2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-13-2013

Sheet Metal Workers Intl Assn v. E.P. Donnelly, Inc

Precedential or Non-Precedential: Precedential

Docket No. 10-2201

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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. 10-2202

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. Bumb 

 
2

____________

11-4480

____________

SHEET METAL WORKERS INTERNATIONAL 

ASSOCIATION LOCAL UNION NO. 27, AFL-CIO,

 Petitioner

v.

NATIONAL LABOR RELATIONS BOARD; UNITED 

BROTHERHOOD OF CARPENTERS AND JOINERS

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 BROTHERHOOD OF CARPENTERS AND 

JOINERS OF AMERICA, LOCAL UNION NO. 623,

Respondents
3

___________ 

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)

Steven 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 19151
4

Marc Furman, Esq. 

Jonathan Landesman, Esq. (ARGUED)

Cohen, Seglias, Pallas, Greenhall & Furman

30 South 17th Street

19th Floor

Philadelphia, 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 Relations 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 metal 
5

workers or by carpenters. Sheet Metal Workers’ International 

Association, Local 27, AFL-CIO (“Sheet Metal”) petitions 

this Court for review of the decision and order of the National 

Labor Relations Board (“the Board” or “NLRB”) of 

December 8, 2011, finding that Sheet Metal violated the 

National Labor Relations Act by maintaining a section 301 

suit against E.P. Donnelly, Inc. (“Donnelly”) and Sambe

Construction Company, Inc. (“Sambe”) following the Board’s 

decision in a section 10(k) proceeding to assign the disputed

work to the New Jersey Regional Council of Carpenters and 

the United States Brotherhood of Carpenters and Joiners of 

America, Local 623 (“Carpenters”). The Board crosspetitions for enforcement of its order. Also before this Court 

are three appeals from orders of the District Court entered in 

connection with the jurisdictional labor dispute. Donnelly 

appeals from an order of the District Court granting summary 

judgment in favor of Sheet Metal on its breach of contract 

claim and awarding Sheet Metal $365,349.75 in 

compensatory damages. 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 petition for review; grant the 

Board’s petition for enforcement of its December 8, 2011 

decision and order; 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 HISTORY
6

In 2006, Egg Harbor Township, located in Atlantic 

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 Township adopted a project labor agreement 

(“the PLA” or “Agreement”), which governed the terms and 

conditions of the Project’s construction.1 All contractors 

working on the Project were required to become signatories to 

 

1

 New Jersey law authorizes public 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 

agreement 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 statute 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 

working 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 otherwise 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 general contractor 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, Donnelly executed a letter of assent in which it 

consented 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 Carpenters 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 bargaining 

agreement (“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 awarding 
8

the PLA, protested 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. Although Donnelly created conflicting 

contractual obligations by assenting to both the Carpenters’ 

CBA and the PLA, it refused to reassign 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 submitted 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 On June 15, 

2007, Arbitrator 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 

would picket the Project if the work were assigned to Sheet 

Metal. Donnelly 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 Carpenters & 

 

4

 Carpenters did, however, submit a letter 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 practice charge against 

Carpenters was pending, Sheet Metal filed a grievance against 

 

(D) forcing or requiring any 

employer to assign particular 

work to employees in a particular 

labor organization or in a 

particular trade, craft, or class 

rather than to employees in 

another labor organization or in 

another trade, craft, or class . . . .

29 U.S.C. § 158(b)(4)(ii)(D) (2012).

7 Under section 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 

unfair 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 

assigned 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, Sheet Metal filed 

suit against Donnelly and Carpenters in the United States 

District Court for the District of New Jersey pursuant to 

section 301 of the 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 employers: “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 Join 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 affecting 
12

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 claim 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 No. 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 

economy 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 January 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 motions to vacate 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

decision 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 that 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 

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

was an unfair labor practice in violation of section 

8(b)(4)(ii)(D) of the 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 aspect 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 ordered the appeal be deferred 

pending disposition of these consolidated appeals. See

Moore-Duncan v. Sheet Metal Workers’ Int’l Ass’n Local 
14

29, 2008, an administrative law judge (“the ALJ”) found that 

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 filed exceptions and a 

supporting brief.

On June 25, 2008, after the Project was completed, 

Sheet Metal filed a second amended complaint in its section 

301 action. Sheet Metal no longer requested reassignment of 

the Project work, but instead sought monetary 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, the 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 the 

District Court granted summary judgment in favor of Sheet 

Metal on the breach of contract claims, finding that both 

 

Union 27, No. 08-4437 (3d Cir. May 31, 2012) (order 

deferring disposition). 

13

 Sheet Metal does not appeal this portion 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 Sheet 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 Court 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 of section 8(b)(4)(ii)(D) because it 

“directly 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 Metal] withdraw its lawsuit 

against Donnelly in its entirety.” Id. However, the Board 

reversed the ALJ’s decision with respect to Sambe, finding 

that Sheet Metal’s claim against Sambe, the general 

contractor, 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 crosspetition for enforcement. 

II. THE BOARD’S DECEMBER 8, 2011 DECISION 

AND ORDER
16

We have jurisdiction to review a decision and order of 

the Board pursuant to section 10 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 supported by 

substantial evidence on the record as a whole.” Local 30, 

United Slate, Tile & Composition Roofers 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 795, 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 

unenforceable. 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 was 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 violations 

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 believe 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 whether there is 

reasonable cause to believe that 

(1) a union has used a proscribed 
18

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 & Constr. Inc. v. NLRB, 424 F.3d 980, 988 

(9th Cir. 2005). Once the Board determines that these three 

requirements are met, it “will award the disputed 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 disputed here. Sheet 

Metal contends that the PLA dispute-resolution 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 the 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 jurisdictional 

disputes, the Board will decline 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 expressed 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 Metal, 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 agreedupon method of dispute resolution existed because the PLA 

contained such a mechanism, reasoning that Carpenters was 

not a signatory to the PLA “and therefore is not bound to its 

dispute-resolution procedure” set forth in Article 10. Id. The 

Board thus concluded that “there [wa]s no agreed-upon 

voluntary method to adjust the dispute,” and therefore the

“dispute [was] properly before [it] for determination under 

Section 10(k).” Id. 

It 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 working on the public works 

project . . . .” Sheet Metal argues that Carpenters was also 

party to the PLA pursuant 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 any 
20

subcontractor performing work on 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 term of this Agreement, 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 consent of the parties,” B. J.A. 33,

and no evidence was offered showing that Carpenters 

consented 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 equitable 
21

Furthermore, the case law Sheet Metal cites in support 

of its position that an agreed-upon dispute resolution 

mechanism existed actually counsels 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, 

notwithstanding 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 forums for resolving 

the disputes” among the parties. Id. at 1254. The 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 alone 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 

resolution 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 before 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 exists 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 II, 1 F.3d at 1425, we 

hold that the Board’s finding that there existed no agreedupon voluntary dispute resolution mechanism is supported 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 three 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 agreedupon 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 satisfied. Id. at 

918.
23

Motor Co., 441 U.S. at 497 (citation omitted) (internal 

quotation marks omitted). The Board properly exercised 

jurisdiction pursuant to section 10(k) when it issued 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. The Board’s 

petition to enforce the December 8, 2011 order cannot be 

denied on that ground. 

B.

Sheet Metal argues in the alternative that even if 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) determination 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 the 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 [Restaurants, 

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 Board 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 than the disputed work itself, was “the 

same as the first amended complaint’s request that Donnelly 

pay damages for assigning the work to employees represented 

by [Carpenters],” and thus Sheet Metal’s attempt to 

distinguish its suit from one for pay-in-lieu of work was a 

“distinction without a difference.” Id. The Board also 
25

reversed the ALJ’s finding that Sheet Metal was entitled to a 

declaratory judgment validating the Aiges arbitration award, 

because, “[i]f granted, a declaration validating the finding that 

Donnelly breached the PLA by assigning the work to the 

Carpenters-represented employees would also directly 

conflict with the 10(k) award.” 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 did 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 was 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 Br. 33.) 

We address this argument in Part III(B) infra, in our 
26

whether the Board’s finding rests on a reasonable 

interpretation of the 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 representing 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) in 

certain circumstances. In Bill Johnson’s Restaurants, 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 id. 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 Roofers, 939 F.2d 118, 122 (3d Cir. 

1991) (“Gundle I”); see Bill Johnson’s, 461 U.S. at 744. The 

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 737 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, 612 (3d Cir. 2000). Moreover, as 

discussed infra, the “illegal objective” exception articulated 
27

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 

enjoinable 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 Lining Construction 

Corporation, and two unions, 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 the 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 was 

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 breached 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 employees. 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 301 

suit, and the NLRB petitioned under section 10(l) of the 

NLRA, 29 U.S.C. § 160(l), to temporarily enjoin the suit until 

the NLRB issued its decision resolving Gundle’s unfair labor 

practice charge. See id. at 121. The District Court denied the 

petition for injunctive relief, and the NLRB appealed. See id. 

at 122. 

We reviewed the Board’s appeal in Gundle I, where 

we ultimately affirmed the District Court’s denial of the 

Board’s petition for an injunction. See id. at 128. In so 

holding, we 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. 

First, we reviewed de novo “the district court’s determination 

as to whether there [was] a substantial legal theory explicit or 

implicit in the case that would support a finding that an unfair 

labor practice had occurred.” Id. (internal quotation marks 

deleted). We concluded that the Board’s theory that “the 
29

filing and prosecution of Local 30’s lawsuit is inherently 

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 and 

nonfrivolous legal theory on the basis of which Local 30’s § 

301 enforcement lawsuit could possibly constitute an unfair 

labor practice.” Id. at 123-24. 

Having found that a substantial legal theory existed, 

we then “appl[ied] a deferential standard of review” to the 

District Court’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 District Court 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 Bill 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 contract 

. . . 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) to be abused in such a 

manner. There may well be 

circumstances – such as those 
30

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 District Court’s “discretionary decision” to 

grant injunctive relief upon finding that it is “the just and 

proper remedy.” Id. at 123, 125 (internal quotation marks 

omitted). Reviewing for abuse of discretion, we concluded 

that “there [were] at least three reasons why the [District 

Court’s] denial of injunctive 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 prosecution of 

Local 30’s suit did not create the 

degree of harm necessary to 

justify an injunction. . . . 

[Second,] [i]njunctive relief under 
31

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 Local 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 highly disfavored 

remedy.

Id. at 126-27 (internal quotation marks and citations deleted).

We thus declined in Gundle I to disturb the District Court’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 practices 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 assignment 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” exception. 

Id. at 1427. 

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 instead 

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 rationale 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

the 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 if workmen, who 
33

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 

disclaimed any significant right.

Gundle II, 1 F.3d at 1427-28 (quoting Local 1291, 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). There, the Supreme Court held 

that a Board’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 enforce 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 1428-29. 

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 Metal 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 suit 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 section 
34

Gundle II, 1 F.3d at 1427-28). But according to Sheet Metal, 

Gundle II is not controlling 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 that 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. 1989) 

(“[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 authorize 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 

construction 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 position “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 

suggests, “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 District Court’s conclusion that 

the Board failed to satisfy second requirement for obtaining 

injunctive 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 unfair 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 [was] clearly 

erroneous.” Id. at 125. In Gundle II, on the other hand, we 

were required to defer to “the Board’s interpretation of the 
36

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 1429. 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 explained, in part, 

by the highly deferential standards of review we appropriately 

applied in each case, standards which required us to defer to 

the differing conclusions of the District Court 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 objective” 

exception.20 See Bill Johnson’s, 461 U.S. at 737 n.5, 744.

 

20

 The 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 Board’s petition for an injunction. As 
37

Furthermore, because “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 alleged 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. MKFerguson of Oak Ridge Co., 966 F.2d 1513, 1518 (6th Cir. 

1992).
38

expressed doubt about the propriety of a section 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 suit 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 purposes of 

section 8(b)(4)(ii)(D). See Gundle II, 1 F.3d at 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 holding 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 “if 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, the section 10(k) 

grievance procedure furthers the policies of the Act and 

effectuates Congress’s intent in enacting the NLRA to

“actively encourage[] voluntary settlements of work 

assignment controversies between unions.” See 375 U.S. at 
39

266. These policy concerns, which motivated our decision in 

Gundle II, are equally persuasive today. Heeding the 

principles of stare decisis that guide our jurisprudence, we 

thus hold, in accordance with our two decade-old precedent, 

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. 

Balaski, 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 subsequent 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 the conflicting demands of section 301 suit for damages, on 

one hand, and the Board’s 10(k) order, on the other. Since 

our decision in Gundle II, the Board and other Courts of 

Appeals have so distinguished between suits for contract 

damages against contractors 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 Carpenters & 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.3d 558, 

565-67 (7th Cir. 1995). We are persuaded by their reasoning. 

As the Seventh Circuit explained in Miron, 
40

a union’s mere 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 

union 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 work 

assignment “[does] not implicate the general principle that the 

NLRB’s § 10(k) determination takes precedence over an 

arbitrator’s award”). 

We therefore conclude that the Board’s interpretation 

of the Act as prohibiting maintenance 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 1429. 
41

Accordingly, we will deny Sheet Metal’s petition for review 

and grant the Board’s cross-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 

motions to vacate the Aiges arbitration award, and granting 

summary judgment in favor 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 Donnelly 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 cross-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 Court denied the motions to vacate because 

“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 that

contract.” (D.C. J.A. 21.) 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 the 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 Court’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 (“The 

policies underlying the supremacy doctrine, as enunciated by 

the 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. NLRB, 

368 F.2d 755, 767 (5th Cir. 1966). The appropriate 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 entitled 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 

to vacate the Aiges award and erred by declining 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 any 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 section 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 District Court granting summary judgment in 
44

favor of Sheet Metal and finding Donnelly liable 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 768. 

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 

plaintiff 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 basic 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 party 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 issue because 

it was “undisputed 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 bound by that 

conclusion. Id. at 322. The District Court rejected Sambe’s 

argument that the Aiges award was not enforceable because it 

conflicted with the Board’s 10(k) determination. See id. at 

320 n.10. 

The District Court alternatively held that, even if the 

Aiges award did not have preclusive effect, “the undisputed 

evidence demonstrates” that Sambe 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 

awarded contracts for the work 

covered by this Agreement, to 

accept and be bound by the terms 

and conditions of this Project 
46

District Court determined, without further explanation, that 

“[a]lthough Sambe 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 effect 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 therefore

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 parts II(B) and III(A) supra, the 

District Court was required to vacate the Aiges arbitration 

award following the Board’s section 10(k) decision, and 

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 with this Agreement 

by the Contractors. 

(B. J.A. 103.)
47

It 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 will not do so. As 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. Contrary to 

Sambe’s suggestion, this is a distinction with “relevance” and 

one that has significant “bearing upon 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. Thus, we cannot agree with Sambe that the 

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 even if the Aiges award did not 

have preclusive effect, summary judgment was warranted 

because there was “no genuine issue of material fact as to 

whether Sambe” failed to satisfy its 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, as Sambe 

points out, the word “assure” is “susceptible to more than one 
48

interpretation.” (Sambe D.C. First Step Br. 50.) The phrase 

“assure compliance” could be interpreted as a guarantee that 

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 the PLA’s terms. Because the 

phrase “assure compliance” is ambiguous, summary 

adjudication of the contract claim against Sambe was 

foreclosed. See Tamarind Resort Assocs., 138 F.3d at 111.

Furthermore, the District Court erred by finding that 

there existed 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. The 

record contains 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 assignment of the work to 

Carpenters. Thus, contrary to the District Court’s conclusion, 

it is not “undisputed” that Sambe failed to assure Donnelly’s 

compliance with the PLA. See id. Rather, there exists a 

genuine dispute of material fact concerning to what extent, 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 Court was 

not required to deny Sheet Metal’s summary judgment 

motion on its contract claim against Sambe on the ground that 
49

the suit impermissibly sought breach of contract damages 

from the general contractor following a section 10(k) order of 

the Board, the District 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 Sheet 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

enter 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.