Dredge Operators

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 984 (N.L.R.B. 1992)

984
309 NLRB No. 159
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its response to the Notice to Show Cause, the Respondent also
contends that the instant complaint must be dismissed because it did
not include a notice of hearing. We reject the Respondent’s conten-
tion as without merit. See Lighthouse for the Blind of Houston, 248
NLRB 1366, 1367–1368 (1980), affd. 696 F.2d 399 (5th Cir. 1980).
2 The only new circumstances cited by the Respondent are that the
Hong Kong government has recently required it to employ a total
of 12 Hong Kong citizens in the bargaining unit, and that work on
the Hong Kong project has been suspended since October 1992 be-
cause of ‘‘political bickering’’ between the governments of Hong
Kong and China. The possibility of such circumstances occurring
was fully considered by the Regional Director in his Decision and
Direction of Election and by the Board on Respondent’s exceptions
thereto. Further, as the Respondent acknowledges, it has not to date
been required to recognize and bargain with any other union as rep-
resentative of the 12 Hong Kong crewmembers, and 14 of its Amer-
ican crewmembers are still employed on the vessel.
3 We therefore deny the Respondent’s cross-motion for summary
judgment.
Dredge Operators, Inc. and Unlicensed Division of
District No. 1 MEBA/NMU, AFL–CIO, Na-
tional Marine Engineers Beneficial Association.
Case 15–CA–11843
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 10, 1992, the General Counsel of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 16–RC–
9388. (Official notice is taken of the ‘‘record’’ in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed an answer admitting in part and denying in
part the allegations in the complaint.
On November 9, 1992, the General Counsel filed a
Motion for Summary Judgment. On November 12,
1992, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. On December 3,
1992, the Respondent filed a response and cross-mo-
tion for summary judgment.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer and response to the Notice to Show
Cause the Respondent admits its refusal to bargain
with the Union since its certification, but attacks the
validity of that certification on the basis of the Board’s
assertion of jurisdiction and disposition of challenged
ballots in the representation proceeding.1
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding.2 We therefore find that the Respondent has
not raised any representation issue that is properly lit-
igable in this unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). Accordingly, we grant the General Coun-
sel’s Motion for Summary Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Louisiana corporation operating
an ocean-going, United States flag vessel known as the
dredge Stuyvesant, which is presently performing work
in the harbor in Hong Kong pursuant to a contract with
the government of Hong Kong. During the 12-month
period ending May 31, 1992, the Respondent, in con-
ducting its business operations received funds in ex-
cess of $1 million at its Metairie, Louisiana head-
quarters directly from Hong Kong. We find that the
Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held August 7, 1991, the Un-
licensed Division of District No. 1 MEBA/NMU,
AFL–CIO, National Marine Engineers Beneficial Asso-
ciation (the Union) was certified on April 14, 1992, as
the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All unlicensed seamen employed aboard the
dredge Stuyvesant; excluding all licensed seamen,
supervisors and guards, as defined in the Act.
The Union continues to be the exclusive collective-bar-
gaining representative under Section 9(a) of the Act.
B. Refusal to Bargain
Since April 14, 1992, the Union has been certified
as the exclusive collective-bargaining representative of
the unit, and since the same date, the Respondent has
refused to bargain with the Union. We find that this
refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
985DREDGE OPERATORS
4 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
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.’’
CONCLUSION OF LAW
By refusing on and after April 14, 1992, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Dredge Operators, Inc., Metairie, Louisi-
ana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Unlicensed Division of
District No. 1 MEBA/NMU, AFL–CIO, National Ma-
rine Engineers Beneficial Association, as the exclusive
collective-bargaining representative of the employees
in the bargaining unit.
(b) 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 necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All unlicensed seamen employed aboard the
dredge Stuyvesant; excluding all licensed seamen,
supervisors and guards, as defined in the Act.
(b) Post at its facility in Metairie, Louisiana, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 15 after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 with Unlicensed Di-
vision of District No. 1 MEBA/NMU, AFL–CIO, Na-
tional Marine Engineers Beneficial Association, as the
exclusive representative of the employees in the bar-
gaining unit.
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 with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All unlicensed seamen employed aboard the
dredge Stuyvesant; excluding all licensed seamen,
supervisors and guards, as defined in the Act.
DREDGE OPERATORS, INC.