Huntington Ingalls Incorporated

National Labor Relations Board - Board Decisions

Oct 3, 2014

361 N.L.R.B. 690 (N.L.R.B. 2014)

690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Huntington Ingalls Incorporated1 and International
Association of Machinists and Aerospace Work-
ers, AFL–CIO. Case 05–CA–081306
October 3, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding.2 Pursuant to a charge filed on May 18,
2012, the Acting General Counsel issued the complaint
on May 31, 2012, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union’s request to bargain following the Union’s certifi-
cation in Case 05–RC–016292.3 The Respondent filed
an answer and an amended answer, admitting in part and
denying in part the allegations in the complaint, and as-
serting affirmative defenses.
On June 19, 2012, the Acting General Counsel filed a
Motion for Summary Judgment. On June 21, 2012, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
On August 14, 2012, the Board issued a Decision and
Order in this proceeding, which is reported at 358 NLRB
913. The Respondent filed a petition for review and the
Board filed a cross-application for enforcement of the
order in the United States Court of Appeals for the
Fourth Circuit. The court consolidated the case for oral
argument and decision with NLRB v. Enterprise Leasing
Co. Southeast, LLC (4th Cir. No. 12–1514).
On July 17, 2013, the court denied enforcement of the
Board’s order. NLRB v. Enterprise Leasing Co. South-
east, LLC, 722 F.3d 609, 660 (2013). At the time of the
Board’s order, three of the five members of the Board
were serving pursuant to January 2012 appointments that
had been challenged as constitutionally infirm. The
court’s denial of enforcement was based on its conclu-
sion that the January 2012 appointments were invalid,
and that the Board therefore lacked a quorum to act at the
1 In accord with the Respondent’s answer to the complaint and the
Acting General Counsel’s motion, the case caption has been changed to
reflect the correct name of the Respondent.
2 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 The Board’s Decision on Review and Order in the representation
proceeding issued under the name Northrop Grumman Shipbuilding,
Inc., 357 NLRB 2015 (2011). Official notice is taken of the record in
the representation proceeding as defined in the Board’s Rules and Reg-
ulations, Secs. 102.68 and 102.69(g). Frontier Hotel, 265 NLRB 343
(1982).
time that it issued the order. Id. at 612–613, 660. The
Board filed a petition for rehearing for the limited pur-
pose of requesting that the court’s order be modified to
include language explicitly remanding the case to the
Board for further proceedings consistent with the court’s
decision. The petition was summarily denied.
The Board subsequently filed a petition for certiorari.
After the Supreme Court’s decision in NLRB v. Noel
Canning, 134 S.Ct. 2550 (2014), which held the January
2012 appointments invalid, the Court denied the Board’s
petition.
By letter dated August 14, 2014, the Executive Secre-
tary notified the parties that, in view of the determination
that the Board that had previously decided the case was
not properly constituted, the Board would now “consider
the case anew and . . . issue a decision and order resolv-
ing the complaint allegations.” Thereafter, the Respond-
ent filed a letter objecting to any further action by the
Board, arguing that in the absence of a remand from the
court, the Board lacks jurisdiction over this case.
Respondent’s Objection to Consideration of Motion for
Summary Judgment
The threshold issue is whether, in light of the denial of
enforcement, the Board may consider this case anew.
The sole basis of the decision denying enforcement was
the court’s conclusion that the January 2012 appoint-
ments were invalid, and that the Board thus lacked a
quorum when it issued its order. See 722 F.3d at 612–
613, 660. The court’s denial of enforcement was not
based on the merits of the unfair labor practice findings;
to the contrary, the court held that the Board’s determina-
tion on the merits of the case was supported by substan-
tial evidence. Id. at 631. The clear import of the court’s
decision, along with the Supreme Court’s Noel Canning
decision, is that no validly constituted Board has ruled on
the General Counsel’s motion for summary judgment.
The motion is therefore still pending before the Board,
and the Board is free to address it.
This conclusion is consistent with the court’s denial of
the Board’s petition for rehearing. In the petition, the
Board stated its view that the court’s decision clearly
contemplated the possibility of further proceedings be-
fore a validly constituted Board:

The Court’s denial of enforcement is not based on the
merits of the Board’s unfair labor practice determina-
tions, but solely on the Court’s determination that the
recess appointments to the Board were unconstitution-
al, and that the Board orders, issued without a Board
quorum, therefore “must be vacated.” [722 F.3d at
660.] Accordingly, it follows that the Court’s decision
361 NLRB No. 64

HUNTINGTON INGALLS INC. 691
is to be read as anticipating the possibility of issuance
of new Board orders.

Petition for Rehearing at 3–4, NLRB v. Enterprise Leasing
Co. Southeast, LLC, supra (No. 12–1514) (emphasis in orig-
inal). Notwithstanding this understanding of the meaning of
the denial of enforcement for further proceedings before the
Board, the Board requested the inclusion of explicit remand
language, in order to avoid the possibility of needless litiga-
tion concerning the issue. Because the petition was denied
without explanation, no inference can be drawn that the
denial was inconsistent with the clear import of the order
denying enforcement.4
Finally, consideration of the motion at this time is con-
sistent with the treatment in the courts of appeals of other
cases in which enforcement was denied for lack of a
Board quorum at the time the original decision was is-
sued, and the Board then considered the case again and
issued a new decision. The issue was presented squarely
in NLRB v. Whitesell Corp., 638 F.3d 883 (8th Cir.
2011). The court had denied enforcement of the Board’s
original order because the Board had lacked a quorum
under New Process Steel, L.P. v. NLRB, 560 U.S. 674
(2010),5 and the Board issued a new decision and order.
The court enforced the new order, rejecting the respond-
ent’s argument that the Board lacked jurisdiction to re-
decide the case:

In the prior action, the only question presented
was whether to enforce the NLRB’s order. Relying
on the New Process decision, we denied the applica-
tion for enforcement because the prior NLRB deci-
sion, reached while there were only two members of
the Board, was invalid. On that issue, our decision is
final. See 29 U.S.C. § 160(e).
We have yet to determine whether Whitesell vio-
lated the NLRA. Our prior denial does not preclude
4 See, e.g., Exxon Chemical Patents, Inc. v. Lubrizol Corp., 137 F.3d
1475, 1483 (Fed. Cir. 1998) (motion for clarification); United States v.
Cote, 51 F.3d 178, 181 (9th Cir. 1995) (petition for rehearing or modi-
fication); Luckey v. Miller, 929 F.2d 618, 621–622 (11th Cir. 1991)
(petition for rehearing en banc). Member Johnson did not participate in
the prior representation case and concurs with the result in this proceed-
ing, without needing to rely on the Board’s view stated in its petition,
above. Here, the Court indicated in its original opinion on review that
the sole reason for declining to enforce the order was based on the
invalid composition of the Board at that time; the Court did not give
any explanation for its subsequent denial of the petition for rehearing
that was filed by a constitutionally valid Board; and the Respondent has
admittedly refused to bargain while not raising any representation is-
sues that are properly litigable in an unfair labor practice proceeding.
See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Given those circumstances, Member Johnson concurs here.
5 NLRB v. Whitesell Corp., 385 F.Appx. 613 (8th Cir. 2010). As in
the instant case, the court had also summarily denied a postdecisional
motion by the Board for remand or clarification. 638 F.3d at 888.
the Board, now properly constituted, from consider-
ing this matter anew and issuing its first valid deci-
sion. . . . . The Board properly read our denial of the
application for enforcement as based solely on the
New Process decision. We now address the merits of
the Board’s decision for the first time.

638 F.3d at 889. Similarly, in NLRB v. Domsey Trading
Corp., 636 F.3d 33 (2d Cir. 2011), the court addressed the
merits of a Board decision readdressing a case in which it
had denied enforcement of a prior decision based on New
Process Steel. See NLRB v. Domsey Trading Corp., 383
F.Appx. 46 (2d Cir. 2010); NLRB v. Domsey Trading Corp.,
636 F.3d at 34 fn. 1.6 Accordingly, we proceed to consider
the General Counsel’s motion.7
Motion for Summary Judgment
The Respondent denies its refusal to bargain, and con-
tests the validity of the certification based on its objec-
tions to the election and the Board’s unit determination
in the representation proceeding.8 The Respondent fur-
6 See also NLRB v. Whitesell Corp., 638 F.3d at 889 (While “the
Domsey Trading court declined the invitation to clarify its denial deci-
sion,” it “anticipated further proceedings before the NLRB” and, after
“the case was reconsidered by the Board, . . . addressed the merits of
the Board’s decision.”)
7 NLRB v. Lundy Packing Co., 81 F.3d 25 (4th Cir. 1996), relied on
by the Respondent in opposing consideration of the General Counsel’s
motion, is inapposite. In that case, the court had denied enforcement of
a prior Board order in the case, on the merits. Here, decisively, the
court’s denial of enforcement of the prior order was not a final judg-
ment on the merits of the case. See Whitesell, 638 F.3d at 889.
8 The Respondent’s answer denies the complaint allegations that the
unit is appropriate; that the Union was certified as the exclusive collec-
tive-bargaining representative of the unit; that it has refused to bargain
with the Union as the exclusive collective-bargaining representative of
a properly constituted unit; that its conduct violates the Act; and that its
conduct affects commerce within the meaning of the Act. However,
the issues regarding the appropriateness of the unit and the Union’s
certification were litigated and resolved in the underlying representa-
tion proceeding at a time when the Board had a quorum. In addition,
the Acting General Counsel attached to his motion as Exh. 10 a letter
dated May 8, 2012, from the Respondent to the Union, “respectfully
declin[ing] your invitation to bargain.” The Respondent does not con-
test the authenticity of this letter. Accordingly, the Respondent’s deni-
als with respect to these complaint allegations do not raise any litigable
issues in this proceeding.
The Respondent also argues that the then Acting General Counsel
could not properly be appointed under the Federal Vacancies Reform
Act (Vacancies Act) and therefore lacked authority to issue the com-
plaint in this case. In support of this argument, the Respondent asserts
that the Vacancies Act does not apply to the office of General Counsel
because there is a specific procedure under the National Labor Rela-
tions Act for filling the vacancy. Contrary to the Respondent’s asser-
tion, the express terms of the Vacancies Act make it applicable to all
executive agencies, with one specific exception inapplicable here, 5
U.S.C. § 3345(a); see 5 U.S.C. § 105 (“Executive agency” defined to
include independent agencies), and to all offices within those agencies,
such as the office of General Counsel, that are filled by presidential
appointment with Senate confirmation, 5 U.S.C. § 3345(a). The Re-

692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ther contends that the Board abused its discretion in the
underlying representation proceeding by applying the
standard announced in Specialty Healthcare & Rehabili-
tation Center of Mobile, 357 NLRB 934 (2011), enfd.
727 F.3d 552 (6th Cir. 2013), which it also argues was
wrongly decided. This is an argument that the Respond-
ent could have raised on a motion for reconsideration of
the Board’s underlying decision. See, e.g., Randell
Warehouse of Arizona, Inc., 330 NLRB 914, 914 fn. 1
(2000), enf. denied on other grounds 252 F. 3d 445 (D.C.
Cir. 2001). Hence, we regard this contention as untimely
raised.
In any event, we find no merit in this contention. As
explained in the underlying representation decision, the
Board recognizes a presumption in favor of the retroac-
tivity of new rulings in representation cases. 357 NLRB
2015, 2017, fn. 8. We see no circumstances in this case
that would overcome that presumption. Further, we see
no prejudice to the Respondent. We note that in the un-
derlying decision, the Board addressed the Respondent’s
arguments regarding the appropriateness of the peti-
tioned-for unit and reached the same conclusion under
the cases the Respondent relied on as it did applying
Specialty Healthcare. Id. Therefore, the Respondent
cannot reasonably argue that it was denied due process.9
spondent’s assertion is also contrary to, indeed the converse of, section
3347 of the Vacancies Act, which makes the Vacancies Act the exclu-
sive means for designating an acting official for a covered position
except when another statutory provision, such as Sec. 3(d) of the
NLRA, provides for such designation. In that event, the Vacancies Act
provides a valid “alternative procedure.” S. Rep. No. 105–250, at 17
(1998). Finally, the enforcement provision of the Vacancies Act, 5
U.S.C. § 3348, which deems an office “vacant” and actions taken by its
occupant of “no force or effect” if it was temporarily filled in a manner
inconsistent with the Vacancies Act, is expressly and specifically inap-
plicable to the office of the Board’s General Counsel. 5 U.S.C. §
3348(e)(1). The Acting General Counsel was properly appointed under
the Vacancies Act, and the complaint is not subject to attack based on
the circumstances of his appointment. See Muffley v. Massey Energy
Co., 547 F.Supp. 2d 536, 542–543 (S.D.W. Va. 2008), affd 570 F.3d
534 (4th Cir. 2009) (upholding authorization of a 10(j) injunction pro-
ceeding by Acting General Counsel designated pursuant to the Vacan-
cies Act).
9 We also reject the Respondent’s argument that the Board further
abused its discretion by using the adjudicative process to create a new,
generally applicable standard for determining appropriate bargaining
units. As the Board earlier noted, it “has for 75 years developed the
meaning of the statutory term ‘an appropriate unit’ through adjudica-
tion. . . . The Supreme Court has approved the Board’s use of adjudica-
tion in addressing the broad range of issues arising under the Act.”
Specialty Healthcare & Rehabilitation Center of Mobile, 356 NLRB
287, 291 (2010) (internal footnotes omitted). We further reject the
Respondent’s argument that the Board’s underlying decision contra-
venes Sec. 9(b) or (c)(5).
Member Johnson notes that the Board in the underlying representa-
tion case, Northrop Grumman Shipbuilding, Inc., 357 NLRB 2015
(2011), applied the unit determination standard articulated in Specialty
Consequently, all representation issues raised by the
Respondent were or could have been litigated in the prior
representation proceeding. The Respondent does not
offer to adduce at a hearing any newly discovered and
previously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Virginia cor-
poration,10 with its principal office and place of business
in Newport News, Virginia, has been engaged in con-
structing, overhauling, and refueling nuclear-powered
submarines and aircraft carriers for the United States
Navy. During the 12-month period preceding the issu-
ance of the complaint, the Respondent, in conducting its
business operations described above, has provided con-
struction, overhaul, and nuclear core refueling services
valued in excess of $50,000 directly to the United States
Navy, Department of Defense.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union, International Associa-
tion of Machinists and Aerospace Workers, AFL–CIO, is
a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held June 25,
2009, the Union was certified on February 24, 2012, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:

All full-time and regular part-time radiological control
technicians, radiological control technician trainees, la-
Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011).
Member Johnson did not participate in Northrop Grumman and, be-
cause he agrees that the Respondent has not raised any representation
issue that is properly litigable in this proceeding, finds no need here to
express his opinion whether that case or Specialty Healthcare were
correctly decided.
10 The Respondent’s answer and the Acting General Counsel’s mo-
tion indicate that the complaint incorrectly states that the Respondent is
a Delaware corporation rather than a Virginia corporation. We correct
this error.

HUNTINGTON INGALLS INC. 693
boratory technicians, and calibration technicians em-
ployed in Department E85 at the Respondent’s facility
in Newport News, Virginia; but excluding all other
employees, all office clerical employees, professional
employees, managerial employees, guards, and super-
visors as defined in the Act.

The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
By letter dated April 14, 2012, the Union requested
that the Respondent recognize it and engage in collective
bargaining and, since May 8, 2012, the Respondent has
refused to do so. We find that the Respondent’s failure
and refusal to recognize and bargain with the Union con-
stitutes a violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing, since May 8, 2012, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the
appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody that understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning on the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord: Burnett Construc-
tion Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir.), cert. denied 379
U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, Huntington Ingalls Incorporated, Newport
News, Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Association of Machinists and Aerospace
Workers, AFL–CIO as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit on terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:

All full-time and regular part-time radiological control
technicians, radiological control technician trainees, la-
boratory technicians, and calibration technicians em-
ployed in Department E85 at the Respondent’s facility
in Newport News, Virginia; but excluding all other
employees, all office clerical employees, professional
employees, managerial employees, guards, and super-
visors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Newport News, Virginia, copies of the at-
tached notice marked “Appendix.”11 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 5, after being signed by the Respondent’s author-
ized 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. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent 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 its facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 8, 2012.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
11 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.”

694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with International Association of Machinists and Aero-
space Workers, AFL–CIO as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:

All full-time and regular part-time radiological control
technicians, radiological control technician trainees, la-
boratory technicians, and calibration technicians em-
ployed in Department E85 at our facility in Newport
News, Virginia; but excluding all other employees, all
office clerical employees, professional employees,
managerial employees, guards, and supervisors as de-
fined in the Act.

HUNTINGTON INGALLS INCORPORATED

The Board’s decision can be found at
www.nlrb.gov/case/05–CA–081306 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.