Extract
Windward Roofing & Construction Co., 774 (2004)
Windward Roofing and Construction Co., Inc. and Illinois District Council No. 1 of the International Union of Bricklayers and Allied Craftworkers, AFL–CIO. Case 13–CA–38606
August 2, 2004SUPPLEMENTAL DECISION AND ORDERBy Chairman Battista and Members Walsh and MeisburgOn February 5, 2004, Administrative Law Judge Michael A. Marcionese issued the attached supplemental decision. The General Counsel and the Charging Party Union filed exceptions and supporting briefs and the Respondent filed cross-exceptions, a supporting brief, and an answering brief.The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.The Board has considered the supplemental decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings, and conclusions as modified and to adopt the recommended Order as modified.BackgroundThis case raises issues stemming from a settlement agreement executed by the Respondent, the Charging Party Union, and the General Counsel specifying certain actions to be undertaken by the Respondent to remedy violations found by the Board in an underlying unfair labor practice proceeding. In that proceeding,1 the Board granted summary judgment in favor of the General Counsel and found that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire and consider for hire discriminatees Jeff Bloom, Andrew Gasca, and Donald Newton because of their union membership and activities in assisting the Union. The Board also ordered traditional remedies for these violations, including a make-whole provision and a requirement that the discriminatees be “instat[ed] to the positions to which they applied or, if those positions no longer exist, to substantially equivalent positions.” 333 NLRB at 659.On January 31, 2002, a compliance specification issued setting forth a total backpay amount of $82,606.44 owed to the discriminatees in apportioned amounts. However, on April 8, the parties entered into the above mentioned settlement agreement, resolving the issues set forth in the compliance specification. The agreement, entitled “Stipulation Consenting to Instatement, Amount of Backpay and Schedule for Payment” (Stipulation) provided that instead of the payment of $82,606.44 specified in the compliance specification, the Respondent would satisfy its backpay obligations by the payment of $66,100.12. The Stipulation further provided that the Respondent’s instatement obligation would be fulfilled by offering the three discriminatees “any position for which they are qualified.” In the event that there were no available positions of this kind, the Stipulation required the Respondent to place the discriminatees on a preferential hire list pending the availability of positions. Finally, the Stipulation contained “noncompliance” provisions specifying the remedy to be applied in the event of a “material breach of this Stipulation.” Following a dispute over whether the Respondent had satisfied its obligations under the Stipulation, the General Counsel moved to revoke this settlement agreement. On June 30, 2003, the General Counsel issued an Order revoking settlement agreement and a new compliance specification and notice of hearing. On July 8 and September 22, 2003, the Respondent filed, respectively, an answer and amended answer, denying that it had breached the Stipulation and disputing the amount of backpay the General Counsel claimed in the new specification.2 Judge’s DecisionThe judge was presented with two separate but related questions in this compliance case—(1) whether the Respondent breached the Stipulation and, if so, (2) whether the remedy for that breach was one specifically set forth in the noncompliance provisions of the Stipulation. The judge answered both questions affirmatively. On the first question—whether there was a material breach, the judge found that the Respondent breached the Stipulation on two separate occasions—September 12 and December 2, 2002.3 On...See the full content of this document
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