United States Steel Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1980

248 N.L.R.B. 820 (N.L.R.B. 1980)

820 DECISIONS OF NATIONAL LBOR RELATIONS BOARD
United States Steel Corporation and United Steel-
workers of America
Inland Steel Company and United Steelworkers of
America
Bethlehem Steel Corporation and United Steelwork-
ers of America. Cases 8-CA-12124, 8-CA-
12125, and 8-CA-12126
March 31, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 28, 1979, Administrative Law
Judge John C. Miller issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and the Intervenor, District 2, MEBA-AMO
Safety & Education Plan' (hereinafter called the
Plan), filed exceptions and supporting briefs. The
Respondents, United States Steel Corporation (her-
einafter called United), Inland Steel Company (her-
einafter called Inland), and Bethlehem Steel Corpo-
ration (hereinafter called Bethlehem), together filed
an answering brief, as did the Party in Interest,
District 2, Marine Engineers Beneficial Associ-
ation-Associated Maritime Officers (hereinafter
called MEBA).
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondents' refusal to bargain about the wages and
working conditions of unit employees, who are
members of the Steelworkers, attending the
MEBA-Plan Summer School 1978, at Toledo,
Ohio, was not a refusal to bargain within the mean-
ing of the Act. Counsel for the General Counsel, in
his exceptions, argues that the students remained in
the bargaining unit of unlicensed personnel while
attending the school, and that Respondents' refusal
to bargain with the Steelworkers was a refusal to
bargain within the meaning of the Act. We agree.
The facts, as more fully set forth by the Admin-
istrative Law Judge, show that Respondents indi-
I Contrary to the Administrative Law Judge, we find that District 2,
MEBA-AMO Safety & Education Plan, which has excepted separately
on the issue of employer status, is not an employer engaged in commerce
within the meaning of Sec. 2(6) and (7) of the Act. The fact that the Plan
is composed of 79 employer-members, including the three Respondents
herein who fund and sponsor a school preparing individuals to become
licensed officers pursuant to agreement, does not constitu:e evidence that
the Plan is also an employer within the meaning of the Act.
248 NLRB No. 90
vidually and the Steelworkers have been parties to
separate successive collective-bargaining agree-
ments, the current ones effective August 1, 1977, to
August 1, 1980. Such agreements cover units of all
"unlicensed personnel." 2 The contracts are silent
with respect to the status of unit members attend-
ing a school for licensed personnel, although in
1973 and 1974 schools had been held during the
summer when Respondents' ore vessels were oper-
ating on the Great Lakes, and MEBA had annually
held schools in the winter months when many
seamen are not working.
To fill a need for more licensed officers, Respon-
dents sponsored a summer school to train engineers
and first-class pilots commencing August 1, 1978.
The purpose was to prepare the students, most of
whom were oilers, to take the Coast Guard exa-
miniation for licensed mates or engineers. The Ad-
ministrative Law Judge found that the Union made
a timely request for bargaining with respect to the
summer school.3 He also concluded that the "stu-
dents" from the bargaining unit who attended the
school had no community of interest with unli-
censed personnel working aboard Respondents'
ships. We do not adopt this latter conclusion, since
we find the cases he relied upon in support of that
conclusion are distinguishable. 4
The Administrative Law Judge, in arriving at his
conclusions leading to dismissal of this case, failed
to consider record evidence which shows that in
establishing the 1978 summer school it was the
intent of Respondents that the students retain their
status as unit employees while attending the 10- to
13-week school.
The guidelines established by the Joint Training
Advisory Committee for the summer school pro-
2 We note that Respondents would interpret the unit language narrow-
ly on the ground that the National Labor Relations Board certifications
refer to "unlicensed seamen on board vessels" while the contractual defini-
tions say: "employed on the fleet" or "employed on all vessels. " Inasmuch as
the "students" in issue were recruited from the units. were "placed on
school leave while matriculating," and at least some were returned to the
units after training, we find no merit in the contention that they do not
come within the existing units.
3 The Union became aware of the 1978 summer school on June 30
through Respondent United and later complained informally to Respon-
dents about not having been consulted. On July 19 the Union filed
charges.
4 The Administrative Law Judge cited Curtis Industries, Division of
Curtiss Noll/ Corporation, 218 NLRH 1447 (19751, where a Board major-
ity, then-Member Fanning dissenting, held that the interests of manage-
ment trainees were aligned with management rather than with regular
employees. We note that the management trainees in that case had no al-
ternative other than to advance into management positions or to leave
the employ of the employer. The Administrative Law Judge also cited
WTOP. Inc., 115 NLRB 758 (1956). where the Board found that floor di-
rectors, participating in a training program to prepare them for supervi-
sory positions, were not employees within the meaning of the Act. There
the trainees did not continue with the employer after completion of the
training program unless retained as supervisors See also Buckeye Coal
Co., 228 NLRB 659, fn. 2 and 661 (1977), where the lack of options for a
management trainee were discussed
UNITED STATES STEEL CORPORATION 821
vided for: "Full wages and benefits for the students
just as though they were on the ship." A working
outline for the 1978 special summer school pro-
vided that students would receive their regular
wages based on a 64-hour week, that they would
receive 60 percent of their pay while in school,
that 40 percent would be paid to the student 30
days after his return to employment with the same
Company, that attendance at the school would be
included in calculation of vaction and year-end
bonus, that Respondent Companies agreed to con-
tinue all fringe benefits such as hospitalization or
welfare plan system for the student while he is in
school, and that students would be expected to
return to employment with the Company as soon
as practicable following release from school.
We note further that on June 30, 1978, in a cir-
cular letter to all of its masters and engineers, Re-
spondent United indicated that the balance of 40
percent would be paid to the students "upon re-
turning to our vessel and sailing for a period of
thirty days whether or not they are successful in
obtaining a license." Also in the circular was the
statement that "[A]ll fringe benefits including insur-
ance and bonus will be maintained as though the
student was still sailing." 5 In a supplement to the
aforementioned letter, Respondent United ex-
plained the details of the school to potential stu-
dent candidates by stating that "[A]ll fringe bene-
fits presently enjoyed by you will continue to be
provided while you are at school. This includes
Blue Cross/Blue Shield coverage, Life Insurance
and Sickness and Accident Benefits." Also, Re-
spondent United, by an August 8, 1978, interoffice
communication with respect to students, specified:
"Time spent in school and wages earned will be in-
cluded in eligibility for bonus and vaction pay-
ments." In addition, resignation as a member of the
Union was not required under the terms of the bar-
gaining agreements, and dues were deducted for
them at the time of return to the bargaining unit
work.6 If the unlicensed seamen who attended
qualified as licensed personnel as a result of the
summer school, they were not required to accept
assignment as such. In fact only 7 of the 10 who
attended were licensed. Whether all seven accepted
assignment as such has not been shown.
It thus appears, and we find, that the students
here involved did not cease to be employees of Re-
spondents during their summer training but re-
s Respondents explain this as a "convenient way to 'sell' the school "
r Art 11 of the current collective-bargaining agreement hetween the
Steelsorkers and Respondents proxsides that an emploee shall not be
deemed to have lost his membership until the subdistrict director shall
have so determined and nolified the Company in writing. Art XIV of
the same agrecmnlle prios ides that until an employee has been assigned
outside the hbargaining unit for a period of I ear, the indiidual's con-
tinuous service i the unit hall be the same as if he had not left the unit
mained members of the units of unlicensed person-
nel employed by these Respondents. Accordingly,
we find that the terms and conditions under which
they attended the summer training school were
mandatory subjects of bargaining and that Respon-
dents' unilateral actions with respect to such terms
and working conditions constituted violations of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. United States Steel Corporation, Inland Steel
Company, and Bethlehem Steel Corporation are
employers within the meaning of Section 2(6) and
(7) of the Act.
2. United Steelworkers of America is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. The Respondents, United States Steel Corpo-
ration, Inland Steel Company, and Bethlehem Steel
Corporation, have refused to bargain with United
Steelworkers of America, concerning the wages
and working conditions of unit employes who as
students attended summer school 1978, within the
meaning of Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
We have found that Respondents violated Sec-
tion 8(a)(5) and (1) by establishing, without notify-
ing or consulting with Steelworkers, wages, hours,
and other conditions of employment for unit em-
ployees as students attending summer school 1978.
Accordingly, we shall order Respondents to bar-
gain with the Steelworkers, upon request, concern-
ing any future summer schools to be attended by
unlicensed employees represented by the Steel-
workers.
We shall also require Respondents to make
whole the Steelworkers for monetary losses in-
curred as a result of Respondent Inland's unilateral
failure to check off dues and from the failure of
Respondents United and Bethlehem to issue to em-
ployees, while students, separate checks covering
dues.
Since the withholding of 40 percent of the wages
from unit employees attending summer school 1978
stems directly from Respondents' unilateral action
in failing to meet its bargaining obligation, and the
record shows that Caldwell, one such employee,
had not received such pay at the time of hearing,
we believe that a meaningful bargaining order can
be fashioned only by directing Respondents to
make employees, who may not have been so reim-
bursed, whole for any loss of earnings suffered by
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason of the unlawful witholding of 40 percent of
their wages during summer school 1978. Interest
on backpay and dues reimbursements, if any, is to
be computed in accordance with the formula de-
scribed in F. W. Woolworth Company, 91 NLRB
289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). 7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondents,
United States Steel Corporation, Inland Sl;eel Com-
pany, and Bethlehem Steel Corporation, Cleveland,
Ohio, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with United Steelworkers of America by refusing,
upon request, to bargain concerning the wages and
working conditions of unit employees who as stu-
dents attended summer school 1978.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request by the Steelworkers, bargain
collectively with the Steelworkers with respect to
wages and working conditions of unit employees
who as students attend future summer schools for
unlicensed personnel, and, if an understanding is
reached thereon, reduce to writing and sign any
agreement reached as a result of such bargaining.
(b) Remit to the Steelworkers all union dues re-
quired to be checked off or speartely remitted
during the 1978 summer school.
(c) Reimburse those unit employees from whose
wages 40 percent was withheld while attending
summer school 1978.
(d) Post at their respective places of business
aboard their ships plying the Great Lakes, copies
of the attached notices marked "Appendix A, B,
and C."8 Copies of said notices, on forms provided
by the Regional Director for Region 8, after being
duly signed by Respondents' representatives, shall
be posted by Respondents immediately upon re-
ceipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
7 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply
herewith.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with United Steelworkers of America with re-
spect to wages, hours, and other terms and
conditions of employment, concerning unit
employees attending future summer training
schools sponsored by us.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act.
WE WILL, upon request of the above-named
Union, bargain collectively with the Union
with respect to wages, hours, and other terms
and conditions of employment covering unit
employees as students attending future summer
training schools, and, if an understanding is
reached thereon, reduce to writing and sign
any agreement reached as a result of such bar-
gaining.
WE WILL remit to said Union all union dues
required to be checked off or separately remit-
ted for unit employees as students at the 1978
summer school.
WE WILL reimburse those unit employees
from whose wages 40 percent was withheld by
us while attending the 1978 summer school.
INLAND STEEL COMPANY
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with United Steelworkers of America with re-
spect to wages, hours, and other terms and
conditions of employment, concerning unit
employees attending future summer training
schools sponsored by us.
UNITED STATES STEEL CORPORATION 823
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act.
WE WILL, upon request of the above-named
Union, bargain collectively with the Union
with respect to wages, hours, and other terms
and conditions of employment covering unit
employees as students attending future summer
training schools, and, if an understanding is
reached thereon, reduce to writing and sign
any agreement reached as a result of such bar-
gaining.
WE WILL remit to said Union all union dues
required to be checked off or separately remit-
ted for unit employees as students at the 1978
summer school.
WE WILL reimburse those unit employees
from whose wages 40 percent was withheld by
us while attending the 1978 summer school.
BETHLEHEM STEEL CORPORATION
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with United Steelworkers of America with re-
spect to wages, hours, and other terms and
conditions of employment, concerning unit
employees attending future summer training
schools sponsored by us.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act.
WE WILL, upon request of the above-named
Union, bargain collectively with the Union
with respect to wages, hours, and other terms
and conditions of employment covering unit
employees as students attending future summer
training schools, and, if an understanding is
reached thereon, reduce to writing and sign
any agreement reached as a result of such bar-
gaining.
WE WILL remit to said Union all union dues
required to be checked off or separately remit-
ted for unit employees as students at the 1978
summer school.
WE WILL reimburse those unit employees
from whose wages 40 percent was withheld by
us while attending the 1978 summer school.
UNITED STATES STEEL CORPORATION
DECISION
STATEMENT OF THE CASE
JOHN C. MILLER, Administrative Law Judge: Charges
were filed by the United Steelworkers of America on
July 19, 1978, in this proceeding, alleging that U.S. Steel
Corporation, Inland Steel Company, and Bethlehem
Steel Corporation have refused to bargain with the Steel-
workers in violation of Section 8(a)(5) and (1) of the
Act. Upon opening of the hearing, District 2, MEBA-
AMO Safety & Education Plan, composed entirely of
employer members, and District 2, MEBA-AMO, re-
spectively, moved to intervene alleging that their inter-
ests would be affected by resolution of the issues herein.
After hearing oral arguments on the motions, I granted
both motions to intervene' and thereafter granted a con-
tinuance. On March 13-14, 1979, the hearings were re-
sumed, at which all parties were represented by counsel
and were afforded full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evi-
dence. Thereafter, all the parties filed briefs which have
been duly considered.
Upon the entire record in the case and from my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
1. JURISDICTION
United States Steel Corporation is a Delaware corpo-
ration with its principal offices located in Pittsburgh,
Pennsylvania. It is engaged in the production of steel at
various facilities located throughout the United States. In
the conduct of its business, it annually ships goods in
excess of $50,000 from its various facilities to points out-
side the States where such facilities are located.
Inland Steel Corporation is a Delaware corporation
with its principal offices located in Chicago, Illinois. It
produces steel at its various facilities throughout the
United States. In the conduct of its business, it annually
ships products valued in excess of $50,000 to points out-
side the States where such facilities are located.
Bethlehem Steel Corporation is a Delaware corpora-
tion with its principal offices located in Bethlehem,
Pennsylvania. It produces steel at its various facilities lo-
cated throughout the United States. In the conduct of its
business, it annually ships products valued in excess of
$50,000 to points outside the States where its facilities
are located.
The complaint alleges, all of the above Respondents
admit, and I find that at all times material herein, the
above-named employers are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
District 2, MEBA-AMO Safety and Education Plan is
composed of approximately 79 employer members, in-
cluding United States Steel, Inland Steel, and Bethlehem
Steel Corporation, which, inter alia, funds and sponsors a
I The Plan was permitted to intervene as a full participant and poten-
tial respondent. MEBA's participation wuas limited to that of a party in
interest.
824 DECISIONS OF INATIONAL LABOR RELATIONS BOARD
school preparing individuals to become licensed officers
under an agreement arrangement with MEBA-AMO, as
discussed more fully hereinafter. Inasmuch as U.S. Steel,
Inland Steel, and Bethlehem Steel are members thereof,
it necessarily follows that the Safety and Education Plan,
as a separate entity, is also an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
The complaint alleges, Respondents admit, and I find
that United Steelworkers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Issue
Are Respondents required to bargain with the United
Steelworkers of America, hereinafter the Union, about
the wages and working conditions of unlicensed person-
nel attending a summer school preparing employees to
become licensed marine (supervisory) personnel?
B. Background Facts
The essential facts herein are not in dispute. The
Union represents approximately 1,400 unlicensed person-
nel who man Respondents' ore or limestone ships plying
the Great Lakes. U.S. Steel operates some 26 vessels,2
while Inland Steel and Bethlehem each operate 6 vessels.
Most of these vessels operated in nonwinter months from
various Great Lakes ports hauling iron ore or limestone.
The U.S. Steel ships have approximately 30 employees of
whom approximately 17 are unlicensed personnel. The
Inland and Bethlehem ship complements are about the
same in size as U.S. Steel and, in addition to the captain,
also have employees classed as either licensed or unli-
censed personnel.3
To help fill the need for licensed personnel to man
their ships, MEBA (Marine Engineers Beneficial Associ-
ation) and the Plan4 have annually operated winter
schools to enable applicants to pass the Coast Guard ex-
amination and in turn fill the need for licensed personnel
for Respondents' ships. Because of the unusual shortage
lf licensed personnel, summer schools (10 to 13 weeks in
length) were held in 1973 and 1974. In 1978, a similar
summer school was held beginning July 311, 1978. It is
the summer school of 1978 that is in issue in this pro-
2 Only the 20 vessels hauling iron ore and designated as the "Pitts-
burgh fleet" whose unlicensed personnel are represented by Local 5000
of United Steelworkers Union are in issue in this proceeding.
a The licensed personnel consist of the captain, mates, engineers, and
steward. The unlicensed personnel consist of wheelsmen, watchmen, and
deckhands under the supervision of mates, and oilers, firemen, firemen-
maintenance, and wipers under the supervision of the engineers in the en-
gineroom.
The record establishes that MEBA represents engineers on all three
Respondents' ships, and the mates on Bethlehem ships. the mates on U.S.
Steel's Pittsburgh fleet are represented by another union, Master, Mates
and Pilots tMMP), while mates on Inland ships are unrepresented.
4 District 2, MEBA-AMO Safety & Education Plan was created pursu-
ant to collective-bargaining agreements in 1961 (tee Plan Exh. 6) and
each of the employer members, including Respondent Steel Companies.
makes regular contributions to the Plan. One of the purposes of the Plan
was "the development and maintenance of a skilled pool of licensed offi-
cers .... " There are only employer members in the Plan and it is ad-
ministered by a Board of four trustees.
ceeding with the Union claiming that Respondents did
not notify or bargain with them about wages and work-
ing conditions at the school covering unlicensed person-
nel attending from the bargaining unit.
Students selected to attend the schools are chosen uni-
laterally by Respondents based on the recommendations
of supervisors on various ships. For the 1978 summer
school, U.S. Steel's Pittsburgh fleet selected five unli-
censed employees to attend the 1978 summer school and
they included Fred Bennett, Homer Caldwell, Jim Hog-
sett, Doug Monk, and Charles Ossanna. At the time they
departed to attend school they were all classed as oilers
and were within the bargaining unit represented by the
Union. While all five completed the school, only Cald-
well, Ossanna, and Hogsett passed the Coast Guard ex-
amination and were licensed. Ossanna and Hogsett as-
sumed positions as engineers and Caldwell went on
leave. The two employees who did not pass the examina-
tion returned to their positions as oilers in the bargaining
unit. The record does not disclose what position, if any,
Caldwell returned to with U.S. Steel.
Inland. Two employees, Bruce Dutter and Ernest
Moorehouse, attended the school and passed the Coast
Guard examination and thereafter Moorehouse took a
position as third assistant engineer, and after a 5-week in-
terval in his former position as helmsman, upon his
return, Dutter assumed the position of temporary third
mate.
Bethlehem. Of three employees who attended the
school, two, Nick Fairchild and Lance Nelson, complet-
ed the school and passed their licensed examination. 5
Thereafter, Fairchild became a third assistant engineer
and Nelson assumed a third mates position, with Bethle-
hem.
In sum, of 10 employees who attended, 7 were li-
censed and with the exception of Caldwell, whose pre-
sent position is unknown, they became engineers or
mates on vessels of their respective employers and were
represented either by MEBA or MMP (Masters, Mates &
Pilots of Lakes & Rivers District). In the case of Inland
Steel, the mates were unrepresented.
C. 7he ,4ppro;riate Units
(1) The certified units of the respective Respondents
discloses the following certification language:
U.S. Steel -"All unlicensed seamen on board the em-
ployer's vessels . . ."
Bethlehem -"All unlicensed personnel on board the
vessels, presently operated by the employer . . ."
Inland -"All unlicensed personnel on board all ves-
sels owned and/or operated by employer Inland .... "
(2) The respective contracts define the bargaining unit
of unlicensed personnel as follows:
U.S. Steel -"All unlicensed personnel . . . employed
on the fleet of Great Lakes vessels."
5 Subsequent to the close of the hearing, a stipulation was received in
which all parties agreed that C. Collunm, an oiler employed by Bethlehem
briefly attended the special summer school but dropped ul of the school
due to illness. It was further stipulated that Collum received sickness and
accident benefits under the collective-bargaining agreement between
Bethlehem and the Union in connection with such illness.
UNITED STATES STEEL CORPORATION 825
Bethlehem -"All unlicensed personnel . . . employed
on all of the bulk freight vessels operated by ... ."
Inland -"All unlicensed personnel . . . employed on
all bulk freight vessels .. ."
D. Contentions of the Parties
The Union, the Charging Party, contends that it was
never notified or consulted about the 1978 summer
school, the wages to be paid the attendees, or any items
about the school, nor was it discussed what would
happen to members who attended if they wished to
return to the bargaining unit. The Union further con-
tends that its existing contract with Respondents is silent
with respect to attendance at such schools and about em-
ployee's pay, insurance, pension, dues, et cetera, while
attending the school.
Counsel for the General Counsel urges Respondents
violated Section 8(a)(5) of the Act by deciding to con-
duct the summer school and by unilateraliy setting the
terms and conditions of employment for employees at-
tending the school without bargaining with the Union.
District 2, MEBA, contends the students attending the
summer school were in training for supervisory positions,
do not remain in their former bargaining unit, and have a
closer community of interest with MEBA than the
United Steelworkers Union, and as a consequence, Re-
spondent Employers have no duty to bargain with the
Steelworkers.
The Plan argues that potentially conflicting bargaining
obligations may arise if a bargaining order is issued here
because other Unions represent unlicensed personnel in
attendance at the school, which may result in inconsis-
tent and conflicting agreements being reached, and that
it will impair the efficient and effective conduct of the
school. It further contends a bargaining order may
impair Trustees' exercise of their fiduciary responsibilities
under the Employee Retirement Income Security Act of
1974 (ERISA).
Respondents contend that they have no duty to bar-
gain about employees attending the school because such
employees are no longer in the units; that the terms and
conditions of the school do not fall within the terms of
employment within the meaning of Section 5 of the Act,
and that such students were not "employees" within the
meaning of the Act, or within the contractually agreed-
to bargaining units.
E. Discussion of Pertinent Points
In resolving the issue of whether Respondents herein
had the duty to bargain with the Union over the decision
to conduct a special summer school for original licenses,
and the wages, hours, and working conditions of students
attending such school, I conclude it will be necessary to
examine the following pertinent matters:
(1) The scope of the bargaining demand.
(2) The language of the certified and contract units for
unlicensed personnel.
(3) The past practice with respect to conduct of these
schools.
(4) Whether unlicensed employees attending the
school remain a part of the bargaining unit.
(5) Whether students are employees within the mean-
ing of the Act.
Each of these points will be discussed ad seriatim,
hereafter.
1. Scope of the bargaining demand
The Union claims for bargaining center around its con-
tention that it was never notified or consulted concern-
ing the operation of the summer school; that it is entitled
to bargain about wages, travel mileage, subsistence, and
dues deduction while attending school, and the counting
of schooltime in determining the receipt of fringe bene-
fits, and the status of such employees if and when they
wish to return to jobs on the ships. The Union disclaims
any attempt to bargain about the day-to-day mechanics
of the school's operation, e.g., the hours of school,
whether two or three persons should be assigned to a
room, the instructors or its curriculum.
I construe the thrust of the bargaining demand as em-
bracing the decision to hold the school without notice
and bargaining 6 with the Union about such decision or
the wages, travel mileage, subsistence, and dues deduc-
tions for the students while attending the school. The
issue of whether schooltime is counted in determining
the seniority of employees who return to their old or
similar jobs aboard their ship appears a bargainable
matter irrespective of whether such individuals are
deemed in or out of the unit while attending school. This
latter aspect is not directly treated herein and is only dis-
cussed inferentially hereafter. (See fn. 15.)
2. Certification and contract language relating to
"unlicensed personnel"
The certification language with respect to all three Re-
spondents refers specifically to unlicensed seamen on
board the employers' vessels. However, the language "on
board" cannot be applied literally since unlicensed per-
sonnel may be on shore leave or be off the ship for other
authorized reasons while still contemplating a return to
the ship and continued employment thereon. It would
appear relevant, therefore, to determine whether unli-
censed employees attending the summer school for origi-
nal licenses have a reasonable expectation of returning to
their old positions or to similar positions on their ships.
As noted previously, the summer school lasted from 10
to 13 weeks, and employees who left to attend such
school were replaced by new employees or the transfer
of old employees who in turn were replaced. In addition,
employees who left to attend the school were formally
signed off or "discharged" from the ship under Coast
Guard regulations. (See G.C. Exh. 17.)
The facts previously noted established that 7 of 10 em-
ployees who attended the summer school of 1978 either
accepted jobs as licensed personnel or did not return to
their former positions. I conclude that despite the return
of three individuals to their former jobs, there is no rea-
r On June 30, 1978, the Steelworkers representative. Carol Armstrong
was informed that a summer school was scheduled for July 31, 1978. and
irrespective of whether informal discussions amounted to a request for
bargaining, the charges alleging a refusal to bargain were filed herein on
July 19. 1978, and constitutes a request for bargaining
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonable expectancy that such students, former unlicensed
personnel, will return to their former or comparable
jobs. To the contrary, six of seven employees, or 86 per-
cent of those who passed the Coast Guard examination,
accepted positions as licensed personnel.
The contract language varies slightly from the certifi-
cation language and specifically uses the term "em-
ployed" on the vessels of Respondents. Counsel for the
General Counsel contends that even if the language of
the certification appears to limit the unit to unlicensed
personnel aboard Respondents' ships, subsequent con-
tracts between the parties have altered the unit. He
points to a number of clauses in such contracts7 provid-
ing, inter alia, for meals and allowances for unlicensed
personnel off the ship, bonuses for unlicensed employees
who leave their vessels and enter the Armed Forces of
the United States prior to the layup of their vessels, and
authorization for unlicensed employees to leave their
vessels for jury service, funerals, or vacations and accu-
mulation of seniority by unlicensed employees while they
are off their vessels. The short answer to such argument,
however, is that perhaps with one or two exceptions,
e.g., the bonus for departure to military service, the
clauses all relate to benefits to be extended to unlicensed
employees because of a continuing employment relation-
ship. The departure of employees for the summer school
contemplates a permanent change in the employment re-
lationship. Moreover, continued representation by the
Union would be antithetical to the interests of the em-
ployees concerned who are acquiring technical skills to
be utilized as supervisors. Stated another way, and dis-
cussing hypotheticals, the Union might seek to make at-
tendance at such school difficult because of the knowl-
edge that they have a limited interest in representing em-
ployees who will soon join either MEBA or MMP
Unions. Nor will the wages or benefits paid during atten-
dance at such school have any vital effect on benefits for
unlicensed employees aboard ships. Even without the ex-
plicit language of the contract, there is the inference that
the certification applies to unlicensed personnel "work-
ing" or "employed" on Respondents' vessels. Both the
certification language and the contract language supports
the view that the bargaining unit is limited to that of un-
licensed personnel employed or working on board Re-
spondents' vessels.
3. The past practice with respect to conduct of
similar schools
It is both undisputed and unexplained that the Union
does not seek to bargain with Respondents. about these
same schools for original licenses when they operate in
the winter months. However, when the summer school
of 1978 was scheduled, the Union claimed the right to
represent and bargain on behalf of employees selected to
attend the school. The record is undisputed that similar
summer schools were held in 1973 and 1974 and that a
Steelworkers representative was informed of the sched-
See G.C. Exh. 3, art. VII, sec. 6; G.C. Exh. 4, at. VII, sec. 7(c);
G.C. Exh. 3, art. VIII, sec. 16, 17 and art. X; G.C. Exh. 3, art. XIV, sec.
11 and similar provisions contained in other contracts. See G.C. brief.
uled summer school in 1973 and did not request bargain-
ing as to such matter.
Even assuming that the Union waived any right to
bargain with respect to past summer schools, such
waiver does not continue to exist indefinitely and does
not prejudice the Union's present right to request bar-
gaining if in fact there exists a legal obligation to bar-
gain. 8.
4. Whether unlicensed employees attending the
school remain a part of the bargaining unit
This issue is really the ultimate issue to be decided
here. In resolving such issue, I have considered the sub-
sidiary issues discussed previously as factors to be con-
sidered. The contracts between the parties do not discuss
the status of employees attending such schools. As a
matter of practice, all Respondents continued their regu-
lar pay and fringe benefits for the employees attending
the school with modifications in the method of payment.
The method of paying wages differed while employees
were at the school. They were paid 60 percent of their
regular wages while 40 percent was retained. After
working for their employer for 30 days after completion
of the school, employees were paid the remaining 40 per-
cent of pay withheld earlier. While, in theory, an indi-
vidual need not return to work for his old employer, but
could seek work for either a licensed or unlicensed posi-
tion with any employer, there was obviously a strong
economic incentive for the employees to return to their
original employer.9
The student-employees clearly have no community of
interest with employees remaining on the ships. They are
attending classes, are physically far separated from em-
ployees on the ships, and are studying to become "li-
censed personnel" either as mates or as engineers. In ad-
dition to being paid differently, they attended classes and
did no regular work along the lines of their former jobs.
During the 10- to 13-week period, they were simply stu-
dents.
It is clear that the school was for the explicit purpose
of preparing attendees for Coast Guard examinations
which, if passed, gave them original licenses as either
mates or engineers.
The record further discloses that the position of mates
or engineers were supervisory positions within the mean-
ing of the Act.10 In essence, therefore, the student-em-
ployees were undergoing training to become supervisors.
Cf. Boland Marine and Manufacturing Company, Inc., 225 NLRB 824,
829 (1976).
9 Respondents point out further distinctions in the method and
amounts of payments made to or on behalf of students attending the
school. Students received 10 cents a mile as mileage and subsistence pay-
ments of $13 for room and $7.75 a day for food. The subsistence pay-
ments were made directly to the school by Respondents on behalf of
their respective employees. Students were paid twice monthly through a
special shore-based payroll.
With respect to checkoff of dues, Inland ceased its checkoff when the
employee went to school. U.S. Steel and Bethlehem regularly issued sep-
arate checks to employees in the amount of union dues. They discontin-
ued that practice for employees selected to attend the school.
'° The undisputed record establishes that engineers, and mates, had the
authority, inter alia, to discipline employees, handle grievances, and re-
sponsibly assign employees work.
UNITED STATES STEEL CORPORATION 827
F. Discussion and Conclusions
Counsel for the General Counsel and the Union have
premised their unfair labor practice allegations on the
contention that employees selected from the bargaining
units of Respondents to attend the 1978 summer school
for original licenses remain in the bargaining unit and
that the decision to hold the school and the wages,
hours, and working conditions of employees attending
school are bargainable matters.
While it appears undisputed that the Union was noti-
fied of a similar summer school in 1973 and did not re-
quest bargaining, I conclude that even if there were a
past waiver of the right to bargain it does not constitute
an indefinite waiver if in fact the legal obligation to bar-
gain exists. Accordingly, irrespective of the past history
with respect to bargaining about summer schools, the
Union made a timely request here for bargaining with re-
spect to the 1978 summer school.
Neither the General Counsel nor the Union disputes
the fact that the school is to prepare employees for posi-
tions as engineers or mates or that such positions are su-
pervisory within the meaning of the Act. The record
also establishes that with some exceptions the majority of
licensed personnel operating Respondents fleet of ore
vessels are represented by MEBA. l The area of bar-
gaining appears limited, inter alia , to the period of time
when such individuals leave the ship to attend the 10- to
13-week school and, until they are hired as engineers or
mates, return to their old jobs, or otherwise terminate
their employment with Respondents.
I find that the facts previously discussed conclusively
establish that: (1) Students attending the MEBA-Plan
Summer School of 1978 at Toledo, Ohio, for original li-
censes as engineers or mates have no community of in-
terest with unlicensed personnel working aboard Respon-
dents' ship;' 2 (2) both the certification language and the
contract language support the view that such students
are outside the bargaining unit; (3) students are attending
such school to prepare themselves to take the Coast
Guard examinations with the ultimate purpose of being
'' The remainder are either represented by the Masters, Mates, and
Pilots Unions, hereafter MMP, or are unrepresented.
it WTOP Inc., 115 NLRB 758 (1956); Curtis Industries. Division of
Curtis Noll Corporation, 218 NLRB 1447 (1975).
hired as engineers or mates on Respondents' fleet of
ships. Nor is it in dispute that when such individuals are
hired as engineers or mates, they will probably be repre-
sented either by MEBA or MMP, and not Local 5000 of
the USW. I conclude and find that while in school such
students are trainees for supervisory and/or managerial
positions;' 3 (4) the engineer and mates positions aboard
Respondents' ships are supervisory positions within the
meaning of the Act. I also conclude that the terms and
conditions of employment of such students while attend-
ing school do not vitally affect bargaining unit employ-
ees.' 4 In light of these preliminary conclusions, the ulti-
mate conclusion follows, namely, that Respondents refus-
al to bargain about the school, and the wages and work-
ing conditions of employees in attendance of such
school, is not a refusal to bargain within the meaning of
the Act. 6
CONCLUSIONS OF LAW
I. Respondents are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondents did not refuse to bargain in violation of
Section 8(a)(5) and (1) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
1' Cf. N.L.R.B. v. Bell Aerospace Company Division of Textron Inc.,
416 U.S. 267 (1974). In view of my findings herein, I find it unnecessary
to decide whether individuals attending the school are no longer employ-
ees within the meaning of the Act.
' Cf. Allied Chemical & Alkali Workers of America Local Union No. I
v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971).
1' In dismissing this complaint, I do not wish to convey the impression
that Respondents may not have to bargain upon request over the senior-
ity status of employees returning to their old jobs (and the unit), e.g.,
whether individuals who return get partial or full seniority credit for at-
tending the school or are to be treated as new employees. I do not con-
sider this issue before me. I am inclined to view a properly tailored union
request to that limited area as proper at any time. Inasmuch as I have
concluded that the request for bargaining centered on the alleged obliga-
tion to bargain about having the school and the wages, and working con-
ditions of students at or going to and from the school, I find the status of
returnees a peripheral matter not in issue here. In support of this conclu-
sion, see the brief of counsel for the General Counsel, where he charac-
terizes the issues as bargaining over the school and employees attending
the school. Moreover, existing contract language may have a bearing on
seniority status. See G.C. Exh. 3, art. XIV, sec. 11.