National Tube Co.

National Labor Relations Board - Board Decisions

Apr 7, 1948

76 N.L.R.B. 1199 (N.L.R.B. 1948)

In the Matter of NATIONAL TUBE COMPANY", EMPLOYER and BRICK-
LAYERS, MASONS & PLASTERERS INTERNATIONAL UNION OF AMERICA,
AFL, PETITIONER
Case No. 8-R-2476.Decided April 7, 19448
Mr. R. Heath Larry, of Pittsburgh, Pa., for the Employer.
Mr. William J. Corrigan, of Cleveland, Ohio, for the Petitioner.
Mr. Frank Donner, of Washington, D. C., for the Intervenor.
DECISION
AND
ORDER
Upon a petition duly filed, hearing in this case was held at Cleve-
land, Ohio, between March 10-14, 1947, before Richard Swander,
hearing officer. The hearing officer's rulings made at the hearing are
free fi^om prejudicial error and are hereby affirmed.
Following the hearing, the Employer filed a motion to reopen the
record for the purpose of adducing evidence concerning a wage in-
equity program based on certain agreements between the Employer
and United Steelworkers of America, CIO, herein called the Inter-
venor. The motion was considered by the Board in connection with
oral argument held on January 8, 1948, at Washington, D. C. The
Petitioner opposed the motion to reopen the record; subject thereto, it
raised no objection to the receipt in evidence of the documentary ex-
hibits attached to the motion without reopening the hearing to take
further testimony. The motion is hereby granted to the extent that
the exhibits appended to the Employer's motion are admitted in
evidence and made a part of the record in this proceeding. The
motions to dismiss filed by the Employer and the Intervenor are
granted for reasons hereinafter stated.
All parties were afforded an opportunity to file briefs and supple-
mental briefs in support of their respective positions.
Upon the entire record in the case the National Labor Relations
Board makes the following :
76 N. L. R. B., No. 169.
1199
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
National Tube Company, a New Jersey corporation and wholly
owned subsidiary of the United States Steel Corporation, is engaged
in the manufacture and sale of steel and tubular products at several
plants located in various parts of the United States. The only plant
involved in this proceeding is located at Lorain, Ohio. During the
calendar year 1946, the Employer received for use at its Lorain plant,
raw materials consisting of approximately 2,500,000 tons of iron ore,
625,000 tons of limestone, and 1,500,000 tons of coking coal, all of which
were obtained from points outside the State of Ohio. During the
same period, the Employer shipped from its Lorain plant finished
products consisting of more than 1,000,000 tons of steel and steel
products, and 40,000 tons of coke and coke products, of which finished
products approximately 72 percent was shipped to points outside the
State of Ohio.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization, affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization claiming to repre-
sent employees of the Employer.
III. TILE ALLEGED APPROPRIATE UNIT
The issue before us is whether the amended Act requires or should
induce the Board to conduct an election among certain bricklayers in
order to afford them an opportunity to sever themselves from a long-
established industrial unit in the basic steel industry.
The Petitioner seeks a craft unit of bricklayers and apprentices, em-
ployed at the Employer's Lorain, Ohio, plant. They are engaged
primarily in the construction and repair of blast furnaces and related
equipment used in the production of basic steel. In support of its
position, the Petitioner contends that, regardless of prior decisions of
the Board with respect to craft severance in this industry,' the Board
1 See Matter of Geneva Steel Company, 57 N. L R . B 50, 67 N. L. R . B. 1159 and cases
cited therein
NATIONAL TUBE COMPANY 1201
is now required under Section 9 (b) (2)2 of the amended Act, to grant
an election to a group of craft employees seeking separate representa-
tion for the purposes of collective bargaining. The Petitioner also
contends that, in any event, the Board should, upon the facts in the
present record, find appropriate the unit it requests.
The Intervenor and the Employer both oppose as inappropriate the
unit sought by the Petitioner herein. The Intervenor, in particular,
contends that the Board is precluded under Section 103 of the amend-
ments to the Act from even considering the application of Section 9
(b) (2) to the issue of craft severance, by reason of the existence of an
over-all contract between the Intervenor and the Employer, executed
before the effective date of the amendments. In addition, both the
Intervenor and the Employer contend that, if the Board may consider
the application of the new Section 9 (b) (2) in the present instance,
the Board is not required by this provision to grant craft severance
to these bricklayers, because of the degree of integration in the basic
steel manufacturing process and the history of collective bargaining
by this Employer and by employers generally in the basic steel in-
dustry.
On July 30, 1942, the Intervenor was certified, in accordance with a
stipulation for a consent election, as exclusive bargaining representa-
tive for a multiple-plant unit of the Employer's production and main-
tenance employees.3 Thereafter the Intervenor bargained for all
such employees, including bricklayers, under a series of collective bar-
gaining agreements, the most recent of which was executed as of April
22, 1947. The record indicates that the collective bargaining history
of the Employer has followed the pattern of collective bargaining
generally in the steel industry, which has been predominately on an
industrial basis.3 No unit confined to bricklayers has ever been estab-
lished among the employees in any operation controlled by the United
States Steel Corporation, the parent of the Employer. The record
further shows that the same situation exists at the plants of 65 other
companies engaged in the production of basic steel.
The Relevancy of Section 103 to the Present Proceeding
The Intervenor contends that the Board is precluded under Section
103 of the amendments to the Act from now considering the appli-
2 Section 9 (b) (2) provides, in part , that the Board shall not "decide that any craft
unit is inappropiiate for such purposes on the ground that it different unit has been estab-
lished by a prior Board determination unless a majority of the employees in the proposed
craft unit vote against separate repiesentation.
3 42 N. L R B 1121.
' While craft units do occasionally exist in the steel indu.str}, they were created prior
to any bargaining history or Boaid certification on an industrial basis,
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cability of Section 9 (b) (2) to this case. The theory of the Intervenor
is that because its current contract of April 22, 1947, was executed
before the effective date of the amendments, Section 103 immunizes it
against any change in the law effected by those amendments.' We
are of the opinion, however, that for a contract to be preserved under
this section, it must have been executed consistently with Board de-
cisions governing the effect of such contracts upon the exercise of rights
conferred by the Act. In the present instance, the Employer and the
Intervenor, although aware of the present proceeding, executed their
1947 contract during its pendency without regard to well-established
principles announced by the Boards Accordingly, we find that Sec-
tion 103 does not preclude us from considering the impact of the
amended Act, including Section 9 (b) (2), upon the issue of craft
severance.
The Application of Section 9 (b) (2) to the Present Proceeding
We come, therefore, to the Petitioner's contention that under Section
9 (b) (2) the Board is required to establish a separate bargaining unit
for a group of craft employees, unless there is a vote against separate
representation by a majority of such employees. This contention
is, in effect, that Section 9 (b) (2), which precludes the Board from
finding a craft unit inappropriate on the ground that a different unit
has been established "by a prior Board deter',nination," removes from
the Board's discretion not only the power to rely upon a prior decision
as the basis for finding a proposed craft unit inappropriate, but also
the power to find a craft unit inappropriate by reason either of any
collective bargaining history or of other circumstances upon which
we have customarily based it determination as to the appropriateness
or inappropriateness of a proposed craft unit.
This argument asserts that no discretion exists, and is not directed
to the Board's exercise of discretion. Recent decisions should make it
apparent that the Board has been inclined recently to exercise discre-
tion in the direction of easing the path of a union desiring severance of
5 Section 103 provides that no provisions of this Title shall affect any certification of
representatives or any determination as to the appropriate collective bargaining unit, which
was made under Section 9 of the National Labor Relations Act prior to the effective date of
this Title until one year after the date of such certification or if in respect to any such
certification a collective bargaining contract was entered into prior to the effective date
of the Title , until the end of the contract period or until one year after such date , which-
ever first occurs "
6 See Matter of Midwest Piping t Supply Co , 63 N. L It. B. 1060 ; Matter of Bluefleld•
Garment Manufacturers , 75 N. L. R. B 447.
NATIONAL TUBE COMPANY 1203
a craft unit.' That is not the primary problem before us here, nor is
this Decision to be taken to mean that that trend is about to be
reversed.
The Petitioner urges, in support of its construction of Section 9
(b) (2), various statements to be found in the legislative history pre-
ceding the passage of the amendments to the Act. Consideration of
legislative history to determine legislative intent is normally con-
fined to those instances where the statutory language is not, on its
face, susceptible of reasonable interpretation, or where it contains
some patent ambiguity that cannot be resolved by a consideration of
the statute as a whole.' Here the statute clearly states that the Board's
action in finding a craft unit inappropriate shall not be based upon
the fact that a different unit has been established by a prior Board
determination. Because the phrase "a prior Board determination"
contains no substantial ambiguity, and because Section 9 (b) (2) is a
proviso, as distinguished from an affirmative statement of duties im-
posed by the statute,' we believe that we should not strain to give this
proviso an interpretation unwarranted by its express language. This
conclusion is consistent with the general rule that a proviso must be
the subject of strict construction.10 We find, therefore, that Section
7 Matter of International Minerals and Chemical Corpoi ation, 71 N. L R B 578, decided
many months bef ore the enactment of the amended Act
Matter of Link-Belt Company, Philadelphia Operations, 76 N L. R B. 124, Matter of
Waldorf Paper Products Company, 76 N L R B 127; Matter of Wilson Jones Company,
75 N L R B 706; Matter of Buckeye Steel Castings Company, 75 N L. R. B. 982
8 See Webber V. St Pont City By Co , 97 F 140, 144, 145 , Matter of Reconstruction
Finance Corp v Central Republic Trust Co, 11 F (2d) 976, 981, Matter of Caminetti v.
U. S, 242 U S. 470. See also the recent case of Ceniesco, Inc v Walling, 324 U. S. 244,
260, where the United States Supreme Court made the following observation regarding
the use of legislative history in statutory construction "The plain words and meaning
of a statute cannot be overcome by legislative history which.through strained processes
of deduction from events wholly ambiguous may furnish dubious bases for inferences in any
direction "
0 The Petitioner also points to the affirmative statement of the Board's obligations as set
forth in Section 9 (h) as follows "The Board shall decide in each case whether in order to
assure the fullest freedom in exercising the rights guaranteed by this Act, the unit ap-
propriate for the purpose of collective bargaining shall be the Employer unit, craft unit,
plant unit, or subdivision thereof " ( Emphasis supplied ) The Petitioner contends that
the use of the words "in order to assure the fullest freedom in exercising the rights guaran-
teed by this Act" indicates an enlarged duty on the part of the Board to permit craft
severance whenever a craft group asks for separate representation
The language referred to, however, is not substantially different from that contained in
the corresponding provision of the original Act, namely, the phrase "in order to insure
to employees the full benefit of their right to self organization and to collective bargaining."
The slight difference in phraseology between the old and the new provisions does not itself
indicate that the Board's duties have been materially altered in this particular respect.
This finding is in harmony with the rule that an amendatory act Js not to be construed
to change an original act or section further than expressly declared or necessarily implied.
See Sutherland Statutory Construction , 3d Ed. ( Horack ) Vol. I, page 414; cf. N. L. R B v.
Austin Co, 165 F. (2d) 592 (C. C A 7).
10 See U S v Dickson, 15 Peters 141 at 163. U S v Maryland Casualty Co , 49 F (2d)
556 at 558 (C. C A 7), cert denied 284 U. S. 645; Eagle d Star British Dominion Insurance
Company v. Schlsff, et at , 24 F. (2d) 784 (C. C. A. 2), cert. denied 278 U. S. 605; Canadian
Packing Co. v. U. S, 73 F. (2d) 831 at 834 (C. C. A 9).
781902-48-vol. 76-77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 (b) (2) does not itself limit the Board's discretion to find a craft
unit inappropriate in certain situations, so long as there is no reliance
upon the fact that a different unit has already been established by a
prior Board determination.ll
Had Congress desired to deprive the Board of all discretion in
matters of this sort, it had only to adopt language similar to the
mandatory craft proviso contained in the New York State Labor
Relations Act.12 Although this was urged at the hearings on the bill,
Congress saw fit not to enact it into law.
Assuming, however, arguendo, that Section 9 (b) (2) of the Act is
sufficiently ambiguous to permit an examination of legislative history
in an attempt to determine Congressional intent, it appears that such
history is not conclusive. In the first place, it is clear that Section
9 (b) (2) was enacted by the Congress with an eye directed toward
the Board's earlier policy respecting craft severance under what be-
came commonly known as the American Can doctrine.13 The essence
of that doctrine, as originally formulated, was that the bargaining
history of a particular employer might, if conducted for a substantial
period upon an over-all basis, provide sufficient basis for denying a
later request for separate craft representation. The use of such
bargaining history as a. controlling factor under the American Can
doctrine involved no distinction as to whether the bargaining history
resulted from voluntary recognition of the Union by the Employer
or from a prior Board determination.14 The American Can rule
generally was not applied to questions of separate craft representation
where the controlling factor relied upon by the Board was bargaining
history in the industry, as distinguished from bargaining history at
the plant of the particular employer concerned.
The legislative history preceding the enactment of Section 9 (b) (2)
discloses, at some points, a Congressional intent to overrule, by legis-
11 This construction is meaningful in limiting the Board's discretion , because, at the very
least, the Board may no longer support administrative or other dismissal of craft petitions
upon the sole ground of prior Board determination that a plant-wide unit was appropriate-
The question of the appropriateness of the proposed craft grouping must be independently
considered on its merits
In this case , therefore , we have explored the entire situation de novo, without particular
stress upon the certification issued in 1942 at 42 N. L. R. B. 1121.
12 The craft proviso of the New York Act (Section 705 (2 )) reads as follows :
. provided , however, that in any case where the majority of employees of a
particular craft shall so decide the board shall designate such craft as a unit appro-
priate for the purpose of collective bargaining.
11 See Matter of American Can Company , 13 N L R B 1252 ( 1939 ), where the Board
first gave expression to that doctrine . It was substantially modified by the Board itself
in later years , See, for example, Matter- of International Minerals , 71 N L R B 87S
(1946).
14 See Matter of Philip Morris & Company, Ltd., 70 N. L . R. B. 274, 280.
NATIONAL TUBE COMPANY 1205
lation, the American Can doctrine itself.15 At other points, it indi-
cates, consistently with the language ultimately adopted, that the only
factor that the Congress desired to eliminate as a controlling element
in considering a request for craft severance, was a prior Board deter-
mination.16 Because, as indicated above, the American Can doctrine
cannot be considered synonymous with the phrase "prior Board deter-
mination," we believe that the legislative history preceding the enact-
ment of Section 9 (b) (2) does not adequately establish a certain Con-
gressional intent to eliminate the use of bargaining history by a par-
ticular employer as a controlling factor in determining the issue of
separate craft representation.. Accordingly, resort to legislative his-
tory does not, in our opinion, necessitate a construction contrary to that
already adopted on the basis of the express language of the statute.
Even on the assumption, however, that the legislative history might
be construed as indicating an intent on the part of Congress to eliminate
the American Can doctrine altogether, so that neither a prior Board
determination nor the bargaining history of a particular employer
could be relied upon as the controlling factor in a decision finding a
craft unit inappropriate, it is clear that the only restriction imposed
by Section 9 (b) (2) is that such prior determination or bargaining
history may not be the sole ground upon which the Board may decide
that a craft unit is inappropriate without an election. In other
words, there is no basis for finding a Congressional intent to prohibit
the use of a prior Board determination or any bargaining history based
15 The following reference to Section 9 (b) in the majority report of the Senate Com-
mittee on Labor and Public Welfare concerning Senate Bill 1126 would indicate that the
Board may no longer rely upon the bargaining history of a particular employer as the basis
for finding a craft unit inappropriate in accordance with the American Can doctrine .
Section 9 ( b) : The several amendments to the subsection propose to limit the Board's
discretion in determining the kind of unit appropriate for collective bargaining :
(2) In determining whether members of a craft may be separated from a
larger unit the Board may not dismiss a craft petition on the ground that a different
unit has been established by a prior determination . This overrules the American Can
rule, supra ( Emphasis supplied.)
16 The following, and later, statement by Senator Taft on the floor of the Senate in ex-
plaining the Senate bill to amend the National Labor Relations Act would indicate that
Congress intended only to preclude the Board from relying exclusively upon a prior deter-
mination as the basis for finding a craft unit inappropriate :
It (the bill ) does not go the full way of giving them ( craft employees) an absolute
right in every case; it simply provides that the Board shall have discretion and shall
not bind itself by previous determination but that the subject shall always be open for
further consideration by the Board . Congressional Record, Senate , April 23, 1947 (93
Cong . Rec, 3952)
This construction is also supported by the following reference to the effect of Section 9 (b)
(2) in the majority report of the Senate Committee on Labor and Public Welfare with
respect to Senate Bill 1126, as found in the section entitled "Reform in Representation
Proceedings" -
Our bill still leaves to the Board discretion to review all the facts in determining
the appropriate unit, but it may not decide that any craft unit is inappropriate on the
ground that a different unit has been established by a prior Board determination.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereon as a factor to be considered in determining the issue of craft
severance, so long as neither is made the sole ground upon which the
Board predicates its decision. Regardless of any limitation on the
use of the bargaining history of a particular employer, there is no
suggestion, either in the provision itself or even in its legislative his-
tory, that the Board should be inhibited in using bargaining history
in the industry concerned in determining the appropriateness of a
proposed unit of craft employees. We conclude that bargaining his-
tory in an industry may be considered as a weighty factor in any Board
decision affecting the issue of the appropriateness of separate craft
representation. .
The language contained in Section 9 (b) (2) itself supports this
conclusion. We also believe that even if we were licensed to look
behind the statute, and should then conclude from examining the legis-
lative history that Congress intended to abrogate the American Can
doctrine per se, it would not necessarily follow that craft severance
.must be granted in the instant proceeding. This conclusion is based
on the fact that (1) the only restriction imposed by Section 9 (b) (2)
is that a prior Board determination cannot be the basis for denying
separate representation to a craft group; (2) under the language of
the statute there is nothing to bar the Board from considering either
a prior determination or the bargaining history of a particular em-
ployer as a factor, even if not controlling, in determining the appro-
priateness of a proposed craft unit; (3) there is nothing in either
statute or legislative history to preclude the Board from considering
or giving such weight as it deems necessary to the factors of bargaining
history in an industry, the basic nature of the duties performed by the
craft employees in relation to those of the production employees, the
integration of craft functions with the over-all production processes
of the employer, and many other circumstances upon which the Board
has customarily based its determination as to the appropriateness or
inappropriateness of a proposed unit.
We find, therefore, that the appropriateness of the unit requested
by the Petitioner is a matter that lies within the discretion of the
Board, to be determined upon all the factors in the case,17 including
those just mentioned. We turn now to those factors.
The Petitioner's contention that bricklayers and apprentices em-
ployed at the particular plant of this Employer constitute an appro-
priate unit, is based primarily upon craft considerations and the al-
leged inadequacy of their past representation as part of the present
plant-wide bargaining unit. The record discloses that, unlike the
17 See above statement in the majority report of the Senate Committee on Labor and
Public welfare , footnote 16, supra.
NATIONAL TUBE COMPANY 1207
usual craft maintenance employees whose work on any particular piece
of production equipment occurs for the most part at irregular inter-
vals,111 the bricklayers and apprentices for whom the Petitioner seeks
separate representation are engaged in a definite program of replacing
and repairing on regularly succeeding occasions , the instrumentalities
used in the continuous production of basic steel 19 Their functions are
therefore intimately connected with the steelmaking process itself.
The bricklayers and the steel production employees enjoy similar
working conditions and, as already indicated , have been represented
under a series of exclusive bargaining agreements between the Em-
ployer and the Intervenor , extending from 1942 through 1947, when
the current collective bargaining agreement between the Employer and
the Intervenor was executed.
The resultant integration of the bricklayers with the steel produc-
tion employees has been further advanced by a job evaluation program
recently completed pursuant to agreements between the Employer
and the Intervenor . It covers all employees including bricklayers.
The wage rates of production employees , including those of brick-
layers and apprentices , have been integrated into a single coordinated
wage structure . The experience of the Employer , as disclosed by its
long history of collective bargaining with the Intervenor , is parallel
to that of other employers in the steel industry , who generally have
bargained upon the basis of an over -all unit in which craft employees,
including bricklayers , have been included.
The Board is greatly impressed by the argument of the Employer
that, due to the integrated nature of operations in the steel industry,
any change in the unit governing the bargaining relations between the
Employer and its employees would be detrimental to the basic wage
rate structure underlying the Employer 's present operations, and
would necessarily have an adverse effect upon its productive capacity
in an industry of vital national concern.
Upon consideration of all the foregoing circumstances , we are of
the opinion that the factors relied upon by the Board in Matter of
Geneva Steel Company, supra , particularly those of integration and
bargaining history in the industry , are equally present here. They
continue to present a compelling argument in favor of an over-all
bargaining unit, and against separate units of these particular craft
employees in the basic steel industry . We find, accordingly , that the
19 See Matter of Pacific Car and Foundry Company, 76 N L R. B. 32.
19 The bricklayers and apprentices herein concerned appear to have specialized skills with
reference to the construction and repair of furnace linings and other equipment peculiar to
the steel industry. Their work is, for the most part , entirely different from that of brick-
layers Vormally employed in building construction.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit sought by this Petitioner is inappropriate for the purposes of
collective bargaining. We shall therefore order that the petition
in the instant proceeding be dismissed.
ORDER
Upon the basis of the above findings of fact and upon the entire
record in the case, the National Labor Relations Board hereby orders
that the petition for representation and certification of represen-
tatives of employees of the National Tube Company, Lorain, Ohio,
filed by Bricklayers, Masons and Plasterers International Union of
America, AFL, be, and it hereby is, dismissed.