Jones & Laughlin Steel Corp.Download PDFNational Labor Relations Board - Board DecisionsMar 7, 194666 N.L.R.B. 386 (N.L.R.B. 1946) Copy Citation In the Matter Of JONES & LAUGHLIN STEEL CORPORATION, VESTA- SHANNOPIN COAL DIVISION and UNITED CLERICAL, TECHNICAL AND SUPERVISORY EMPLOYEES UNION OF THE MINING INDUSTRY, DIVISION OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA Case No. 6-R-1191.-Decided March 7, 1946 Reed, Smith, Shaw & McClay, by Messrs. John C. Bane, Jr., Nicholas Unkovic, W. D. Armour, and J. Leonard Smith, of Pitts- burgh, Pa., for the Company. Messrs. Samuel Krimsly, John McAlpine, and Robert J. Condra, of Pittsburgh, Pa., for the UCT. Mr. Bernard Goldberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon a petition duly filed by United Clerical, Technical and Supervisory Employees Union of the Mining Industry, Division of District 50 United Mine Workers of America, herein called the UCT, alleging that a question affecting commerce had arisen concerning the representation of employees of Jones & Laughlin Steel Corpora- tion, Vesta-Shannopin Coal Division, Pittsburgh, Pennsylvania, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Frank M. Kleiler, Trial Examiner. The hearing was held at Pittsburgh, Pennsylvania, on various dates between September 27 and October 8, 1945. The Company i and the UCT appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing, the Company made two separate motions to dismiss the petition. The Trial Examiner referred these motions 1 At the outset of the hearing the Company announced that it was appearing specially to contest the jurisdiction of the Board . However, notwithstanding this declaration, the Company participated fully in the hearing, 66 N. L. R. B., No. 51. 386 JONES & LAUGHLIN STEEL CORPORATION 387 to the Board. Both motions are hereby denied. The Trial Examiner's rulings 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. Oral argument was later heard before the Board in Washington, D. C. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Jones & Laughlin Steel Corporation is a Pennsylvania corporation engaged in the manufacture and sale of iron and steel products. It operates plants in Pittsburgh and Aliquippa, Pennsylvania, and Cleveland, Ohio. On July 26, 1941, Vesta Coal Company and Shannopin Coal Company, wholly owned subsidiaries of the Com- pany, were merged with the latter. By virtue of the merger, Jones & Laughlin Steel Corporation became engaged in the mining of coal in Washington and Greene Counties, Pennsylvania, through its Vesta-Shannopin Coal Division. The Vesta-Shannopin Coal Division, with general mine offices at California, Pennsylvania, operates four mines known as Vesta Mines Nos. 4, 5, and 6, and Shannopin Mine. Practically all the coal mined, weighed, and loaded at these mines is transported via river tows to the Company's plants in Pittsburgh and Aliquippa. During the year 1944, the Vesta-Shannopin Coal Division mined more than 3,000,000 tons of coal, all of which was used at the Company's two Pennsylvania plants. During the last 12-month period, the value of raw and other materials used by Jones & Laughlin Steel Corporation at its Pitts- burgh and Aliquippa plants was in excess of $25,000,000, of which at least 50 percent originated outside the Commonwealth of Pennsyl- vania. During the same period, the value of the finished products of the Pennsylvania plants was in excess of $100,000,000, of which more than 50 percent was shipped to points outside the Common- wealth of Pennsylvania. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED United Clerical, Technical and Supervisory Employees Union of the Mining Industry, Division of District 50, United Mine Workers 388 DECISIONS OF NATIONAL LABOR, RELATIONS BOAItI) of America, is a labor organization admitting supervisory employees of the Company to membership.2 III. THE QUE$TION$,CONCERNING REPRESENTATION The Company has declined to recognize the UCT as the collective bargaining representative of its supervisory employees. In support of its initial motion to dismiss the petition, the Com- pany contends that the fire bosses, assistant mine foremen, and com- parable supervisors involved in this proceeding are not employees within the meaning of the Act, and that, therefore, the Board is without jurisdiction to entertain the UCT's petition. The arguments advanced by the Company to support this position have been con- sidered in a number of previous cases. „ The Board has found,3 as have the courts,' that the definitions of "employer" and "employee" contained in the Act are not mutually exclusive; that a foreman, for example, is an "employer" when lie, acts in the interest of his em- ployer, but he is an "employee" when he acts in his own interest, as when he seeks to better the terms and conditions of his employment. Inasmuch as the present proceeding covers the "employee" aspect of their relationships, we find that the supervisors involved in this proceeding are employees within the meaning of Section 2 (3) of the Act. The effect of the important fact that the petitioner is affiliated with a labor organization that represents rank and file employees, which differentiates the present case from those already decided, is discussed at a later point in this opinion. In its second or supplemental motion to dismiss the petition, the Company argues that, under the doctrine enunciated in the Briggs Indiana case,5 presently existing agreements to which the United Mine Workers of America (hereinafter called the, UMWA), and the Company are parties, estop the UCT, an affiliate, of the UMWA, 8 One of the grounds urged by the Company in support of its motion to dismiss the petition was the claim that the UCT is not a labor orgamzatu n within the meaning of the Act Section 2 (5) of the Act states : -"The term `labor organization' means any organization of any kind , or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose , in whole or in part, of dealing with employees concerning grievances , labor disputes, rates of pay, hours of employment , or conditions of work." The UCT is clearly a "labor organization" within this definition. 3 Matter of So88 Manufacturing Company, et al., 56 N. L. R. B. 348; Matter of Packard Motor Car Company, 61 N. L. R. B 4, and 64 N. L. R. B . 1212; Matter of L. A Young Spring & Wire Corporation , 65 N. L. R. B. 298 ; Matter of The B. F. Goodrich Company, 65 N. L. R. B. 294; Matter of Simmons Company, 65 N. L. It. B. 984 ; Matter of The Midland Steel Products Company, 65 • N.'L. It. B. 997. 'N. L. R. B. v. Armour and Co, 154 F. (2d) 570 (C. C. A. 10) ; Jones & Laughlin Steel Corporation v. N. L. R. B., 146 F. (2d) 833 (C. C. A. 5) ; N. L. R. B. v. Skinner & Kennedy Stationery Company, 113 F. ( 2d) 667 (C, C. A. 8). 6 Matter of Briggs Indiana Corporation, 63 N. L . It. B. 1270. JONES & LAUGHLIN STEEL CORPORATION 389 from seeking to represent the Company's supervisory employees. The facts relevant to this contention are as follows : On April 11, 1945, the UMWA entered into a Nation-wide collective bargaining agree- ment with the National Bituminous Coal Wage Conference, a com- mittee representing various regional bituminous coal operators' associations and individual operators, including the Company. This contract specifically incorporates the terms and conditions of all previous district, regional, and Nation-wide agreements effective since April 1, 1941, except as amended and supplemented by the current agreement. Among the contracts carried forward is the 1941 Ap- palachian agreement, which contains an exemption clause and two management clauses upon which the Company relies to establish the applicability of the Briggs Indiana doctrine. These clauses have not been either amended or supplemented by the 1945 contract. The exemption clause provides : "The ,term Mine Worker as used in this Agreement shall not include mine foremen, assistant mine foremen, fire bosses, or bosses in charge of any classes of labor in- side or outside of the mine, or coal inspectors or weighbosses, watch- men, clerks, or members of the executive, supervisory, sales and technical forces of the Operators." The managerial clauses state that "The management of the mine, the direction of the working force, and the right to hire and discharge are vested exclusively in the Operator, and the United Mine Workers of America shall not abridge these rights," and that "The Mine Workers intend no in- trusion upon the rights of management as heretofore practiced and understood." The 1945 agreement may be terminated, in accordance with its terms, at any time after March 31, 1946, on the service of appropriate notice.6 In the Briggs Indiana case, a majority of the Board, reversing previous decisions, declined to make the election machinery of the Act available to a local union seeking to represent plant-protection employees, where the local union's parent body had agreed, in a recent short-term collective bargaining contract with the same em- ployer, that it would not accept the employer's plant-protection employees as members. The decisive fact in the Briggs Indiana case was that the parent union had agreed explicitly and in writing not to admit plant guards into membership. No comparable under- taking with respect to supervisors can be deduced from the language used in the extant agreements between the UMWA and the coal operators. The exemption clause is similar to the usual coverage The contract provides: "At any time after March 1, 1946 either party may give ten days' notice in writing of a desire for a negotiating conference upon the matters outlined in said notice The other party agrees to attend said conference At the end of fifteen days after the beginning of such negotiating conference, either party may give to the other a notice in writing of the termination of this Agreement, to be of fective five days after the receipt of such notice " 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clause which is.part of most collective bargaining agreements. As customarily understood, such a clause means simply that the exempted classifications of employees are outside the scope of the particular agreement. It does not mean that the contracting union has under- taken not to enroll the exempted employees in its ranks or thereafter not to seek to represent them in some other appropriate collective bargaining unit. Neither can such an undertaking be deduced from the managerial causes referred to by the Company. We have not treated such agreements as bars to elections, even since Briggs Indiana was decided.? The Company, however, appeals to oral evidence of events from 1939 to 1943 to establish the validity of its construction of the present agreements. The rule propounded in the Briggs Indiana case con- stitutes a limitation upon the normal right of employees to invoke the Board's machinery for the selection of a bargaining representa- tive. As such it is to be strictly construed. The present agreement certainly cannot be said to support the Company's position by its explicit terms, and we are unwilling to embark upon the uncertain course of depending upon oral interpretation. Moreover, the 1945 agreement (see footnote 6) specifically provides that it may be opened upon notice in March 1946, "upon the i atters outlined in said notice." The representation of supervisors may well be such a matter. This clause discloses that it was the affirmative intention of the parties to leave such questions open for possible reconsideration at this very time, and differentiates the agreement from that in Briggs Indiana.8 We find that the agreements between the UMWA and the coal operators, including the Company, are not a bar to this proceeding .9 ° See Matter of Industrial Collieries Corporation , 65 N. L. R. B. 683; Matter of Elk Horn Coal Corporation , 64 N L. R B 1563; Matter of Chrysler Motors of California„ 65 N. L. R. B. 893; Matter of American Central Manufacturing Corporation, 65 N. L. R B. 342. e Indeed, on March 2, 1946 , after the decision in this case was reached , the Board received official notice from the UMWA , in accordance with the War Labor Disputes Act (50 U. S. C . A. 1508 ), stating that it had served notice on the Operator 's Negoti- ating Committee for a negotiating conference to convene on March 12 , 1946. Among the subjects in dispute listed in the notice " is the question of the rights of super- visory employees in the coal industry to be members of the United Mine Workers of America and to be covered by contract." By the terms of the present agreement, the service of a notice for a negotiating conference is the first step in the termination of the contract The UMWA' s letter indicates that the contract will be terminated as of March 31, 1946. Accordingly , the Briggs Indiana rule would not be applicable to the present case in any event, since the present contract will have expired by the time an election would normally be held. 'Member Houston concurs in the conclusion herein that the majority decision in the Briggs Indiana case has no applicability here. In view of his dissenting opinion in that case , however , wherein he stated that any agreement between a labor organiza- tion and an employer which might be construed to limit the right of employees to select collective bargaining representatives, was in derogation of the Act and there- fore invalid , he finds it unnecessary either to agree or disagree with the rationale adopted in the decision in the instant case disposing of the Company 's contention in this connection. JONES & LAUGHLIN STEEL CORPORATION 391 A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the UCT represents a substantial number of em- ployees in the alleged appropriate unit.10 We find that questions affecting commerce have 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 UNITS UCT's contentions The UCT seeks a unit of all supervisors at the Company 's Vesta Mines, Nos. 4, 5, and 6 , the Shannopin Mine, and the general mine office at California, Pennsylvania, excluding mine foremen , superin- tendents , assistant general superintendents , general superintendent, general master mechanic, director of industrial relations , safety director , chief engineer , chief clerk at the California mine office, and chief of police. Company's contentions The Company objects to the proposed unit and urges that the UCT's petition be dismissed. The Company's opposition to the unit is apparently based, not on any improper grouping of the supervisors, but on the broader ground that no unit of these supervisors would be appropriate. This ultimate contention rests on the following main propositions: (a) the Company is not engaged in a mass production industry and its supervisors are not industrial "traffic cops" thus distinguishing them from the foremen in the Packard case;11 (b) a majority of the supervisors in the proposed unit have statutory duties of such character under the Pennsylvania mining laws as to bar their representation by the UMWA or the UCT; (c) the traditions of the coal mining industry and of the UMWA forbid either the UMWA or any satellite to represent these supervisors; and (d) the UCT is not an independent, unaffiliated labor organization and is therefore incompetent to represent the Company's supervisors. Occupational descriptions Each mine is in charge of a superintendent. Subordinate to him is a mine foreman who is in charge of the inside workings of the mine 10 The Trial Examiner reported that the UCT submitted 136 application cards ; that the names on 123 of the cards appeared on the Company 's pay roll of July 15, 1945; and that there are 152 employees in the alleged appropriate unit. " Matter of Packard Motor Car Company , 61 N. L. R. B 4. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the personnel working underground,12 The UCT,urges the exclusion of both these classifications, It desires to include the job categories described below : General assistant mine foreman; This individual is the principal assistant to the mine foreintn. In the larger mines two general assistants are employed, one of whom usually acts as mine foreman on the night shift and the other as alter egg for the mine foremen. The general assistant mine foreman who serves on the same shift as the mine foreman assumes part of the latter's duties and has much of his authority. As part of his duties he exercises supervision over assistant mine foremen, mine crew foremen, fire bosses, and other employees working inside the mine. Assistant mine foreman: In general, an assistant mine foreman is in charge of a section in a mine, supervising trie,work of from 2,0 to 50 employees. He, assigns his subordinates to their jobs,,keeps their time records, and enforces Commonwealth and company ssafety regu- lations. He represents the Company in the informal settlement of a great many of the grievances filed by his subordinate rank and file workers. He may assign subordinates to better jobs within his juris- diction and generally can, effectively recommend a change in their status. He may also act for the Company in making individual contracts with minors. for the performance of "dead work." This power arises from, the fact that in hand loading operations, conditions of work occur which cannot be compensated for at contract rates. In such cases, the assistant mine foreman agrees with the individual miner on a rate to be paid for the particular j;ob. These agreements by the assistant mine, foreman are binding upon the Company. Mine crew foreman: This employee is in•charge of a mechanical loading section or unit. He generally bosses a crew of about, 20 men, assigning them to their jobs, directing their work, and keeping their time records. With respect to his subordinates, he generally has the authority of an assistant mine foreman. Fire boss: According to the mining laws, no mine can lawfully be placed in operation on any day until it has first been inspected. To make this daily inspection is the fire boss' primary, task. Each morning he enters. the mine several hours before, the miners are ex- pected to report for work and checks on the condition of the mine. On his representation that the mine is sufficiently safe to be operated, the miners are permitted to enter the mine. After the miners have commenced work, the fire boss makes a second inspection. This time he divides his work with, the assistant mine foreman in charge of the section which is to be inspected. The fire boss starts his inspection at one end of the, section and the assistant mine foremen begins an iden- 12 Vesta Mine No. 6 has a superintendent but no ,mine,forepi an, because pf its small size. JONES & LAUGHLIN STEEL CORPORATION 393 tical inspection at the other end. As he proceeds through the section the fire boss not only checks for unsafe working conditions, but also acts as assistant mine foreman with respect to the men working in that part of the section which he traverses. The general assistant mine foreman , the assistant mine foreman, the mine crew foreman and the fire boss, are all licensed by the Commonwealth. Maintenance boss and mechanical boss: These general titles are used to describe supervisors who direct crews in the operation and maintenance of machinery and equipment inside and outside the mine. The authority of these bosses in regard to their crewmen is approximately equivalent to that of an assistant foreman. Dispatcher: He controls the movement of locomotives and trains inside the mine. However, he apparently does not exercise the authority of a supervisor within the Board's definition with respect to the train crer"vmen, or any other employees. Tipple foreman: This employee is in charge of operating, repair- ing, and maintaining the tipple and its machinery. He may supervise as many as 40 rank and file employees. He is responsible to the mine superintendent and occupies a position in the supervisory hierarchy equivalent to that of mine foreman. Weighmaster: He weighs the coal cars as they come from the mine, records the weights and assigns credit for the contents to the various miners whose tags the coal cars bear. Usually he has no assistants or helpers. He does not appear to exercise supervisory authority within the Board's definition. Chief mine clerk : This individual supervises a small group of clerks working at the mine. These clerks prepare time reports, make up the mine pay roll, figure costs, and do other work of a clerical nature. At the general mine office in California, Pennsylvania, the UCT wishes to exclude the general superintendent, both assistant general superintendents , the general master mechanic, the director of in- dustrial labor relations , the safety director, the chief engineer, the chief clerk, and the chief of police. It seeks to include the job categories described hereinafter: Assistant general master mechanic: He is assistant to and sub- stitutes for the general master mechanic in the latter's absence. A good part of his time is spent in direct supervision of jobs which are too difficult for the maintenance or mechanical bosses. His authority appears to be less than that of an assistant foreman. Training supervisor: This individual has been functioning for some time only as a recruiter of labor. In normal times he conducts training classes for supervisors. He does not have any subordinates. Safety inspector : Working under the direction of the safety direc- 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tor, the safety inspector, who has a first grade assistant mine fore- man's certificate, makes periodic visits to the mines for the purpose of reporting to the main office on safety conditions and the enforce- ment of safety rules. He has no subordinates. Engineer: He directs employees engaged in engineering work at each mine. Chief draftsman : He supervises a group of draftsmen. Transitman: This employee is in charge of a small group of chain- men. Together they make engineering surveys inside and outside the mines. Assistant chief clerk : He assists and substitutes for the chief clerk in the latter's absence. Like the chief clerk, he has access to various financial records, including confidential pay-roll and tax records. Chief supplies clerk : Requests for supplies are made to the chief supplies clerk. He procures such supplies either by purchase from local sources or by requisition to the purchasing department in Pitts- burgh. He supervises a small group of clerks. The argument that the Company is not engaged in mass production and its supervisors are not "traffic cops" of industry The Company's argument is based on some of the reasoning used in the first Packard case in finding that a unit of foremen was appro- priate. However, in the subsequent Young case,13 decided since the hearing and oral argument in this proceeding, a majority of the Board, in reaffirming the conclusion of the Packard case that a unit of foremen was appropriate, clarified and broadened the basis on which such determination was made. In the Goodrich case14 a major- ity of the Board, summarizing the basis of its reasoning in supervisory cases, stated that the rights of foremen under the Act derives from the fact that they are employees within its meaning; that as "employ- ees" they are entitled, like non-supervisory employees, to be placed in some appropriate bargaining unit under Section 9 (b) ; that the kind of industry in which the formen are employed is immaterial; and that the nature of the duties and responsibilities of foremen is relevant only insofar as it may bear upon the question of proper, grouping for collective bargaining purposes. Accordingly, this argu- ment provides no basis for dismissing the petition. - Matter of L. A. Young Spring & Wire Corporation , 65 N L. R. B 298; see also the Chairman 's concurring opinion in the second Packard case , 64 N. L. R B. 1212. u Matter of The B. F. Goodrich Company, 65 N R L B 294. JONES & LAUGHLIN STEEL CORPORATION 39S The argument that because many of the supervisors in the proposed unit have statutory duties under the Pennsylvania mining laws, they cannot be represented by the UMWA or the PICT Bituminous coal mining is an extremely hazardous occupation and is therefore extensively regulated by the Commonwealth of Pennsyl- vania. The mining laws contain detailed regulations as to how and under what conditions the mines are to operate. The statutes define the duties of the various supervisors in immediate charge of the mine, including the duties of the assistant mine foremen and fire bosses who are included in the proposed unit. The laws further provide that such supervisors shall be licensed by the Commonwealth and shall be examined for competence before receiving their certificates. In addition, a recent statute provides that "Every mine foreman, assist- ant mine foreman or fire boss, under the provisions of the Bituminous mining laws or the Anthracite Mining laws, shall represent the Com- monwealth in the coal mine or colliery in which he is employed and be deemed to be an officer of the Commonwealth in enforcing the provisions of said Mining Laws and performing his duties there- under." 5 The Company has not contended that because of the quoted pro- vision of the mining law the mine foremen, assistant mine foremen, and fire bosses are no longer employees of the Company but of the Commonwealth of Pennsylvania.'(' The emphasis placed by the Com- pany on statutory duties appears to be to support the argument that the supervisors here involved are not industrial "traffic cops" to use the metaphor adopted by the then majority of the Board in the first Packard case. As we have seen, however, the appropriateness of a bargaining unit of supervisors does not depend on whether the super- visors are industrial "traffic cops." Tht fact that some of the super- visors have statutory duties may well be relevant on the question of whether such supervisors should be grouped in a separate unit apart from other supervisory employees, but it cannot operate to deny all bargaining rights to them. The Company also asserts that if the UCT is designated as the collective bargaining representative of its licensed supervisors, the latter will no longer be able adequately to perform their statutory is P. L. 355, Approved June 3, 1943. 18 The statute makes the mine foremen , assistant mine foremen, and fire bosses of- ficers of the Commonwealth only for the purpose of "enforcing the provisions of said Mining Laws and performing his duties thereunder ." All other aspects of their re- lationship are, so far as appears from the record, determined by the Company. Under these circumstances , whatever their relationship to the Commonwealth, the mine fore- men, assistant mine foremen , and fire bosses are also employees of the Company and may bargain collectively as to those terms and conditions of their employment which are currently fixed by the Company. See Matter of Union Collieries Coal Company, 44 N L. R. B. 165; Matter of Tampa Shipbuilding Company , Incorporated, 62 N. L. R. B. 954. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duties because of the control exercised over the UCT by the UMWA. While a witness for the Company testified, in this connection, that representation of assistant mine foremen and fire bosses by the UCT would seriously handicap the enforcement of the Commonwealth's safety laws, an equally qualified witness testifying at the instance of the UCT was as emphatic in stating that the unionization of super- r isors would result in more satisfactory enforcement of the safety laws. It should be noted that the numerous safety regulations prescribed in the Commonwealth's mining code are primarily for the protection of the mine personnel working underground and not for the protec- tion of company property. We fail to perceive, therefore, why super- visors represented by an affiliate of the union that is the collective bargaining representative of the rank and file miners should be less solicitous of the safety of miners who are also fellow union members than non-unionized or independently represented foremen would ba It would appear that membership in the union which represents rank and file members would not interfere with proper enforcement of the safety regulations designed for the protection both of himself and his union associates. The argument that the traditions of the coal mining industry and of the UMWA forbid either the UMWA or the UCT to represent its supervisors There is nothing in the language of the Act or in the circumstances surrounding its adoption to indicate that Congress intended the scope of the Act to be limited by bargaining history either within an indus- try or among a given group of employees. On the contrary, as the Supreme Court stated in the Hearst case17 Congress in passing the Act "sought to find a broad solution, one that would bring industrial peace by substituting, so far as its power could reach, the rights of workers tb self-organization and collective bargaining for the industrial strife which prevails when these rights are not effectively established."1a Tradition'is a proper factor to be considered in determining how em- ployees are to be grouped for collective bargaining purposes, but it is not a determinant of either the Board's jurisdiction or of the fun- damental rights of employees, including foremen, under the Act. 17 N. L. $. B v Ilea? st Publications , Inc , 322 U. S. 111 18 gee Matter of Packard Motor Car Company, 61 N. L. R. B. 4. JONES & LAUGHLIN STEEL CORPORATION 397 The argument that the UCT is not an independent, unaffiliated labor organization and therefore may not be certified as the representative of the Company's supervisors The UCT historically derives from the Mine Officials' Union of America, herein called the MOU, an independent organization of mine supervisors which had its inception in 1940. The MOU, although it pressed a vigorous organizational campaign, was generally unable to win recognition from the mining companies. The MOU was the organization certified by this Board in 'the Union Collieries case in 1942.19 It sought to enlist the interest of the UMWA, which repre- sents the bulk of the miners in the industry. At the time of the original representations by the MOTT, the UMWA constitution barred super- visors from membership. In October 1942, however, the UMWA constitution was amended by the addition of the following clause : "The International Executive Board may, in its discretion, provide rules and regulations upon which supervisory and other employees may be admitted to membership.1120 In February 1943, the UMWA's International Executive Board, acting on the petition of the MOU and pursuant to the amended constitution, passed a resolution admit- ting members of the MOU to individual membership in the UMWA as of April 1, 1943, the date on which the outstanding contracts be- tween the UMWA and the coal operators expired. The MOU there- upon ceased to exist. Originally, the International Executive Board of the UMWA planned to have the supervisors admitted as members of rank and file locals. However, in October 1943 the Executive Board wisely altered this plan. It created the UCT to organize supervisors, clerical and technical employees in the coal mining industry. As presently established, the UCT is nominally a division of Dis- trict 50. Actually, it resembles a division of the UMWA. The UCT has no separate constitution or set of bylaws; it functions under those of the UMWA. It has two officers, both of whom were ap- pointed to their present posts by national officials of the UMWA, although the president, McAlpine, was formerly the elected president of the MOU. The salary and expenses of both officials are paid by the national office of the UMWA. The only employee, a stenographer, is paid from the UCT's own funds. The UCT is under the general supervision of the UMWA's International Executive Board. The parent union's constitution provides that "The International Union shall have supreme legislative, executive, and judicial authority over lY Matter of Union Coll,erses Coal Company, 44 N. L. R B. 165. 20 Article xlv, Section 2. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all members and subordinate branches ...".21 The secretary-treasurer of the UCT submits regular financial reports to the UMWA. The UCT organizes clerical and technical employees as well as supervisors. However, it attempts to keep the two groups apart by chartering separate locals for supervisors and for non-supervisory clerical and technical employees. Each of these locals has an elected set of officials and bylaws adopted by its own membership. The mem- bership of the supervisors' locals meets apart from the rank and file employees who are members of the various UMWA locals. Members of the UCT swear to the oath of obligation required of all UMWA members and they pay the same dues and initiation fees required of direct members of the UMWA. The dues of UCT members are allo- cated as are those of the UMWA rank and file : of the $2 monthly dues, $.90 goes to the UMWA, $.65 is assigned to the UCT, and $.45 remains with the local. In the two Packard and Young cases, a majority of the Board found appropriate units of foremen represented by an independent, unaffiliated foremen's labor organization. Because it was unnecessary to a decision in those cases, the majority expressly reserved the ques- tion of whether it would make the same determination where the petitioner was an affiliate of a rank and file labor organization. That question is now squarely before the Board, and is the principal issue in this case. It is not, however, altogether a matter of first impression, for the Board directed an election in, a similar situation in the God- chaux Sugars case in 194222 The Board has already found that these foremen are "employees" within the meaning of the Act. (Section III, supra, and cases cited therein.) We think that this is largely dispositive of this case. The Act contains no specific language empowering the Board to disqualify a freely chosen, legitimate labor organization, not company domi- nated, as the collective bargaining representative of persons already found to be "employees" within the meaning of the Act. It is argued, in effect, however, that the duty to define the appropri- ate unit conferred by Section 9 (b) carries with it a power to limit the employees' choice of a bargaining representative. A reading of the section does not support this view. Section 9 (b) is concerned with the question of how employees are to be grouped and not with the question of who is to represent them. The Board is entrusted with the task of deciding whether the "employer unit, craft unit, plant unit, or subdivision thereof," is the appropriate unit calculated "to insure to employees the full benefit of their right to self -organi- t Artlc1e III, Section 1. 23 Matter of Godchaux Sugars, Inc., 44 N. L it B. 874. JONES & LAUGHLIN STEEL CORPORATION 399 zation and to collective bargaining, and otherwise to effectuate the policies of this Act." This is language of classification and not of exclusion. It authorizes the Board to select between alternatives as to which type of unit will best "effectuate the policies of the Act"; it gives us no license to hold that some persons who are "employees" belong in no unit whatsoever. Once the Board determines that cer- tain employees are properly grouped, it has discharged its function under this section. As the statute is now written, we find no authority to step beyond this point and, because of some concern as to what might be best for industry or even for employees, declare that certain employees may not express their uninhibited choice because the pe- titioner happens to be an affiliate of the labor organization which represents a company's rank and file employees. The Act guarantees to all employees the right to bargain collec- tively "through representatives of their own choosing." Unless, therefore, certification of a bargaining representative freely selected by a given group of employees in an appropriate unit would be con- trary to the policy of the Act, this Board cannot and should not re- fuse to honor the employees' choice. That policy appears in the preamble : "It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." (Emphasis supplied.) This policy would not be effectuated by discouraging collective bargaining as a means of settling labor disputes involving foremen or by our reaching out for power to place limitations on the right of foremen, who are employees, to bargain collectively through repre- sentatives of their own choice. On the contrary, the policy urged on the Board by the Company, although understandable, offered in good faith and most appealing as a matter of first impression, would re- quire us to disregard the terms of the Act itself. Our dissenting colleague argues against the unionization of fore- men, as though that were the issue in this case. The issue before the Board is not whether supervisory employees shall join unions or seek to bargain collectively through representatives of their own choosing, for many have already done so. It is whether the peaceful machinery of the Act should be made available to protect their exer- 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cise of this "fundamental right."23 We have held that they may law- fully, exercise this right through the medium of an independent labor organization 24 In practice, they have often exercised it through the instrumentality of an affiliate of a rank and file union; and they have sometimes exercised it through a labor organization that likewise represents rank and file employees. For many years, antedating the Act, foremen in the printing, building, and maritime industries, to cite only a few examples, have been part of the same bargaining unit as their subordinates.25 Indeed, the Board itself has unanimously declared appippriate mixed units of supervisors and rank and file employees in those industries where such units have been customary 2° No proof has been submitted that these arrangements have not worked in practice. The UCT, even in the absence of the Act, may represent the Com- pany's supervisors if the latter desire such representation; it may use its economic power, perhaps in conjunction with that of the UMWA, to achieve recognition as their collective bargaining representative. It follows that the UCT may seek recognition as the representative of the Company's supervisory employees in one of the two ways : either by petitioning the Board for an election, or by striking. By closing the door to the first of these alternatives, the Board would simply turn the direction of the struggle for union recognition from the ballot box to the economic battlefield. We would thus find ourselves in the anomalous position of promoting strikes for union recognition, the very kind of strikes which the Act was intended to diminish. The unionization of foremen, particularly by affiliates of rank and file unions, raises a number of difficult problems in the field of labor relations. These problems are not, however, insoluble. This is attested by the experience in several industries where collective bar- za See the concurring opinion of the Chairman in the second Packard case (64 N. L. It. B. 1212) : "Although there has sometimes been a tendency to assume that the issue before us is whether foremen should or should not join unions , that assumption mis- conceives the Board's function We are faced, instead, with the narrower question of whether, granting that many foremen have now decided that the necessities of tha situation ' [N. L. R. B v. Jones & Laughlin Steel Corporation, 301 U. S. 1, 33] dictate that they seek to bargain through an unaffiliated union, the Act affords them access to the orderly administrative machinery that is concededly available to rank-and-file employees." See also Matter of L. A. Young Spring & Wire Corporation, supra, and cases cited thetein. 24Matter of Packard, Motor Car Company, supra ; Matter of L. A. Young Spring & Wire Corporation, supra. i See Unlion Membership and Collective Bargaining by Foremen, U. S. Department of Labor, Bureau,of Labor Statistics, Bulletin No 745 (1943). a" See, for example, Matter of W P. Hall Printing Company, 51 N. L R B . 640; Matter of Jones & Ladg7iZiri Steel Corporation, 54 N L. R. B. 679; Matter of Ohio Barge Line, Inc., 59 N. L. R. B. 154; Matter of A. S. Abell Co., 54 N. L. It. B. 62. In these cases, indeed, the supervisors were placed in the same unit as the men they supervise. In the instant case no such extreme result is urged or reached; the foremen are restricted to a wholly separate bargaining unit. JONES & LAUGHLIN STEEL CORPORATION 401 gaining for foremen by the same union that represents rank and file employees has existed for many years, in Great Britain as well as in the United States.2' There is no reason to believe that similarly satisfactory solutions cannot be reached in other industries. If all parties will recognize the rights of foremen, and also their unique responsibilities, and will exercise special patience and understanding, the delicate problems created by the unionization of foremen can be worked out by men of good will on both sides in the give-and-take of collective bargaining. Indeed, at the present time collective bar- gaining is the only practicable means at hand for settling difficult issues between employers and employees. And "the more difficult the problem, the more important it is that the stage be set for men to sit down and reason together."28 One such problem is the effect of the unionization of foremen upon bargaining relations between management and the union which repre- sents the rank-and-file. We do not believe that the result we reach will prejudice the collective bargaining relationships between the respondent (or other coal mine operators) and the UMWA. The record shows that for many years the pattern of dealing within the bituminous coal industry has been on an industry-wide basis between committees of the operators and the UMWA. The foremen involved in this case have not been present at such meetings and have not been directly consulted on the terms to be embodied in any agreement reached. Management, like labor, is entitled to be represented at the bargaining table by persons owing entire allegiance to it; but these supervisors are so remote from actual negotiations that their repre- '' See Sidney and Beatrice Webb, The History of Trade Unionism (1935), pp. 440, 506. The experience in the printing industry, where the same union represents both rank and file employees and foremen in the same bargaining unit, is enlightening . A recent survey by Emily C Brown notes : In early years, many publishers were strongly opposed to having their representatives owe allegiance to the Union. As contracts became more inclusive, however, and rights of bol h employers and unions more clearly defined, publishers in general ceased to object to the foreman law They are now chiefly concerned lest foremen should be subject to union discipline for differing with the local union in the interpretation of the terms of a contract. The Internationals generally recognize the justice of the publishers' position and a method is provided for the joint settlement of such disputes The unions do not, however, forego their right to discipline foremen for disobeying laws relating to internal union matters, or for deliberately disregarding union rules Although there is still occasional complaint that some locals attempt, by disciplining foreman, to enforce condi- tions not provided for in contracts, the practice is not so common as to constitute a major issue " The foreman represents the employer in dealing with grievances arising in his depart- ineut He settles many day-to-day grievances and complaints with the chapel chairman, without recourse to the joint standing committee or to arbitration " In book and job printing the union membership of foremen is so thoroughly established that it does not become an issue except occasionally in a newly organized plant. It is clearly recognized that the foreman's first responsibility is to management His duty to the Union is to administer the agreement fairly in the plant . " How Collective Bargaining Works, New York, Twentieth Century Fund, (edited by Harry A. Millis) (1942), pp 67, 68, 147 aN Matter of Packard Motor Car Company, 64 N. L R. B 1212. 686572-46-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD se4tation by the organization that represents rank and file employees will not, in practice, detract from management's unity in the bargain- ing process . These foremen are not policy-making officials. Another problem, peculiarly susceptible to adjustment by collective bargaining, is the impact of the self-organization of foremen upon their relations with the men they supervise. It is suggested that foremen's affiliation with a labor organization closely associated with one available to the rank-and-file may lead to interference with the latter's freedom of choice. It is plain that this possibility is not now present in the coal-mining industry. The rank-and-file have long since been members of the UMWA, and the later advent of the fore- men can hardly operate to increase a probability which is already realized. We need not speculate here upon the situation in other industries, or upon what would happen if, at some later date, the rank-and-file should wish to alter their choice and the foremen exer- cised their supervisory power to discourage this action. Employers would not be chargeable, in an unfair labor practice proceeding, with any such action by supervisors, unless it were clearly authorized.29 This record is barren of any such issue, and we therefore see no need to engage in debate upon the impact of this decision on other cases which may involve 8 (2) (company-dominated) unions. We will deal with the problem when it arises. The Company and our dissenting colleague have also expressed serious and genuine concern about the effect of this decision upon the relations of management with its foremen, and the effect of the unionization of the latter upon their loyalty to the employer's inter- ests 30 We advert once more to the fact that these men are not policy- makers . It remains true, however, that they are often called upon to speak and act for management in dealing with their subordinates, and that it is their duty to continue to do so. There is possible dichot- omy here, but is cannot be eliminated by acting as though it were not a fact of life, or as though it were created by this Board or by the National Labor Relations Act. We did not formulate the Mine Workers' oath, stressed by Mr. Reilly in his dissent, nor did we sug- gest that these foremen should subscribe to it. But its very existence strengthens our conviction that the union and the employer, neither of which is lacking in ingenuity, should not be discouraged by this Board from working out, at the bargaining table, contract clauses which will deal with this difficult situation. Such clauses can guar- antee the maintenance of discipline by supervisors without fear of -See Matter of The B. F. Goodrich Company, 64 N. L. R. B. 1303 ; Matter of R. R. Donnelly and Sons Company , 60 N. L R B. 635. 90 The Scriptural quotation usually cited in support of this contention, when examined in its entirety, indicates that the alternatives there proposed are hardly present in the instant situation . Matthew 6 : 34; Luke 16: 13. JONES & LAUGHLIN STEEL CORPORATION 403 reprisal by the rank-and-file acting through UCT or the UMWA. The Act neither creates this problem, nor discourages or empowers us to bar the one possible solution that lies within our jurisdiction. As we read the Act, it is better that foremen's desire to bargain with respect to their own working conditions be expressed within the statutory ambit, so that they may freely, and secretly, accept or reject the union. That will not only tend to increase the prospect of a peaceful solution, but it is desirable because the very problems them- selves call for special formulae, often to protect employers' interests, which can best be evolved in the atmosphere which an election by secret ballot will establish. Responsibility rests upon both parties in this case to make certain that that atmosphere is maintained in the period ahead, so that this issue may ultimately be determined in orderly fashion. The Board reaches this conclusion31 with full realization of the difficulty and the importance of the policy considerations involved. We conclude, despite the weight that should be attached to the argu- ments-some real and some speculative-adduced in favor of our re- fusing to apply the Act to these employees, that it would be an abuse of discretion for us to follow that course. The Act, as written today, requires that we protect the right of employees to bargain collectively through representatives of their choosing, not of our choosing. So long as the Congress of the United States imposes no limitation upon their choice, it is not for us to do so 32 The Unit Findings The unit as proposed by the UCT includes supervisors of produc- tion and maintenance employees as well as supervisors of clerical and technical employees. Although the Company has not specifically objected to the unit on this ground, we believe that the supervisors of production and maintenance employees should be included in one unit and the supervisors of clerical and technical employees in an- other. These are the bargaining patterns established for rank-and- file employees generally; they are also the form of organization which 31 Although the affiliated union question is generally regarded as novel here , the same conclusion has been reached by other tribunals . See New York State Labor Relations Board v. Metropolitan Life Insurance Company, 183 Misc . 1064, unanimously affirmed 269 A D. 934; enforcing 6 N Y. S L. R B. 751. The principle has been repeatedly and unanimously enunciated in every decision rendered by new Members of New York Board during the 2 years that have elapsed since Chairman Herzog resigned from that tribunal. These decisions are therefore an indication of much more than his individual views. See, for example , Matter of Micamold Radio Corporation , Decision No. 3222 , decided as recently as December 1945. sa This matter is now under consideration by the Senate Committee on Education and Labor, which is giving its attention to certain provisions of the "Case Bill," H. R. 4908, which relate to supervisory employees . See the testimony of the Board on this subject, quoted in part at 17 L. It. R. 880. ( March 4, 1945.) 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board has approved for the Company's own rank-and-file employees.33 These same patterns should be followed for supervisory employees. Accordingly, we shall establish two bargaining units ; one for the supervisors of production and maintenance employees, and the other for supervisors of clerical and technical employees. The Company has raised no question of improper grouping. The evidence reveals, however, that a number of the employees whom the UCT desires to include in the unit are not supervisors within the Board's definition, either because they have no subordinates or because they lack the power to make effective recommendations with respect to their subordinates. Among the employees whom we regard as not being supervisors are the following : weighmasters, weighmasters' clerks, dispatchers, safety inspectors, training supervisors, and filter operators. We shall exclude them from both units. We shall also exclude the tipple foremen, who have authority and responsibility equivalent to that of mine foremen, an agreed exclusion, and the gen- eral assistant mine foremen, several of whom act as mine foremen on the night shift. We believe that the interest of both the tipple fore- men and the general assistant mine foremen lie with the excluded mine foremen rather than with the assistant mine foremen and fire bosses. We find that the following units of employees of the Company's Vesta Mines Nos. 4, 5, and 6, the Shannopin Mine, and the general mine office at California, Pennsylvania, are appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act : 1. All supervisors of production and maintenance employees, in- cluding fire bosses, mine crew foremen, assistant mine foremen, main- tenance bosses, mechanical bosses, and assistant general master mechanic, but excluding supervisors of clerical and technical employ- ees, mine foremen, general assistant mine foremen, tipple foremen, general master mechanic, mine superintendents, general superintend- ent, assistant general superintendents, director of industrial labor relations, safety director, chief engineer, chief of police, weighmasters, weighmasters' clerks, training supervisor, safety inspector, dispatch- ers, and filter operators. 2. All supervisors of clerical and technical employees, including engineer, chief draftsman, transitmen, chief supplies clerk, assistant chief clerk at California office, and chief mine clerks, but excluding all supervisors of production and maintenance employees, general master mechanic, assistant general master mechanic, mine superin- tendents, general superindent, assistant general superintendents, as See Matter of Jone8 ct Laughlin Steel Corporation , 63 N. L. R B 814, where the Board found appropriate a unit of clerical and technical employees of the Vesta-Shannopin Coal Division. JONES & LAUGHLIN STEEL C011PORATION 405 director of industrial relations, safety director, chief engineer, chief clerk at California office, chief of police, mine foremen, general assist- ant mine foremen, weighmasters, weighmasters' clerks, training super- visor, safety inspectors, dispatchers, and filter operators. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the questions concerning representation which Have arisen be resolved by elections by secret ballot among employees in the appropriate units who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direc- tion. DIRECTION OF ELECTIONS 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 Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, Pittsburgh, Penn- sylvania, elections 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 Direc- tor for the Sixth 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 employees in the units 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 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 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 in each unit whether or not they desire to be represented by United Clerical, Technical and Supervisory Employees Union of the Mining Industry, Division of District 50, United Mine Workers of America, for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting : In my judgment, the decision which we are making today so seri- ously distorts the principal objectives of the National Labor Relations 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act that unless it is speedily corrected by legislative or judicial action, it will have far-reaching repercussions upon industry and labor. It goes much further than the Packard case' which merely determined that an independent organization of supervisors could be certified as a bargaining representative under Section 9 (a). It is a clear hold- ing that an affiliated union which has already organized the produc- tion of workers of a given employer may use the processes of this Act to draw into its organization the very persons hired to supervise them. As applied in the instant case, it confers upon the United Mine Workers the legal right to organize and represent the employees appointed to supervise the work of the rank and file members of that union in the face of half of a century of collective bargaining custom in the coal mines to the contrary. In reaching this result, it is prob- able that we have seriously impaired the ability of the operators effectively to manage their mines. It is certain that we have discarded doctrines developed by this Board in the last 10 years for insuring complete freedom from management interference to workers in choos- ing their bargaining representative. It is not altogether clear from the text of the majority opinion whether the authors feel that no other conclusion was possible under the wording of the statute, or whether they were seeking to promote within the narrow ambit of discretion vested in this Board what they consider to be a better industrial relations policy. Whatever the reason, however, it is submitted that the result represents neither good law nor sound policy. At the outset of this discussion, it is worth noting that while the name of the petitioning labor organization2 conveys the impression that it is an autonomous union linked only to the parent body in a formal sense, the record reveals that this is mere nomenclature adopted by the United Mine Workers as an organizing device. The petitioner has no separate constitution or by-laws. All promotional work is handled by two officials appointed and paid by the interna- tional board of the United Mine Workers. Although these men have the titles of president and secretary-treasurer, respectively, neither holds office for any particular term but simply at the pleasure of the international executive board. Moreover, a mine supervisor who applies for membership in the petitioning organization never assumes any obligation to it. Instead, if his application is granted, he is admitted as a regular member of the United Mine Workers and takes the same oath which is administered I Matter of Packard Motor Car Companv, 51 N L. R. B 4, overruling the decision in Maryland Drydock case ( 49 N. L. R. B. 733 ) to the effect that units composed in whole or in part of supervisory employees do not effectuate the policies of the Act. 9 The United Clerical , Technical and Supervisory Employees Union of the Mining Industry, Division of District 50, United Mine Workers of America. JONES & LAUGHLIN STEEL CORPORATION 407 to any rank and file member. As will subsequently appear, the lan- guage of this oath is wholly inconsistent with some of the duties which any supervisor holds to his employer.-3 Therefore, there cannot be the slightest doubt that, despite the reservations expressed by the majority in the first Packard case4, in this instance the Board has gone to the extreme of giving legal sanction to a projected amalgamation within a single labor organiza- tion of supervision and the working force.5 It is true that this de- cision places the supervisors in separate bargaining units, but in the Packard case itself the Board abandoned all pretense that by classify- ing employees in different units any real segregation was achieved if they belonged to the same labor organization c During the long history of collective bargaining in the bituminous mines of this country, the United Mine Workers, until 1943, had al- ways recognized that the supervisory employees involved in this case were a part of management.' The facts developed in this record make it easy to understand why this should be the case. 3 Relevant portions of the United Mine Workers Oath : "I do sincerely promise, of my own free will, to abide by the laws of this Union ; to bear true allegiance to, and keep inviolate the principles of the United Mine Workers of America ; * * * . . to defend on all occasions and to the extent of my ability the members of our organization. "That I will not reveal to any employer or boss the name of anyone a member of our Union That I will assist all members of our organization to obtain the highest wages possible for their work ; that I will not accept a brother 's job who is idle for advancing the interests of the Union or seeking better remuneration for his labor ; and, as the mine workers of the entire country are competitors in the labor world, I promise to cease work at any time I am called upon by the organization to do so. And I further promise to help and assist all brothers in adversity , and to have all mine workers join our Union that we may all be able to enjoy the fruits of our labor ; that I will never knowingly wrong a brother or see him wronged , if I can prevent it "To all this I pledge my honor to observe and keep as long as life remains , or until I am absolved by the United Mine Workers of America" The majority opinion in that case contains a footnote to the effect that "in an appropriate case, in which the record discloses the proper autonomy with respect to groups of supervisory employees ," Chairman Millis . . . would find no obstacle to recog- nition in the affiliation of such groups with non -supervisory employee organizations. ... Member Houston regards the question . . . as entirely open. ( Emphasis supplied.) s The President of the United Mine Workers , in his recent strike notice , has set forth that one of the issues his union will raise at the next Appalachian conference is the "question of the rights of supervisory employees in the coal industry to be members of the United Mine Workers and to be covered by contract." ( Excerpt from letter to the Board by Mr. John L. Lewis, dated March 2, 1946 , and released by his office to the press on the same day.) 6In the Packard case , the old majority's decision placed several levels of supervision in the same bargaining unit , even though the higher supervisors had the right to make recommendations with respect to the hiring and firing of foremen of subordinate rank. 7 It is apparent that the recent change of policy on the part of the Union was due to the encouragement given a few months previous by this Board to the notion that super- visory employees could constitute an appropriate bargaining unit , as defined in Section 9 (a) of the Act. When a petition filed by an independent union of mine officials was before this Board in the Union Collieries case , ( 41 N L. R . B 961, Supp . Dee, 44 N. L. R 13. 165 ), Welly K . Hopkins, Esq, counsel for the United Mine Workers, was invited at a public hearing to express his views He said the United Mine Workers has always regarded such persons as part of management and therefore excluded them from their collective agreements . However, If the Board were to hold that they are employees, he said , Mr. Lewis would insist at the next Appalachian conference that the United Mine Workers should bargain for them. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The proposed unit here excludes only the superintendents , the gen- eral spine foremen, and the general assistant mine foremen ( i.e., the night supervisor ). Included is the complete subsurface supervisory hierarchy , which now compose 91 percent of the management group, including the assistant foremen, the fire bosses entrusted with the duty of enforcing the safety regulations , the maintenance and me- chanical bosses-a total of 131 . While they are responsible , in turn, to the superintendent and general foreman, the principal place of duty of these higher supervisors is in the mine office located above ground next to the tipple . The actual mining of the coal is performed underground many miles away from the tipple . The men working at the face dig coal under the supervision of the assistant mine foreman. Neither the general foreman nor the superintendent is likely to visit any particular section of the mine more often than once each week, and their visits are generally much less frequent than that . They can never expect to take any large or direct part in the actual operation of the mine since they cannot be available to meet the problems which arise in hour -to-hour direction of the rank and file, or to cope with the emergencies arising from the hazards of mining. In other words, they must rely upon the subordinate supervisors who are involved in the proposed bargaining unit. Upon these subterranean supervisors , particularly the assistant foremen , rests wide latitude for independent judgment. They are not only entrusted with the responsibility for keeping the time records of their crews , but can suspend or dismiss miners from their sections who are incompetent or fractious and effectively reward the efficient worker by recommending his promotion . They can bargain with miners underground for rates on a particular j ob not covered by the collective agreement .8 Frequently such spot bargaining can make a difference of several thousand dollars to their employers . It is difficult to see how these tasks could be discharged in a mood of undivided loyalty to the management , if the supervisor in question has been sworn by his union to "assist all members of our organization to ob- tain the highest wages possible for their work."9 Although it is rare to find a case where the conflict of ahleg iai ce between union and employer is presented as sharply as in the instant one, this Board is familiar with the argument that when supervisors incur obligations to rank and file unions they tend to become lax in the performance of their supervisory duties. I have always felt that whether a particular record demonstrated this to be a fact or not, that under general principles of law a construction of this statute sInteresting examples cited by counsel are the excavation of clay, When a %ein is partially exhausted , the pumping of water, the shoring of the workings tivith timber and other tasks not directly covered by the piece rates fixed by collective agreement for the extraction of coal. 11 See footnote 3, supra. JONES & LAUGHLIN STEEL CORPORATION 409 which would place fiduciaries in a position of temptation was to be avoided. The answer given by the majority in the Packard case, how- ever, was that there was nothing in the Act which prevented an em- ployer from disciplining an incompetent or disloyal employee irre- spective of his rank. The power to discipline a delinquent, however, implies ability to appraise the extent of the delinquency. Precisely how management (embodied in these mines by the two officials in the office at the tipple) can effectively appraise the judgment and discretion of scores of supervisors situated miles away in the underground workings is the problem which this answer fails to solve. Nor can it be much of a guide to the operators to be told, as the majority opinion reiterates, that the supervisors involved here are not policy-makers. Surely there are functions which are generally recognized as being within the sphere of management other than the duty of participating in the biennial negotiation of collective agreements. The danger of a breakdown of management efficiency through al- lowing unions primarily dedicated to the welfare of the rank and file to influence the supervisors is particularly great in an industry like bituminous coal mining where the closed shop is a normal incident of employment. Under sucli conditions, the most conscientious super- visor can not escape the possibility of union reprisals which might cost him his job.lo 10 A recent comment by a railway employees ' organization on the dilemma of the organized foremen bears repetition at this point: "If a foreman is a worker with no disciplinary authority , he is to my mind just a gloritied worker , with a title that means nothing, and I see no reason why he should not be organized . But, if the title of 'foreman ' means what it actually implies , the right to hire, discharge , and discipline employees for insubordination, then I do not hesitate in saying that a foreman should not be organized . How can a man be honest with himself and honest with his union , if he is forced , through a condition of unionism , to play both ends against the middle . And this is exactly what he must do as a unionized foreman. If lie does not discipline insubordinate employees , he can be expelled from the company for his own insubordination ; and if lie does discipline , as a conscientious foreman, he can be expelled from his own union, which places him RIGHT IN THE MIDDLE ! "In order for a foreman to function properly in his capacity , he must be respected by all those with whom he comes in contact; and just how can he be respected, or even trusted , when he is in the position of playing two ends against the middle? In the position of serving TWO MASTERS AT ONE TIME . Management cannot trust him because he has sworn allegiance to the union , and the union cannot trust him because he has sworn allegiance to management . In this position , it is not very long until no one trusts him, because to hold his position as foreman, he is inclined to became an unprincipled schemer of playing both ends against the middle. * * * "Just picture a foreman , who is just an ordinary member of his union, getting into an argument with the president or business agent of his own union in a meeting I would venture to say that his union status would not be so good, and if it is not good, according to union contract under the closed shop system, he can be expelled for union insubordination . If he is expelled from the union , he is auto- matically expelled from the company . A nice system of eliminating the conscientious foreman. The more I think of the situation the more I am inclined to agree with management , that foremen should not be unionized . It would be bad for management because it takes the managerial rights away from where they belong . It would be equally bad for labor because it automatically sets up a condition of disharmony within unionism." ( Editorial of May 1945 in the Railroad Workers Journal, official organ of the Railroad Yardmasters of North America ) 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'So much for the problems which this decision creates both for employers and the foremen themselves. To me its impact upon the rank and file is equally catastrophic. In the mass production indus- tries this Board has always recognized that to the ordinary employee, his foreman is management. It has been our long-standing practice, except in the rare case where the maritime or printing crafts had a custom to the contrary, to exclude supervisory employees from the bargaining unit. Whenever a foreman, by coercive statements or dis- criminatory acts, has attempted to influence the choice of any worker in a bargaining unit with respect to union membership or his bargain- ing representative, we have treated such acts and utterances as the acts and utterances of the employer, even though the record contained no evidence that the supervisor's conduct had been authorized by higher management.11 Where one rank and file union gains an undue advantage over an- other through the assistance of the foremen, we have repeatedly set aside any collective agreement it might have obtained as a result of such favoritism. Yet in an industry where dual unionism12 has ex- isted for many years, we have now created a situation in which the power of the foreman to recommend effectively hiring, firing, and promotions, can be used to curb dissident workers from joining an- other organization, or abandoning the one to which their foreman belongs. It is true that in the interest of fairness, the Board in the past year has refused to make unfair labor practice findings arising from the pro-union or anti-union activities of foremen belonging to the same bargaining unit as the rank and file.13 These decisions were necessary in order to avoid the incongruous result of imputing to employers the illegal conduct of employees found by this Board to have a right to complete freedom from employer interference under the Act. But the possible coercive effect upon the rank and file re- mained equally great. Under the broad implications of today's decision, however, the principle of imputation can no longer obtain in mass production in- dustry, if foremen are free to join affiliated unions which also admit workers to membership. The consequence of introducing into the labor movement generally employees whom the men regard as manage- ment representatives will therefore impinge upon the freedom of the great mass of workers for whom the statute was enacted and for whose protection the Board developed the doctrine of imputation. u N. L. R. B. v. International Association of Machinists , 311 U. S. 72. 'SAt one time the Progressive Miners were formidable rivals of the United Mine Workers. Although the latest figures on the membership of this organization indicates that it now represents less than one-tenth of the miners, it is submitted that a decision of this sort should not rest upon the shifting sands of relative strength of rival union factions. v See Matter of Mississippi Valley Structural Steel, 56 N. L. R. B. 45, amended 64 N. L. R. B . 78; Matter of Hartford Courant , 64 N. L. R. B. 213. JONES & LAUGHLIN STEEL CORPORATION 411 This consideration exposes the fallacy of the legal argument that the Board has no power under the statute to limit the rights of super- visors under Subsection 9 (a) except to poll them in a separate bar- gaining unit. The theory of the majority seems to be that the language of Section 9 (a) is one of "classification, not of exclusion," and that this subsection, read together with the preamble, which refers to en- couraging collective bargaining, by protecting "the exercise by work- ers of full freedom of association, self-organization and designation of representatives of their own choosing," deprives the Board of the right of placing any limitations upon that choice. Such a narrow construction is not inexorable, however. It does not give full emphasis to the qualifying phrase in subsection 9 (a) to the effect that the ap- propriate unit must "effectuate the policies of the Act." (Emphasis supplied.) It seems inconceivable that a unit finding which tends to influence, stifle, and control the choice of the'bulk of the employees would effectuate the statutory policy.-' The character of the major- ity's logic also fails to take into account the fact that the courts have recognized that the Board is not bound by the common law definition of "employee" where a question of effectuating the remedial policies of the Act is concerned.15 An even more significant aspect of the matter is that the Members of the present Board and our predecessors have consistently main- tained a line of decisions which places a definite limitation upon the supervisory employees' choice. We have repeatedly disestablished independent organizations as company-dominated upon evidence that supervisory employees were received into membership and took part in their councils.16 Although some of our critics, notably the Con- federation of Independent Unions of America, have frequently charged that this Board has one rule for independent unions and an- other for C. I. 0. and A. F. of L. affiliates, this is the first case, since 1{ This conclusion could be supported by a wealth of Board precedents : International Ass'n. of Machinists v. N. L R B., 311 U. S. 72; N . L R B v Link-Belt Co . 311 U. S. 584; American Enka Corp v. N. L. It. B., 119 F. ( 2d) 60 (C. C A. 4) ; N. L R B v Ford Motor Co, 114 F (2d) 432 (C. C. A. 6) ; Republic Steel Corp . v. N. L. R. B, 107 F. (2d) 472 (C. C. A. 3) ; N. L. It. B. v. Sunshine Mining Co ., 110 F. ( 2d) 780 (C. C. A. 9). These citations have been illustrative of the instances where the courts have recognized the exertion of employer influence through the supervisor. ii See N. L. It. B. v. Hearst Publications, Inc., 322 U. S . 111. At the risk of repeating what I have previously said in Union Collieries , I must also point out that the absence of the specific exemption of supervisory employees from Section 2(f) is not conclusive proof that Congress meant to include them. ( See Holy Trinity Church v. United States, 143 U. S. 457 , where the Supreme Court held the contract labor laws inapplicable to a minister of the Gospel even though his profession was not within the list of exempted categories.) Moreover , implicit in the majority opinion is the premise that the higher corporate employees are not covered by the statute . Otherwise , the statement that the assistant mine foremen are not policy-makers is not relevant 16 A recent example is the Matter of Brown Company , 65 N. L. It. B. 208, in which I did not participate . The participation of supervisors was the only evidence of company- domination in a record barren of any showing of interference or support by higher management. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the short-lived Godchaux Sugars7 doctrine, which would seem to give support to these charges. In the interest of equality under the -law, therefore, we would appear to have no other course open to us now than to revise our rule of decision in the Section 8 (2) cases. Cer- tainly we can not disclaim the power to discourage supervisors from joining affiliated rank and file unions and yet claim the right to dis- establish independent organizations if the foremen elect to join them. It is therefore difficult to understand how the majority can say that the petitioner, even in the absence of custom, may "represent the company supervisors, if the latter desire such representation, and may use its economic power to achieve recognition as their collective bargaining representative." If we apply the same reasoning to this union that has been applied to independent unions, it would be ap- parent that no employer would have a right to recognize them. Hence, any strike to achieve such recognition would be futile. In fact, the application of this doctrine to this very union was expressly set forth in the Rochester and Pittsburgh Coal case,"' where the Board dis- missed its petition for a unit of clerical supervisors because the record revealed that supervisory members of the local had a large voice in its policies. But even if we were to assume that the petitioning union would have a right to strike to gain its objectives, it does not follow that this Board should deviate from the policies of the Act. We do not rescind disestablishment orders with respect to company-unions merely because the disgruntled organization demonstrates its mili- tance by work stoppages, nor have we refrained from ordering elec- tions in industries where we knew that the recalcitrant unions might bring pressure, through strikes and boycotts, upon employers. It seems to me that if our alleged impotence to deal effectively with mixed organizations of supervisors and workers is, as appears, a factor's that compels the majority, this Board might have been well advised to suggest more affirmatively that its powers be augmented when we presented our views to the Senate Committee on Education and Labor on the foremen's section of the pending Case bill. '? Matter of Godchaux Sugars, Inc , 44 N L R B 874, overruled in Maryland Drydock (supra). Is Matter of Rochester & Pittsburgh Coal Company , 56 N L. It B 1760 19 The point is made in the majority opinion that the issue before the Board is not whether supervisory employees shall join unions , because many have already done so while technically correct, this ignores the fact that the extension of the protection of this Act to organization gives enormous impetus to such movements , and also glosses over the fact that this record contains ample evidence to show that the spread of union- ization of supervisors in the bituminous industry is generally due to the pressures being exerted by the union against the operators through strikes and threats of strikes , rather than by any spontaneous campaign for self -organization ( see comment on this phase of the matter in the dissenting opinion in Packard Motor Company . supra) The answer to the point raised by the majority is, of course , that if this Board should apply the same standards here that it applies in the company-union cases, it would be very much against the interest of the Mine workers to take supervisors into membership JONES & LAU(IIILIN STEEL CORPORATION 413 In closing, I should like to remark that my concern with the effects of this decision is not alleviated by allusions to minor industries with which this Board has little or no contact, or to decisions of the New York State Board.20 If references to comparative law have any persuasive force, it would seem to me that the action of the Dominion of Canada in expressly excluding supervisors from the protection of its labor relations regulations in 1944, after a study of the conditions which resulted in the United States from the divided decisions of this Board, possesses much greater significance. 2 It would hardly seem that the partial reliance of the majority upon the positions taken by a former chairman in a recent book or by the present Chairman when he was a member of a State Board , have much bearing on the controversy , other than to show that neither of them has been inconsistent . So far as I am aware , no such contention has ever been made Moreover , the decisions of the New York Board ( which, incidentally, are contrary to those reached by the Pennsylvania State Board ) do not mean that the rule adopted has worked well in practice . The decisions in the manufacturing cases have never been enforced and are now pending on appeal in the higher courts. Copy with citationCopy as parenthetical citation