Gimrock Construction, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 1033 (N.L.R.B. 2005)

GIMROCK CONSTRUCTION
344 NLRB No. 128
1033
Gimrock Construction, Inc. and International Union
of Operating Engineers, Local Union 487, AFL–
CIO. Case 12–CA–17385
June 30, 2005
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This case, which involves the Respondent’s refusal to
reinstate striking employees, is before the Board on re-
mand from the United States Court of Appeals for the
Eleventh Circuit. NLRB v. Gimrock Construction, Inc.,
247 F.3d 1307 (11th Cir. 2001). The court denied en-
forcement of the Board’s original order requiring rein-
statement and directed the Board to explain its conclu-
sion, contrary to that of the judge, that the Union’s bar-
gaining position—in support of which the strike was
conducted—did not evidence a jurisdictional objective.
As explained below, after careful consideration of the
record evidence, we conclude, consistent with our origi-
nal decision below, that the evidence in this case fails to
establish that the Union’s bargaining position reflected
an unlawful jurisdictional objective; consequently, we
conclude that the Union did not engage in an unlawful
jurisdictional strike. We begin with a recitation of the
procedural history of this case, followed by a discussion
of the facts and an analysis of the legal question pre-
sented.
I.
On August 27, 1998, the National Labor Relations
Board issued its Decision and Order in this proceeding.1
In that decision, the Board affirmed the administrative
law judge’s dismissal of allegations that the Respondent
violated Section 8(a)(5) of the Act by refusing to execute
a collective-bargaining agreement, and by conditioning
the attainment of an agreement on a nonmandatory sub-
ject of bargaining (specifically, a limitation on the appli-
cability of the agreement to one project only). The
Board additionally affirmed the judge’s conclusion that
the Respondent had violated Section 8(a)(3) and (1) by
failing to reinstate economic strikers upon their uncondi-
tional offer to return to work, and adopted the judge’s
recommended Order requiring, inter alia, that the Re-
spondent offer reinstatement to the strikers.
In that proceeding, the Respondent had asserted, as a
defense to the 8(a)(3) complaint allegation, that it had no
obligation to reinstate the striking employees, because
they allegedly had engaged in an unprotected (and
unlawful) jurisdictional strike. More specifically, the
Respondent claimed that the strike had been conducted in

1 326 NLRB 401.
furtherance of the demands advanced by the Union dur-
ing the parties’ negotiations for a collective-bargaining
agreement, and that those bargaining demands were ju-
risdictional in nature (i.e., that the Union, through nego-
tiations, sought to have certain work assigned to its
members, rather than to other employees).
Although the judge effectively agreed with the Re-
spondent that the Union—via its bargaining demands—
had sought the reassignment of work to its members, the
judge nevertheless did not accept the Respondent’s con-
tention that the strike in furtherance of that bargaining
position constituted an unlawful jurisdictional strike.
Essentially, the judge concluded that he lacked the au-
thority to make a determination as to whether the em-
ployees had in fact engaged in a jurisdictional strike in
violation of Section 8(b)(4)(D), based on the premise that
Section 10(k) provides the exclusive procedural mecha-
nism through which such determinations are to be made.2
The Board adopted the judge’s conclusions that the
strike at issue was an economic strike, and that the Re-
spondent violated Section 8(a)(3) by refusing to reinstate
the strikers. Accordingly, the Board also affirmed the
judge’s order requiring the Respondent to offer rein-
statement to the strikers. Notwithstanding the Board’s
adoption of the judge’s conclusions, however, the Board
rejected certain of the judge’s statements in which he
effectively characterized the Union’s bargaining de-
mands as jurisdictional in nature. Specifically, the Board
disavowed reliance on the judge’s statements to the ef-
fect that the Union, during the course of negotiations
with the Respondent, sought to have particular work
(“oiler and mechanic” work) assigned exclusively to its
members. The Board instead accepted the Union’s claim
that it simply had taken the position during bargaining
that any employees performing oiler and mechanic work
should be covered by the collective-bargaining agree-
ment.3

2 Under Sec. 10(k) of the Act, if the Board finds that the evidence
adduced at the hearing demonstrates reasonable cause to believe that
Sec. 8(b)(4)(D) has been violated, the Board will issue a decision
awarding the work at issue to employees represented by one of the
union parties to the dispute. If the Board awards the disputed work to
the employees represented by the union charged with the violation of
Sec. 8(b)(4)(D) or the charged party complies with a Board decision
awarding the work to other employees, the unfair labor practice charge
will be dismissed; alternatively, if the charged party fails to comply
with the Board’s decision awarding the work to other employees, the
General Counsel will issue a complaint, and the Board ultimately may
find a violation.
Thus, pursuant to the framework established by Sec. 10(k), it is only
after the Board makes an award of the work in dispute, and a union
fails to comply with that award, that a union may be found to have
violated Sec. 8(b)(4)(D).
3 On March 3, 1999, the General Counsel filed a motion for clarifi-
cation of the Board’s Decision and Order. Specifically, based on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1034
Thereafter, the Board filed a petition seeking enforce-
ment of its Order with the United States Court of Ap-
peals for the Eleventh Circuit. On April 20, 2001, the
court issued an order denying enforcement of the Board’s
Order. The court determined that, although the Board
was permitted to reject the judge’s characterization of the
Union’s bargaining position—as it represented one of
several permissible inferences that could be drawn from
the credited facts—the Board had an obligation to more
clearly explain its rationale. Because the court concluded
that the Board had not fulfilled that obligation, the court
remanded the proceeding to the Board “for a thorough
discussion of the evidence supporting the Board’s deter-
mination of the Union’s bargaining position and for a
thorough explanation of the Board’s reasons for dis-
counting the conflicting evidence on this issue.” 247
F.3d at 1312–1313.
By letter dated August 6, 2001, the Board notified the
parties that it had decided to accept the court’s remand
and invited the parties to submit statements of position.
The General Counsel, the Union, and the Respondent
filed statements of position.
II.
The Board has considered the Board’s original deci-
sion in light of the court’s opinion and the parties’ state-
ments of position. For the reasons that follow, we find
that the evidence in this case fails to establish that the
Union’s bargaining position reflected a jurisdictional
objective.4 Accordingly, we conclude, consistent with
the Board’s original decision below, that the Union did
not engage in an unlawful jurisdictional strike.

Board’s adoption of the judge’s conclusion that the striking employees
had made an unconditional offer to return to work, the General Counsel
sought the deletion of the words “upon application” from that portion
of the Board’s order requiring the Respondent to reinstate the strikers.
On July 27, 1999, the Board issued an unpublished order granting the
General Counsel’s motion, in part. The Board reaffirmed the finding
that the Union had made an unconditional offer to return to work and
that, consequently, no further offer was necessary to activate the Re-
spondent’s obligation to reinstate the strikers. The Board further found
that, although the language used in the initial order was somewhat
imprecise, the deletion of the phrase “upon application” was unneces-
sary, as it should have been clear to the Respondent—in light of the
finding that an unconditional offer to return to work had been made—
that it had an obligation to proceed with the reinstatement of the em-
ployees at issue.
4 In reaching this conclusion, we have relied solely on the record
evidence and briefs from this proceeding. That is, we have not consid-
ered—nor has any party urged us to consider—any evidence or argu-
ments submitted in the related case, Gimrock Construction, Inc., 344
NLRB No. 112, which we additionally issue today.
A. Factual Background
The facts of this case may be summarized briefly as
follows.5 The Respondent, Gimrock Construction Inc., is
a heavy civil marine construction contractor operating
throughout southern Florida and the Carribean. The Re-
spondent employs a general work force consisting of
“construction specialists” and mechanics, as well as a
number of operating engineers, who possess the skills
necessary for the operation of much of the heavy equip-
ment utilized in the course of the Respondent’s work.
With respect to the operating engineers, beginning in
approximately 1987, the Union and the Respondent exe-
cuted a series of 8(f) prehire agreements that set forth
their terms and conditions of employment on a project-
by-project basis. The Union referred operating engineers
to the Respondent through its hiring hall.
In 1994, Union Business Agent Gary Waters discov-
ered that the Respondent had been making pension and
health and welfare trust fund contributions on behalf of
operating engineer employees whom the Respondent had
transferred to new projects, although the parties did not
have a specific project agreement or other collective-
bargaining agreement at those projects. Waters was con-
cerned that the Union could incur liability as a result of
those trust fund payments.6 He therefore requested that
the Respondent execute a new collective-bargaining
agreement covering the operating engineers then em-
ployed by the Respondent. When the Respondent in-
formed Waters that it would execute a project agreement
only, the Union decided to petition the Board for a repre-
sentation election.
Thereafter, the Union and the Respondent stipulated to
an election among the employees in the following unit,
which mirrored the unit description contained in the Un-
ion’s standard contract:
All equipment operators, oiler/drivers and equipment
mechanics employed by the Respondent in Dade and
Monroe counties in Florida, excluding all office clerical
employees, professional employees, guards, and super-
visors as defined in the Act.
The Union won the election, and the Board subsequently
certified the Union as the exclusive collective-bargaining
representative of the employees in the above-described unit.
Following the Board’s certification of the Union on
March 20, 1995, the parties commenced negotiations for

5 These facts are drawn both from the judge’s decision and from un-
contradicted record evidence not set forth by the judge.
6 Sec. 302 of the Act, which prescribes limitations on financial trans-
actions between employers and employees, and the unions that repre-
sent them, prohibits such payments in the absence of a collective-
bargaining agreement. See 29 U.S.C. § 186.
GIMROCK CONSTRUCTION 1035
a collective-bargaining agreement. At the parties’ first
meeting, the Union presented to the Respondent a pro-
posed contract, which contained a recognition clause
identical to the unit description contained in the Union’s
certification. Although the Respondent agreed to recog-
nize the Union as the bargaining representative of the
unit described in the certification, the Respondent ex-
pressed its desire to maintain the ability—consistent with
its asserted past practice—to assign to its non-operating
engineer employees particular work duties that the Union
claimed are traditionally performed by the employee
classifications contained in the Union’s certification.7 To
that end, the Respondent proposed the inclusion of the
following provision, designated as article IV, section 10,
in the collective-bargaining agreement:
The parties recognize that the Employer has an estab-
lished past practice, essential to its economic viability,
of using non-bargaining unit employees to perform
work on the following type of equipment: boring ma-
chines, pumps, air compressors, trucks, welding ma-
chines, 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 parties 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 pro-
visions 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.

7 Although the bargaining unit described in the certification includes
the classification “oiler/drivers,” it is undisputed that, at the time of the
Union’s certification, the Respondent did not employ any persons ex-
clusively within the category of “oiler/driver.” Rather, the Respon-
dent’s practice had been to utilize operating engineers who were not
otherwise occupied or, alternatively, its construction specialists, to
perform the duties typically associated with oilers. As described by
several union witnesses, those duties included such tasks as driving
cranes, assisting with the assembly/disassembly of cranes, performing
routine maintenance on cranes, and assisting crane operators in any
other manner necessary to ensure the safe operation of the cranes.
With respect to the classification “mechanics” set forth in the certifi-
cation, the record reveals that the Respondent employed both a me-
chanic referred through the Union’s hiring hall, as well as several un-
represented field mechanics. Prior to the Union’s certification, the
union-referred mechanic performed maintenance and repair work on
the heavy equipment utilized by the operating engineers; the field me-
chanics performed maintenance and repair work on various types of
equipment including, at times, the equipment utilized by the operating
engineers.
In addition, the Respondent proposed the elimination of that
portion of the Union’s proposed contract (designated art. I,
sec. 4) that provided that oiler/drivers must “be utilized to
assist in the erection and dismantling of all cranes and to
move or drive all lattice boom mobile cranes.” The Re-
spondent objected to that provision on the ground that it
ostensibly would require the Respondent to hire additional
employees (i.e., operating engineers, who would serve as
“oilers”) to perform the referenced duties, which previously
had been performed, at times, by its construction specialists.
The Union, on the other hand, viewed the Respondent’s
proposals as an attempt to remove what it considered to be
bargaining unit work from the certified unit. Accordingly,
the Union rejected the Respondent’s proposals.8
Thereafter, the parties met for bargaining on two addi-
tional occasions, during which they continued to debate
the extent to which particular work duties and/or the em-
ployees performing those duties should be covered by
any negotiated collective-bargaining agreement. Specifi-
cally, the Union continued to insist that the tasks of as-
sembling/disassembling and moving of cranes, as well as
the monitoring of specified jet pumps and the operation
of power packs for vibratory hammers, should be as-
signed only to “oilers” or “bargaining unit” employees,
while the Respondent adhered to its position that it de-
sired to continue to assign such work as it had in the past.
In addition, the parties expressed similar disagreement
concerning the work to be performed by the union-
referred mechanic and the field mechanics.
Ultimately, as the parties’ negotiations failed to yield
any progress toward an agreement on the above-
described issues, the Union notified the Respondent on
May 30 that it would initiate a strike if the “oiler issue”
could not be resolved. The Respondent was unwilling to
alter its position and, accordingly, the Union commenced
a strike the next day.
Also on May 31, the Respondent’s attorney and chief
negotiator, Donald Ryce, sent the Union a letter that set
forth the Respondent’s understanding of the Union’s
bargaining position, as well as the Respondent’s explana-
tion for its refusal to accede to the Union’s demands.9

8 Although the Union rejected the Respondent’s proposed art. IV,
sec. 10 as written, the Union did proffer a counterproposal which, inter
alia, permitted the Respondent’s use of “non-bargaining unit employ-
ees” to perform work on trucks and boats only.
9 Ryce’s May 31 letter provided, in pertinent part:
I have described our telephone conversation of yesterday to Gim-
rock. 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 lat-
tice boom mobile cranes,” and further agrees that, in the future, its two
non-bargaining unit field mechanics will no longer work on all of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1036
The next day, the Union’s attorney contacted Ryce to
inform him that the Union likely would forgo its claims
regarding the operation of the power packs and jet pumps
if the Respondent would agree to the Union’s claims
with respect to the oiler and mechanics’ work relating to
the cranes. Ryce indicated that he would notify the Un-
ion if the Respondent changed its position.
Despite further discussions between various represen-
tatives of the Union and Respondent, the parties were
unable to reach an agreement. Accordingly, the strike
continued until June 6, on which date the Union made an
unconditional offer for the strikers to return to work.
The Respondent, however, refused the Union’s request.
B. Analysis
As explained above, the issue on remand is whether
the Union engaged in an unlawful jurisdictional strike,
such that the Respondent was justified in refusing to re-
instate the striking employees. Significantly, the Re-
spondent’s contention that it has no obligation to rein-
state the strikers is an affirmative defense. Accordingly,
the Respondent bears the burden to prove that the strike
was jurisdictional in nature. See Consolidated Delivery
& Logistics, Inc., 337 NLRB 524, 527 fn. 9 (2002), enfd.
2003 WL 21186027 (D.C. Cir. 2003). For the reasons
that follow, we conclude that the Respondent has failed
to satisfy that burden.
At the outset, we distinguish between a jurisdictional
claim and a representational claim. In the former situa-
tion, a union seeks to have the employer assign the work
to one group of employees rather than another. In the
latter situation, the union seeks to have the employees
who perform the work, whoever they are, included in the
unit and covered by the contract. In the instant case, as
noted above, the burden was on the Respondent to show
that the strike was for a jurisdictional object. In our
view, the record as a whole fails to establish that the Un-
ion’s claim was jurisdictional.
As the strike at issue was conducted in furtherance of
the Union’s position during bargaining, our analysis nec-

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 are several problems with the approach you have sug-
gested. 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 jurisdictional 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 ap-
proach, as a whole, totally disrupts the status quo by removing signifi-
cant job duties from its present non-bargaining unit workforce and
likely would lead to layoffs of some of these personnel.
essarily must begin with an examination of the parties’
negotiations. As discussed above, the parties com-
menced bargaining following the Board’s certification of
the Union as the exclusive bargaining representative of
“all equipment operators, oiler/drivers, and equipment
mechanics employed by the Respondent . . . .” Although
the parties had stipulated to that unit description, they
had not expressly agreed upon the meaning or scope of
the specified unit. Accordingly, the proper interpretation
of the certified unit became a primary source of dis-
agreement during the parties’ negotiations.
From the outset of negotiations, the Respondent made
clear its position that the Union’s certification did not
alter the status quo between the parties. Essentially, the
Respondent expressed the view that the certified unit
should be coextensive with the prior 8(f) units repre-
sented by the Union (i.e., should encompass only those
employees who had been referred through the Union’s
hiring hall and covered by the parties’ 8(f) agreements).
This position was reflected in the Respondent’s contract
proposals. In its first counterproposal to the Union’s
proffered contract, the Respondent advocated the inclu-
sion of article IV, section 10 (see supra), which would
have authorized the Respondent to continue its precerti-
fication practice of assigning particular work (including
work that the Union considered work traditionally per-
formed by “oilers”) to “non-bargaining unit employees,”
who would not be covered by the parties’ contract.10
Significantly, this proposal additionally called for the
creation of a list of employee names that would serve as
the conclusive determinant as to the composition of the
bargaining unit.
The Union, by contrast, sought to define the unit not in
terms of particular individuals but, rather, by reference to
the particular work duties performed by persons occupy-
ing the job classifications delineated in the certification.11
As explained at trial by Union Business Agent Gary Wa-
ters, the Union adopted the position that particular
work—i.e., work that traditionally was performed by
“oilers” and equipment mechanics, job classifications set

10 In an April 4 letter to the Union, the Respondent’s attorney, Don-
ald Ryce, expressed his understanding that the parties desired to main-
tain the status quo, and explained that the Respondent’s proposed art.
IV, sec. 10 reflected the Respondent’s desire to maintain its “flexibility
of operations.”
11 As discussed above (see fn. 7, supra), it is undisputed that the Re-
spondent did not employ any persons exclusively within the category of
“oiler/driver” at the time of the Union’s certification. Rather, it had
been the Respondent’s practice to utilize operating engineers who were
not otherwise occupied or, alternatively, its construction specialists, to
perform the duties typically associated with oilers.
Additionally, although the Respondent employed a number of me-
chanics at the time of the Union’s certification, there is no indication
that any of them specifically were identified as “equipment mechanics.”
GIMROCK CONSTRUCTION 1037
forth in the certification12—constituted “bargaining unit
work” within the meaning of the certification.13
The Respondent contends that the Union’s efforts to so
define the certified unit evidenced an unlawful jurisdic-
tional objective.14 Specifically, the Respondent asserts
that, through its bargaining position, the Union inappro-
priately sought the reassignment of work from one group
of employees (i.e., the Respondent’s construction spe-
cialists, in the case of the “oiler” work, and the field me-
chanics in the case of the mechanics’ work) to another
group of employees (i.e., the union-referred employees
who had comprised the former 8(f) unit).15
Contrary to the Respondent’s assertion, and to the
judge’s apparent finding in the proceeding below, we do
not find that the evidence establishes that the Union’s
bargaining position evidenced a jurisdictional objective.
As explained below, the Union’s bargaining positions
and proposals were directed toward the objective of de-
fining the certified unit (by reference to the work duties
traditionally performed by the enumerated classifica-
tions).16
Although certain of the Union’s proposals or state-
ments, viewed in isolation, arguably might be ambigu-
ous, they must be examined in the overall context of the
parties’ negotiations, including the Respondent’s bar-
gaining positions and the history of the parties’ relation-
ship. As described below, the positions advanced by the
Union were largely influenced by, and responsive to, the
Respondent’s bargaining proposals. This observation is
perhaps best illustrated by the Union’s divergent posi-

12 The parties seemingly were in agreement with respect to the clas-
sification of “equipment operators” contained in the certification.
13 For example, Waters repeatedly testified that the Union believed
that the transportation, assembly, and dismantling of cranes is work that
traditionally is performed by oilers and, accordingly, constitutes “bar-
gaining unit work.” Similarly, Waters testified that the operation of jet
pumps and power packs was “bargaining unit work,” as such work also
typically was performed by oilers.
In addition, Waters’ testimony reveals that the Union characterized
as bargaining unit work that mechanical repair work performed on the
heavy equipment utilized by the equipment operators.
14 It is well established that a dispute or claim will be considered ju-
risdictional if there is “either an attempt to take a work assignment
away from another group, or to obtain the assignment rather than have
it given to the other group.” Glass & Pottery Workers Local 421 (A-
CMI Michigan Casting Center), 324 NLRB 670, 674 (1997) (citations
omitted).
15 Although the Respondent—as well as the judge and the Board in
the proceedings below—referred to the employee group to which the
Union allegedly sought reassignment of the disputed work as “the
Union’s members,” this group more accurately is characterized as the
union-referred employees who had comprised the prior 8(f) unit.
16 That is not to suggest that we endorse the Union’s position with
respect to the composition of the certified bargaining unit; indeed, it is
unnecessary for us to reach the issue of the actual composition of the
unit in this proceeding.
tions—formulated in response to the Respondent’s bar-
gaining proposals—with respect to the “equipment me-
chanics” and the “oilers,” the two certified unit classifi-
cations in dispute.
With respect to the “equipment mechanics” classifica-
tion delineated in the Union’s certification, the record
reveals that the Union advanced the position that any
work that was traditionally performed by equipment me-
chanics—repair and maintenance work performed on the
heavy equipment utilized by the equipment operators—
was “bargaining unit work” that should be covered by
the parties’ collective-bargaining agreement.17 As ex-
pressed by Respondent’s counsel in his May 31 letter to
the Union,18 the Respondent asserts that the Union had
insisted that the Respondent’s field mechanics cease per-
forming heavy equipment repair work and, by implica-
tion, that any such work be reassigned to the union-
referred mechanic. Union Agent Waters, however, spe-
cifically refuted the Respondent’s characterization of the
Union’s position in that regard:
I disagree with the statement that says in the future that
two non-bargaining unit field mechanics will no longer
work on the Company’s equipment. I made no such
statement. I said that their claim that these people were
not in the bargaining unit and worked on small equip-
ment and didn’t do repair on heavy equipment that we
covered was fine, but if in any event that they did do
work on the heavier equipment . . . then they would be
within the bargaining unit. . . . I made it clear to [Re-
spondent’s counsel] that we had no objection to taking
these people into the bargaining unit that they already
had employed . . . unless they were not going to work
on bargaining unit equipment and not be mechanics
under the, in the bargaining unit.
Waters’ testimony plainly reveals that the Union did not
oppose the Respondent’s assignment of “bargaining unit
work” (i.e., heavy equipment repair work) to the field me-
chanics. To the contrary, the Union simply sought assur-
ances from the Respondent that if the field mechanics in fact
performed heavy equipment repair work, they would be
included in the bargaining unit represented by the Union.
Significantly, and notwithstanding the Respondent’s above-
referenced characterization of the Union’s position with
respect to the field mechanics, certain record testimony sug-
gests that the Respondent, in fact, understood that the Union
merely sought contract coverage for all mechanics perform-
ing heavy equipment repair work.

17 As discussed above (see fn. 7, supra), prior to the Union’s certifi-
cation, both the union-referred mechanic and, at times, the field me-
chanics, had performed heavy equipment repair work.
18 See fn. 9, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1038
Following the collapse of the parties’ negotiations and
the Union’s consequent initiation of the strike, the Re-
spondent’s vice president, Lloyd Hunt, contacted Bennie
Splain, regional director for the International Union, to
request his assistance in resolving the parties’ asserted
impasse. In describing the discussions between Hunt and
Splain—as relayed to him by Splain—Waters testified
that, on the subject of the mechanics, Hunt had indicated
that, although he did not mind paying the Union wage
rate to some of the mechanics, he did not want to pay
that rate to the lesser-skilled mechanics (presumably a
reference to the field mechanics). Waters’ testimony in
this regard conveys the impression that the Respondent
clearly understood the Union to be asserting a demand
for contract coverage for the field mechanics performing
heavy repair work, rather than a demand for reassign-
ment of work to the union-referred mechanic.19
In sum, the evidence demonstrates that the Union did
not seek the reassignment of heavy equipment repair
work to a specific employee or group (i.e., a jurisdic-
tional objective); instead, the Union merely sought to
ensure that any mechanics performing that work would
be included in the bargaining unit (i.e., a representational
objective).20
In contrast to its position concerning the equipment
mechanics, the Union’s bargaining position with respect
to the employees performing “oiler” work arguably was
ambiguous. Thus, Union agent Waters repeatedly testi-
fied that the Union had adopted the position that oiler
work—the transportation, assembly, and disassembly of
cranes, and the operation of the jet pumps and power
packs—was “bargaining-unit work” which, accordingly,
should be performed only by “bargaining unit employ-
ees.”21 As the record demonstrates that both the union-

19 Although Lloyd Hunt appeared as a witness at the hearing before
the administrative law judge, he did not contradict Waters’ testimony,
nor did he otherwise testify concerning the specific substance of his
conversations with Splain.
20 Board precedent establishes that when the focus of a dispute is
whether a union (or which of two unions) represents a group of em-
ployees performing particular work, the dispute is representational—
rather than jurisdictional—in nature. See, e.g., Carpenters Local 275
(Lymo Construction), 334 NLRB 422 (2001); Glass & Pottery Workers
Local 421 (A-CMI Michigan Casting Center), 324 NLRB 670, 674
(1997); Teamsters Local 222 (Jelco), 206 NLRB 809 (1973).
21 Although the witnesses’ usage of the terms “bargaining unit” and
“non-bargaining unit” was rather imprecise and, at times, somewhat
ambiguous, it appears that both parties generally understood those
terms to mean, respectively, the union-referred employees (operating
engineers) who had comprised the former 8(f) units, and the Respon-
dent’s construction specialists and field mechanics. For example, Wa-
ters testified that the Union adopted the position that crane transporta-
tion constituted bargaining unit work, for which the Respondent should
utilize an equipment operator, front-end loader, etc. Additionally, in
response to Attorney Ryce’s question as to whether the Union had
referred operating engineers and the Respondent’s con-
struction specialists had performed such duties prior to
the Union’s certification, the Union’s insistence that such
work be performed only by operating engineers arguably
suggests that the Union may have sought the reassign-
ment of work from a particular group of employees, i.e.,
a jurisdictional objective. In our view, however, the Un-
ion’s position with respect to the oiler work cannot be
viewed in isolation but, rather, must be examined in the
overall context of the Union’s certification and the ensu-
ing negotiations including, significantly, the Respon-
dent’s bargaining proposals.
As set forth above, the Respondent, from the com-
mencement of the negotiations, expressed the position
that the Union’s certification did not alter the status quo
between the parties. The Respondent, therefore, har-
bored some concern that the Union’s effort to define the
certification in terms of the work duties traditionally per-
formed by “oilers/drivers” would compromise its ability
to continue to utilize its construction specialists to per-
form such duties or, at a minimum, would subject it to
the constraints of the parties’ collective-bargaining
agreement. Accordingly, the Respondent proposed the
addition of a new contract provision, designated article
IV, section 10. In relevant part, that provision authorized
the Respondent to continue its prior practice of using
“non-bargaining unit” employees to perform various
work duties (seemingly including those identified by the
Union as tasks that traditionally were performed by oil-
ers), and concomitantly provided that such work would
not be deemed to be covered by the contract when per-
formed by those nonunit employees.22

taken the position that the Respondent should utilize operating engi-
neers to run the jet pumps and power packs for the laboratory hammers,
Waters answered in the affirmative.
The record reveals that, initially, the Union insisted that only “bar-
gaining unit employees” could perform the crane-related oiler work and
the jet pump/power pack work. Subsequently, however, as both parties
concede, the Union, in an effort to facilitate an agreement between the
parties, offered to “relent on its demands” for the jet pump and power
pack work. Specifically, Waters testified that, during a telephone con-
versation on the day preceding the strike, he advised Ryce that the
Union would give up its claim that the jet pump and power pack work
constituted bargaining unit work, if the parties could reach an agree-
ment with respect to the remaining oiler and mechanic work.
Additionally, both parties agree that the Union thereafter extended
an offer to the Respondent, authorizing it to utilize nonbargaining unit
employees to perform jet pump and power pack work, and to treat them
as “oilers under the contract only for those hours.” Although the par-
ties are not in agreement as to the timing of the Union’s offer, resolu-
tion of that issue is not critical to our analysis.
22 In that regard, the proposal additionally provided for the creation
of a list of employee names that would serve as the conclusive source
for identification of the employees comprising the bargaining unit.
GIMROCK CONSTRUCTION 1039
In our view, the Respondent’s proposal appears to
have foreclosed or rendered futile the position that the
Union had expressed with respect to the equipment me-
chanic classification—that the certification conferred on
the Union the right to represent all employees performing
the designated work duties.23 Indeed, the Respondent’s
proposal specifically provided that construction special-
ists performing various designated duties (including,
seemingly, the transportation, assembly, and disassembly
of cranes, as well as the operation of the jet pumps and
power packs) would not be deemed to be covered by the
terms of the parties’ agreement. For that reason, the Un-
ion was compelled to pursue an alternative means to
achieve its objective of defining the oiler/driver classifi-
cation and retaining oiler work within the certified unit.24
Under these circumstances, we cannot conclude that the
Union’s effort to persuade the Respondent, first, to util-
ize other identified bargaining unit members (e.g.,
equipment operators) to perform the designated oiler
work and, thereafter, to provide contract coverage for
nonbargaining unit employees during the times in which
they performed that work, in the final analysis, evidenced
a jurisdictional objective.
Significantly, this case does not present the situation in
which a union simply asserts an unsubstantiated demand
for work that is being performed by nonunit employees
and that had never been performed by unit employees.
Rather, the Union’s claim to the above-described work
arose in the context of collective bargaining, through
which the parties had endeavored to resolve the ambigu-
ity in the bargaining unit classifications for which the
Union had recently been certified.25 In this context, we
find support for our conclusion that the Union’s conduct

23 Indeed, the record evidence suggests that, absent the Respondent’s
proposals, the Union likely would have maintained a consistent position
with respect to the oiler classification. On more than one occasion,
Waters testified that the Union believed that, as of the date of the Un-
ion’s certification, those “non-bargaining unit” employees who were
performing oiler work “were bargaining unit people if they performed
that work.”
24 From the Union’s perspective, the Respondent’s proffered contract
proposals represented improper attempts to remove “bargaining unit
work” from any negotiated agreement. Indeed, Union Agent Waters
explained that the Union’s concern with the Respondent’s proposed art.
IV, sec. 10 of the collective-bargaining agreement was that “it excluded
most of the bargaining unit work from the contract, if not all.”
25 Moreover, the parties were in agreement that at least some of the
employees who had performed the disputed oiler and mechanics’ work
prior to the Union’s certification were included in the certified bargain-
ing unit.
was not unlawful in the proviso to Section 8(b)(4)(D)
which, in pertinent part, provides that a union may en-
gage in 8(b)(4) conduct if an employer “is failing to con-
form to an order or certification of the Board determining
the bargaining representative for employees performing
such work.” 29 U.S.C. § 158(b)(4)(D).
Finally, our conclusion that the Union’s position in this
case was not definitively jurisdictional in nature is con-
sistent with the Board’s decisions in other contexts. See,
e.g., Seafarers (Recon Refractory & Construction), 339
NLRB 825, 827 (2003) (even where a union’s conduct
literally may satisfy the definition of the proscribed ac-
tivity in Sec. 8(b)(4)(D) of the Act, “the Board neverthe-
less will examine the nature and origins of the dispute to
determine whether it is actually jurisdictional”).
Accordingly, for all the foregoing reasons, we con-
clude that the Respondent did not satisfy its burden to
establish that the Union engaged in an unlawful jurisdic-
tional strike.26
ORDER
The National Labor Relations Board reaffirms the
Board’s original Decision reported at 326 NLRB 401
(1998), as clarified by this opinion and by the Board’s
Order dated July 27, 1999, see fn. 3, supra, and orders
that the Respondent, Gimrock Construction, Inc., Miami,
Florida, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.

26 In light of this conclusion, we need not reach the issue of whether
a respondent properly may allege an 8(b)(4)(D) violation as a defense
to a complaint alleging a failure to reinstate striking employees in vio-
lation of Sec. 8(a)(3). Similarly, we do not pass on the judge’s conclu-
sion that the procedural framework embodied in Sec. 10(k) of the Act
precludes a ruling on the merits of such a defense.