NLRB v. Atkinson Dredging Company

• Decision Date: 24 February 1964
• Docket Number: No. 9090.,9090.
• Citation: 329 F.2d 158
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ATKINSON DREDGING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

329 F.2d 158 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ATKINSON DREDGING COMPANY, Respondent.

No. 9090.

United States Court of Appeals Fourth Circuit.

Argued November 7, 1963.

Decided February 24, 1964.

Certiorari Denied June 8, 1964.

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.

Certiorari Denied June 8, 1964. See 84 S.Ct. 1647.

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 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 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 ineligible former employees had voted in the representation election of May 4, 1961. In this we concur. Since Respondent only contests the counting of ten of the fourteen challenged ballots, we must assume that the remaining four were properly counted. Of the contested ten, Respondent takes exception to one on the ground that the employee casting the ballot had been injured in February and was not working on either the eligibility date, April 1, or the date of the election, May 4; to two others on the ground that they were employed neither on the eligibility date nor on the date of the election; and to seven others on the ground that while employed on the eligibility date, they were laid off prior to the election date without a reasonable expectation of recall.

WALTON GILLIKIN

The record reveals that Walton Gillikin was working for Respondent on the Hampton Roads dredge in February, 1961. On February 11, he injured his finger and was sent to a doctor for treatment by the Captain of the Hampton Roads. Walton Gillikin stayed at home approximately a month, allowing his finger to heal, and then twice sent word back to the Captain — once by a fellow employee and once by the Captain's brother — that he was ready to return to work. Walton Gillikin was not recalled by Respondent, and accepted employment with a plumbing company sometime after the eligibility date of April 1, but prior to the election date of May 4. This job lasted approximately six or eight weeks and he then accepted other employment.

The informal practice utilized by Respondent's laid off employees of sending word back by fellow employees when they are ready to return to work is a procedure recognized and accepted by both employees and responsible company officials. Walton Gillikin, therefore, was justified in making known in this fashion his ability and desire to return to work. Although the record is silent as to whether the messages were actually received by the Hampton Roads Captain, we think that the important point is that Gillikin attempted to make known his availability for work. Testimony of the Company vice-president is to the effect that an injured employee is still considered an employee if he expresses a desire to return to work after recovery from his injury. Therefore, the Board properly considered Walton Gillikin to be on temporary sick leave and entitled to vote in the election.

BERKLEY GILLIKIN and LEON T. ROSE

Berkley Gillikin was first employed by Respondent on the dredge Hampton Roads in August of 1955. During the next five years he was employed principally by Respondent, although subject to the usual pattern of layoff and recall. He was most recently employed on the Hampton Roads on April 11, 1961, and worked until May 1, 1961, when he was laid off with Vice-President Todd's promise that he would be recalled "after the election." Shortly after May 1, the Hampton Roads began a new dredging job, but Berkley Gillikin was not recalled and accepted a permanent job with Construction Aggregates on May 5, 1961, the day following the election.

Leon T. Rose was first employed by Respondent in the early part of 1960 on the dredge Hampton Roads and thereafter experienced several layoffs and recalls. Rose was laid off in February of 1961, but was recalled on April 15 and then laid off again on May 1. Thus, like Berkley Gillikin, Rose was employed by Respondent neither on the eligibility date, April 1, nor on the date of the election, May 4. On May 1, however, he was told by Dewey Merrill, Company Superintendent, that the laid off Hampton Roads employees would be called back after the election and to leave word as to how he could be contacted. Rose was not recalled and was employed by another firm two days after the election.

HUGH BROWN, WILLIE B. BROWN, DONNIE GILLIKIN, HAMPTON LEONARD, ELDRED ROBINSON, R. D. SELLERS, and C. R. DIXON, JR.

These seven men, with varying records of previous employment with Respondent, were all discharged by Respondent upon completion of the dredging project at Wilmington, North Carolina, by the dredge Enterprise on April 29, 1961. Each of these men was employed on the eligibility date of April 1, but was not employed on the day of the election, May 4. At the time of the April 29 layoff, however, the crew was told by Assistant Superintendent Masich or by Captain Norman Gillikin, either that the job was completed and that they would be laid off and called back when work was available, or when other dredges had work, or be transferred to the dredge Hampton Roads. The eligibility list prepared by Respondent for the election on May 4, however, excluded sixteen of the Enterprise crew members, describing them as "employees who worked during the payroll period ending April 1, 1961, whose employment has terminated: Job completed."

In view of the above mentioned assurances by responsible company officials to Berkley Gillikin and Leon T. Rose and to the seven former crew members of the Enterprise we find support for the Board's determination that these nine men were temporarily laid off and at the date of the election held a reasonable expectation of reemployment within a...