Boland Marine and Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1977

228 N.L.R.B. 1304 (N.L.R.B. 1977)

1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boland Marine and Manufacturing Company, Inc. and
International Brotherhood of Boilermakers Local
37, a/w International Brotherhood of Boilermak-
ers, Iron Shipbuilders , Blacksmiths, Forgers and
Helpers. Case 15-CA-6099
April 8, 1977
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 22, 1976, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the General
Counsel filed a brief supporting the Decision, and
the Charging Party filed exceptions to the Adminis-
trative Law Judge's failure to issue a remedial order
for the action found to be unlawful.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
conclusions, and recommendations of the Adminis-
trative Law Judge, only to the extent consistent
herewith.
This case is related to Boland Marine and Manufac-
turing Company, Inc. (hereinafter Boland I) wherein
the issue litigated was whether or not the Respondent
violated Section 8(a)(5) and (1) of the Act by
adopting new rules and a system of written warnings
for violation thereof without bargaining with the
Union. The hearing in that case was held in February
1976, and the Board found a violation and issued an
appropriate order on August 4, 1976.1 During the
interim, the events giving rise to the complaint in the
instant case occurred. Thus, on March 22, Respon-
dent began using a new pass system designed to
control movement of its employees within, as well as
into and out of, its shipyard. The pass it replaced,
adopted in July 1975, had been used only to control
ingress and egress at times other than shift changes
and lunchtime. Prior to March 22, employees who
desired to leave their work area, either on missions
related to their work such as getting materials, or on
personal errands such as using the telephone, were
only required under Respondent's existing rules to
get their immediate supervisor's permission before
taking off. This policy was laxly enforced. Some
firstline supervisors required those under them to get
permission, others did not. Since March 22, employ-
ees have received written warnings for being out of
their work areas without written permission.
On March 29, Respondent began using a new pass
in connection with employees' removal of their
personal toolboxes from its shipyard. It replaced a
pass adopted in July 1975. Although the system for
receiving clearance to carry a personal toolbox past a
gate guard is essentially the same in both instances,
the new pass is more complicated than the old one
and appears to contemplate a somewhat more
stringent method for assuring that employees do not
walk off with Respondent's tools. Respondent
refused the Union's request to bargain about this
"new system of authorization passes."
The Administrative Law Judge rejected the Re-
spondent's defense based on a claim that under its
collective-bargaining relationship with the Union it
had reserved the managerial right to act unilaterally.
Accordingly, he found that, by unilaterally acting in
this case, Respondent violated Section 8(a)(5) and (1)
of the Act. We agree.
The Administrative Law Judge declined, however,
to issue a remedial order in this case. The Charging
Party has taken exception to this omission, and we
find merit in this exception.
In declining to issue a remedial order in this case,
the Administrative Law Judge states that this case
should be held in abeyance until the United States
Court of Appeals for the Fifth Circuit either grants or
denies enforcement of the Board's order in Boland I.
We note, however, that in Boland I the violation
consisted of the Respondent's revision, expansion,
promulgation, and enforcement of safety and work
rules. The violation in this case involves the unilater-
al promulgation, implementation, and enforcement
of a revised gate and internal movement pass system
applicable to the removal of property and movement
of personnel. Thus, there is no specific order for the
court to enforce in this latter unfair labor practice
case. Accordingly, since we adopt the Administrative
Law Judge's finding that the Respondent's action in
this case violated the Act, we shall issue a remedial
order as requested by the Charging Party. Consistent
with our order in Boland I, our order in the present
case shall include bargaining, and provide that the
Respondent shall restore the status quo which existed
at the time of its unlawful actions by rescinding all
disciplinary actions resulting from violations or
failure to comply with the unilaterally promulgated
and enforced revised gate and internal yard move-
ment pass system applicable to the removal of
property and the movement of personnel. The order
shall provide further that the Respondent offer all
1 225 NLRB 824 (1976)
228 NLRB No. 173
BOLAND MARINE AND MANUFACTURING COMPANY
employees discharged, suspended, or otherwise
denied work opportunities solely as a result of the
unilateral promulgation of said revised pass system
immediate and full reinstatement to their former
positions or, if they are not available, to substantially
equivalent ones, without prejudice to their seniority
or other rights and privileges, and to make whole
those employees who were either discharged, sus-
pended, or otherwise denied work opportunities
solely as a result of the unilateral promulgation of
said systems. In all cases of lost pay and/or benefits,
the amounts shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest added thereto in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Boland Marine and Manufacturing Company, Inc.,
New Orleans, Louisiana, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating, implementing, and enforcing
revised gate and internal yard movement pass
systems applicable to removal of property and
movement of personnel against employees represent-
ed by International Brotherhood of Boilermakers
Local 37, a/w International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers and
Helpers, without bargaining with said Union.
(b) Refusing on request of the aforesaid Union to
discuss and negotiate with it about the promulgation,
implementation, and enforcement of said revised
gate and internal yard movement pass systems, or
disciplinary procedures governing employees repre-
sented by said Union.
(c) In any like or related manner interfering with
the efforts of the aforenamed Union to bargain
collectively on behalf of the employees it represents.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Cancel, withdraw, and rescind the March 22
and 29, 1976, revised gate and pass systems and
disciplinary rules and/or procedures in effect as to
employees represented by the aforesaid Union.
(b) Remove all disciplinary warnings issued pursu-
ant to the March 22 and 29, 1976, pass systems from
the personnel files of employees who are represented
by the aforesaid labor organization for the purpose
of collective bargaining.
(c) Offer all employees discharged, suspended, or
otherwise denied work opportunities solely as a result
1305
of the unilateral promulgation and enforcement of
said revised systems immediate and full reinstate-
ment to their former positions or, if they are not
available, to substantially equivalent ones, without
prejudice to their seniority or other rights and
privileges.
(d) Make whole all employees who were dis-
charged, suspended, or otherwise denied work
opportunities solely as a result of the unilateral
promulgation of the above rules in the manner set
forth in the text proceeding this Order.
(e) Upon request bargain with the Union about the
revision, expansion, promulgation and/or enforce-
ment of safety rules, work rules, and/or disciplinary
rules or procedures governing employees represented
by said Union, and embody in a signed agreement
any understanding reached.
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order respecting
recission of all disciplinary actions.
(g) Post at its facilities in New Orleans, Louisiana,
copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promulgate, implement, or
enforce revised gate and internal yard movement
pass systems applicable to removal of property
and movement of personnel applicable to em-
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees represented by International Brotherhood
of Boilermakers Local 37, a/w International
Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, without af-
fording said Union the opportunity to bargain
over such action.
WE WILL NOT in any like or related manner
interfere with the efforts of the aforenamed Union
to bargain collectively on behalf of the employees
it represents.
WE WILL cancel, withdraw, and rescind the
March 22 and 29, 1976, rules and disciplinary
procedures in effect as to employees represented
by the aforesaid Union.
WE WILL remove all disciplinary warnings
issued pursuant to the March 22 and 29, 1976,
rules from the personnel files of employees who
are represented by the aforesaid labor organiza-
tion for the purpose of collective bargaining.
WE WILL offer all employees discharged,
suspended, or otherwise denied work opportuni-
ties solely as a result of the unilateral promulga-
tion of said rules immediate and full reinstate-
ment to their former positions or, if they are not
available, to substantially equivalent ones, with-
out prejudice to their seniority or other rights and
privileges.
WE WILL make whole all employees who were
discharged, suspended, or otherwise denied work
opportunities solely as a result of the unilateral
promulgation and enforcement of the above rules.
WE WILL, upon request, bargain with the Union
about the revision and enforcement of the pass
systems and/or disciplinary rules or procedures
governing employees represented by said Union
and embody in a signed agreement any under-
standing reached.
BOLAND MARINE AND
MANUFACTURING
CO., INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge was filed on May 13, 1976.1 The complaint was
issued on July 21. The hearing was held in New Orleans,
Louisiana, on September 14. The issue litigated was
whether or not Respondent violated Section 8(a)(5) and (1)
of the National Labor Relations Act, as amended, by
unilaterally changing its employees' working conditions.
This case is inextricably related to Boland Marine and
Manufacturing Company, Inc., 225 NLRB 824 (1976), which
involved the same parties and the same issue.2 The Board
Dates are 1976 unless otherwise indicated
z In the interest of brevity, I refrain from duplicating the Board 's findings
found a violation in that case on August 4 and ordered an
appropriate remedy. Because of that outstanding Decision
and Order, I find the same violation here.
Upon the entire record and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
Boland Marine, supra, involved the promulgation of rules
and the adoption of a system of written warnings for
violation thereof without bargaining with the Charging
Party. The hearing was held in February and Administra-
tive Law Judge Josephine H. Klein issued her decision on
May 13. In the interim the events occurred which have
given rise to this new complaint.
On March 22 Respondent began using a new pass
designed to control movement of its employees within as
well as into and out of its shipyard. The pass it replaced,
adopted in July 1975, had been used only to control ingress
and egress at times other than shift changes and lunchtime.
Prior to March 22 employees who desired to leave their
work area, either on missions related to their work such as
getting materials or on personal errands such as using the
telephone, were only required under Respondent's existing
rules to get their immediate supervisor's permission before
taking off. This policy was laxly enforced. Some firstline
supervisors required those under them to get permission,
others did not. Since March 22 employees have received
written warnings for being out of their work areas without
written permission.
On March 29 Respondent began using a new pass in
connection with employees' removal of their personal
toolboxes from its shipyard. It replaced a pass adopted in
July 1975. Although the system for receiving clearance to
carry a personal toolbox past a gate guard is essentially the
same in both instances, the new pass is more complicated
than the old and appears to contemplate a somewhat more
stringent method for assuring that employees do not walk
off with Respondent's tools.
The Union asked Respondent to bargain about its "new
system of authorization passes" by telephone and then,
under date of March 24, by letter. Respondent replied
under date of April 2. Its letter read:
We do not intend to negotiate our procedure of issuing
authorization passes as you requested in your letter of
March 24, 1976. Please be advised that the Company
has the unilateral right to establish procedures which
creates greater plant efficiency, decrease costs and
helps clarify and implement the terms, intent and
conditions of our agreement.
Boland Marine, supra, involved a set of written rules
dated July 1, 1975, and a system of written warnings. Prior
to that date Respondent had, from time to time, posted
various rules but had issued oral warnings only. The
codification of rules and the new disciplinary system were
the two interrelated facets of Respondent's effort to
exercise more effective managerial control over its employ-
ees. In finding that Respondent violated the Act by
of fact and conclusions of law in that case which relate to jurisdiction and
labor organization
BOLAND MARINE AND MANUFACTURING COMPANY
refusing to bargain with the Union, the Board explicitly
rejected Respondent's argument that it had a reserved
managerial right, under its long collective-bargaining
relationship with the Union, to act unilaterally.
In this case, Respondent has advanced the same
argument in order to protect its legal position while the
Board's decision is reviewed in the courts. As counsel
readily conceded, both at the hearing and in Respondent's
brief, I have no authority in this case to find for
Respondent on that ground since to do so I would have to
ignore controlling Board precedent in the most egregious
manner possible. However, Respondent advances a second
ground on the basis of which, it contends, I can find in its
favor. "[T]he imposition of new pass authorization forms,
it argues, "was part of a continuing enforcement of an
existing company policy embodied in prior existing rules
and did not constitute a change in employment conditions
out of which any duty to bargain with the Union arose,"
citing Ordont Orthodontic Laboratories, Inc., 156 NLRB 49
(1965) (various changes including restrictions on employee
movement held to be a continuance of past practices rather
than a change in conditions of employment); The Little
Rock Downtowner, Inc., 148 NLRB 717 (1964) (old rule
held not abrogated through nonenforcement to the point
where renewed enforcement constituted a change in
conditions of employment); and Bruns Garage, Inc., 148
NLRB 363 (1964) (requiring hourly paid employees to
exceed a flat rate in the face of a slowdown held a
reaffirmation of past policy rather than a change in
conditions of employment). This argument was, I think,
also rejected by the Board, albeit implicitly, when it
adopted Administrative Law Judge Klein's rationale for
finding a violation. The whole thrust of her Decision is that
Respondent's conduct in promulgating a new set of rules
and adopting a stricter disciplinary system to back them up
constituted a change in conditions of employment. She
came to this conclusion in the face of a defense that
stressed the existence and posting of rules before the set
bearing the date of July 1, 1975, was posted. Thus Judge
Klein rejected the principle for which Ordont, Little Rock,
and Bruns stand. The Board make Boland Marine, supra,
the law of this case when it agreed with her. I find,
therefore, that Respondent violated Section 8(a)(5) and (1)
of the Act when, in March 1976, it, in the words of the
complaint, "unilaterally promulgated, implemented, and
thereafter enforced a . . . revised gate and internal yard
3 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings
and conclusions herein shall, as provided in Sec 102 48 of the Rules and
1307
movement pass system applicable to removal of property
and movement of personnel . . . without notice to or an
opportunity for the Union to discuss and bargain thereon."
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. By unilaterally promulgating, implementing, and
enforcing a revised gate and internal yard movement pass
system applicable to removal of property and movement of
personnel, Respondent has violated Section 8(a)(5) and (1)
of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby
make the following:
RECOMMENDATION 3
I recommend the Board hold this case in abeyance until
the United States Court of Appeals for the Fifth Circuit
either grants or denies enforcement of the Board's Order in
Boland Marine and Manufacturing Company, Inc., 225
NLRB 824. The Order in that case requires Respondent to
post a notice, cease and desist, rescind its new rules and
disciplinary procedures, remove disciplinary warnings from
personnel files, undo personnel actions taken against
employees as a result of the new rules and procedures, and
make them whole for any losses suffered, and, upon
request, bargain with the Union about the rules and
procedures. Those provisions embrace all that an appropri-
ate remedy would include in this case. If the court grants
enforcement, this case should be dismissed upon a
compliance which rectifies all the transgressions growing
out of the new passes adopted in March 1976 as well as
those growing out of the July 1975 events. If the court
denies enforcement, this case should be dismissed on the
ground that the court's decision is the law of the case. In
the unlikely event that the court remands to the Board for
further action, this case can be handled in an appropriate
manner. I suggest consolidation.
Regulations , be adopted by the Board and become its findings and
conclusions , and all objections thereto shall be deemed waived for all
purposes