Gimrock Construction

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 401 (N.L.R.B. 1998)

GIMROCK CONSTRUCTION, INC. 401
Gimrock Construction, Inc. and International Union
of Operating Engineers, Local Union 487, AFL–
CIO. Case 12–CA–17385
August 27, 1998
DECISION AND ORDER
By CHAIRMAN GOULD AND MEMBERS FOX
AND HURTGEN
On May 31, 1996, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel, the Union, and the Respondent filed excep-
tions and supporting briefs. The General Counsel and
the Union filed answering briefs, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order, as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Gimrock
Construction, Incorporated, Hialeah Gardens, Florida, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In his decision the judge erroneously states that: (1) the Union pre-
sented the Respondent with one contract proposal at the first bargaining
session after the Union’s certification, whereas the record indicates that
the Union presented the Respondent with two contract proposals; (2)
the strike commenced on May 30, 1995, whereas the record indicates
that it commenced on May 31, 1995; and (3) the series of three-way
conversations initiated by Company Vice President Lloyd Hunt to
break the impasse and end the strike occurred on June 1, 1995, whereas
the record indicates they occurred on June 2, 1995. These apparently
inadvertent errors do not affect our decision. We have modified the
Order to provide that the notice be posted at the Respondent’s Hialeah
Gardens, Florida facility.
In its exceptions, the Union objects to the judge’s characterization of
the dispute between the Union and the Employer as being about
whether certain work would be performed by the Union’s members or
by “non-bargaining unit” or “non-union” employees. The Union notes
that it was certified in 1995 following a Board-conducted election as
the bargaining representative of “all equipment operators, oiler/drivers
and equipment mechanics employed by Respondent in Dade and Mon-
roe counties” and that this certification encompasses all employees of
the Employer performing work in those classifications, not just em-
ployees performing such work who may be members of the Union.
Contrary to various statements by the judge to the effect that the Union
was seeking to have all oiler and mechanics’ work assigned to its mem-
bers, the Union states that its bargaining position was simply that any
employee (union or nonunion) performing oiler or mechanic’s work
should be covered by the contract and paid contractual wages and bene-
fits, in accordance with the bargaining unit certification. We find merit
to these exceptions. Thus, in adopting the judge’s conclusions with
respect to the unfair labor practices alleged, we do not rely on these
statements by the judge.
1. Substitute the following for paragraph 2(d).
“Within 14 days after service by the Region, post at its
facility in Hialeah Gardens, Florida, copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,
on forms provided by the Regional Director for Region
12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and formeremployees em-
ployed by the Respondent at any time since September 7,
1995.”

Maria C. Perez, Esq., for the General Counsel.
Donald T. Ryce, Esq., for the Respondent.
Kathleen M. Phillips, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Miami, Florida, on March 20 and 21, 1996. The
charge in this proceeding was filed by the Union on September
7, 1995, and the complaint was issued by the Regional Director
on January 18, 1996. In substance, the complaint alleges as
follows:
That on March 3, 1995, pursuant to a Stipulated Election
Agreement, the Union won an election conducted by the Re-
gional Director and was certified as the bargaining representa-
tive on March 20, 1995, in a unit consisting of

All equipment operators, oiler/drivers and equipment mechan-
ics employed by Respondent in Dade and Monroe counties in
Florida, excluding all office clerical employees, professional
employees, guards and supervisors as defined in the Act.

2. That on or about June 2, 1995, the Union and the em-
ployer reached a complete agreement.
3. That since June 2, 1995, the Respondent has refused to
sign the above contract and has demanded and insisted, as a
condition of executing the proffered contract, that the Union
agree to limit their collective-bargaining relationship to a “pro-
ject agreement” covering only those unit employees working at
the Port of Miami.
4. That a strike which ensued at the Respondent on May 31,
1995, was converted to an unfair labor practice strike on June 2,
1995, because of the Respondent’s conduct described above.
5. That on June 6, 1995, the Union by its business agent,
James Allbritton, made an oral request to return to work on
behalf of:

326 NLRB No. 33
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402
Ronnie Chinners Al Duey
Joseph MacNeill Joseph Robinson
Barney Sims James Wilkerson
James Wolf

6. That since June 6, the Respondent has failed and refused
to reinstate the aforementioned employees.1 The Respondent
denies that an agreement was ever reached. The Respondent
also denies that it insisted, as a condition of agreement, or that
it insisted to the point of impasse, that the only agreement it
would sign was a “project” agreement limited to the Port of
Miami.
As to the strike, the Respondent asserts that at best, the strike
was an economic strike. It also contends that inasmuch the
strike was motivated by an object of having the employer reas-
sign certain work from nonbargaining unit employees to em-
ployees within the unit, the strike was a jurisdictional strike
outlawed by Section 8(b)(4)(D) of the Act, and therefore con-
stituted unprotected activity.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Company is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a heavy civil contractor that specializes in
harbor and marine construction in South Florida and the Carib-
bean. Among other things, it is engaged in foundation work for
bridges and seawalls and also does construction work in rela-
tion to harbor dredging. In the course of its business, the com-
pany has a category of workers that it calls construction
specialists. Because some of its work often involves the use of
cranes and other types of heavy equipment such as backhoes,
front-end loaders and pile drivers, the Company has also em-
ployed operating engineers who it has obtained through the
Union’s hiring hall.
From about 1987 to 1995, the Company and the Union en-
tered into a series of contracts covering “operating engineers.”
These contracts which were made pursuant to Section 8(f) of
the Act (prehire agreements), were limited to specific projects
that the Company was engaged in at the time that the agree-
ments were executed. Nevertheless, it appears that if operating
engineers were moved to another project during the term of the
contract, they were paid in accordance with the executed

1 The Charging Party in its brief, argued that the Respondent com-
mitted an additional violation when on or about June 5, it told employ-
ees that if the Union signed a project agreement, the Company would
pay its workers $1 over scale. The Charging Party contends that this
constituted an attempt to deal directly with employees and therefore a
violation of Sec. 8(a)(5) of the Act. However, as this is not alleged in
the complaint and as this was not, in my opinion, fully litigated, I shall
not conclude that these statements, assuming that they were made,
constituted an unfair labor practice.
agreements and appropriate contributions were made to pension
and welfare funds.
Operating engineers are a group of people who operate
heavy construction equipment such as cranes, bulldozers, back-
hoes, front-end loaders, etc. The people represented by various
locals of the Operating Engineers Union, have differing skills
and have a wide range of competency in operating construction
machinery. At one end would be those employees who by dint
of experience and training can operate all or most of the equip-
ment that is used in construction, including cranes. At the other
extreme is a group of people who are called “oiler/drivers” who
essentially are unskilled people who do general work associated
with the machines operated by and maintained by operating
engineers.2
The basic problem in this case revolves around the definition
of “oiler” work and to a lesser extent to work done by mechan-
ics.
Apart from the operating engineers that the Company has
employed and obtained from the Union’s hiring hall, the re-
mainder of its work force has never been represented by a labor
organization. The work of operating cranes has always been
done exclusively by operating engineers. Also the work of
operating machinery, such as backhoes and front-end loaders,
has preferentially been assigned to operating engineers. There
has usually been one or at most two mechanics who are mem-
bers of the Operating Engineers Union who work with operat-
ing engineer type of equipment. The Company has also em-
ployed a couple of other nonunion mechanics who, although
generally assigned to other equipment, can and have been as-
signed to perform work on equipment used by operating engi-
neers.
Although there is evidence that on a few occasions the Com-
pany has used the Union’s hiring hall to hire an “oiler” the
evidence does not show for how long such individuals have
worked and whether they have worked exclusively in that clas-
sification. By and large, the Company has not employed any
persons in the exclusive category of oiler and the type of work
generally done by this category has been done either by an
operating engineer who is not busy or by one of the Company’s
other nonunion employees.
Gary Waters became the Business Manager of the Union in
September 1994. He testified that at some point in 1994, an
audit had been made of Gimrock, and he became aware that
although the Company made all payments on behalf of union
members, the contract that they were working under was lim-
ited to a specific project that had been completed. Technically,
the payments were not being made pursuant to the terms of any
extant collective-bargaining agreement.3 Waters testified that
he asked Company Representative Lloyd Hunt to sign an
agreement and that he sent the standard area contract to Gim-
rock. He states that he finally caught up with Hunt in January
1995 and was told that he would only sign a project agreement
in accordance with the past practice that he had with Water’s
predecessor.
2 The distinctions are reflected in the contracts. Thus for example,
looking at G.C. Exh. 6(d), the highest pay rate is for crane operators
and the lowest is for oiler/drivers. (Apprentices are paid at a lower rate
than journeymen.)
3 As Sec. 302 of the Act prohibits such payments in the absence of a
collective-bargaining agreement, both the Company and the Union
could conceivably have been liable.
GIMROCK CONSTRUCTION, INC. 403
As the Company did not respond to the Union’s request, the
Union filed a petition for an election on January 26, 1995, in
Case 12–RC–7816. On February 13, 1995, the Regional Direc-
tor approved a stipulation Agreement signed by the parties on
February 9. An election pursuant to that agreement was con-
ducted by the Board on March 3, 1995. The bargaining unit set
out in the Stipulation tracked the bargaining unit described in
the Union’s standard contract and the Company compiled an
Excelsior list of eligible voters consisting of 11 individuals who
worked a sufficient number of days or a sufficient number of
months to be eligible under the formulas for construction work
set forth in Steiny & Co., 308 NLRB 1323 (1992), and Daniel
Construction 133 NLRB 264 (1962), as modified 167 NLRB
1978 (1967). Neither side had observers at this uncontested
election and apart from 2 people who were challenged because
their names were not on the list, the Union won the election.
This was not surprising as all the voters were already union
members.
On March 20, 1995, the Union was certified in a unit consist-
ing of:

All equipment operators, oiler/drivers and equipment mechan-
ics employed by Respondent in Dade and Monroe counties in
Florida, excluding all office clerical employees, professional
employees, guards and supervisors as defined in the Act.

Although the certification included the category of
“oiler/driver,” the facts show that as of the date of the Stipula-
tion Agreement and the date of the election, there was no per-
son who fell within this category in the sense that there were no
employees who were exclusively assigned to do this work. As
noted above, work traditionally done by oilers was done at this
company either by an operating engineer who was not busy or
by one of the Company’s nonunion employees. Thus, the seeds
of the ensuing dispute, were unanticipated at the time that the
parties agreed to conduct the election.
B. The Alleged Unfair Labor Practices
Waters testified that on the day before the election, the Com-
pany’s attorney, Donald Ryce, came to his office and said that
the Company would sign a project agreement and pay the op-
erators $1 per hour over scale. Waters states that Ryce said
that it would be very hard to reach an agreement after the elec-
tion and after the Union was certified. According to Waters, he
asked why and Ryce did not explain.
The initial bargaining session following the Certification was
held in mid-March 1995. Ryce was designated by the Com-
pany to represent it and no one else from the Company partici-
pated in the negotiations. James Allbritton, Gary Waters, and
the Union’s attorney, Joseph Kaplan, represented the Union.
At this meeting, the Union presented its standard contract.
Ryce said he would look it over and come up with a counter-
proposal.
On April 4, 1995, Ryce forwarded his counterproposal which
included a contract draft containing a recognition clause as set
forth in the Board’s certification. In this letter. Ryce objected
to certain provisions in the Union’s standard contract and pro-
posed certain new provisions. The most significant of his pro-
posed modifications involved (a) eliminating article 1, section 4
of the standard contract and (b) the proposed addition of article
IV, section 10. I note that Ryce’s letter did not object to either
the duration of the standard contract or to the wage rates con-
tained therein. Indeed, from the testimony of both Ryce and
Waters, I think that both parties understood that the term of the
contract and the wage rates were not an issue.
Article I, section 4 of the standard agreement reads:

Section 4. Personnel manning levels for equipment and/or
job assignments shall be dictated by need. The Union and
Employer shall address all issues pertaining to personnel
manning levels, except Oiler/Drivers shall be utilized to assist
in the erection and dismantling of all cranes and to move or
drive all lattice boom mobile cranes.

The proposed article IV, section 10, made by Ryce reads:

Section 10. The parties recognize that the Employer has an
established past practice, essential to its economic viability, of
using non-bargaining unit employees to perform work on the
following type of equipment: boring machines, pumps, air
compressors, trucks, welding machines, boats (tug etc.)
cranes, yard cranes, derricks, derrick barges, and similar
items. Notwithstanding the fact that certain of this work is
listed in the wage rate provisions of this Agreement, the par-
ties agree that the Employer may maintain its past practice as
described herein without violating this Agreement or giving
rise to a claim for fringe benefits. To the extent such work is
performed by non-bargaining unit personnel, said work shall
not be considered as falling within the provisions of this
Agreement. To avoid confusion, the parties will agree to and
maintain at all times a list of bargaining unit employees,
which will be considered conclusive as to the identity of the
employees covered by this Agreement. Any claims under this
Agreement by Employees or the Union, or any contract or
ERISA claims made by the . . . Funds, shall be limited to
those persons on the list.

In explaining his reasons for proposing article IV, section 10,
Ryce in his April 4 letter stated:

[M]y draft . . . was an initial effort to solve the problem of
maintaining Gimrock’s flexibility of operations and to avoid
creating legal exposure to a suit from the Trust Funds. We are
very open to any other approach that accomplishes the same
goal. As I said yesterday, please consider this proposal as
Gimrock’s initial effort to draft a contract which accomplishes
the goals of both parties. Since the Union and Gimrock are
generally satisfied with the status quo, the Union is not seek-
ing to increase the work force of current Operating Engineer
employees, at least based on the current work load, we ought
to be able to come to some sort of resolution that works for all
of us.

On April 12, 1995, the Union responded the Company’s po-
sition with its own counterproposals. This letter read:

This is the Union’s response to your April 4th counterpropos-
als:

1. The Union rejects your language changes in Article
I, Section 4, Section 6 and Section 7; Article II; Article V;
Article VI, Section 1 and Section 13; Article VII Section
2; Article VIII, Section 1, Section 3, Section 7 and Section
8; Article IX; Article X Section 1, Section 3, Section 5 and
Section 6.
2. The Union accepts your language changes in Arti-
cle I, Section 1 and Section 3; Article IV, Section 1; Arti-
cle VI, Section 3, Section 8 and Section 12; Article VII
Section 5 and Section 6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404
3. The Union is uncertain of your meaning in your
language changes in Article IV, Section 2; Article VI, Sec-
tion 7.
4. The Union proposes the following language
changes in Article IV Section 10:

Section 10. The parties recognize that the Employer
has an established past practice of using non-bargaining
unit employees to perform work on the following types of
equipment: trucks and boats (tug, etc.). The parties agree
that the Employer may maintain its past practice as de-
scribed herein without violating this Agreement or giving
rise to a claim for fringe benefits by the Apprenticeship,
Health and Welfare, and Pension funds. To the extent
such work is performed by non-bargaining unit personnel,
it shall not be considered falling within the provisions of
this Agreement.

The next bargaining session was held on May 12, 1995,
where the parties mostly talked about article I, section 4 and
Ryce’s proposed article IV, section 10. In substance, the com-
pany viewed article I, section 4 as a means to guarantee make-
work for a classification of employees it did not employ;
namely oilers. In the Company’s view, this clause, because it
compelled the Company to use “oilers” to assemble, dismantle
and move cranes, might compel it, in certain circumstances, to
hire additional employees to do work that had previously been
done by the Company by its nonunion work force. On the other
hand, the Union viewed the Company’s position on article I,
section 4 and its proposed article IV, section 10, as a means by
which the Company could assign work traditionally done by
oilers to nonunit employees. As the certification uses the words
“oiler/drivers,” the Union’s position was that when work tradi-
tionally done by this category was assigned by the Company,
that work should be done by someone in that category who was
in the bargaining unit.
The final face-to-face meeting occurred on May 25, 1995.
At this meeting, Ryce went down a list of the equipment that
the Company used and the Union stated its position whether the
work was within its jurisdiction. The Union took the position
that the work of monitoring certain pumps and manning power
packs for vibratory hammers was oiler work and should be
assigned to people within the bargaining unit and not to non-
bargaining unit workers. As to cranes, both sides agreed that
the operation of cranes should be exclusively assigned to oper-
ating engineers. However, as to cranes operated within the
yard, the employer took the position that it should be able to
assign such work, as it had in the past, to nonunit employees
while the Union took the position that any such yard work in
excess of 2 hours should be assigned to operating engineers. In
addition, the parties had a dispute as to what type of mechanic’s
work should be included in the unit. At this time, the Company
employed three mechanics, one of whom was in the Union and
was generally assigned to work on operating engineer type of
equipment. The Company took the position that the two non-
bargaining unit mechanics had, in the past, worked on all types
of equipment and that it wanted to continue this practice. The
Union’s position was that when the nonbargaining unit
mechanics worked on operating engineer equipment, they
should be covered by the contract.
Although virtually all other issues were settled as of May 25,
including in my opinion, a tacit agreement regarding wage rates
and the duration of a contract, everyone agrees that there was
no full and final agreement by the end of this meeting.
Ryce testified that on May 26, 1995, he called Union Attor-
ney Kaplan and after explaining the Company’s position, asked
for another meeting. He testified that Kaplan said that the Un-
ion was going to stand firm on its last position and that the
parties were at impasse unless the Company agreed to the Un-
ion’s position. Ryce states that he told. Kaplan that the Com-
pany was not going to concede on the “jurisdictional” issues
and that Kaplan told him that there was no point in having an-
other meeting.
. Waters testified that on May 30, 1995, he called Ryce and
told him that the Union was willing to give up its claim that the
jet pump and the power pack should be exclusively done by an
oiler but that it could not remove article I, section IV which, as
noted above, assigned the work of assembling, disassembling,
and moving cranes to oilers. Waters told Ryce that if the oiler
issue could not be resolved, there would be a strike. Ryce said
that he would call back if there was any change in the Com-
pany’s position. He didn’t and a strike ensued on this date.
On May 31, 1995, Ryce faxed a letter to Waters which read
as follows:

I have described our telephone conversation of yester-
day to Gimrock. Unless I misunderstood you, the Union’s
current position is that there is no point in meeting, and we
are at impasse, unless Gimrock agrees to the language of
article I, section 4, of the Union’s standard agreement,
providing that “Oiler/Drivers shall be utilized to assist in
the erection and dismantling of all cranes and to move or
drive all lattice boom mobile cranes,” and further agrees
that in the future, its two non-bargaining unit field me-
chanics will no longer work on all of the Company’s
equipment. It was my further understanding that if the
company agrees to this language, the Union is willing to
meet in order to discuss such questions as whether an oiler
would be required to operate the company’s jet pumps and
the power packs for its vibratory hammers.
We feel there a several problems with the approach
you have suggested. First, the Company would have to
agree to key union demands without any assurance that the
Union would reciprocate by backing off of its other juris-
dictional claims. Second, as Gimrock does not employ any
oiler/drivers, the Company would be committing to adding
one or more superfluous employees to its payroll. Finally,
the Union’s approach, as a whole, totally disrupts the
status quo by removing significant job duties from its pre-
sent nonbargaining unit work force and likely would lead
to layoffs of some of these personnel.
Gary, it was always our understanding that the Union
was generally content with the status quo, and wanted a
contract with Gimrock primarily to comply with certain
legal requirements concerning fringe benefit payments and
to provide to employees some protection, such as access to
a grievance procedure, that would not exist without an
agreement. As you know, Gimrock has not been adverse
to this approach and has been willing to make accommo-
dations to reach an agreement that would satisfy the con-
cerns of the Union as well as those of the company. The
fact remains, however, that Gimrock’s employees do not
normally operate along the strict jurisdictional lines con-
tended for by the Union, and the company has deviated
from its practice of using a flexible workforce only with
GIMROCK CONSTRUCTION, INC. 405
respect to projects for which it signed specific project
agreements. This is one reason why the issue of jurisdic-
tion must be cleared up before the company can commit to
a mandatory rather than a permissive hiring hall. Gimrock
was a non-union company until the Union obtained the
NLRB certification, and therefore cannot and should not
be compared to those Union companies which chose to
sign company-wide collective bargaining agreements long
ago and arranged their operations accordingly.
We are mindful of the concerns you have raised re-
garding the other companies which have agreements with
the Union. One possible solution is for Gimrock to pay
bargaining unit employees $.50/hr. over normal scale,
something the company is willing to agree to. This pre-
mium pay, plus the fact that no existing Union company
can claim to have the same past practice as Gimrock’s
should alleviate any concern that these other companies
can invoke the most favored nations clause to the Union’s
detriment. In any event, Gimrock remains willing to meet
to hash out its differences with the Union in negotiations.
Therefore please let me know if the Union changes its
mind about declaring impasse.

On June 1, 1995, Kaplan called Ryce. According to Ryce,
Kaplan said that the Union probably would drop its claims over
power pack/vibratory hammers and the jet pumps if the Com-
pany would agree to the other jurisdictional claims. (That is, the
claims regarding the mechanics and the oiler work in relation to
the cranes.) Ryce states that he responded that he did not think
that the Company would change its position, but he would let
him know.
Lloyd Hunt testified that the strike put a severe strain on the
Company’s work in the Port of Miami. He testified that as a
result he decided, without consulting his attorney, to contact the
former business manager of the local union who in turn referred
him to a Benny Splain, who is a representative of the Interna-
tional Union covering Region 4. There then ensued on this date,
a series of conversations between. Hunt, Splain, and Waters,
with Splain acting as the go-between.
The series of phone calls was initiated by Hunt who, after
contacting Splain, told him that in the past the Company had
project agreements with the past presidents of the local union
and that with this new guy (Waters), the Union wanted an
agreement covering the entire operation. Hunt explained that
the strike was very damaging and he asked if it was possible to
first work out a project agreement covering the Port of Miami
and then to work out a systemwide contract.
Splain called Waters and reviewed the situation with him.
He asked Waters if he would be willing to put the men back to
work for 1 week and give him an opportunity to try to work
things out.
Splain then called Hunt and told him that Waters was willing
to have the men go back to work for 1 week, but that this idea
was rejected. Splain states that when he asked Hunt what his
problem was, Hunt said that he didn’t need an oiler who would
sit around and do nothing and that he didn’t want to have all of
the mechanics being covered by the contract.
According to Splain, when he related Hunt’s concerns to
Waters, the latter said that oilers could be employed at the op-
tion of the Company but that if oiler work needed to be done,
(in accordance with art. 1, sec. 4), it would have to be done by
one of the operating engineers and could not be done by any of
the nonbargaining unit workers. Waters also said that as to the
two nonunion mechanics, the Company could classify them as
mechanic helpers under the contract.
Splain thereupon called Hunt and relayed Water’s latest
position. There is no dispute that Hunt replied, in effect, that he
could agree to Water’s position on oilers and mechanics if it
was limited to the Port of Miami project, but that he could not
agree if this was incorporated in a companywide contract. Ac-
cording to Splain, he said that Waters wanted an agreement
covering the unit set forth in the certification, whereupon Hunt
said that having a project agreement was his hold over the Un-
ion in that he could assert that the contract did not cover other
jobs if the Union gave him problems at those other jobs.
At some point during the week of June 5, 1995, Waters had a
phone conversation with Ryce wherein Waters offered a con-
tract [on the Union’s terms], that could be canceled upon 24
hours’ notice. Ryce said that this was not acceptable. In the
meantime, Ryce had not been told by his client of the phone
conversations between Waters, Splain, and Hunt.
A final meeting was held in July 1995, under the auspices of
a Federal mediator, but this meeting did not produce an agree-
ment.
The General Counsel asserts that on June 6, 1995, the Union
made an unconditional offer to return to work and that the Re-
spondent refused to reinstate the strikers and continued to hire
replacements thereafter. (At least two, and possibly four crane
operators had been hired as permanent replacements before the
alleged offer to return to work.)
James Allbritton, the Union’s president, testified that he was
directed by Waters on June 6, to talk to the people on the picket
line and to make an unconditional offer to return to work. He
states that he did so and that he spoke to Douglas Calais who is
the Company’s marine superintendent assigned to the Port of
Miami. Allbritton testified that he told Calais that the strikers
were making an unconditional offer to return to work, where-
upon Calais said that he had to call Lloyd Hunt. According to
Allbritton, when Calais returned, he said that Hunt said that he
would not have the people back.
Murray Chinners, one of the strikers also testified about this
transaction. He states that Allbritton arrived at the site at about
8 or 8:15 a.m. and that while talking to the strikers, Calais
drove up and asked what was going on. He states that Allbrit-
ton said that we were unconditionally going to go back to work
whereupon Calais said that he had to call Hunt. According to
Chinners, as he and others were putting on their work boots,
Calais returned and said that Hunt didn’t want them back to
work.
Douglas Calais testified that Allbritton approached him by a
crane and in the presence of one of the strikers and one of the
strike replacements, said that he could send these people home
because Allbritton was sending the strikers back to work. Ac-
cording to Calais, Allbritton did not use the work “uncondi-
tional” and he replied that he would have to call his office.
Calais testified that he spoke to Hunt who said that they would
have to call his attorney which he believes he related to Allbrit-
ton. Calais also testified that he saw one of the strikers putting
on his work boots (either Chinners or McNeil), and when he
asked what he was doing, was told that he was going back to
work.
While it is clear that some kind of offer to return to work was
made on June 6, the issue here is whether that offer was condi-
tional or unconditional. The Union did not follow up with a
letter setting forth its offer to return to work. And the Company
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406
also failed to send the Union a letter explaining its position
regarding the events of June 6, 1995. (Indeed, it appears that
Hunt did not notify Ryce of what had taken place.)
Chinners testified that about a week after June 6, he and a
few of the other strikers had a conversation with Hunt at the
picket line. He states that when Hunt was asked what it would
take to resolve the situation, Hunt said he was willing to pay $1
over scale if Waters would send over a project agreement for
the Port of Miami.
III. ANALYSIS
Sometimes it is better to let sleeping dogs lie. For many
years, the Company and the Union have had a satisfactory rela-
tionship pursuant to which the company employed members of
the Union and paid them in accordance with the terms and con-
ditions of project agreements that tracked the standard contracts
it had with other employers. At the same time, the company
employed a far larger group of employees who were not union
members but whose work, at times, overlapped with work done
by the members of the Union. Although historically, there has
always existed some ambiguity as to the type of work covered
by previous 8(f) agreements, the parties essentially applied the
contracts to those employees of the Company who were mem-
bers of the Union. They, therefore, got along without dispute.
When the Union filed its election petition, it sought a unit
which I surmise is a standard unit for them. The Company
agreed to this unit description and an election was held, in
which employees who were members of the Union were the
only persons who cast unchallenged ballots. The problem is
that at the time of the election, and despite the unit description
set forth in the Consent Election Agreement, there were no
people who could be classified as oiler/drivers as these func-
tions had been done at times by members of the Union and at
other times, or simultaneously, by other employees of the
Company. Similarly, although the Company employed one
mechanic who was an operating engineer and who voted in the
election, it also employed two other mechanics who were not
members of the Union and who did not vote in the election but
whose jobs overlapped with the job of the union member me-
chanic.
In effect, what happened was that a series of de facto mem-
bers-only contracts was transposed into a de facto members
only election. When bargaining commenced, it soon became
clear that instead of solving an old problem, the certification
had created a new one. In this respect, the Union in its contract
proposals was seeking to have any work traditionally assigned
to oiler/drivers and mechanics assigned exclusively to its mem-
bers. On the other hand, the Company wanted to keep its pre-
election practice which allowed flexibility in assigning union or
nonunion workers to the same types of jobs as needed. (Except
for the operation of cranes.) As oiler work and mechanic’s
work had, in the past, been shared by both Union and nonunion
employees, this difference of opinion, became an unbridgeable
gap.
There is no question but that the Respondent would have
preferred to continue its past practice of having project agree-
ments. Thus, after the petition was filed but before the election,
the Company’s attorney told the Union that the Company was
willing to pay $1 over scale if the Union would sign a project
agreement.
Nevertheless, once the certification was issued, it is clear that
the Company, by its attorney, Ryce, entered into negotiations
and agreed that any contract be consistent with the unit set out
in the certification. Thus, all of his proposals and counterpro-
posals were made in the context of having a contract covering
the Company’s Florida operations as a whole.
As noted above, the sticking point in the negotiations was re-
lated to whether the Company could continue its preelection
practice of assigning certain “oiler” and mechanical work to
both union and nonunion employees or whether it would agree
to assign such work exclusively to people who would be in the
bargaining unit and therefore be members of or represented by
the Union.
After the meeting of May 25, 1995, Ryce called the Union’s
attorney, Kaplan, and was told that the Union was going to
stand on its last position and that the parties were at an impasse.
On May 30, Waters called Ryce and told him that although the
Union was willing to make some concessions on the oiler issue,
it could not withdraw from its position that the work of assem-
bling, disassembling, and moving cranes should be given ex-
clusively to oilers. By letter dated May 31, 1995, Ryce wrote
back and stated, in substance, that he could not agree to the
Union’s position on oilers and mechanics and offered to pay
bargaining unit employees 50 cents per hour over normal scale
if the Union would accede to the Employer’s being given the
right to assign this type of work to nonunion as well as union
members.
The strike which commenced on May 30, 1995, began at a
time when no agreement had been reached. It also occurred
before the Company’s alleged insistence on a nonmandatory
subject of bargaining.
On June 1, 1995, a continuous series of three way conversa-
tions were initiated by Company Vice President Lloyd Hunt
who tried to break the impasse and end the strike by dealing
directly with the Union. Accordingly, on this date, a regional
representative of the Union, Splain, acted as an intermediary
between Hunt and Waters. Ryce, the Company’s attorney, was
not informed of these conversations until much later. The Gen-
eral Counsel claims that during the course of these conversa-
tions, an agreement was first reached between the Company
and the Union and then that this agreement was conditioned on
a nonmandatory subject of bargaining, namely insistence on
having a project agreement.
Without rehashing my previous description of these conver-
sations, I conclude contrary to the assertion of the General
Counsel, that although Hunt ultimately agreed to the Union’s
position on the oiler issue (in accordance with the Union’s pro-
posed art. 1, sec. 4), and that both parties agreed on having the
two nonunion mechanics classified as mechanic helpers, Hunt’s
agreement on these terms was explicitly conditioned on the
agreement being a project agreement. That is, I would not con-
clude based on the evidence as a whole that a full contract was
first agreed to and then subsequently conditioned on a nonman-
datory subject.
Moreover, although Hunt, on June 1, conditioned this par-
ticular contract on being a project agreement, this does not
mean that he conditioned any agreement on this condition.
This was Hunt’s first and only involvement in the contract talks
and there is nothing to say that if the Union refused to accept
the nonmandatory condition, that the previous good-faith pro-
posals made by Ryce were no longer applicable.
In Nordstrom, Inc., 229 NLRB 601 (1977), the Board stated:

The issue . . . is whether one party to collective bar-
gaining negotiations can effectively conclude negotiations
GIMROCK CONSTRUCTION, INC. 407
by agreeing only to those demands of the other party
which constitute mandatory subjects of bargaining. Citing
N.L.R.B. v Wooster Division of Borg-Warner Corp., 356
U.S. 342 (1958), the Administrative Law Judge concludes
that the Charging Party’s acceptance of the mandatory
subject and unilateral dismissal of the nonmandatory sub-
jects compel the respondent to execute a contract embody-
ing that acceptance. We believe Borg-Warner compels no
such result. That a party may not lawfully insist upon the
inclusion of proposals nonmandatory in nature is, of
course clear. But the general Counsel’s case moves, in our
view, beyond that proposition to the extent that it negates
the considerable relationships which may exist between
both mandatory and nonmandatory subjects. Certainly,
nonmandatory subjects (for present example, a demand
that reinstatement rights of certain discharges and, pre-
sumably, backpay for them be waived), can, as a function
of cost, bear upon a party’s wage-increase proposals. To
say that the proponent of the reinstatement/backpay waiver
cannot insist upon the inclusion of such a proposal means
no more than that. It does not mean that once, out of ne-
cessity, the nonmandatory proposal is removed from the
table, the proponent of the nonmandatory subject is not
permitted to alter those proposals which are mandatory in
light of the removal of the nonmandatory subject.
Circumstances may, we acknowledge, exit where a
party unlawfully insists on a nonmandatory subject’s in-
clusion at a time when all other matters have previously,
and independent of the outstanding nonmandatory subject,
been agreed upon. But whether such insistence amounts
not only to a refusal to bargain in good faith but, further,
as justification for compelling that party to execute so
much of the contract as relates to the agreed-upon manda-
tory subjects is not, on the facts presented, an issue here.

See also Good GMC, Inc., 267 NLRB 583, 584 (1983);
Laredo Packing Co., 254 NLRB 1, 18 (1981), and Aztec Bus
Lines, 289 NLRB 1021 (1988).
In Good GMC, Inc., supra, the Board stated:

Consistent with the position advanced by the Board in Nord-
strom, the Board in Laredo Packing found that no agreement
had been reached on all the terms of a collective-bargaining
agreement because the nonmandatory subjects of bargaining
advanced by the respondent as a condition for executing a col-
lective-bargaining agreement were part of one collective-
bargaining package and were an essential quid pro quo for the
respondent’s contract proposal. Likewise, in the instant case,
the Union selectively accepted part of Respondent’s package
proposal and claimed that an agreement had been reached
thereon, in disregard of the fact that Respondent had proposed
item 3 as part of a complete package proposal. In these cir-
cumstances, the Union was not entitled to pick and choose
those contract proposals which suited its needs and demand
execution of a collective-bargaining agreement limited to
those proposals.

There clearly was no agreement reached by the parties up un-
til June 1, 1995. As the Union did not agree to. Hunt’s condi-
tion (a project agreement), stated during the June 1 phone con-
versations, no full and complete agreement was ever reached.
Accordingly, the Respondent did not violate the Act by failing
and refusing to execute an agreed-upon contract.
By the same token, I do not believe that the evidence is suf-
ficient to establish that the Respondent conditioned reaching
agreement or bargained to impasse over a nonmandatory sub-
ject of bargaining. As stated above, the fact that. Hunt, on one
occasion, conditioned a particular contract on a nonmandatory
condition does not establish that the Company had or would
condition any agreement on such a condition. In fact, the evi-
dence indicates the opposite. Accordingly, in this respect too, I
conclude that the Respondent did not bargain in bad faith in
violation of Section 8(a)(5) of the Act.
Inasmuch as I have concluded that the Respondent did not
violate the Act in regard to the foregoing allegations, I conclude
that the strike never converted to an unfair labor practice strike.
Thus, assuming that the strike was an economic strike, and
putting aside for the moment, the Respondent’s contention that
it was an illegal and unprotected strike, the employer would
have an obligation to immediately reinstate the strikers, except
to the extent that it hired permanent replacements, if the strikers
or the Union on their behalf made an unconditional offer to
return to work. NLRB v. Mackay Radio & Telegraph Co., 304
333, 345–346 (1938); NLRB v Fleetwood Trailer Co., 389 U.S.
375 (1967); NLRB v. Augusta Bakery Corp., 140 957 F.2d 1467
(7th Cir. 1992); Laidlaw Corp., 171 NLRB 1366 (1968), enfd.
414 F.2d 99 (7th Cir. 1969). As stated by the Board in Laid-
law, supra,

[E]conomic strikers who unconditionally apply for reinstate-
ment at a time when there positions are filled by permanent
replacements: (1) remain employees; and (2) are entitled to
full reinstatement upon the departure of replacements unless
they have in the meantime acquired regular and substantially
equivalent employment, or the employer can sustain his bur-
den of proof that the failure to offer full reinstatement was for
legitimate and substantial business reasons.

The Respondent contends that because the strike was called
in furtherance of the Union’s contract demands that certain
work be exclusively assigned to those employees represented
by it, that the strike was an unlawful strike in violation of Sec-
tion 8(b)(4)(i) and (ii)(D) of the Act. As such, the Respondent
asserts that the strikers were not engaged in protected concerted
activity and therefore were not entitled to their jobs back, even
upon an unconditional offer to return to work.
There is some Board precedent for finding that strikers who
engage in an illegal strike or illegal picketing are not protected
by the Act and therefore can forfeit their jobs. In Mackay Ra-
dio & Telegraph Co., 96 NLRB 740 (1951), the Board held that
strikers forfeited the protection of the Act by engaging in an
unlawful strike which was called for the purpose of requiring
the employer to agree to an unlawful union-security clause.
The Board stated:

We do not here hold, as our dissenting colleague suggests,
that participation in an unlawful strike automatically termi-
nates the strikers’ employment relationship. We decide no
more than is required by the facts in this case; namely, that the
employees who participated in the unlawful strike of the kind
herein found may not invoke the protection of the Act because
they were denied permanent reinstatement at the end of that
strike, even though the Respondents may have failed to assert
the illegality of the strike as the basis for denying reinstate-
ment to such strikers. As the question is not now before us,
we do not decide whether an employer, after permanently re-
instating employees who participated in an unlawful strike,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408
may subsequently discharge or otherwise discipline them for
having engaged in such activity.

In, Motor Freight Drivers Local 707 (Claremount Poly-
chemical Corp.), 196 NLRB 613 (1972), the Board (with mem-
ber Fanning dissenting), held that employees who engaged in
picketing which was violative of Section 8(b)(7)(B) were not
engaged in protected concerted activity and therefore not enti-
tled to reinstatement and backpay. (Under Sec. 8(b)(7)(B), it is
unlawful for a labor organization to picket an employer for
recognition where a Board election has been held within the
previous 12 months.) Similarly, the Board in Rapid Armored
Truck Corp., 281 NLRB 371 fn. 1 (1986), held that where em-
ployees engaged in picketing which was violative of Section
8(b)(7)(C) of the Act, the employer did not violate the act by
refusing to reinstate or by discharging the striking employees
who engaged in such picketing. (Under Sec. 8(b)(7)(C), a un-
ion violates the Act when, for an object of gaining recognition,
it engages in picketing, without having filed an election petition
for a reasonable period of time not to exceed 30 days.) 4
Notwithstanding the above, it seems to me that Section
8(b)(4)(D) stands in a somewhat different place. Section
8(b)(4)(D) must be read together with Section 10(k) of the Act
which states:

Whenever it is charged that any person has engaged in an un-
fair labor practice within the meaning of paragraph (4(D) of
Section 8(b) . . ., the Board is empowered and directed to hear
and determine the dispute out of which such unfair labor prac-
tice shall have arisen, unless, within ten days after notice that
such charge has been filed, the parties to such dispute submit
to the Board satisfactory evidence that they have adjusted, or
agreed upon methods for the voluntary adjustment of, the dis-
pute. Upon compliance by the parties to the dispute with the
decision of the Board or upon such voluntary adjustment of
the dispute, such charge shall be dismissed.

Thus, if a charge is filed alleging that a union has engaged in
a strike in furtherance of a jurisdictional dispute, the Board
after petitioning the Federal District Court for an temporary
injunction under Section 10(l) of the Act, is required to hold a
10(k) hearing where the Board determines which competing
labor group should be assigned the work in dispute. It is only
after the Board issues a 10(k) award, and if the Respondent
union fails or refuses to comply with the award, that an unfair
labor practice complaint can issue alleging that the Union has
violated Section 8(b)(4)(D). Accordingly, there can be no vio-
lation of the Act until after the Board, through a 10(k) proceed-
ing, determines that employees other than those represented by
the defendant union are entitled to the disputed work. And
obviously a Respondent union would not violate 8(b)(4)(D) if it
was awarded the work even though its strike or threatened
strike was the event which caused the unfair labor practice
charge and the 10(k) hearing to take place. 5

4 See also ABC Prestress & Concrete, 201 NLRB 820, 826 (1973),
where the Board held that the Respondent did not violate the Act by
refusing to reinstate strikers where the purpose of the strike was to put
pressure on the company to require it to make payments in violation of
the Economic Stabilization Act of 1970.
5 Indeed, as most collective-bargaining agreements do not contain an
arbitration provision that would allow another union or other group of
employees to intervene in a work assignment dispute, a union may have
to engage in a strike or threatened strike in order to have the dispute
Having concluded that the strike was neither an unfair labor
practice strike nor an illegal strike, I find that the strike com-
menced as, and remained as an economic strike. Accordingly,
the next question is whether the Union, on the strikers’ behalf
made an unconditional offer to return to work and whether the
employer illegally refused to reinstate them. 6
The evidence indicates that the Union made some kind of of-
fer, on behalf of the strikers, to return to work on the morning
of June 6, 1995. By this time the Company had hired two and
possibly four permanent replacements. Subsequently, the com-
pany hired additional replacements. The question here is
whether the offer to return to work was conditional or uncondi-
tional.
James Allbritton testified that on June 6, 1995, and pursuant
to the direction of Waters, went to the port of Miami where the
picket line was located. He testified that he spoke to Douglas
Calais, the employers Marine superintendent, and told him that
the strikers were making an unconditional offer to return to
work. (He states he used the words “unconditional offer to
return to work” because he learned that this was the proper
words to use when he attended a business agent school run by
the International Union.) According to Allbritton, Calais said
that he had to talk to Hunt and that Calais soon returned and
said that Hunt said that he would not have the people back.
Calais testified that he was approached by. Allbritton who
said that Calais could send these people home (referring to the
strike replacements), because he was sending the strikers back
to work. Calais states that Allbritton did not use the word “un-
conditional” during any part of the conversation. He also states
that he called the office and spoke to. Hunt who told him that
he should tell Allbritton to contact the Company’s lawyer.
Thus, in the Respondent’s view, the Union’s offer was condi-
tioned on all of the strikers returning to work and on the com-
pany discharging the people who were hired as permanent re-
placements.
Murray Chinners testified that on June 6, Allbritton came to
the picket line and said to the striking employees that they
might be going back to work. According to Chinners, when
Calais drove up, Allbritton said that “we were going to uncon-
ditionally go back to work.” He states that Calais responded
that he had to call Hunt after which, he said that Hunt did not
want us back to work.
While Allbritton testified that he used the phrase “uncondi-
tional” in reference to the offer to return to work because he
learned it at business agent school, one wonders if he missed
the lesson that important verbal transactions should be con-
firmed in writing. On the other hand, one wonders why Hunt,
having been informed that Allbritton was making some kind of
offer to return to work, didn’t immediately contact his lawyer,
who no doubt would have sent a letter to the Union seeking to
clarify what the Union intended. The upshot is that we are
faced with conflicting versions of a conversation that took place
more than one year before the testimony was taken in this case.
Having heard the testimony and evaluating the demeanor of
the witnesses, my conclusion is that both sides were essentially
telling the truth as they remembered it. Thus, I think it is prob-

placed before an impartial forum; namely the NLRB pursuant to a
10(k) hearing.
6 An unconditional offer to return to work by a Union on behalf of
strikers is a valid offer and must be honored. Matlock Truck Body
Corp., 248 NLRB 46l (l980); Workroom For Designers, Inc., supra at
861.
GIMROCK CONSTRUCTION, INC. 409
able that Allbritton used the word “unconditional” in relation to
the offer to return to work and I think that it is probable that he
also said that as the strikers were returning to work, the com-
pany could send the replacements home.
In Histacount, 278 NLRB 681, 687 (1986), an offer to return
to work by economic strikers was held to be conditional where
the Union demanded that all strikers be immediately put back
to work. In that case, the Union said that unless all of the strik-
ers were reinstated together, none of them would return to
work.
In H & F Binch Co. v. NLRB, 456 F.2d 357, (2d Cir. 1972),
the court held that a request to return to work was conditional
as the request was for group reinstatement which was explicitly
conditioned on all being reinstated together. In that case the
letter stated: “This is to advise you that all the employees now
on strike offer to return to work immediately provided you
agree to take everyone back without discrimination. All em-
ployees are willing to return provided you are willing to agree
not to discriminate against any workers.”
On the other hand, in NLRB v. Okla-Inns, 488 F.2d 498, 505
(10th Cir. 1973), the employer contended that it had the im-
pression that an offer to return to work was conditioned on the
return of all the employees. In that case, the Union’s letter said,
“We the undersigned, hereby request that we be reinstated to
our former positions. . . . This is an unconditional offer to re-
turn to work” The court noted that the alleged condition was
not stated and to the extent that there was any ambiguity, the
employer could have inquired into what the strikers meant by
“we the undersigned.” The court stated: “Rather than make a
reasonable effort to clarify the situation, the employer em-
barked on a course of unfair labor practices toward workers
remaining on the job that perpetuated a long and painful labor
dispute. . . . Based on the facts and circumstances, the em-
ployer has not borne the burden of proof to show that the offer
was less than unconditional. . . .”
In NLRB v. Augusta Bakery Corp., supra, an offer was con-
strued as being unconditional despite a demand by the union for
simultaneous resumption of negotiations. In that case, the union
sent one letter stating that the “employees and the Union are
offering unconditionally to immediately return to work,” while
sending a a second letter demanding that the company return to
negotiations immediately. The court stated inter alia;

The Board’s finding of an unconditional offer is a pre-
dominantly factual determination, which we must uphold
if supported by substantial evidence. Augusta bears the
burden of showing that the offer of return was not uncon-
ditional. Soule Glass & Glazing Co., v. NLRB, 652 F.2d
1055 (1st Cir. 1981); NLRB v. Okla-Inn, 488 F.2d 498,
505 (10th Cir. 1973).
In support of its claim that the offer was conditional,
Augusta cites International Union, Allied Industrial Work-
ers v. NLRB, 411 F.2d 249 (7th Cir. 1969) in which we en-
forced a Board determination that strikers’ reinstatement
requests were conditioned on the employer’s agreement to
resume bargaining with the union . . . In that case, the un-
ion had informed the company . . . that the strike would be
“terminated” on July 20 and, in the same letter, demanded
resumption of bargaining—a matter that was subject to a
then pending unfair labor practice charge. On July 20, 61
strikers sent . . . letters to the employer which stated, “I
make this application for reinstatement with the under-
standing that [the employer] will continue to recognize
and commence bargaining with my duly designated bar-
gaining representative.” We upheld the Board’s conclu-
sion that the offer to return was conditional, noting that the
company had expressly announced its intent to comply
with the determination reached through the administrative
processes.
The Board rests its determination on the opposite as-
sertion; the Union’s decision to distinguish, by way of
separate letters, the return-to-work offer from the bargain-
ing demand was a way to ensure, . . . that the issues would
remain decoupled.
Were we to view the facts as an original matter and
with a somewhat cynical eye, we might be sympathetic to
Augusta’s argument. A creative union might well attempt
to circumvent Allied Industrial Workers by separating the
tangible link between offer and condition by setting them
forth in separate letters. However, the facts do suggest
two reasonable (albeit diametrically opposed) inferences,
and the substantial evidence standard does not allow us to
reject the Board’s “choice between two fairly conflicting
views.”

Assuming that Allbritton, in addition to making the “uncon-
ditional” offer to return to work, also said that the Company
could send the replacements home because the strikers were
going back to work, this does not necessarily constitute a condi-
tional offer to return to work. Clearly, the Union could have
requested (but not required), that the Company discharge re-
placements in order to make room for all of the strikers to re-
turn to work. In my opinion, such a request should not, how-
ever, be construed as a condition unless it explicitly was in-
tended as a condition. At most, I would construe. Allbritton’s
comments as amounting to no more than a request which did
not condition the return to work on the firing of the replace-
ments or on the reinstatement of all of the strikers as a group.
In my opinion the Respondent has not met its burden of show-
ing the offer to return to work was less than unconditional.
CONCLUSION OF LAW
By failing and refusing to reinstate economic strikers upon
their unconditional offer to return to work, the Company has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
As the evidence shows that the Respondent illegally refused
to reinstate at least some of the strikers, it must offer them rein-
statement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from the date of
such refusal less any net interim earnings, as prescribed in F.W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
However, as the evidence shows that at the time that the Un-
ion made an offer to return to work, the Company had hired
two to four permanent replacements, and as the evidence did
not show when replacements left the Company’s employ, I
shall leave to the compliance stage of the proceeding, the de-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410
termination of which strikers were unlawfully denied rein-
statement and the amount of backpay that would be due to
them.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Gimrock Construction Inc.,, Miami, Flor-
ida, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to reinstate economic strikers to existing va-
cancies upon their unconditional offer to return to work.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon application, offer to those strikers who have not yet
returned, immeditate and full reinstatement to their former or
subtantially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing if necessary
all persons hired as striker replacements after June 6, 1995;
and place on a preferential hiring list those striker applicants for
whom positions are not immediately available.
(b) Make whole any of the strikers for any loss of earnings
and other benefits suffered as a result of the refusal to reinstate
them to their former jobs in the manner described in the remedy
section of this decision.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its
facility in Miami, Florida, copies of the attached notice marked
“Appendix.”8 Copies of the notice, on forms provided by the
Regional Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable

7 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. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 7, 1995.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to reinstate economic strikers to existing
vacancies upon their unconditional offer to return to work.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL upon application, offer to those strikers who have
not yet returned, immeditate and full reinstatement to their
former or subtantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dismissing if nec-
essary, all persons hired as striker replacements after June 6,
1995; and place on a preferential hiring list those striker appli-
cants for whom positions are not immediately available.
WE WILL make whole any of the strikers for any loss of earn-
ings and other benefits suffered as a result of, and to the extent
that we have illegally refused to reinstate them to their former
jobs.
GIMROCK CONSTRUCTION, INC.