N.L.R.B. v. Dredge Operators, Inc. ( 1994 )

United States Court of Appeals,
Fifth Circuit.
No. 93-4847.
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
DREDGE OPERATORS, INC., Respondent.
April 21, 1994.
Application for Enforcement of an Order of the National Labor
Relations Board.
Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN*,
District Judge.
FRANK A. KAUFMAN, District Judge:
Respondent-appellant Dredge Operators, Inc. ("DOI") is a
Louisiana corporation which operates an ocean-going, United States
flag vessel known as the dredge Stuyvesant. On April 8, 1991, the
National Maritime Union ("NMU" or "Union") filed a representation
petition with the National Labor Relations Board ("NLRB"), seeking
to represent a bargaining unit composed of the unlicensed members
of the crew of the Stuyvesant, which was based at that time in
Galveston, Texas.1 In mid-April the vessel sailed to San
Francisco, from which it departed on April 27, 1991, for Hong Kong
where it arrived on May 23, 1991. Since that time, the Stuyvesant
has been engaged in dredging work for the new Hong Kong
international airport pursuant to a contract with the government of
Hong Kong.
*
District Judge of the District of Maryland, sitting by
designation.
1
The Stuyvesant employs about 20 to 22 unlicensed seamen who
work in rotating crews of 10 to 12.
On April 30, 1991, the representation hearing was held with
regard to the aforementioned April 8, 1991, petition. Following
the hearing, the Regional Director ordered, on May 28, 1991, that
an election be held by mail ballot. DOI's request for review of
the direction of election was denied on July 29, 1991. After the
August 7, 1991 election, the Board certified the NMU as the
statutory collective bargaining representative of the unlicensed
seamen employed aboard the Stuyvesant on April 14, 1992.2 On April
28, 1992, the union requested collective bargaining negotiations
with DOI which request DOI subsequently refused in a letter dated
May 18, 1992. In that letter, DOI stated that the NLRB lacked
jurisdiction over the Stuyvesant and that Hong Kong labor laws
requiring the hiring of a certain percentage of Hong Kong employees
conflicted with United States labor laws mandating that a United
States flag vessel employ only Americans.
Currently, the Stuyvesant employs 12 Hong Kong crewmembers and
14 American crewmembers. DOI had obtained work permits from the
Hong Kong government in July 1991 and April 1992 to employ American
crew members. The work permits were conditioned upon DOI's
agreement to retain the 12 Hong Kong crew members and to lay off
American workers before Hong Kong workers in the event of a
reduction in force. In a letter dated November 5, 1991, the Coast
Guard notified DOI that the requirement of U.S. Shipping Act, 46
2
Prior to the certification, DOI challenged the election
results. The Board held a hearing concerning the election
results on October 8, 1991, and shortly thereafter issued a
report with regard to the challenged ballots rejecting DOI's
contentions. On March 30, 1992, the Board adopted the report's
findings and recommendations. The controversy with regard to the
election results are not relevant to the instant appeal.
U.S.C. § 8103(b)(1)(A), that a United States flag-vessel carry a
full American crew would be suspended for the time being. The
Coast Guard subsequently wrote to the Department of State
explaining that DOI had hired Hong Kong workers with Coast Guard
permission. According to DOI, the Department of State has not
responded to that letter.
Following DOI's refusal to negotiate with the union, NMU filed
a refusal to bargain charge against DOI on June 8, 1992. The NLRB
then issued, on July 10, 1992, a "Complaint and Notice of Hearing"
charging DOI with violations of sections 8(a)(5) and (1) of the
National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1),
("NLRA" or "the Act"),3 by refusing to bargain with the union.
Apparently, the NLRB set no hearing date, nor did it give an actual
notice of any hearing date with regard to the July 10, 1992,
complaint.
General Counsel for the NLRB filed a motion for summary
judgment on November 9, 1992, to which DOI responded on December 3,
1992, along with a cross-motion for summary judgment. In the
meantime, on November 12, 1992, the Board had transferred the
proceeding from the Regional Director to the NLRB in Washington
D.C. for resolution. On December 16, 1992, the Board granted the
Board's motion for summary judgment and ordered DOI to cease and
desist and to bargain with the Union. 309 NLRB No. 159 (December
3
Section 8(a)(5) of the Act makes it an unfair labor
practice for an employer "to refuse to bargain collectively with
the representatives of his employees." Section 8(a)(1) makes it
an unfair labor practice for an employer "to interfere with,
restrain, or coerce employees in the exercise of" their statutory
rights. 29 U.S.C. §§ 158(a)(5) and (1).
16, 1992). The Board determined that DOI had adduced no additional
evidence requiring a reexamination of the prior April 30, 1991,
representation hearing and that accordingly, DOI's refusal to
bargain with the Union violated the NLRA. The Board also rejected
as lacking merit DOI's contention that the July 19, 1992, complaint
must be dismissed because it did not include a notice of hearing.
In response to DOI's contention that it was no longer engaged in
commerce, the Board found that DOI is an employer engaged in
commerce within the meaning of the Act, noting that DOI received
over $1 million at its Louisiana headquarters from the government
of Hong Kong. The NLRB brings an application for enforcement of
the NLRB's order, which DOI opposes.4
We uphold the Board's findings of fact if they are supported
by substantial evidence. NLRB v. Houston Bldg. Serv. Inc., 936
F.2d 178, 180 (5th Cir.1991), cert. denied, --- U.S. ----, 112
S.Ct. 1159, 117 L.Ed.2d 407 (1992) (citing Universal Camera Corp.
v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). The
Board's interpretation of the statutes it is charged with
administering is upheld if reasonable and "is entitled to
considerable deference." NLRB v. City Disposal Systems, Inc., 465
U.S. 822, 829, 104 S.Ct. 1505, 1510, 79 L.Ed.2d 839 (1984) (citing
NLRB v. Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54
L.Ed.2d 586 (1978)). For the reasons stated herein, we enter
judgment enforcing the Board's order.
I.
DOI first asserts that the NLRB lacks jurisdiction over this
4
The NMU is an intervenor in this appeal.
case because the Stuyvesant operates in Hong Kong territorial
waters under contract with the Hong Kong government and has no
present intention of returning to the United States. In addition,
DOI contends that it is not engaged in "commerce" within the
meaning of section 2(6) of the NLRA, 29 U.S.C. § 152(6).5
The Supreme Court "has consistently declared that in passing
the National Labor Relations Act, Congress intended to and did vest
in the Board the fullest jurisdictional breadth constitutionally
permissible under the Commerce Clause." NLRB v. Reliance Fuel Oil
Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963).
DOI concedes that the NLRB is not constitutionally barred from
exercising jurisdiction over the Stuyvesant, but argues that comity
concerns should prevent such an exercise of jurisdiction.
DOI relies almost exclusively on a series of Supreme Court
cases concerning labor disputes aboard foreign flag vessels. In
Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 77 S.Ct. 699,
1 L.Ed.2d 709 (1957), the Supreme Court declined to apply the NLRA
5
The terms "commerce" and "affecting commerce" are defined
in §§ 2(6) and (7), 29 U.S.C. §§ 152(6) and (7) as follows:
(6) The term "commerce" means trade, traffic,
commerce, transportation, or communication among the
several States, or between the District of Columbia or
any Territory of the United States and any State or
other Territory, or between any foreign country and any
State, Territory, or the District of Columbia, or
within the District of Columbia or any Territory, or
between points in the same State but through any other
State or any Territory or the District of Columbia or
any foreign country.
(7) The term "affecting commerce" means in
commerce, or burdening or obstructing commerce or the
free flow of commerce, or having led or tending to lead
to a labor dispute burdening or obstructing commerce or
the free flow of commerce.
to an American union which was picketing on behalf of foreign
crewmembers of a foreign flag vessel owned by a foreign corporation
which was temporarily in an American port. The crew was made up
entirely of nationals of countries other than the United States,
and wages and hours of employment were governed by a British
agreement. The Court noted that "a ship voluntarily entering the
territorial limits of another country subjects itself to the laws
and jurisdiction of that country," but that "[t]he exercise of that
jurisdiction is not mandatory." Id. at 142, 77 S.Ct. at 702. The
question therefore which arose in Benz was "one of intent of the
Congress as to the coverage of the Act." Id. The Court concluded
that "Congress did not fashion [the NLRA] to resolve labor disputes
between nationals of other countries operating ships under foreign
law." Id. at 143, 77 S.Ct. at 702.
In Windward Shipping (London), Ltd. v. American Radio Ass'n,
415 U.S. 104, 111, 94 S.Ct. 959, 963, 39 L.Ed.2d 195 (1974), the
Supreme Court noted that "[i]n the 17 years since Benz was decided
... this Court has continued to construe the [NLRA] in accordance
with the dictates of that case." Writing in Windward, the Supreme
Court recalled the decision in McCulloch v. Sociedad Nacional de
Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547(1963), where "we held that the National Labor Relations Board had
improperly assumed jurisdiction under the Act to order an election
involving foreign crews of foreign-flag ships." 415 U.S. at 111,
94 S.Ct. at 963. Continuing in Windward, the Court also noted
Incres S.S. Co. v. International Maritime Workers Union, 372 U.S.
24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963), in which "we applied [the
Benz and McCulloch] rationale to a situation involving union
picketing of a foreign ship in an effort to organize the foreign
crew, [and] "concluded that maritime operations of foreign-flag
ships employing alien seamen are not in "commerce' within the
meaning of [the Act].' " 415 U.S. at 111, 94 S.Ct. at 964 (quoting
Incres, 372 U.S. at 27, 83 S.Ct. at 613).
Nevertheless, in Windward, the Supreme Court further pointed
out that Benz and its successor cases had not "exempt[ed] all
organizational activities from the Act's protections merely because
those activities in some way were directed at an employer who was
the owner of a foreign-flag vessel docked in an American port."
Id. at 112, 94 S.Ct. at 964. In support of that proposition, the
Court cited to International Longshoremen's Ass'n v. Ariadne
Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970), in
which the Court "held that the picketing of foreign ships to
protest substandard wages paid by their owners to nonunion American
longshoremen was "in "commerce' within the meaning of § 2(6).' "
415 U.S. at 112, 94 S.Ct. at 964 (quoting Ariadne, 397 U.S. at 200,
90 S.Ct. at 874). In the light of prior case law, the Court in
Windward explained:
"The term "in commerce,' as used in the [NLRA], is
obviously not self-defining, and certainly the activities in
Benz, McCulloch, and Incres, held not covered by the Act, were
literally just as much "in commerce' as were the activities
held covered in Ariadne. Those cases which deny jurisdiction
to the NLRB recognize that Congress, when it used the words
"in commerce' in the [NLRA], simply did not intend that Act to
erase longstanding principles of comity and accommodation in
international maritime trade."
415 U.S. at 112-13, 94 S.Ct. at 964.
In Benz, McCulloch, Incres, Ariadne, and Windward, the Supreme
Court stressed the need to follow the intentions of Congress in
connection with the foreign policy needs of the United States and
in McCulloch, specifically called attention "to the
well-established rule of international law that the law of the flag
state ordinarily governs the internal affairs of a ship." 372 U.S.
at 21, 83 S.Ct. at 677.
In contrast to Benz, this case involves an American carrier.
"The longstanding tradition of restraint in applying the laws of
this country to ships of a foreign country—a tradition that lies at
the heart of Benz and every subsequent decision—therefore is
irrelevant to this case." International Longshoremen's Ass'n v.
Allied Int'l, Inc., 456 U.S. 212, 221, 102 S.Ct. 1656, 1662, 72
L.Ed.2d 21 (1982) (NLRB has jurisdiction over boycott by American
union which refused to unload cargoes shipped from the Soviet Union
on American carriers where the boycott "in no way affected the
maritime operations of foreign ships.")
We agree with the Eleventh Circuit's observation that:
"In Benz and the subsequent cases ... the Court did not
restrict the scope of the NLRA to conduct which occurs within
the geographic boundaries of the United States. To the
contrary, each of these cases dealt either with employment
relations upon a foreign vessel docked at an American port or
the picketing activity of a domestic labor union in the United
States. In each case, despite the fact that the conduct at
issue was well within the geographic reach of American law,
the Court held that the NLRA was not intended to apply. The
Benz cases do not represent generally applicable boundaries of
commerce but instead a judgment that Congress did not intend
to interfere with the internal operation of foreign vessels."
Dowd v. International Longshoremen's Assn., 975 F.2d 779, 788 (11th
Cir.1992) (applying the NLRA to an American union which solicited
a foreign union to pressure foreign importers with the intent and
effect of causing a secondary boycott in the United States).
DOI points to no cases holding that the NLRB lacks
jurisdiction over a labor dispute aboard an American —as opposed to
a foreign—flag vessel, in a case such as this one. DOI does cite
to Cruz v. Chesapeake Shipping, Inc., 932 F.2d 218 (3rd Cir.1991),
to support its proposition that American-flagged vessels are not
"floating piece[s] of American territory." Id. at 227. However,
Cruz involved the unique circumstance of eleven vessels, owned or
managed by American or Kuwaiti corporations, flying an American
"flag of convenience." Id. In Cruz, Philippine seamen employed on
ships in the Persian Gulf attempted to invoke the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq., to their employment aboard
Kuwaiti oil tankers temporarily flying the United States flag "to
gain the protection of the United States" against shipping hazards
during the Iran-Iraq war. Id. at 220. Judge Rosenn, in an opinion
in which he spoke only for himself, in which Judge Cowen concurred
in the judgment only, and with regard to which Judge Alito
dissented, held "that the plaintiffs were not engaged in commerce
nor employed by an enterprise engaged in commerce under the terms
of FLSA," and that "[w]e affirm the judgment of the district court
[in favor of defendants] because Judge Cowen believes that under
choice of law principles United States law did not apply to the
plaintiffs." Id. In so doing, Judge Rosenn wrote:
"[F]oreign seamen employed on vessels engaged in foreign
operations entirely outside of the United States, its waters
and territories do not become subject to FLSA when their
vessels are transitorily reflagged under the United States
flag and transferred to a corporation chartered under the laws
of an American state and immediately leased back to the
foreign operating company...."
Id. at 232. The American flag flying onboard the ship at issue in
the Cruz case was meant "to give notice that these vessels were
entitled to the military protection of the United States. Such
symbolism is not a valid substitute for involvement in the American
economy within the meaning of FLSA." Id. at 231. In contrast, the
Stuyvesant flies the American flag on a permanent basis, thus
invoking the laws of the United States.6 There is no allegation
whatsoever in this case that the Stuyvesant is not an American flag
ship or that it is flying the American flag solely as a matter of
convenience. As Judge Alito noted, "Vessels flying the American
flag have long been regarded "as part of the territory of [the]
nation.' " Id. at 238 (Alito, J., dissenting) (quoting Patterson
v. Eudora, 190 U.S. 169, 176, 23 S.Ct. 821, 823, 47 L.Ed. 1002(1903)). See also McCulloch, 372 U.S. at 21, 83 S.Ct. at 677
(quoted supra ); Lauritzen v. Larsen, 345 U.S. 571, 584, 73 S.Ct.
921, 929, 97 L.Ed. 1254 (1953) ("Nationality is evidenced to the
world by the ship's papers and its flag."); Restatement (Third) of
the Foreign Relations Law of the United States § 501 (1987) ("A
ship has the nationality of the state that registered it and
authorized it to fly the state's flag....").
In a case similar to the one at hand, the NLRB asserted
jurisdiction over a United States flag vessel, owned by an American
corporation and working under a contract with the national oil
company of Brazil. Alcoa Marine Corp., 240 N.L.R.B. 1265 (1979).
The vessel operated offshore of Brazil with no intention of
6
As for its participation in the American economy, in return
for its services, DOI has received over $1 million from the
government of Hong Kong, thereby engaging in commerce "between
any foreign country and any State." 29 U.S.C. § 152(6).
returning to the United States. In exercising jurisdiction over
the vessel, the Board stated that the vessel is "a U.S. flagship;
thus she is, for legal purposes, United States territory to which
the laws of the United States, including Coast Guard regulations
and our labor laws, apply." Id. at 1265. Alcoa has not been
overturned,7 and does not contradict any existing Supreme Court or
other federal precedent. Indeed, its language and approach are
entirely consistent with the Supreme Court opinions discussed supra
in this opinion.
DOI also attempts to invoke a series of cases in which courts
have refused to apply various federal laws extraterritorially.
See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 111 S.Ct.
1227, 113 L.Ed.2d 274 (1991) (Title VII does not apply
extraterritorially to an employment relationship of an American
citizen with an American corporation in Saudi Arabia because
Congress did not exercise its authority to cover the same);
7
In Offshore Express Inc., 265 N.L.R.B. 378 (1983), the
Board declined to exercise its discretion under the LMRA to
assert jurisdiction over an American flag vessel operating at
Diego Garcia, a remote island in the Indian Ocean. Citing the
remoteness of the ship's location and the lack of international
trade involved (the ship was engaged in services for the U.S.
Navy), the Board decided "it would not effectuate the policies of
the Act to assert jurisdiction." Id. at 380. The Board,
however, clearly distinguished Alcoa,
The issue in that case [Alcoa ] was whether the Board
had statutory jurisdiction, whereas here the issue is
whether the existence of certain factors warrants the
exercise of our discretionary authority to refuse to
assert jurisdiction, assuming, arguendo that such
jurisdiction exists. In Alcoa Marine the Board was
concerned with an area of the world which differed
markedly in numerous respects, including population and
accessibility....
Id. at 380 n. 12.
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (Congress did not intend the
Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1604 et seq.,
to apply extraterritorially). There is a canon of construction
that " "legislation of Congress, unless contrary intent appears, is
meant to apply only within the territorial jurisdiction of the
United States.' " Argentine, 488 U.S. at 440-41, 109 S.Ct. at 691(quoting Foley Brothers v. Filardo, 336 U.S. 281, 285, 69 S.Ct.
575, 577, 93 L.Ed. 680 (1949)). However, since a United States
flag vessel is considered American territory, see Restatement
(Third) of the Foreign Relations Law of the United States § 501,
application of the NLRA to the Stuyvesant would not be
extraterritorial. Rather, application of the NLRA to the
Stuyvesant would comport with the "whole background of the Act
[which] is concerned with industrial strife between American
employers and employees." Benz, 353 U.S. at 143-44, 77 S.Ct. at
702. Thus, the cases cited by DOI regarding extraterritorial
application of American laws are not applicable to the instant
case. We note in support of the NLRB's exercise of jurisdiction
over the Stuyvesant that a majority of seamen aboard this
American-flag vessel are American; we express no views concerning
whether the existence of or the exercise of jurisdiction over the
Stuyvesant would be proper if this were not the case.
DOI also argues that even if the NLRB has jurisdiction in
this case, nevertheless, in the light of the conflict between Hong
Kong law and United States law over whether DOI must hire American
or Hong Kong workers, any bargaining should be deferred pending the
outcome of a diplomatic effort, or alternatively should be resolved
by a Board hearing before the Board finally decides to exercise its
jurisdiction. However, at this time, there does not appear to be
a conflict which affects DOI's ability to negotiate with the Union.
Officials in both Hong Kong and the United States have permitted
DOI to employ workers of the other nationality respectively.
Neither nation has demanded that DOI fully comply with their
respective hiring regulations nor has the Hong Kong government
required that DOI recognize another union. Although DOI posits a
scenario wherein NMU will refuse to represent the foreign workers,
such a scenario is speculative. Accordingly, such argument is not
ripe for review. See, e.g., O'Shea v. Littleton, 414 U.S. 488,
497, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974). DOI has voluntarily
chosen to engage in foreign commerce and thus, at this time, it
must bear the obligations which such a choice entails—obligations
which include complying with orders of the NLRB flowing from the
latter's exercise of its jurisdiction.
II.
DOI contends that since the initial representation hearing on
April 30, 1991, new facts have arisen which the Board has refused
to consider. DOI contends that these facts raise genuine issues of
material dispute, making summary judgment improper. Specifically,
DOI asserts that the Board has ignored the following important
factors: (1) the Stuyvesant is in Hong Kong indefinitely; and (2)
the Hong Kong government is requiring DOI to employ Hong Kong
citizens and to prefer them over Americans in the event of a
layoff.
In its summary judgment opinion, the Board addressed DOI's
argument that another hearing was warranted, stating:
All representation issues raised by the Respondent were or
could have been litigated in the prior representation
proceeding. The respondent does not offer to adduce at a
hearing any newly discovered and previously unavailable
evidence, nor does it allege any special circumstances that
would require the Board to reexamine the decision made in the
representation proceeding.
A review of the record confirms that both the Regional Director in
his direction of election following the representation hearing and
the Board in its summary judgment opinion considered the factors
which DOI now urges warrant a new hearing. In the decision by the
Regional Director ordering an election, the Director took into
account testimony that "upon completion of the Hong Kong contract
the Stuyvesant may be in foreign waters indefinitely because of the
bleak economic outlook for its services in United States waters."
Thus, the indefinite duration of the Stuyvesant's presence in Hong
Kong was specifically considered by the NLRB in April and May of
1991, and therefore that factor does not alter the conclusion,
discussed above, that DOI must negotiate with the Union.
Regarding the conflict between Hong Kong and United States
law, the Board stated in its decision:
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.... The
possibility of such circumstance[ ] occurring was fully
considered by the Regional Director in his Decision and
Direction of Election and by the Board on Respondent's
exceptions thereto.
In his decision, the Regional Director recognized the "Hong Kong
rules, regulations, or contractual requirements that ... foreign
nationals must secure work permits ... and that whenever possible
jobs will be filled locally." At the time of the Regional
Director's decision, the Coast Guard was demanding that the entire
crew of the Stuyvesant be American; but, that requirement has
since been relaxed. Thus, to the degree there has been a change in
the facts of this case, that change only bolsters the Board's
decision to order DOI to bargain with the Union.
Regarding DOI's contention that summary judgment is not
appropriate because it is not clear whether the Hong Kong seamen
will have union representation, this scenario is not before us and
is therefore not ripe for review. As the Board explained: "[T]he
Respondent acknowledges [that] it has not to date been required to
recognize and bargain with any other union as representative of the
12 Hong Kong crewmembers, and 14 of its American crewmembers are
still employed on the vessel." Although such disputes may arise in
the future, the Board appropriately declined to address issues
concerning them at this stage of the proceedings.
III.
DOI contends that the NLRB violated Section 10(b) of the Act,
29 U.S.C. § 160(b), because the complaint did not include a notice
of hearing as required by that section. Indeed, no hearing was
either noted or held. 29 U.S.C. § 160(b) states in pertinent part:
"Whenever it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board ...
shall have power to issue and cause to be served upon such
person a complaint stating the charges in that respect, and
containing a notice of hearing before the Board or a member
thereof ... at a place therein fixed...."8
8
The regulations thereunder, 29 C.F.R. § 102.15, provide in
pertinent part:
After a charge has been filed, if it appears to the
Relying on Lighthouse for the Blind of Houston, 248 NLRB 1366(1980), on reh'g, 696 F.2d 399 (5th Cir.1983), the Board rejected
the DOI's lack-of-notice-of-hearing argument as lacking in merit.
In Lighthouse, the Board stated that "lack of formal notice of
hearing ... without more" did not prejudice Respondent in a
situation in which the latter "was served with a copy of the
complaint, and thus had notice of the charges ... and an
opportunity to prepare its answer and defense." Id. at 1367-68.
The Board's decision in Lighthouse comports with the law of
this and other circuits, all of which excuse technical errors where
no prejudice results. See Hospital & Service Employees Union,
Local 399, etc. v. NLRB, 798 F.2d 1245, 1248-49 (9th Cir.1986) (no
prejudice resulted from faulty service of charges where employer
was aware of the charges and the purposes of 10(b) were satisfied);
General Motors Corp. v. NLRB, 222 F.2d 349 (5th Cir.1955) (service
is sufficient if it is "made in time and manner to afford adverse
parties a fair hearing"); NLRB v. Royal Palm Ice Co., 193 F.2d
569, 570 (5th Cir.1952) (although the complaint and notice of
hearing may not have been signed correctly, the respondent was
sufficiently apprised of the official issuance of both documents);
Olin Industries, Inc. v. NLRB, 192 F.2d 799, 799 (5th Cir.1951)
(technical defect in service of the charge did not result in
regional director that formal proceedings in respect
thereto should be instituted, he shall issue and cause
to be served on all other parties a formal complaint in
the name of the Board stating the unfair labor
practices and containing a notice of hearing before an
administrative law judge at a place therein fixed and
at a time not less than 14 days after the service of
the complaint.
prejudice and any error was harmless).
In the within case, DOI was prepared for and participated in
the representation hearing. The majority of DOI's arguments
presented in this appeal were then made to the Board and considered
by the Board at earlier stages of these proceedings prior to the
Board's grant of summary judgment. DOI has pointed to no prejudice
resulting from the lack of a formal notice of hearing, or from the
fact that no hearing was held; nor has any prejudice been found.
The NLRB regulations authorize summary judgment when
appropriate. 29 C.F.R. §§ 102.24, 102.25. It would not appear
that the Board is required to hold a hearing before granting
summary judgment. But even if such a hearing were required, no
harm occurred in this case because the grant of summary judgment in
favor of the Board was appropriate for the reasons explained in
this opinion. Accordingly, it appears that if the Board committed
any error, either by failing to issue a notice of hearing or by
failing to hold a hearing, said error was harmless.
IV.
In the light of the foregoing discussion, we enter judgment
ENFORCING the order of the NLRB in Dredge Operators, Inc., No. 15-
CA-11843.