Atkinson Dredging Co.

National Labor Relations Board - Board Decisions

Apr 15, 1963

141 N.L.R.B. 1316 (N.L.R.B. 1963)

1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Adeline Baptiste immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her seniority
or other rights and privileges and make her whole for any loss of pay suffered
as a result of the discrimination against her.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
SENCO MANUFACTURING CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing and must not be altered, defaced, or covered by any other material.
Employees may communicate with the Board's Regional Office, Boston Five
Cents Savings Bank Building, 24 School Street, Boston 8, Massachusetts, Telephone
No. Lafayette 3-8100, if they have any questions concerning this notice or com-
pliance with its provisions.
Atkinson Dredging Company and International Union of Oper-
ating Engineers, Local Union 25, Marine Division , AFL-CIO.
Case No. 5-C-4-2254. April 15, 1963
DECISION AND ORDER
On February 8, 1963, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that,
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in the present case was issued against the Respondent, Atkinson
Dredging Company, on the basis of charges filed by International Union of Operat-
141 NLRB No. 117.
ATKINSON DREDGING COMPANY 1317
ing Engineers, Local Union 25, Marine Division, AFL-CIO, herein called the Union.'
The complaint alleges that: (1) in an election by secret ballot conducted on May
4, 1961, in Atkinson Dredging Company, Case No. 5-RC-3364,2 the Union was
designated as bargaining representative by a majority of the Respondent's employees
in an appropriate bargaining unit; (2) since that date the Union has been (and was
on July 16, 1962, formally certified by the Board to be) the exclusive bargaining
representative of all the employees in said appropriate unit for the purposes of collec-
tive bargaining, and (3) on and since July 18, 1962, the Respondent has committed
unfair labor practices affecting commerce within the meaning of Sections 8(a)(5)
and (1) and (2) (6) and (7) of the Act, as amended (29 U.S.C. Sec. 151, et seq.),
by refusing to bargain with the Union as exclusive bargaining representative of the
employees in the aforesaid appropriate bargaining unit.
In its answer, the Respondent denies committing the unfair labor practices alleged
in the complaint. Although the Respondent admits "that it has not bargained collec-
tively with the Union, . [it] states that it is justified in not bargaining" because
(1) "the Union sought to bargain as the exclusive representative of employees other
than those in the [appropriate] unit" for which the Board had certified it to be the
exclusive bargaining representative; and (2) the Board's certification was invalid
for a variety of reasons which were presented to the Board by the Respondent in
Case No. 5-RC-3364.
Pursuant to notice, a hearing was held at Norfolk, Virginia, on December 13, 1962,
before Trial Examiner William F. Scharnikow. The General Counsel, the Respond-
ent, and the Union appeared by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce competent and
relevant evidence bearing upon the issues. During the brief hearing, I agreed with
counsel that I would take notice of the entire record in Case No. 5-RC-3364 in-
cluding the transcript of the testimony taken therein. In addition, I received evidence
bearing upon the question of whether there had been a request by the Union and a
refusal to bargain on the part of the Respondent On objection of the General
Counsel and the Union, however, I rejected an offer by counsel for the Respondent
to prove certain matters which he conceded had already been presented by the Re-
spondent to the Board and thus "litigated" in Case No. 5-RC-3364. Since the close
of the hearing, I have received and considered a brief submitted by counsel for the
Respondent.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, Atkinson Dredging Company, a Florida corporation with its prin-
cipal place of business in Norfolk, Virginia, is engaged in the business of marine
construction and land reclamation between the Eastern Shore of Virginia and Key
West, Florida. During a representative 12- month period, the Respondent received
more than $50,000 in payment of services from the United States Army Corps of
Engineers in maintaining navigable waterways and inland waterways within States
of the United States other than the State of Virginia.
I find that the Respondent is engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act for the Board to entertain
jurisdiction in the present case.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local Union 25, Marine Division,
AFL-CIO , is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Board 's certification and the Union 's status as exclusive bargaining
representative of an appropriate unit of the Respondent 's employees
In the present unfair labor practice proceeding , the General Counsel and the
Union rely upon , and the Respondent disputes , the validity of the Board's certifica-
1 The charge was filed on September 14, 1962, and served on the Respondent on Sept em-
her 17, 1962 The complaint was issued and served on October 17, 1962.
2 None of the proceedings in Case No. 5-RC-3364 have been published in the printed
volumes of the Board's Decisions and Orders.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the Union as exclusive bargaining representative in the earlier representation
case (Case No 5-RC-3364) to which both the complaint and the answer refer. In
that proceeding, the Board, acting on a petition filed by the Union on January 19,
1961, followed the procedures prescribed by Section 9(c) of the Act and its own
regulations. The Respondent, as employer, participated fully in every stage of the
proceeding, and raised objections and contested the findings. acts, and conclusions of
the Board only in connection with, and following the usual representation election
held by the Regional Director on May 4, 1961.
In that election, 35 ballots were cast of which 5 were for and 8 were against
representation by the Union. The remaining 22 ballots were challenged because
they were cast by persons whose names were not on the eligibility list of the employees
in the unit which the Respondent had submitted. Pursuant to an order of the
Board, and in accordance with the Regional Director's recommendations, a hearing
was held on the challenged ballots on September 19 and 26, 1961, with the Re-
spondent participating On October 27, 1961, the hearing officer filed his report,
discussing the evidence, detailing his findings thereon. and recommending that 8
of the challenges be sustained, but that the remaining 14 challenges be overruled
and the ballots counted.
On November 24. 1961, the Respondent filed its exceptions to the hearing officer's
report, specifically objecting to his recommendations that 11 of the challenged
ballots be counted. It was the Respondent's contention that 2 of these 11 men
had been injured and had not returned to work; that 2 more were "not employed
on April 1, 1961, the eligibility date, nor were they employed on the date of the
election": and that the other 7 "had been laid off prior to the election with no
reasonable expectation of recall " The Respondent also excepted to the hearing
officer's recommendation that the challenge to the ballot of one of the men (Floyd
Hewitt) be sustained
In a Supplemental Decision and Direction issued by it on April 11, 1962, the
Board sustained the Respondent's exception with respect to the ballot of Floyd
Hewitt. overruled the challenge to his ballot, and directed that it be counted The
Board, however, overruled the Respondent's other exceptions, adopted the hearing
officer's recommendations except with respect to Hewitt, and directed the Regional
Director to open and count Hewitt's ballot and the 14 other ballots which the hearing
officer recommended be counted. Upon subsequent compliance with this direction,
the Regional Director issued a revised tally of ballots on April 19, 1962, showing
that, of 28 valid votes cast in the election, 15 were cast for representation for the
Union and 10 were cast against such representation.
On April 20, 1962, the Respondent filed with the Regional Director its "Objections
to the Conduct of the Election and Conduct Affecting the Result of the Election and
the Counting of the Challenged Ballots " In these objections, the Respondent
asserted that: (1) the Board's Supplemental Decision and Direction was "arbitrary
and inconsistent" in certain respects; (2) the Regional Director, in complying with
the Board's direction to open and count the particular 15 challenged ballots, im-
properly rejected the Respondent's request "to segregate the counting of the chal-
lenged ballots in order to preserve the Company's position that the challenges did not
all fall within the same category . "; and (3) the Board should consider "indica-
tion[s] of impropriety which [have] recently come to light which could have
affected the results of the election": (a) that one of the witnesses at the hearing
on September 26, 1961. was heard (by a vice president of the Respondent) asking
the Union's representative at the close of that hearing, "Where is my money?" and
(b) that the Union solicited the votes of, entertained, and transported former
employees to the election.
On May 8, 1962, the Regional Director issued his report on these objections and
recommended that they be overruled. On May 16, 1962, the Respondent filed with
the Board its exceptions to the Regional Director's report, relying upon the same
grounds it had presented to the Regional Director.
On July 16, 1962. the Board in a "Second Supplemental Decision and Certification
of Representatives," considered and rejected each of the Respondent's objections
and also its exceptions to the Regional Director's report, and adopted the Regional
Director's report. Concluding that the Union had received a majority of the valid
ballots cast in the election, the Board thereupon certified the Union as the exclusive
representative of all the Respondent's employees in the unit found appropriate.
By its answer to the complaint in the present unfair labor practice proceeding and
by an offer of proof submitted to the Trial Examiner at the hearing herein, the Re-
spondent now attempts to relitigate the matters raised by it and disposed of by the
Board in the representation case. Thus, in its answer to the complaint, the Re-
spondent asserts that the Board's certification of the Union "was in violation of the
requirements of the Administrative Procedure Act ... and Rules and Regulations
ATKINSON DREDGING COMPANY 1319
of the Board . . ." and that "The Exceptions to Report on Objections of Atkinson
Dredging Company to the Conduct of the Election and Conduct Affecting the Result
of the Election and the Counting of Challenged Ballots, filed on May 16, 1962, with
the Board, and Objections filed by the respondent on April 20, 1962, and the Ex-
ceptions of the respondent to the Hearing Officer's Report on Challenges filed on
November 24, 1962, set forth the respondent's position as to the arbitrary and in-
consistent nature of the basis for the certification as well as the failure of the Board
to adequately state with sufficient clarity the reasons to support the conclusions on
which the certification was based " Consistently, its offer of proof which I rejected
at the hearing was admittedly limited to these matters which had already been "liti-
gated" and decided by the Board in the representation case.
It is settled that issues which have thus been raised and determined in a prior
representation proceeding may not be relitigated in a complaint proceeding and that
as a Trial Examiner of the Board I am bound by the Board's findings, conclusions,
and certification in the representation proceeding 3 Therefore, in accordance with
the Board's findings, conclusions, and certification in Case No. 5-RC-3364, I find
and conclude:
(1) That, on and since May 4, 1961, the Union has been designated and selected
by a majority of the employees of the Respondent in the following appropriate unit
for the purposes of collective bargaining
All employees of the Respondent engaged in dredging operations, with head-
quarters at Norfolk, Virginia, including maintenance employees, shoremen,
cooks, mess boys, and janitors, but excluding clerical employees, professional
employees, guards, the superintendent, assistant superintendent, captains, deck
captains, chief engineers, dump foremen, levermen. mates, and all other supervi-
sors as defined in the Act; and
(2) That, pursuant to Section 9(a) of the Act, the Union has been at all times
since May 4, 1961, the exclusive representative of all employees in such unit for the
purposes of collective bargaining with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
B. The Respondent's refusal to bargain with the Union
On July 18, 1962, 2 days after the Union was certified, the Union mailed a letter
addressed "To all employees of the Atkinson Dredge Company," advising them that
the Board had certified the Union "as the exclusive Bargaining Agent for the Atkinson
Dredge Company"; that the Respondent was thereby "compelled to sit down and bar-
gain in good faith" with the Union; that the Union would "negotiate for substantial
improvements in wages, hours, welfare, and working conditions"; and that a letter
had been sent to the Respondent "requesting the opening of negotiations."
On the same day, the Union mailed a letter to the Respondent, referring to the
Union's certification "as the exclusive representative of the dredging employees of
your company for the purpose of collective bargaining," and requesting "that a
meeting be set up at the earliest possible date for the purpose of negotiating a labor
contract covering wages, hours and conditions of employment for the aforementioned
employees." Receiving no answer to this letter, the Union sent a telegram to the
Respondent on July 30, 1962, referring to its letter and advising the Respondent that
"failure to recognize the National Labor Relations Board certifications and meeting
with us immediately will leave [the Union] no alternative but to take appropriate
action."
On July 30, 1962, the date of the Union's telegram, Edgar Tugman, the Respond-
ent's labor relations consultant, telephoned the Union and asked Allen Francis,
the Union's vice president, to "forward a draft of proposal to Atkinson Dredging
Company in order that that proposal might be considered by Atkinson Dredging
Company."
Accordingly, on July 31, the Union wrote to the Respondent enclosing a "copy of
agreement presently in effect in the Southern Area" and requested "an early meet-
ing to discuss this most important matter." The "copy of the agreement" thus
a Pittsburgh Plate Glass Company v. N.L.R B., 313 U.S. 146, 157, 158; NLRB. v
American Steel Buck Corp, 227 F. 2d 927, 929 (C A 2) ; N.L R B. v. Botany Worsted
Mills, 133 F 2d 876, 882 (C.A. 3) ; NL.R.B. v. West Kentucky Coal Company, 152 F 2d
198, 200-201 ('C.A. 6), cert. denied 328 U.S. 866; Quaker City Life Insurance Company,
138 NLRB 61; Air Control Products of St. Petersburg, Inc, 139 NLRB 413; Esquire,
Inc. (Coronet Instructional Films Division ), 109 NLRB 530 , 539, enfd 222 F 2d 255
(C.A. 7).
708-006-64-vol. 141-85
1320 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
sent to the Respondent by the Union was a mimeographed blank form and purported
to apply to certain "occupational classifications" including, among others, levermen,
mates, dump foremen, and launchman captains, which had been excluded from the
appropriate unit found by the Board.
By letter to the Union, dated August 8, 1962, the Respondent's president acknowl-
edged receipt of the Union's letter of July 31, and stated that "I am taking this whole
matter up with my Attorneys."
Hearing nothing further from the Respondent, the Union protested "the protracted
delay" in a letter mailed on August 15, demanded that the Respondent "confer with
us immediately," and requested advice when such a meeting could be held. But
the Respondent never answered this letter and on September 17, 1962, the Union
filed the refusal-to-bargain charges upon which the present complaint was issued
on October 17, 1962.
From the evidence and my discussions with counsel on the record of the hearing
in the present case, it appears clear that the Respondent never called the Union's
attention to the inclusion in the Union's sample form of contract of categories of
employees and supervisors which the Board had excluded from the appropriate bar-
gaining unit and that the Respondent never gave the Union this, or any other reason,
as its reason for not bargaining with the Union. However, in a letter mailed to
the Respondent on October 2, 1962, the Union's attorney informed the Respondent
that he understood that "in discusisng this matter with the National Labor Relations
Board representative, [a representative of the Respondent had] commented that the
Union may be requesting the Company to bargain for employees other than those
for which the Union was certified." In view of this information, the Union's attorney
then notified the Respondent in its letter of October 2, 1962, that:
At no time, has the Union ever made demand upon you to bargain for any
employees other than those for which it has been certified, nor have you, at
any time, ever indicated to the Union that you had any question about what
employees it was endeavoring to bargain for. If there was any doubt in your
mind and if you intended to bargain in good faith, you certainly would have
made inquiry to the Union about this. Nevertheless, so that there clearly can
be no misunderstanding, we are expressly writing to you to make it clear that
the only employees for which the Union is requesting that you enter into good
faith bargaining negotiations are the employees included in the unit for which
the Union has been certified.
If you intend to bargain in good faith, it is requested that you notify this
office, within two days after receipt of this letter, that you are ready to meet
with the Union for the purpose of collective bargaining and we can arrange
for a convenient time and place. If we do not hear from you within this time,
we will take this to mean that you do not intend to bargain in good faith and
we will request the National Labor Relations Board to proceed promptly with
the charge filed against you by the Union.
But again there was no response from the Respondent and, as has been noted, the
present complaint was issued by the Board's Regional Director on October 17, 1962.
Upon the foregoing facts, it is clear that the Respondent refused to bargain with
the Union although the Union requested it to do so. Aside from the validity of
the Board's certification of the Union, the only matter in dispute is whether the
Union's bargaining request was limited to the certified appropriate unit (as the
General Counsel and the Union contend it was) or whether (as the Respondent
contends) the Union's letter to "all employees" on July 18, and the sample form of
contract submitted by the Union to the Respondent on July 31 show that the Union
was also attempting to bargain on behalf of employees and supervisors outside the
appropriate unit so that, as a result, the Respondent was not required to accede to
its bargaining request. Upon the facts and for the following reasons I agree with
the General Counsel and the Union and reject the Respondent's contentions
The Union's bargaining request in this letter to the Respondent on July 18, 1962,
and also its notice to "all employees" on the same day were based expressly on the
Board's certification and the Respondent's obligation to bargain with the Union in
accordance therewith. The only possible construction of the Union's position as
shown by these letters was that it was requesting the Respondent to bargain for a
contract limited to those employees covered by the certification and included in the
unit found appropriate by the Board in the representation proceeding. The Union's
bargaining request made in the letter of July 18, 1962, was therefore a request
properly limited on its face to the scope of the certified appropriate bargaining unit
The significance and effect of the Union's later submission to the Respondent of
its usual form of contract, however, can be properly judged by considering not only
the substance of the contract form itself, but also the circumstances of its sub-
ATKINSON DREDGING COMPANY 1321
mission and the manner in which it was used by the Respondent as an excuse for
not bargaining with the Union. It is true that the contract form submitted em-
braced some categories of employees and supervisors which had been specifically
excluded by the Board from the appropriate unit. But it was submitted by the
Union at the Respondent's request simply as a "copy of agreement presently in
effect in the Southern Area" and thus as a sample of the Union's usual form of
contract for the Respondent's consideration in the expected bargaining process, and
not as a rigid set of proposals which the Union would refuse to modify in their
possible and proper application to the Respondent's situation under the recent certi-
fication. Had the sample contract actually raised any question in the Respondent's
mind concerning the scope of the unit claimed by the Union, the question could
then have readily been resolved in accordance with the clear limitations of the
certification. But the Respondent continued simply to ignore the Union's subsequent
bargaining requests and thus refused to bargain with the Union without ever re-
ferring the Union to the scope of the sample form of contract or (for that matter)
to any other reason as the basis of its refusal to bargain. Even when the Union
learned secondhandedly of the Respondent's position through an agent of the Board
investigating the present charges and, in its letter of October 2, wrote the Respond-
ent disclaiming its intention or desire to bargain for any persons not in the certified
unit, the Respondent made no reply, and thus persisted in its passive, unexplained
refusal to bargain, although the complaint in the present case had not yet been
issued.
In view of these facts and circumstances shown by the record, I find that the Union
did not modify its original bargaining request of July 18 and attempt to include
persons not within the certified bargaining unit; that it was unreasonable and
improper for the Respondent to treat the Union's submission of the sample contract
as such an attempt by the Union and therefore as an excuse for not bargaining
with the Union without first calling to the Union's attention the discrepancies be-
tween the sample contract and the limited scope of the certified unit; 4 and, finally,
that by failing and refusing on and since July 18, 1962, to bargain with the Union
as the exclusive bargaining representative of its employees in the certified appropriate
unit, the Respondent committed unfair labor practices within the meaning of Sec-
tion 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth in section 1, above, have
a close, intimate, and substantial relationship to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act, I will recommend that
it cease and desist therefrom and take certain affirmative action in order to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local Union 25, Marine Division,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. All employees of the Respondent engaged in dredging operations, with head-
quarters at Norfolk, Virginia, including maintenance employees, shoremen, cooks,
mess boys, and janitors, but excluding clerical employees, professional employees,
guards, the superintendent, assistant superintendent, captains, deck captains, chief
engineers, dump foremen, levermen, mates, and all other supervisors as defined in
the Act, have at all material times constituted, and now constitute, a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
3. The above-named Union was on or about May 4, 1961, and, at all material
times since that date has been, the exclusive representative of all employees in the
aforesaid appropriate unit for purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4 American Rubber Products Corp., 100 NLRB 73, 76.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing on and since July 18, 1962, to bargain collectively in good faith
with the above-named Union as the exclusive representative of its employees in the
aforesaid appropriate unit, the Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, it is recommended that the Respondent, Atkinson
Dredging Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from refusing to bargain collectively in good faith concerning
wages, hours, and other terms and conditions of employment, with International
Union of Operating Engineers, Local Union 25, Marine Division, AFL-CIO. as
the exclusive representative of all employees in the following appropriate unit:
All employees of the Respondent engaged in dredging operations, with head-
quarters at Norfolk, Virginia, including maintenance employees, shoremen,
cooks, mess boys, and janitors, but excluding clerical employees, professional
employees, guards, the superintendent, assistant superintendent, captains, deck
captains, chief engineers, dump foremen, levermen, mates, and all other supervi-
sors as defined in the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the ex-
clusive representative of all employees in the appropriate unit, and embody in a
signed agreement any understanding reached.
(b) Post at its office at Norfolk, Virginia, copies of the attached notice marked
"Appendix." 5 Copies of said notice, to be furnished by the Regional Director for
the Fifth Region, shall, after being duly signed by the Respondent, 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. Reasonable steps shall be taken by the Respondent that said
notice is not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Fifth Region in writing within 20 days
from the receipt of this Intermediate Report and Recommended Order, what steps
the Respondent has taken to comply herewith .6
5 If this Recommended Order be adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice If the Board's Order is enforced by a decree of the United States Court of
Appeals, the notice will be further amended by the substitution of the words "Pursuant
to a Decree of the United States Court of Appeals, Enforcing an Order" for the words
"Pursuant to a Decision and Order."
s If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Fifth Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International Union of Op-
erating Engineers, Local Union 25, Marine Division, AFL-CIO, as the exclusive
representative of the employees in the bargaining unit described below.
WE WILL, upon request, bargain with the above-named Union, as the exclusive
representative of all the employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such an understand-
ing in a signed agreement.
The bargaining unit is:
All employees of the Respondent engaged in dredging operations, with
headquarters at Norfolk, Virginia, including maintenance employees, shore-
OAK MANUFACTURING COMPANY 1323
men, cooks , mess boys, and janitors, but excluding clerical employees,
professional employees , guards, the superintendent , assistant superintendent,
captains , deck captains , chief engineers , dump foremen , levermen, mates,
and all other supervisors as defined in the Act.
ATKINSON DREDGING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 707
North Calvert Street, Baltimore 2, Maryland , Telephone No. 752-8460, Extension
2100 , if they have any questions concerning this notice of compliance with its
provision.
Oak Manufacturing Company and District Lodge No. 122, In-
ternational Association of Machinists , AFL-CIO, Petitioner.
Case No. 13-RC-7638. April 15, 1963
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to the Board's Decision and, Direction of Election dated
June 30, 1961,1 an election by secret ballot was conducted by the
Regional Director for the Thirteenth Region on July 28, 1961, among
the employees in the appropriate unit. After the election, the parties
were furnished with a tally of ballots which showed that, of approxi-
mately 58 eligible voters, 18 votes were cast for, and 40 votes were
cast against, the Petitioner. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the election.
After investigation, the Regional Director, on August 28, 1961,
issued and served upon the parties his report on objections in which
he recommended that the objections be overruled. Thereafter, the
Petitioner filed timely exceptions to the Regional Director's report.
Prior to the election the Employer sent copies of the attached two
letters 2 to its employees. In the first letter, the Employer stated
that the Union's contracts had lower rates than the Employer was
paying, which would give the Employer strong arguments for reduc-
ing wages. It also stated "categorically" that the Union "cannot
and will not obtain any wage increase for you." As to fringe benefits,
the Employer said its program was better than most in the area, and
would be improved whether or not there was union representation.
Therefore, the Employer argued, the most Petitioner could do was to
claim credit, and charge dues, for improvements that would be made
in any event; the worst it could do was to give the Employer an
1 Not published in,NLRB volumes.
2 See Appendix. The letters were signed by J. L. von Harz, vice president in charge of
administration.
141 NLRB No. 121.