Gimrock Construction Incorporated, (2011)

Docket Number:12-CA-017385
 
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Gimrock Construction, Inc. and International Union of Operating Engineers, Local 487, AFL–CIO. Cases 12–CA–17385, 12–CA–20173, and 12–CA–20527

January 28, 2011

SUPPLEMENTAL DECISION AND ORDER

By Chairman Liebman and Members Pearce and Hayes

On November 16, 2009, Administrative Law Judge Ira Sandron issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The General Counsel also filed limited exceptions and a supporting brief, and the Respondent filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has reviewed the supplemental decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Supplemental Order.

The judge’s recommended Supplemental Order requires, among other things, that the Respondent bargain with the Union for 16 hours a week and submit a progress report to the Regional Director every 30 days. We agree with the judge that these requirements, which effectuate our prior order, are appropriate.

The Respondent’s bargaining obligation arose from the Board’s June 30, 2005 decision, finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing—since October 27, 1999—to meet and bargain with the Union and provide it with requested relevant information.2 The Board’s Order was enforced by the 11th Circuit on December 27, 2006.3 As explained in the judge’s decision, the Respondent thereafter failed to respond to numerous requests to meet and bargain with the Union and to furnish it with the requested information.4 Further, when the Respondent’s continuing refusal to bargain and furnish information was established in this compliance proceeding, the Respondent defended its conduct by raising arguments that had been previously rejected by the 11th Circuit in the enforcement proceeding.5

In view of the Respondent’s continuing refusal—over a period of years—to comply with the Board’s bargaining order, the institution of a bargaining schedule and the submission of progress reports are necessary to ensure that (and gauge whether) the Respondent meaningfully complies with its bargaining obligations as set forth under the terms of the court-enforced Order. Because the General Counsel specifically sought these requirements in the compliance specification, we reject the Respondent’s argument that it was denied due process.6

ORDER

The National Labor Relations Board adopts the recommended Supplemental Order of the administrative law judge and orders that the Respondent, Gimrock Construction, Inc., Hialeah Gardens, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order, including the payment to backpay claimants of the amounts set forth below, plus interest accrued to the date of payment, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax and withholdings by Federal and State laws.

Murray R. Chinners

$ 74,583.12

Alfred K. Duey

$125,057.47

Joseph G. MacNeil

$ 10,367.77

Joseph T. Robinson

$ 580.83

Barney Sims

$ 92,243.40

James K. Wilkerson

$ 37,208.66

James L. Wolf

$ 14,311.31

TOTAL

$354,352.56

Dated, Washington, D.C. January 28, 2011

Wilma B. Liebman, Chairman

Mark Gaston Pearce, Member

Brian E. Hayes, Member

(seal) National Labor Relations Board

Margaret J. Diaz and Rachel Harvey, Esqs., for the General Counsel.

Charles S. Caulkins and Philip R. Marchion, Esq. (Fisher & Phillips LLP), of Fort Lauderdale, Florida, for the Respondent.

Kathleen M. Phillips, Esq. (Phillips & Richard, PA), of Miami, Florida, for the Charging Party.

SUPPLEMENTAL DECISION

Statement of the Case

Ira Sandron, Administrative Law Judge. This matter arises out of a compliance specification and notice of hearing issued on February 27, 2009,[1][ as amended on May 22, against Gimrock Construction, Inc. (Gimrock or Respondent), stemming from the following Board decisions and cases of the Eleventh Circuit Court of Appeals (the Court).[2] For context, pursuant to a Stipulated Election Agreement, the International Union of Operating Engineers, Local 487, AFL—CIO (the Union) won an election on March 3, 1995, and was certified on March 20, 1995, as the bargaining representative of Respondent’s equipment operators, oiler/drivers and equipment mechanics employed in Miami-Dade and Monroe counties, Florida (the two counties).

  1. 326 NLRB 401 (1998)—The Board adopted, with modifications, Judge Raymond Green’s May 31, 1996 decision, and found that the Union had conducted an economic strike commencing on May 31, 1995, that the strikers had made an unconditional offer to return to work on June 6, 1995, and that Respondent had refused to reinstate them in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The Board further adopted his proposed order that Respondent offer immediate and full reinstatement to strikers who had not already returned, if necessary dismissing persons hired as striker replacements after June 6, 1995; and place on a preferential hiring list those striker applicants for whom positions were not immediately available. Judge Green concluded that he lacked authority to determine whether employees had engaged in a jurisdictional strike in violation of Section 8(b)(4)(D) of the Act, as Respondent had contended.

  2. An unpublished Board Order of July 27, 1999—Over Respondent’s objections, the Board granted the General Counsel’s motion to clarify its order in the above, specifically finding that on June 6, 1995, the strikers had made an unconditional offer to return to work.

  3. 247 F.3d 1307 (11th Cir. 2001)—The Court issued a Judgment temporarily denying enforcement and remanding the matter “for a thorough discussion of the evidence supporting the Board’s determination of the Union’s bargaining position,” which had been contrary to the judge’s, in connection with the issue of whether the Union had demonstrated an unlawful jurisdictional objective.

  4. 344 NLRB 1033 (2005) – In addressing the court’s remand, the Board concluded that the Union had not engaged in an unlawful jurisdictional strike. The Board reaffirmed its prior decision reported at 326 NLRB 401 (1998), as clarified by this opinion and the Board’s July 27, 1999 Order.

  5. 334 NLRB 934 (2001) – The Board adopted, as modified, Judge Pargen Robertson’s decision, and found that Respondent had violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Union since October 27, 1999, and refusing to furnish requested information that was relevant to the Union’s performance of its duties as bargaining representative, to wit, requests in letters of May 7, June 14, and June 23, 1999, pertaining to work that Respondent performed for any governmental entity for the 3-year period prior to May 7, 1999, and payroll records for all of Respondent’s projects in the two counties for the period from April 23–October 27, 1999.

  6. 213 Fed. Appx. 781(11th Cir. December 27, 2006)—The Court granted the Board’s applications for enforcement of its Orders in both 326 NLRB 401, as clarified, and 334 NLRB 1033. The Court rejected all of Respondent’s challenges to the Board’s findings that Respondent refused the Union’s requests for payroll records, refused to bargain collectively, and refused to reinstate strikers, and that the Union’s bargaining position did not evidence an unlawful jurisdictional dispute. I take administrative notice of the following. On February 6, 2008, Respondent filed a Motion to Partially Recall the Court’s February 27, 2007 Mandate regarding its December 27, 2006 Opinion, essentially arguing that a bargaining unit no longer existed.[3] The Court denied the motion on February 25, 2008.[4]

    Pursuant to notice, I conducted a trial in Miami, Florida, on June 1–4, at which the parties had full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence.

    I would not permit Respondent to relitigate before me facts or legal conclusions already addressed and decided by the Board and the Court, or allow Respondent to raise arguments that it should have timely brought up to the Board or the Court during the lengthy (decade-long) ULP proceedings. I adhere to those rulings as comporting with well-settled legal precedent and the nature of compliance cases. See, e.g., Triple A Fire Protection, Inc., 353 NLRB No. 88 (2009); Daniel Fluor, Inc., 353 NLRB No. 15 (2008); ; Sceptor Ingot Castings, Inc., 341 NLRB 997, 998 (2004); Paolicelli, 335 NLRB 881, 883 (2001). Moreover, under Section 10(e) of the Act (29 U.S.C. Sec. 10(e)), I lack authority to modify the Court’s December 27, 2006 Judgment. See Fluor Daniel, Inc., 351 NLRB 103, 103 (2007); Sceptor Ingot Castings, ibid at 997; Grinnell Fire Protection Systems Co., 337 NLRB 141, 142 (2001).

    In the interests of full due process, I afforded Respondent considerable latitude in presenting evidence. As I frequently stated at the trial, the requirements for a respondent’s answer and its evidentiary burdens in a compliance proceeding are not the same as at ULP hearings, as the Board and the courts have long recognized.

    I will address substantive burdens of proof in the analysis section. As the General Counsel correctly stated both in pretrial motions and at the hearing, Respondent’s answer failed in many respects to satisfy the specificity requirements of Section 102.56(b) of the Board’s Rules and Regulations, to wit:

    As to all matters within the knowledge of the Respondent, including but not limited to the various factors entering into the computation of backpay, a general denial shall not suffice. As to such matters, if the Respondent disputes either the accuracy of the...

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