Newport News Shipbuilding and Dry Dock Co.

National Labor Relations Board - Board Decisions

Dec 22, 1978

239 N.L.R.B. 1028 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newport News Shipbuilding and Dry Dock Company
and United Steelworkers of America. Case 5-CA-
10236
December 22, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
Upon a charge filed on November 7, 1978, by
United Steelworkers of America, herein called the
Union, and duly served on Newport News Shipbuild-
ing and Dry Dock Company, herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region 5,
issued a complaint on November 9, 1978, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(I) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on October 27, 1978,
following a Board election in Case 5-RC-10323, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about November 2, 1978, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On November 14, 1978, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On November 20, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, and on November 27, 1978, Re-
spondent filed an opposition to the Motion for Sum-
mary Judgment. Subsequently, on December 1, 1978,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
Official notice is taken of the record in the representation proceeding,
Case 5-RC-10323, as the term "record" is defined in Secs. 102.68 and 102
.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV
Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir
1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v Penello, 269 F.Sudp. 573 (DC. Va., 1967);
Follert Corp. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
ment should not be granted. Respondent thereafter
filed a response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
ULpon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its response to the Notice To Show Cause, Re-
spondent contends that there exist substantial and
material issues of fact which have not been resolved
by a hearing and that due process requires that Re-
spondent be given a hearing on the issues before
being found guilty of an unfair labor practice.
Review of the record herein reveals that in Case 5-
RC-10323, a Stipulation for Certification Upon Con-
sent Election was approved by the Regional Director
and the election was conducted on January 31, 1978.
On February 6, 1978, Respondent and Intervenor
Peninsula Shipbuilders' Association, hereinafter
PSA, filed objections to conduct affecting the results
of the election. The tally of ballots showed that of
approximately 19,000 eligible voters, 17,210 cast val-
id ballots, of which 9,093 were for the Union, 7,548
were for PSA, 95 were for Intervenor Marine-lndus-
trial and Transportation Union, 217 were against
participating labor organizaticns, and 257 were chal-
lenged. In addition, there were 35 void ballots. The
Regional Director issued his Report on Objections
on May 19, 1978, recommending that the objections
be overruled, and that the Union be certified. Re-
spondent and PSA each duly filed exceptions to the
Regional Director's Report on Objections. On Octo-
ber 27, 1978, the Board issued a Decision and Certifi-
cation of Representative, in which it adopted with
certain modifications the Regional Director's find-
ings and recommendations in his Report on Objec-
tions, and issued a Certification of Representative
certifying the Union as the collective-bargaining rep-
resentative of the employees in the appropriate unit.2
Following a request by the Union on or about No-
2 See generally Newport News Shipbuilding and Dr5 Dock Companr'. 239
NILRB 82 (1978). In fn. 6 of that Decision. Chairman Fanning stated that
he would adopt the Regional Director's recommendation that the misrepre-
sentation objections be overruled, hut that he did not rely on Shopping Karl
Food Market, Inc., 228 NLRB 1311 (1977) (then-Member Fanning and
Member Jenkins, dissenting). Rather, he reached the same result under the
standards of Hol/swood Ceramics Conmpany, Inc., 140 NLRB 221 (1962).
Member Penello stated that he found no merit in the misrepresentation
objections 'for the reasons set forth in Shopping Karl. Member Truesdale
stated that he adopted the Regional Director's recommendation to overrule
the misrepresentation objections because the misrepresentation allegations
were insufficient to warrant setting aside the election under any view of the
law. Subsequently. in General Knir of (alilornia, 239 NL RB 619. which
issued on December 6. 1978, the full Board, Members Penello and Murphy
dissenting, overruled Shopping Karl. supra. "and returned to the standard of
1028
NEWPORT NEWS SHIPBUILDING
vember I, 1978, that Respondent bargain collectively
in good faith with respect to rates of pay, hours, and
other terms and conditions of employment, the Re-
spondent refused to recognize and bargain in good
faith with the Union as the exclusive bargaining rep-
resentative of its employees in the certified urit. Re-
spondent has refused to bargain with the Union since
on or about November 2, 1978.
It is well settled that, in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances, a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding.4 and Respondent does not of-
fer to adduce at a hearing any newly discovered or
previously unavailable evidence, nor does it allege
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that Respondent has not raised any issue which
is properly litigable in this unfair labor practice pro-
ceeding. Accordingly, we grant the Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FA('I
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under and ex-
isting by virtue of the laws of the State of Virginia,
maintaining a place of business and production facil-
ity at Newport News, Virginia, where it is engaged in
review for alleged misrepresentations most cogently articulated in Holh-
wood Ceramics Company. Inc." Accordingly. Chairman Fanning and Mem-
ber Trucsdale have reconsidered the misrepresentation objections alleged
herein under the standard of review as set forth In General Knit. supra. and.
under that standard, find that the misrepresentation allegations are not suf-
ficient to warrant setting aside the election. Member Penello adheres to his
position in Shopping Kart and, as stated previousl) in Ihe representation
case, finds no merit to the misrepresentation allegations
3 See Pittsburgh Plate Glass Co. v NL.R.B.. 313 U.S. 146. 162 (1941)1.
Rules and Regulations of the Board. Sees. 102.67(f) and 102.69(c).
In the representation proceeding. Respondent contended in its ohjec-
tions pnmarily that: (1) Irregularities occurred as the result of Board agent
laxness in the handling of blank ballots and the ballot boxes: (2) deslations
from the preelection agreement of the parties resulted in confusion and the
reasonable possibility of vote traud; (3) more hallots were cast than sere
employees present on the day of the election; (4) union representatives and
agents made false, misleading, and racially inflammatory statements which
altered the laboratory conditions for a valid election, and that these state-
ments were not made known to Respondent until too late for an adequate
response: and (5) union representatives made unlawful threats designed to
influence and intimidate voters.
the construction and repair of oceangoing vessels.
During the past 12 months, which period is represen-
tative of all times material herein, Respondent. in the
course and conduct of its business operations, pur-
chased and received materials and supplies valued in
excess of $50,000 which were transported to its New-
port News. Virginia. facility directly from States of
the United States other than the State of Virginia.
We find. on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
It will effectuate the policies of the Act to assert juris-
diction herein.
11. Ill I.ABOR ()R(iANIZAIION INVOI.VEiD)
United Steelworkers of America is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Il IHHE UNFAIR LABO()R PRA(II('IS
A. The Represenrtlion Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
the Newport News Shipyard including appren-
tices (production and maintenance depart-
ments). all material men, material support em-
ployees (material expediters and material supply
clerks). toolroom employees, and plant and of-
fice clerical employees (drawing clerks, key ma-
chine operators, mail carriers, office clerks, re-
production clerks, senior office clerks, and
senior reproduction clerks), office janitors, tech-
nical employees (MT-PT inspectors, optical de-
tailers, radiographic operators, ultrasonic in-
spectors. and inspectors), and food service
workers, but excluding II employees in plant
protection department, including guards, fire
prevention employees, plant firemen, rounds-
men and fire watchers, all patternmakers (and
apprentices), all timekeepers, all salaried em-
ployees, all design aides, design apprentices,
technical aides, junior designers, designers, se-
nior designers and supervisors as defined in the
Act.
2. The certification
On January 31, 1978, a majority of the employees
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 5, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on October 27, 1978, and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about November 1, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about November 2, 1978, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
November 2, 1978, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
i. Newport News Shipbuilding and Dry Dock
Company is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees of
the Newport News Shipyard, including apprentices
(production and maintenance departments), all ma-
terial men, material support employees (material ex-
pediters and material supply clerks), toolroom em-
ployees, and plant and office clerical employees
(drawing clerks, key machine operators, mail car-
riers, office clerks, reproduction clerks, senior office
clerks, and senior reproduction clerks), office jani-
tors, technical employees (MT-PT inspectors, optical
detailers, radiographic operators, ultrasonic inspec-
tors, and inspectors), and food service workers, but
excluding II employees in plant protection depart-
ment, including guards, fire prevention employees,
plant firemen, roundsmen and fire watchers, all pat-
ternmakers (and apprentices), all timekeepers, all sal-
aried employees, all design aides, design apprentices,
technical aides, junior designers, designers, senior de-
signers, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since October 27, 1978, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about November 2, 1978, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
1030
NEWPORT NEWS SHIPBUILDING
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Newport News Shipbuilding and Dry Dock Compa-
ny, Newport News, Virginia, its officers, agents, suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with United Steelworkers of
America as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees of
the Newport News Shipyard including appren-
tices (production and maintenance depart-
ments), all material men, material support em-
ployees (material expediters and material supply
clerks), toolroom employees, and plant and of-
fice clerical employees (drawing clerks, key ma-
chine operators, mail carriers, office clerks, re-
production clerks, senior office clerks, and
senior reproduction clerks), office janitors, tech-
nical employees (MT-PT inspectors, optical de-
tailers, radiographic operators, ultrasonic in-
spectors, and inspectors), and food service
workers, but excluding 11 employees in plant
protection department, including guards, fire
prevention employees, plant firemen, rounds-
men and fire watchers, all patternmakers (and
apprentices), all timekeepers, all salaried em-
ployees, all design aides, design apprentices,
technical aides, junior designers, designers, se-
nior designers and supervisors as defined in the
Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its facility located at Newport News,
Virginia, copies of the attached notice marked "Ap-
pendix." I Copies of said notice, on forms provided
by the Regional Director for Region 5, after being
duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that this Order is enforced by ajudgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with
United Steelworkers of America as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es. hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees
of the Newport News Shipyard including ap-
1031
DECISIONS OF NAtIONAL LABOR REI.ATIONS BOARD
prentices (production and maintenance de-
partments), all material men, material support
employees (material expediters and material
supply clerks), toolroom employees, and plant
and office clerical employees (drawing clerks,
key machine operators, mail carriers. office
clerks, reproduction clerks, senior office
clerks, and senior reproduction clerks), office
janitors, technical employees (MT-PT Inspec-
tors, Optical Detailers, Radiographic Opera-
tors, UI ltrasonic Inspectors, and Inspectors),
and food service workers, but excluding 11
employees in Plant Protection Department,
including guards, fire prevention employees,
plant firemen, roundsmen and fire watchers,
all patternmakers (and apprentices), all timek-
eepers, all salaried employees, all design aides,
design apprentices, technical aides, junior de-
signers, designers, senior designers and super-
visors as defined in the Act.
NEWPORT NEWS SHIPBt ILDING AND DRY
Do( K COMPANY
1032