National Labor Relations Board v. Gimrock Constructioni, Inc. ( 2012 )


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  •                Case: 11-11561       Date Filed: 09/18/2012       Page: 1 of 13
    [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.
    Case: 11-11561         Date Filed: 09/18/2012       Page: 2 of 13
    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.1 A week later, the strikers offered to return to
    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).2 The Board therefore
    1
    At that time, Gimrock employed seven operating engineers.
    2
    
    29 U.S.C. § 158
    (a) states:
    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.3 When Gimrock refused to
    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[.]
    3
    NLRB v. Gimrock Constr., Inc., 
    326 N.L.R.B. 401
    , 410 (2005).
    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.4 The Compliance Specification also demanded that Gimrock—which,
    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
    4
    As initially served on Gimrock, the Compliance Specification sought $328,000 in back
    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
    5
    Six of the seven strikers testified. The seventh was deceased.
    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.6 As for the bargaining recommendation, Gimrock argued that
    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
    6
    Gimrock also argued the ALJ denied it the due process of law when, at the evidentiary
    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.
    7
    Gimrock abandoned its claim that the bargaining unit no longer existed by not
    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
    8
    Gimrock also alleged that granting the General Counsel’s motion to strike violated due
    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.
    9
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    or that the court has enforced in a final judgment.”9 Thus, when it became
    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.10 The Board’s answer brief implies that this is, in substance, what
    occurred in this case. That is, the Board suggests that it used the Compliance
    9
    The Board, itself, has acknowledged that it lacks jurisdiction to modify an order issued
    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.”).
    10
    We have previously noted that injunctions, including consent decrees,
    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).12 Those cases are inapposite. In both cases, the court of
    11
    In its answer brief, General Counsel states the following:
    [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.
    12
    In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), this
    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.
    12
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    in good faith. We enforce its petition regarding the reinstatement and back pay
    awards.
    GRANTED, in part; DENIED, in part.
    13