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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 Res-
taurants, 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 inade-
quate 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 contrac-
tor, 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 bargain-
ing 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 deter-
mined that a union may not lawfully support a JTP program
with dues exacted from employees working on ‘‘Davis–Ba-
con,’’ 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 con-
duct 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 exer-
cise of rights guaranteed’’ by section 7 of the Act. 29 U.S.C.
§ 158(a)(1). Section 7, in turn, protects the rights of employ-
ees 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 objec-
tives 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 Nation-
al 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 Fed-
eral 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 respon-
dent employer must take ‘‘affirmative action to stay the state
court proceeding within 7 days of the issuance of the com-
plaint.’’ 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 defer-
ence 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 Epilep-
sy 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 consti-
tute ‘‘other mutual aid or protection’’ under section 7. 321
N.L.R.B. at 298. Thus, in Manno Electric, the Board con-
cluded that a lawsuit challenging the validity of a JTP inter-
feres 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 argu-
ably 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 impli-
cated. 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]etaliato-
ry 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 Amend-
ment analysis. Under this exception, the Board has consis-
tently declined to apply the Bill Johnson’s analysis to law-
suits 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 distin-
guished Bill Johnson’s and addressed ‘‘not the standard for
enjoining ongoing suits but the standard for declaring com-
pleted 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 juris-
dictional question of preemption is, as Bill Johnson’s ac-
knowledged 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 Con-
tractors 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 pur-
suant 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 Pro-
grams, 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 De-
partment’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 Con-
structors, 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 employ-
ment 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 analy-
sis, 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 them-
selves, 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 mon-
eys — 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 adminis-
trative 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 con-
duct.
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 with-
hold dues on Davis–Bacon projects at the time Kruse submit-
ted 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 determi-
nation of whether the Union’s JTP conduct is protected under
section 7.
Further, the Board did not explain why the Union’s con-
duct 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 objec-
tives. 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 accommo-
dation 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 Truck-
ing Co. v. United States, 321 U.S. 67, 80 (1944)). The Board
made no effort to engage in this careful balancing of conflict-
ing 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. More-
over, 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 ap-
proach 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.