247 F.3d 1307 (11th Cir. 2001), 00-10372, NLRB v Gimrock Construction

Docket Nº:00-10372
Citation:247 F.3d 1307
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. GIMROCK CONSTRUCTION, INCORPORATED, Respondent-Appellee.
Case Date:April 20, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1307

247 F.3d 1307 (11th Cir. 2001)

NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant,

v.

GIMROCK CONSTRUCTION, INCORPORATED, Respondent-Appellee.

No. 00-10372

IN THE UNITED STATES COURT OF Appeals, FOR THE ELEVENTH CIRCUIT

April 20, 2001

Page 1308

Application for Enforcement of an Order of the National Labor Relations Board NLRB Case No. 12-17385 CA

Before BIRCH and BLACK, Circuit Judges, and NESBITT[*], District Judge.[**]

BLACK, Circuit Judge:

Petitioner National Labor Relations Board (the Board) seeks enforcement of its order against Respondent Gimrock Construction, Inc. See 326 N.L.R.B. No. 33 (1998). The Board concluded Respondent engaged in unfair labor practices affecting commerce, in violation of 29 U.S.C. §§ 158(a)(1)&(3), 152(6)&(7), during the course of a strike by members of the International Union of Operating Engineers, Local Union 487, AFL-CIO (the Union). In this enforcement action, Respondent claims: (1) the Union's strike had an illegal jurisdictional object in violation of 29 U.S.C. §§ 158(b)(4)(D), 187; (2) the Union failed to provide Respondent notice of an unconditional offer; and (3) since the Board ordered the strikers' reinstatement "upon application" and application was not made, Respondent is liable only for backpay that accrued after the Board clarified its order on July 27, 1999. Based on our conclusion that the Board did not adequately set forth its reasons in determining, contrary to the administrative law judge (ALJ), that the Union sought contractual coverage for both Union members and non-members, and, implicitly, that the Union's strike was legal, we temporarily deny enforcement and remand.1

I. ADMINISTRATIVE PROCEEDINGS

Following a hearing before ALJ Raymond P. Green on March 20-21, 1996, the ALJ issued a decision on May 31, 1996. The ALJ found the Union's bargaining position was that "any work traditionally assigned to oiler/drivers and mechanics [be] assigned exclusively to [Union] members." (Emphasis in original). The ALJ found that Respondent "wanted to keep its pre-election practice which allowed flexibility in assigning union or nonunion workers to the same types of jobs as needed." (Emphasis in original). According to the

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ALJ, this difference in positions was the "sticking point in the negotiations."

Despite these findings and his observation that strikers in violation of 29 U.S.C. § 158(b)(4)(D) may not be protected, the ALJ explained that a violation of § 158(b)(4)(D) can be alleged only after the grant of an administrative award pursuant to 29 U.S.C. § 160(k) and the Union's failure to comply with the award. The ALJ concluded that the absence of these circumstances bars a § 158(b)(4)(D) complaint against the Union.

Finding the strike economic, the ALJ next determined Respondent did not meet its burden of showing the Union members' offer to return to work was less than unconditional. On this basis, the ALJ concluded Respondent engaged in unfair labor practices, in violation of 29 U.S.C. §§ 158(a)(1)&(3), 152(6)&(7). The ALJ recommended that the Board order Respondent to offer the strikers immediate and full reinstatement, dismiss the replacements if necessary, and compensate the workers for loss of wages and benefits.

On August 27, 1998, the Board issued its order. The Board affirmed the ALJ's findings and conclusions, and adopted the ALJ's recommended order, as modified. In footnote 1, however, the Board rejected the ALJ's determination that the Union was seeking to have all oiler and mechanic work assigned to Union members. The Board found merit in the Union's assertion, in its exceptions, that its bargaining position was that all oilers and mechanics - both Union members and non-members - should be provided with contractual wages and benefits. The Board noted the Union's argument that its asserted bargaining position comports with the Union's certification as the bargaining representative of "all equipment operators, oiler/drivers and equipment mechanics employed by Respondent in Dade and Monroe counties . . . ." (Emphasis added). According to the Union, this pool encompasses Union members and non-members. Also in footnote 1, the Board affirmed the ALJ's credibility findings.

II. STANDARD OF REVIEW

We will affirm an order of the Board if its findings with respect to questions of fact are supported by substantial evidence on the record considered as a whole. See 29 U.S.C. § 160(e). "Substantial evidence is more than a mere scintilla. It means such evidence as a...

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