Bethlehem Steel Co.

National Labor Relations Board - Board Decisions

Apr 25, 1962

136 N.L.R.B. 1500 (N.L.R.B. 1962)

1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
In view of the fact that since the events in this case Respondent has entered into a
collective-bargaining agreement with the Union, it is probable that there will be no
repetition of the conduct which led Respondent into the widespread violations of
Section 8(a) (1) here found. Nevertheless, the possibility of such repetition does
exist, and a cease and desist order should be entered to guard against it. For
purposes of this proceeding, however, the various Section 8(a)(l) violations are of
primary importance as background for the findings of discrimination violative of
Section 8(a)(3). No useful purpose would be served in detailing in the order the
specific types of conduct which Respondent has heretofore engaged in in violation of
Section 8(a)(1). Therefore in the light of the widespread and varied nature of the
acts of interference, restraint, and coercion, I shall recommend that Respondent be
ordered to cease and desist from infringing its employees' Section 7 rights in any
manner. I shall also recommend that Respondent restore insofar as possible the
conditions existing prior to the unfair labor practices, restore each of the discriminatees
to the position he filled prior to the discrimination against him, and make each of
them whole (in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289) for any loss of pay which he may have suffered by reason of the
Respondent's discrimination against him. I shall also recommend that the Re-
spondent, upon reasonable request, make available to the Board and its agent, all
payroll and other records pertinent to an analysis of the amount due under these
recommendations.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 ( 5) of the
Act.
2. By discouraging membership in a labor organization through discrimination in
employment , and by interfering with , restraining , and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8(a) (3)
and (1 ) and Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Bethlehem Steel Company (Shipbuilding Division ) and Bethle-
hem-Sparrows Point Shipyard , Inc. and Industrial Union of
Marine and Shipbuilding Workers of America , AFL-CIO.
Cases Nos. 2-CA-6866 and 2-CA-6867. April 25, 1962
SUPPLEMENTAL DECISION AND ORDER
On October 25, 1961, the Board issued a Decision and Order in this
proceeding,' finding, as the Trial Examiner did, that Respondent
Bethlehem Steel Company (Shipbuilding Division) had engaged in
certain unfair labor practices within the meaning of Section 8 (a) (5)
of the Act,2 but had not otherwise violated Section 8(a) (5) as alleged
in the complaint.
1133 NLRB 1347
2 The Trial Examiner's finding, which is not disturbed herein, Is that Respondent violated
Section 8(a) (5) by insisting to impasse in collective-bargaining negotiations with the
Union with respect to the hourly paid unit upon a contract clause requiring the signature
of individual employees on grievances
136 NLRB No. 135.
BETHLEHEM STEEL COMPANY (SHIPBUILDING DIV.) 1501
On December 6, 1961, the Charging Union filed a motion for recon-
sideration of the Board's Decision and Order to the extent that it dis-
missed the complaint, and on December 8, 1961, the General Counsel
filed a motion for clarification of the Decision and Order. On Decem-
ber 18, 1961, Respondent filed a statement with respect to the afore-
said motions in which it expressed opposition to the motion for re-
consideration but took no position on the request for clarification.
Upon consideration of the motions filed by the Charging Union and
General Counsel, the statement filed by Respondent, and the entire
record in the case, including the exceptions and briefs heretofore filed,
the Board finds merit in the motions and hereby grants them as indi-
cated below.'
1. In any case such as this, where it must be determined whether the
employer engaged in bargaining with a genuine desire to reach an
agreement, or in only sham bargaining, an issue is presented which
must be resolved on the basis of all the facts and circumstances of the
particular case. Although, as indicated below, we have found several
particular aspects of the Respondent's behavior to have been unlawful,
considering the totality of Respondent's conduct we are unable to con-
clude from the present record that Respondent did not honestly en-
deavor to reach an agreement in its negotiations with the Union. We
must therefore adhere to our prior argeement with the Trial Examiner
on this aspect of the case.
2. In our original Decision, we also agreed with the Trial Examiner
that Respondent did not violate Section 8(a) (5) of the Act by its uni-
lateral action taken with respect to certain matters following the expir-
ation of its collective-bargaining agreements with the Union on
July 31, 1959, covering hourly paid and salaried employees. We con-
tinue to believe that Respondent did not violate the Act when it ceased
giving effect to the contract provisions which required employees to
join the Union 30 days after hire and discontinued the checkoff of
union dues. However, upon reconsideration, we believe that Respond-
ent violated the Act when it deprived union representatives of certain
seniority rights and declined to process grievances as before.
In finding that the unilateral changes made after the termination of
Respondent's contracts with the Union were not unlawful, the Trial
Examiner found that none related to "terms and conditions of employ-
ment." We do not agree with this basis for the Trial Examiner's
recommended dismissal.' There can be little doubt that union secu-
s The Union ' s request for oral argument on its motion is denied for the record of the
prior proceeding together with the documents filed since issuance of the Decision and
Order adequately present the issues to be decided and the positions of the parties
4 Nor do we agree with the Trial Examiner's view that , while all conditions of employ-
ment are mandatory subjects of collective bargaining, "it does not follow that all manda-
tory subjects deal with conditions of employment " Section 8 ( a) (5) and ( d) together
define an employer 's bargaining obligation It is that the employer must bargain with
the representatives of his employees in good faith with respect to "wages, hours, and
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rity, checkoff, and preferential seniority affect, or may affect, "wages,
hours, and other terms and conditions of employment." So too with
grievance machinery. A method for presenting and adjusting griev-
ances which deal with "wages, hours, and other terms and conditions
of employment" is manifestly related to those matters. In accord
with Board and court decisions, we find that union security, checkoff,
preferential seniority, and a grievance procedure are matters related
to "wages, hours, and other terms and conditions of employment"
within the meaning of Section 8(d) of the Act and, therefore, are
mandatory subjects for collective bargaining.'
Notwithstanding the fact that union security and checkoff are com-
pulsory subjects of bargaining, and that Respondent acted unilaterally
with respect to them, we find nothing unlawful in Respondent's action
here. The acquisition and maintenance of union membership cannot
be made a condition of employment except under a contract which con-
forms to the proviso to Section 8 (a) (3). So long as such a contract
is in force, the parties may, consistent with its union-security provi-
sions, require union membership as a condition of employment. How-
ever, upon the termination of a union-security contract, the union-
security provisions become inoperative and no justification remains
for either party to the contract thereafter to impose union-security
requirements. Consequently, when, upon expiration of its contracts
with the Union, the Respondent refused to continue to require newly
hired employees to join the Union after 30 days of employment, it was
acting in accordance with the mandate of the Act.
Similar considerations prevail with respect to Respondent's refusal
to continue to check off dues after the end of the contracts. The check-
off provisions in Respondent's contracts with the Union implemented
the union-security provisions. The Union's right to such checkoffs
in its favor, like its right to the imposition of union security, was
created by the contracts and became a contractual right which con-
tinued to exist so long as the contracts remained in force. The very
language of the contracts links Respondent's checkoff obligation to the
Union with the duration of the contracts. Thus, they read : ". . . the
Company will, beginning the month in which this Agreement is signed
and so long as this Agreement shall remain in effect, deduct from the
pay of such Employee each month . . . his periodic Union dues for
that month." Consequently, when the contracts terminated, the Re-
spondent was free of its checkoff obligations to the Union.
other terms and conditions of employment " Unless a matter is related to those subjects,
it does not fall within the scope of mandatory bargaining imposed by the Act. See
N.L.R.B. v. Wooster Dsvistion of Borg-Warner Corporation, 356 U S 342 ; North Carohna
Furniture, Inc., 121 NLRB 41.
5 N L R.B. v The Proof Company , 242 F. 2d 560 (C.A 7) ; N.L.R B. v. Reed & Prince
Manufacturing Company, 205 F. 2d 131 ( C.A. 1) ; N.L R.B v Ross Gear & Tool Company,
158 F 2d 607 ( C A. 7) ; United States Gypsum Company, 94 NLRB 112.
BETHLEHEM STEEL COMPANY (SHIPBUILDING DIV.) 1503
As already indicated, it is with respect to the unilateral action taken
in terminating certain seniority rights and altering an existing griev-
ance procedure that we now believe the Respondent violated Section
8 (a) (5) of the Act.
A grievance procedure was established by Respondent's contract
with the Union which was designed to accommodate "any matter
which in the opinion of the Union or of any Employees requires ad-
justment." This procedure provided the employees with an orderly
method, known to all, for adjusting any dissatisfaction with their
employment. As of August 1, 1959, the Respondent, acting unilat-
erally, abandoned this 'gr vane machinery and substituted a new
procedure therefor. We find that this unilateral action taken with
respect to a matter related to "wages, hours, and other terms and
conditions of employment" was in derogation of the Union's repre-
sentative status and a violation of Section 8 (a) (5).
By virtue of Respondent's contract with the Union, certain em-
ployee representatives of the Union became vested with "top seniority
rights." Such rights provided those employees with additional se-
curity and protection of job rights in the event of layoff and the effect
thereof was to make available to the employees better qualified union
representatives. Again acting unilaterally on August 1, the Respond-
ent abrogated these seniority rights and thus terminated the benefits
which had accrued to employees thereby. It has already been noted
that preferential seniority may affect an employee's "wages, hours,
and other terms and conditions of employment" and is therefore a
mandatory subject of bargaining. Just as Respondent could not uni-
laterally alter the grievance procedure, or would not have been privi-
leged to act unilaterally with respect to any existing wage rate or term
or condition of employment, no matter how established, it could not on
its own choose to disregard the seniority rights acquired by its em-
ployee union representatives.6 By acting as it did, Respondent vio-
lated Section 8 (a) (5) of the Act.
THE REMEDY
Having found, upon reconsideration, that Respondent also violated
Section 8(a) (5) of the Act by unlawful unilateral action affecting
employees in both the hourly paid and salaried bargaining units, we
shall enter a Supplemental Order in these cases.
ORDER
Upon the entire record in this case and pursuant to Section 10(e)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Bethlehem Steel
E CP. Zdanok et al. v. Glidden Company, Durkee Famous Foods Division , 288 F. 2d 99
(,C. A. 2), cert. granted on other grounds 82 S. Ct. 476.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company (Shipbuilding Division), Bethlehem, Pennsylvania, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Industrial Union of
Marine and Shipbuilding Workers of America, AFL-CIO, as the ex-
clusive representative of all its employees in the appropriate bargain-
ing units with respect to rates of pay, wages, hours of employment, or
other terms or conditions of employment.
(b) Insisting to impasse in collective bargaining with the Union
upon a contract clause requiring the signature of individual employees
on grievances or upon any other proposal not related to rates
of pay, wages, hours of employment, or other terms or conditions of
employment.
- (c) Unilaterally changing grievance procedure, seniority rights,
rates of pay, wages, hours of employment, or other terms or conditions
of employment without first giving notice and bargaining with respect
thereto with Industrial Union of Marine and Shipbuilding Workers
of America, AFL-CIO, as the exclusive representative of all its
employees in the appropriate bargaining units.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist Interna-
tional Union of Marine and Shipbuilding Workers of America, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act, and
to refrain from any or all such activities, except as permitted by Sec-
tion 8(a) (3) of the National Labor Relations Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with Industrial Union of
Marine and Shipbuilding Workers of America, AFL-CIO, as the
exclusive representative of the employees in the appropriate bar-
gaining units with respect to rates of pay, wages, hours of employ-
ment, and other terms or conditions of employment and if an under-
standing is reached, embody such understanding in a signed
agreement.
(b) Post at each of its east coast shipyards copies of the notice at-
tached hereto marked "Appendix." I Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall,
"In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an ,Order."
BETHLEHEM STEEL COMPANY (SHIPBUILDING DIV.) 1505
after being duly signed by representatives of the Respondent, be
posted by the Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to com-
ply herewith.
IT IS FURTHER ORDERED that the complaint in these cases be, and it
hereby is, dismissed, insofar as it alleges violations of the Act other
than those noted herein.
MEMBER RODGERS, dissenting in part :
I agree to revising the Board's Decision in this case. But I would
do so by deleting from the Board's Decision the language "without
completely agreeing with all his [the Trial Examiner's] subsidiary
findings." I would now adopt the Trial Examiner's findings, con-
clusions, and recommendations in their entirety.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain, upon request, with Industrial Union of
Marine and Shipbuilding Workers of America, AFL--CIO, as
the exclusive representative of all employees in the appropriate
bargaining units with respect to checkoff, superseniority for union
officers, shop stewards, and grievance committeemen, and griev-
ance procedure.
WE WILL NOT insist to impasse in collective bargaining with the
Union upon a contract clause requiring the signature of indi-
vidual employees on grievances or upon any other proposal not
related to rates of pay, wages, hours of employment, or other
terms or conditions of employment.
WE WILL NOT unilaterally change rates of pay, wages, hours of
employment, or other terms or conditions of employment with-
out first giving notice and bargaining with respect thereto with
the Union as the exclusive representative of all employees in the
appropriate bargaining units.
WE WILL NOT in any like or related manner interfere With, re-
strain, or coerce our employees in the exercise of their rights to
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self-organization, to form labor organizations, to join or assist
Industrial Union of Marine and Shipbuilding Workers of
America, AFL-CIO, or any labor organization, to bargain col-
lectively through representatives of their own choosing, or to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities, except as permitted by Section 8(a) (3) of
the National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
All of our employees are free to become or remain members of any
labor organization.
BETHLEHEM STEEL COMPANY
(SHIPBUILDING DIVISION),
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 5th Floor, Squibb Building, 745 Fifth Avenue, New York 22,
New York, Telephone Number Plaza 1-5500, if they have any question
concerning this notice or compliance with its provisions.
The Centor Company i and District 50, United Mine Workers of
America, Petitioner . Case No. 13-RC-8259. April 25, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a 'hearing was held before Richard P. Gethner,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in this case to a three-member panel [Chair-
man McCulloch and Members Leedom and Brown].
Upon the entire record in this case the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner seeks to represent the landing employees 2 em-
ployed at the Employer's Joliet, Illinois, operation. The Employer
contends that all the employees sought are guards within the mean-
i The Employer's name appears as amended at the hearing.
2 These employees are referred to in the record both as "landing men" and as "watchmen."
136 NLRB No. 139.