National Labor Relations Board v. Gimrock Construction, Inc.

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11–11561
________________________
Agency No. 12-CA-17385
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
GIMROCK CONSTRUCTION, INC.,
Respondent.
________________________
Application for Enforcement of a Decision of the
National Labor Relations Board
________________________
(September 18, 2012)
Before TJOFLAT, PRYOR and RIPPLE, Circuit Judges.*
Honorable Kenneth F. Ripple, Senior United States Circuit Judge for the Seventh*
Circuit, sitting by designation.
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TJOFLAT, Circuit Judge:
I.
Gimrock Construction, Inc., is a heavy construction contractor engaged in
bridge building, marine work, dredging, and road work throughout South Florida
and the Carribean. In March 1995, the International Union of Operating
Engineers, Local Union 487, AFL-CIO (the “Union”), became the representative
of a collective bargaining unit containing “all [of Gimrock’s] equipment operators,
oiler/drivers, and equipment mechanics.” Gimrock refused to bargain with the
Union, and, in June 1995, its operating engineers, all hired out of the Union’s
hiring hall in Miami, went on strike. A week later, the strikers offered to return to1
work, but Gimrock refused to reinstate them, claiming that they had been engaging
in an unlawful jurisdictional strike.
The National Labor Relations Board (the “Board”), contrary to Gimrock’s
position, found that the strike was an economic strike and that Gimrock’s refusal
to reinstate the strikers violated section 8(a)(1) and (3) of the National Labor
Relations Act (the “Act”), 29 U.S.C. § 158(a)(1) and (3). The Board therefore2
At that time, Gimrock employed seven operating engineers.1
29 U.S.C. § 158(a) states:2
It shall be an unfair labor practice for an employer (1) to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in section 157 of this
2
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ordered the strikers’ reinstatement with back pay. When Gimrock refused to3
comply with the order, the Board petitioned this court for enforcement. In NLRB
v. Gimrock Construction, Inc. (Gimrock I), we remanded the case to the Board for
further findings on whether the strike was economic or jurisdictional. 247 F.3d
1307 (11th Cir. 2001). On remand, the Board found that the strike was economic
and, on June 30, 2005, reaffirmed its original order that Gimrock reinstate the
strikers with back pay. NLRB v. Gimrock Constr., Inc., 344 N.L.R.B. 1033
(2005).
Meanwhile, the Board, responding to Gimrock’s persistent refusal to
bargain with the Union, had charged Gimrock with violating section 8(a)(5) of the
Act. 29 U.S.C. § 158(a)(5) (“It shall be an unfair labor act for an employer . . . to
refuse to bargain collectively with the representatives of his employees[.]”), and an
ALJ, following an evidentiary hearing, had recommended that the Board order
Gimrock to bargain. On June 30, 2005, the same day it ordered Gimrock to
reinstate the strikers, the Board ordered Gimrock to bargain with the union.
NLRB v. Gimrock Constr., Inc., 344 N.L.R.B. 934, 941–42 (2005). Gimrock
title; . . . (3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in any
labor organization[.]
NLRB v. Gimrock Constr., Inc., 326 N.L.R.B. 401, 410 (2005).3
3
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refused to comply with both orders, so the Board petitioned this court for
enforcement.
In NLRB v. Gimrock Constr., Inc. (Gimrock II), we entered an injunction
enforcing both orders. 213 F. App’x 781 (11th Cir. 2006). First, we ordered
Gimrock, in the language of the Board’s order, to “[c]ease and desist from . . .
[r]efusing to bargain in good faith with the Union,” and “[o]n request, [to] meet
and bargain with [the Union].” Gimrock Constr., Inc., 344 N.L.R.B. at 941–42.
Second, again in the language of the Board’s order, we ordered Gimrock to
1. Cease and desist from
(a) Refusing to reinstate economic strikers to existing vacancies upon their
unconditional offer to return to work.
. . . .
2. Take the following affirmative action necessary to effectuate the policies
of the Act.
(a) Upon application, offer to those strikers who have not yet
returned, immeditate and full reinstatement to their former or
subtantially equivalent positions, without prejudice to their seniority
or other rights and privileges, dismissing if necessary all persons
hired as striker replacements after June 6, 1995; and place on a
preferential hiring list those striker applicants for whom positions are
not immediately available.
(b) Make whole any of the strikers for any loss of earnings and other
benefits suffered as a result of the refusal to reinstate them to their former
jobs in the manner described in the remedy section of this decision.
4
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(c) Preserve and, within 14 days of a request, make available to the Board or
its agents for examination and copying, all payroll records, social security
payment records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due under the terms of
this Order.
. . . .
(e) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided
by the Region attesting to the steps that the Respondent has taken to
comply.
326 N.L.R.B. at 410, reaffirmed in 344 N.L.R.B. at 1039.
Following the issuance of the Gimrock II injunctive orders, the Board’s
Regional Director sought the information from Gimrock necessary to calculate the
back pay owed to the seven strikers (six of whom had retired). When the
information was not forthcoming, the Regional Director issued subpoenas
requiring Gimrock’s principals to produce the information. They ignored the
subpoenas, so the Regional Director obtained a federal court order compelling
compliance. See NLRB v. Gimrock Const., Inc., No. 07-22366 (S.D. Fla. Sep. 14,
2007). Gimrock partially complied with the subpoenas, but said that it was unable
to produce some payroll records, including all the records from June 1995 to July
1, 1998. Consequently, the Regional Director had to fill in the gaps by
extrapolating data from other time frames to determine the back pay. The
5
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Regional Director used the strikers’ Social Security records to determine the pay
the strikers received on other jobs (in mitigation of their losses), which was then
subtracted from the back pay due (without such mitigation) to calculate the net
back pay owed to the strikers. Once that calculation was made, the National Labor
Relations Board’s General Counsel served Gimrock with a Compliance
Specification stating that Gimrock owed the seven strikers a total of $354,000 in
back pay. The Compliance Specification also demanded that Gimrock—which,4
notwithstanding the Gimrock II enforcement decision, was still refusing to
negotiate with the Union—meet with the Union for sixteen hours a week.
Gimrock, answering the Compliance Specification, contested General
Counsel’s back pay award and the bargaining demand. Gimrock contended that
the strikers were not entitled to back pay because (1) they had been offered
reinstatement the day the strike ended, but had rejected the offer; and (2) they were
still on strike (fourteen years later). Gimrock also challenged General Counsel’s
back pay calculations on the grounds that they were speculative, used the wrong
employees as comparators, and failed to take into account the strikers’ failure to
As initially served on Gimrock, the Compliance Specification sought $328,000 in back4
pay. General Counsel subsequently acquired additional information relevant to the back pay
calculation, increased the $328,000 figure to $354,000 on the basis of that information, and then
amended the Compliance Specification accordingly.
6
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mitigate their losses (through other employment). Gimrock objected to General
Counsel’s sixteen-hours-a-week bargaining demand on the ground that the
bargaining unit no longer existed; aside from that, the request was unreasonable.
The issues raised by the Compliance Specification and Gimrock’s response
were referred to an ALJ for an evidentiary hearing. The hearing began on June 1,
2009. General Counsel established, through the testimony of the Regional
Office’s compliance officer, the back pay to which the strikers were entitled.
General Counsel then called Gimrock’s two principals as witnesses to demonstrate
that the bargaining unit still existed and then rested his case. At this point, and
before Gimrock commenced its defense, the ALJ announced that Gimrock II
barred Gimrock’s assertion that the strikers had rejected an offer of reinstatement
and were still on strike. The ALJ thus limited the issues to the back pay
calculations and Gimrock’s assertion that requiring it to bargain would be a futile
exercise. Gimrock challenged the back pay calculations through the testimonies of
one of its principals, a union representative and the strikers.5
On November 16, 2009, the ALJ issued his decision. He rejected
Gimrock’s arguments that General Counsel’s back pay calculations were
speculative and used the wrong comparators, and that the strikers had failed to
Six of the seven strikers testified. The seventh was deceased.5
7
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mitigate their losses. The ALJ accordingly recommended that the Board award the
strikers the back pay stated in the Compliance Specification. He also
recommended that Gimrock be required to bargain with the Union for sixteen
hours a week. Gimrock appealed the ALJ’s recommendations to the Board.
Regarding the back pay calculations, Gimrock repeated the objections it raised
before the ALJ. As for the bargaining recommendation, Gimrock argued that6
such a requirement would be appropriate only in an “egregious” case, and that its
failure to bargain had not risen to that level.7
The Board adopted the ALJ’s recommendations and ordered their
enforcement in full. After it became apparent that Gimrock’s compliance would
not be forthcoming, the Board petitioned this court for enforcement. Gimrock,
responding to the petition, argues against enforcement thusly. First, we should
deny enforcement of the back pay award because it is “punitive” and “arbitrary.”
Second, we should deny enforcement of the bargaining requirement because the
Gimrock also argued the ALJ denied it the due process of law when, at the evidentiary6
hearing, he reversed a pre-hearing ruling denying without prejudice General Counsel’s motion to
strike part of Gimrock’s answer (because it lacked the specificity required by the Board’s rules of
procedure) and granted the motion. The Board rejected this due process argument. We assume
that it did so because Gimrock failed to demonstrate how the ALJ’s ruling caused it any
prejudice.
Gimrock abandoned its claim that the bargaining unit no longer existed by not7
presenting the claim to the Board.
8
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Board lacked jurisdiction to modify this court’s Gimrock II injunction by ordering
it to bargain for sixteen hours a week; only this court had jurisdiction to effect the
modification. According to Gimrock, once this court had assumed jurisdiction
over the bargaining dispute in Gimrock II, only this court had the authority to
modify its injunction.
II.
We find no merit in Gimrock’s first argument. The evidence before the ALJ
fully supported the ALJ’s recommendation—that the Board award the strikers the
sum total stated in the Compliance Specification—and therefore the Board’s
adoption of the recommendation.8
We find merit, though, in Gimrock’s second argument, that, once Gimrock
II issued, only this court had the power to modify its order and, for example,
require Gimrock to meet with the Union at set times. As the D.C. Circuit stated in
Scepter, Inc. v. NLRB, 448 F.3d 388, 391 (D.C. Cir. 2006), “[t]he Board
obviously cannot modify an order over which the court has ‘exclusive’ jurisdiction
Gimrock also alleged that granting the General Counsel’s motion to strike violated due8
process; denying Gimrock the opportunity to amend its answer was an abuse of discretion; and
that the exclusion of evidence of union fines, threats, and Gimrock’s offer of reinstatement was
an abuse of discretion. These arguments are without merit.
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or that the court has enforced in a final judgment.” Thus, when it became9
apparent that Gimrock was not going to comply with Gimrock II’s injunctive order
requiring it to meet with the Union and bargain in good faith, the Board could
have petitioned this court to issue an order requiring the company to show cause
why it should not be held in civil contempt for refusing to comply with the
injunction. The Board’s answer brief implies that this is, in substance, what10
occurred in this case. That is, the Board suggests that it used the Compliance
The Board, itself, has acknowledged that it lacks jurisdiction to modify an order issued9
by a court of appeals. See D.L. Baker, Inc., 351 N.L.R.B. 515, n.31 (2007) (explaining that the
Board “in the compliance phase . . . [was] not at liberty to modify” the back pay period to begin
earlier than provided in the “[o]rder that has been enforced by a court of appeals.”); Willis Roof
Consulting, Inc., 355 N.L.R.B. No. 48, n.1 (June 17, 2010) (rejecting an employer’s attempt to
relitigate an issue at the compliance stage because “[t]he Board has no jurisdiction to modify a
court-enforced order.”).
We have previously noted that injunctions, including consent decrees,10
are enforced through the trial court’s civil contempt power. If the plaintiff (the
party obtaining the writ) believes that the defendant (the enjoined party) is failing
to comply with the decree’s mandate, the plaintiff moves the court to issue an
order to show cause why the defendant should not be adjudged in civil contempt
and sanctioned. The plaintiff’s motion cites the injunctive provision at issue and
alleges that the defendant has refused to obey its mandate. If satisfied that the
plaintiff’s motion states a case of non-compliance, the court orders the defendant
to show cause why he should not be held in contempt and schedules a hearing for
that purpose. . . . At the hearing, if the plaintiff proves what he has alleged in his
motion for an order to show cause, the court hears from the defendant. At the end
of the day, the court determines whether the defendant has complied with the
injunctive provision at issue and, if not, the sanction(s) necessary to ensure
compliance.
Reynolds v. Roberts, 207 F.3d 1288, 1298 (11th Cir. 2000) (internal citations omitted).
10
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Specification and the ALJ’s recommended order requiring that Gimrock meet with
the Union sixteen hours a week to arrive at “purgatory” order this court could
impose if it found Gimrock in contempt for failing to comply with the Gimrock II
injunction.11
The Board cites two Former Fifth Circuit cases, which are binding on this
court, in support of this position, NLRB v. Johnson Manufacturing Co. of
Lubbock, 511 F.2d 153 (5th Cir. 1975), and NLRB v. Schill Steel Products, 480
F.2d 586 (5th Cir. 1973). Those cases are inapposite. In both cases, the court of12
In its answer brief, General Counsel states the following:11
[T]he compliance stage of Board proceedings is the very point in the proceedings
when the Board should determine whether the circumstances warrant
requirements in addition to a standard bargaining order. Here, for instance, the
Board found that the time and reporting requirements were warranted because
Gimrock had refused to bargain since this Court, in December 2006, enforced the
Board’s bargaining order. See NLRB v. Gimrock Constr., Inc., 213 F. App’x 781,
782 (11th Cir. 2006). This case is therefore more aptly analogized to cases in
which courts have held employers in contempt for refusing to bargain in violation
of a court-enforced Board Order, and have ordered employers to comply with a
bargaining schedule. See NLRB v. Schill Steel Prods., 480 F.2d 586, 598 (5th
Cir. 1973) (per curiam) (ordering employer to bargain with the union for at least
15 hours a week unless the Union agreed to less in writing); NLRB v. Johnson
Mfg. Co. of Lubbock, 511 F.2d 153, 156 (5th Cir. 1975) (ordering bargaining to
proceed in “reasonably consecutive sessions”)[.] . . . Although the standard for
holding a party in contempt is admittedly higher than that required to simply find
that a party violated the Act by refusing to bargain, Gimrock’s longstanding
refusal to bargain was in the face of a court-enforced Board Order.
Petitioner’s Br. at 37–38.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this12
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
11
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appeals entered the purgatory orders after the court, on the Board’s petition, issued
a show cause order, the purported contemner failed to establish a lawful excuse for
its refusal to bargain, and the court adjudged the contemner in civil contempt.
Johnson Mfg. Co., 511 F.2d at 155; Schill Steel Prods., 480 F.2d at 596. The
orders contained specific terms—the “keys to the jail”—which, if complied with,
would enable the contemner to purge its contempt. Johnson Mfg. Co., 511 F.2d at
156–59; Schill Steel Prods., 480 F.2d at 596–99. In this case, the Board could
have, as indicated above, petitioned this court for a show cause order. Then, if we
held Gimrock in contempt following a show cause hearing, the Board could have
proposed that we enter an order allowing Gimrock to purge itself of the contempt
by meeting with the Union for sixteen hours a week.
The problem is that the Board has not moved this court for an order to show
cause; it has eschewed the traditional means of obtaining compliance with an
injunctive order. The Board also has not asked us to modify the Gimrock II
injunction due to changed circumstances that render the extant injunction
ineffective. Because the Board has pursued neither of these avenues of relief, we
must deny its petition to the extent that it seeks enforcement of its order requiring
Gimrock to meet with the Union for sixteen hours a week and, in doing so, bargain
October 1, 1981.
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in good faith. We enforce its petition regarding the reinstatement and back pay
awards.
GRANTED, in part; DENIED, in part.
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