J. Ray McDermott & Co., Inc. v. N.L.R.B.

• Decision Date: 18 April 1978
• Docket Number: No. 77-1171,77-1171
• Parties: 98 L.R.R.M. (BNA) 2191, 83 Lab.Cas. P 10,543 J. RAY McDERMOTT & CO., INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 850

571 F.2d 850

98 L.R.R.M. (BNA) 2191, 83 Lab.Cas. P 10,543

J. RAY McDERMOTT & CO., INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 77-1171.

United States Court of Appeals, Fifth Circuit.

April 18, 1978.

C. Dale Stout, Howard S. Linzy, Andrew C. Partee, Jr., New Orleans, La., for petitioner-cross respondent.

Elliott Moore, Deputy Associate Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Michael S. Winer, Woody N. Peterson, Attys., N. L. R. B., Washington, D. C., for respondent-cross petitioner.

Petition for Review and Cross-Application For Enforcement of an Order of the National Labor Relations Board.

Before HILL, RUBIN and VANCE, Circuit Judges.

RUBIN, Circuit Judge:

McDermott ¹ petitions to set aside a decision of the NLRB holding that it has unlawfully refused, in violation of the National Labor Relations Act, §§ 8(a)(1) and 8(a)(5), to bargain with Local 1012, ² the certified bargaining agent of certain of its employees, and ordering McDermott to bargain with that union.

McDermott contends that the order is invalid because (1) the Board's decision to certify the International Association of Professional Divers ("IAPD") as bargaining agent for all regular divers, tenders and rack operators in McDermott's Diving Division was invalid; (2) the Board's decision to amend IAPD's certification to name Local 1012 as bargaining agent was invalid; (3) Local 1012's unfair labor charge was time-barred under the National Labor Relations Act, § 10(b); and (4) McDermott entertained good faith doubt, at the time it refused to bargain, that the Local represented a majority of McDermott's employees. Because McDermott's arguments are not well-founded, we order that the Board's decision, in all respects, be enforced.

I.

On May 25, 1970, the International Association of Professional Divers, Inc. of Louisiana ("IAPD, Inc."), was incorporated as a not-for-profit corporation to further the interests of professional divers, primarily those operating off the Gulf Coast. An unincorporated association named the International Association of Professional Divers ("IAPD"), which had the same officers and the same members as the corporation, began to function as a labor organization for the purpose of organizing Gulf Coast divers and securing collective bargaining contracts that would further their interests. ³

Certification of the IAPD

On February 11, 1974, the IAPD entered into an agreement to affiliate with the Marine Engineers Beneficial Association ("MEBA"), a national union. The affiliation was later completed, and a formal charter was issued by District 2, MEBA.

In the spring of 1974, IAPD-MEBA petitioned for a representation election among McDermott employees. The local Regional Director of the NLRB ordered an election to be held in the early summer among all regular divers, tenders, and rack operators in McDermott's Diving Division. IAPD-MEBA won the election, but, upon the employer's objections, the NLRB set it aside. J. Ray McDermott & Co., Inc., 1974, 215 NLRB 570.

In December, 1974, the Regional Director ordered a second election, which, like the first, was to be conducted by mail ballot. Balloting kits were subsequently sent to 86 eligible employees. As of the February 26, 1975 voting deadline, 39 votes were cast for IAPD-MEBA; 36 votes were cast against IAPD-MEBA; 6 ballots were cast and challenged by the employer; 1 eligible employee had died; 1 employee lost his ballot return envelope and was unable to secure a replacement and to vote by the deadline; and 3 employees' ballots were not received. These three each testified later that each had separately mailed a timely ballot. These three ballots could have affected the outcome of the election.

Primarily on the basis that these three ballots had not been received, the employer objected to certification of IAPD-MEBA. The Regional Director, however, overruled McDermott's objections and, on April 18, 1975, certified IAPD-MEBA as exclusive bargaining agent for all regular divers, tenders and rack operators in McDermott's Diving Division. The NLRB affirmed his decision on June 30, 1975.

On July 3, 1975, Paul Woodhall, President of IAPD-MEBA, wrote to the Manager of McDermott's Diving Division on an IAPD, Inc. letterhead asking to start collective bargaining and requesting information pertaining to the anticipated negotiations. On July 10, 1975, the Division Manager informed Woodhall that McDermott would not furnish the requested information or bargain with IAPD-MEBA because McDermott disputed the validity of the union's certification. Woodhall reiterated the union's request by letter on July 21, 1975; the request was again denied on July 24, 1975.

Creation of Local 1012

On July 7, 1975, President Woodhall mailed notice to all IAPD members, including members working for employers other than McDermott, informing them that at the regular quarterly meeting to be held on July 11, 1975, the membership would consider a resolution to disaffiliate from District 2, MEBA, and the possibility of affiliation with "another international union." A separate notice was sent to the members in their capacity as shareholders of IAPD, Inc., informing them of a shareholders' meeting to be held at a later time on July 11, 1975, to consider dissolution of the corporation.

The meeting of IAPD-MEBA was held as scheduled. Only members of the union were admitted. Resolutions were offered to disaffiliate from MEBA and to transfer affiliation to the United Brotherhood of Carpenters and Joiners of America, AFL-CIO ("United Brotherhood"), to become Local 1012 of that union. Following discussion of the resolutions, a vote was taken by secret ballot. The results were 77 to 1 in favor of disaffiliation from MEBA, and 76 to 2 in favor of affiliation with the United Brotherhood. The meeting was adjourned and the members reconvened as IAPD, Inc. shareholders, voting unanimously by show of hands to dissolve the corporation. Upon the adjournment of the corporate meeting, President Woodhall introduced a vice-president of the United Brotherhood, who presented the members with a charter for Local 1012.

As of July 11, 1975, IAPD-MEBA had roughly 200 members. The union's records do not indicate how many of the 76 voting to affiliate with United Brotherhood worked on July 11, 1975 for McDermott and how many worked for other bargaining units. The leadership of Local 1012, therefore, took steps in late July, 1975 to secure ratification of the affiliation transfer by a majority of employees in the McDermott Diving Division, both union and non-union, prior to seeking an amendment of IAPD's certification as bargaining agent of that unit. President Woodhall requested a list of all current employees from McDermott's Division Manager. The Manager denied Woodhall's request for such a list. The union then mailed balloting kits to 95 McDermott employees, whose names were gathered from the list of employees available from the most recent prior election at McDermott and from information supplied by some of McDermott's employees. McDermott at this time had a total of 101 employees. In September, a third party hired to count the ballots certified that 54 of the 60 voters who returned ballots approved the transfer of affiliation.

On September 2, 1975, Local 1012 filed a petition with the NLRB to amend the certification of IAPD-MEBA to recognize the union's change in identity to Local 1012. After a hearing, the certification was amended as requested on April 12, 1976.

Three days later, Local 1012 formally requested that McDermott engage with it in collective bargaining. The company formally refused, and the union filed an unfair labor charge alleging a refusal to bargain. In January, 1977, the Board rendered the decision that it now seeks to enforce, finding that McDermott had unlawfully refused to bargain and ordering it to bargain with Local 1012.

II.

The first ground on which McDermott defends its refusal to bargain with Local 1012 is the asserted invalidity of the original certification of Local 1012's predecessor, the IAPD, as exclusive bargaining agent for the regular employees of McDermott's Diving Division. McDermott insists that, if a number of timely cast ballots sufficient to affect the outcome of an election are lost without any fault on the part of the employees casting their ballots, the NLRB cannot lawfully rely on such an election as establishing that a union enjoys majority support among the employees in the designated bargaining unit on the basis of its receiving a majority of the votes actually counted.

In reviewing the Board's actions, we must begin with the premise that Congress has entrusted the Board with wide discretion in the administration of representation elections, NLRB v. A. J. Tower Co., 1946,329 U.S. 324, 330-331, 67 S.Ct. 324, 328, 91 L.Ed. 322. The party challenging the results of a representation election shoulders a heavy burden of showing adequate reasons for setting aside the results, Florida Mining & Materials Corp. v. NLRB, 5 Cir. 1973, 481 F.2d 65, 68, cert. denied, 1974,415 U.S. 990, 94 S.Ct. 1588, 39 L.Ed.2d 886. Judicial review of the Board's determination of a representation dispute within its jurisdiction "is limited to ascertaining whether the Board's determination is within reasonable bounds," Bush Hog, Inc. v. NLRB, 5 Cir. 1969, 420 F.2d 1266, 1268, quoting, NLRB v. Laney & Duke Storage Warehouse Co., 5 Cir. 1966, 369 F.2d 859, 864. See also, NLRB v. W. S. Hatch Co., Inc., 9 Cir. 1973, 474 F.2d 558, 561; NLRB v. Olson Bodies, Inc., 2 Cir. 1970, 420 F.2d 1187, 1189, cert. denied, 1971,401 U.S. 954, 91 S.Ct. 966, 28 L.Ed.2d 237.

The Regional Director here found that the election was fairly conducted and that insufficient doubt was cast on the validity of the result to overcome the Board's and the parties' interest in the...