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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 2003 Decided February 28, 2003

No. 01-1463

CAN–AM PLUMBING, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE

PLUMBING AND PIPEFITTING INDUSTRY OF THE

UNITED STATES AND CANADA, LOCAL 342, AFL–CIO,

INTERVENOR

On Petition for Review and Cross–Application for

Enforcement of an Order of the

National Labor Relations Board

Mark R. Thierman argued the cause for petitioner. With

him on the briefs was Michael Avakian.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Joan E. Hoyte–Hayes, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Charles Donnelly,

Supervisory Attorney.

John L. Anderson argued the cause and filed the brief for

intervenor.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL,

Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Can–Am Plumbing, Inc. (‘‘Can–

Am’’) petitions for review of the National Labor Relation

Board’s decision that Can–Am violated sections 7 and 8(a)(1)

of the National Labor Relations Act (‘‘the Act’’), 29 U.S.C.

§§ 157, 158(a)(1) (2000), by filing and maintaining a state

court lawsuit concerning a union’s job targeting program that

was preempted by the Act. Contrary to Can–Am’s view, BE

& K Construction Co. v. NLRB, 122 S. Ct. 2390 (2002), did

not extend the analytical framework of Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), to preempted

lawsuits. The Board’s determination that the job targeting

program was protected by section 7, notwithstanding the fact

that it was supported in part by dues unlawfully withheld on

federal public works projects under the Davis–Bacon Act,

fares less well. The Board’s conclusory findings that these

moneys did not taint the job targeting program are inadequate to support its determination that the operation of the

program as a whole was protected conduct under section 7.

Accordingly, we grant Can–Am’s petition, deny the Board’s

cross-petition for enforcement, and remand the case to the

Board.

I.

In a complaint filed in the Superior Court of California on

October 15, 1996, Can–Am, a nonunion construction contractor, alleged that L. J. Kruse Co., a union competitor, had

underbid Can–Am on the Ascend Corporate Campus project,
3

a private project. Can–Am claimed that Kruse’s lower bid

was the result of an unlawful arrangement between Kruse

and the United Association of Journeymen and Apprentices in

the Plumbing and Pipefitting Industry of the United States

and Canada, Local 342, AFL–CIO (‘‘the Union’’). Under the

arrangement challenged by Can–Am—commonly called a job

targeting program (‘‘JTP’’)—the Union uses a portion of its

members’ dues to subsidize Kruse’s bids on construction

projects in order to compete more effectively with nonunion

contractors. The mechanics of the JTP are straightforward.

On a particular construction project, a union employer such

as Kruse will submit a request to the Union to use the JTP

funds, which the Union collects from its members in the form

of dues on all of its projects. For a project to be eligible for

the JTP, Kruse must face competition from a nonunion

contractor for the job. If the Union approves the use of JTP

funds, Kruse takes the amount of the subsidy into account in

submitting its bid. If Kruse wins the project, it pays the

union employees the wages specified in the collective bargaining agreement, and the Union then uses JTP moneys to

reimburse Kruse for the difference between the wages under

the collective bargaining agreement and those listed in the

bid. Can–Am’s complaint alleged that Kruse’s acceptance of

the Union’s JTP moneys violates California laws regarding

unfair trade practices, prevailing wage levels, and employer

kickbacks from employees.

The Union, which was not a party to the lawsuit, responded

by filing a charge with the Board that Can–Am’s lawsuit

violates section 8(a)(1) of the Act because it interferes with

protected section 7 rights. The Board’s General Counsel

issued a complaint against Can–Am, and an Administrative

Law Judge (‘‘ALJ’’) determined after a hearing that Can–

Am’s state court lawsuit was preempted under the Board’s

decision in Manno Electric, 321 N.L.R.B. 278, 298 (1996),

enforced mem., 127 F.3d 34 (5th Cir. 1997), in which the

Board determined that the objectives of JTPs — ‘‘to protect

employees’ jobs and wage scales’’ — are protected by section

7. The ALJ concluded that ‘‘by maintaining and prosecuting’’

the preempted lawsuit against Kruse for accepting JTP con-
4

tributions from the Union, Can–Am had ‘‘engaged in unfair

labor practices affecting commerce within the meaning of

Section 8(a)(1)TTTT’’

The Board affirmed, rejecting Can–Am’s argument that

Kingston Constructors, 332 N.L.R.B. No. 161, 2000 WL

1920355 (2000), required a different result. In Kingston, the

Board reaffirmed its central holding in Manno Electric that

JTPs are clearly protected by section 7, but it further determined that a union may not lawfully support a JTP program

with dues exacted from employees working on ‘‘Davis–Bacon,’’ or federal prevailing wage, projects. 2000 WL 1920355,

at *14. The Board found Kingston to be inapplicable in this

case for two reasons. First, the Ascend project was not a

Davis–Bacon project, and there was no record evidence that

Kruse ever worked on a Davis–Bacon project. Second, the

amount of dues unlawfully withheld by the Union was de

minimis, because ‘‘at most’’ only two to three percent of the

moneys collected for the JTP came from federal or state

prevailing wage jobs, and those moneys were not directly

traceable to Kruse. Because Can–Am’s lawsuit ‘‘broadly

attack[ed] the entire [JTP] and Kruse’s participation in it as

unlawful under State law,’’ the Board concluded that it was

preempted by the Act from the time it was filed. The Board

ordered Can–Am to cease and desist from its unlawful conduct and affirmatively to seek dismissal of the state lawsuit,

reimburse Kruse with interest for its expenses, and post

copies of a remedial notice. Can–Am now petitions for

review, and the Board cross-petitions for enforcement of its

order.

II.

Section 8(a)(1) of the Act makes it unlawful for an employer

‘‘to interfere with, restrain, or coerce employees in the exercise of rights guaranteed’’ by section 7 of the Act. 29 U.S.C.

§ 158(a)(1). Section 7, in turn, protects the rights of employees to engage in union organization and ‘‘other concerted

activities for the purpose of collective bargaining or other

mutual aid or protectionTTTT’’ 29 U.S.C. § 157. In defining
5

the scope of protected activity, the Board must ensure that

the concerted activity is linked in some identifiable way to

legitimate employee concerns related to employment matters.

Eastex, Inc. v. NLRB, 437 U.S. 556, 565–68 (1978). The Act

thus protects a wide variety of conduct by employees directed

against employers other than their own. 29 U.S.C. § 152(3);

Eastex, 437 U.S. at 564. As determined by the Board,

protected employee conduct includes attempts to enhance

employment opportunities for unionized employees through

programs that lower labor costs for unionized employers.

See Manno Elec., 321 NLRB at 298.

Can–Am principally contends that under the doctrine of

Bill Johnson’s and BE & K Construction, its state court

lawsuit against Kruse did not violate section 8(a)(1) because

the only motive was to stop a competitor from using illegal

funding, whatever its source, to undercut Can–Am’s bidding

on a major construction project. It further contends that the

Union’s JTP is not entitled to section 7 protection because it

is contrary to public policy. The Board responds that its

findings and determinations were reasonable because the JTP

falls within the ‘‘other mutual aid or protection’’ clause of

section 7; consequently, the lawsuit seeking to dismantle the

JTP was not only preempted but also unlawful under section

8(a)(1) because it directly interfered with protected conduct.

Can–Am’s defense that the Union’s JTP is subject to the

restrictions of the Davis–Bacon Act and the California Labor

Code fails, in the Board’s view, because the Ascend project,

which involved no federal or state funding, was not subject to

those prevailing wage laws, and because the amount of JTP

funds originating from public works projects was de minimis.

‘‘Under the Supremacy Clause, U.S. Const. art. VI, cl. 2,

state law is preempted when Congress has acted to ‘occupy

the field,’ or when state law ‘stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.’ ’’ Washington Serv. Contractors Coalition

v. District of Columbia, 54 F.3d 811, 815 (D.C. Cir. 1995)

(citations omitted). The form of preemption pertinent

here — termed Garmon preemption — arises ‘‘[w]hen it is

clear or may fairly be assumed that the activities which a
6

State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice

under § 8TTTT’’ San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236, 244 (1959). In such instances, ‘‘due regard for

the federal enactment requires that state jurisdiction must

yield.’’ Id.; see also Brown v. Hotel & Rest. Employees &

Bartenders Int’l Union, 468 U.S. 491, 501 (1984). It is not

always clear, however, that the conduct at issue is protected

by section 7. Thus, ‘‘[w]hen an activity is arguably subject to

§ 7 or § 8 of the Act, the States as well as the federal courts

must defer to the exclusive competence of the National Labor

Relations Board if the danger of state interference with

national policy is to be averted.’’ Garmon, 359 U.S. at 245;

see also Quinn v. Digiulian, 739 F.2d 637, 642 (D.C. Cir.

1984).

The Supreme Court and the Board have added a gloss to

the category of ‘‘arguably protected activity’’ cases: ‘‘(1)

where arguably protected activity is involved, preemption

does not occur in the absence of Board involvement in the

matter, and (2) upon the Board’s involvement, a lawsuit

directed at arguably protected activity is preempted by Federal labor law.’’ Loehmann’s Plaza, 305 N.L.R.B. 663, 669

(1991) (citing Sears, Roebuck & Co. v. San Diego County

Dist. Council of Carpenters, 436 U.S. 180 (1978)), abrogated

on other grounds, Lechmere, Inc. v. NLRB, 502 U.S. 527

(1992). The Board in Loehmann’s Plaza explained that the

determination to become involved is made by the General

Counsel, who, before issuing a complaint, must conclude that

‘‘sufficient evidence has been presented to demonstrate a

prima facie case.’’ Loehmann’s Plaza, 305 N.L.R.B. at 670.

Thus, ‘‘if there is a pending state court lawsuit when a

complaint issues,’’ the lawsuit is preempted, and the respondent employer must take ‘‘affirmative action to stay the state

court proceeding within 7 days of the issuance of the complaint.’’ Id. at 671; see also Davis Supermarkets, Inc. v.

NLRB, 2 F.3d 1162, 1179 (D.C. Cir. 1993).

The courts ‘‘have traditionally accorded the Board deference with regard to its interpretation of the [Act] as long as

its interpretation is rational and consistent with the statute.’’
7

NLRB v. United Food & Commercial Workers Union, 484

U.S. 112, 123 (1987); see also Ford Motor Co. v. NLRB, 441

U.S. 488, 495 (1979). See generally Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 842–43 (1984); Int’l

Union of Painters & Allied Trades v. NLRB, 309 F.3d 1, 3

(D.C. Cir. 2002). This is true with respect to the phrase

‘‘other mutual aid or protection,’’ which, like other provisions

of the Act, is ‘‘hardly self-explanatory,’’ Rock-Tenn Co. v.

NLRB, 101 F.3d 1441, 1443 (D.C. Cir. 1996), and the Board’s

interpretation is therefore entitled to deference. See Epilepsy Found. v. NLRB, 268 F.3d 1095, 1099–1102 (D.C. Cir.

2001). The Board’s position is that section 7 includes in its

protection ‘‘group action designed to expand employment,’’

Respondent’s Br. at 14, and that the Union’s JTP constitutes

just such ‘‘group action.’’ The Board relies on its decision in

Manno Electric, which found that because JTPs’ objectives

‘‘are to protect employees’ jobs and wage scales,’’ they constitute ‘‘other mutual aid or protection’’ under section 7. 321

N.L.R.B. at 298. Thus, in Manno Electric, the Board concluded that a lawsuit challenging the validity of a JTP interferes with section 7 rights, ‘‘offends’’ section 8(a)(1), and is

preempted by the Act. Id. Reasoning from this precedent,

the Board concluded that the Union’s JTP is clearly protected

and that it was consequently unnecessary for the Board to

apply Loehmann’s Plaza’s approach for preemption of arguably protected conduct.

Can–Am’s objection to the Board’s conclusion that its filing

and maintenance of a state court lawsuit violated section

8(a)(1) has two prongs. First, Can–Am contends that its

conduct should be evaluated under the standards set forth in

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731

(1983), as explained in BE & K Construction Co. v. NLRB,

122 S. Ct. 2390 (2002). In Bill Johnson’s, the Supreme Court

considered a decision by the Board finding that an employer’s

prosecution of a civil suit against a union violated section

8(a)(1). The Court first noted that ‘‘the right of access to the

courts is an aspect of the First Amendment right to petition

the Government for redress of grievances’’ and stated that

courts ‘‘should be sensitive to these First Amendment values
8

in construing the NLRA’’ where state court suits are implicated. 461 U.S. at 741. The Court then explained that ‘‘the

filing of a meritorious law suit, even for a retaliatory motive,

is not an unfair labor practice.’’ Id. at 747. Rather, for a suit

to violate section 8(a)(1), it also must be baseless: ‘‘[r]etaliatory motive and lack of reasonable basis are both essential

prerequisites to the issuance of a cease-and-desist order

against a state suit.’’ Id. at 748–49. The Court observed

that ‘‘[w]hile the Board need not stay its hand if the plaintiff’s

position is plainly foreclosed as a matter of law,’’ it ‘‘should

allow such issues to be decided by the state tribunals if there

is any realistic chance that the plaintiff’s legal theory might

be adopted.’’ Id. at 746–47.

Can–Am contends that Bill Johnson’s is dispositive here

because the same First Amendment concerns are at stake.

For further support, Can–Am relies on BE & K, in which the

Supreme Court held that the Board may not find that a

completed, unsuccessful lawsuit constituted an unfair labor

practice where the suit was objectively reasonable and filed

with the purpose of receiving the relief requested, although

the Court left open the possibility that the Board might make

such a finding if the lawsuit was filed solely to impose

litigation costs and without regard for the outcome. 122 S.

Ct. at 2400. Can–Am maintains that BE & K’s holding

protects its lawsuit because Can–Am had a reasonable basis

for believing that the JTP was in violation of California law.

In other words, Can–Am reads BE & K as transferring to

preempted lawsuits Bill Johnson’s ‘‘baseless and retaliatory’’

standard.

As the Board correctly points out, however, Bill Johnson’s

and BE & K are not relevant here. In footnote 5 in Bill

Johnson’s, the Supreme Court carved out an exception for

preempted lawsuits:

It should be kept in mind that what is involved here is an

employer’s lawsuit that the federal law would not bar

except for its allegedly retaliatory motivation. We are

not dealing with a suit that is claimed to be beyond the

jurisdiction of the state courts because of federal-law
9

preemption, or a suit that has an objective that is illegal

under federal law. Petitioner concedes that the Board

may enjoin these latter types of suits. Nor could it be

successfully argued otherwiseTTTT

461 U.S. at 737 n.5 (citations omitted); see also NLRB v.

Nash–Finch Co., 404 U.S. 138, 144 (1971). Bill Johnson’s

thus places preempted lawsuits outside of the First Amendment analysis. Under this exception, the Board has consistently declined to apply the Bill Johnson’s analysis to lawsuits that were preempted by the Act. See Associated

Builders & Contractors, Inc., 331 N.L.R.B. No. 5, 2000 WL

641257, at *10 (2000); Manno Elec., 321 N.L.R.B. at 297;

Loehmann’s Plaza, 305 N.L.R.B. at 669. Similarly, as the

Board observes, BE & K did not affect the footnote 5

exemption in Bill Johnson’s; instead, the Court distinguished Bill Johnson’s and addressed ‘‘not the standard for

enjoining ongoing suits but the standard for declaring completed suits unlawful.’’ 122 S. Ct. at 2397. Thus, while Can–

Am invokes the language of prior restraint in challenging the

Board’s conclusion that it violated section 8(a)(1), the jurisdictional question of preemption is, as Bill Johnson’s acknowledged in footnote 5 (and BE & K did not disturb), a

different matter.

The second prong of Can–Am’s objection to the Board’s

conclusion that it violated section 8(a)(1) is based on record

evidence that the Union’s JTP includes dues from state and

federal public works projects. The Davis–Bacon Act, 40

U.S.C. § 276a(a) (2000), requires employers on federal public

projects to pay their employees at the prevailing wage set by

the Secretary of Labor, and it bars employees from refunding

any portion of those wages to the employer, ‘‘regardless of

any contractual relationship’’ between the parties. See Contractors and Subcontractors on Public Building or Public

Work Financed in Whole or in Part by Loans or Grants from

the United States, 29 C.F.R. pt. 3 (2002). California, like

many states, has enacted a similar ‘‘little Davis–Bacon Act’’

covering state public works projects. Cal. Labor Code

§§ 1771, 1773 (West 2002). See generally Herbert R.

Northrup & Augustus T. White, Subsidizing Contractors to
10

Gain Employment: Construction Union ‘‘Job Targeting,’’ 17

Berkeley J. Emp. & Lab. L. 62, 80–84 (1996). Can–Am

contends that because the Act does not protect JTPs that

offend public policy, and the Union’s JTP is contrary to both

federal and state Davis–Bacon laws, Can–Am’s lawsuit is not

preempted under Garmon.

It is undisputed that the Union operates its JTP solely to

foster employment opportunities for its members by ‘‘leveling

the playing field.’’ Although in Manno Electric the Board

did not explicitly state whether any of the funds used in the

JTP derived from federal public works projects, the decision

suggests that all of the projects involved were on private

sites, such as banks and department stores; the complaint did

not allege that any of the money originated from public

projects. 321 N.L.R.B. at 288, 296. Manno Electric would,

therefore, appear to be dispositive, at least in the absence of

Davis–Bacon moneys in the Union’s JTP. But Can–Am

points to a series of administrative and federal court decisions

holding that the Davis–Bacon Act bars wage deductions pursuant to a JTP on public work projects. See Int’l Bhd. of

Elec. Workers v. Brock, 68 F.3d 1194, 1200–02 (9th Cir. 1995);

In re Bldg. & Constr. Trades Unions Job Targeting Programs, Wage App. Bd. Case No. 90–02 (June 13, 1991),

affirmed sub nom. Bldg. & Constr. Trades Dep’t v. Reich, 815

F. Supp. 484 (D.D.C. 1993), aff’d, 40 F.3d 1275 (D.C. Cir.

1994). In Building & Construction Trades, for instance, this

court, finding an administrative decision to be a reasonable

interpretation of Davis–Bacon, observed that the Labor Department’s regulations reflect ‘‘an overarching concern that

deductions from the employee’s prevailing wage under the

Davis–Bacon Act do not benefit the employer directly or

indirectly.’’ Bldg. & Constr. Trades, 40 F.3d at 1281. The

Board subsequently adopted this position in Kingston Constructors, explaining that while it is clear that collecting JTP

dues ‘‘on non-Davis–Bacon jobs is not inimical to public

policy,’’ collecting the same dues on Davis–Bacon projects is

another matter. 2000 WL 1920355, at *8. The Board cited

the Labor Department and federal court decisions holding

that ‘‘the collection of dues for job targeting programs on
11

Davis–Bacon projects violates the Davis–Bacon Act.’’ Id. at

*13. Then, noting that it has ‘‘no institutional expertise or

authority with respect to the interpretation of Davis–Bacon,’’

the Board concluded that it was bound to defer to these

rulings. Id. at *14. It accordingly determined that the

mandatory payment of JTP dues as a condition of employment on Davis–Bacon projects is inimical to public policy. Id.

at *13.

Thus, under Board precedent, ordinarily a JTP is clearly

protected under section 7, notwithstanding state policy to the

contrary, unless it violates federal policy. Under this analysis, then, the presence of Davis–Bacon moneys in the Union’s

JTP means that Manno Electric is not as readily dispositive

as the Board suggests. The Board offers two responses in its

brief. First, it maintains that the cases on which Can–Am

relies are inapposite because the Ascend project was not a

Davis–Bacon project, and there is no evidence that Kruse has

ever worked on a Davis–Bacon Project. Even so, we fail to

see, in light of circuit precedent, how this renders Davis–

Bacon irrelevant. Although it may be somewhat ironic that

the Davis–Bacon Act, which was enacted to benefit laborers,

has been interpreted to bar them from benefitting themselves, see Bldg. & Constr. Trades, 40 F.3d at 1283 (Edwards,

C.J., dissenting), this circuit has rejected the view that Davis–

Bacon is confined to barring the use of deductions by the very

contractor or subcontractor who signed the paycheck. Id. at

1281. The Ninth Circuit, following suit in IBEW v. Brock,

has also held that Davis–Bacon bars unions from using dues

collected from wages on Davis–Bacon projects to benefit any

contractor, not just the specific contractor from whom the

wage rebate is derived. 68 F.3d at 1201. The Board’s

observations that the Ascend project was not a Davis–Bacon

job and that Kruse did not work on Davis–Bacon jobs are,

therefore, irrelevant.

Second, in further response to Kingston Constructors, the

Board relies on its finding that the amount of funds received

by the Union’s JTP from federal or state prevailing wage

projects — ‘‘at most only 2 to 3 percent’’ of the JTP moneys — was de minimis, and hence a too-slender reed on
12

which to rest state court jurisdiction. While the Board, then,

did not treat the existence of such moneys in the JTP as

wholly irrelevant, neither did it explain why the Davis–Bacon

moneys did not affect the JTP’s legality or why the Union’s

conduct in that regard was excusable. No court or administrative decision of the Board has yet defined precisely how

much Davis–Bacon money may flow into a JTP before the

program violates public policy. In the circumstances of this

case, the Board’s conclusory determination that these moneys

did not taint the JTP is inadequate to support its finding that

the operation of the Union’s JTP was clearly protected conduct.

Initially, we note, the record contains no information on

several relevant considerations. For example, nothing in the

record indicates whether the Union was continuing to withhold dues on Davis–Bacon projects at the time Kruse submitted its bid on the Ascend project. Were there such evidence,

the Union’s conduct would reflect a continued flouting of

public policy. Similarly, nothing in the record indicates

whether the two to three percent of unlawfully withheld dues

made the difference in Kruse’s success as the winning bidder

on the Ascend project. If that was the case, then the flouting

of public policy redounded to the Union’s benefit. Either

circumstance, presumably, could affect the Board’s determination of whether the Union’s JTP conduct is protected under

section 7.

Further, the Board did not explain why the Union’s conduct did not make a difference or is excusable. Instead, the

Board peremptorily dismissed the problem by finding that

the amount of Davis–Bacon dues was de minimis. The

Board has similarly treated minor violations of the Act as de

minimis, see, e.g., Jimmy Wakely Show, 202 N.L.R.B. 620,

621 (1973), but here it gave no hint of why the public policy

reflected in the Davis–Bacon Act is unworthy of more than a

cursory consideration. There are a number of problems with

this approach, not the least of which is that the Board, by its

own admission, ‘‘has no institutional expertise or authority

with respect to the interpretation of Davis–BaconTTTT’’

Kingston Constructors, 2000 WL 1920355, at *14. And the
13

Board has recognized that it is obligated to defer to other

tribunals where its jurisdiction under the Act collides with a

statute over which it has no expertise. Id.; see Hoffman

Plastic Compounds, Inc. v. NLRB, 122 S. Ct. 1275, 1280

(2002); New York Shipping Ass’n v. Fed. Mar. Comm’n, 854

F.2d 1338, 1365 (D.C. Cir. 1988).

As the Supreme Court has observed,

the Board has not been commissioned to effectuate the

policies of the [Act] so single-mindedly that it may wholly

ignore other and equally important Congressional objectives. Frequently the entire scope of Congressional

purpose calls for careful accommodation of one statutory

scheme to another, and it is not too much to demand of

an administrative body that it undertake this accommodation without excessive emphasis upon its immediate

task.

Southern S.S. Co. v. NLRB, 316 U.S. 31, 47 (1942). Thus,

where the policies of the Act conflict with another federal

statute, the Board cannot ignore the other statute; instead, it

‘‘must fully enforce the requirements of its own statute, but

must do so, insofar as possible, in a manner that minimizes

the impact of its actions on the policies of the other statute.’’

New York Shipping, 854 F.2d at 1367 (citing McLean Trucking Co. v. United States, 321 U.S. 67, 80 (1944)). The Board

made no effort to engage in this careful balancing of conflicting policies. The Board did not rely, for instance, on record

evidence that the Labor Department has announced that its

‘‘scarce resources to enforce the [Davis–Bacon] Act should

not be utilized where the relationship between the Davis–

Bacon deductions and the job targeting project is remote and

investigation would be highly resource-intensive.’’ Nor did

the Board consider that Can–Am’s complaint did not cite the

Davis–Bacon Act, but instead referenced California’s ‘‘little

Davis–Bacon Act,’’ the language of which does not precisely

parrot its federal counterpart. Cal. Labor Code §§ 1771,

1773 (West 2002). While these factors may not be dispositive,

they are among the considerations that the Board could be

expected to take into account.
14

Finally, in addtion to being cursory, the Board’s reasoning

rested upon a thin evidentiary basis. In testimony before the

Administrative Law Judge, a Union official estimated that the

Union does a ‘‘small amount’’ of federal prevailing wage

work — ‘‘[b]etween 1 and 2 percent at the very most’’ — and

that ‘‘[p]robably 2 percent’’ of the Union’s work is on ‘‘[v]ery

small’’ state prevailing wage jobs. Even assuming that there

was substantial evidence to support the Board’s finding that

the tainted money comprised only two to three percent of the

Union’s JTP fund and therefore was de minimis, the Board

treats the percentage amount as dispositive. This is not the

only way to view the matter. If there were many small

Davis–Bacon projects, or a few large ones over a number of

years, the denominator and numerator could produce vastly

different versions of the extent to which the Union flaunted

public policy. The Board never explains its choice. Moreover, having treated the tainted moneys as de minimis, the

Board provides no insight on how it views the burdens

regarding the sources of commingled funds. It appears from

the record that the Board views it sufficient for the General

Counsel to offer evidence estimating the amount of tainted

funds even when such estimation does not reflect the kind of

careful consideration that the Board must undertake when

treading in a realm beyond its expertise. See Hoffman

Plastic, 122 S. Ct. at 1280; Southern S.S. Co., 316 U.S. at 47;

New York Shipping, 854 F.2d at 1367. While such an approach may be appropriate to avoid Board oversight of union

JTP moneys, it is troubling in light of the fact that Can–Am is

left with no available means to redress its prevailing wage law

grievances if its lawsuit against Kruse is preempted. See

Sears, Roebuck & Co. v. San Diego County Dist. Council of

Carpenters, 436 U.S. 180, 202–03 & n.34 (1978).

Accordingly, we grant the petition, deny the cross petition

for enforcement of the Board’s Order, and remand the case to

the Board. On remand, additional evidence may show that

the Union stopped withholding Davis–Bacon dues at the time

Kruse submitted its bid on the Ascend project, or, indeed,

had stopped long before that time. Additional evidence may
15

also provide support for the Board’s conclusion that the

Union’s conduct is excusable or makes no difference to the

Board’s section 7 determination. Thus, the Board on remand

may yet determine that the JTP is protected under section 7.