Bethlehem Steel Co.

National Labor Relations Board - Board Decisions

Sep 28, 1945

63 N.L.R.B. 1230 (N.L.R.B. 1945)

In the Matter of BETHLEHEM STEEL COMPANY and UNITED STEEL-
WORKERS OF AMERICA, C. I. O.
In the Matter of BETHLEHEM STEEL COMPANY and UNITED STEEL-
WORKERS OF AMERICA, C. I. O.
Cases Nos. 3-R-1016 and 3-R-1017, respectively.-Decided September
88,1945
Mr. Gerald J. Reilly, of Bethlehem, Pa., for the Company.
Mr. Julian R. Brace, of Lackawanna, N. Y., for the Union.
Miss Ruth, if. Blie field, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon separate petitions duly filed by United Steelworkers of Amer-
ica, C. I. 0., herein called the Union, alleging that questions affecting
commerce had arisen concerning the representation of employees of
Bethlehem Steel Company, Lackawanna, New York,, herein called
the Company, the National Labor Relations Board consolidated the
cases and provided for an appropriate hearing upon due notice before
Eugene von Welisheim, Trial Examiner. The hearing was held
at Buffalo, New York, on July 12,1945. The Company and the Union
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence beaxing on the issues. The Trial Examiner's-
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded opportunity to file briefs
with the Board.
The Company moved to dismiss the petition in Case No. 3-R-1016
on the ground that the individuals petitioned for are not employees
within the meaning of the Act and, therefore, do not constitute an
appropriate unit. For the reasons stated in Section IV, infra, this
motion is hereby denied.
63 N. L. R. B., No. 193.
1230
BETHLEHEM STEEL COMPANY 1231
The Company also moved to dismiss the petition in Case No.
3-R-1017 on the grounds that all the employees petitioned for per-
form duties of a confidential nature and, therefore, do not constitute
.an appropriate unit, and, the unit is too small to effectuate the pur-
poses of the Act. For the reasons stated in Section IV, infra, this
motion is hereby granted.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
S
I. THE BUSINESS OF THE COMPANY
Bethlehem Steel Company, a Pennsylvania corporation, operates a
plant at Lackawanna, New York, where it manufactures steel prod-
ucts. During 1944 the aggregate value of raw materials used by the
Company at its Lackawanna, New York, plant, was in excess of
$6,000,000, of which more than 80 percent was delivered to the plant
from points outside the State of New York. During the same period
the Company manufactured at this plant finished products valued in
excess of $100,000,000, of which more than 80 percent was shipped to
points outside the State of New York.
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, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION IN CASE NO. 3-11-
1016j THE ALLEGED QUESTION CONCERNING REPRESENTATION IN CASE
NO. 3-R-1017
Case No. 3-R-1016
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of the Company's clerical em-
ployees in the Accounting Division until the Union has been certified
by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.'
'The Field Examiner reported that the Union submitted 61 authorization cards ; that
the names of 49 persons appearing on the cards were listed on the Company's pay roll of
May 15, 1945; that there are approximately 118 employees in the appropriate unit ; and
that, of these cards, 14 were dated October 1944, 8 were dated November 1944, 1 was dated
December 1944, 37 were dated May 1945, and 1 was undated.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question affecting commerce has arisen concern-
ing the representation of employees of the Company petitioned for
herein, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the Act.
Case No. 3-R-1017
Since, as stated in Section IV, below, the bargaining unit sought
by the Union in this case is inappropriate, we find that no question
affecting commerce has arisen concerning the representation of em-
ployees of the Company petitioned ibr herein, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT IN CASE NO. 3-R-1016 THE ALLEGED APPRO-
PRIATE UNIT IN CASE NO. 3-R-101 7
Case No. 3-R-1016
The Union seeks a unit of all clerical employees in the Accounting
Division of the Lackawanna plant of the Company, except for con-
fidential employees, weighers, the employees listed in Appendix A,
attached hereto, and all supervisory employees. The Company con-
tends that the persons sought are not employees within the meaning
of the Act, and do not, therefore, constitute an appropriate unit. To
support its contention the Company argues that these persons are
supervisory in their relation to other employees, and that the work
performed by them is of a confidential nature. It also appears to
argue that irrespective of whether or not the persons sought are super-
visory or confidential within the meaning of the Board's customary
definition of these terms, their duties and their union membership will
evoke conflicting loyalties. If, however, the Board is of the opinion
that the clerical personnel of the Accounting Division may form an
appropriate unit, the Company, contrary to the Union, requests the
exclusion of certain categories.
Assuming that the Accounting Division clericals are supervisory
or confidential workers, it cannot be denied that in their relationship
to the Company these individuals are its employees.2 Furthermore,
with the exception of those specific employees whom we hereinafter
exclude, the employees sought are neither supervisory nor confidential.
The Accounting Division of the Company is composed of three main
departments, Cost, Payroll, and Tabulating. The employees of the
Division keep company records, compiling and maintaining pay-roll
and labor cost data. They do not assign, direct the work, or affect the
status of other individuals, nor do they exercise any discretion in
2 See N. L R. B v Skinner & Kennedy Stationery Co., 113 F (2d) 667 (C. C. A 8).
BETHLEHEM STEEL COMPANY 1233
connection with the establishment of wage rates. They are obligated-
to fulfill definite duties according to specific instructions. These in-
dividuals do not formulate or determine the Company's labor rela-
tions policy, and' the fact that they have access to or possess pay-roll-
and labor cost information does not warrant a finding that they are-
"confidential employees." 3
Also, there is nothing in our experience to lead us to conclude that
the exercise by the Accounting Division clericals of rights under the'
Act is incompatible with their full and honest performance of duty..
Nor do we believe a contrary conclusion is justified if the Union, which
is now the bargaining representative of the production and main-
tenance employees, also becomes the agent of the clericals in the+
Accounting Division.' The remedy for collusion, dishonesty, or dis-
regard or neglect of duty, or other improper acts on the part of em-
ployees lies implicity in the power of the Company to discipline and.
discharge employees.
Disputed categories
The parties disagree as to the clerks in the cashier's office; the
clerk A who acts as assistant to the head receiving clerk; the clerk who
acts as assistant to the head ledger clerk; the clerk who acts as assistant
to the head inventory clerk; the stenographer and the clerk A in charge
of the stenographic work in the Accounting Division and who act as
confidential secretaries to the works accountant and the assistant works.
accountant; and the class A clerk in the Pay-roll Division who is,
responsible for the preparation of monthly reports. The Union
desires their inclusion in the unit and the Company asks for their-
exclusion.
The clerks who work in the cashier's office: There are four em.
ployees in the Cashier's Division under the supervision of the head
cashier. The two clerks A in dispute work in the cashier's office,.
while two other clerks work in a room across the hall from the
cashier's office. One of the clerks A acts as assistant to the cashier,
and takes the cashier's place in his absence. He is responsible for
the posting of the cash book and for disbursements and receipts. He'
assists in checking endorsements and in the reconciliation of bond
drafts; he also assists at the cashier's window. The duties of the
other clerk A are similar in nature. He aids in the posting and "rec-
onciling" of the cash books; "reconciles assets"; keeps records of
"wage drafts from banks"; and distributes war bonds. Both clerks
A assign work to the other clerks in the section.
3 See Matter of The Babcock & Wilcox Co , 52 N L. R B 900
4 See Matter of Armour and Company, 49 N. L R. B. 688; Matter of Babcock & Wilcox
Co, 52 N. L. R. B. 900; Matter of Youngstown Sheet & Tube Company, 52 N. L. R. B. 559.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although it was testified that both clerks A have the power to
recommend to the head cashier disciplinary action with respect to
the other clerks, it appears that an independent investigation would
be made by the head cashier or the Division heads before any posi-
tive action would be taken. Since it appears that they are not super-
visory employees within the meaning of our customary definition,
we shall include the clerks who work in the cashier's office in the
appropriate unit.
Clerk who acts as assistant to the head receiving clerk; clerk who
.acts as assistant to the head ledger clerk; clerk who acts as assistant
to the head inventory clerk: Although it was testified that these
clerks, all of whom are clerks A, are designated as assistants to the
section heads, it appears that none of them is listed as such, or bears
this title on the Company's records. These employees assume the
,duties of the section heads in their absence. All assign work to the
other employees in their sections and while they may, recommend
disciplinary action with respect to these employees to the section
heads, it appears that such recommendations are thoroughly investi-
gated and checked before being acted upon. Although they have
access to the files in their sections, it does not appear that such files
pertain directly to confidential labor relations matters or that they
have any duties in connection with such matters as to warrant the
conclusion that they are confidential employees. On the basis of the
foregoing, we shall include the above clerks in the appropriate unit.5
The stenographer and clerk A who act as con fcdential secretaries
to the works accountant and the assistant works accountant: There
are four employees on the stenographic force. The two in question
are in charge of the work of the force, assign work to the other stenog-
raphers, recommend wage increases for the other stenographers,
and type all confidential letters, some of which contain advance in-
formation pertaining to the Company's labor relations. We shall
exclude these employees from the appropriate unit as confidential
employees.6
The class A clerk in the Pay-roll Division who is responsible for
the preparation of monthly reports: This clerk works under the
direct supervision of the chief and assistant chief of pay roll and is
responsible for the preparation of statistical and other reports
emanating from the Pay-roll Division. Included are pay-roll salary
reports, wage data reports, and reports for the New York State Labor
Department and the United States Department of Labor. He also
6 The Company in its brief states that there is a dispute as to the exclusion of the clerk
who acts as assistant to the head product clerk . The record does not, however , indicate
such to be the case. In any event , since it appears that this clerk ' s duties are substantially
the same as the duties of the employees described above, we shall provide for his inclusion
in the appropriate unit.
See Matter of General Motors Corporation , Chevrolet Motors Division, 53 N. L. R. B.
1096.
BETHLEHEM STEEL COMPANY 1235
receives copies of reports from the State and Federal Departments
of Labor; these reports are, however, also available to the general
public and so may not be deemed to be confidential. Inasmuch as
it does not appear that any of these reports relate directly to confi-
dential matters affectiVg labor relations, we shall include in the unit
the class A clerk in the Pay-roll Division who is responsible for the
preparation of monthly reports.
We find that all clerical employees in the Accounting Division of the
Lackawanna plant of the Company, including the clerks who work in
the cashier's office, the clerk who acts as assistant to the head receiving
clerk, the clerk who acts as assistant to the head ledger clerk, the clerk
who acts as assistant to the head inventory clerk, the clerk who acts as
assistant to the head product clerk, and the class A clerk in the Pay-roll
Division who is responsible for the preparation of monthly reports,
but excluding the stenographer and clerk-A who act as confidential
secretaries to the works accountant and the assistant works accountant,
confidential employees, weighers, the employees listed in Appendix A,
and all or any other supervisory employees with authority to hire, pro-
mote, 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 mean-
ing of Section 9 (b) of the Act.
Case No. 3-R-1017
The Union in this case seeks a unit of all clerical employees employed
in the Open Hearth offices, except for chief clerks, confidential em-
ployees, and all supervisory employees. The Company contends that
all the employees in the unit are confidential employees. It contends,
in its alternative position, that the petition be dismissed inasmuch as
the unit, after excluding confidential employees, would be too small to
effectuate the purposes of the Act.
There are three Open Hearth departments, each having a chief clerk
and a class B clerk. A chief clerk and clerk C are also employed on
the personal staff of the superintendent of the Steel or Open Hearth
Division, and there is a clerk C employed in the No. 1 Open Hearth.
The three class B clerks in the Open Hearths share the offices of
their respective chief clerks, and assume the duties of the chief clerk
every Friday for a few hours, and on one full day, the seventh day each
week. In the absence of the chief clerk, the B clerks attend superin-
tendents' meetings at which are discussed various operating and policy
problems, including some which relate to labor relations. The clerks
also type out and assist in the compilation of grievance data which is
used by the Company in the various steps of the grievance procedure
established for production and maintenance employees in the Open
662514-46-vol. 63-79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hearths. In view of the duties of. the B clerks in 'connection with the
typing and compiling of grievance data, which would enable them to
obtain advance information concerning grievances, and the fact that
they attend superintendents' meetings at which problems relating to
labor relations are discussed, we shall exclude the B clerks as confiden-
tial employees?
The C clerk who works for the superintendent of the Open Hearth
Division shares the office of the chief clerk who is also on the superin-
tendent's personal staff,.is responsible for keeping a record of the "life"
of the moulds used in the Open Hearths, and prepares a monthly report
on the moulds based on the figures received during the month. This
clerk also makes a record- of new moulds as received, and takes dicta-
tion and types letters for the superintendent, which include letters
regarding discharge or proposed discharge of employees, promotions,
and grievances. All files and correspondence of the superintendent,
including files relating to labor relations, are available to the clerk C.
From the nature of his duties we conclude -that the clerk C who works
for the superintendent of the Open Hearth Division is'employed in a
confidential capacity, and we shall exclude him.
The other clerk C in the Open Hearth Division is responsible for
the compilation of heat data, and clearly is not a confidential or super-
visory employee. However, the Board has frequently held that the
principle of collective bargaining presupposes -that there is more than
one eligible person who desires to bargain and that the National Labor
Relations Act therefore does not empower the Board to certify where
only one employee is involved. Since, in the absence of a sufficient
number of eligible employees, the bargaining unit sought in Case No.
3-R-1017 is inappropriate, we shall dismiss the petition."
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 Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
, See Matter of General Motors Corporation, Chevrolet Motors Division, 53 N. L R B
1096.
8 See Matter of Burke Brewery, Inc., 54 N. L. R. B. 1061.
BETHLEHEM STEEL COMPANY 1237
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Bethlehem Steel
Company, Lackawanna, New York, 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
of the-Regional Director for the Third Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Arti-
cle 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 preceding the
date of this Direction, including employees who did not work during
said pay-roll period because they were ill or on vacation or tempo-
rarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding those employees who have since quit or been discharged 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, C. I. 0., for the purposes of collec-
tive bargaining.
ORDER
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the National Labor Relations Board hereby orders
that the petition for investigation and certification of representatives
of employees of Bethlehem Steel Company, Lackawanna, New York,
filed by United Steelworkers of America, C. I. 0., in Case No. 3-R-
1017, be, and it hereby is, dismissed.
Ch AIRMAN HERZOG took no part in the consideration of the above
Decision, Direction of Election, and Order.
APPENDIX A
Works accountant
Assistant works accountant
Chief of cost
Cashier
Chief of pay roll and tabulating
Assistant chief of pay roll and
tabulating
Head receiving clerk
Head product clerk
Head ledger clerk
Head inventory clerk
Head shipment clerk
Head weigher
Supervisor of pay rolls
Supervisor of the tabulating sec-
tion
Head timekeeper
Assistant head timekeepers
Special clerks in the Cost Division
and the Pay-roll and Tabulat-
ing Division
Plant clerk
Class A clerk who acts as head
order clerk