ADB Utility Contractors, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 1020 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 172
1020
American Directional Boring, Inc., d/b/a ADB Utility
Contractors, Inc. and Local 2, International
Brotherhood of Electrical Workers, AFL–CIO.
Cases 14–CA–27386, 14–CA–27570, and 14–CA–
27677
August 27, 2010
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On September 30, 2008, the two sitting members of
the Board issued a Supplemental Decision and Order in
this proceeding, which is reported at 353 NLRB 166.1
Thereafter, the General Counsel filed an application for
enforcement in the United States Court of Appeals for
the Eighth Circuit. On June 17, 2010, the United States
Supreme Court issued its decision in New Process Steel,
L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section
3(b) of the Act, in order to exercise the delegated author-
ity of the Board, a delegee group of at least three mem-
bers must be maintained. Thereafter, the court of appeals
issued an order denying enforcement.2

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 The sole basis of the Court’s decision denying enforcement was
that in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010), the
Supreme Court had determined that “a two-member group may not
exercise delegated authority when the total Board membership falls
below three because ‘the delegation clause [in section 3(b)] requires
that a delegee group maintain a membership of three in order to exer-
cise the delegated authority of the Board.’” NLRB v. Whitesell Corp.
2010 WL 2542904 at *1 (quoting New Process Steel, L.P. v. NLRB,
130 S.Ct. at 2644). The Court neither discussed nor decided the merits
of the two Board Members’ unfair labor practice findings, some of
which the Company had not contested before the Court.
Although the Board sought clarification of the Court’s order, the
Court denied that motion without explanation. Accordingly, we are
required to construe the Court’s decision and mandate in light of the
principle that a “mandate is ‘to be interpreted reasonably and not in a
manner to do injustice.’” Bailey v. Henslee, 309 F.2d 840, 844 (8th
Cir. 1962) (quoting Wilkinson v. Massachusetts Bonding & Ins. Co., 16
F.2d 66, 67 (5th Cir. 1926)). Accord: NLRB v. Donnelly Garment Co.,
330 U.S. 219, 225–228 (1947). Because the Eighth Circuit predicated
its denial of enforcement solely on New Process Steel’s determination
that the two members lacked authority to issue an order, we have con-
cluded that the Court’s decision and mandate are not a final resolution
of the pending unfair labor practice issues litigated before the adminis-
trative law judge and are not reasonably interpreted as terminating
further proceedings before the Board. Further, we do not find the
Eighth Circuit’s denial of the Board’s motion for remand or clarifica-
tion to be a significant factor in construing the Court’s decision and
mandate. As courts have explained, no inferential weight should be
ascribed to summary denials of post-judgment motions for rehearing or
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.3
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order to the extent
and for the reasons stated in the decision reported at 353
NLRB 166, which is incorporated herein by reference.
We also further address the appropriateness of a bargain-
ing order remedy.
On July 22, 2010, the Board sent a letter to the parties
inviting them to file supplemental pleadings bringing to
the Board’s attention any changed circumstances relevant
to the bargaining order issued by the judge or any alter-
native remedies the parties believed to be appropriate.
The Acting General Counsel, the Charging Party, and the
Respondent all filed submissions. The Acting General
Counsel and the Charging Party both argued that a bar-
gaining order remains appropriate. In the alternative, they
advocated that the Board consider other special remedies
in the event it decides not to adopt a bargaining order.
The Respondent argued that a bargaining order is no
longer an appropriate remedy based on the passage of
time since the Board’s earlier decision, additional mana-
gerial and employee turnover since then, and the impact
of the global financial crisis.

clarification, given the myriad reasons that the denials could represent.
See, e.g., Exxon Chemical Patents v. Lubrizol Corp., 137 F.3d 1475,
1479–1480 (Fed. Cir. 1998) (motion for clarification); U.S. v. Cote, 51
F.3d 178, 181 (9th Cir. 1995) (petition for rehearing or modification);
Luckey v. Miller, 929 F.2d 618, 621–622 (11th Cir. 1991) (petition for
rehearing en banc).
Finally, the Court’s jurisdiction under Sec. 10(e) and (f) of the Act
extends to review only of a “final order” of the Board. See Augusta
Bakery Corp. v. NLRB, 846 F.2d 445 (7th Cir. 1988) (dismissing peti-
tion for review for want of jurisdiction where Board had not issued a
“final” order). Absent such an order, there is nothing for a court to
enforce or set aside. See In re Labor Board, 304 U.S. 486, 494
(1938) (in finding that the Third Circuit exceeded its jurisdiction in
attempting to halt further proceedings before the Board, Supreme Court
held that a court without statutory power to decide the controversy in
the particular circumstances, “lacks jurisdiction of the subject matter
and must refrain from any adjudication of rights in connection
therewith”). The Court here made no finding that the order issued by
two Board Members who lacked authority to issue that order consti-
tuted a “final order” under the Act, and, in light of New Process, there
is a serious question whether the Court had jurisdiction either to decide
any dispute on the merits or to terminate further proceedings before the
Board in this case.
3 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
panel had the opportunity to participate in the adjudication of this case
at any time up to the issuance of this decision.
ADB UTILITY CONTRACTORS 1021
We agree with the Acting General Counsel and the
Charging Party that a category 1 bargaining order under
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) re-
mains appropriate. In granting the bargaining order as
part of the remedy, we recognize that almost 7 years have
passed since the commission of the last of the Respon-
dent’s unfair labor practices. Nonetheless, for the rea-
sons set forth in the incorporated decision, the passage of
time will not dissipate the coercive effects of the Re-
spondent’s outrageous and pervasive misconduct, includ-
ing its repeated threats of plant closure and job loss, re-
peated statements that unionization would be futile,
threats of discipline, fabrication of evidence against un-
ion supporters, and discharge of 13 union supporters (ap-
proximately 22 percent of the bargaining unit), many of
whom were leaders of the organizing campaign. See 353
NLRB 166, 167–169.4 “When the unfair labor practices
rise to that prominence [as required for a category I Gis-
sel order], the only additional element needed to ration-
ally support a bargaining order is a finding that the det-
rimental effects of the unfair practices will persist over
time, so as to continue the need for the bargaining order
even after months or years have elapsed.” Power, Inc. v.
NLRB, 40 F.3d 409, 423 (D.C. Cir. 1994). Such a find-
ing is clearly appropriate here.
Moreover, the additional 2-year lapse since the 2008
decision was beyond the control of the Charging Party
and the General Counsel and was not caused by any pro-
cedural or administrative delay on our part. The 2008
decision and order was issued in the good-faith belief
that the Board’s two sitting members had the statutory
authority to act. The Board did not acquire a third mem-
ber until April 2010. At that time, the case was not be-
fore the Board. The General Counsel had petitioned for
enforcement of the order on January 23, 2009, the Su-
preme Court issued New Process Steel on June 17, 2010,
and the Eighth Circuit denied enforcement of the order
on June 24, 2010.
In its supplemental brief to the Board, the Respondent
asserts that, since the issuance of the 2008 decision, the
size of its operation has contracted significantly and that,
excluding the discriminatees, not a single employee who
signed a union authorization card remains in its employ.
It also contends that only two of the eight managers who
participated in the unfair labor practices remain. As ex-

4 See Garvey Marine, Inc., 328 NLRB 991 (1999), enfd. 245 F.3d
819 (D.C. Cir. 2001) (adopting Gissel bargaining order over 4 years
after unlawful conduct); Churchill’s Supermarkets, 285 NLRB 138
(1987), enfd. 857 F.2d 1474 (6th Cir. 1988)(7 years after unlawful
conduct); Lou De Young’s Market Basket, Inc., 181 NLRB 35 (1970),
enfd. 430 F.2d 912 (6th Cir. 1970)(over 5 years after unlawful con-
duct).
plained in the incorporated decision, the Board’s estab-
lished practice is to evaluate the appropriateness of a
Gissel bargaining order as of the time that the unfair la-
bor practices occurred; changed circumstances following
the commission of the violations generally are not con-
sidered. See Garvey Marine, supra, 328 NLRB at 995–
996. Nevertheless, we have considered the arguments
urged by the Respondent and conclude that a bargaining
order is still warranted.
We reject the Respondent’s argument that employee
turnover since the 2008 decision militates against a bar-
gaining order. In light of its invidious, unlawful cam-
paign to thwart the Union, the Respondent’s narrow fo-
cus on the number of remaining employees who signed
authorization cards is misguided. A substantial percent-
age of the turnover is attributable to the Respondent’s
unlawful discharge of 13 union supporters, 11 of whom
are still entitled to reinstatement pursuant to the terms of
our Order.5 Further, the Respondent’s brief makes no
reference to the number of remaining employees who
were employed at the time of its unfair labor practices
and would have been exposed to the Respondent’s cam-
paign. Thus, the Respondent’s representation that none
of the 33 (of 59) employees who signed cards authoriz-
ing the Union to represent them remain employed does
not preclude the possibility that 26 of the remaining 29
employees in the unit were employed at the time the un-
fair labor practices were committed. Finally, for all cur-
rent employees, the Respondent’s unfair labor practices
are the type that will “live on in the lore of the shop and
continue to repress employee sentiment long after most,
or even all, original participants have departed.” Ban-
dag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978).
The “lore of the shop” will be given vivid embodiment
when some or all of the unlawfully fired employees ac-
cept reinstatement and explain to their coworkers that
they have only regained their jobs after 7 years of litiga-
tion.
The Respondent’s argument regarding management
turnover is equally unavailing. In its brief preceding the
2008 decision, the Respondent asserted that three of the
managers who were involved in the unfair labor practices
remained in its employ. The loss of one additional man-
ager since then is not a significant change. As explained
in the incorporated decision, the Respondent’s entire
antiunion campaign was in accordance with the virulent
antiunion sentiment of Rusty Keeley, who is still the
owner of the Company. The judge found that the unlaw-

5 If the unlawfully discharged union supporters accept reinstatement
and no other employees are displaced, they will constitute a quarter of
the bargaining unit even accepting Respondent’s representations about
its current size.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1022
ful campaign was “entirely consistent” with Keeley’s
desires and attitudes and that “the buck stop[ped] with
him.” 353 NLRB 166, 218–219. The Respondent vowed
to “fight all attempts to bring a union into our company
even if its takes years,” and stated that it would “never
recognize a union.” Id. at 174–175. It continued to fire
union supporters during the unfair labor practice trial
(John Shipp and Wayne Schaffer). Id. at 168. And, the
judge found that it engaged in “blatant and unconscion-
able” fabrication of evidence against union supporters
and that its general manager at the time of the unfair la-
bor practices, Chris Eirvin, had “no regard for the truth.”
Id. at 196–197. The Respondent has presented no evi-
dence that by word or deed Keeley or any other man-
agement official of the Respondent has ever repudiated
any of the unlawful activities detailed in the incorporated
decision by reinstating all the unlawfully fired union
supporters or in any other manner.6
Finally, we reject the Respondent’s entirely specula-
tive and legally unsupported argument that its employees
would no longer be inclined to support the Union in light
of the ongoing global economic crisis.
For all of these reasons, we do not believe a free and
fair rerun election can be held among the Respondent’s
employees at this time, even if it were preceded by full
compliance with all the “special remedies” described by
our colleague. Under the circumstances present here and
even with the passage of time, no such remedies can “as-
sure employees that Respondent will respect [their Sec-
tion 7] rights.” United Dairy Farmers Cooperative
Assn., 242 NLRB 1026, 1029 (1979). The special reme-
dies proposed by our colleague, even augmented by oth-
ers we have granted in prior cases, remain a second-best
alternative to enforcing the previously expressed senti-
ment of the majority of employees. The employees will
then have an opportunity, through the filing of a timely
petition for decertification,7 to demonstrate whether they
have changed their minds. We would, of course, grant
such special remedies if the Respondent chooses not to
comply with the bargaining order and enforcement can-

6 Moreover, the two supervisors that admittedly remain in the Re-
spondent’s employ—Ernie Nanney and Kevin Sellers—were active
participants in the Respondent’s unlawful antiunion campaign. Nanney
made various threats in violation of Sec. 8(a)(1) and was involved in
the Respondent’s pretextual discharge of discriminatee Shipp for low
production. Sellers read aloud the Respondent’s unlawful letter to his
employees and told them that, whatever they did, the Respondent
would never go union. He also was a principal in the unlawful termina-
tion of discriminatees Sutton, Williams, and Adams by falsely telling
them that they were required to relocate to Florida and then discharging
them when they refused to do so.
7 Such a petition would be timely if the parties are unable to reach
agreement on a contract after the parties have bargained for a reason-
able period of time.
not be obtained. See, e.g., United States Service Indus-
tries, Inc., 319 NLRB 231, 231–232 (1995) (and cases
cited therein).

MEMBER SCHAUMBER, dissenting in part.
Contrary to my colleagues in the majority, I would re-
scind the Gissel1 bargaining order originally issued in the
Board’s decision reported at 353 NLRB 166 (2008). I
would do so as a result of the regrettable but undeniably
substantial passage of time between the unfair labor prac-
tices engaged in by the Respondent and this Supplemen-
tal Decision and Order, as well as the other matters
raised by the Respondent in its recent submission re-
sponding to the Board’s request for briefing on changed
circumstances, as referenced by the majority.
I clearly understand my colleagues’ reasons for issuing
the Gissel bargaining order here. I agree with the
Board’s prior decision, incorporated by reference in this
decision, holding that the Respondent engaged in egre-
gious and pervasive unfair labor practices, including nu-
merous violations of Section 8(a)(1) and particularly
“hallmark” violations of the Act, and the Section 8(a)(3)
discharges of a large number of union supporters consti-
tuting a substantial percent of the bargaining unit.
On the other hand, I have repeatedly acknowledged
that Federal circuit courts have repeatedly chastised the
Board in no uncertain terms for failing to assess the ap-
propriateness of a Gissel bargaining order in light of
changed circumstances as of the date an order is entered.
And thus, contrary to Board policy but consistent with
these circuit courts decisions, I assess the appropriateness
of a Gissel order as of the time of issuance. See, e.g., my
dissenting position in Cogburn Healthcare Center, 342
NLRB 98 (2004).
Although the most recent delay in the Board’s issuance
of a legally binding bargaining order has not been of the
Board’s making, and was certainly a result of circum-
stances clearly beyond the Board’s control, the undispu-
table fact remains that 7 years have now passed since the
unfair labor practices at issue in this proceeding. The
Board itself has recognized that an excessively long de-
lay such as occurred here would likely render a bargain-
ing order unenforceable. Id. at fn.4.
This passage of time and the changed circumstances
noted by the Respondent, such as the contraction of the
unit, and employee and managerial turnover beyond that
considered in the Board’s prior decision, raise the impor-
tant and fundamental issue as to what current employees
want on the issue of union representation. I believe that
their desires can only fairly and accurately be determined
through a secret ballot election.

1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
ADB UTILITY CONTRACTORS 1023
In my view, under the circumstances, a combination of
special remedies will address the Respondent’s prior
unlawful conduct, its likelihood of being repeated and,
most importantly, effectuate employee free choice. Thus
I would order a new election with the following special
remedies: one, notice reading to all employees by a
Board agent, with management and union representatives
present; two, a notice mailed to all employees attaching
the Board notice and further advising them to report any
incidents of intimidation or coercion to the Board re-
gional office, with contact information; three, union ac-
cess to the Respondent’s premises for 2 hours twice a
week during the campaign in an area where employees
may voluntarily gather during nonworktime to discuss
unionization; and four, requiring the Respondent to
promptly provide the union with copies of all written-
management communications distributed during the un-
ion campaign and before the election that address the
issue of unionization or the employees’ terms and condi-
tions of employment.2

2 My colleagues contend that a Gissel order is the most effective
Accordingly I respectfully dissent on this issue.

remedy here, and that special remedies are “a second-best alternative.”
I disagree. Ascertaining and effectuating the desires of the Respon-
dent’s current workforce are of paramount importance. A fair election
is indisputably the best means for doing so. Moreover, the 7 years’ time
between the violations here and our order, and the accompanying
changes to the work force, render a bargaining order a particularly
questionable alternative for addressing current employees’ desires. In
these circumstances, I view special remedies set out above, coupled
with a new election, as best accommodating the dual goals of remedy-
ing the prior violations here and effectuating employee free choice. A
bargaining order, conversely, would saddle the employer with a bar-
gaining obligation with respect to a union that the majority of its em-
ployees may not have chosen in an election. And the majority’s sugges-
tion that the employees could file a timely decertification petition if
they “changed their minds” does not, in my view, address the funda-
mental question as to whether the current employees would have cho-
sen the union if given the opportunity to do so. Moreover, if the Board
issues a bargaining order, the employees would be precluded from
filing a decertification petition for a reasonable period of time, and if
the parties bargain and reach agreement, the employees would be fore-
closed from exercising their right to decertify the union for a substantial
period.