               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.
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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.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

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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).

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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.

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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

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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.

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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.

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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.

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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.

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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).


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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

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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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