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Moore-Duncan v. Sheet Metal Workers' International Association

September 2, 2008


The opinion of the court was delivered by: Bumb, United States District Judge


This matter comes before the Court upon the Plaintiff's, Dorothy L. Moore-Duncan, Regional Director of the Fourth Region of the National Labor Relations Board ("NLRB," "the Board," or "Petitioner"), petition for relief under Section 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l) (the "Act"). The Defendant, the Sheet Metal Workers International Association, Local 27, AFL-CIO ("Sheet Metal" or "Local 27") is the plaintiff in a related case pending before this Court, Sheet Metal Workers International Association, Local Union 27, AFL-CIO v. E.P. Donnelly, Inc., et al, Civil Action No. 07-3023 (RMB) (the "Sheet Metal Workers' Action"). In its petition, the Petitioner seeks to enjoin Sheet Metal from pursuing its case against one of the defendants in the Sheet Metal Workers' Action, E.P. Donnelly, Inc., ("Donnelly"). The Board argues that because Donnelly has filed an unfair labor charge under section 8(b)(4)(ii)(D) of the Act arising from Sheet Metal's continued prosecution of its case against Donnelly, Sheet Metal's case against Donnelly must be stayed until the Board acts on Donnelly's charge. The Board argues there is reasonable cause to believe that Sheet Metal has violated and is continuing to violate section 8(b)(4)(ii)(D) by continuing the Sheet Metal Action against Donnelly and thus, a partial stay should issue.


The facts and procedural history of the Sheet Metal Workers'

Action have been set forth by this Court in an Opinion filed March 27, 2008. (See Docket Entry No. 60, Civil Action No. 07-3023). For the ease of the parties, they are recited below.

1. Sheet Metal Workers' Action

The Sheet Metal Workers' Action involves a dispute regarding the construction of the Egg Harbor Township Community Center (the "Community Center"). The Community Center was to be constructed pursuant to the provisions of a Project Labor Agreement ("PLA") established pursuant to N.J. Stat. Ann. § 52:38-1 et seq. Egg Harbor Township ("Egg Harbor"), the owner of the Community Center, required that any party who desired to work on the Community Center had to execute the PLA. As the township administrator for Egg Harbor has explained, the purpose of entering into the PLA was to ensure the project was union-built and to provide for efficiency, safety, quality, construction, and the timely completion of the building. (See PLA, Ex. A to Complaint [Case No. 1:07-cv-3023 (RMB) [Docket No. 1]].)

Pursuant to Article 2, Section 4 of the PLA, together with the local Collective Bargaining Agreements appended hereto as Schedule A represents the complete understanding of all signatories and supersedes 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 Defendants deny that Local 27's Collective Bargaining Agreement ("CBA") was appended to Schedule A and also deny that they assented to that CBA.

Sambe Construction Company ("Sambe") was the general contractor on the Community Center and, as required by Egg Harbor, a signatory to the PLA. On March 30, 2007, Sambe subcontracted the work of installing prefabricated standing seam metal roofing, soffit, fascia, and related trim to Donnelly. Donnelly, as required by Egg Harbor, signed a letter of assent (the "Letter of Assent") binding it to the terms and conditions of the PLA. Specifically, in signing the Letter of Assent, Donnelly agreed that any party it selected to perform the standing seam metal roofing work was required to be a signatory to the PLA as well. The Letter of Assent provided, in relevant part, that,

[Donnelly], for and in consideration of the award of a Contract to perform work on [the] Project, and in further consideration of the mutual promises made in the Project Labor Agreement, a copy of which was received and is acknowledged, hereby:

Agrees to secure from any Contractor(s) (as defined in said Project Labor Agreement) which is or becomes a Subcontractor(s) (of any tier), a duly executed Letter of Assent in form identical to this document prior to commencement of any work.

Contrary to the express terms of the Letter of Assent it executed, Donnelly assigned the foregoing work to the United Brotherhood of Carpenters and Joiners of America, Local Union No. 623 ("Local 623"). (Donnelly had a collective bargaining agreement with Local 623.) Local 623 was not a signatory to the PLA and, indeed, refused to execute the PLA.

A few days later, Sheet Metal/Local 27 invoked the PLA's provisions for settling jurisdictional disputes. Local 27 claimed a right to the roofing work because it, unlike Local 623, was a signatory to the PLA. Local 623 also claimed a right to the work because it had a collective bargaining agreement with Donnelly. Moreover, Local 623 threatened to picket the Community Center if the work was reassigned by Donnelly to Local 27.

Local 27, believing that it was following the express terms of the PLA regarding jurisdictional disputes, (set forth in Article 10), scheduled an arbitration hearing before arbitrator Stanley Aiges to be held on June 5, 2007, in order to resolve the dispute over the work assignment. At or about the same time, Donnelly filed an unfair labor practice charge with the Board against Local 623. This dispute gave rise to a jurisdictional dispute between two parties and gave the Board jurisdiction to hear the case pursuant to section 10(k) of the Act.

On June 1, 2007, counsel for Local 623 sent Arbitrator Aiges a letter informing him of its position that the PLA does not conform with federal or New Jersey law. Local 623 declined an invitation to participate in the arbitration hearing.

Following the hearing, at which Sheet Metal, Donnelly and Sambe - but not Local 623 - were present, Arbitrator Aiges awarded the disputed work to Local 27 citing "area practice." More specifically, Aiges found that the "prevailing area practice for the installation of the disputed work at the Egg Harbor Township Community Center favors the assignment of that work to . . . Local 27."

Because Donnelly did not assign the roofing work to Sheet Metal pursuant to Arbitrator Aiges' award, Local 27 filed a grievance pursuant to Article 10 of its collective bargaining agreement seeking confirmation of the arbitration award. Pursuant to Local 27's collective bargaining agreement, the Local Joint Adjustment Board ("JAB") held a hearing on July 16, 2007. Although both Sambe and Donnelly were invited to attend, they did not. Prior to the JAB hearing, both Sambe and Donnelly informed the JAB that they would not participate in the proceeding and that they believed the JAB lacked jurisdiction over the matter.

Thereafter the JAB issued its decision and determined that Donnelly and Sambe, by assigning the roofing work to Local 623, violated the PLA and Local 27's collective bargaining agreement. The JAB further found that if the work was not reassigned to Local 27, then Sambe and Donnelly were responsible for wages and benefits in the amount of $428,319.26.

On August 20, 2007, Sheet Metal filed a petition ("the Sheet Metal Action") with this Court for an Order to Show Cause why a Preliminary Injunction should not issue for Defendants' failure to comply with the arbitration awards. The Court denied the petition primarily on the ...

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