Fluor Daniel, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 2008

353 N.L.R.B. 133 (N.L.R.B. 2008)

FLUOR DANIEL, INC.
353 NLRB No. 15
133
Fluor Daniel, Inc. and United Association of Jour-
neymen & Apprentices of the Plumbing & Pipe-
fitting Industry of the United States of America
and Canada, Plumbers & Steamfitters, Local
198, AFL–CIO and International Brotherhood
of Electrical Workers, Local 995, AFL–CIO and
International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers, &
Helpers, AFL–CIO and United Brotherhood of
Carpenters and Joiners of America. Cases 15–
CA–12544, 15–CA–12666, 15–CA–12723, 15–
CA–12852, 15–CA–12936, 15–CA–12938, 28–
CA–12750, and 28–CA–13357
September 25, 2008
DECISION AND ORDER REMANDING
PROCEEDING
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On August 23, 2007, the second day of hearing in
these cases, Administrative Law Judge Gregory Meyer-
son issued an on-the-record ruling that the Board’s deci-
sion in Oil Capitol Sheet Metal1 applies to this compli-
ance proceeding. On the same day, he also issued on-
the-record rulings that the 119 discriminatees at issue
were union “salts,”2 and that it was the General Coun-
sel’s burden to establish both the length of time the dis-
criminatees would likely have remained at their jobs and
that they would have joined the Respondent’s preferen-
tial database. The judge then recessed the hearing in
order to permit the parties to file requests for special
permission to appeal his rulings. Thereafter, the General
Counsel, the Charging Parties, and the Intervenor filed
several requests for special permission to appeal the
judge’s rulings. The Respondent filed briefs in opposi-
tion and a motion to strike the General Counsel’s request,
the General Counsel and Charging Party International
Brotherhood of Boilermakers filed reply briefs, and the
General Counsel filed a brief in opposition to the Re-
spondent’s motion to strike his request.
The National Labor Relations Board grants the Gen-
eral Counsel’s, Charging Parties’ and Intervenor’s re-
quests for special permission to appeal.3

1 349 NLRB 1348 (2007).
2 Although both the judge and the underlying decision refer to 120
discriminatees who are entitled to instatement and backpay, the Board’s
Order in the underlying case requires the Respondent to instate and
make whole 119 discriminatees.
3 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 Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
After careful consideration, and consistent with earlier
Board decisions, we find that the judge did not abuse his
discretion by ruling that Oil Capitol applies to these pro-
ceedings.4 See, e.g., McBurney Corp., 352 NLRB 241
(2008), motion for reconsideration denied 352 NLRB
879 (2008).5
In addition to declining to revisit Oil Capitol, we point
out that the Board lacks jurisdiction to further consider
the Respondent’s reinstatement obligations because this
aspect of the Board’s Order in the underlying case on the
merits6 has been enforced by the Sixth Circuit.7 Accord-
ingly, the Board’s instatement Order, as enforced by the
Sixth Circuit, is the law of the case.8
As to the judge’s ruling that the discriminatees at issue
were union “salts,” we deny the Charging Parties’ ap-
peal. The judge specifically ruled on the record “that the
Board determined in the unfair labor practice case that
the [119] discriminatees were the equivalent of salts[,]”

three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
4 The Respondent contends that the General Counsel’s, Charging
Parties’ and Intervenor’s Requests for Special Permission to Appeal
should be rejected as untimely because they were not filed “promptly”
as required by Sec. 102.26 of the Board’s Rules and Regulations. We
find it unnecessary to address this contention because we deny the
appeals on the merits.
5 For institutional reasons, Member Liebman, who dissented in Oil
Capitol, a controlling decision by the full Board, concurs in the denial
of the General Counsel’s, the Charging Parties,’ and the Intervenor’s
appeals. While Member Liebman believes that claims of manifest
injustice resulting from the retroactive application of a new legal rule
should be considered on a case-by-case basis, denying the present ap-
peals avoids delay in the disposition of this case. In Member Liebman’s
view, if the retroactive application of Oil Capitol ultimately has a de-
monstrably adverse effect on the backpay award in this case, the Gen-
eral Counsel or the Charging Parties would be free to pursue the mani-
fest injustice issue. See McBurney Corp., supra, 352 NLRB 879 fn. 7
(2008).
6 Fluor Daniel, Inc., 333 NLRB 427 (2001).
7 Fluor Daniel, Inc. v. NLRB, 332 F.3d 961 (6th Cir. 2003).
8 The Charging Parties and Intervenor assert that the judge erred in
finding that Dean General Contractors, 285 NLRB 573 (1987), is not
the law of the case. They contend that because the Board stated in the
underlying decision, 333 NLRB at 427 fn. 4, that “[i]ssues concerning
the applicability of Dean General . . . to the instant case can be raised
in the compliance proceeding,” the Sixth Circuit enforced a Board
Order that included a “sufficiently specific evidentiary standard.” (Br.
at 12–13.) The Board’s decision in Fluor Daniel, 351 NLRB 122 fn.
11 (2007), precludes this argument. Consistent with her dissent in that
case (see id. at 4 fn. 9), Member Liebman agrees with the Charging
Parties and the Intervenor that Dean General Contractors, supra, is the
law of the case under the facts presented here, and that the Board
should be precluded from applying Oil Capitol retroactively under the
“law of the case” doctrine. She recognizes, however, that the majority
decision in Fluor Daniel is controlling Board precedent on the “law of
the case” issue presented here, and she agrees to apply that decision
solely for institutional reasons and to expedite final resolution of this
case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD134
and that since the discriminatees, as voluntary union or-
ganizers, were “one and the same” as salts, the General
Counsel was precluded from revisiting the issue at com-
pliance.9 The judge’s ruling is consistent with the
Board’s ruling in prior decisions, and we find no reason
for reversing it here.10
The last challenged ruling relates to disposition of the
General Counsel’s August 13, 2007 motion in limine,
which requested, as relevant here, that the judge give
preclusive effect to the following findings of the Board
in its earlier decision: (1) that the discriminatees had
“agreed to accept employment if offered, [and] to stay
until laid off,” and (2) that the Respondent uses a prefer-
ential database of former employees in staffing new pro-
jects. See Fluor Daniel, 333 NLRB at 430. Relying on
these findings in the underlying case, the General Coun-
sel sought “to preclude litigation over issues already de-
cided in the underlying unfair labor practice hearing.”
Specifically, the General Counsel requested that the
judge find “without the need of additional evidence, that:
([1]) the discriminatees in this matter would have worked
for Respondent until laid off . . . and ([2]) had they been
hired, the discriminatees would have joined the pool of
Respondent’s favored employees, receiving hiring pref-
erences for future employment.” (GC Motion in Limine
at 2–3.)
The judge specifically declined to make the requested
findings. Rather, as to the first issue, the judge reasoned
that the mere fact that the discriminatees had “agreed” to
work until laid off did not establish that they actually
would have worked until laid off. Consequently, the
judge ruled that “[u]nder the burdens established in Oil
Capitol, it will be the General Counsel’s responsibility to
establish the length of time the discriminatees would
have likely remained on the Palo Verde and Exxon pro-
jects and whether they would have applied for and been
hired for jobs on subsequent projects.”11
As to the second issue, in declining to find that the dis-
criminatees would have joined the Respondent’s prefer-
ential database, the judge reasoned that “it has not been
established that each of the discriminatees would have
automatically been added to that database, as it has not

9 Aug. 23, 2007 Tr. at 97.
10 See, e.g., Fluor Daniel, 351 NLRB 103 (2007). Under Board law,
salts are “individuals, paid or unpaid, who apply for work with a non-
union employer in furtherance of a salting campaign.” Oil Capitol,
supra at 348 fn. 5. A salting campaign, in turn, is defined as a cam-
paign in which a union sends its member(s) to an unorganized jobsite
“to obtain employment and then organize the employees.” Tualatin
Electric, 312 NLRB 129, 130 fn. 3 (1993), enfd. 84 F.3d 1202 (9th Cir.
1996). The discriminatees at issue here fit the Oil Capitol definition of
a “salt.”
11 August 23, 2007, Tr. at 91–92.
been established that each of the discriminatees would
have continued to be employed at the Palo Verde and
Exxon projects until laid off.”12 The judge then ruled
that “[u]nder the burdens established in Oil Capitol, it
will be the General Counsel’s responsibility to establish
the length of time the discriminatees would have likely
remained on the two projects and the likely circum-
stances under which their individual employment would
have ended.”13
As explained above, we have denied the General
Counsel’s special appeal of these rulings on the merits.
However, we note that, in the underlying proceeding, the
Board and the court made specific factual findings that
the discriminatees had “agreed to accept employment if
offered, [and] to stay until laid off,” and that the Respon-
dent used a preferential database of former employees in
staffing new projects, 333 NLRB at 430. See also 332
F.3d at 964–965. Consistent with the precedent cited
below, we find that these factual findings may not be
relitigated in the compliance proceeding, but we leave to
compliance whether these findings are sufficient to sat-
isfy the General Counsel’s burden of proof under Oil
Capitol regarding the duration of the backpay period.
Finally, we also deny Charging Party International
Brotherhood of Boilermakers’ appeal regarding the re-
cord in the underlying unfair labor practice hearing,
without prejudice to raising this issue in a proper motion
to the judge. On July 2, 2007, the first day of the hear-
ing, the judge indicated, in response to a question from
the Charging Party’s counsel, that he would not read or
rely on the record in the underlying unfair labor practice
hearing, which encompassed 51 days of hearing and nu-
merous exhibits.14 Although the judge discussed this
issue on the record, he never “ruled” on it because there
was no motion before him. Therefore, the Board lacks
jurisdiction to consider the merits of the Charging Party’s
appeal.
We note, however, that Board precedent bars relitiga-
tion of issues in a compliance proceeding that were pre-
viously decided in an underlying unfair labor practice
proceeding. See, e.g., Great Lakes Chemical Corp., 300
NLRB 1024, 1025 fn. 3 (1990), enfd. 967 F.2d 624 (D.C.
Cir. 1992) and cases cited therein (“In general, a factual
finding that was necessary to support the judgment

12 Id. at 92.
13 Id. at 92–93.
14 July 2, 2007, Tr. at 56–58.
FLUOR DANIEL, INC. 135
in a prior proceeding will bar relitigation on that issue in
a subsequent proceeding involving the same parties.”);
Task Force Security & Investigations, 323 NLRB 674, 674
fn. 2 (1997) (“A respondent in a compliance proceeding
may not relitigate issues previously decided in an under-
lying unfair labor practice proceeding.”).
ORDER
IT IS ORDERED that this proceeding is remanded to
Administrative Law Judge Gregory Meyerson for further
action consistent with this decision.