Marine Machine Works, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1979

243 N.L.R.B. 1098 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marine Machine Works, Inc. and International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO and Galveston Area Repairs Council and
Affiliated Companies, Party to the Contract. Case
23-CA-6974
August 6, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS,
PENEI.I.O, AND TRUESDALE
Upon a charge filed on March 20, 1978, by Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO (hereinafter called the Union).
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 23, issued
a complaint on April 19, 1978, against Marine Ma-
chine Works, Inc. (hereafter called Respondent). The
complaint alleges that Respondent engaged in certain
unfair labor practices in violation of Section 8(a)(5)
and (I) of the National Labor Relations Act, as
amended. On May I, 1978, Respondent filed an an-
swer to the complaint in which it admitted certain of
the allegations but denied the commission of any un-
fair labor practices.
On July 27. 1978,' Respondent, the General Coun-
sel, and the Union entered into a stipulation of facts
and filed a motion to transfer this proceeding directly
to the Board. All parties to the stipulation waived the
usual proceedings before an administrative law judge.
agreed that the charge, complaint, and answer, in ad-
dition to the stipulation of facts, would constitute the
entire record herein, and requested the Board to
make findings of fact and conclusions of law and to
issue the appropriate Decision and Order. On Sep-
tember , the Board issued an order which transferred
the proceeding to the Board, approved the stipulation
of facts, and set a date for the filing of briefs by the
parties. Thereafter, the General Counsel filed a brief.
The Board has considered the entire record herein
as stipulated by the parties, including the brief, and
makes the following:
FINDINGS OF FA(CT
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation with its principal offices
and place of business located in Galveston, Texas, is
engaged in the business of the erection, installing,
painting, and repairing and/or dismantling of ma-
chinery, including ship repair work and the manufac-
All dates mentioned herein are 1978, unless otherwise indicated.
ture and sale of winches and other miscellaneous
items. During the past calendar year, a representative
period, Respondent's Galveston, Texas, facility sold
goods and materials valued in excess of $50,000 to
firms located directly outside the State of Texas. Re-
spondent admits, and we find, that Respondent is,
and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of' the Act, and that it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
II. TIlE .ABOR ORGANIZATION INVOLVED
Respondent admits, and we find, that International
Association of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
111. HE AII.E(;EI) NFAIR LABOR PRA( II(ES
A. Stipulated Facts
Briefly stated, the stipulated facts indicate that the
Union. at all times material herein, acted as the exclu-
sive bargaining representative for the employees in
the following appropriate unit:
All machinists, the apprentices, and helpers, and
all leadmen who are directly over these employ-
ees, who are engaged in the erection, installing,
maintaining, and repairing and/or dismantling
of all machinery, including ship repair work, for
Respondent, excluding all other employees,
guards and supervisors as defined in the Act.
Prior to March 6, Respondent was a member of the
Galveston Area Repairs Council and Affiliated Com-
panies, hereinafter called the council, a multiem-
ployer association which engages in collective bar-
gaining with the Union on behalf of its members.
The Council and the Union were parties to a col-
lective-bargaining agreement which, by its terms, ex-
pired on January 24. Respondent, as a member of the
Council, was a party to, and bound by, the provisions
of this collective-bargaining agreement. On or about
January 18, the Union and Respondent, through the
Council, entered into negotiations for a new contract.
After an initial extension of the expiration date, the
collective-bargaining agreement expired on January
26 with the parties unable to reach agreement on a
new contract. The employees of the members of the
Council rejected the Council's proposals for a new
contract on January 26 and decided to engage in a
strike which commenced on the following day. There-
after, negotiations continued with the employees
243 NLRB No. 141
1098
MARINE. MA(CHINE WORKS. INC.
again rejecting collective-bargaining proposals by the
Council on February 20.
On or about March 6, while the Union's strike was
still in progress and while an impasse in negotiations
was in effect. Respondent withdrew its membership
from the Council and informed the Council by letter
that it was no longer authorized to negotiate with the
Union on behalf of Respondent. Respondent further
stated that it had decided to withdraw because nego-
tiations were at an impasse and new negotiating ses-
sions had not been scheduled. By letter dated on or
about March 6, Respondent furnished the Union a
copy of the withdrawal letter sent to the Council and
advised the Union that the Council was no longer
authorized to negotiate with the Union on behalf of
Respondent. Respondent, in the same letter, offered
to negotiate on an individual-employer basis with the
Union and requested alternative dates on which ne-
gotiations could be held.
On or about March 10, the employees of the mem-
bers of the Council ratified the council's collective-
bargaining agreement proposals and said agreement
became effective March 10, 1978, and expires March
10, 1981. Since on or about March 14, and continuing
to date, Respondent has refused and is now refusing
to observe and abide by theterms and conditions of
the collective-bargaining agreement executed by the
Union and the Council. In support of this position,
Respondent asserts that it has acted in accordance
with and in reliance upon judicial pronouncements
upholding the propriety of withdrawal from multiem-
ployer bargaining at impasse.2
B. Contentions of the Parties
The General Counsel contends that Respondent
violated Section 8(a)(5) and (I) of the Act by (I) uni-
laterally withdrawing from multiemployer bargaining
after negotiations had commenced and (2) refusing to
observe or abide by the terms and conditions of the
subsequently executed agreement between the Coun-
cil and the Union. The General Counsel further con-
tends that the existence of a bargaining impasse did
not constitute "unusual circumstances" under the Re-
tail Associates rule3 which would justify an employer's
withdrawal from multiemployer bargaining.
Respondent contends that it withdrew from the
Council on or about March 6 in a proper and timely
fashion and that it has not thereafter refused to bar-
gain collectively.
2 Fairmont Foods Company v. N L.R.B.. 471 F.2d 1170 (8th Cir 1972);
N.LR.B. v. Hi-Way Billboards, Inc.. 500 F.2d 181 (5th Cir. 1974): N L.R B.
v. Beck Engraving Co., 522 F.2d 475 (3d Cir. 1975): N.L.R.B v. Associated
Shower Door Co., Inc., e a., 512 F.2d 230 (9th Cir. 1975), cert. denied 423
U.S. 893.
Retail Associates, Inc., 120 NLRB 388 (1958).
C. .41 na/vsis'. and (onclusiont
It is undisputed that Respondent withdreA from
multiemployer bargaining after negotiations had
commenced, while a strike was in progress, and while
an impasse in negotiations was in effect. It is also
clear from the record evidence that Respondent has
refused to adhere to a subsequently negotiated collec-
tive-hargaining agreement between the Union and
the Council, but that Respondent has indicated a
readiness to negotiate with the Union on an individ-
ual-employer basis. In Retail ..ssociate, sttra. the
Board announced that, in order to insure the stability
of multiemployer bargaining units, it would regulate
the parties as to the time and manner that they could
withdraw from such a unit. Accordingly. the Board
held that, once negotiations have begun, withdrawal
from a multiemployer bargaining unit is ineffective
unless by "mutual consent" or unless "unusual cir-
cumstances" are present.
The General Counsel cites Hi-Wa i/ Bil/boardv4 tor
the proposition that an impasse is not an unusual cir-
cumstance which would excuse the withdrawal of an
employer from multiemployer bargaining once bar-
gaining has commenced. As already noted. Respon-
dent relies on several circuit court opinions which it
asserts have rejected the Board's view that an impasse
is comparable to a "hiatus in negotiations" and does
not constitute such an unusual circumstance as to jus-
tifn an emploer's unilateral withdrawal from group
bargaining.
The Board has recently reconsidered its rules re-
garding the effect of impasse on the withdrawal rights
of members of multiemployer groups in light of the
court decisions relied upon by Respondent. For the
reasons fully set forth in Charles D. Bonanno Linen
Service, Inc.,5 the Board has reaffirmed its conclusion
that an employer-member of a multiemployer bar-
gaining unit is not privileged to unilaterally withdraw
upon the occurrence of impasse. Accordingly, we
conclude that Respondent's unilateral withdrawal
from the Council on or about March 6 and its con-
tinuing refusal to adhere to the terms and conditions
of the subsequently negotiated contract between the
Union and the Council constituted violations of Sec-
tion 8(a)(5) and (1) of the Act,
IV. HE EFFECT OF HE UNFAIR LABOR PRACIICS
UPON COMMERCE
The activities of Respondent set forth in section
Ill, above, occurring in connection wiih its operations
described in section 1, above, have a close. intimate,
206 NI.RB 22 (1973). enforcement denied 500 F.2d 8I1 (5th Cir. 1974).
'243 NI.RB 1093 (1979).
1099
DI)('ISIONS ()F NA'IIONAI. I.ABOR RI!I.A I IONS BOARI)
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. 1Il/ RI Ml )Y
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
We have found that Respondent violated Section
8(a)(5) and (I) of the Act by its untimely withdrawal
from the multiemployer bargaining unit and by refus-
ing to adhere to the collective-bargaining agreement
effective from March 10, 1978, to March 10, 1981.
between the Council and the Union. In order to dissi-
pate the effect of these unfair labor practices, we shall
order Respondent. upon request, to sign said agree-
ment and comply with the terms and conditions
thereof both retroactively and for the balance of its
term. We shall further order that Respondent be re-
quired to make its employees whole for any loss of
earnings suffered as a result of its failure to execute
the collective-bargaining agreement of March 10,
1978. Interest shall be computed thereon as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).6 Additionally, Respondent shall be directed to
make payments into the various benefit funds on be-
half of its employees if such contributions are re-
quired under the March 10, 1978, collective-bargain-
ing agreement.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLtUSIONS ()F LAW
I. Marine Machine Works, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Galveston Area Repairs Council and Affiliated
Companies is, and at all times material herein has
been, an association of employers that exists and has
existed for the purpose of representing employer-
members in multiemployer bargaining with the
Union.
3. Respondent, at all times material herein, has
been a member of the Council, and Respondent's ef-
fort on or about March 6 to withdraw its authority
from the Council to bargain on its behalf, following
commencement of negotiations for a new contract,
was ineffective in relieving it of its obligation to bar-
gain collectively with the Union through the Council
I See. generally. Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
and to execute the collective-bargaining agreement
consummated between the Council and the Union.
4. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
5. All machinists, the apprentices, and helpers. and
all leadmen who are directly over these employees.
who are engaged in the erection, installing, maintain-
ing, and repairing and/or dismantling of all machin-
ery. including ship repair work, for Respondent. ex-
cluding all other employees, guards, and supervisors
as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
6. The Union has been at all times material herein.
and now is, the exclusive representative of all employ-
ees in the aforesaid appropriate unit or the purpose
of collective bargaining within the meaning of Section
9(a) of the Act.
7. By its untimely efibrt to withdraw from the
Council and by its refusal to accept, be bound by, and
execute the collective-bargaining agreement con-
cluded between the Union and the Council. Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of' the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent. Ma-
rine Machine Works. Inc.. Galveston Texas. its ofli-
cers, agents. successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
tional Association of Machinists and Aerospace
Workers, AFL CIO, as the exclusive bargaining rep-
resentative of its employees in the unit found appro-
priate herein.
(b) Withdrawing its membership from said mul-
tiemployer bargaining unit except upon adequate
written notice given prior to the onset of negotiations.
or except at such other time it may lawfully with-
draw.
(c) Refusing to sign and give effect to the collec-
tive-bargaining agreement entered into between Gal-
veston Area Repairs Council and Affiliated Compa-
nies and the Union on or about March 10. 1978.
(d) In any like or related manner interfering with.
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
I1100
MARINI MAC(HINI. W()RKS. INC.
(a) Upon request of the Union, execute the collec-
tive-bargaining agreement agreed upon by the Union
and the Council effective March 10. 1978. and com-
ply with the terms and conditions thereof both retro-
actively and for the balance of its term. and make
such payments to the various benefit funds as may he
prescribed in said agreement as set forth in the sec-
tion herein entitled "The Remedy."
(b) Make its employees whole for any loss of wages
and benefits they may have suffered as a result of its
failure to comply with the terms and conditions of the
above-described agreement in the manner set forth in
the section herein entitled "The Remedy."
(c) 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, if any, due under the terms of this Order.
(d) Post at its plant in Galveston, Texas, copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 23. after being duly signed by Respon-
dent's authorized 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 Respondent to insure that said
notices are not altered, defaced. or covered by any
other material.
(e) Notify the Regional Director for Region 23. in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herein.
I 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
After a hearing at which all parties had the opportu-
nity to present their evidence, the National Labor Re-
lations Board has found that we violated the National
Labor Relations Act, as amended, and has ordered us
to post this notice. We intend to carry out the order of
the Board.
The Act gives all employees these rights:
To engage in self-organization
To form. join. or help unions
To bargain as a group through a representla-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do an, and all of these thinlgs.
WE WILL1. NOI refuse to bargain collectively
with International Association of Machinists and
Aerospace Workers, AFL-CIO, as the eclusive
representative of our employees in the tollowing
appropriate unit:
All machinists. the apprentices. and helpers.
and all leadmen who are directl oer these
employees, who are engaged in the erection.
installing, maintaining. and repairing aind'or
dismantling of all machinery. including ship
repair work, for Marine Machine Works. Inc..
excluding all other employees. guards and su-
pervisors as defined in the Act.
WE WILL. NOI withdraw from multiemplo,er
bargaining except upon adequate written notice
given prior to the onset of negotiations. or except
at such other time we may lawfull i thdraw.
WE Wll.L NO! refuse to sign and give effect to
the collective-bargaining agreement entered into
between Galveston Area Repairs Council and
Affiliated Companies and the Union on or about
March 10. 1978.
WE WILL NOI in an) like or related manner
interfere with, restrain. or coerce our emplosees
in the exercise of the rights guaranteed them bh
Section 7 of the Act.
WE WillL. upon request of the Union. execute
the collective-bargaining agreement agreed upon
by the Union and the Galveston Area Repairs
Council and Affiliated Companies effective
March 10, 1978, and comply with the terms and
conditions thereof both retroactively and for the
balance of its term, and make such payments to
the various benefit funds as may be prescribed in
said agreement.
WE WILL reimburse our employees ftr any loss
of wages and benefits they may have suffered as
a result of our failure to comply with the terms
and conditions of the above-described agree-
ment, together with interest, as provided by the
Board's Order.
MARINE MACItNE WORKS. IN(.
1101