Nichols & Wright Paving, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 1, 2008

09-CA-041612 (N.L.R.B. Jul. 1, 2008)

JD(ATL)–20–08
Huntington, WV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
NICHOLS & WRIGHT PAVING, INC.
and Case 9–CA–41612
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL NO. 132, AFL-CIO
and Case 9–CA–41729
LABORERS’ DISTRICT COUNCIL, CHARLESTON,
WEST VIRGINIA, LABORERS’ LOCAL UNION NO. 543
Eric A. Taylor, Esq., for the General Counsel.
Roger Williams, Esq., for Charging Party Laborers’
District Council and Laborers Local 543.1
BENCH SUPPLEMENTAL DECISION
Statement of the Case
MICHAEL A. MARCIONESE, Administrative Law Judge.2 I heard this case in
Huntington, West Virginia, on May 27, 2008. This is a compliance proceeding initiated by
General Counsel’s issuance of a compliance specification and notice of hearing on August 14,
2007. On February 23, 2007, the Board issued its Decision and Order in this case, reported at
349 NLRB No. 39, finding that the Respondent, Nichols & Wright Paving, Inc., violated Section
8(a)(1) and (5) of the Act by, inter alia, unlawfully terminating its collective bargaining
agreements with the two Charging Party Unions. The Board ordered that the Respondent
reinstate the unlawfully terminated collective bargaining agreements and comply with all their
terms and conditions retroactive to December 4, 2004. Specifically, Respondent was ordered to
make whole the Union’s fringe benefit trust funds for the nonpayment of contractually-required
contributions; to make the Union’s whole for dues and fees that the Respondent failed to deduct
and remit; and to make employees whole for any wages lost as a result of the Respondent’s
failure to pay them the contractual rate of pay. The August 14, 2007 compliance specification
set forth the amount of money General Counsel claimed was owed by the Respondent pursuant
to the Board’s order.3

1 Brian Blickenstaff, Esq., appeared at the hearing as counsel for Lyndon Graham, identified
erroneously in the transcript as “Brendan Grant”, the Trustee in Bankruptcy appointed by the
bankruptcy court on May 13, 2008 as a result of the Respondent’s filing a petition for liquidation
under Chapter 7 of the bankruptcy code. Mr. Blickenstaff appeared for the limited purpose of
making a motion for a continuance.
2 The court reporter erroneously identified the undersigned administrative law judge as
“Martin Marcionese”. The transcript is hereby corrected.
3 The Board’s Order was enforced by mandate of the Fourth Circuit Court of Appeals on
February 7, 2008.
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On August 20, 2007, the Respondent filed its answer to the compliance specification,
admitting that the General Counsel’s mathematical calculations were correct but asserting, as
an affirmative defense, that “the parties … met on various occasions in April and May 2007 and
arrived at a settlement agreement specifically disposing of all the issues set out in this
Specification…”
On September 10, 2007, Counsel for the General Counsel filed with the Board a Motion
for Summary Judgment based on the Respondent’s admission in its answer that the back pay
calculations were correct. By order dated February 27, 2008, the Board denied General
Counsel’s motion, ruling that Respondent’s affirmative defense that the parties had entered a
non-Board settlement agreement raised material issues of fact that prevented summary
judgment. The Board remanded this proceeding to the Region which then scheduled the instant
hearing.
Although properly served with notice of the hearing, and having previously been served
with the compliance specification and General Counsel’s motion for summary judgment, no
representative of the Respondent appeared at the May 27 hearing. The Respondent’s counsel
who filed the August 17 answer withdrew from the case before the summary judgment motion.
Thereafter, General Counsel directly served the Respondent at its place of business with all
documents related to this case.
As noted previously, the newly appointed Chapter 7 bankruptcy trustee appeared at the
hearing by counsel and requested a continuance on the basis that he needed time to secure
labor counsel and prepare possible defenses and, if necessary, step into the shoes of the
debtor, Respondent herein, to contest the compliance specification. I denied the request for a
continuance based on my finding that the trustee, who is not a party to this proceeding and
whose charge from the bankruptcy court was to liquidate the debtor’s assets for the benefit of
the creditors, did not have standing to contest the compliance specification. I noted that the
Respondent’s liability for the unfair labor practices has already been established through the
Board’s Order enforced by the Court of Appeals. I also noted that, before filing for bankruptcy,
the Respondent admitted that the General Counsel’s back pay calculations were correct. To
allow the trustee to intervene now to delay these proceedings, without any substantive showing
of harm, would amount to granting the automatic stay that courts have historically held does not
apply to NLRB proceedings. NLRB v. Evans Plumbing Co., 639 F.2d 291, 293 (5th Cir. 1981).
See also Nathanson v. NLRB, 344 U.S. 25, 29-31 (1952).
Pursuant to Sections 102.35(a)(10) and 102.45 of the Board’s Rules and Regulations, I
hereby certify the accuracy of the portion of the transcript, page 43, line 16 through page 48,
containing my bench decision.4 A copy of that portion of the transcript is attached to this
decision as “Appendix A”.
Having found that the General Counsel’s calculations are correct and that no non-Board
resolution of the dispute that would effectuate the Act existed, I issue the following
recommended5

4 The transcript, at page 45, lines 3-4, is hereby corrected to replace “independent stay” with
Independent Stave Co., 287 NLRB 740 (1987). The transcript at page 45, line 5 is corrected to
add the correct citation for American Pacific Pipe Co., 290 NLRB 623 (1988).
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
Continued
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ORDER
The Respondent, Nichols & Wright Paving, Inc., Huntington, West Virginia, its officers,
agents, successors and assigns, shall make the following payments in accordance with the
National Labor Relations Board’s Decision and Order at 349 NLRB No. 39, as enforced by the
Court of Appeals, plus interest on the back pay amounts as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), and interest on the fringe benefit fund contributions to be
determined in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216, fn. 7 (1979):
Funds Dues
International Union of Operating Engineers,
Local No. 132, AFL-CIO $47,664.00 $4,952.00
Laborers’ District Council, Charleston, West Virginia,
Laborers’ Local Union No. 543 $25,950.00 $2,111.00
Employees
Wetzel Fulks $ 390.00
Harold Maynard $14,092.00
William Mann $ 411.00
Alan Burrus $ 1,110.00
Billy Watts $ 113.00
Marvin Robertson $ 8,515.00
Anthony Salmons $12,228.00
Roland Hively $13,892.00
Ron Lambert $ 1,478.00
Donald Spence $ 459.00
Dated, Washington, D.C., July 1, 2008.
____________________
Michael A. Marcionese
Administrative Law Judge
_________________________
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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APPENDIX A
All right, having - normally I would take some time to consider the matter before
rendering a Bench Decision, but since there is no opposing evidence to contradict anything that
the General Counsel has offered and although Respondent Nichols and Wright Paving, Inc. was
certainly served with Notice of the hearing and had filed an Answer to the Compliance
Specification and well aware of these proceedings has chosen not to attend. In essence this is
the nature of a default judgment at this point we have no contradictory evidence.
Essentially based on the Compliance Specification and the testimony and evidence that
I've seen here today I would grant a Summary Judgment Motion by the General Counsel and
find that the backpay owed by Nichols and Wright Paving, Incorporated under the terms of the
Board's Order as enforced by the Court of Appeals would be the amount set forth in the
Compliance Specification.
I note that the initial Answer filed, and there's been no subsequent Answer or
Amendment of that Answer admitted all of those calculations, so there has been from the
beginning no dispute about the amounts in question in this proceeding. The only issue raised,
which gave the Board pause on the Summary Judgment filed with the Board was the issue of
whether the matter had been resolved in a non-Board agreement between the parties.
While, General Counsel, I think you're correct that the burden would be on the
Respondent to present whatever evidence there would be to establish that, in fact, there has
been a non-Board resolution that satisfies the standards that the Board applies and would
effectuate the policy of the Act. In this case, certainly, there has been enough evidence offered
here today from Mr. Williams' testimony that whatever agreement was reached certainly does
not meet the standards of the Board. Not only in an independent stay, but the case the Board
cited American Pacific Concrete Pipe Company, Incorporated, which dealt specifically with a
non-Board settlement of a Compliance matter, where there had already been a Board Order.
Therefore, you would think less of a risk of litigation.
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The Board approved that non-Board resolution in American Pacific Concrete Pipe, but
that there was evidence that it was an individual's claim for backpay, that there was no fraud,
coercion or duress. That it was reasonable in light of the risks involved in that litigation which
involved issues of interim earnings and willful loss, which we don't have in a case of this nature
here.
Looking at those standards certainly we don't have a situation here where the Charging
Party, the Respondent and the Discriminatee or affected employees have all agreed to be
bound. In fact, even assuming that the Respondent - it would only be the Respondent - it isn't
even the Charging Party that agree to be bound, but it was the Funds that entered into that
settlement agreement with the Respondent. The Unions themselves who have a claim for
unpaid dues were not a party to that agreement that Mr. Williams described. Certainly, none of
the employees who had lost wages that they were entitled to.
General Counsel has never been a party to those discussions and has opposed
approval of the settlement. In terms of the stage of the litigation and the risks involved we're
dealing with a Compliance proceeding where there's already been a finding of an unfair labor
practice.
We don't have an issue of individual lost wages where there's been a backpay period
where the employees are required to mitigate. Here the employees were apparently continuing
to work for the Employer, but receiving a lesser wage. So, there's little risk on their part in terms
of if they went to hearing whether the amount claimed would be reduced.
So, certainly, in light of all the circumstances I agree with General Counsel that even if
there was an agreement reached between the Funds and the Respondent it would not
effectuate the policies of the Act to approve it and to accept that in lieu of the backpay claims
that have been made under the terms of Board's Order.
Okay, in light of that I will grant the Summary Judgment request. What I will do is upon
receipt of the transcript I will issue a written decision that will certify the portions of the transcript
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that contain my ruling and my decision here. Then that will be served, a copy will be served, on
the Parties, as well as the Trustee will be served a copy even though not formally a Party to
these proceedings at this point. Anyone who takes exception to any of my rulings or my
decision in this matter has a right to file exceptions with the Board. The Statement of
Procedures will explain how to go about doing that. Then the Board will consider any
exceptions that are made before making a final Order in this case.
Now, anything further before we adjourn?
MR. TAYLOR: Yes, Your Honor, very briefly. Counsel for General Counsel would ask
that in your recommended Order that you include interest and until the date of payment.
JUDGE MARCIONESE: All right, that would be standard, I guess, in any Board Order
on a backpay or compliance proceeding. What I will do is I will - my Decision will certify the
portions of the transcript that contain my ruling here today. Plus, it will contain a proposed
Order recommended to the Board which will set forth these specifics in terms of the amounts
required to be paid to each. We have the Unions, the Funds and the individual employees.
Then at that point, as I think we talked about earlier, I will leave it to General Counsel to
collect in any way, if that's possible, under the terms of the Bankruptcy Court and the matter will
then be resolved through the Bankruptcy proceedings in terms of whether there are any assets
and, if so, what priority any of these claims might have.
All right, if there's nothing further, then this hearing will be closed and thank you all very
much and look forward to seeing you again in the future.
MR. TAYLOR: Thank you, Judge.
(Whereupon, the hearing in the above entitled matter was adjourned at 2:49 p.m.)