Lockheed Shipbuilding And Construction Co.

National Labor Relations Board - Board Decisions

Jan 16, 1986

278 N.L.R.B. 18 (N.L.R.B. 1986)

18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lockheed Shipbuilding and Construction Company
and Clarence Spurgeon and George O. McDon-
nell and James O. Branson . Cases 19-CA-
15002, 19-CA-15003, and 19-CA-15044
16 January 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 9 July 1985 Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions as modified and to adopt the recom-
mended Order.
In agreeing with the judge's rejection of the Re-
spondent's defense that OSHA regulations required
it to use the results of the pulmonary functions
tests in the manner in which it did, we address the
merits o;" this defense only to a limited extent. The
Respond : nt raised this defense, in a slightly differ-
ent form-,., in an earlier proceeding in which the
lawfulness of the Respondent's use of the tests in
precisely the same manner was litigated. In adopt-
ing the judge's finding and conclusions in that pro-
ceeding, the Board rejected the OSHA defense.
Lockheed Shipbuilding Co., 273 NLRB 171 (1984).'
The Respondent has adduced further evidence on
this issue, but the essential issue is the same and
nothing newly presented persuades us that defense
has more merit now than it did then. We therefore
find it unnecessary to rely on the judge's conclu-
sion that the Respondent agreed to find jobs for
tested employees regardless of the test results.
Similarly, in adopting the judge's recommended
remedy of ordering the Respondent to offer em-
ployment to each of the named employees "in the
first available job openings for which each is quali-
fied," we reach no conclusions at this stage regard-
ing the Respondent's obligation to reassign other
employees or to take other steps to create job va-
cancies for these employees. On 30 September 1985
the Board denied the Respondent's motion for clar-
ification of our Decision and Order in the earlier
proceeding, leaving all such issues to compliance
proceedings. The same considerations apply here.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Lockheed
Shipbuilding and Construction Company, Seattle,
Washington, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Daniel R. Sanders, Esq., for the General Counsel.
William T Grimm, Esq. (Davis, Grimm & Payne), of Se-
attle, Washington, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER, Administrative Law Judge. This
matter was heard by me in Seattle, Washington, on 12
March 1985. On 5 November 1982,1 the Regional Direc-
tor for Region 19 of the National Labor Relations Board
issued an order consolidating cases, a consolidated com-
plaint and notice of hearing, based on the unfair labor
practice charges in Case 19-CA-15002, filed on 12 Sep-
tember and amended on 29 October, in Case 19-CA-
15003, filed on 21 September and amended on 3 Novem-
ber, and in Case 19-CA-15044, filed on 4 October and
amended on 3 November, alleging violations of Section
8(a)(1) and (5) of the National Labor Relations Act. All
parties have been afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs.
Based on the entire record,2 on the briefs filed on
behalf of the parties and on my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material, Lockheed Shipbuilding and Con-
struction Company (Respondent), has been a corporation
with an office and place of business in Seattle, Washing-
ton, where it is engaged in the business of operating a
shipyard. During the 12-month period prior to issuance
of the complaint, a representative period, Respondent, in
the course and conduct of its business operation, derived
gross revenues in excess of $500,000, and, further, sold
and shipped goods or provided services in excess of
$50,000 either directly to customers outside the State of
Washington or directly to customers within that State
who, in turn, were engaged in interstate commerce by
other than indirect means. Therefore, I conclude that at
all times material, Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1 Unless stated otherwise, all dates occurred in 1982.
1 In the earlier case the Respondent argued that its actions were "m 2 Respondent's unopposed motion to correct transcript is noted and
accordance with" and "consistent with" its obligations under OSHA granted.
278 NLRB No. 6
LOCKHEED SHIPBUILDING CO. 19
II. THE LABOR ORGANIZATION - INVOLVED
At all times material, International Brotherhood of
Electrical Workers, Local 46, AFL-CIO, and Interna-
tional Brotherhood of Boilermakers , Local 104, AFL-
CIO (the Unions), each have been labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
In the final analysis , this case presents a situation
where a party to a collective-bargaining contract agreed
to a contractual provision that, from its point of view,
turned out to have an unfortunate consequence. When
that became apparent , it then sought to-escape that con-
sequence by acting in a fashion that was contrary to its
own agreement, thereby leading to issuance of the com-
plaint alleging that it had violated Section 8 (a)(5) and (1)
of the Act. Specifically , in a collective-bargaining con-
tract with the Unions, Respondent agreed that there
would be no doctor's physical examination of employees
except as required by law . But on 5 January 1981, Re-
spondent implemented a pulmonary function and audio-
metric medical screening program for employees newly
hired or recalled to work. In doing so, Respondent as-
sured the labor organizations signatory to its contract
that the purpose of the program was to enable Respond,
ent to properly place new employees in jobs and , further,
that the program would not be used to deprive employ-
ees of employment. So far as the record discloses, no
provision was made for what would happen if the test
results led to imposition of restrictions that would pre-
clude employment by particular employees in any of the
jobs for which there were openings at the time that those
employees had been dispatched for employment . It is this
consequence that has led to the instant case , as well as to
an earlier proceeding that already has resulted in a Deci-
sion and Order by the Board.
In Lockheed Shipbuilding Co., 273 NLRB 171 (1984), a
total of five employees were deprived of employment be-
tween 16 January and 27 August 1981 as a result of the
testing program implemented on 5 January 1981 . Affirm-
ing Administrative Law Judge James S . Jenson's deci-
sion, the Board concluded that these terminations3 had
violated the Act. In arriving at that result the Board
pointed out "that the Respondent 's violation rests in its
use of the medical screening programs for the purpose
[of] terminating new employees or refusing to hire appli-
cants for employment." The instant case involves three
additional employees who were dispatched for employ-
ment by -Respondent between 5 March and 20 September
and who were deprived of employment after having un-
dergone pulmonary function testing.4
The General Counsel argues, contrary to Respondent,
that disposition of the issues presented in th}s case, save
for one arising under Section 10(b) of the Act, is gov-
erned by the Board's Decision and Order in the prior
case. That one" exception involves James O. Branson who
was dispatched initially to employment with Respondent
on 5 March but who did not file a charge until 4 Octo-
ber, more than 6 months after he initially had been
denied permanent employment by Respondent. The Gen-
eral Counsel does not, and could not, contend that the
charge is other than untimely insofar as the 5 March in-
cident is concerned. However,, the record discloses that,
in the ordinary course of events, Branson had continued
to be dispatched to Respondent with the result that he
again had been turned down for employment by it on 22
and 28 July, on 15 and 24 September, and,again on 28
January 1985 . These later five dates had not been alleged
in the consolidated complaint issued on 5 November,
with the result that on its face the allegation pertaining
to Branson 's deprivation of permanent employment
could have been dismissed on the basis of the limitations
period of Section 10(b) of the Act. But, though it specifi-
cally noted Respondent's `argument in that respect, the
i3oard did not dismiss that portion of the complaint but
instead remanded it for disposition under the overall
guidelines quoted above. After the Board's Decision and
Order had issued , the Regional Director for Region 19
issued an amendment to complaint , on 14 February 1985,
adding as violations the refusals to employ Branson that,
Respondent admits, occurred on the dates subsequent to
5 March. Respondent argues that this amendment is defi-
cient because no complaint ever should have issued on
the basis of Branson 's charge in light of its conceded un-
timeliness with regard to the March refusal of permanent
employment . Consequently, according to Respondent,
"There simply is no timely charge to which this allega-
tion can relate back." In any event, argues Respondent,
"[t]he Amendment should be stricken on equitable
grounds [as] [t]he General Counsel has offered no justifi-
cation as to why it waited for over 2-1/2 years clearly
should have dismissed 2-1/2 years ago [sic]."
B. Facts
In the final analysis, the Board's Decision and Order in
the prior case was predicated on the following factual
findings.
8 Under the contractual hiring procedure, Respondent was obliged to
pay at least 4 hours' pay to any employee who reported for work. Ap-
parently as an accommodation to that contractual requirement, employ-
ees dispatched to Respondent ordinarily were considered as being hired
and then if problems arose during the application process those employ-
ees were terminated , being paid at least the minimum reporting pay
called for by the contract Thus for purposes of the issues raised in the
case already decided by the Board, as well as those raised in the instant
case, there is no distinction of significance between an employee who
was dispatched but never hired and, on the other hand , a dispatched em-
ployee who was hired but then terminated as a result of events occurring
during the application process
a Judge Jenson's decision had issued on 31 August , before any of the
charges in the instant consolidated proceeding had been filed. Although
the General Counsel moved to transfer those charges to the Board and to
consolidate them with the case heard by Judge Jenson, then pending
Board decision, in its Decision and Order the Board denied the General
Counsel's motion, holding that the issues presented in the instant case
"can best be resolved by the administrative law judge if the cases are
scheduled for hearing or by the Board on an acceptable stipulation of
facts." Consequently , no issue can exist in the instant matter under the
doctrines of Peyton Packing Co., 129 NLRB 1358 (1961), and Jefferson
Chemical Co., 200 NLRB 992 (1972).
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Respondent had been a party to a multi-
employer/multi-union collective-bargaining contract
effective from 1 July 1980 until 30 June 1983. While
that, contract expressly permitted Respondent to
reject job applicants who were referred pursuant to
the contract's dispatching procedure, Article 16.10
provided that, "There shall be no Doctor's physical
examination nor age limit,except as required by
law." [ALJD at 3.]
2. During negotiations for that contract, Re-
spondent had proposed changing the predecessor
provision to what became Article 16.10 so that job
applicants could be required to submit to medical
examinations "to determine the physical fitness of
the applicant to safely and efficiently perform the
work of the classification for which the applicant is
applying," and to award Respondent,
the right to require a doctor's medical examina-
tion of an employee when, in [Respondent's]
opinion, the nature of the work assignment could
jeopardize the safety and health of the employee
or the employee's co-workers. Failure of the em-
ployee to pass the medical examination based on
the doctor's evaluation of the employee's condi-
tion as related to the work assignment shall result
in reassignment of duties (if possible), sick leave
(if a temporary condition) or termination. -
But when met with objections to this proposal, Re-
spondent withdrew it. [ALJD at 4.]
3. In the fall of 1980, Respondent made arrange-
ments to commence giving pulmonary function and
audiometric medical screening tests to employees
hired or recalled to perform work. In light of Arti-
cle 16.10, various union officials voiced concern
about the contractual propriety of such testing. In
its Decision and Order the Board expressly ad-
dressed what had followed as a result of these ex-
pressions of concern:
It is clear that the Respondent had informed the
Unions of its desire to establish such a program,
but for the stated purpose of enabling the Re-
spondent to properly place new employees in
jobs within the employees' medical limitations.
Thus the understanding was that the results of
such tests would not be used to "wash out,"
screen, or terminate employment to the tested
employees, but only to establish "baseline data"
for the new employees. [At 2-3.]
4. Contrary to that agreement, Respondent did
use the newly implemented test results as the basis
for terminating five employees during 1981: Adolph
Bukacek, Chris Boblet, Laszlo Biro, Donald Rowe
and Bayani Alvarez. The findings regarding three
of these individuals have direct application to analy-
sis of what occurred in the instant case:
Adolph Bukacek, who had never before been
employed by Respondent, was- dispatched by
IBEW Local 46 on January 16, 1981. After fail-
ing the pulmonary function test, he was reviewed
by Respondent's physician who restricted his
work to areas free of fumes and dust and that did
not involve exertion. An attempt to place him in
a job within those restrictions was unsuccessful.
He was therefore paid "show-up" pay in accord-
ance with the contract and released. [ALJD at 8.]
Chris Boblet, a former employee, was dis-
patched by Boilermakers Local 104 on February
13, 1981. Having failed to pass the pulmonary
function test, he was reviewed by the company
physician who placed similar restrictions on the
work he could perform. An attempt to place him
in a job within those restrictions was unsuccessful
that day and he was therefore paid "show-up"
pay and released without having performed any
work tasks. [ALJD at 8.]
Bayani Alvarez was dispatched by Boilermak-
ers Local 104 on August 27, 1981, failed the pul-
monary function test, was seen by the doctor
who placed restrictions on the work he could
perform, an attempt to find work within the re-
strictions was unsuccessful, and he was paid for
"show-up" time and released. [ALJD at 9.]
The facts of the denials of permanent employment
during 1982 to the Charging Parties are virtually identi-
cal to what had happened in 1981 to Bukacek, Boblet,
and Alvarez. Thus Workers' Compensation Supervisor
Ada Beane, who is responsible for medical screening, tes-
tified that when she had interviewed Branson in March
she had decided, based on the interview and the facts of
bronchitis, asthma, and allergies disclosed by the medical
history form that he had completed, that he should be
seen by a doctor. According to Beane, Branson was
given a pulmonary function test and was sent to internist
and pulmonary specialist Dr. William Stewart. In his
report to Respondent, Stewart states:
I would strongly advise that he discontinue smoking
and scrupulously avoid any future exposure to pul-
monary irritants. Any further exposure to pulmo-
nary irritants is.likely to result in progression of his
disease with increasing episodes of infection and
further deterioration of his pulmonary function.
Beane testified that:
I took into consideration the restrictions that the
doctor had placed upon Mr. Branson and contacted
the department for which he *as hired to be as-
signed to, and reviewed the restrictions with the su-
perintendent for the crafts and was advised that
there was no work available within the restrictions
that I gave him.
I contacted manpower.
Manpower is our personnel office that coordi-
nates incoming jobs and they advised that there was
no other, work available that would fall within his
restrictions.
Beane further testified that when Branson again had
been dispatched on 23 July, he had not been examined
LOCKHEED SHIPBUILDING CO.
by a physician but had completed a supplemental medi-
cal history form and that Personnel Department Coordi-
nator Burt Richardson had determined not to hire Bran-
son on that date "[b]ecause there was no work within his
medical restrictions ." Similarly , testified Beane , Branson
had completed a supplemental medical history form
when he again had been dispatched on 28 July but once
more he had been rejected fdr employment based on
"Dr. Stewart's report of 3/5/82 and the available work
that was in our yard," as well as the supplemental medi-
cal form in which Branson had referred expressly to Dr.
Stewart's examination.
With respect to George McDonnell , Beane testified
that he had been hired on 23 March and, following her
interview with him, had been referred to Dr. H. Doyle
Perkins, who had- performed pulmonary function tests on
McDonnell and then had referred him to Dr. Stewart
who, in turn, had evaluated the test results and had pre-
pared a report stating , inter alia:
I think it is imperative that he observe the most
stringent restrictions on his environment . He should
not be allowed to work in a situation where there
are inhaled pulmonary irritants. Because of his
young age and the - degree of disease already
present , I do not think a respirator is sufficient pro-
tection and therefore would not permit him to work
in an area of known pulmonary irritants , even with
the aid of a respirator.
When those results were reported to Beane , she testified
that she had contacted the department to which he had
been assigned and then had contacted manpower, but
"there was no work available within his medical
restrictions."As a result, McDonnell was laid off.
Beane testified that Spurgeon had been dispatched on
20 September and, following her interview with him, she
had decided to refer him for medical examination, both
because of back, foot, and blood pressure problems and
because of pulmonary problems. Dr. Patrick Beecher ex-
amined Spurgeon and evaluated the former set of physi-
cal problems . His report discloses nothing that precluded
Spurgeon from employment by Respondent . However,
when Spurgeon was referred to Dr. Wayne P. Lowe for
evaluation of the former 's pulmonary function test, Dr.
Lowe recommended that Spurgeon be "moderately re-
stricted , ; he needs to wear a respirator , he is restricted
from climbing ladders or high oxygen-type of outfit." As
had happened with Branson and McDonnell , Beane testi-
fied that she had contacted the craft superintendent for
the area to which Spurgeon had been assigned and then
manpower, but both had said that "there was no other
work available within his medical restrictions." Accord-
ingly, Spurgeon had been laid off.
Analysis
In its brief, Respondent argues that Branson, McDon-
nell, and Spurgeon would have been laid off regardless
of whether or not they had taken the pulmonary func-
tion test . To support that assertion Respondent points to
the testimony of Manager of Industrial Relations Paul
Schell . He stated that prior to 1 January Respondent had
21
followed a practice of reviewing medical histories com-
pleted by newly hired employees and of referring ques-
tionable ones to physicians for evaluation and recommen-
dations . According to Schell, "The company then would
sit down with the employee, discuss the limitations that
applied, review what the work was available, examine
any other work they could possibly fit in; if not then the
employee would be terminated." However, Schell's testi-
mony in this regard must be viewed with some suspicion
for he also appeared as a witness in the prior proceeding,
where the same testing program was at issue as in the in-
stant case . Yet Judge Jenson found specifically that
"there is no evidence that any physical examination here-
tofore performed by Respondent, whether required by
law or regulation or past practice , has even [sic] been
used to disqualify workers from employment." (ALJD at
11.) Given the similarity of issue in both proceedings, it
is strange that Respondent , and particularly Schell, did
not see fit to produce evidence regarding its past prac-
tice during the course of the hearing before Judge
Jenson . Moreover , this suspicion concerning the credibil-
ity of Schell's testimony is heightened by the fact that,
during the hearing in the instant case, Respondent pro-
duoed no evidence of any specific instances where ' em-
ployees had been terminated or deprived of work prior
to 1 January 1981 because of restrictions imposed on
them as a result of a medical examination.
But an even more fundamental problem for Respond-
ent's argument arises as a result of Schell's admission that
Respondent's "system" had not changed since 1 January
1981 except "to the point that a pulmonary test has been
included." Even if, in fact, the results of other tests had
historically led to denials of permanent employment to
newly hired employees, Schell 's admission shows that no
employee historically had been deprived of employment
with Respondent as a result of a pulmonary function test.
As the Board concluded in its decision, at the time that
Respondent decided to introduce the pulmonary function
testing,' , iv, had reached an "understanding . . . that, the
results of such tests would not be used to `wash out,'
screen, or terminate employment to the tested employ-
ees." Consequently, Respondent 's past practice with
regard to other types of testing cannot serve to override
its specific commitment, arising , from the collective-bar-
gaining ' process, with regard to the effects on employees
of pulmonary function test results.
Nor' can it be argued with any degree of persuasion
that the pulmonary function tests administered to Bran-
son, McDonnell, and Spurgeon had not led to their
denial of permanent employment with Respondent. As
the hiring sequence described ' by Beane demonstrates,
Respondent did not decide, to preclude any one of them
from permanent employment until after having first dis-
patched them for testing and then having applied the re-
strictions developed from , that testing as guidelines to de-
terminel if job openings were available for them. At no
point did Beane claim that Branson , McDonnell; or
Spurgeon had been deprived of permanent employment
with Respondent for any reason other than the absence
of job openings accommodating the restrictions devel-
oped as a result of the pulmonary function testing. Nor
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could she have done so candidly. In a letter submitted
during the investigation of the charges underlying the
complaint in this proceeding, Respondent's director of
legal affairs, Carol R. Werner, conceded expressly that
"The dismissals of the employees referenced in the sub-
ject charges were based on a continuation of the same
pulmonary testing program which is the subject matter
of a case before the N.L.R.B. at this time (Case Nos. 19-
CA-13226, 13298, 13741, and 14066)." In these circum-
stances , the conclusion is inescapable that , as had been
the fact with regard to Bukacek, Boblet, and Alvarez in
the prior proceeding, Branson , McDonnell, and Spur-
geon had been deprived of permanent employment with
Respondent because of results developed from pulmo-
nary function testing of them.
The Board already has concluded that Respondent had
agreed that the pulmonary function testing results would
be used only, in effect, as a means of placing employees
in jobs and, specifically, that those results would not be
used "to `wash out,' screen, or terminate employment to
the tested employees." Whatever may be said concerning
the parties' res judicata and collateral estoppel arguments
in other respects, the Board has determined, that this had
been the agreement reached by Respondent. That deter-
mination is binding on me in , this proceeding . Similarly
binding is the Board's conclusion that Respondent had
failed to honor that agreement when it had terminated
employees because it lacked job openings that would ac-
commodate the restrictions imposed on" them as a result
of the pulmonary function tests administered to them.
That is made clear by the Board's analysis of the termi-
nations of Bukasek, Boblet, and Alvarez-terminations
that occurred, as Werner's letter concedes, as a result of
the identical sequence of events that later led to the ter-
minations of Branson , McDonnell , and Spurgeon.
But, argues Respondent, OSHA regulations require it
to administer pulmonary function tests to employees and
prohibit it from employing employees in jobs for which
there is a danger to them. Arguably, Respondent had the
opportunity to advance this defense during Judge Jen-
son's hearing in the prior proceeding and should have
done so at that time. In his' decision, Judge Jenson point-
ed out expressly that Respondent had failed to show
"that the testing program was in' accordance with appli-
cable laws and regulations." Moreover, at no point did
Respondent's witnesses claim, nor did its "other evidence
show, that OSHA regulations even had been noted in
connection with the determinations not to permanently
employ Branson, McDonnell, and Spurgeon. The ines-
capable conclusion that these regulations are but after-
thoughts, raised to explain conduct occurring almost 3
years earlier, is but reinforced by Respondent's conces-
sion that it has not, tested current employees notwith-
standing OSHA 's regulations . However , in the final anal-
ysis, the issue of whether the testing is mandated by law
'is but tangential to the central issue posed in this case.
As the Board concluded in the earlier case, Respond-
ent's understanding did allow it to administer pulmonary
function testing. Further, nothing in that understanding
required Respondent to place a tested employee in a job
-which ,would, have endangered that employee's health or
subjected Respondent to liability. Consequently, nothing
in that understanding obliged Respondent to violate
OSHA regulations. Rather, as a result of its own under-
standing , Respondent was obliged only not to use those
test results "to `wash out,' screen, or terminate employ-
ment to the tested employees." Or, put another way,-by
its own agreement, Respondent obligated itself to find
jobs for tested employees regardless of their test results.
Presumably in reaching this understanding, Respondent
had some plan in mind for honoring the obligation that it
was undertaking.5 That Respondent later may have dis-
covered that the agreement was more onerous than con-
templated initially-that it was more expeditious simply
to deny permanent employment to employees whose test
results led to restrictions for which there were no imme-
diate job openings-does not'entitle it to repudiate the
obligations arising from its own understanding with its
employees' bargaining representatives.6 Nor do those
consequences entitle it to have the Board and courts, in
effect, reword the understanding-to cure the adversity of
those consequences and to allow Respondent to escape
the effects of its own agreement. For, as the United
States Court of Appeals for the Eighth Circuit observed
in NLRB v. Nash-Finch Co., 211 F.2d 622, 626 (1954):
The following language , from Printing & ,Co. v.
Sampson, L.R. 19 'Eq. 462, 465, has several times
been approved by the Supreme Court of the United
States: ". . . if there is one thing which more than
another public policy requires it is that' men of full
age and competent understanding shall have the
utmost liberty of contracting, and that their con-
tracts, when entered into freely and voluntarily,
shall be held sacred, and shall be enforced by courts
of justice." See Baltimore & Ohio S. W.R. Co. Y.
Voigt, 176 U.S. 498, 20 S.Ct. 385, 387, 44 L.Ed. 560;
Twin City Pipe Line Co. v. Harding Glass 'Co., 283
U.S. 353, 356, 51 S.Ct. 476, 75 L. Ed. 1112.
In sum, as the price for defusing potential union oppo-
sition to introduction of pulmonary function and audio-
metric medical screening, Respondent promised not to
use results from those programs to preclude tested em-
ployees from employment. That understanding did not
oblige Respondent to forgo pulmonary function testing
required by OSHA. Nor did it require Respondent to
employ any employee -in a job from which that employee
was precluded as a result of OSHA prohibition. Instead,
it obliged Respondent to find jobs for newly hired and
recalled employees that were consonant with restrictions
imposed as a result of pulmonary function testing jobs
that were, therefore, not ones from which those employ-
ees were barred as a result of OSHA regulations. That
s There is no contention, nor evidence to support one had it been
made, that Respondent's understanding with the Unions had rested upon
a mistake of fact or law
6 Interestingly, in November 1984 restrictions were imposed on an em-
ployee dispatched for work as a result of a medical examination On
learning of this, Schell met with IBEW Local 46 Business Representative
Bill Schmalz. As a result of their discussions, Schmalz agreed that that
employee be laid off. Thus in that instance Respondent avoided problems
by utilizing the bargaining process as intended by the Act. Had it done so
sooner, it might not have incurred the effort and expense of the unfair
labor practice proceedings which it has undergone
LOCKHEED SHIPBUILDING CO.
understanding resulted from the collective -bargaining
process . There is no evidence that Respondent had been
compelled to undertake the obligations imposed on it as
a result of that understanding-that it had agreed to un-
dertake them other than freely and voluntarily. That
being the fact, it follows that the understanding "shall be
held sacred , and shall be enforced by courts of justice."
Id.
As noted above, with respect to the allegation in the
consolidated complaint prior to its amendment concern-
ing Branson, Respondent argues that , on its face, that al-
legation pertained to an event outside the limitations
period specified in Section 10(b) of the Act and that it
should have been dismissed for that reason. Only the
General Counsel 's issuance of a complaint regarding
Branson 's deprivation of permanent employment, argues
Respondent, and inferentially the Board's refusal to strike
that allegation, allowed Branson 's charge to survive until
the General Counsel belatedly-amended the complaint to
add dates that did fall within the 6-month period prior to
the time that the charge had been filed. Therefore, Re-
spondent argues, where no complaint should have issued
concerning the events of 5 March and where the allega-
tion involving Branson should have been dismissed, "the
Amendment should be stricken on equitable grounds."
Any analysis of this contention must start with the set-
tled proposition that Section 10(b) of the Act imposes "a
statute of limitations rather than a jurisdictional limita-
tion." NLRB v. A. E. Nettleton Co., 241 F.2d 130, 133
(2d Cir. 1957). Accord: Chicago Roll Forming Corp., 167
NLRB 961, 167 (1967), enfd. 418 F.2d 346 (7th Cir.
1969); Federal Management Co., 264 NLRB 107 (1982).
Accordingly, it cannot be said that the allegation prior to
the amendment , nor the underlying charge , had been ju-
risdictionally deficient, thereby depriving the Board of
power to consider deprivations of permanent employ-
ment that had occurred subsequent to the one on 5
March and within the 6-month period prior to the filing
of the charge.? Indeed , those subsequent deprivations of
employment were but prolongations of the initial depri-
vation of employment to Branson in March. See National
Licorice Co. v. NLRB, 309 U.S. 350, 369 (1940). Though
the latter occurred more than 6 months prior to the
filing of Branson's charge, the former occurred within
that period and clearly was encompassed by the wording
of his charge.
With judicial approval , the Board has permitted com-
plaints to be amended as late as the day(s) of hearing,
even when the facts underlying those amendments had
been available to the General Counsel during investiga-
tion of the underlying charge. Free-Flow,Packaging Corp.,
219 NLRB 925, 927-928 (1975), enfd. 566 F.2d 1124 (9th
Cir. 1978). Although delay in amending a complaint may
be justly criticized, there is no basis for applying a differ-
7 In point of fact, Branson's charge did not recite any date as being the
one on which Respondent had deprived him of employment. Instead, the
charge recited only, to the extent pertinent here, that "Within the last six
months, James 0 Branson was refused employment by the Employer
after undergoing the screening program described herein " Consequently,
there was no deficiency in the charge ; the deficiency arose as the result
of the choice of allegation made by the General Counsel at the time that
the consolidated complaint issued
23
ent rule to delay in this area than the one applied in
other areas under the Act, namely, "that the Board is not
required to place the consequences of its own delay,
even if inordinate, upon wronged employees to the bene-
fit of wrongdoing employers." NLRB v. J. H. Rutter-Rex
Mfg. Co., 396 U.S. 258, 264-265 (1969). More specifical-
ly, as the Court pointed out in Wallace Corp. v. NLRB,
323 U.S. 248 , 253 (1945):
The Board has power to fashion its procedure to
achieve the Act's purpose to protect employees
from unfair labor practices . We cannot, by incorpo-
rating the judicial concept of estoppel into its pro-
cedure render , the Board powerless to prevent an
obvious frustration of the Act's purposes.
Each refusal to hire an employee is a separate viola-
tion of the Act. As the United States Court of Appeals
for the Sixth Circuit pointed out in NLRB v. McCready
& Sons, 482 F.2d 872, 874 (6th Cir. 1973):
Each time an employer discriminatorily refuses to
hire a given employee , a separate , actionable unfair
labor practice occurs, and Section 10(b) does not
bar a complaint against an employer occurring
within the six-month period even if identical refus-
als to hire the same employee occurred outside the
six-month period.
Here, it was not the giving of the pulmonary function
test that violated the Act. Rather, as the Board held spe-
cifically , "The Respondent 's violation rests in its use of
the medical screening programs for the purpose of termi-
nating new employees or refusing to hire applicants for
employment." Beane admitted that Respondent had
relied on Dr . Stewart's restrictions, formulated as a result
of the pulmonary function test administered to Branson,
in denying permanent employment to Branson in July.
The amendment to complaint, which added , inter alia,
the July dates, issued almost 1-month prior to the sched-
uled hearing date,in this matter . So far as the record dis-
closes, Respondent sought no postponement of that date
in light -of that amendment. Not only were the events of
those later dates litigated , but Respondent was the party
that adduced most of the evidence regarding what had
occurred in July and September , as well as in January
1985.
Therefore, I conclude that Respondent's refusal to per-
manently employ Branson on and after 22 July,, McDon-
nell on and after 23 March, and Spurgeon on and after
20 September constituted a refusal to honor the terms of
its understanding with their collective-bargaining repre-
sentatives and, accordingly, violated Section 8(a)(5) and
(1) of the Act. Respondent, however , argues that even if
a violation of the Act has occurred, no reinstatement and
backpay remedy should be awarded to the Charging Par-
ties,-nor should a bargaining order issue . The latter con-
tention is predicated on the fact that following issuance
of the Board's Decision and Order, Respondent offered
to bargain about the effects of the pulmonary function
testing program and, further, by the time of the hearing
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this matter, the parties were in the process of arrang-
ing for negotiating dates.
In effect, Respondent, is, arguing that a bargaining
order is moot. However, it is settled that "A case is
moot when the issues presented are no longer `live' or
the parties lack a legally cognizable interest in the out-
come." Powell v. McCormack, 395 U.S. 486, 496 (1969).
A proceeding becomes moot when a party can establish
that "there is no reasonable expectation that the wrong
will be repeated." United States v. W. T. Grant Co., 345
U.S. 629, 633 (1953). Here, as found above and in the
Board's decision in the prior case, over a prolonged
period of time Respondent failed and refused to honor
the terms of an understanding that it had reached in col-
lective-bargaining because, as Judge Jenson found specif-
ically, "What the Respondent could not obtain through
collective-bargaining, it decided to implement unilateral-
ly." Against this background, there is nothing inherent in
a simple offer to bargain, even one accompanied by ef-
forts to arrange negotiating sessions , that creates a "rea-
sonable expectation" that a party who previously has re-
fused to honor an understanding reached as a result of
the negotiating process will not repeat that unlawful con-
duct in the future ,if it becomes dissatisfied with the un-
derstanding that it negotiates. "A Board Order imposes a
continuing obligation; and the Board is entitled to have
the resumption of the unfair practice barred by an en-
forcement decree." NLRB v. Mexia Textiles Mills, 339
U.S. 563, 567 (1950). In these circumstances, there is not
a sufficient basis for concluding that a bargaining order
remedy would serve no useful purpose.
Similarly, there is no basis for concluding that rein-
statement and backpay should be withheld as remedies
for the unfair labor practices committed by Respondent.
As already found by the Board and, as pointed out
above, Respondent agreed that it would not use the pul-
monary function testing results to deprive employees of
employment. Having undertaken that obligation, howev-
er misguided it later may have felt that it had been in
doing so, Respondent is required to honor its own com-
mitment ' and to abide by the terms of its own agreement.
This' is not a situation, such as those cited in Respond-
ent's brief, where a discriminatee suffers some form of
unanticipated infirmity that the respondent legimately is
unwilling or unable to countenance. Here, as pointed out
above, Respondent impliedly accepted the risk that those
results in some instances might require some effort, per-
haps a shifting of employees from job to job, to place the
tested employees in positions consonant with the restric-
tions imposed as a result of the testing." Explicitly, it
promised that they would not be deprived of permanent
employment as a result of the testing. Given that under-
standing, a reinstatement and backpay order satisfies the
status quo ante by requiring Respondent to do nothing
more than its own agreement obliged it to do.
B In fact, in its brief Respondent admits expressly that "it has in fact
hired employees with below normal scores on the pulmonary function
test "
CONCLUSIONS OF LAW
1. Lockheed Shipbuilding and Construction Company
is an employer within the meaning of Section 2(2) of the
Act engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers,
Local 46, AFL-CIO and International Brotherhood of
Boilermakers, Local 104, AFL-CIO each are labor orga-
nizations within the meaning of Section 2(5) of the Act
and, at all times material herein, have been the exclusive
bargaining representative of certain of the employees of
Lockheed Shipbuilding and Construction Company.
3. By unilaterally implementing and enforcing a pul-
monary function and audiometric medical screening pro-
gram for the purpose of denying employment to new
employees, and by denying employment to James O.
Branson, George O. McDonnell, and Clarence Spurgeon,
Lockheed Shipbuilding and Construction Company has
violated Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce-
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Lockheed Shipbuilding and Con-
struction Company has engaged in certain unfair labor
practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act. With regard
to the latter, it will offer employment to James O. Bran-
son, George O. McDonnell, and Clarence Spurgeon in
the first available job openings for which each is quali-
fied, and make each of them whole for any loss of pay
they may have suffered by reason of the unfair labor
practices committed. Loss of earnings for all individuals
shall be computed as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as set forth in Isis
Plumbing Co., 138 NLRB 716 (1962), and Florida Steel
Corp., 231 NLRB 651(1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
The Respondent, Lockheed Shipbuilding and Con-
struction Company, Seattle, Washington, its officers,
agents, successors, and assigns, shall
1'. Cease and desist from
(a) Refusing to bargain collectively regarding the im-
plementation and/or utilization of a medical screening
program for the purpose of terminating new employees
and/or refusing to hire applicants for employment.
(b) Discharging or refusing to hire any person for fail-
ure to pass a unilaterally imposed pulmonary function or
audiometric medical screening program.
9 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
LOCKHEED SHIPBUILDING CO.
(c) Interfering with , restraining , or coercing applicants
for employment or employees in the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively and in good faith
with International Brotherhood of Electrical Workers,
Local 46, AFL-CIO and International Brotherhood of
Boilermakers, Local 104, AFL-CIO concerning wages,
hours, and other terms and conditions of employment of
its employees and, 'if an understanding' is reached,
embody such understanding in a written agreement.
(b) Offer employment to James O. Branson, George O.
McDonnell, and Clarence. Spurgeon in the first available
job openings for which each is qualified, and make-each
of them whole for any loss of earnings he may have suf-
fered by reason of Respondent's unlawful conduct in the
manner set forth in the remedy section of the decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its shipyard in Seattle, Washington, copies
of the attached notice marked "Appendix."1 ° Copies of
the notice, on forms provided by the Regional Director
for Region 19, after being signed by the Respondent's
authorized representative, shall be posted by Lockheed
Shipbuilding and Construction Company immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
10 If 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 Nation-
al 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
25
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively regarding
the implementation and/or utilization of a medical
screening program for the purpose of terminating new
employees and/or refusing to hire applicants for employ-
ment and other terms and conditions of employment
with International Brotherhood of Electrical Workers,
Local 46, AFL-CIO and International Brotherhood of
Boilermakers , Local 104, AFL-CIO as the exclusive rep-
resentatives of certain of our employees within the Pacif-
ic Coast Master Agreement.
WE WILL NOT discharge or refuse to hire any person
for failing to pass a unilaterally imposed pulmonary func-
tion or audiometric medical screeningprogram.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively and in good
faith with International Brotherood of Electrical Work-
ers, Local 46, AFL-CIO and International Brotherhood
of Boilermakers, Local 104, AFL-CIO as the exclusive
representatives of certain of our employees encompassed
within the Pacific Coast Master Agreement, with respect
to wages, hours, and other terms and conditions of em-
ployment, including the utilization of a pulmonary func-
tion or audiometric medical screening program.
WE WILL offer employment' to Clarence Spurgeon,
George O. McDonnell, and James O. Branson, in the
first available job openings for which each is qualified,
and make each of them whole for any loss of earnings
each may have suffered because of our unlawful con-
duct, with interest.
LOCKHEED SHIPBUILDING AND CONSTRUC-
TION COMPANY