NLRB v. Gimrock Construction, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF
________________________ APPEALS
ELEVENTH CIRCUIT
No. 00-10372 APR 20, 2001
________________________ THOMAS K. KAHN
CLERK
NLRB Case No. 12-17385 CA

NATIONAL LABOR RELATIONS BOARD,
Petitioner-Appellant,

versus

GIMROCK CONSTRUCTION, INCORPORATED,
Respondent-Appellee.

________________________

Application for Enforcement of an Order of
the National Labor Relations Board
_________________________

(April 20, 2001)

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

BLACK, Circuit Judge:

*
Honorable Lenore C. Nesbitt, U.S. District Judge for the Southern District of Florida,
sitting by designation.
**
Judge Nesbitt did not participate in this decision. This decision is rendered by a
quorum. 28 U.S.C. § 46(d).
 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

1
Since we remand for a thorough explanation of the Board's disposition of Respondent's
first claim, we do not address Respondent’s second and third claims. We also do not address
Respondent’s argument, as part of its first claim, that 29 U.S.C. § 187 applies here in lieu of 29
U.S.C. § 158(b)(4)(D), thereby removing the procedural bar pursuant to 29 U.S.C. § 160(k).

2
 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 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

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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

4
means such evidence as a reasonable mind might accept as adequate to support a

conclusion.” Florida Steel Corp. v. NLRB, 587 F.2d 735, 745 (5th Cir. 1979)

(citations and internal quotation marks omitted).2 This standard encompasses the

requirement that the Board, as adjudicator, engage in reasoned decisionmaking.

See Allentown Mack Sales and Serv., Inc. v. NLRB, 522 U.S. 359, 374, 118 S. Ct.

818, 826-27 (1998). That is, “the process by which [the Board] reaches [a] result

must be logical and rational.” Id., 118 S. Ct. at 826. This Court must “examine

carefully both the Board’s findings and its reasoning, to assure that the Board has

considered the factors which are relevant” to its decision. Ona Corp. v. NLRB, 729

F.2d 713, 719 (1984); see also Allentown Mack, 522 U.S. at 366-71, 378-80, 118

S. Ct. at 823-25, 829. While this Court will not displace the Board’s choice

between two reasonable positions, see Universal Camera Corp. v. NLRB, 340 U.S.

474, 488, 71 S. Ct. 456, 465 (1951), this Court will not act as a mere enforcement

arm of the Board. See BE&K Constr. Co. v. NLRB, 133 F.3d 1372, 1375 (11th Cir.

1997) (citing Ona, 729 F.2d at 719).

2
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 close of business on September 30, 1981.

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 III. DISCUSSION

We turn first to the Board’s determination, contrary to that of the ALJ, that

the Union did not seek to have all oiler and mechanic work assigned to its

members, but, rather, that it sought contractual coverage for all employees, both

Union members and non-members. Whether to affirm the Board’s conclusion that

the strike did not have an illegal jurisdictional object is a threshold determination.

The Board has concluded that strikers who participate in a strike that is illegal from

its inception forfeit their rights to protection under the National Labor Relations

Act. See Mackay Radio & Tel. Co., 96 N.L.R.B. 740, 742-43 (1951) (explaining

that providing remedy for strikers participating in illegal strike would

"encourag[e] . . . conduct subversive of the [National Labor Relations Act]"). We

therefore must address the issue of the strike’s legality before reaching questions

related to Respondent’s actions.

The issue of the strike's legality requires two initial inquiries. The first

question is whether the substantial evidence standard allows the Board both to

adopt the ALJ’s credibility findings and to reject the ALJ’s determination that the

Union sought to have all oiler and mechanic work assigned to Union members. If

so, then a second question arises: whether the Board adequately explained its

reasons for rejecting the ALJ’s determination about the Union’s bargaining

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position. An affirmative answer to this question would lead to our thorough

examination of the evidence presented to determine if the Board’s decision is, in

fact, substantially supported by this evidence.

A. Rejecting Determinations and Adopting Credibility Findings

Respondent argues that since the Board relied on the same facts as the ALJ

and did not dispute the ALJ’s credibility findings, the Board’s rejection of the

ALJ’s determination of the Union’s bargaining position is unsupported by

substantial evidence as a matter of law. Petitioner argues that, in rejecting the

ALJ’s determination, the Board merely drew reasonable and different inferences

from generally undisputed evidence. In so doing, the Board did not reverse the

ALJ’s credibility findings.

The cases cited by the parties illustrate the extent to which the Board must

accept an ALJ’s determinations upon affirming an ALJ’s credibility findings. In

one case, the ALJ found a corporate negotiator raised the issue of striker discipline

as a contractual proposal, but the union representative refused to discuss the issue.

See Georgia Kraft Co., Woodkraft Division v. NLRB, 696 F.2d 931, 935 (11th Cir.

1983), vacated in part and remanded on other grounds, 466 U.S. 901, 104 S. Ct.

1673 (1984). The ALJ therefore concluded no agreement had been reached. See

id. Upon its examination of the negotiators’ testimony, however, the Board found

7
the corporate representative did not raise this issue and concluded an agreement

had been reached. See id. This Court found the Board’s decision was supported

by substantial evidence, since the Board did not discredit the witnesses’ testimony,

but, instead, differed with the ALJ on overarching inferences drawn from largely

undisputed evidence and based on “overall judgment.” See id. at 936-37 (quoting

NLRB v. Florida Med. Ctr., Inc., 576 F.2d 666, 674 (5th Cir. 1978)). The Court

concluded the Board’s rejection of the ALJ’s factual inferences did not detract

from the substantiality of the evidence required to support the Board’s decision.

See id. at 937; see also Nix v. NLRB, 418 F.2d 1001, 1008 (5th Cir. 1969)

(affirming Board’s reversal of ALJ’s conclusion that employee had been

discharged because of union activity, since this conclusion is a factual inference).

In a contrasting case, evidence showed that a non-striker’s motorcycle had

been seriously damaged during the course of a strike. See Mosher Steel Co. v.

NLRB, 568 F.2d 436, 439 (5th Cir. 1978). Although the ALJ credited the

testimony of eyewitnesses who observed a striker kicking the motorcycle, the

Board determined this testimony did not sufficiently support the conclusion that

the striker had caused the damage to the motorcycle. See id. at 439-40. The

Former Fifth Circuit rejected the Board’s refusal to adopt the ALJ’s conclusion.

The Court held that if the Board relies on the same facts as the ALJ and does not

8
dispute the ALJ’s credibility findings, then substantial evidence demands that the

Board draw the same conclusion as the ALJ. See id. at 441. An ALJ is in a better

position than the Board to make credibility findings. See id.

Our case involves factual inference drawing, not witness credibility findings,

and is thus analogous to Georgia Kraft. Like the question of whether striker

discipline was raised as a negotiable issue, whether the Union’s bargaining

position included exclusionary demands is not a straightforward, provable fact to

which witnesses clearly testified. In both our case and Georgia Kraft, the Board

drew overarching, quasi-legal inferences from facts. Significantly, in our case and

in Georgia Kraft, the ALJ’s credibility determinations could reasonably yield both

the Board’s inference and the ALJ’s conflicting inference. In fact, Petitioner and

Respondent each cite the testimony of both parties’ witnesses to bolster their

opposing arguments. See infra note 4. In Mosher, by contrast, accepting the

witness’ testimony leads to one conclusion, while rejecting the testimony leads to

the opposite conclusion.

Based on our determination that the characterization of the Union’s

bargaining position is a factual inference, we conclude, as a matter of law under the

substantial evidence standard, that the Board was permitted to reverse the ALJ on

this issue. See Nix, 418 F.2d at 1008 (“[t]o differ with the [ALJ] on inferences and

9
conclusions to be drawn from the facts is the Board’s prerogative”) (citation

omitted). The ALJ’s contrary determination, however, is a part of the record that

must be considered in assessing whether the evidence substantially supports the

Board’s decision. Id.

B. Reasoned Decisionmaking

Under the substantial evidence standard, this Court “may require that the

Board’s process of choosing [between conflicting views] be supported by

articulate, cogent, and reliable analysis.” Northport Health Serv., Inc. v. NLRB,

961 F.2d 1547, 1553 (11th Cir. 1992). “[O]nly a thorough disposition by the

Board enables this court to properly review a Board order to determine whether we

can ‘conscientiously find that the evidence supporting that decision is substantial

. . . .’” Id. (quoting Universal Camera, 340 U.S. at 488, 71 S. Ct. at 465); see also

Allentown Mack, 522 U.S. at 374-75, 118 S. Ct. at 826-27; cf. Motor Vehicle Mfrs.

Assn., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 103 S. Ct. 2856, 2871

(1983) (requiring agency to offer rational connection between its factfinding and

its regulatory decision under arbitrary and capricious standard). Finally, “[t]his

Court may enforce the Board’s order only on the basis of the reasoning within that

order.” Northport, 961 F.2d at 1553 (citing NLRB v. Episcopal Community of St.

Petersburg, 726 F.2d, 1537, 1540-41 (11th Cir. 1984)).

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 Here, the Board summarily rejected the ALJ’s characterization of the

Union’s bargaining position. The Board not only buried a crucial determination in

a footnote, but, more importantly, it did not cite any evidence or give more than a

skeletal explanation for its determination. That the Board “f[ou]nd merit” to the

Union’s exceptions simply does not suffice. While the Union’s certification to

represent “all”of the relevant employees may lend support to the Board’s

determination, this fact is certainly not dispositive. The Board did not adequately,

if at all, explain its reasons for reversing the ALJ’s determination of the Union’s

bargaining position. Our review of whether substantial evidence upholds the

Board’s decision requires the Board to set forth the evidence supporting its

decision and to explain why this evidence outweighs the conflicting evidence. See

Northport, 961 F.2d at 1550 (citing Universal Camera, 340 U.S. at 487-88, 71 S.

Ct. at 464-65). While the Board may reject the ALJ’s factual inferences, see Part

III.A, the Board has an independent obligation to explain clearly its reasons for

doing so. Since the Board has not provided us with any basis to begin our review

of the record for substantial evidence, we decline to review the Board’s

determination that the Union’s position was non-exclusionary until the Board

explains its reasoning.

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 We have remanded in the past under strikingly similar facts. See Northport

Health Serv., Inc. v. NLRB, 961 F.2d 1547 (11th Cir. 1992). In Northport, as in

our case, the Board affirmed the ALJ’s findings and conclusions, but summarily

modified the ALJ’s recommendations in a footnote.3 Like Northport, ours is a

close case. Both parties’ positions are plausible, each position is supported by

some evidence in the record, and each position is undermined by other evidence.

See id. at 1549-50.4 The Northport Court explained that, in a close case, it is

critical that the Board carefully explain its reasons. See id. at 1550. The Northport

Court’s decision to deny enforcement temporarily and to remand the case — rather

than to reach a conclusion independently or to deny enforcement of the Board’s

order outright — is equally appropriate in our case. See id. at 1553.

3
While Northport involves legal errors, which are absent in our case, the balance of
Northport’s analysis is squarely applicable to our case.
4
Our preliminary review of the record reveals that both parties’ positions find some
support in the testimony of both parties’ witnesses. For example, the Union’s business manager
testified, “But if the crane were to be transported or moved, we felt like that was bargaining unit
work . . . .” This Union witness also testified, “I made it clear to [Respondent’s counsel] that we
had no objection to taking those people into the bargaining unit that they already had employed
if there were some . . . .” Similarly, Respondent’s counsel testified, “With respect to moving,
assembling and dismantling the cranes, the union took the position . . . that only bargaining unit
employees could perform that work.” Respondent’s counsel also testified that, at the May 25th
meeting, the Union took the position that it “would be willing to . . . have [certain non-
bargaining unit employees] treated as bargaining unit employees only for the period of time they
were performing that kind of work.”

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 IV. CONCLUSION

For the reasons set forth above, the Board's petition for enforcement is

temporarily DENIED, and this matter is REMANDED for a thorough discussion of

the evidence supporting the Board’s determination of the Union’s bargaining

position and for a thorough explanation of the Board’s reasons for discounting the

conflicting evidence on this issue.

PETITION DENIED AND REMANDED WITH INSTRUCTIONS.

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