#### DISTRICT COUNCIL OF IRON WORKERS OF THE STATE OF CALIFORNIA AND VICINITY, AFL-CIO, on behalf of itself, and on behalf of its affiliated Local Unions, Petitioner, v. SWINERTON & WALBERG, INC., Respondent.

No. C-89-4411 SAW.

United States District Court, N.D. California.

Dec. 10, 1990.

Sandra Rae Benson, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for petitioner.

John Skonberg, Littler, Mendelson, Fas-tiff & Tichy, San Francisco, Cal., for respondent.

MEMORANDUM AND ORDER

WEIGEL, District Judge.

The District Council of Iron Workers of the State of California and Vicinity (“Iron Workers”), sues pursuant to the Labor Management Relations Act § 301, 29 U.S.C. § 185, to compel arbitration of its labor dispute with respondent employer. In an order dated October 4, 1990, this Court entered summary judgment in favor of respondent, on the ground that an arbitrator’s award of “payment-in-lieu” damages against respondent — the relief sought by petitioner — would be inconsistent with the National Labor Relations Board’s (“NLRB”) assignment of the disputed work to a competing union, the Los Angeles County District Council of Carpenters (“Carpenters”).1 Pursuant to Federal Rule of Civil Procedure 59(e), petitioner moves the Court to alter, amend, or vacate its judgment.

In support of its motion, petitioner reiterates arguments rejected by the Court in its previous order. However, further discussion is merited because of petitioner's renewed heavy reliance upon certain subcontracting clause cases in which unions have been permitted to seek payment-in-lieu damages in the face of NLRB jurisdictional rulings.

Petitioner contends that since it does not seek a reassignment of work from the Carpenters to the Iron Workers, an award of damages by the arbitrator for the respondent’s alleged breach of the collective bargaining agreement would not be inconsistent with the NLRB’s award of the work to the Carpenters. Most courts have rejected this argument. In *International Longshoremen’s & Warehousemen’s Union, Local 32 v. Pacific Maritime Ass’n,*773 F.2d 1012, 1016 (9th Cir.1985), *cert. denied,*476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986), the Ninth Circuit refused to *345enforce an award of payment-in-lieu damages in favor of the union that had not been awarded the contested work by the NLRB in a 10(k) proceeding. The court reasoned that “the union’s attempt to obtain payment for work to which it is not entitled would, if successful, completely undermine the section 10(k) work assignment.” *Id.*at 1015. *Accord International Union of Operating Engineers Local 714 v. Sullivan Transfer, Inc.,*650 F.2d 669, 677 (5th Cir.1981); *International Union (UAW) v. Rockwell Int’l Corp.,*619 F.2d 580, 584 (6th Cir.1980).

The cases cited by petitioner in support of its payment-in-lieu claim are inapposite. Each involves an employer who had violated a union signatory subcontracting clause in the collective bargaining agreement between itself and the union by hiring a subcontractor who had no contract with the union. For example, in *Associated General Contractors, Inc. v. International Union of Operating Engineers Local 701,*529 F.2d 1395 (9th Cir.), *cert. denied,*429 U.S. 822, 97 S.Ct. 72, 50 L.Ed.2d 84 (1976), the Ninth Circuit permitted the petitioning union to seek damages from the employer for breach of the union signatory subcontracting clause.2 In *Pacific Maritime Ass’n,*the court found *Associated General Contractors*distinguishable because the arbitrator’s award to the union in that ease did not necessarily conflict with the NLRB’s work assignment. The employer in *Associated General Contractors*could simply have refused to subcontract with a nonsig-natory subcontractor and thereby complied with both the NLRB’s work assignment and the collective bargaining agreement. *Pacific Maritime Ass’n,*773 F.2d at 1017.

By contrast, in both the instant case and in *Pacific Maritime Ass’n,*the NLRB’s work assignment to the Carpenters was *unconditional,*and the duty to comply with that award ran to the general contractor — in this case, respondent Swinerton & Walberg. Regardless of the identity of the subcontractor, after the NLRB proceedings, the respondent *had*to assign the disputed work to the Carpenters. Even if respondent were to hire a *new*subcontractor who had a contract with Iron Workers, the NLRB ruling would nonetheless have compelled respondent to continue to enlist the Carpenters’ work, rather than that of the Iron Workers.

Hence an arbitration award of damages in favor of petitioner would place respondent “between the devil and the deep blue.” *Associated General Contractors,*529 F.2d at 1397 (citation omitted). If petitioner prevailed at arbitration, respondent would be “faced with the choice of violating an NLRB order or paying damages.” *See id.*Such a result would violate congressional intent by penalizing respondent for complying with the NLRB’s work assignment. The supremacy doctrine mandates that this Court refuse to order arbitration of a claim inconsistent with the NLRB’s Section 10(k) work assignment.

Aside from the conflict inherent in the monetary relief sought by petitioner at arbitration and the NLRB work assignment, petitioner contorts the history of this ease in its attempt to transform it into a subcontracting clause dispute. The fact of the matter is that the grievance for which petitioner seeks arbitration alleges violation of Section 30(C) of the collective bargaining agreement — the “jurisdictional disputes” section of the contract. The grievance makes no mention of an alleged violation of the subcontracting clause of the contract. Similarly, Iron Workers’ petition to compel arbitration makes no claim that respondent breached the agreement’s subcontracting clause by hiring Industrial Noise Corp., a nonsignatory subcontractor.

Finally, petitioner’s continued reliance on the Ninth Circuit’s recent decision in *Van Waters & Rogers Inc. v. International Brotherhood of Teamsters Local Union 70,*913 F.2d 736 (9th Cir.1990) is misplaced. In *Van Waters,*there was no prior NLRB ruling with which the upheld arbitration award could conflict. In fact, the court *346drew a careful distinction between those instances in which it is contended that an arbitration award is invalid because “repugnant to the NLRA,” as in *Van Waters,*and those in which it is contended that an award is void because inconsistent with a prior NLRB ruling. *Id.*at 743 n. 1.

Finally, petitioner’s continued reliance on the Ninth Circuit’s recent decision in *Van Waters & Rogers Inc. v. International Brotherhood of Teamsters Local Union 70,*913 F.2d 736 (9th Cir.1990) is misplaced. In *Van Waters,*there was no prior NLRB ruling with which the upheld arbitration award could conflict. In fact, the court drew a careful distinction between those instances in which it is contended that an arbitration award is invalid because “repugnant to the NLRA,” as in *Van Waters,*and those in which it is contended that an award is void because inconsistent with a prior NLRB ruling. *Id.*at 743 n. 1.

Accordingly,

IT IS HEREBY ORDERED that petitioner’s motion to alter, amend, or vacate the Court’s October 4, 1990 judgment is DENIED.

1

. The NLRB made this work assignment pursuant to Section 10(k) of the National Labor Relations Act. Its proceedings in this jurisdictional dispute are covered in *International Ass’n of Bridge, Structural & Ornamental Iron Workers Local 433,*298 N.L.R.B. No. 52 (1990).

2

. *See also International Ass’n of Bridge, Structural & Ornamental Iron Workers, Local 3 (Spancrete Northeast),*298 N.L.R.B. No. 114 (1990); *Building, Concrete, Excavating & Common Laborers Local 731 (Slattery Associates),*298 N.L.R.B. No. 111 (1990).