Ocean Systems, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1977

227 N.L.R.B. 1593 (N.L.R.B. 1977)

OCEAN SYSTEMS, INC. 1593
Ocean Systems , Inc. and Professional Divers Local
1012 of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Case 15-CA-6085
January 27, 1977
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND
WALTHER
Did the Respondent violate Section 8(aX5) and (1) of the
National Labor Relations Act by refusing on and after
April 21, 1976, to bargain collectively with the Union as the
exclusive bargaining representative of its employees in the
unit described below?
Upon the entire record, in the case,' my consideration of
the posthearing briefs filed by General Counsel and the
Respondent, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT AND CONCLUSIONS
On October 18, 1976, Administrative Law Judge
Platonia P. Kirkwood issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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, Ocean Systems,
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.
DECISION
STATEMENT OF THE CASE
PLATONIA P. KIRKWOOD , Administrative Law Judge:
This case was heard at New Orleans , Louisiana, on July 22,
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, against
Ocean Systems , Inc. (herein Respondent), and a complaint
which issued on June 4 , 1976. The case presents the
following question:
227 NLRB No. 233
I. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation doing business in
the State of Louisiana where it provides diving services
from its Morgan City, Louisiana, location. During the past
12 months, a representative period, Respondent, in the
course and conduct of its business, received gross revenues
in excess of $50,000 for performing services for companies
engaged in interstate commerce, each of which during the
same period purchased and received goods and materials
valued in excess of $50,000 directly from points outside the
State of Louisiana.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. I further find that its business operations are of
sufficient magnitude to satisfy 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-27,223 NLRB 857 (1976), and
the credible evidence additionally adduced in this proceed-
ing establish 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
I Respondent 's motion to correct record, received by me August 25, 1976,
is hereby granted,
Underlying representation proceedings in Cases 15-RC-5375 and 15-
AC-27 (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 terms "record" is defined in Secs. 102.68
and 102.69(g) of the Board 's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems, Inc., 166 NLRB 938 (1967), 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.Supp. 573
(D.C, Va. 1967); KFC National Management Company, 204 NLRB 630
(1973), and Sec. 9(d) of the NLRB.
2 Respondent disputed the status of the Union as a labor organization
partially on grounds considered and rejected by the Board in the underlying
amendment to certification proceeding . See 223 NLRB 857, supra. As the
Board's determination 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 wou:d 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 proceedings. See
Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and
Regulations of the Board in Secs . 102.67(1) and 102.69(c).
In light of the Respondent 's denial of the current status of the Union as a
labor organization, I did permit Respondent , however, 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, supra.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. BACKGROUND CHRONOLOGY OF RELEVANT EVENTS
On July 11, 1974, International Association of Profes-
sional Divers (herein IAPD), affiliated with District 2,
MEBA, AFL-CIO, was certified as the bargaining repre-
sentative of an appropriate unit of divers employed by the
Company (Case 15-RC-5375).3
Following the issuance of the certificate of representative,
the attorney for IAPD and the attorney for the Company
met and, according to letters exchanged by the parties
between March 25 and April 7, 1975, the Company orally
agreed to recognize IAPD as the collective-bargaining
agent for the above unit for a period of 1 year from
February 10, 1975, and to consider the recognition agree-
ment as remaining in effect for that period unless replaced
by a collective-bargaining agreement.
On July 30, 1975, Paul Woodhall, the president of
Professional Divers Local Union No. 1012,4 wrote to Ray
Curtis, area manager of the Company, requesting a current
list of names and addresses of all unit employees of the
Company. Curtis replied by letter dated August 13, 1975,
asking for a clarification of the letterhead used by Wood-
hall in his July 30 letter. The information requested by
Woodhall was not supplied.
On September 10, 1975, Professional Divers Local Union
No. 1012, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (the Union herein) filed a petition to
amend the certification in Case 15-RC-5375 so as to
substitute its name for that of IAPD. The Company
opposed that petition. After a hearing, the Board, on April
12, 1976, issued its decision granting the petition and its
Order directing that the certification issued in Case 15-RC-
5375 be amended by substituting the name of the Union for
that of IAPD. See 223 NLRB 857, supra.
On April 15, 1976, Woodhall wrote to Curtis requesting a
negotiation meeting with the Company and suggesting a
series of specific alternate dates for such meeting. By letter
dated April 22, 1976, Curtis responded to Woodhall's
request to bargain as follows:
Please be advised that we do not believe that the
recently amended certification issued by the National
Labor Relations Board is valid. Further, we call your
attention to the fact that well over one year has gone by
since the original certification dated July 11, 1974, and
we do not believe that you represent a majority of our
employees in any unit which is appropriate for purposes
of collective bargaining.
3 The detailed unit description was
All regular divers and tenders at the Company's Morgan City,
Louisiana facility, excluding all other employees, office clerical employ-
ees, salesmen , professional employees, guards, watchmen, and supervi-
sors as defined in the Act
The election was conducted by mail ballot The tally of ballots revealed
that, of 29 eligible voters, 23 cast votes for the Petitioner, I against Petitioner,
and 2 cast challenged ballots No objections were filed to that election
4 Woodhall is currently also the president of the Union
5 See, for example, United States Gypsum Company, 143 NLRB 1122, 1126
fn 6 (1963), Strong Roofing and Insulating Co, 152 N LRB 9 (1965), en fd. 386
F 2d 929 (C A 9, 1967), affd. on other grounds 393 U S 357 (1969)
I am cognizant of the existence of some court decisions expressing a view
We therefore decline your request that we meet with
you for the purposes of collective bargaining.
On April 29, 1976, as noted above , the Union filed the
charge initiating this proceeding.
IV. THE CONTENTIONS OF THE PARTIES AND THEIR
MERIT
The complaint alleges that Respondent has refused to
bargain with the Union as the duly designated representa-
tive of Respondent's employees in the unit defined by the
Board's 1974 certification on and after April 22, 1976.
Although Respondent concedes that it has not bargained
with the Union and has refused to do so as alleged, it claims
that, nonetheless, no unfair labor practice liability may
properly be assessed against it. It rests this claim on the
following contentions, each of which I consider seriatim.
1. The charge on which the complaint is based is time-
barred under the provisions of Section 10(b) of the Act
inasmuch as the Union had a cause of action against
Respondent under the provisions of Section 8(a)(5) of the Act
when, on August 13, 1975 - more is 6 months before the filing
of the instant charge - Respondent failed to provide the Union
with the information it had then requested Respondent
argues here that, although the instant charge is predicated
on the Respondent's refusal of a bargaining request made
by the Union within the 10(b) period, Respondent's last
refusal is but a "continuation" of the refusal-to-bargain
conduct it committed outside the 10(b) period.
Respondent's argument on this point is similar to
arguments , previously considered in a number of Board
cases ruling on similarly postured 10(b) contentions. In
each of those cases, the Board has consistently rejected
such arguments on the theory that each of several succes-
sive refusals to bargain gives rise to a separate independent
cause of action.5 I conclude, accordingly, that, even though
Respondent may have engaged in refusal-to-bargain con-
duct outside the 10(b) period, its refusal to recognize and
bargain with the Union on April 22, 1976 - but 7 days
before the charge initiating this proceeding - provided the
basis for an independent cause of action on which this
complaint properly rests .6
2. The amendment of certification granted by the Board's
Decision and Order, 223 NLRB 857, supra is null and void
and otherwise without legal effect.
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-
contrary to that taken by the Board in applying its concept of Sec 10(b) in
cases involving successive refusals 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), denying enforcement of 195 NLRB 28 (1972),
cited by Respondent in its brief, is one such case Decisions by other courts
similarly holding are cited by the Sixth Circuit Court in its opinion in
McCready Assuming those court decisions provide support for the Respon-
dent'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 Prudential Insurance Company of America, 119
NLRB 768 (1957), Ranco, Inc, 109 NLRB 998, 1009, fn. 8 (1954), Lenz
Company, 153 NLRB 1399(1965).
6 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
OCEAN SYSTEMS, INC. 1595
tion and amendment to certification proceedings as correct
and final.?
3. Respondent claims that when it refused to bargain with
the Union on April 22, 1976, it entertained a good faith doubt
about the Union's continuing status as a majority representa-
tive on that date.
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 expiration
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 maybe 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
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
Respondent's evidence of rebuttal of the General Coun-
sel's prima facie case was limited to testimony by Area
Manager Ray Curtis concerning his reasons for stating in
his letter of April 22, 1976, to the Union that the
Respondent did not believe that the Union enjoyed the
support of a majority of the employees in the unit and that
he was therefore refusing to meet with the Union for the
purposes of bargaining.9
In his testimony on direct, Curtis gave the following
reasons for his belief that the Union did not have a majority
on April 22, 1976:
r 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,
without reopening, to decide that its original determinations were wrong. But
the Board's power and discretion to take such action do 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
Well it is based on the fact that several of the people
that were involved in the election of 1974, are at this
time no longer with the Company, plus the fact that I
have almost doubled our personnel , number of person-
nel, and some of the people have talked to me and
stated that they did not want to work for a union and
some have merely stated that if they had to have
another election that they would not vote for a union.
So I felt that at this time they did not have ma only, or
that they did not represent a majority of my employees.
On cross-examination , however, Curtis admitted his
awareness that, at least since January 1976 and up to the
date of the hearing (July 22), "most" of the employees were
members of the Umon.
In light of Curtis' latter-described admission, I have no
difficulty in finding Respondent's refusal to bargain with
the Union was not predicated on any real belief that the
Umon did not continue to enjoy the majority status of the
unit employees when Respondent refused on April 22,
1976, to honor the Union' s bargaining request. I would,
however, arrive at the conclusion that Respondent's refusal
to bargain was unlawful even absent that admission.
The sole considerations advanced by Curtis as those
impelling his asserted doubt of the Union's majority status
were that an expansion in the unit of about 40 percent and a
turnover in personnel had both taken place, since the date
of the Board's certification election ; that he had heard some
expression of dissatisfaction with the Union by an undis-
closed number of employees; and that there had been a 2-
year lapse of time since the Board certification election. It is
clear under established precedent that such considerations
do not provide, either severally or jointly, sufficient basis
for overcoming the presumption of the Union's continuing
enjoyment of majority support among the unit employees.10
I so find.
CONCLUSIONS
Based on all the foregoing, I find and conclude that, at all
times here relevant, the Union has been the duly designated
representative of a majority of the employees composing
the following appropriate unit:
All regular divers and tenders at Employer's Morgan
City, Louisiana, facility; excluding all other employees,
office clerical employees, the salesmen , professional
employees, guards, watchmen and supervisors as de-
fined in the Act.
I further find and conclude that by refusing to bargain
with the Union on April 22, 1976, Respondent violated
Secion 8(a)(5) and (1) of the Act.
these principles and their applicability as a means of testing the validity of
the contention here being considered.
9 Although the letter seems to question the appropriateness of the
certified unit, it is clear, and I find, that the unit, as defined in the Board's
certification, remains the unit appropriate for the purposes of collective
bargaining No evidence to the contrary was adduced
10 See, e g, Stoner Rubber Company, Inc, 123 NLRB 1440 (1959), Nu-
Southern Dyeing & Finishing: Inc, and Henderson Combining Co, 179 NLRB
573 (1969); Emerson Manufacturing Company, 200 NLRB 148 (1972), King
Radio Corporation, 208 NLRB 578 (1974), Terrell Machine Co, supra. See
also J. H Rutter-Rex Manufacturing Co, 209 NLRB 6 (1974).
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices proscribed by Section 8(aX5) 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 conclusion and
the entire record , and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 11
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 custom-
arily posted . Reasonable 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 Region 15 in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
I 1 In the event no exceptions are filed as provided by Sec . 102.46 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."
Respondent , Ocean Systems , Inc., Morgan City, Louisi-
ana, 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 regular divers and tenders at the Company's
Morgan City, Louisiana facility, excluding all other
employees , office clerical employees , salesmen , profes-
sional employees , guards watchmen and supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the 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 operation at Morgan City,
Louisiana , copies of the attached notice marked "Appen-
dix." 12 Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly signed by
the Respondent 's representative , shall be posted by it
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 regular divers and tenders at the Company's
Morgan City, Louisiana, facility, excluding all
other employees , office clerical employees , sales-
men, professional employees , guards , watchmen,
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.
OCEAN SYSTEMS, INC.