursuant to section 10(k) of the National Labor Relations Act (“NLRA” or “the Act”), 29 U.S.C. § 160(k)

, alleging that Carpenters violated section 8(b)(4)( ii ) (D) of the NLRA , 29 U.S. C. § 158(b)(4)(ii)(D), “by engaging in proscribed activity [ threatening to picket] with an object of forcing [Donnelly] to continue to assign certain work to employees it represents rather than to employees represented by [ Sheet Metal ]. ” 6 United Bhd. of C arpenters &

4 Carpenters did, however, submit a le tter to Aiges objecting to his jurisdiction to resolve the work dispute and to the validity of the PLA generally.

5 On July 2, 2007, Aiges issued a long form arbitration award confirming the short form decision.

6 Section 8(b)(4)(ii) makes it is an unfair labor practice for a labor organization

to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object
thereof is

–

. . .10 Joiners of Am., Local Union No. 623 , 351 N.L.R.B. 1417, 1417 (2007) (“ Local Union No. 623 ”). The regional director for the NLRB ordered a section 10(k) hearing to determine the work jurisdiction dispute. 7

While Donnelly’s unfair labor practi ce charge against Carpenters was pending, Sheet Metal filed a grievance against

(D) forcing or requiring any employer to assign parti cular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class .

. . .

29 U.S.C. § 158(b)(4)(ii)(D) (2012).

7 Under sectio n 10(k) of the Act,

[w]henever it is charged that any person has engaged in an unfair labor practice within the meaning of [section 8(b)(4)(ii)(D)] of this title, the Board is empowered and directed to hear and determine the dispute out of which such
unf air labor practice shall have arisen, [unless the dispute is resolved by the parties within 10 days].

29 U.S.C. § 160(k) (2012).11 Sambe and Donnelly with the Local Joint Adjustment Board (“ the LJAB”) pursuant to its own CBA, seeking to confirm the Aiges arbitration award because Donnelly had not yet assig ned the disputed work to Sheet Metal. 8 Donnelly and Sambe were invited to participate in the LJAB proceeding,
but both declined. Donnelly objected to the LJAB’s jurisdiction. One month later, on July 25, 2007, the LJAB issued its decision, finding that Sambe and Donnelly violated the PLA and Sheet Metal’s CBA by assigning the roofing work to Carpenters and failing to comply with the Aiges
award. The LJAB further held that if the work was not reassigned to Sheet Metal, Sambe and Donnelly would be jointly liable to Sheet Metal for $428,319.26 in lost wages

and benefits.

In the meantime, on June 29, 2007, S heet Metal filed suit against Donnelly and Carpenters in the United States District Court for the District of New Jersey pursuant to
section 301 of th e Labor Management Relations Act of 1974 (“LMRA”) , 29 U.S.C. § 185

, 9 seeking declaratory and

8 Sheet Metal’s CBA provides an alternative dispute resolution mechanism for settling work disputes between the
union and e mployers: “Grievances not settled as provided in Section 1 of this Article may be appealed by either party to
the Local Joint Adjustment Board

. . . . [A] decision of the
Local Joint Adjustment Board shall be final and binding.” (District Court Appeals Jo in Appendix [“D.C. J.A.”] 146.)

9 Section 301 of the LMRA authorizes “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting12 monetary relief, as well as a preliminary injunction to enforce the Aiges arbitration award. 10 Sheet Metal filed an amended complaint in August, 2007, adding a cla im against Donnelly
for failure to abide by the LJAB arbitration award and joining
Sambe as a defendant

.

On December 31, 2007, the Board issued a decision and order resolving Donnelly’s unfair labor practice charge against Carpenters. See Local Union N o. 623 , 351 N.L.R.B.
at 1417

. Finding that it had jurisdiction pursuant to section 10(k) of the Act , the Board awarded the disputed roofing work to Carpenters, “relying on the factors of employer preference, current assignment and past practice, and

econo my and efficiency of operations.” Id. at 1422

. Notwithstanding this award, Sheet Metal continued to pursue its section 301 lawsuit against Donnelly in the District Court.
On Jan uary 11, 2008, Donnelly filed a second unfair labor practice charge with the Board

, this time against Sheet Metal and asserting that Sheet Metal’s continued pursuit of the
section 301 action after the Board issued the section 10(k) order constituted an unfair labor practice in violation of section 8(b)(4)(ii)(D) because it sought reassignment of work
in contravention of a section 10(k) order of the Board

.

On March 27, 2008, the District Court denied Sambe and Donnelly’s motion s to va cate the Aiges arbitration award

, finding that it could not evaluate the motions because a

commerce . . . or between any such labor organizations . . . .” 29 U.S.C. § 185(a) (2013)

.

10 Carpenters was eventually dismissed from the suit.13 decis ion on the validity of the PLA was “ premature at [that]
time

. ” (D.C. J.A. 20 .) The District Court did, however, “touch upon the . . . [parties’] dispute regarding the preclusive
effect of the 10(k) decision rendered by the NLRB on December 31, 2007,” and emphasized th at it “ disagree [ d ]” with Donnelly’s argument that because the Board awarded the disputed work to Carpenters, “there is no monetary remedy for [Sheet Metal] even if the PLA is valid and [Donnelly and Sambe] breached that contract. ” 11 (D.C. J.A

. 21.)

In April , 2008, the Board issued a complaint against Sheet Metal, contending that its continued maintenance of the

se ction 301 suit following the Board ’s section 10(k) order

was a n unfair labor practice in violation of section 8(b)(4)(ii)(D) of th e NLRA

. 12 Following a hearing, on May

11 The District Court did, however, grant Sambe and Donnelly’s motions to vacate the LJAB award. Sheet Metal does not challenge that as pect of the District Court’s ruling,
and thus we will not address it.

12 That month, the Board also petitioned to stay Sheet Metal’s section 301 suit pending its resolution of Donnelly’s unfair labor practice charge against Sheet Metal. On September 2, 2008, the District Court denied the Board’s petition and declined to temporarily stay the section 301 suit.

See Moore

- Duncan v. Sheet Metal Workers’ Int’l Ass’n,

Local 27 , 624 F. Supp. 2d 367, 377 (D.N.J. 2008). The Board appealed, and this Court ordere d the appeal be deferred pending disposition of these consolidated appeals. See

Moore

- Duncan v. Sheet Metal Workers’ Int’l Ass’n Local14 29, 2008, an administrative law judge ( “ the ALJ ” ) found th at Sheet Metal violated the NLRA by maintaining the section 301 suit against Donnelly and Sambe after the Board issued its section 10(k) order . Sheet Metal fil ed exceptions and a supporting brief.

On June 25, 2008, af

ter the Project was completed,
Sheet Metal file d a second amended complaint in its section
301 action . Sheet Metal no longer requested re assignment of the Project work, but instead sought monet ary damages against Sambe and Donnelly for breach of contract and
violations of N.J.S.A. § 52:38

- 1 et. seq. , as well as a declaratory judgment that Donnelly and Sambe are bound by the Aiges arbitration award. Sheet Metal, Sambe, and Donnelly subsequently filed cross

- motions for summary judgment.

In December, 2009, t he District Court rendered its decision on the parties’ summary judgment motions. See
Sheet Metal Workers Int'l Ass'n Local Union No. 27 v. E.P. Donnelly, Inc. , 673 F. Supp. 2d 313 (D.N.J. 2009) (“ Sheet
Metal I ”). The District Court first granted summary judgment in favor of Donnelly and Sambe on Sheet Metal’s claims for violations of the New Jersey statute authorizing project labor agreements, N.J. S

. A. 52:38

- 1 et seq

. 13 Id. at 331. But th e District Court granted summary judgment in favor of Sheet Metal on the breach of contract claims, finding that both

Union 27 , No. 08

- 44 3 7 (3d Cir. May 31, 2012) (order deferring disposition).

13 Sheet Metal does not appeal this porti on of the
District Court’s decision.15 Donnelly and Sambe breached the PLA. See id. The District Court later awarded Sheet Metal $1.00 in nominal damages against Sambe. See S heet Metal Workers Int’l Ass’n Local Union No. 27 v. E.P. Donnelly, Inc. , No. 07

- 3023, 2010 WL 905616, at *5 (D.N.J. Mar. 9, 2010) (“ Sheet Metal II ”)

. Following a bench trial on the issue of Donnelly’s liability for
compensatory damages, the District Cour t awarded Sheet Metal $365,349.75. See Sheet Metal III , 2010 WL 1257741,
at *9

. The parties timely filed their respective appeals and

cross

- appeal.

On December 8, 2011, the Board issued a decision and
order affirming and reversing in part the ALJ’s August 18,
2008 decision with respect to Donnelly’s unfair labor practice charge against Sheet Metal . The Board held that Sheet
Metal’s section 301 suit against Donnelly was an unfair labor practice in violation o f section 8(b)(4)(ii)(D) because it
“direc tly conflict [ed] with the Board’ s 10(k) award

. ” Sheet Metal Workers’ Int’l Ass’n, Local 27 , 357 N.L.R.B. No. 131,
at * 4 (Dec. 8, 2011). The Board then “modif[ied] the [ALJ’s] remedy to require that [Sheet M e tal] withdraw its lawsuit against Donnelly in i ts entirety.” Id. However, the Board reversed the ALJ’s decision with respect to Sambe, finding
that Sheet Metal’s claim against Sambe, the general

c ontractor

, did not conflict with the section 10(k) award and
therefore did not constitute an unfair labor practice

. Id. at *2.
Sheet Metal timely petitioned this Court for review of the Board’s December 8, 2011 order, and the Board filed a cross

petition for enforcement.

II. THE BOARD’S DECEMBER 8, 2011 DECISION

AND ORDER16 We have jurisdiction to revie w a decision and order of
the Board pursuant to section 1 0 of the NLRA. See 29 U.S.C. §§ 160(e)

- (f) ; see also NLRB v. Cedar Tree Press, Inc. , 169 F.3d 794, 795 (3d Cir. 1999). “We review [the Board’s ] factual findings to determine whether they are suppor ted by
substantial evidence on the record as a whole.” Local 30,

Unit ed Slate, Tile & Composition Ro ofers v. NLRB , 1 F.3d 1419, 1422 (3d Cir. 1993) (“ Gundle II ”). In doing so, we exercise care not to “displace the Board’s factual inferences even if [we] would have reached a different conclusion on de

novo review.” NLRB v. Omnitest Inspection Servs. , Inc. , 937 F.2d 112, 121 (3d Cir. 1991). Although appellate review of legal questions raised in an NLRB decision and order is plenary, Cedar Tree Press , 169 F.3d at 79 5

, the Board’s interpretation of the Act is entitled to deference. St. Margaret Mem’l Hosp. v. NLRB , 991 F.2d 1146, 1151 (3d Cir. 1993).
“We must enforce a Board order that rests upon an interpretation of the Act that is not ‘an unreasonable or unprincipled construction of the statute . . . .’” Gundle II , 1 F.3d at 1422 (citing Ford Motor Co. v. NLRB , 441 U.S. 488, 497 (1979)).

Sheet Metal advances two theories in support of its argument that the Board’s December 8, 2011 decision is

unenfor ceable. First, Sheet Metal argues that the Board did not have jurisdiction to issue the December 31, 2007 section 10(k) order in which it found that Carpenters wa s entitled to the disputed work . Alternatively, Sheet Metal contends that
even if the Board had jurisdiction to issue the December 31, 2007 decision and order, it erroneously concluded that Sheet Metal violated section 8(b)(4)(ii)(D) by pursuing the section
301 case after the section 10(k) order issued. We will address each argument in turn.17 A.

The Board has jurisdiction to resolve alleged violation s of section 8(b)(4)(ii)(D) pursuant to section 10(k) of the NLRA, which provides:

Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of [section 8 (b)(4)(ii)(D)], the Board is empowered and directed to hear and determine the dispute
out of which such unfair labor practice shall have arisen, unless

, within ten days after notice that such charge has been filed, the parties to such dispute submit to
the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute.

See 29 U.S.C. § 160(k). To exercise jurisdiction pursuant to section 10(k), the Board must find “there is reasonable cause

to belie ve that Section 8(b)(4)(D) of the Act has been
violated.” See In re Int’l Alliance of Theatrical & Stage Employees , 337 N.L.R.B. 721, 723 (2002). The Board
conducts a three

- step inquiry to determine whether this
standard has been satisfied , examining whe ther there is

reasonable cause to believe that (1) a union has used a proscribed18 means

– such as picketing or threatening to picket

– to enforce its claim to the work in dispute; (2) there are competing claims to the disputed work between rival groups of employees; and (3) there is no agreed

- upon method for resolving the dispute voluntarily.

Recon Refractory & Const r. Inc. v. NLR B , 424 F.3d 980, 988 (9th Cir. 2005). Once the Board determines that these three requirements are met , it “will award the disp uted work to one
or the other of the vying unions, based on considerations such as the employer’s past practice, industry custom, and contract rights.” Id.

Only the third requirement is dispute d here. Sheet Metal contends that the PLA dispute

- resolut ion section provides the appropriate agreed

- upon mechanism to resolve the work jurisdiction dispute.

“For the Board to find that the parties have agreed upon a method for the voluntary adjustment to a dispute, all parties must agree to be bound by th e method.” Local 3

- 90, W. States Reg’l Council No. 3 , 261 N.L.R.B. 615, 617 (1982) ; accord Int’l Union of Operating Eng’rs, Local 150 , 316 N.L.R.B. 360, 361 n.3 (1995) (“ Local 150 ”) . Where there exists an agreed

- upon method for settlement of jurisdiction al disputes, the Board will dec line section 10(k) jurisdiction. See William E. Arnold Co. v. Carpenters Dist. Council of Jacksonville & Vicinity , 417 U.S. 12, 18 (1974). The Board has explained that it does so to further Congress’s preference,19 as express ed through the NLRA, for voluntary resolution of
labor disputes. See id. However, where no agreed

- upon method exists, the Board will exercise jurisdiction pursuant to section 10(k) and resolve the work dispute itself

. See Local
150 , 316 N.L.R.B. at 361

.

In its December 31, 2007 decision and order resolving Donnelly’s unfair labor practice charge against Carpenters, the Board first determined that it had jurisdiction to resolve the work dispute between Donnelly, the employer, and Carpenters and Sheet M etal, the unions disputing the work assignment. See Local Union No. 623 , 351 N.L.R.B. at 1419. The Board rejected Sheet Metal’s argument that an agreed

upon method of dispute resolution existed because the PLA contained such a mechanism, reasoning that C arpenters was not a signatory to the PLA “and therefore is not bound to i ts dispute

- resolution procedure ” set forth in Article 10

. Id. The
Board thus concluded that “there [wa]s no agreed

- upon voluntary met hod to adjust the dispute,” and therefore the
“d ispute [was] properly before [it] for determination under Section 10(k).” Id.

I t is undisputed that Carpenters was not a signatory to
the PLA. Sheet Metal acknowledges as much

, but argues that Carpenters was nonetheless bound by the PLA pursuant to
N .J.S.A. § 52:38

- 4, which provides that “[a]ny [PLA] negotiated pursuant to this act . . . shall be binding on all
contractors and subcontractors workin g on the public works project

. . . . ” Sheet Metal argues that Carpenters was also
party to the PLA purs uant to the Entities Bound Clause found
in Article 2, section 3

, which provides that the PLA is binding on signatory unions and contractors, and “is further binding upon any employee of the owner, [General Contractor] or any20 subcontractor performing work o n the [Project] . . . .” (B. J.A. 100.)

Article 2 , section 3 further provides, however, that in
order for a subcontractor to be bound by the PLA, “[t]he Contractors shall include in any subcontract that they let, for performance during the te rm of thi s A greement, a requirement that their subcontractors , of whatever tier, become signatory and bound by this Agreement . . . .” (B

. J.A. 100 ) (emphasis added). As noted above, Carpenters did not sign the PLA, and the CBA between Carpenters and Donnelly did not obligate Carpenters to become a signatory to the PLA. On the contrary , the Carpenters/Donnelly CBA expressly provides that “[n]o project labor agreement (PLA) may supersede this agreement or any of its provisions or
articles without the mutual consen t of the parties, ” B. J.A. 33,
and no evidence was offered showing that Carpenters

consent ed to be bound by the PLA.

Sheet Metal’s argument that Carpenters was bound by
the PLA ’s Supremacy Clause is similarly unpersuasive. We agree with Sambe that the “ Supremacy Clause merely harmonizes the PLA’s provisions with the CBAs of the signatory Unions, displacing any contrary CBA provisions.” (Sambe Combined Third Step Br. 21 )

. Because Carpenters was not a signatory to the PLA

– a fact that Sheet Metal does not dispute

– the Supremacy Clause does not apply to Carpenters’ CBA and cannot, as Sambe urges, trump the CBA between Donnelly and Carpenters and displace the dispute resolution mechanism contained therein. 14

14 Alternatively, Sheet Metal argues that Carpenters was bound by the PLA under the doctrine of equitable21 Furthermore, the case law Sheet Metal cites in support of its position that an agreed

- upon dispute resolution
mechanism existed actually counsel s in favor of reaching the opposite conclusion . For example, in Sw. Reg ’ l Council of Carpenters , 348 N.L.R.B. 1250 (2006), the Board found that,

notw ithstanding the existence of a governing project service agreement containing a dispute resolution mechanism, there was no agreed

- upon method because “the record show[ed] that there [were] potentially conflicting f orums for resolving the disputes ” among th e parties. Id. at 1254. T he Board expressly stated that it was “unnecessary to resolve whether all the parties” were actually bound by the labor agreement in question because the fact that the parties disputed whether they were bound by the agreement alo ne satisfied the third jurisdictional requirement for exercising section 10(k) jurisdiction. Id. Similarly, in Int’l Bhd. of Electrical Workers, Local Union No. 363 , 326 N.L.R.B. 1382 (1998), the Board found that no agreed

- upon voluntary dispute
resoluti on mechanism existed where the aggrieved union was a signatory to a PLA which “contain[ed] a specific provision outlining a procedure for dealing with jurisdictional work disputes,” but the other parties to the 10(k) proceeding

– the employer who made the disputed work assignment and the union that received the disputed work

– were not signatories.
Id. at 1384. The Board thus concluded that it could properly

estoppel. However, we do not have jurisdiction to consider this argument because Sheet Metal never raised it be fore the Board and fails to point to any “extraordinary circumstances” justifying its failure to do so. 29 U.S.C. § 160(e)

.22 exercise jurisdiction pursuant to section 10(k). 15 See id. Indeed, where , as here, an employer has bound itself to conflicting labor agreements

, “the Board has held that no
determinative agreed

- on method e xists for resolving the dispute

, ” and thus section 10(k)’s third jurisdictional requirement is satisfied. Int’l Union of Operating Eng’rs,
Local 318 , 322 N.L.R.B. 709, 712 (1996).

Affording “due deference to the Board’s expertise in drawing factual inferences,” Gundle I I , 1 F.3d at 1425, we hold that the Board’s finding that there existed no agreed

upon voluntary dispute resolution mechanism is su pported by
substantial record evidence and is thus “ conclusive. ” 29 U.S.C. § 160(e) ; see also Int’l Union of Operating Eng’rs, Local No. 714 v. Sullivan Transfer, Inc. , 650 F.2d 669, 679 (5th Cir. 1981)

. Accordingly

, the Board’s determination that
all th ree requirements for exercising jurisdiction pursuant to section 10(k) were satisfied had a “ reasonable basis in law ” and will not be disturbed on appellate review

. See Ford

15 The remaining cases relied upon by Sheet Metal in support of this argument are inapposite. Enertech Elec., Inc. v. Mahoning Cnty. Comm’rs , 85 F.3d 257 (6th Cir. 1996), involved an appeal from a district court’s grant of summary judgment, not a decision by the Board in which it determined that it had section 10(k) jurisdiction. Id. at 259. And in Laborers Int’l Union of N. Am ., Local No. 320 , 318 N.L.R.B. 917 (1995), the parties stipulated that there was no agreed

upon method for voluntary dispute resolution and thus the Board was not called upon to determine whether the third requirement for section 10(k) jurisdiction was sat isfied. Id. at
918.23 Motor Co. , 441 U.S. at 497 (citation omitted) (internal quotation marks omitted). The Board properly exercised jurisdict ion pursuant to section 10(k) when it issu ed the December 31, 2007 order awarding the disputed work to Carpenters . Accordingly, Sheet Metal’s contention that it could not properly have been found to violate section 8(b)(4)(ii)(D) because the Board lacked the authority to issue its work assignment order is without merit. T he Board’s petition to enforce t he December 8, 2011 order cannot be denied on that ground.

B.

Sheet Metal argues in the alternative that even i f the Board had jurisdiction to issue the section 10(k) award, it erred in concluding that Sheet Metal violated section 8(b)(4)(ii)(D) by maintaining the section 301 suit against Donnelly after December 31, 2007, the date of the Board’ s section 10(k) deter mination awarding the disputed work to Carpenters

. 16 See Sheet Metal , 357 N.L.R.B. No. 131, at *3.

16 As the Board correctly pointed out, Sheet Metal’s section 301 suit became an unfair labor practice only after the December 31, 2007 section 10(k) decision issued. See Sheet
Metal , 357 N.L.R.B. No. 131, at *5; see also Local Union No. 7, ILWU , 291 N.L.R.B. 89, 92 (1988). Common sense
establishes that Sheet Metal’s section 301 suit could not be found to conflict with a prior order of the Board, and thus could not be “coerc[ive]” within the meaning of section 8(b)(4)(ii)(D), until t he Board actually issued an order with
which the suit could conflict.24 In holding that Sheet Metal committed an unfair labor practice , the Board reasoned:

It is well established that a
union’s lawsuit to obtain work awarded by the Board under Section 10(k) to a different group of employees, or monetary damages in lieu of the work, has an illegal objective for purposes
of Bill Johnson’s [ Restaurant s, Inc. v. NLRB , 461 U.S. 731 (1983)] footnote 5 and violates Section 8(b)(4)(ii)( D). Accordingly, we affirm the [ALJ’s] finding that, following the Board’s 10(k) award, [Sheet Metal’s] maintenance of its 301 lawsuit was incompatible with the Board’s award and, therefore, had an objective that was illegal under
Federal law.

Id. The B oard rejected Sheet Metal’s argument that the suit was permissible because it sought “damages only for breach of the PLA, not pay

- in

- lieu of assignment of the work .” Id.
The Board explained that the effect of Sheet Metal’s request for damages , rather tha n the disputed work itself, was “ the same as the first amended complaint’s request that Donnelly pay damages for assigning the work to employ ees represented by [Carpenters], ” and thus Sheet Metal’s attempt to distinguish its suit from one for pay

- in

- lieu o f work was a
“distinction without a difference.” Id. The Board also25 reversed the ALJ’s finding that Sheet Metal was entitled to a declaratory judgment validati ng the Aiges arbitration award, because, “[i] f granted, a declaration validating the finding th at Donnelly breached the PLA by assigning the work to the Carpenters

- represented employees would also directly conflict with the 10(k) award.” Id. at *4. The Board thus ordered Sheet Metal to “withdraw its lawsuit against Donnelly in its entirety.” 17 Id. “We review to determine

17 The Board reversed the ALJ’s decision with respect to Sambe, finding, contrary to the ALJ’s determination, that Sheet Metal’s pursuit of a breach of contract claim against
Sambe d id not constitute an unfair labor practice. See Sheet
Metal , 357 N.L.R.B. No. 131, at *2. The Board explained that “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.” Id.

Sambe does not petition for review of this portion of the Board’s decision, and in fact acknowledges that the Board’s section 10(k) order “does not automatically bar [Sheet Metal’s] breach of contract claim against Sambe

– because it w as Donnelly and not Sambe that assigned the disputed work . . . .” (Sambe Combined Third Step Br. 2.) Sambe also acknowledges that a suit for contract damages can be maintained against general contractors even after the Board issues a section 10(k) award assigning the disputed work to another union, but argues that this “exception” does not apply here, and thus the District Court erred in granting summary judgment for Sheet Metal on its breach of contract claim against Sambe. (Sambe Combined Third Step B r. 33.) We address this argument in Part III(B) infra , in our26 whether the Board’s finding rests on a reasonable interpretation of th e Act .” Gundle II , 1 F.3d at 1426.

Section 301 of the LMRA authorizes “[s]uits for violation of contracts between an employer and a labor organization repre senting employees in an industry affecting commerce . . . or between any such labor organizations . . .

. ” 29 U.S.C. § 185 (a)

. A section 301 lawsuit may be enjoined as an unfair labor practice pursuant to section 8(b)(4)(ii)(D) i n certain circumstances. In Bill Johnson’s Restaurant s, Inc. v. NLRB , 461 U.S. 731 (1983), the Supreme Court outlined a

two

- prong test for determining whether a lawsuit constitutes an unfair labor practice in violation of section 8(b)(4)(ii)(D).

See i d. at 744

. Under the Bill Johnson’s “improper motivation” test, “ before a civil suit can be enjoined, both an improper motivation and a lack of reasonable legal basis for
the suit must be demonstrated.” Hoeber v. Local 30, United Slate Tile & Composition Ro ofers , 939 F.2d 118, 122 (3d Cir. 1991) (“ Gundle I

”) ; see Bill Johnson’s , 461 U.S. at 7 44

. T he
Bill Johnson’s Court recognized that an exception exists

, however, where the lawsuit “has an objective that is illegal
under federal law.” 18 461 U.S. at 73 7 n.5

.

discussion of the parties’ appeals from the District Court’s

orders.

18 Although the Supreme Court’s statement in footnote
5 of Bill Johnson’s is technically dictum, we have explained
that the Court’s “ dicta are highly persuasive” and are not to be viewed lightly. Galli v. New Jersey Meadlowlands
Comm’n , 490 F.3d 265, 274 (3d Cir. 2007); see also In re
McDonald , 205 F.3d 606, 61 2 (3d Cir. 2000). Moreover, as
discussed infra , the “illegal objective” exception articulated27 We have observed that “ [s] ince [ Bill Johnson’s ], other courts of appeals and the Board have agreed that pursuit of a section 301 breach of contract suit that directly conflicts with a section 10(k) determination has an illegal objective and is enjoin able as an unfair labor practice under section 8(b)(4)(ii)(D).” Gundle II , 1 F.3d at 1426. We joined those other Courts of Appeals in the Gundle trilogy of cases

. See
Gundle I ; Gundle II , 1 F.3d at 1427

- 29; United Union of Roofers , Local Union No. 30 v . Gundle Lining Constr. Corp.

, 1 F.3d 1429 (3d Cir. 1993) (“ Gundle III ”)

. We revisit the issue now to clarify our jurisprudence.

The Gundle cases, as here, involved a work dispute
between an employer

, Gundle Li ning Construction Corporation

, and two u nions

, Local 30 and Local 172. See
Gundle I , 939 F.2d at 119. Gundle had a contract to perform
liner installation work at a New Jersey county landfill and
subcontracted the work to Local 30 via a “Memorandum Agreement” in which it also became a party to Local 30’s

CBA. Id. at 119

- 120. After t he project was completed

, Gundle began another project at the landfill, for which it hired
Local 172 , rather than Local 30, to perform the lining work.
See id. at 120. “Local 30 took the position that this work wa s covered by the Memorandum Agreement, and therefore that Gundle was contractually bound to hire Local 30’s workers.”

Id. When work began on the second project, Local 30 employees picketed the worksite

. Id.

in footnote five has achieved the status of law in the majority of the Courts of Appeals.28 In response, Gundle filed an unfair labor practice charge against Local 30, alleging that the union violated section 8(b)(4)(ii)(D) of the NLRA by picketing the worksite

. Id. Local 30, in turn, filed a grievance with the Joint Conference Board (“JCB”) pursuant to its CBA, alleging that
Gundle br eached the Memorandum Agreement by hiring
Local 172 for the second landfill project

. Id. In January, 1990, the JCB issued an award in Local 30’s favor, finding
that Gundle violated the Memorandum Agreement and was required to compensate Local 30 employee s. Id. Local 30 subsequently filed a section 301 lawsuit seeking to enforce
the JCB’s arbitration award. Id. In June, 1990, the NLRB “issued its 10(k) decision, awarding the disputed work to
Local 172.” Id. Local 30 continued to pursue its section 30 1 suit, and the NLRB petitioned under section 10(l) of the NLRA, 29 U.S.C. § 160(l), to temporarily enjoin the suit until
th e NLRB issued its decision resolving Gundle’s unfair labor practice charge. See id. at 121. The D istrict C ourt denied the petition for injunctive relief, and the NLRB appealed

. See id.

at 122.

We reviewed the Board’s appeal i n Gundle I

, where

we ultimately affirmed the D istrict C ourt’s denial of the Board’s petition for an injunction. See id. at 128. In so holding, w e explained that “[i]n a § 10(l) injunction proceeding, our standard of review involves three separate
determinations

– determinations that the district court must make before it may issue a § 10(l) injunction.” Id. at 123.

F irst, we reviewed de novo “the district court’s det ermination as to whether there [wa s ] a substantial legal theory explicit or implicit in the case that would support a finding that an unfai r labor practice had occurred.” Id. (internal quotation marks deleted). We concluded that the Board’s th eory that “the29 filing and prosecution of Local 30’s lawsuit is inherent ly
coercive

, because it brings pressure to bear on Gundle to reassign its linear installation work from Local 172 to Local
30 ” was “on its face ” sufficient to establish “a substantial a nd nonfrivolous legal theory on the basis of which Local 30’s § 301 enforcement lawsuit could possibly constitute an unfair labor practice.” Id. at 12 3

- 2 4.

H aving found that a substantial legal theory existed,
we then “appl[ied] a deferential standard of review ” to th e D istrict C ourt’s determination that the second requirement for injunctive relief

– a showing that the facts of the case fit the Board’s legal theory

– was not satisfied. Id

. at 123. We
concluded that the D istrict C ourt did not clearly err in finding
the Board “failed to demonstrate that the facts of th[e] case fit within [its] theory” that Local 30 was acting to coerce Gundle into reassigning the disputed work through its section 301 suit
and thus the suit was not enjoinable under the B ill Johnson’s “improper motivation” test. Id. at 124, 128 . We explained :

[I] f we were to hold that Local 30’s lawsuit necessarily constitutes improper coercion, we would be creating a rule under which an employer could unilaterally avoid a union contr act . . . Such a result does not reflect the intent of Congress in creating the mechanism of the 10(l) injunction, and we will not permit § 10(l) t o be abused in such a manner. There may well be
circumstances

– such as those30 described by the Supreme Court
in Bill Johnson’s

– in which a lawsuit is used improperly or coercively. This is not such a case, however, and the district court’s findings of fact on this issue are not clearly erroneous.

See id. at 125.

Finally, we reviewed the third factor that is considered in determining whether to grant injunctive relief pursuant to section 10(l): the D istrict C ourt’s “discretionary decision” to grant injunctive relie f upon finding that it is “the just and

proper remedy.” Id. at 123, 125 (internal quotation marks omitted). Reviewing for abuse of discretion, w e concluded
that “there [we re ] at least three reasons why the [ D istrict
C ourt’s] denial of in

junctive relief was proper .” Id. at 126.

First, the Congressional purpose behind the enactment of § 10(l) was not to enjoin legal action, but was rather to enjoin clear obstacles and impediments to business, such as strikes, pickets, and boycotts

. . . . Therefore, the district court, in focusing on the large objectives of the Act, correctly held that prosecuti on of
Local 30’s suit did not create the degree of harm necessary to justify an injunction

. . . . [Second,] [i]njunctive relief under31 10(l) is only a temporary measure

.

. . . Since Gundle would still risk a later revival of the lawsuit, any
incentive that Gundle presently
has to reassign the work to Local 30 so as to avoid double liability
would continue even if the injunction issued

. . . . Third, the substantive arguments that the
NLRB and Gundle raise before us
could all have been raised as a
defense in L ocal 30’s § 301 suit
which seeks to enforce the [JCB’s] decision in favor of Local
30

. . . . An injunction is thus not the only means by which the Board could achieve its objective

– and indeed . . . injunctions against the prosecution of a
lawsuit are a h ighly disfavored remedy.

Id. at 126

- 27 (internal quotation marks and citations deleted)

. We thus declined in Gundle I to disturb the D istrict C ourt’s denial of injunctive relief. Id. at 128.

On July 20, 1992 , the NLRB rendered its decision on
Gundle’s unfair labor practice charge, holding that Local 30 committed unfair labor practice s in violation of section 8(b)(4)(ii)(D) “ by picketing and maintaining its section 301
suit” after the Board’s section 10(k) order issued , and further ordering Local 30 to withdraw the suit

. See Gundle II , 1 F.3d
at 1422. Local 30 petitioned for review, and the Board cross

-32 petitioned for enforcement. See id. at 1420. We reviewed these petitions in Gundle II

, where we explained that the “[t]he crux of the issue . . . [was ] whether the arbitration
award for Local 30 is inconsistent with or contrary to the
Board’s assi gnment of the work to Local 172 ” such that Local
30’s suit to enforce the award constituted an unfair labor practice under Bill Johnson’s “illegal objective” e xception

. Id. at 142 7

.

We answered this question in the affirmative and expressly rejected Local 30’s argument that its section 301 suit was not contrary to the Board’s section 10(k) decision

because the suit did not seek the disputed work , but instea d sought to enforce an arbitration award for pay

- in

- lieu of work damages. See id. In so holding, we explained that “[t]he distinction Local 30 seeks to draw between seeking the work and seeking payment for the work is ephemeral.” Id

. We
relied on our r ationale in NLRB v. Local 1291, Int’l Longshoremen’s Ass’n , 368 F.2d 107 (3d Cir. 1966), cert. denied , 386 U.S. 1033 (1967) , that

t he valuable part of a right to a particular job is the right to be paid for it. Thus, a jurisdictional dispute between two groups of employees as to which is entitled
to certain work is in essence a dispute as to which shall receive compensation for that work. The opportunity sought to perform labor is significant only as a means of obtaining compensation.
It follows that i f workmen, who33 are entitled to a job under the terms of the labor contract, agree to forego the obligation of working but not the concomitant right to payment, they have not
di sclaimed any significant right.

Gundle II , 1 F.3d at 1427

- 28 (quoting Local 129 1 , 368 F.2d at 110). We emphasized that making a distinction between seeking the work from seeking damages for not receiving the
work would be inconsistent with Carey v. Westinghouse Elec. Corp. , 375 U.S. 261 (1964). T here

, the Supreme Court held
that a B oard’s ruling “take[s] precedence” over a conflicting
arbitration award. Gundle II , 1 F.3d at 1428 (quoting Carey

, 375 U.S. at 272)

. Finding that Local 30’s section 301 suit
conflicted with the Board’s prior section 10(k) award because it sought to enfor ce an arbitration award “to recover damages

for work awarded to another union

, ” we thus upheld “the Board’s interpretation of the Act to treat maintenance of the section 301 lawsuit to enforce an arbitration award against Gundle for pay

- in

- lieu of work as an unfair labor practice.”

Id. at 142 8

- 2 9.

Sheet Metal acknowledges that the majority of Courts of Appeals

, including our Court, have held that “ ‘ there is no material difference between seeking work and seeking payment in lieu of work

. ’” 19 (Sheet Meta l B . Br. 36) ( quoting

19 Since our decisions in the Gundle cases, the majority of our sister Courts of Appeals have likewise held
that a section 301 su it for damages or to enforce an arbitrator’s award of pay

- in

- lieu of work constitutes an unfair labor practice where the suit directly conflicts with a section34 Gundle II , 1 F.3d at 1427

- 28 ). But according to Sheet Metal,
Gundle II is not control ling because it does not involve a PLA
and is “inconsistent” with Gundle I

. (Sheet Metal B. Br. 37.) Sheet Metal thus urges this Court to hold tha t a section 301

10(k) determination by the Board. See, e.g.

, T. Equip. Corp.
v. Mass. Laborers’ Dist. Council

, 166 F.3d 11, 19 (1st Cir. 1999) (“We agree with the Third Circuit that there can be no logical distinction between ‘seeking the work and seeking payment for the work.’”) (citing Gundle II , 1 F.3d at 1427);

ILWU v. N.L.R.B. , 884 F.2d 1407, 1414 (D.C. Cir. 1 989) (“[I]f petitioners were entitled to assert contract claims against [a union the Board deemed entitled to disputed work in a section 10(k) proceeding], in contravention of the Board’s section 10(k) award, the very purpose of section 10(k)

– to authoriz e the Board to resolve the jurisdictional dispute

– would be totally frustrated . . . [W]hatever [a] union’s motivation and no matter how persuasive its contractual case, a union cannot force an employer to choose between a Board section 10(k) award and a squarely contrary contract claim.”); see also Small v. Operative Plasterers’ &
Cement Masons’ Int’l Ass’n Local 200 , 611 F.3d 483, 492

- 93 (9th Cir. 2010); UAW & its Local 1519 v. Rockwell Int’l Corp. , 619 F.2d 580, 585 (6th Cir. 1980). The Board, “whose

c onstruction of the Act is entitled to deference,” Gundle II , 1 F.3d at 1428, has similarly held that a section 301 suit that conflicts with a section 10(k) order constitutes an unfair labor practice under the NLRA. See, e.g.

, Sheet Metal , 357

N.L.R.B. No. 131, at *3; ILWU, Local 13 , 290 N.L.R.B. 616,
616

- 17 (1988), enf’d 884 F.3d at 1413

- 14; Local 32, ILWU

, 271 N.L.R.B. 759, 763 (1984), enf’d sub nom. ILWU, Local
32 v. Pac. Mar. Ass’n , 773 F.2d 1012 (9th Cir. 1985), cert. denied 476 U.S. 1158 (1986).35 suit for breach of contract damages is permissible, even in the face of a conflicting section 10(k) award by the Board, where it seeks merely damages, not the disputed work itself. The Board, for its part, argues that Sheet Metal’s positio n “is premised on a theory squarely rejected by this Court []

. . . in
Gundle [II]

. ” (Board Br. 21.) The Board concludes that,
under Gundle II and the Board’s own precedent, it “reasonably found that [Sheet Metal’s] lawsuit, seeking pay
for work that the Board awarded to the Carpenters, is incompatible with the Section 10(k) Determination, and therefore has an objective that is illegal under federal law.” (Board Br. 20 ) (citation omitted) (internal quotation marks omitted).

We agree with the Board that Gundle II controls the disposition of this appeal

. Gundle II is not, as Sheet Metal
suggest s , “inconsistent” with Gundle I merely because in the
latter we stated in dicta that “ ‘ we cannot agree with the NLRB that seeking enforcement of an arbitral award based on a breach of contract to assign work is identical to seeking the disputed work itself. ’ ” (Sheet Metal B. Br. 37 ) (quoting
Gundle I , 939 F.2d at 124 n.10 )

. We made this statement in the context of reviewing the D istrict C ourt’s conclusion that
the Board failed to satisfy second requirement for obtaining injuncti ve relief, i.e.

, demonstrating that the facts of the case supported the Board’s articulated legal theory that Local 30’s section 301 suit had an improper motivation and thus
constituted an u nfair labor practice

. See Gundle I , 939 F.2d at

124. In this procedural posture, we were required to “uphold the district court’s finding that Local 30’s § 301 suit was not improperly motivated unless that finding [wa s ] clearly
erroneous.” Id. at 125. In Gundle II , on the other hand, we

were required to defer to “ the Board’s interpretation of the36 Act to treat maintenance of the section 301 lawsuit to enforce an arbitration award against Gundle for pay

- in

- lieu of work as an unfair labor practice” so long as that interpretation was
reasonable. See 1 F.3d at 14 29. Thus, our seemingly
inconsistent statements in Gundle I and Gundle II as to the propriety of section 301 suits for breach of contract damages in the face of a conflicting 10(k) award are explain ed, in part, by the highly deferential standard s of review we appropriately applied in each case, standards which require d us to defer to the differing conclusions of the D istrict C ourt and Board

, respectively.

Moreover , as we pointed out in Gundle II

, the

statements in Gundle I concerning why Local 30’s section 301 suit for breach of contract damages did not satisfy the Bill
Johnson’s “improper motivation” test are “not controlling” in
cases such as Gundle II , where a party seeks to enjoin a
section 301 suit under the “illegal objective” exception

. Id. at 1429 n.13. The “improper motivation” and “illegal objective” tests require different showings in order to establish that the suit in question is enjoinable pursuant to section 8(b)(4)(ii)(D), and thus the Gundle I Court’s

statements concerning whether a section 301 suit for breach of contract damages satisfies the “improper motivation” test

are not dispositive in determining whether the same suit may alternatively be enjoined under the “illegal objecti ve” exception. 20 See Bill Johnson’s , 461 U.S. at 737 n.5, 744.

20 T he Gundle I Court never considered whether Local 30’s suit could have been enjoined under the “illegal objective” exception, nor should it have, for our charge in that case was solely to review the propriety of the District Court’s decision to deny the Boa rd’s petition for an injunction. As37 Furthermore, b ecause “a section 10(l ) proceeding is independent of the proceeding on the merits,” any “speculation” we expressed in Gundle I concerning Local 30’s ability to obtain contract damages against Gundle in the face of a contrary 10(k) decision by the Board “is not binding on us in the context of an appeal on the merits.” 21 Gundle II

, 1 F.3d at 1425 n. 9. Indeed, although in Gundle I we

discussed supra , the District Court concluded that the second requirement for injunctive relief was not satisfied because the
Board failed to show that the facts of the case satisfied the legal theory that the suit was enjoinable under the “improper
motivation” test proffered by the Board

. See Gundle I , 939
F.2d at 124

- 25. The Gundle I Court was only called upon to consider the “improper motivation” test and, except upon a finding of clear error, was required to defer to the District
Court’s conclusion that the facts of the case did not fit that legal theory. See id. at 123.

21 Sheet Metal also attempts to distinguish Gundle II on the ground that the section 301 suit at issue in that case was premised upon an alle ged breach of Local 30’s CBA, whereas Sheet Metal’s section 301 suit, in contrast, is predicated upon a purported breach of the PLA. However,
the PLA is a type of CBA, and thus we cannot agree that
Gundle II is distinguishable simply because it involved a
CBA rather than a PLA. See N.J.S.A. § 52:38

- 2 (“‘Project labor agreement’ means a form of pre

- hire collective bargaining agreement covering terms and conditions of a specific project.”); see also Phoenix Eng’g, Inc. v. MK

Ferguson of Oak Ridge Co. , 966 F. 2d 1513, 1518 (6th Cir. 1992).38 expressed doubt about the propriety of a sectio n 301 suit to
enforce an arbitration award where the Board has issued a section 10(k) order, we expressly left open the question of whether an arbitration award that conflicts with a 10(k) order of the Board is an unfair labor practice pursuant to section 8(b)(4)(ii)(D). See Gundle I , 939 F.2d at 124 n.10 (“We express no opinion, of course, on the merits of Local 30’s
enforcement action.” ). We answered this question in the
affirmative in Gundle II

, where, considering the merits of
Local 30’s section 301 s uit to enforce the arbitration award

, we held in no uncertain terms that a section 301 suit for breach of contract damages is identical to seeking the disputed work and is thus “coercive” for the purpos es of section 8(b)(4)(ii)(D). See Gundle II , 1 F.3d a t 1427

- 29.
Thus

, it is our more recent holding in Gundle II , rather than
our earlier dicta in Gundle I , that controls. See ACLU of N.J.
ex rel. Lander v. Schundler , 168 F.3d 92, 98 n.6 (3d Cir. 1999) (“[I]t is the tradition of this court that the holdin g of a panel in a reported opinion is binding on subsequent panels . .

. [ W] e have repeatedly held that dicta are not binding.”) (citation omitted) (internal quotation marks omitted).

Twenty years ago, we warned that “ i f a union is permitted to recover damages for work awarded to another union in a section 10(k) proceeding, the policy underlying section 8(b)(4)(ii)(D ) of protecting employers from the detrimental impact of jurisdictional disputes would be severely undermined.” Gundle II , 1 F.3d at 1428. As the Supreme Court explained in Carey , t he section 10(k) grievance procedure furthers the policies of the Act and effectuates Congress’ s intent in enacting the NLRA to “actively encourag e[] voluntary settlements of work assignment controversies between unions .” See 375 U.S. at39 266. The se policy concerns , which motivated our decision in
Gundle II

, are equally persuasive today

. Heeding the principles of stare deci si s that guide our jurisprudence, we thus hold, in accordance with our two decade

- old prec edent,
that the Board’s interpretation of the Act at issue here

– treating the pursuit of a lawsuit for pay

- in

- lieu of work in the
face of a contrary work assignment order of the Board as an unfair labor practice

– is a reasonable one

. See Morrow v.
Balas ki

, 719 F.3d 160, 182 ( 3d Cir. 2013 ) (en banc) (Smith, J., concurring) (“Absent . . . exceptional intervening developments , the essence of stare decisis is that the mere
existence of [our precedent] becomes a reason for adhering to [its] holding [] in subse quent cases.”) (citation omitted) (internal quotation marks omitted)

.

We take this opportunity to clarify , however, that our holding applies to suits for damages against the employer that made the disputed work assignment and thus becomes subject
to th e conflicting demands of section 301 suit for damages, on one hand, and the Board’s 10(k) order

, on the other. S ince
our decision in Gundle II , the Board and other Courts of Appeals have so distinguished between suits for contract damages against contract ors not responsible for making the disputed work assignment and suits against the assigning employer, declining to extend our holding in Gundle II to prohibit suits against the non

- assigning contractors

. See, e.g.

, Local Union 33, United Bhd. of Carpenter s & Joiners of Am.

, 289 N.L.R.B. 1482, 1484 (1988) ; Miron Constr. Co., Inc. v

. Int’l Union of Operating Eng’ rs, Local 139 , 44 F.3 d 558,
565

- 67 (7th Cir. 1995). We are persuaded by their reasoning. As the Seventh Circuit explained in Miron

,40 a union’s me re pursuit of its contractual remedies against the general contractor, absent a
demand that the subcontractor reassign the work, does not
amount to coercion in contravention of the § 10(k)
award. Since the subcontractor has complete control over which
uni on actually performs the work, maintenance of an action against the general contractor cannot be viewed as a veiled attempt to
force a reassignment of the work.
The element of coercion is what distinguishes [a suit against a general contractor] from [that at
issue in Gundle II

].

44 F.3d at 566; see also Advance Cast Stone Co. v. Bridge, Structural & Reinforcing Iron Workers, Local Union No. 1

, 376 F.3d 734, 742 (7th Cir. 2004) (explaining that a suit against the contractor who did not make the disputed wo rk assignment “ [ does ] not implicate the general principle that the NLRB’s § 10(k) determination takes precedence over an arbitrator’s award”).

W e therefore conclude that the Board’s interpretation of the Act as prohibiting mainten an ce of Sheet Metal’s
section 301 lawsuit to seek contract damages and enforce the Aiges arbitration award against Donnelly was not erroneous
as a matter of law. See Gundle II , 1 F.3d at 142 9

.41 Accordingly, we will deny Sheet Metal’s petition for review and grant the Board’s c ross

- petition for enforcement.

III. THE DISTRICT COURT’S ORDERS

Finally, we turn to the parties’ appeals from the
District Court’s orders denying Sambe ’s and Donnelly’s

motion s to vacate the Aiges arbitration award, and granting summary judgment in fav or of Sheet Metal on its breach of contract claims against Sambe and Donnelly

. The District Court had jurisdiction under section 301 of the LMRA, 29 U.S.C. § 185 (a) , and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

A.

Sambe and Donne lly first moved to vacate the Aiges
arbitration award pursuant to the Federal Arbitration Act, 9 U.S.C. § 10, in October, 2007. After the Board issued its section 10(k) order granting the disputed work to Carpenters, Donnelly filed a supplement to its cro ss

- motion to vacate, arguing that the section 10(k) decision precluded the District Court from granting Sheet Metal’s request to enforce the Aiges award and seeking vacatur of the award. On March 27, 2008, the District Cou rt denied the motions to vacate b ecause “it disagree[d] with the implied end of Donnelly’s position

– that there is no monetary remedy for [Sheet Metal] even if the PLA is valid and [Sambe and Donnelly] breached th at contract.” (D.C. J.A. 2 1 .) We exercise de novo review over a
district court’s denial of a motion to vacate an arbitration
award. See Dluhos v. Strasberg , 321 F.3d 365, 369 (3d Cir. 2003).42 We agree with Sambe and Donnelly that the District Court erred when it refused to vacate the Aiges award. It is
well

- established that where an arbitration award squarely conflicts with a later Board ruling, the arbitration award must yield to the Board’s decision. This principle derives from the Supreme Court’s decision in Carey v. Westinghouse Elec. Corp.

, 375 U.S. 261 (1964), where t he Court stated in dicta that “[s]hould the Board disagree with [an] arbiter . . . the Board’s ruling would, of course, take precedence ,” because “[t] he superior authority of the Board may be invoked at any
time.” Id. at 272. Relying upon the Supreme Cou rt’s dicta in Carey , the majority of the Courts of Appeals have since held that a section 10(k) award nullifies a contrary arbitration
award. See, e.g.

, Pac

. Mar

. Ass’n , 773 F.2d at 1021 (“T he policies underlying the supremacy doctrine, as enunciated by

t he Supreme Court in Carey and the overwhelming body of circuit and district court decisions, indicate that a section 10(k) decision must be given precedence over an arbitrator’s contrary decision.”); see also Teamsters Union Local No. 115 v. DeSoto, Inc.

, 725 F.2d 931, 936 (3d Cir. 1984); Local
1519 , 619 F.2d at 583; Local 7

- 210, Oil, Chemical & Atomic
Workers v. Union Tank Car Co. , 475 F.2d 194, 199 (7th Cir. 1973); New Orleans Typographical Union No. 17 v. N L R B

, 368 F.2d 755, 767 (5th Cir. 1966) . The app ropriate remedy, then, is to vacate the conflicting arbitration award. See T. Equip. Corp. , 166 F.3d at 19; see also Pac

. Mar

. Ass’n , 773
F.2d at 1020.

The Aiges arbitration award squarely conflicted with the Board’s section 10(k) decision by holding, contrary to the section 10(k) order, that Sheet Metal was entitl ed to the disputed work and by directing that the work be reassigned

“ to members of Sheet Metal Workers Local 27.” (D.C. J.A.43 296.) Thus, the District Court was required as a matter of law

t o vacate the Aiges award and erred by declin ing to do so. Accordingly, we will vacate the District Court’s order of March 27, 2008 and remand with directions to vacate the Aiges arbitration award.

B.

We turn next to Donnelly ’s , Sambe ’s , and Sheet
Metal ’s respective appeals from the District Court’s orders granting summary judgment in favor of Sheet Metal . We
review the District Court’s grant of summary judgment de

novo , “applying the same standard as the District Court.” Pa.
Coal Ass’n v. Babbitt , 63 F.3d 231, 236 (3d Cir. 1995). “This requires that we view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Id. Summary judgment is proper where no genuine dispute exists as to an y material fact, and the moving party is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(a).

1.

As to Donnelly’s appeal, affirmance of the Board’s decision and order of December 8, 2011 , compels reversal of
the District Court ’s entry of judgment in favor of Sheet Metal

. As we explained in Gundle III , it follows from our decision to enforce an order of the Board finding that a union committed an unfair labor practice by maintaining a section 301 suit that directly conflicts with a sect ion 10(k) award that the union “is prohibited from the continued maintenance of [its] section
301 suit.” 1 F.3d at 1430

. Accordingly, we will vacate the
orders of the D istrict C ourt granting summary judgment in44 favor of Sheet Metal and finding Donnelly l iable for breach of contract damages in the amount of $365,349.75

, and
remand with directions to enter judgment in favor or Donnelly

. See id. ; see also New Orleans Typographical

Union No. 17 , 368 F.2d at 76 8

.

2

.

Finally , we turn to Sambe ’s and Sheet Metal’s appeals from the District Court’s orders granting summary judgment
in favor of Sheet Metal on its breach of contract claim and awarding Sheet Metal nominal damages of $1.00

. To prevail on a breach of contract claim under New Jersey law, a plainti ff must establish three elements: (1) the existence of a valid contract between the parties; (2) failure of the defendant to perform its obligations under the contract; and (3) a causal relationship between the breach and the plaintiff ’s alleged damages. 22 See Coyle v. Englander's , 488 A.2d 1083, 1088 (N.J. Super. Ct. App. Div. 1985). The Supreme Court of New Jersey has instructed that “[w]here the terms of a contract are clear and unambiguous there is no room for interpretation or
construction and we must enforce those terms as written.”
Kutzin v. Pirnie , 591 A.2d 933, 936 (1991) (citation omitted) (internal quotation marks omitted) ; accord Tamarind Resort

Assocs

. v. Gov’t of V.I. , 138 F.3d 107, 110

- 11 (3d Cir. 1998) (“We have consistently embraced the ba sic common law principle that a contract is unambiguous if it is reasonably capable of only one construction.”). “We therefore will affirm a grant of summary judgment in a breach of contract action only where the contract is unambiguous and the

22 There is no dispute that New Jersey law governs the
contract claims herein.45 moving par ty is entitled to judgment as a matter of law.”

Tamarind Resort Assocs.

, 138 F.3d at 111.

In reviewing Sheet Metal’s motion for summary judgment, the District Court determined that only the first two
elements of the breach of contract claim were at is sue because
it was “ u ndisputed that [Sheet Metal] suffered damages from the assignment of the roofing work to another union.” Sheet
Metal I , 673 F. Supp. 2d at 319. The District Court held that
the second element was satisfied as a matter of law because the Aiges award finding that Sambe violated the PLA by assigning the work to Carpenters was entitled to preclusive
effect , and thus the District Court was boun d by that
conclusion. Id. at 322. T he District Court rejected Sambe’s argument that the Aiges a ward was not enforceable because it
conflicted with t he Board’s 10(k) determination. See id. at
320 n.10.

T he District Court alternatively held that

, even if the Aiges award did not have preclusive effect, “the undisputed
evidence demonstrates” that S ambe breached the PLA by failing to assure that Donnelly complied with the Agreement

, as required by Article 3, Section 1. 23 Id. at 322 n.16. The

23 Article 3, section 1 provides in pertinent part:

[T]he General Contractor shall require all Contractors of
whatever tier who have been

awar ded contracts for the work covered by this Agreement, to accept and be bound by the terms and conditions of this Project46 District Court determined, without further explanation, that “[a]lthough Samb e argues that it discharged its contractual duty by requiring Donnelly to execute the Letter of Assent, the PLA clearly required Sambe to ‘assure [Donnelly’s] compliance,’ which, it is undisputed, it did not do.” Id. The
District Court thus concluded that “ there is no genuine issue
of material fact as to whether Sambe

. . . failed to perform [its] PLA obligations,” and Sambe was liable for breach of
contract as a matter of law. Id.

Sambe challenges the District Court’s conclusion that the Aiges award was entitled to preclusive effec t and thus the
second element of Sheet Metal’s breach of contract claim was satisfied as a matter of law. According to Sambe, the Aiges award should not have been given preclusive effect because it conflicted with the Board’s section 10(k) order, and ther efore
it should have been vacated and could not have formed the
basis for Sambe’s breach of contract liability. We agree. For
the reasons discussed in part s II(B) and III(A) supra , the District Court was required to vacate the Aiges arbitration
award fol lowing the Board ’s section 10(k) decision, a nd committed reversible error by failing to do so.

Agreement by executing the Letter of Assent (Attachment A) prior to commencing work. The
General Contractor shall assure compliance wi th this Agreement by the Contractors.

(B. J.A. 103.)47 I t does not follow, however, that Sambe is absolved of contract liability under Gundle II

. Sambe acknowledges that
Gundle II does not apply to Sheet Metal’s suit against Sambe “in the same manner respecting Donnelly,” but urges this Court to apply Gundle II to find that Sheet Metal was prohibited from continuing its section 301 suit against both Donnelly and Sambe. (Sambe Combined Third Step Br. 33 .)

We w ill not do so . A s we explained in part II(B)

supra , there is a distinction between a breach of contract suit against the assigning employer and one against an employer with no authority to assign the disputed work . C ontrary to Sambe’s suggestion, this is a distinction with “relevance ” and
one that has significant “bearing up on the facts of the instant matter.” (Sambe Combined Third Step Br. 35.) As the general contractor on the Project, with no power to make or amend the disputed work assignment, Sambe was not subject

to the “conflicting demands ” of an order by the Board, on the one hand, or complying with an arbitration order contrary to a
decision of the Board , on the other

. See Local 33 , 289
N.L.R.B. at 1483

. T hus, we cannot agree with Sambe that th e District Court erred by refusing to find that Sheet Metal was prohibited from continuing its section 301 suit against Sambe after the Board’s 10(k) decision issued.

We do find , however, that the District Court erred in its alternative holding that eve n if the Aiges award did not have preclusive effect, summary judgment was w a rranted because there was “no genuine issue of material fact as to whether Sambe” failed to satisfy i ts obligation under Article 3, section 1 of assuring Donnelly ’s compliance with the PLA.
Sheet Metal I , 673 F. Supp. 2d at 322 n.16. First, a s Sambe points out, the word “assure” is “susceptible to more than one48 interpretation.” (Sambe D.C. First Step Br. 50 .) The phrase “assure compliance” could be interpreted as a guarantee tha t Sambe’s subcontractors would adhere to all terms of the PLA. But the phrase “assure compliance” may also reasonably be interpreted to mean that Sambe would procure its subcontractors’ assent to the PLA, thereby “assuring” that they, too, were bound by t he PLA’s terms. Because the phrase “assure compliance” is ambiguous, summary adjudication of the contract claim against Sambe was
foreclosed. See Tamarind Resort Assoc s

. , 138 F.3d at 111.

Furthermore, the District Court erred by finding that
there exis ted no genuine dispute of material fact concerning whether Sambe “assure[d]” Donnelly’s compliance with the

PLA sufficient to defeat Sheet Metal’s summary judgment

motion. See Sheet Metal I , 673 F. Supp. 2d at 322 n.16. T he
record conta in s evidence that Sambe notified Donnelly of Sheet Metal’s claim to the work after Donnelly assigned it to Carpenters, and further reflects that Sambe asked Donnelly to
resolve the claim. Donnelly then pursued its unfair labor practice charge that resulted in the assignmen t of the work to Carpenters. Thus, contrary to the District Court’s conclusion, it is not “undisputed” that Sambe failed to assure Donnel ly’s compliance with the PLA. See id. Rather, t here exi s ts a genuine dispute of material fact concerning to what ext ent, if at all, Sambe acted to ensure that Donnelly complied with the PLA’s hiring requirements, and thus whether Sambe satisfied its obligations under the PLA. Summary judgment was
therefore improper.

As such, we hold that although the District Cour t was not required to deny Sheet Metal’s summary judgment motion on its contract claim against Sambe on the ground that49 the suit impermissibly sought breach of contract damages
from the general contractor following a section 10(k) order of the Board, the D istrict Court erred in granting summary judgment for Sheet Metal because the contract provision at issue is ambiguous and, furthermore , there exists a triable issue of fact concerning whether Sambe satisfied its obligations under the PLA. Accordingly, we will vacate the
District Court’s orders granting summary judgment for Sheet
Metal and awarding it nominal damages of $1.00. See UPMC
Health Sys. v. Metro

. Life Ins. Co. , 391 F.3d 497, 504 (3d Cir. 2004).

IV

.

For the foregoing reasons, we will deny She et Metal’s petition for review of the District Court’s December 8, 2011
decision and order

, and grant the Board’s cross

- application
for enforcement . We will vacate the orders of the District Court with respect to Donnelly and remand with directions to

ent er judgment in favor of Donnelly. We will likewise vacate
the orders of the District Court with respect to Sambe and
remand for the District Court to address the issue of contract liability in accordance with this opinion.