Grinnell Fire Protection System Co.

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