Newport News Shipbuilding and Dry Dock Co. v. N.L.R.B., s. 78-1454
| Citation | 104 LRRM 2633,631 F.2d 263 |
| Decision Date | 05 June 1980 |
| Docket Number | Nos. 78-1454,78-1492 and 78-1559,s. 78-1454 |
| Parties | 104 L.R.R.M. (BNA) 2633, 89 Lab.Cas. P 12,114 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PENINSULA SHIPBUILDERS' ASSOCIATION, Respondent. PENINSULA SHIPBUILDERS' ASSOCIATION, Cross-Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Edmund D. Cooke, Jr., Washington, D. C. (Ray J. Schoonhoven, Chicago, Ill., Andrew M. Kramer, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D. C., on brief), for Newport News Shipbuilding and Dry Dock Company.
E. D. David, Newport News, Va. (Jones, Blechman, Woltz & Kelly, Newport News, Va., on brief), for Peninsula Shipbuilders' Association.
Jay E. Shanklin, N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on brief), for National Labor Relations Board.
Before HAYNSWORTH, Chief Judge, and WIDENER and HALL, Circuit Judges.
Pursuant to § 10(f) of the National Labor Relations Act (the Act), 29 U.S.C. § 160(f), Newport News Shipbuilding and Dry Dock Company (Newport News or the Company) has petitioned this court to review and set aside an order of the National Labor Relations Board (the Board). The Board has cross-applied for enforcement of its order. The Board found that Newport News violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), when it discharged and reprimanded employees who had engaged in protected concerted action. Additionally, the Board, pursuant to § 10(e) of the Act, 29 U.S.C. § 160(e), has petitioned for enforcement of its order against Peninsula Shipbuilders' Association (PSA or the Union), and the Union has cross-petitioned to have the order set aside. The Board found that PSA, the employees' bargaining representative, violated § 8(b)(1)(A) of the Act, 29 U.S.C. § 158(b)(1)(A), when it failed to represent the non-member South properly, and when it threatened to deny non-union members equal representation with union members in the bargaining unit. We grant enforcement, with a modification, of the Board's order as to PSA, but deny enforcement of the Board's order as to Newport News.
Newport News Shipbuilding and Dry Dock Company is a Virginia corporation engaged in the construction and repair of ocean-going vessels. One of the Company's five major divisional lines is the X-10 Steel and Fabrication Division, which is responsible for cutting and shaping steel into a final product. Within the X-10 Division are the X-12 Shop Fitters Department, which essentially performs a steel carpentry function; the X-13 Shipwrights Department, which provides general maintenance and crane service to other trades; and the X-13 Welding Department. The Company assigns the X-10 employees to either fully exposed areas (platens), partially enclosed areas (sheds), or fully enclosed areas (shops).
When weather conditions prohibit working in the open areas, the affected employees are sent home, or "passed out," pursuant to Article XI of the collective bargaining agreement between the Union and the Company. If the head of the lead trade involved determines that weather conditions preclude working that day, the employees receive a "bad weather pass-out." Employees generally receive about eighteen bad weather pass-outs each year. The Company also at times issues "personal pass-outs" to employees who request them.
There are three significant differences between a personal pass-out and a bad-weather pass-out. First, the personal pass-out, as its name indicates, is granted by management at the request of an individual employee who desires to leave for some reason personal to him, whereas a bad weather pass-out is granted to all affected employees at the sole discretion of management when it believes weather conditions make it too difficult for the employees to work. 1 Second, an employee who receives a personal pass-out is paid for only the time actually worked. With a bad weather pass-out, however, employees frequently receive pay in excess of the actual hours worked. 2 Third, when an employee receives a bad weather pass-out, he is still allowed to work overtime hours during that pay period. An employee receiving a personal pass-out, however, is not permitted to work any overtime hours. Around the time of the incident, employees of the Company had regularly been working overtime on Saturdays. Thus, the employees would have preferred to receive a bad weather pass-out.
On the morning of February 16, 1977, the temperature was below freezing and the wind was blowing. The employees involved worked in the X-12, X-13, and X-18 departments and were assigned to one of the exposed platforms called platen number 91/2. The heat source for employees on the 91/2 platen was a coal and wood-burning stove (bully) located at the center of the platform. After arriving at work at 7:00 a. m., some of the approximately twenty employees assigned to the platen began congregating around the bully. At some time before 8:00 a. m., all the employees stood around the bully and discussed the possibility of their being sent home on a pass-out. 3 With Hubert J. South, Jr. as their spokesman, the employees inquired into the feasibility of their being sent home because of the cold weather, either by means of a bad weather pass-out or a personal pass-out. 4 South asked Foreman Minter whether the employees would be sent home, and the latter left to take up the matter with General Foreman Robbins. Several minutes later Robbins and Minter came out to the platform, and Robbins asked the employees whether they planned to work; most indicated that they wanted to go home. South followed Minter back to his office and asked him what was going to be done about sending them home. Minter replied that he did not know. When Robbins returned to the work area a few minutes later, he told the employees that there would be no pass-outs that day, and if they did not return to work, they would be permanently "passed-out" for violating the contract. We emphasize that the employees did not work from the time the entire group congregated around the bully to discuss the possibility of going home until Robbins came out to the platform a second time and ordered them to return to work.
Lewis P. Gray, the Supervisor of Employee Relations, initially planned to fire all the employees who had stopped work. PSA delegate Delmas Linhart met with Gray during the day and worked out a compromise arrangement with the Company. Linhart agreed to the Company's discharge of South as the ringleader. In return, the Company limited the penalty of the other employees to a written warning on their records and docked them for three-tenths of an hour of pay. Linhart interviewed two of the employees involved and then agreed to the discharge of South, a non-member of PSA, based almost solely upon the Company's explanation of the incident and before hearing South's explanation of the affair. Additionally, Linhart failed to request a two-day "cooling-off period" as allowed for in the Union's collective bargaining agreement with the Company. Finally, despite South's request, the Union failed to appeal the grievance South had filed with the Company, and also failed to respond to South when he inquired about the matter.
Following South's discharge and the reprimand of the other employees, PSA sought to solicit union membership among non-union employees. The Administrative Law Judge found that during the efforts to solicit members, agents for PSA allegedly stated to Elmslie Smith that they would "stand up and go to bat" for him if he were a union member; told Charles W. Thompson, Jr. that they could not represent him "as much" as they could a union member; and indicated to Russell Row that South would have received "better representation" had he been in the Union. PSA, as noted above, was the exclusive bargaining representative of the employees involved.
On March 9 and March 17, 1977, Hubert South filed charges with the National Labor Relations Board against Newport News and PSA, alleging violations of § 8(a)(1) and § 8(b)(1)(A) of the Act respectively. The Board, with one exception worthy of note, adopted the findings of the Administrative Law Judge, and concluded that the Company violated § 8(a)(1) of the Act when it discharged South and reprimanded the other employees. Contrary to the Administrative Law Judge, it found that South and the other employees did in fact engage in a work stoppage on February 16 for a period of about twenty minutes. 5 The Board concluded, however, that the employees' action was for a "purely informational" purpose, and was not an attempt to pressure the Company into sending them home. 6 The Board therefore determined that the work stoppage did not violate the no-strike provisions of the collective bargaining agreement, 7 and thus the Company's discharge of South, as well as the reprimand of the other employees, violated § 8(a)(1) of the Act.
The Board also concluded that the Union violated its duty of fair representation to South, and thus violated § 8(b)(1)(A) of the Act. The Board found that the Union's handling of South's discharge was arbitrary and perfunctory, based primarily on the fact that Linhart, the PSA representative, agreed to South's discharge before hearing South's explanation of the incident and without conducting a thorough investigation of the occurrence.
The Board also found that the statements the Union agents made to non-members constituted threats to deny them equal representation with union members. That, the Board determined, violated § 8(b)(1)(A) of the Act.
The Board ordered Newport News to offer South full and immediate reinstatement to his former...
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