Bethlehem Steel Co.

National Labor Relations Board - Board Decisions

May 4, 1945

61 N.L.R.B. 892 (N.L.R.B. 1945)

In the Matter of BETHLEHEM STEEL COMPANY and UNITED STEELWORK-
ERS OF AMERICA , LOCAL 3068-A, C. I. O.
' ' Case No. 13-R 2720.-Decided May 4, 1945
Mr. Gerald J. Reilly, of Bethlehem , Pa., for the Company.
Mr. Sam Taylor , of Chicago , Ill., for the Union.
Mr. Julius G . Serot, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
° Upon an amended petition duly filed by United Steelworkers of
America, Local 3068-A, C. I. 0., herein called the Union, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Bethlehem Steel Company, Chicago, Illinois,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before John R. Hill,
Trial Examiner. Said hearing was held at Chicago, Illinois, on No-
vember 20, 1944. The Company and the Union appeared and partic-
ipated and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the is-
sues. The Trial Examiner's ruling made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded an
opportunity to file briefs with the Board. At the hearing, the Com-
pany moved to dismiss the petition herein and the motion was referred
to the Board. For reasons hereinafter appearing, the motion is hereby
denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Bethlehem Steel Company is a Delaware corporation maintaining a
plant for the fabrication of steel at Chicago, Illinois. Between Jan-
uary 1, 1944, and September 30, 1944, the aggregate value of all mate-
61 N. L. R. B., No. 147.
$92
BETHLEHEM STEEL COMPANY 893
rials used by the Company in the fabrication of steel at its Chicago
plant was in excess of $1,600,000, of which more than 75 percent was
delivered to that plant from points outside the State of Illinois. Dur-
ing the same period, the Company manufactured at its Chicago plant
finished products valued at approximately $2,500,000, of which more
than 50 percent was shipped to points outside the State. The structural
steel fabricated at the plant is for use in buildings and bridges and
about 80 percent of such steel is utilized for war purposes.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, Local 3068-A, affiliated with the
Congress of Industrial Organizations, is a labor organization admit-
ting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On October 12, 1944, the Union addressed a letter to the Company's
Chicago office informing the Company that it represented a majority
of the guards employed at the Chicago plant 1 and requesting a meet-
ing for the purpose of negotiating a collective bargaining agreement.
On October 14, 1944, the Company replied, advising the Union that
its request was being submitted to the Company's Bethlehem office.
No further reply was forthcoming. During the hearing, the Company,
upon the grounds set forth in Section IV, infra, formally refused to
recognize the Union as the bargaining representative of the guards.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the alleged appropriate unit.2
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks to represent all guards employed at the Company's
Chicago plant, excluding the chief of guards ,3 the supervisor of guards 4
and all other employees. Contending that a unit of guards is not
1 United Steelworkers of America , Local 3068 , C. I. 0., represents the production and
maintenance workers at the Company 's Chicago plant. The petitioning union, Local
3068-A, is a separate local affiliated with the same international union.
2 The Field Examiner reported that the Union submitted six membership cards, one of
which was dated September 18, 1944, the other five being undated. There are seven em-
ployees in the alleged appropriate unit.
8 The "acting management representative" is the chief of guards.
4 An employment clerk is the supervisor of guards.
639678-45-vol. 61-58
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate, the Company maintains that guards are not employees
within the meaning of the Act and a unit of guards will not effectuate
the policies of the Act.
All seven of the Company's guards are uniformed and armed, but
are neither militarized nor deputized.5 One receives a monthly salary
and the remainder are hourly paid. Generally described, their duties
consist of maintaining order and protecting life and property. More
specifically, their collective functions are to deny unauthorized persons
and vehicles access to the Company's plant, to register entering vehicles
and direct them to their destinations, to prevent materials or articles
not properly cleared from being brought into or removed from the
plant, to tour the plant at night visiting each clock station, to police
the shipping gates through which railroad cars enter and leave the
plant, and to oversee the punching of time cards by employees. In
addition, it is incumbent upon then to report thefts and infractions
of the Company's rules such as the punching of one employee's time
card by another, and, when necessary, to give testimony concerning such
misconduct. They have no authority, however, to discharge, discipline,
or censure an employee. While the guard office is located within the
plant's employment office where confidential personnel files are kept,
guards have no occasion, in the course of their duties, to examine such
files; in fact, if observed reading them, guards may be reprimanded.
The Company asserts that guards "represent it as the employer
vis-a-vis its other employees," and, on this premise, urges that, since
"the Act contemplates an opposition of interests between employers
on the one hand and employees on the other hand," guards cannot
be deemed to be employees within the meaning of the Act. Assuming
the truth of the assertion that the duties of guards are such that they
"represent [the Company] as the employer vis-a-vis its other em-
ployees," it cannot be gainsaid that, with respect to their own rela-
tionship to the Company, guards are its employees within the mean-
ing of Section 2 (3) of the Act6
Furthermore, we find no warrant in the record for the conclusion
that, in their relations with other employees, guards are "employers"
within the meaning of Section 2 (2) of the Act, supervisory employees,
or employees otherwise identified with management. They do, not
5 At one time they were militarized , deputized , or both.
" In the case of N. L R B. v. Skinner & Kennedy Stationery Co , 113 F. ( 2d) 667, 670,
671 (C. C A. 8), the Court said.
It is first argued that Eckert is not an employee within the meaning of the Act The
contention is that being a foreman he is an employer and not an employee . Section 2
(2) of the Act is relied upon wherein an "employer" is defined to include "any person
acting in the interest of an employer ." Section 2 (3) of the Act is ignored . It pro-
vides that "The term employee shall include any employee " There is no inconsistency
in these provisions when facts are taken into consideration A foreman , in his rela-
tion to his employer is an employee , while in his relation to the laborers under him
he is the representative of the employer and within the definition of Section 2 (2) of
the Act Nothing in the Act excepts foremen from its benefits nor from protection
against discrimination nor unfair labor practices of the master.
BETHLEHEM STEEL COMPANY 895
formulate or determine the Company's labor relations policy. Their
functions are unrelated to the production process and they neither
assign nor direct the work of other employees. Without any sem-
blance of discretion they are obligated to fulfill definite duties in ac-
cordance with specific instructions. They are without power to hire
or discharge other employees or to recommend such action. Nor is
any authority vested in them to excuse or penalize employees guilty
of wrongdoing. In supra, as respects other employees, guards are
merely monitors. In its brief, the Company states that, "As in the'
case of foremen and other supervisory employees, the Board has de-
termined that the conduct of the employer's police in `encouraging
or discouraging employee organization' is attributable to manage-
ment." This statement is without foundation, for as we have previ-
ously observed, "This Board has never held that the acts of plant
guards are unfair labor practices which can be imputed to an employer
in the absence of circumstances indicating that the employer author-
ized or ratified the conduct in question." I Consequently, the Com-
pany's position that a unit of guards will not effectuate the policies
of the Act is obviously untenable insofar as it is predicated upon
the unfounded thesis that these employees are identified with
management.
In defense of this position, however, the Company appears to argue
that, irrespective of whether or not guards are representatives of
management as such, their duties and their union membership will
evoke conflicting loyalties if they are placed in a bargaining unit.
It points to the possibility that the guards may affiliate with the same
labor organization which represents the production and maintenance
employees, and states that "the inevitable conflict between their duties
. . . and their membership in such organization would seriously in-
terfere with the orderly conduct of employer-employee relations ..."
But the unit sought here is a separate grouping of guards which, if
established, will insulate their collective bargaining from that of other
employees. Thus, their separate problems and interests, growing out
of their peculiar occupation, will be recognized, and will not be merged
with or subordinated to any interests of the production and mainte-
' Matter of Dravo Corporation, 52 N L R . B 322, 326-327 . See also Matter of Standard
Gage Company, Inc, 54 N L R . B 160, 161
In support of its statement, the Company cites Matter of E H Moore, Inc, 40 N. L. R B.
1058 . In that case the Board concluded that the employer was responsible , inter alia, for
the activities of a "Special Officer " named Broaddus His activities consisted of spying
upon union meetings on two occasions , once at the express request of a supervisory employee
and later in conjunction with a second supervisory employee , and uttering coercive state-
ments It is significant that the "functions" of Broaddus were "not established by the
record " Regarding his spying , it is plain that Broaddus was expressly authorized by the
employer to engage in such illegal conduct. The Board found under the circumstances
of the case that, with respect to his coercive remarks , " it is apparent that Broaddus ex-
pressed the attitude of the [employer ] and that the employees had just cause to believe that
he was acting for the [ employer ]." Clearly, the Moore case does not substantiate the
Company's claim.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nance employees which may be in conflict. Even in cases involving
plant-protection personnel who are militarized, the vitally concerned
'War Department has recognized that our practice of placing such em-
ployees in segregated units serves to obviate possible conflicts of in-
terest.8 Moreover, we have unmistakably indicated, and we reiterate,
that we, attach no weight to the implication that membership in a union,
even if composed in part of production and maintenance employees,
tends to undermine the honesty of guards or their competence to ex-
ecute their duties satisfactorily. "Self-organization for collective bar-
gaining is not incompatible with efficient and faithful discharge of
duty." 9 In any event, the remedy for neglect of duty lies in the Com-
pany's power to discharge and discipline. Certainly to reject the
efforts of guards to obtain collective bargaining rights safeguarded by
the Act will not avert difficulties, if any, arising solely from their union
allegiance. We are persuaded that the unit sought is appropriate and
will fully effectuate the policies of the Act. In reaching this con-
clusion, we are not unmindful that this country is at war and the Com-
pany is engaged in war production, and we have fully considered the
national welfare. That steady and unimpeded flow of commerce
which the Act is designed to maintain by the encouragement of the
orderly procedures of collective bargaining is doubly essential in time
of war. It is in keeping with the policies of the Act and it is in the
public interest to foster and protect collective bargaining by guards,
thereby promoting a practice necessary to the amicable settlement of
labor disputes and eliminating obstructions to commerce.
There remains the one minor contention of the Company that the
salaried guard should be excluded from any unit which might be
found appropriate. The record fails to show any reason for this con-
tention, other than the difference in the basis of his pay and that of
the other guards. This guard is always on the night shift and, in
addition to the usual duties of a guard, tends the fuel oil heating
furnaces while making the rounds of the plant. On his night off, the
other guards tend to the heating equipment. Apparently, he receives
8 Memorandum dated July 10 , 1943, issued by the War Department as a supplement to
Circular No. 15 states, in part, as follows :
Subject: Plant guards
1. It has been reported to this headquarters that labor officers are interpreting Circular
No 15, this headquarters , 17 March 1943, subject , "Auxiliary Military Police," as prohibiting
membership of plant guards enrolled as Auxiliary Military Police in the same trade union
local as that representing production and maintenance workers.
2. Paragraph 6 (h) (2), Circular No. 15, presents applicable War Department policy
on plant guard labor representation.
3. In the event that plant guards enrolled as Auxiliary Military Police desire to be rep-
resented in collective bargaining with the management , they should be represented by a bar-
gaining unit other than that representing the production and maintenance workers.
However, in such event , both bargaining units may be affiliated with the same trade union
local, provided they are, in fact, separate bargaining units.
D Matter of Dravo Corporation , supra. See also Matter of Chrysler Corporation, 44
N. L. R. B . 881, 886.
BETHLEHEM STEEL COMPANY 897
a regular monthly salary solely because of his length of service and
his additional nightly duty in tending the furnaces. We fail to per-
ceive any material difference between this guard and the others and
we shall, therefore, include him.
Accordingly, we find that all guards of the Company at its Chi-
cago, Illinois, plant, excluding the chief of guards, the supervisor
of guards, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9 of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Bethlehem Steel
Company, Chicago, Illinois, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days
from the date of this Direction, under the direction and supervision
cf the Regional Director for the Thirteenth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
r receding the date of this Direction, including employees who did
not work during said pay-roll period because they were ill or on
vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding those who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether or not they desire to
be represented by United Steelworkers of America, Local 3068-A,
C. I. 0., for the purposes of collective bargaining.