Newport News Shipbuilding and Dry Dock Company v. National Labor Relations Board, 602 F.2d 73, 4th Cir. (1979)

602 F.
2d 73
101 L.R.R.M. (BNA) 2998, 86 Lab.Cas. P 11,441
NEWPORT NEWS SHIPBUILDING AND DRY DOCK

COMPANY, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 78-1452.
United States Court of Appeals,

Fourth Circuit.
Argued April 3, 1979.
Decided July 25, 1979.
Zachary D. Fasman, Washington, D. C. (Raymond J. Schoonhoven,

Chicago, Ill., Grant E. Morris, Washington, D. C., Seyfarth, Shaw,
Fairweather & Geraldson, Washington, D. C., on brief), for petitioner.
Michael Murchison, N. L. R. B., Washington, D. C. (John S. Irving, Gen.
Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen,
Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen.
Counsel, Jay E. Shanklin, N. L. R. B., Washington, D. C., on brief), for
respondent.
Before BRYAN, Senior Circuit Judge, and WINTER and PHILLIPS,
Circuit Judges.
WINTER, Circuit Judge:
Newport News Shipbuilding and Dry Dock Company (hereinafter the

"Company") was found by the National Labor Relations Board to have violated
8(a)(1) and (5) of the National Labor Relations Act by insisting, to the point
of impasse, on a change in the scope of the collective bargaining unit that had
been certified by the Board as a condition precedent to agreement on a contract.
The Company seeks to set aside this determination and to have us deny
enforcement of the Board's remedial order. The Board cross-petitions for
enforcement of its order. We think that the Board's findings of fact were
supported by substantial evidence and that its application of the law to the facts
was correct. We therefore deny the petition to set aside the Board's decision and
grant enforcement of its order.
I.
2
The evidence adduced at the hearing showed that from 1971 to 1977, the
Company's design department employees were represented by the Designer's
Association of Newport News (hereinafter "DANN").1 In 1976, the United
Steelworkers of America, Local No. 8417, AFL-CIO-CLC (hereinafter the
"Union"), conducted an organizational campaign among these employees, and
on November 18, 1976, it filed a petition with the Board for certification as
their collective bargaining representative. The Company responded that it
would be willing to waive hearing on the petition and agree to a stipulated
election if certain of the employees that had been included in the DANN
bargaining unit were excluded from the voting unit namely, those employees
who, "although classified as a Senior Designer, Designer, Junior Designer,
Technical Aide, Senior Design Aide, or Design Aide, are actually performing
work as Testers and/or doing purchasing work, budgeting and/or accounting
work." The Company's proposal proved unacceptable, and on December 7,
1976, a hearing was held on the petition. At the hearing, the Company
withdrew from its position on the scope of the voting unit in order to expedite
the election, but indicated that it might raise the issue at a later time. Thereafter,
the parties entered into a Stipulation for Certification upon Consent Election, an
election was held, and on January 25, 1977, the Union was certified by the
Board as the exclusive representative of the employees in the stipulated unit.2
Negotiations over a new collective bargaining agreement took place between

January 27 and March 31, 1977. At the second bargaining session, the Union
presented a proposal defining the bargaining unit in part as "all individuals
occupying clerical, technical and professional jobs in the Company for whom
the Union is certified."3 The Union's chief negotiator acknowledged that this
language was not the same as the language in the certification, but maintained
that the Union intended by this verbiage to insure that all the employees who
voted in the election were covered by the proposed contract. At the next
bargaining session, the Company submitted a counter-proposal which described
the bargaining unit in the same fashion as the Board's certification, except that
it substituted the words "draftsmen" and "drafting" wherever the words
"designers" and "design" appeared in the certification.4 The Company's
spokesman explained that the purpose of the change was to reflect more
accurately the type of work performed by the employees in the unit.
The Union negotiators opened the following bargaining session by expressing

their fear that the Company's counter-proposal would remove from the unit
several hundred employees who had voted in the election, namely those
employees who had been classified as designers but did not in fact do drafting
work. In response, the Company denied that such was its intention and stated
that it was simply changing a job title. When the Union suggested that the
parties resolve the dispute by changing the draftsman terminology back to
designer terminology, the Company replied that it did not intend to. During a
subsequent meeting, the Union spokesmen reiterated their fear that the change
in the unit description would result in a diminution of the bargaining unit.
Apparently upset, one Company representative said that, since the Company
had been accused of trying to take some people away from the Union, he was
going to prove that the Union was right and was going to "get this unit down to
a reasonable size." The representative added that he was not attempting to "do
in" the designers but was merely trying to run the Company on a more efficient
basis.
At the last meeting between the parties, the Company submitted its "final
offer," which was conditioned, Inter alia, on acceptance of its proposed
definition of the bargaining unit. The Union caucused and voted unanimously
not to accept the offer unless the Company changed its position on the unit
description. When the Company was asked whether it was adamant about the
description, the Company responded that it was.5 That evening, the Union
membership voted overwhelmingly to reject the Company's offer and to
commence a strike the following day, April 1, 1977. The strike was still in
progress at the time of the administrative hearing.
On the basis of these facts, the Board concluded that, by conditioning

agreement upon a change in the certified unit, the Company refused to bargain
collectively with the Union as required by 8(a)(1) and (5) of the Act. The
Board also determined that the strike called by the Union was caused by the
Company's unlawful conduct and, as such, constituted an unfair labor practice
strike. Accordingly, the Board ordered the Company to cease and desist from
the unfair practices found, to bargain in good faith with the Union, and to
reinstate those strikers who desired to return to work.
II.
7
It is well settled that insistence on a change in the scope of the unit certified by
the Board violates 8(a)(5) of the Act. This is so because 8(a)(5) makes it
unlawful for an employer to refuse to bargain collectively with the
representatives of his employees and 9(a) provides that the representatives
elected by the majority of the employees in the unit found appropriate by the
Board i. e. those representatives certified by the Board shall be the exclusive
representatives of All the employees in the unit. See, e.g., N.L.R.B. v.
Southland Cork Co., 342 F.2d 702, 706 (4 Cir. 1965). In addition, the duty to
bargain extends only to "wages, hours, and other terms and conditions of
employment" as specified by 8(d), and insistence upon agreement as to nonmandatory subjects of bargaining has been construed by the Supreme Court as a
refusal to bargain about mandatory subjects in violation of 8(a)(5). See
N.L.R.B. v. Woodster Division of Borg-Warner Corp., 356 U.S. 342, 349, 78
S.Ct. 718, 2 L.Ed.2d 823 (1958). The description of the bargaining unit is not a
mandatory subject of bargaining. See, e.g., National Fresh Fruit & Vegetable
Co. v. N.L.R.B., 565 F.2d 1331, 1334 (5 Cir. 1978).
8
During the contract negotiations in the instant case, the Company attempted to
alter the unit description by replacing the words "designers" and "design" with
the words "draftsmen" and "drafting". The record does not disclose how many
of the employees who had voted in the election actually performed design, as
opposed to drafting, work. However, there was testimony that the designer
classification embraced job functions other than pure designing and drafting,
such as testing, liaison, purchasing, and budgeting work. Thus, the
administrative judge found that less than half of the employees in the unit
performed work which might properly be called design or drafting duties. There
was also evidence that the draftsman classification was more limited than the
designer classification and that substitution of the term draftsman in the unit
description would diminish the size of the bargaining unit. Such a result was all
but admitted by the Company's assertion that the substitution was designed to
reflect more accurately the type of work done by the employees in the unit. In
sum, the conclusion of the administrative judge that the proposed alteration in
the unit language could easily exclude some employees from the bargaining
unit was supported by substantial evidence.
Indeed, this appears to have been the Company's real intention in making its
counter-proposal. Prior to the unit's certification, the Company took the
position that all employees who, although classified as designers, were actually
doing testing, purchasing, budgeting, or accounting work should be excluded
from the unit. This position was subsequently withdrawn in order to expedite
the election, but the Company indicated that it might raise the issue anew in
another forum. That forum turned out to be the contract bargaining sessions, at
which the Company, albeit in a more subtle fashion, attempted to redefine the
unit. During these negotiations, a Company spokesman was even provoked to
say that he was going to confirm the Union's fears by getting the unit "down to
a reasonable size." Finally, the most persuasive evidence of the Company's
intent to reduce the scope of the unit was its insistence on the substitute
language. If the Company had believed that its counter-proposal did not alter
the bargaining unit, it would not have pressed the substitution so adamantly.
10
That the Company insisted upon the modification is amply demonstrated by the
record. When a Union representative suggested that the dispute be resolved by
changing the draftsman terms back to designer terms, the Company negotiator
responded: "We don't intend to. That would be very simple, I agree with you,
but we don't intend to." And, despite repeated Union objections, the Company
persisted in its design to alter the unit description until its "final offer" was
rejected by a vote of the Union membership. It is clear, then, that substantial
evidence supported the administrative judge's determination that the Company
insisted upon the variation in the scope of the bargaining unit.
11
The Company argues strenuously that the substitute language was not intended
to modify the unit certified by the Board but to clarify the various job functions
which the members of the unit were to perform. The Board agrees that, unless
transfers are specifically prohibited by the relevant collective bargaining
agreement, an employer may transfer work out of the bargaining unit, as long as
the employer first bargains in good faith and is not motivated by anti-union
animus. See University of Chicago v. N.L.R.B., 514 F.2d 942, 949 (7 Cir.
1975); Accord, Boeing Co. v. N.L.R.B., 581 F.2d 793, 797 (9 Cir. 1978).6 It
does not follow, however, that an employer, under the guise of the transfer of
unit work, may alter the composition of the bargaining unit. To do so would not
only modify the job functions of the various unit members but also affect their
right to representation. Thus, implicit in the requirement that the employer
bargain in good faith before changing unit work is the assumption that the
affected members of the unit will be represented.
12
The Company also contends that it is somehow absolved of any misconduct by

the Union's own attempt to alter the size of the bargaining unit by including the
word "professional" in the unit definition. We rejected a similar argument in
N.L.R.B. v. Southland Cork Co., 342 F.2d 702 (4 Cir. 1965), when we said,
"even had the union made such an attempt, and thereby subjected itself to a
charge of unfair labor practice, its conduct would be no defense to the charge
against Southland." Id. at 706. In addition, there is substantial evidence in the
record that the Union did not insist on the proposed definition. Although the
Union's proposal was never formally withdrawn, there was evidently little
discussion on the issue. More importantly, the Union suggested resolving the
dispute by changing the draftsman descriptions back to designer descriptions in
the Company's counter-proposal. Since the latter proposal did not include the
word "professional," the Union obviously was not insistent on that language. In
short, the impasse reached was not caused by the Union's position on the
inclusion of professionals but by the Company's stand on the substitution of the
descriptive word "draftsmen" for "designers".
III.
13
We think that the evidence clearly supports the Board's finding that the
Company's unlawful insistence on redefining the collective bargaining unit as a
condition precedent to its agreement to mandatory subjects of bargaining was a
proximate cause of the strike. That being so, the strike was an unfair labor
practice strike and the strikers, upon their application, are entitled to
reinstatement and backpay. See Mastro Plastics Corp. v. N.L.R.B., 350 U.S.
270, 278, 76 S.Ct. 349, 100 L.Ed. 309 (1956).
14
ENFORCEMENT GRANTED.
The collective bargaining agreement between the Company and DANN

described the bargaining unit as "all Senior Designers, Designers, Junior
Designers, Technical Aides, Senior Design Aides, Design Aides, and
Apprentices (assigned to the design departments) employed in the Company's
design departments and operations on Washington and Marshall Avenues in
Newport News, Virginia, excluding all office and clerical employees not
assigned to or supporting design departments, inspectors, optical detailers, and
all other employees in said department and operations and excluding
confidential employees, supervisors, and guards."
The stipulated unit, which differed from the DANN bargaining unit only in
minor respects, included: "All Senior Designers, Designers, Junior Designers,
Technical Aides, Senior Design Aides, Design Aides, and Apprentices
(Assigned to the Design Departments) employed in the company's Design
Departments and Operations on Washington and Marshall Avenues in Newport
News, Virginia, excluding all office and clerical employees not assigned to or
supporting Design Departments, Inspectors, Optical Detailers and all other
employees in said department and operations and excluding confidential
employees, guards and supervisors as defined in the Act."
The full text of the Union's proposal was as follows: "The term 'employee' as
used in this Agreement applies to all individuals occupying clerical, technical
and professional jobs in the Company for whom the Union is certified by the
National Labor Relations Board as the exclusive collective-bargaining
representative; the term 'employee' does not include office and clerical
employees not assigned to or supporting design department, inspectors, optical

detailers, and all other employees in said department and operations and
excluding confidential employees, supervisors, and guards."
4
Thus: "The bargaining unit of employees covered by this Agreement is: all
Senior Draftsmen, Draftsmen, Junior Draftsmen, Technical Aides, Senior
Draftsmen Aides, Draftsmen Aides, and Apprentices (assigned to the drafting
departments) employed in the Company's drafting departments and operations
on Washington and Marshall Avenues in Newport News, Virginia; excluding
however, all office and clerical employees not assigned to or supporting
drafting departments, inspectors, optical detailers, and all other employees in
said drafting and/or design departments and operations and excluding
confidential employees, supervisors and guards."
A Company negotiator testified that, near the close of the meeting, he proposed
that the term "senior designer" be changed to "designer," that the term
"designer" be changed to "marine draftsman," and that the term "junior
designer" be changed to "draftsman." The administrative law judge found it
unnecessary to determine whether such a proposal had in fact been made
because it was oral, occurred at a late date in the negotiations, and still reflected
the Company's insistence on a variation in the unit definition
In addition to a definition of the bargaining unit, the Company's counterproposal contained a section purporting to classify the work to be performed by
the unit's members. There is language in the administrative judge's decision
suggesting that the allocation of job functions by this latter section was itself
violative of 8(a)(5). Although the Board did not repeat this language in its
review of the administrative judge's decision, the Board did leave standing the
administrative judge's order that the Company cease and desist from insisting
upon a clause which would impair the right of unit members to do such work as
they have performed in the past. To the extent that this order precludes the
Company from transferring work out of the unit, after bargaining in good faith
and without anti-union animus, we deny enforcement

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602 F.

NEWPORT NEWS SHIPBUILDING AND DRY DOCK

United States Court of Appeals,

Zachary D. Fasman, Washington, D. C. (Raymond J. Schoonhoven,

Newport News Shipbuilding and Dry Dock Company (hereinafter the

Negotiations over a new collective bargaining agreement took place between

The Union negotiators opened the following bargaining session by expressing

On the basis of these facts, the Board concluded that, by conditioning

The Company also contends that it is somehow absolved of any misconduct by

The collective bargaining agreement between the Company and DANN

employees not assigned to or supporting design department, inspectors, optical

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