329 F.2d 158 (4th Cir. 1964), 9090, N. L. R. B. v. Atkinson Dredging Co.

Docket Nº:9090.
Citation:329 F.2d 158
Case Date:February 24, 1964
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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329 F.2d 158 (4th Cir. 1964)




No. 9090.

United States Court of Appeals, Fourth Circuit.

February 24, 1964

Argued Nov. 7, 1963.

Certiorari Denied June 8, 1964.

See 84 S.Ct. 1647.

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Joseph C. Thackery, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Atty., National Labor Relations Board, on brief), for petitioner.

George H. Revercomb, Washington, D.C., and Hugh S. Meredith, Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for respondent.

Before HAYNSWORTH and J. SPENCER BELL, Circuit Judges, and CRAVEN, District Judge.

J. SPENCER BELL, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order that Respondent, Atkinson Dredging Company, collectively bargain with the International Union of Operating Engineers, Local Union 25, Marine Division AFL-CIO (hereinafter the Union), as the certified representative of Respondent's

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employees. 1 Respondent's admitted refusal to bargain is based on its contention that the Board improperly certified the Union after erroneously permitting ineligible former employees to vote in the representation election of May 4, 1961.

Respondent, a Florida corporation with its principal place of business at Great Bridge, Virginia, is engaged in marine construction and land reclamation between the eastern shore of Virginia and Key West, Florida. Respondent operates intermittently three dredges (the Enterprise, the Northwood, and the Hampton Roads), and hires workmen to operate these dredges, with the exact number employed dependent upon the available work. Upon application of the Union and after a representation hearing, the Board directed an election to be held on May 4, 1961, among 'all employees of Respondent engaged in dredging operations' employed during the payroll period ending April 1, 1961.

At the election a total of thirty-five employees presented themselves to vote, including twenty-two employees whose names were not on Respondent's eligibility list. In accordance with Board policy, the ballots cast by these twenty-two men were challenged by the Board agent. Of the unchallenged ballots, five were for the Union and eight against. Since the challenged ballots were sufficient in number to affect the results of the election, the Regional Director conducted an investigation and directed that a hearing on the challenged ballots be held on September 19 and 26. Respondent was present and participated in the hearing. On October 27, the hearing officer issued his Report on Challenges, recommending that eight challenges be sustained and that fourteen be overruled and the ballots counted. Respondent filed exceptions to the recommendation that ten challenges be overruled, but made no exceptions to the remaining four. In a Supplemental Decision and Direction issued on April 11, 1962, the Board upheld the hearing officer's recommendation that fourteen of the challenged ballots be counted, but reversed the hearing officer's recommendation that the challenge to the ballot of one Floyd Hewitt be sustained. Thus, fifteen additional ballots were added to those already counted, resulting in a union victory of fifteen to thirteen.

Respondent's consistent position has been that ten ballots were cast by former employees who had been severed from the Company payroll without 'reasonable expectation of employment within a reasonable time in the future.' Whiting Corp. v. N.L.R.B., 200 F.2d 43, 45 (7 Cir. 1952). Respondent argues that the dredging business is subject to fluctuations and that no new dredging contracts may be obtained for an indefinite future period. It also argues that the Company more often than not hires local personnel at the sites of the dredging jobs obtained and that consequently there is no substantial continuity among its employees. On these grounds, Respondent reasons that the certification of the Union was improper (based as it was on ballots cast by permanently laid off employees) and, therefore, Respondent cannot be charged with a refusal to bargain. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 154, 61 S.Ct. 908, 913, 85 L.Ed. 1251 (1941); American Federation of Labor v. N.L.R.B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940).

Upon a review of the whole record we find that the Board's determination to the contrary is supported by substantial evidence. In the Board's decision and order of April 15, 1963, in the complaint

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case, the prior certification was considered and reaffirmed. Thus in ruling that Respondent had committed an unfair labor practice the Board necessarily found that no...

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