J. Ray McDermott & Co., Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1977

227 N.L.R.B. 1347 (N.L.R.B. 1977)

J. RAY McDERMOTT & CO.
J. Ray McDermott & Co., Inc . and Professional
Divers Local 1012 of the United Brotherhood of
Carpenters and Joiners of America , AFL-CIO.
Case 15-CA-6084
January 21, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On October 15, 1976, Administrative Law Judge
Platonia P. Kirkwood issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
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, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, J. Ray McDer-
mott & Co., Inc., New Orleans, Louisiana, its officers,
agents, successors , and assigns , shall take the action
set forth in the said recommended Order.
MEMBER WALTHER, dissenting:
For the reasons previously expressed in my dissent-
ing opinion in the underlying representation proceed-
ing, Ocean Systems, Inc., 223 NLRB 857 (1976), I
dissent from my colleagues' finding of a violation
herein.
I
Underlying representation proceedings in Case 15-RC-5361 and 15-
AC-28 (223 NLRB 857 (1976) were duly noted as an administrative and
official matter during the hearing, as were the Board's findings, rulings, and
Order in those proceedings. Official notice was (and is) also taken of the
record in those proceedings as the term "record" is defined in Sec 102.68 and
Sec 102 69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems, Inc, 166 NLRB 938 (1968), enfd 388 F.2d 683
(C.A 4, 1968), Golden Age Beverage Company, 167 NLRB 151 (1967), enfd
415 F 2d 26 (C.A 5, 1969), Intertype Company v Penello, 269 F 2d 573 (D C
Va, 1967); KFC National Management Company, 204 NLRB 630 (1973); and
Sec 9(d) of the NLRA.
2 Respondent disputed the status of the Union as a labor organization
partially on grounds considered and rejected by the Board in the underlying
227 NLRB No. 204
DECISION
STATEMENT OF THE CASE
1347
PLATONIA P. KIRKWOOD, Administrative Law Judge:
This case was heard at New Orleans, Louisiana, on July 20,
1976, pursuant to a charge filed on April 29, 1976, by
Professional Divers Local 1012 of the United Brotherhood
of Carpenters and Joiners of America, AFL-CIO (herein
the Union) against the J. Ray McDermott & Co., Inc.
(herein the Respondent) and a complaint which issued on
June 3, 1976. The case presents the following questions:
Did the Respondent violate Section 8(a)(5) and (1) of the
Act by refusing to recognize and bargain with the Union as
the exclusive bargaining representative of the employees
composing the unit described below?
Upon the entire record in the case,' including the
postheanng briefs filed by the General Counsel and the
Respondent, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation doing business in
the State of Louisiana, with its principal offices located in
New Orleans, Louisiana. It is engaged in the general
contracting, marine contracting, oil field construction, and
fabricating business. During the past 12 months, a represen-
tative period, Respondent purchased and received goods
valued in excess of $50,000 directly from points located
outside the State of Louisiana. During the same 12-month
period of time, Respondent shipped goods valued in excess
of $50,000 directly to points outside Louisiana. Respondent
admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and that its interstate commerce operations meet the
Board's discretionary jurisdictional standards.
II. THE LABOR ORGANIZATION INVOLVED
A prior determination by the Board in the underlying
proceedings in Case 15-AC-28, 223 NLRB 857, and the
credible evidence additionally adduced in this proceeding,
establishes, and I find, that the Union is, and has at all
times here relevant been, a labor organization within the
meaning of Section 2(5) of the Act.2
amendment to certification proceeding. See 223 NLRB 857 As the Board's
determinations and decisions are, of course, binding upon me, I would not
countenance Respondent's efforts to attack the validity of the Board's
rulings and decisions in the underlying proceedings in any way. Nor would I
permit it or any other party to litigate at this hearing any matters which were
or could have been litigated in the said prior representation proceeding. See
Pittsburgh Plate Glass Company v. N.LR B, 313 U S 146, 162 (1941), Rules
and Regulations of the Board, Sec. 102.67(f) and 102.69(c)
In light of the Respondent's demal of the current status of the Union as a
labor organization, however, I did permit Respondent the opportunity to ask
the vice president of the Union a limited number of questions concerning the
Union's activities as an employee representative at dates subsequent to the
Board's decision in 223 NLRB 857
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Chronology of Relevant Events
On April 18 , 1974, the Regional Director for Region 15 of
the National Labor Relations Board , issued a Decision and
Direction of Election in Case 15-RC-5316 which involved
the Company herein and the International Association, of
Professional Divers , a/w District 2, MEBA , AFL-CIO
(herein IAPD). The unit found appropriate by the
Regional Director consisted of divers , tenders, and rack
operators employed by the Company in its diving division
excluding all other employees , freelance divers and tenders,
shop employees , dispatchers , office clerical employees,
shop clerical employees , and guards and supervisors as
defined in the Act . The election was conducted by mail
ballot and a majority of those voting cast ballots for IAPD.3
The Board , however , set that election aside because of
partially meritorious objections the Company had filed and
ordered that a second election be conducted among the
employees in the unit found appropriate by the Regional
Director . 215 NLRB 570 (1974).
The second election was also held by mail ballot. The
tally of ballots was served on the parties on February 27,
1975. It disclosed that of approximately 86 eligible voters, 39
cast ballots for, and 36 against , IAPD; and 6 cast
challenged ballots . The Company filed objections to that
election also.
On April 18, 1975 , the Regional Director issued a Second
Supplemental Decision and Certification of Representative
in which he overruled the Company 's objections , sustained
four of the six challenges , found it unnecessary to resolve
the two remaining challenges as they were no longer
determinative , and issued a certification to IAPD. The
Company then filed a request for review with the Board,
and on June 30, 1975, the Board , by telegraphic order
denied that request for review.4
On July 3 , 1975, Paul Woodhall , president of the certified
union , wrote Robert J. McGuire , the Company 's division
manager , to request information so as to prepare for
negotiations and to suggest a meeting date for bargaining.
By letter dated July 9, 1975, McGuire responded that the
Union 's requests were being considered . One day later, by
letter of July 10, 1975, McGuire informed Woodhall that
the Company did not believe that the Board 's certification
was valid and that the Company was consequently declin-
ing to bargain or to furnish information.
On July 21, 1975, Woodhall again wrote McGuire and
requested the identical information requested in the July 3
letter . Additionally , Woodhall requested the current ad-
dresses of all divers, tenders, and rack operators then
employed by the Company . By letter dated July 24, 1975,
McGuire again refused to supply the information and
repeated the challenge of the certification 's validity.
On September 10, 1975, the Union filed a petition to
amend the above certification , so as to designate it in place
of IAPD as the certified representative. The Employer
' The tally showed that of approximately 78 eligible voters, 40 cast ballots
for IAPD, 33 cast ballots against IAPD, and 3 cast challenged ballots
a On April 22, 1975, before the request for review was filed, IAPD wrote
the Company requesting certain information The Company replied by letter
dated April 29, 1975, refusing the request stating that a request for review of
opposed the petition. A hearing was then held, and on April
12, 1976, the Board granted the petition and ordered that
the certification issued on April 28, 1975, supra, be
amended by substituting the name of the Union for that of
IAPD. 223 NLRB 857.
On April 15, 1976, Woodhall wrote to McGuire again
requesting a negotiation meeting and suggesting certain
specific dates. On April 21, 1976, McQuire replied stating
that he would not meet with the Union, and asserting
further that the Company not only questioned the validity
of the certification and the amendment thereto but also that
it did not believe the Union currently represented a
majority of the employees in "any unit appropriate for
purposes of collective bargaining."
B. The Contentions of the Parties and Their Merits
The complaint's relevant provisions allege in part that
"commencing on or about July 10, 1975, and continuing to
date, and more particularly on or about April 21, 1976,
Respondent refused and continues to refuse to recognize
and or bargain with the Union on behalf of employees
composing the unit for which the Union holds the certifi-
cate of representative issued to it by the Board as above
described." Respondent admits that, as alleged, it has
refused to bargain with the Union in July 1975, and in April
1976, and continues to refuse to bargain with it. Respon-
dent maintains that, nonetheless, the complaint improperly
describes its conduct to be an unfair labor practice within
the meaning of Section 8(a)(5) of the Act. It rests this claim
on the following contentions, each of which I consider
seriatim.
1. More than 6 months has expired since the alleged cause
of action - i.e., the refusal to bargain - arose, and a
complaint is therefore barred under the provisions of Section
10(b) of the Act.
Respondent claims, in this respect, that its refusal to
bargain with the Union in July 1975 was unequivocal in
nature and that the charge - filed more than 3 months
later - was therefore time-barred.
I find no merit in the above contention. The undisputed
facts establish that the Union made a bargaining demand
on Respondent on April 18, 1976, which the Respondent
admittedly refused to honor on April 21, 1976, and that the
charge which initiated this proceeding was filed but 8 days
later. Under well-established Board precedent, it is clear
and I find that even though Respondent had rejected prior
bargaining requests addressed to it, its new refusal to
recognize and bargain with the Union provided the basis
for an independent cause of action on which this complaint
properly rests.5 See, for example, United States Gypsum
Company, 143 NLRB 1122, 1126, fn. 6 (1963); Joseph T.
Strong, d/b/a Strong Roofing & Insulating Co., 152 NLRB 9
the Regional Director's Supplemental Decision and Certification would be
filed
5 A motion to dismiss the complaint on 10(b) grounds was made in
Respondent's answer to the complaint and was denied by me at the hearing.
I hereby reaffirm my ruling on that motion
J. RAY McDERMOTT & CO. 1349
(1965), enfd. 386 F.2d 929 (C.A. 9, 1967), affil. on other
grounds 393 U.S. 357 (1969) .6
2. The certification of representative in Case 15-RC-5361
and the amendment of certification in Case 15-AC-28 were
invalidly issued.
It is outside my province to rule upon the issues sought to
be raised by this contention of Respondent. I accept the
Board's decision and its ruling in the underlying representa-
tion and amendment to certification proceedings as correct
and final.?
3. Respondent's final contention is that its refusal to
bargain on April 21, 1976 - 3 days after the expiration of the
1 year period following the Board's certification of the Union's
status as the majority representative - was predicated on a
good faith doubt of the Union's continued enjoyment of
majority support.
Resolution of the issue raised by this contention of
Respondent rests on well-settled principles of law. These
principles were recently restated in Bartenders Hotel, Motel
and Restaurant Employers Bargaining Association of Pocatel-
lo, Idaho, and its Employer-Members, 213 NLRB 651(1974).
Quoting from an earlier decision - Terrell Machine
Company, 173 NLRB 1480, 1481 (1969), enfd. 427 F.2d
1088 (C.A. 4, 1970), the Board said in relevant part:
It is well settled that a certified union, upon expira-
tion of the first year following its certification, enjoys a
rebuttable presumption that its majority representative
status continues. This presumption is designed to
promote stability in collective-bargaining relationships,
without impairing the free choice of employees. Accord-
ingly, once the presumption is shown to be operative, a
prima facie case is established that an employer is
obligated to bargain and that its refusal to do so would
be unlawful. The prima facie case may be rebutted if the
employer affirmatively establishes either (1) that at the
time of the refusal the union in fact no longer enjoyed
majority representative status; or (2) that the employer's
refusal was predicated on a good-faith and reasonably
grounded doubt of the union's continued majority
status. As to the second of these, i.e., "good faith
doubt," two prerequisites for sustaining the defense are
that the asserted doubt must be based on objective
considerations and it must not have been advanced for
the purpose of gaining time in which to undermine the
6 1 am cognizant of the existence of some court decisions expressing a
view contrary to that taken by the Board in applying its concept of Sec 10(b)
in cases involving successive refusal to bargain though not on facts precisely
analogous to those in the case at hand N L R B v McCready and Sons, Inc,
482 F 2d 872 (C A 6, 1973), enforcement of 195 NLRB 28, cited by
Respondent in its brief, is one such case Decisions by other circuits
similarly holding are cited by the Sixth Circuit in its opinion in McCready
Assuming those court decisions provide support for the Respondent's
argument, it is clear that the Board 's decisions do not I am, of course,
bound to follow the Board 's decisions and rulings until the same are
reversed by the Supreme Court. See The Prudential Insurance Company of
America, 119 NLRB 768 (1957), Ranco, Inc, 109 NLRB 998, 1009, fn 8
(1954), Lenz Company, 153 TT NLRB 1399 (1965)
7 Respondent may, of course , reiterate before the Board, its contentions
concerning the correctness of the representation case determinations, and its
position that evidence allegedly material to those determinations was not
considered, inasmuch as the Board clearly has discretion both to reopen the
case for the receipt of such evidence as Respondent wishes to proffer or,
union. [This second point means, in effect, the assertion
of doubt must be raised "in a context free of unfair
labor practices." See Nu-Southern Dyeing & Finishing,
Inc., 179 NLRB 573, fn. 1(1969), enfd. in part 444 F.2d
11(C.A.4, 1971.) ]8
To establish that its refusal to bargain with the Union on
April 22, 1976, was predicated on a "good-faith and
reasonably grounded doubt" of the Union's majority status
on that date, Respondent relied on the testimony of
Division Manager McGuire. According to McGuire, he
arrived at a conclusion that the Union had not retained the
support of a majority of the unit employees on the basis of a
combination of the following objective facts: (a) the vote
for union representation in the 1975 certification election
exceeded the vote against representation by only a narrow
margin (39 to 36); (b) only 52 of the 86 employees who were
eligible to vote in the 1975 election still remained employed
with the Company; (c) there were now 89 employees within
the bargaining unit, an increase in the unit complement of 3
employees-and, of these 89, 37 were newly hired since the
conduct of the 1975 election; and (d) each of 4 employees
who resigned his job in February 1976 (each of whom was
promptly replaced by a newly hired employee) had advised
McGuire at the time of resignation that he had voted for the
Union .9
Reviewing the above evidence, it is plain that all that
Respondent has proved with respect to the existence of an
objective basis for its asserted doubt of the Union's
majority status on April 21, 1976, is that, in the slightly
more than 1-year period following the Board's conduct of
the certification election, there had been an increase in the
size of the unit of less than one-half of 1 percent, and a
turnover in unit personnel of approximately 52 percent. In
accord with well-established Board law, I find neither of
these factors to be sufficient to support a conclusion that
Respondent had a reasonably grounded and valid objective
basis for doubting that the Union did not continue to enjoy
the majority support among the unit employees, and for
refusing, accordingly, to bargain with Umon,10 as it did, on
April21, 1976.
In light of all the foregoing findings, I conclude that, by
virtue of Section 9(a) of the Act, the Union at all times here
material was and now is the exclusive representative of the
Respondent's employees in the appropriate unit as above-
described, and that the Respondent, by its refusal to
without reopening , to decide that its original determinations were wrong But
the Board's power and discretion to take such action does not permit me that
latitude. I note, in this respect, that Respondent made no proffer of evidence
newly discovered since the date of the Board's proceedings it here attacks
8 Other cases similarly holding are set out in the able brief filed by
General Counsel Respondent's equally able brief recognizes the existence of
these principles and their applicability as a means of testing the validity of
the contention here being considered
9 McGuire also testified about his subjective belief that the Board erred in
finding that a majority of the unit employees in 1975 had voted for union
representation In so testifying, McGuire was not presenting any valid
ground for the refusal to bargain but was reiterating a claim Respondent had
unsuccessfully urged before the Board in the representation proceeding.
10 See and compare King Radio Corporation, 208 NLRB 578, 582, 583
(1974), Terrell Machine Company, 173 NLRB 1480, 1480-81 (1969), enfd 427
F 2d 1088 (C.A. 4, 1970), and the cases there cited
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with the Union on April 21, 1976, violated Section
8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices proscribed by Section 8(a)(5) and (1) of the
Act, it will be recommended that Respondent be required
to cease and desist therefrom and take certain affirmative
action which I find necessary to effectuate the policies of
the Act. Furthermore, having found that Respondent
unlawfully refused to bargain with the Union as the
exclusive bargaining representative in the appropriate unit
described above, I shall recommend that it be ordered to do
so upon request and, if an agreement is reached, to embody
that agreement in a signed contract.
Upon the foregoing findings of fact and conclusions and
the entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER ii
representative, shall be posted by it 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. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Regional 15, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
11 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,
conclusions , and Order herein shall, as provided in Sec. 102.48 of the Rules
and Regulations , be adopted by the Board and become its findings,
conclusions , and Order, and all objections thereto shall be deemed waived
for all purposes.
12 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 "
The Respondent, J. Ray McDermott & Co., Inc., New
Orleans, Louisiana, its officers , agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Failing or refusing to bargain collectively concerning
rates of pay, wages, hours of employment, or terms and
conditions of employment with Professional Divers Local
1012 of the United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, as the exclusive representative of its
employees in the following appropriate unit:
All divers, tenders, and rack operators employed by the
Respondent in its Diving Division; excluding all other
employees, freelance divers and tenders, shop employ-
ees, dispatchers, office clerical employees, shop clerical
employees, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in their exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action found neces-
sary to effectuate the purposes of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative of
the employees in the above-described appropriate unit with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and if an
understanding is reached, embody such understanding in a
written signed agreement.
(b) Post at its plant or facility at Harvey, Louisiana,
copies of the attached notice marked "Appendix." 12 Copies
of said notice on forms provided by the Regional Director
for Region 15, after being duly signed by the Respondent's
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively in good faith with Professional Divers Local
1012 of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, as the exclusive repre-
sentative of the employees in the following appropriate
unit:
All divers, tenders, and rack operators employed
by the Respondent in its Diving Division; exclud-
ing all other employees, freelance divers and
tenders, shop employees, dispatchers, office cleri-
cal employees, shop clerical employees, guards
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under the National Labor Relations Act.
WE WILL, upon request, recognize and bargain
collectively in good faith with the above-named Union
as the exclusive representative of the employees in the
appropriate unit with respect to wages, hours, and
conditions of employment, and, if an understanding is
reached, we will embody such understanding in a signed
agreement.
J. RAY MCDERMOTT & Co.,
INC.