                    NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant,
                                                       v.

                GIMROCK CONSTRUCTION, INCORPORATED, Respondent-Appellee.

                                                No. 00-10372.
                                       United States Court of Appeals,

                                               Eleventh Circuit.
                                               April 20, 2001.

Application for Enforcement of an Order of the National Labor Relations Board. (NLRB No. 12-17385-CA).

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

         BLACK, Circuit Judge:
         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


    *
     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).
    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).
         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 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 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, 139 L.Ed.2d 797 (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, 95 L.Ed. 456 (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).

                                                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


    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.
ALJ's determination about the Union's bargaining 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, 80 L.Ed.2d 149 (1984). The

ALJ therefore concluded no agreement had been reached. See id. Upon its examination of the negotiators'

testimony, however, the Board found 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 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 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, 77 L.Ed.2d 443 (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)).

         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.

        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

    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."
case. See id. at 1553.

                                            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.
