Court deals setback to shipyard nuclear safety union

RICHMOND? The U.S. Fourth Circuit Court of Appeals on Wednesday sided with Newport News Shipbuilding in its refusal to recognize a union of nuclear safety workers.

The shipyard, the nation's sole manufacturer of nuclear aircraft carriers and one of two makers of nuclear submarines, had sued that the National Labor Relations Board had no authority when on August 2012 it ordered the company to begin contract negotiations with a newly elected International Association of Machinists and Aerospace Workers union.

Specifically the shipyard, a subsidiary of Huntington Ingalls Industries, said President Barack Obama acted unconstitutionally when he bypassed the Senate and appointed three NLRB members over the winter holidays while lawmakers were in their home states.

"(W)e conclude that the President's three January 4, 2012 appointments to the Board are constitutionally infirm, because the appointment were not made during 'the Recess of the Senate,'" the opinion reads.

The opinion dismissed arguments from the White House and lawyers for the NLRB that the appointments were valid since they were made while the Senate was on recess.

The case was decided by a three-judge panel of the U.S. Fourth Circuit Court of Appeals.

Clyde Hamilton and Allyson K. Duncan, both Republican appointees, said the NLRB appointments ignored the meaning of the word recess as understood by the Framers of the Constitution. The lone Democratic appointee on the panel, Albert Diaz, an Obama pick, disagreed.

The term "the recess," the opinion states, "as used in the Recess Appointments Clause, refers to the legislative break that the Senate takes between its 'Session[s].'"

"We are pleased that the Fourth Circuit Court of Appeals has accepted the company's argument that denies enforcement of the NLRB order," said shipyard spokeswoman Christie Miller by email late Wednesday.

However the opinion was only a partial victory for the shipyard's legal team.

Before Hamilton took up the constitutional question he rejected separate shipyard arguments that the union election of the 223-member Machinists local had been improperly carried out.

The company had argued that the Machinists should have had to organize all the shipyard's 2,400 technical workers, not just the subset of radiological control technicians, trainees, laboratory technicians and calibration technicians.

The shipyard argued that by allowing the formation of a "micro-bargaining unit", the NLRB was lowering the bar for future union organization efforts at the shipyard.

The board's decision, the company said could lead to a patchwork of small shipyard unions that are difficult to negotiate with. Ultimately, the lawsuit said, such conditions "could be disastrous for the defense industry."

The NLRB argued that federal law permits unions to be formed among any group of workers with sufficiently distinct work functions group of workers, and that the radiological control department, or E85 RADCON for short fit the bill.

On this point the appeals court sided with the government and the Machinists.

"It was within the discretion of the (NLRB) to find that the technical employees in the E85 RADCON department possessed a sufficiently distinct community of interest apart from other technical employees at the shipyard to warrant their establishment as a separate bargaining unit," Hamilton wrote in his decision.

The judges also found unconvincing the shipyard's argument that its case mirrored that of decisions shooting down organizing efforts by radiological control workers at a Westinghouse Electric Corp. facility in eastern Idaho in 1962 and 1990.

The NLRB had said the Westinghouse workers in question worked closely with other technical workers at the Idaho facility, whereas the shipyard's radiological technicians don't have the same level of contact with their fellow non-nuclear technical employees.

"We agree with the Board that the Westinghouse cases are distinguishable from our case," Hamilton wrote for the court.

Supreme Court-bound

The Richmond court joins two other appeals courts in its rejection of the White House's NLRB appointees, and an court expert said the Supreme Court will ultimately have to settle the question.

"This is the third appellate court that's basically agreed," said Carl Tobias, a professor at the University of Richmond School of Law.

The Supreme Court's next term starts in October.

Miller, the shipyard spokeswoman, said the company "will continue to monitor any further rulings on the union representation issue."

If the Supreme Court goes on to agree with the logic of the appellate rulings, such a decision would invalidate a raft of NLRB decisions regarding union elections at companies across the country.

A new NLRB would have to take up the cases like that of the shipyard and the Machinists afresh, Tobias said, "but they make so many decisions it's a pain in the neck."

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