Newport News Shipbuilding and Drydock Co. v. Peninsula Shipbuilders' Ass'n
| Decision Date | 07 April 1981 |
| Docket Number | No. 79-1842,79-1842 |
| Citation | 646 F.2d 117 |
| Parties | 107 L.R.R.M. (BNA) 2085, 91 Lab.Cas. P 12,700 NEWPORT NEWS SHIPBUILDING AND DRYDOCK COMPANY, Appellee, v. PENINSULA SHIPBUILDERS' ASSOCIATION and Robert Bryant and E. T. Adcock, III; H. L. Arthur, III; W. R. Askew; F. P. Atwell; R. D. Bailey; J. Banks, III; H. Bates; L. Benbow; G. E. Benton; B. K. Blackburn; M. L. Blout; S. B. Blow; J. Blowe; O. F. Bowser; K. A. Brown; O. I. Brown, Jr.; C. K. Bruso; G. Burdick, III; W. J. Caddies; R. D. Carey, Jr.; L. Castello; R. H. Christian; E. N. Church; J. J. Cochran; W. W. Collins; M. H. Conway; D. L. Cooper; E. J. Coston; S. R. Crockett, Jr.; C. D. Dale; K. R. Daniels; S. W. Davis; I. W. Dillard; J. B. Dixon; F. O. Dodson; U. Dove; T. C. Duncan; M. J. Eberhard; L. D. Elliott; P. M. Ellis; T. E. Esbaugh; M. D. Fischer; D. E. Franklin; V. P. Gales; R. L. Gall; J. M. Gardner; D. A. Garrett, III; D. L. Garrett; J. E. Garrett; L. J. George; H. B. Godfrey; C. E. Gray; H. N. Green; M. D. Hadden; S. D. Hammer; R. L. Harris; D. R. Hayes; L. Henderson; S. B. Henry; M. G. Hodges; R. Hogge; G. W. Holloway; S. Holmes, Jr.; J. Hooker; C. W. Hornberger; G. Hudson; J. R. Hunt; B. J. Jackson; J. S. Jarell; J. T. Jennings; W. E. Jobst; R. Jones; S. W. Jones; L. S. Khoury; R. L. Knight; P. M. Koler; M. A. Kraus; N. Lee; J. L. Lewis; N. D. Loomer; J. W. Mahaney; J. R. Manis; L. V. Mann; D. S. Marshall; E. A. Mason; D. A. Merilic; C. Mills; L. T. Moore; W. B. Mounger; D. O. Mundon; C. L. Murdock; E. L. Neel; C. M. Odom; P. G. Pair; C. G. Parker; J. E. Parker, Jr.; H. R. Payne; J. C. Person; C. S. Pierce; D. B. Polston; A. L. Pollard; G. J. Pulley; N. A. Redcross; R. I. Richardson; C. M. Riddick; W. J. Riddick; F. A. Roach, Jr.; L. Robertson, Jr.; W. R. Robinson; L. L. Rodgers; D. F. Samuels; R. P. Sharp, Jr.; H. B. Shaw; J. C. Simmons; R. L. Simpson; W. C. Singleton; J. E. Smith; S. E. Stanley; C. W. Stump, Jr.; C. N. Suber; H. D. Taplin; C. W. Tharrington, Jr.; H. R. Thomas; W. Thomas; N. M. Thompson; J. R. Tillie; G. R. Turner; B. V. Umberger; |
| Court | U.S. Court of Appeals — Fourth Circuit |
Ann McNerney, N. L. R. B., 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 Armstrong, Asst. Gen. Counsel for Special Litigation, Washington, D. C., on brief), for N. L. R. B.
Peter J. Carre, Washington, D. C. (Chester A. Hurwitz, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D. C., on brief), for Newport News Shipbuilding and Dry Dock Company.
Meryl D. Moore, Newport News, Va. (E. D. David, Jones, Blechman, Woltz & Kelly, P. C., Newport News, Va., on brief), for Peninsula Shipbuilders' Association.
Before WIDENER, PHILLIPS and ERVIN, Circuit Judges.
Pursuant to Fed.R.Civ.P. 24, 1 the National Labor Relations Board (Board) moved to intervene in a declaratory judgment action brought in district court by Newport News Shipbuilding & Dry Dock Co. (Company) against Peninsula Shipbuilders Association (PSA). The district court permitted the Board to participate as an amicus curiae at the hearing, but in its final judgment denied the Board's motion. The Board appeals denial of the motion. We reverse that denial; hold that the Board had a right to intervene under Fed.R.Civ.P. 24(a)(2); and remand to the district court to allow the Board to intervene for the sole purpose of prosecuting an appeal from the district court's final decision.
In 1975, the Company and the PSA entered into a collective bargaining agreement covering the Company's approximately 19,000 production and maintenance employees. By its terms, the agreement was effective until June 30, 1978, unless extended by contract. It was so extended and remained in effect until October 28, 1978, when the PSA was replaced as bargaining agent by the United Steelworkers of America (Steelworkers). Steelworkers had launched its organizing campaign in late 1977. In January 1978, a representation election was held between the PSA and the Steelworkers. The outcome was disputed, but the Board certified the Steelworkers on October 28, 1978. 2
Between the election and certification dates, the Company recognized the PSA as the employees' bargaining representative. Accordingly, 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. 3 During that same time, the Steelworkers distributed to the employees form letters which requested the Company to terminate the check-off of dues. The Company received 214 such letters. At first, the Company informed the PSA that it would honor these check-off revocations, but the PSA threatened to sue the Company for violating section 23.2 of the collective bargaining agreement because the revocations were not on PSA forms. Section 23.2 provides as follows:
Revocation of Check Off Authorization. (a) Any such dues check off authorization shall not be for a period of time greater than one year or the termination date of this Agreement, whichever is the sooner. A revocation of such authorization shall be by use of the form furnished by the Association (in duplicate) and shall be delivered either to the Association or to the head of the Company's Personnel and Industrial Relations Division. If such revocation is to be effective upon the termination date of this Agreement, it shall be delivered within the last fifteen (15) days of the term of this Agreement.
(b) The above-mentioned authorization, the receipt and notice of cancellation shall be in form and substance satisfactory to the Company.
Subsequently, the Company informed the 214 employees that it would not discontinue their dues check-off. The PSA sent the 214 employees certified letters informing them that only check-off revocations on forms furnished by the PSA could be used under the terms of the collective bargaining agreement. Fifty-six employees eventually requested check-off revocations on PSA forms and the Company complied. All dues check-offs were terminated when the agreement ceased on October 28, 1978.
Just before the PSA 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 the PSA was violating subsections 8(b)(1) (A) and 8(b)(2) of the National Labor Relations Act, 29 U.S.C. § 158 (1976) (Act), by continuing to check off the dues of employees who purportedly revoked on non-PSA forms. In response, the Board informed the Company that it had found a prima facie violation by the Company, but orally advised that the Board intended to dismiss the charge against the PSA.
The Company then filed this declaratory judgment action in the District Court for the Eastern District of Virginia against the PSA, its business manager, and the 158 employees who attempted to revoke their dues check-offs on non-PSA forms. The action sought a judicial construction of section 23 of the collective bargaining agreement, in particular to determine what procedures were necessary to revoke check-off authorizations, and to determine whether the Company was entitled to indemnification under section 23.3. 4
While this action was pending in the district court, the Board issued unfair labor practice complaints against the Company and the PSA 5 respectively. One charge in the complaints was that enforcing section 23.2 of the collective bargaining agreement unlawfully interfered with the employees' § 7 rights, 29 U.S.C. § 157 (1976).
With the unfair labor practice proceeding pending, the Board then moved to intervene in and to stay the district court action pending the outcome of the unfair labor practice proceeding. The district court conducted a hearing on the motion to intervene, but deferred ruling while permitting the Board to participate at the hearing as an amicus curiae making arguments, cross-examining witnesses, and filing a brief.
In its final decision, the court denied the Board's motion to intervene and, on the merits gave a declaratory judgment that section 23.2 was valid and binding; that the Company was accordingly entitled to continue check-offs not revoked on PSA forms; and that the Company was to be indemnified by the PSA under section 23.3. The Board appealed the denial of its motion to intervene. No other appeal was taken by any party to the action.
To intervene as a matter of right 6 under Fed.R.Civ.P. 24(a)(2), the moving party must show that (1) it has an interest in the subject matter of the action, (2) disposition of the action may practically impair or impede the movant's ability to protect that interest, and (3) that interest is not adequately represented by the existing parties. See Virginia v. Westinghouse Electric Corp., 542 F.2d 214, 216 (4th Cir. 1976); 3B Moore's Federal Practice P 24.09-1(1), at 24-284 to -285 (1980); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1908, at 495 (1972). We conclude that under the circumstances of this case, the Board had a right to intervene that was erroneously denied.
The necessary interest of the Board in the subject matter of the action derives generally from its role as the primary tribunal for the adjudication of unfair labor practices, San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959), and from its statutory responsibility for preventing, subsection 10(a) of the Act, 29 U.S.C. § 160(a), and remedying, subsection 10(c) of the Act, 29 U.S.C. § 160(c),...
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