Gibbs Contracting, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 2019

05-CA-107444 (N.L.R.B. Mar. 25, 2019)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
GIBBS CONTRACTING, INC.
and Cases 05-CA-107444
05-CA-112497
INTERNATIONAL UNION OF
OPERATING ENGINEERS,
LOCAL 99
SUPPLEMENTAL ORDER
On October 20, 2014, the National Labor Relations Board issued its Decision and
Order1 in the above cases, directing Gibbs Contracting, Inc. (the Respondent), to, inter
alia, make whole the bargaining unit employees, with interest, for any losses sustained
due to the unlawfully imposed changes to their health, welfare, and pension
contributions, benefits, and other terms and conditions of employment made by the
Respondent in violation of Section 8(a)(5) and (1) of the National Labor Relations Act
(the Act). The Order also requires the Respondent to compensate the unit employees
for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and
to file a report with the Social Security Administration allocating the awards to the
appropriate calendar quarters for each employee.
On September 10, 2015, the United States Court of Appeals for the District of
Columbia Circuit entered its judgment in Case No. 15-1060, enforcing in full the Board’s
Order.
On July 18, 2017, the Respondent; the International Union of Operating
Engineers, Local 99 (the Union); and the General Counsel of the National Labor
Relations Board entered into a Formal Settlement Stipulation Consenting to Amount of
Backpay, Schedule for Payment, and the Entry of a Supplemental Board Order and
Consent Judgment (Stipulation), subject to the Board’s approval, providing for the entry
of a supplemental order by the Board and a consent judgment by any appropriate
United States Court of Appeals. The parties waived all further and other proceedings
before the Board to which they may be entitled under the Act or the Board’s Rules and
Regulations, and the Respondent waived all defenses to the entry of the judgment,
including compliance with the Order of the Board.

1 361 NLRB 704.
2
The Stipulation provides that the entire record in this matter consists of the
Stipulation; the underlying Board Order (361 NLRB 704); and the judgment of the
United States Court of Appeals for the District of Columbia Circuit Case No. 15-1060.
The Stipulation also fully resolves the United States District Court for the District
of Columbia Case No. 16-mc-01297 (ABJ).2
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The Stipulation is approved and made a part of the record, and the proceeding is
transferred to and continued before the Board in Washington, D.C., for the entry of a
Supplemental Order pursuant to the provisions of the Stipulation.
Based on the Formal Settlement Stipulation and the entire record, and pursuant
to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board
makes the following:
SUPPLEMENTAL ORDER
The Respondent, Gibbs Contracting, Inc., Washington, D.C., its officers, agents,
successors, and assigns, shall take the following affirmative action necessary to
effectuate the policies of the Act:
1. The parties have reached agreement concerning the amount of backpay due
under the terms of the Decision and Order of the Board. The full sum due is
$390,887.54, broken down as follows3:
(a) $247,313.19 in backpay due to individual employees;
(b) $46,924.39 in pension contributions due to the Central Pension Fund;
(c) $9,885.50 in dues remittances due to the International Union of Operating
Engineers, Local 99 (Union);
(d) $45,843.00 in interest on all sums described above in paragraphs 3(a)
through 3(c) due to the individual employees, the Central Pension Fund, and
the Union;
(e) $22,002.00 in excess tax compensation due to the individual employees; and

2 The parties filed a joint motion with the district court to dismiss Case No. 16-mc-01297
(ABJ) on July 26, 2017, pursuant to the instant settlement stipulation. The court granted
the motion on August 1, 2017.
3 The Stipulation inadvertently lists the total amount in backpay due to individual
employees as $247,313.18 (Stipulation at par. 3(a)), rather than the correct amount of
$247,313.19. Accordingly, the Stipulation also inadvertently lists the full sum due as
$390,887.53 (Stipulation at par. 3), rather than the correct amount of $390,887.54.
3
(f) $18,919.46 as the Respondent’s share of FICA on the backpay amount
identified above in paragraph 3(a), which will be forwarded to the appropriate
taxing authorities.
2. Payments due to the individual employees are as follows:
Employee Backpay Interest Excess Tax
Regimar Durr $42,229.91 $6,205.00 $5,124.00
Melvin Hansberry $12,240.32 $1,798.00 $749.00
John Jenifer $22,980.08 $3,377.00 $1,673.00
Robert Lathern $21,481.73 $3,156.00 $1,526.00
Bryan Marshall $22,171.62 $3,259.00 $1,594.00
Isaac Moore $22,249.84 $3,269.00 $1,601.00
Danielle Twisdale $26,523.33 $3,898.00 $2,052.00
Kevin Watts $17,727.76 $2,605.00 $1,158.00
Dwonn Williams $15,117.74 $2,222.00 $903.00
Shawn Wimbush $44,590.86 $6,553.00 $5,622.00
3. All parties waive the right to contest the amounts set forth above in
paragraphs 1 and 2, and waive their right to any hearing before an Administrative Law
Judge, the filing of exceptions and briefs before the Board, and all further and other
proceedings to which the parties may be entitled under the Act or the Board’s Rules and
Regulations to contest the amount of backpay, pension and dues remittances, interest,
and excess tax liability due. However, the Respondent does not waive the right to
prepay the amounts due without penalty. In the event of prepayment before the
expiration of the 18-month period, interest amounts will be re-calculated based on the
time of final payment and the Respondent does not waive the right to review and, if
necessary, contest the amount of final interest calculation in the event that prepayments
are made.
4. The obligation of the Respondent to make whole employees as described
above will be discharged by 18 consecutive monthly installment payments each in the
amount of $21,715.97. Payments are due and payable at the close of business on the
first day of each month beginning on July 1, 2017; if the first day of the month falls on a
weekend or holiday, the monthly payment is due on the next business day.
All payments will be made payable to the National Labor Relations Board, and
should be sent to the Board’s offices at NLRB Region 5, Bank of America Center, Tower
II, 100 S. Charles St., Ste. 600, Baltimore, MD 21201. At appropriate times, the Region
will request disbursements from the United States Treasury for payment to the
individual employees and/or Union funds. Appropriate withholdings will be made from
the backpay amounts and appropriate tax documents (such as a W-2 and Form 1099)
will be sent to the individuals by the Agency at the appropriate times.
4
5. In consideration of the installment plan described above in paragraph 4, the
Respondent agrees that upon approval of this Stipulation, the Board may immediately
enter this supplemental order providing for the payment to the individuals, Central
Pension Fund, and the Union listed above in paragraphs 1 and 2, in the amounts
opposite their names. Thereafter, the United States Court of Appeals for any
appropriate circuit may enter its judgment enforcing the supplemental order of the
Board. The Respondent waives all defenses to the entry of the judgment, including
compliance with the Order of the Board.
6. If any installment is not paid on or before the date due without proof of mailing
by certified, registered or other traceable/tracking mail, the full unpaid amount shall
become immediately due and payable and the Board may, without further notice,
institute proceedings against the Respondent for the collection of the full indebtedness
remaining due, with additional interest due on the entire unpaid balance from the date of
default until full payment is received. Proof of mailing by certified, registered, or any
other traceable/tracking method before the first of the month shall constitute compliance
with the due date of the first of the month, provided the amounts due and transmitted
are ultimately received by the Board.
Dated, Washington D.C., March 25, 2019.
_________________________________________
John F. Ring, Chairman
_________________________________________
Lauren McFerran, Member
_________________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD