Grinnell Fire Protection System Co.

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 141 (N.L.R.B. 2001)

GRINNELL FIRE PROTECTION SYSTEMS CO. 141
Grinnell Fire Protection Systems Company and Road
Sprinkler Fitters Local Union No. 669, U.A.,
United Association of Journeymen and Appren­
tices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO and
United Association of Journeymen and Appren­
tices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO. Cases
5–CA–24521, 5–CA–25227, and 5–CA–25406
December 20, 2001
ORDER DENYING MOTION
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On May 28, 1999, the National Labor Relations Board
issued a Decision and Order in this proceeding.1 The
Board found that the Respondent had violated the Act by,
inter alia, unilaterally changing terms and conditions of
employment when it implemented its final offer before
impasse had been reached in negotiations for a new col­
lective-bargaining agreement. The Board ordered the
Respondent to, inter alia, restore to unit employees the
terms and conditions of employment applicable before
the Respondent’s unlawful implementation and make
them whole for any losses suffered by reason of the
unlawful changes in terms and conditions. On December
29, 2000, the United States Court of Appeals for the
Fourth Circuit enforced the Board’s Order, and on Octo­
ber 1, 2001, the United States Supreme Court denied the
Respondent’s petition for certiorari.
On July 31, 2001, the Charging Parties filed a motion
for clarification of the Board’s Decision and Order. The
Charging Parties request that the Board hold that the
term “unit employees” in its Order includes not only
“crossover” employees who continued to work during
the nationwide unfair labor practice strike that was called
on the night of April 12, 1994, but also strike replace­
ments hired by the Respondent after the strike began.
On August 17, 2001, the Respondent filed an opposi­
tion to the Charging Parties’ motion, contending that the
strike replacements should not be included among the
“unit employees” for purposes of the Board’s Order.
The Board has considered the submissions of the par-
ties and has decided, for the reasons stated below, to
deny the Charging Parties’ motion.
The Charging Parties rely on Carpenter Sprinkler
Corp., 238 NLRB 974 (1978), enf. denied in relevant
part 605 F.2d 60 (2d Cir. 1979). There, however, the
Board’s decision and order—in marked contrast to this
1 328 NLRB 585 (1999), enfd. 236 F.3d 187 (4th Cir. 2000), cert.
denied 122 S.Ct. 49 (2001).
case—clearly and explicitly stated that make-whole relief
would extend to strike replacements. Here, as we will
explain, the Board used the phrase “unit employees,”
which certainly could be construed to exclude striker
replacements from the remedy.
Here, the General Counsel did not seek, and the Board
did not include, an order extending the remedy to re-
placements. Thus, the Charging Parties were on notice
that there was no such remedy in the Board’s Order. In
addition to the absence from the Board’s Order of any
indication that the strike replacements were included in
its remedial order, the timing of the Charging Parties’
motion also weighs heavily against it. More than 2 years
elapsed between the Board’s Decision and Order and the
filing of the Charging Parties’ motion. In the interim, of
course, the Fourth Circuit enforced the Order.
The situation here is the obverse of the one in
Yorkaire, 328 NLRB 286 (1999). In that case, the Board
order was clear that replacements for unfair labor prac­
tice strikers were to be included in the remedy, even
though they were not unit employees. Thus, the em­
ployer’s belated contention against this remedy was re­
jected. The Board said (at 288):
We also conclude that the strike replacements are enti­
tled to a remedy. As to this remedial issue, the Re­
spondent acknowledges the similarities between this
case and Carpenter Sprinkler Corp., supra, in which
the Board held that, when unlawful unilateral changes
in unit employees’ wages and benefits preceded, and
were the precipitating cause of, a strike, the remedy for
the unlawful changes properly covered both the striking
employees and their temporary replacements, who
were paid at the unlawfully implemented wage and
benefit rate. 238 NLRB at 976. The Respondent nev­
ertheless argues for the first time in its exceptions to the
compliance specification that Carpenter Sprinklers was
wrongly decided and that the striker replacements
should not, as a matter of law, be entitled to a remedy.
We reject this belated contention for the following rea­
son. In the underlying case, the General Counsel
sought a remedy for “sheet metal workers,” specifically
including those sheet metal workers who were re-
placements for unfair labor practice strikers. (The Ge n­
eral Counsel avoided the term “unit employees,” as that
term could be construed to exclude replacements for
unfair labor practice strikers.) In agreement with the
General Counsel, the judge awarded the remedy to
“sheet metal workers.” The Board agreed, and the
court enforced the order. The Respondent did not ar­
gue to the Board that this remedial order was erroneous
in this respect, i.e., that replacements for unfair labor
337 NLRB No. 22
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
practice strikers should not share in the 8(a)(5) remedy
because they are not unit employees, and, because Re­
spondent did not do so, it was not free to raise the issue
before the circuit court. Moreover, even if Respondent
had raised these issues, the order is now res judicata. In
these circumstances, Respondent cannot belatedly
make the contention now. [Footnotes omitted.]
The Charging Parties’ motion, though styled as one for
clarification, may more accurately be described as one
seeking additional substantive relief. Thus, the Charging
Parties are essentially asking the Board to change the
Order that has already been enforced by the Fourth Cir­
cuit. The Board, however, is without authority to change
such an order, as Section 10(e) of the Act provides that
upon the filing of the record in a United States court of
appeals, “jurisdiction of the court shall be exclusive and
its judgment and decree shall be final,” subject, of
course, to review by the Supreme Court. Accordingly,
because, as noted above, the Board’s Order has already
been enforced by the Fourth Circuit, and the Supreme
Court has denied certiorari, we no longer possess juris­
diction to modify that Order. Haddon House Food
Products, 260 NLRB 1060 (1982); Royal Typewriter
Co., 239 NLRB 1 (1978). See also NLRB v. Mastro
Plastics Corp ., 261 F.2d 147, 148 (2d Cir. 1958); cf.
Flav-O-Rich, Inc. v. NLRB, 531 F.2d 358, 361 (6th Cir.
1976).
For the foregoing procedural reasons, we deny the
Charging Parties’ motion and we reaffirm that the
Board’s Order in this proceeding does not extend make-
whole relief to strike replacements.2
2 Chairman Hurtgen notes that, in Yorkaire, supra, he stated his view
that the Second Circuit’s reversal of the Board’s decision in Carpenter
Sprinkler was correct. Accordingly, in addition to the procedural rea­
sons relied on by his colleagues, he would deny the Charging Parties’
motion on the merits.