Peninsula Shipbuilders' Ass'n v. N.L.R.B.
| Decision Date | 21 September 1981 |
| Docket Number | Nos. 81-1012,81-1179 and 81-1412,s. 81-1012 |
| Parties | 108 L.R.R.M. (BNA) 2400, 92 Lab.Cas. P 13,010 PENINSULA SHIPBUILDERS' ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEWPORT NEWS SHIPBUILDING and Dry Dock Company, Respondent. NEWPORT NEWS SHIPBUILDING and Dry Dock Company, Appellee, v. PENINSULA SHIPBUILDERS' ASSOCIATION et al., Appellees, and National Labor Relations Board, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Corinna Lothar Metcalf, Eric Moskowitz, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Aileen A. Armstrong, Asst. Gen. Counsel for Special Litigation, W. Christian Schumann, Washington, D. C., on brief), for N.L.R.B.
Deborah Crandall, Washington, D. C. (Andrew M. Kramer, Susan L. Segal, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D. C., on brief), for Newport News Shipbuilding & Dry Dock Co.
Meryl D. Moore, Newport News, Va. (Jones, Blechman, Woltz & Kelly, P.C., Newport News, Va., on brief), for Peninsula Shipbuilders' Association.
Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.
Before us are consolidated proceedings that grow out of the refusal by Newport News Shipbuilding & Dry Dock Company (Company) to honor revocations of dues check-off authorizations by certain of its employees while they were represented by Peninsula Shipbuilders' Association (PSA). The refusal was based upon the employees' failure to use revocation forms furnished by PSA as required by section 23.2 of the collective bargaining agreement between the Company and PSA, and to follow certain other special procedures for revocation unilaterally imposed by PSA.
In a declaratory judgment action brought in district court by the Company against PSA and affected employees, the district court held inter alia that the revocation provision was valid as a matter of contract law and justified the Company's refusal. In No. 81-1412, the National Labor Relations Board (Board), as intervenor in that action, appeals the district court's judgment.
Following the district court's entry of judgment, the Board in an unfair labor practice proceeding against the Company and PSA held that the revocation provision was invalid both facially and as applied by PSA and the Company. On this basis the Board concluded that both the Company and PSA had violated section 8 of the National Labor Relations Act (NLRA), 29 U.S.C. § 158, by enforcing the provision and by continuing to check off and receive PSA dues from employees who had sought to revoke their authorizations by means other than those provided in the collective bargaining agreement and as imposed by PSA. The Board issued a cease and desist order and held the Company and PSA jointly and severally liable to reimburse those employees who had effectively revoked their check-off authorizations on non-PSA forms. In No. 80-1012, PSA petitions to review and set aside those portions of the Board's decision and order which run against it and the Board cross-applies for enforcement. In No. 81-1179, the Board applies for enforcement of those portions of its decision and order which run against the Company.
We grant enforcement to the Board's order and hold invalid any portion of the district court's declaratory judgment in conflict with the remedial aspect of that order.
In 1975, the Company and PSA entered into a collective bargaining agreement covering the Company's approximately 19,000 production and maintenance employees. The contract was effective until June 30, 1978, and, by its terms, was extended until October 28, 1978, when the Board certified the United Steelworkers of America (Steelworkers) as the employees' bargaining agent and the winner of a representation election held in January 1978. 1 Between the election and certification dates, the Company recognized PSA as the employees' bargaining representative and it continued to check off PSA dues from the payroll checks of employees who had authorized such deductions under section 23.1 of the collective bargaining agreement. 2 The authorizations, on forms furnished by PSA, provided for the checkoff of $2.00 weekly until revoked by the employee in writing. During that same time, the Company received letters from 214 employees, on forms furnished by the Steelworkers, revoking their dues checkoff authorizations. The Company notified PSA that it would honor the revocations, but PSA threatened to sue the Company for breaching section 23.2 of the collective bargaining agreement 3 which required revocations to be on forms furnished by PSA. Consequently, the Company continued to check off and remit dues to PSA.
PSA then sent the 214 employees certified letters informing them that under the contract only PSA forms could be used to revoke checkoffs and that they must come by the PSA office on weekdays between 8:00 a. m. and 4:30 p. m. to sign those forms. PSA also issued a "Report to the Membership" on February 12, 1978, setting forth the same information. Eventually 56 of the 214 employees revoked checkoffs on PSA forms and the Company complied. Other employees testified, however, that it was difficult to obtain PSA forms because they either worked evening or night shifts when the union hall was closed or they had to go to the office, located outside the shipyard, during their noon lunch hour. The forms were not made available to employees at the plant-for example, through distribution by Company personnel or shop stewards. Finally, a few employees testified that they did not sign Steelworker revocation forms received by the Company and that they never intended to resign their PSA membership. All dues checkoffs terminated when the contract ceased on October 28, 1978.
On October 18, 1978, ten days before the contract expired, the Steelworkers filed unfair labor practice charges with the Board, alleging that the Company was violating subsections 8(a)(1) and 8(a)(3) and PSA was violating subsections 8(b)(1)(A) and 8(b)(2) of the NLRA, 29 U.S.C. § 158, by continuing to check off the dues of employees who revoked on non-PSA forms. In response, the Board informed the Company that a complaint would issue against it, but orally advised that the Board intended to dismiss the charge against PSA. Subsequently, on November 16, 1978, the Company filed a declaratory judgment action in district court against PSA, its business manager, and the 158 employees who attempted to revoke their checkoff authorizations on non-PSA forms. 4 The action sought a judicial construction of article XXIII of the collective bargaining agreement, in particular to determine what procedures under section 23.2 were necessary to revoke checkoff authorizations and whether PSA must indemnify and defend the Company under section 23.3. 5
While the declaratory judgment action was pending in district court, the Board issued unfair labor practice complaints against the Company and PSA, 6 on January 12 and July 2, 1979, respectively, alleging inter alia that enforcing section 23.2 of the collective bargaining agreement unlawfully interfered with the employees' section 7 rights, 29 U.S.C. § 157. The Board then moved to intervene in and to stay the district court action pending the outcome of the unfair labor practice proceeding. Although the district court permitted the Board to participate at the hearing as an amicus curiae, in a decision issued October 24, 1979, it denied the Board's motion to intervene. The district court found the 158 employees, who failed to appear, in default. It then noted that no party challenged the validity of section 23.2 under the NLRA, but rather that the parties agreed the section was lawful. The district court therefore neither reached that issue nor considered it in interpreting section 23.2 as a matter of contract law. On the merits, the district court gave a declaratory judgment that section 23.2 was valid and binding in the case before it; that the Company accordingly was entitled to continue checkoffs not revoked on PSA forms; and that the Company was to be defended and indemnified by PSA under section 23.3. The Board appealed the denial of its motion to intervene and we reversed, granting the Board party status to perfect an appeal in order to protect its interests as the primary tribunal for the adjudication of unfair labor practices. Newport News Shipbuilding and Dry Dock Co. v. Peninsula Shipbuilders' Association, 646 F.2d 117 (4th Cir. 1981).
Armed with the district court decision, the Company appeared at the beginning of the unfair labor practice hearings to state that PSA would defend and indemnify it. The Company thereafter did not participate in the Board proceeding. PSA moved for dismissal of the unfair labor practice proceeding because either the district court's findings of fact were res judicata or principles of collateral estoppel barred the proceeding. Newport News Shipbuilding and Dry Dock Co., No. JD-403-80, slip op. at 10 (July 10, 1980) (appended to 253 N.L.R.B. No. 96). The administrative law judge (ALJ), however, noted that the issue before the district court was one of contract interpretation and the district court neither decided nor purported to decide the unfair labor practice question which would, of course, be within the Board's exclusive jurisdiction. Id. at 18. Accordingly, he denied the motion.
The ALJ next addressed the validity of section 23.2 of the collective bargaining agreement under subsection 302(c)(4) of the Labor Management Relations Act (LMRA), which permits the employer to withhold and remit dues to a union "Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period...
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