Canegie-Illinois Steel Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1951

95 N.L.R.B. 763 (N.L.R.B. 1951)

CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 763
lectively with the Union in an effort to agree upon new piece rates. On the other
hand, the General Counsel and the Union contend that, in addition to the usual
cease-and-desist requirements, the Respondent should be required to restore
immediately the contract piece rates of 79 cents, with 85 cents for "windfalls,"
and to appropriately reimburse Stonelake and other power saw buckers who have
been compensated improperly under the lower rates. The Bolton case, cited in
footnote 5, is dispositive of the issue in part. Upon authority of that case, I
shall recommend that the Respondent immediately restore the contract rates.
I believe also that in order to restore the status quo and to effectuate the policies
of the Act by assuring that the Respondent not retain the fruits of its unfair labor
practices, the Respondent should be required to reimburse each power saw
bucker for the difference in pay between the amount he earned under the piece
rates set forth in the contract and the amount he was paid, from the date the
unilateral rates of pay were instituted by the Respondent to the date of restora-
tion of the contract rates. I shall recommend accordingly.
Except for the unlawful conduct of the Respondent herein described, the record
does not disclose that a danger exists that the Respondent may commit unfair
labor practices unrelated in kind. Accordingly, I shall not recommend that the
Board issue a broad cease and desist order.
Upon the basis of the above findings of fact and the entire record in the case, I
make the following :
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All of the Respondent's employees at its Siltcoos Division, except supervisory
and office employees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. The Union, at all times since 1941, has been the exclusive representative of
all employees in such unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. By refusing.to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting coin-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
CARNEGIE -ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) and
FRANK BORIO, ET AL . Case No. 13-C-2798. July 31, 1951
Decision and Order
STATEMENT OF THE CASE
Upon a charge filed on February 21, 1946, by Arthur J. Goldberg,
on behalf of Frank G. Borio and other individuals, hereinafter called
95 NLRB No. 92.
764 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
the Complainants, the General, Counsel of the National Labor Rela-
tions Board, by the Regional Director for the Thirteenth Region
(Chicago, Illinois), issued his complaint dated February 8, 1950,
against Carnegie-Illinois Steel Corporation (Joliet Coke Works),
herein called the Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) of the National
Labor Relations Act (49 Stat. 449), hereinafter called the original
Act, or the Wagner Act, and Section 8 (a) (1) and (3) of the Act
as amended (61 Stat. 136), hereinafter called the amended Act.
Copies of the charge were duly served upon the Respondent on June
27, 1947. Copies of the complaint and notice of hearing thereon were
duly served upon the Respondent and Arthur J. Goldberg on
February 8, 1960.
With respect to the alleged unfair labor practices, the complaint
alleged, in substance, that the. Respondent : (1)' On February 16,
1946, suspended, and on March 18,' 1946, discharged, 21 foremen and
supervisors and 28 guards or watchmen,' and thereafter, failed and
refused to reinstate them, because they concertedly ceaed work for
their own mutual aid 'and protection as well as for the mutual' aid
and protection of the Respondent's rank-and-file employees who went
on strike on January 20,`1946, for the purpose of discouraging such
concerted activities as well as membership in the United Steelworkers
of America, CIO, herein called Steelworkers; (2) from about Jan-
uary 14, 1946,.to the date of the complaint, engaged in a continuous
course of interference, restraint, and coercion of its employees in the
exercise of their rights to self-organization by revising its plant rules,
particularly one prohibiting the use of intoxicating beverages, by
threatening violence and reprisals, and by interrogating various of the
'Complainants regarding their concerted activities. On February 21,
1950, the General 'Counsel amended his complaint to include one
George Sweeney as a Complainant.
On March 6, 1950, the Respondent filed its answer to the complaint,
which, while admitting certain allegations thereof with respect to the
nature of its business, denied that the Respondent had engaged in any
unfair labor practices. '
Pursuant to notice, a hearing was held at Joliet and Chicago, Illi-
nois, on various dates from March 7 to May 5, 1950, before Horace A.
Ruckel, the Trial Examiner duly designated by the Chief Trial Ex-
aminer. The General Counsel, the Respondent, and the Complainants
were represented by counsel and participated in the hearing. All
The General Counsel moved to dismiss the complaint as to five guards named in the
complaint ( Kramer, McGuckin , Carter, Hartley, and Sharp ).. Tlie Trial Examiner granted
.the motion and his ruling is hereby .afrmed.,
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE. WORKS) 765
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and' to introduce evidence pertinent to the
issues.2
At the beginning of the hearing, the Trial Examiner granted a
motion by the General Counsel to strike portions of the Respondent's
answer which included assertions that the complaint was barred by
lathes, that its issuance was not in the public interest, that supervisory
employees are not protected by the amended Act, and that a variance
existed between the complaint and the charge.3
The General Counsel rested his ca se on March 14,1950, and the hear-
ing was recessed until March 27, 1950. On March 30, 1950, during
the presentation of the Respondent' s case, the General Counsel moved
to amend the complaint to delete reference to the Complainants as
"foremen and supervisors," and to describe them instead as "Group
One Employees." The Trial Examiner granted this motion as well as
motions by the Respondent to amend its answer accordingly, and to
adjourn the hearing to May 1, 1950. On April 12,1950, the Respond-
ent filed its supplemental answer to the complaint as last amended.
Upon resumption of the hearing on May 1, 1950, the General Counsel
moved to dismiss certain allegations` of the answer. The Trial Ex-
aminer reserved ruling upon this motion:
On October 24, 1950, the Trial Examiner issued his Intermediate
Report, recommending that the.complaint be dismissed in its entirety.
Thereafter, the General Counsel, the individual Complainants, and
the Respondent filed exceptions and briefs in support thereof. The
Board has considered the Intermediate Report, the exceptions and
briefs, and has carefully reviewed the entire record and finds merit
in the exceptions filed by the General Counsel and the individual Com-
plainants. Because of the extent of our disagreement with the find-
ings, conclusions , and recommended order of the Trial Examiner, we
make our own findings, conclusions, and order, as follows :
FINDINGS OF FACT 4 '
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Carnegie-Illinois Steel Corporation, a 'New Jersey
corporation with its principal executive offices in Pittsburgh,
Pennsylvania, is engaged in the manufacture, sale, and distribution of
z The request for oral ,argument by the parties is hereby denied as the record and the
'briefs, in our opinion , adequately present the issues and the positions of the parties.
a We agree with the Trial Examiner 's ruling on this motion .
44 In making the findings herein, the Board has considered and weighed the entire
evidence . It would needlessly burden'this Decision and Order to discuss all the testimony
on disputed points . Such testimony or other evidence as is in conflict with our findings,
and is not specifically discussed hereinafter , is not credited. .
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steel, coke, coke byproducts, and steel products, in the course of which
it operates numerous steel and coke plants in various States of the
United States. It is a subsidiary of United States Steel Corpora-
tion, a New Jersey corporation. It operates various coal yards, docks,
furnaces, a railroad, and facilities for the manufacture of coke, chem-
icals, gases, and other byproducts in its plant located at Joliet, Illinois,
called the Joliet Coke Works, the only operation directly involved in
this proceeding. The Joliet plant is a subdivision of the coke division
of the Respondent's Gary (Indiana) Steel Works. The Respondent-
.sells and transports large quantities of its products in interstate com-.
merce from its Joliet, Illinois, plant.
We find that the Respondent is engaged in commerce within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The foremen
1. The 1946 steel strike
In January 1946 there were approximately 47 foremen at the Joliet
Coke Plant of the Respondent. They were not organized and had no
collective bargaining representative.
Steelworkers had two locals there : Local No. 1329 certified by the
Board as bargaining representative of the production and maintenance
employees, and Local No. 3082 certified by the Board as bargaining
representative of the salaried clerical employees. This was about 19
months before the effective date of the amended Act.
The Joliet plant was one of many plants involved in the Nation-wide
strike called by Steelworkers, which, though originally scheduled for
.January 14, 1946, began on January 21, 1946, at 12: 01 a. in.
2. The prestrike negotiations
Early in January 1946, in anticipation of Steelworkers' strike, the
Respondent negotiated with Steelworkers as bargaining representative
of its rank-and-file employees for the purpose of making arrangements,
-for protecting the plant during the impending strike .5 On January
10, Superintendent Herbert. Jones of the Joliet plant, General Super-
intendent Jenks, Division Superintendent Burress, and De Toffol,
assistant in charge of industrial relations, met with Steelworkers' Dis-
trict Director Krzywonos, Spiezio, president of Local No. 1329, and
other union officials, and discussed the number of rank-and- file em-
ployees needed to protect the plant. A few days later another such
5 The facts concerning these negotiations, except in the respects indicated hereinafter,
were not in substantial dispute.
CARNEOIE-ILLINOIS STEEL CORPORATION (JOLIET COKE, WORKS) 767
meeting was held at which the parties discussed alternative arrange-
ments in the event natural gas were used as a substitute for coal in
heating the batteries during the • strike. On Sunday, January 20, a
final meeting between the Respondent and Steelworkers was held. The.
Respondent advised the Union that it was unable to procure natural
gas and the discussion reverted to the original plan which called for
the use of 105.rank-and-file employees, exclusive of supervisors and
guards, to man the plant on a 3-shift basis during the strike. The
Respondent presented Steelworkers with a schedule of the production
and maintenance jobs to be filled and a list of employees qualified to
fill them.
George Jones, a member of the Respondent's industrial relations
staff in Chicago, then asked the union representatives if they would
allow nonunion men to enter the plant during the strike, and they
replied, in substance, that their union was 100 percent organized in
the plant, indicating that this problem was therefore inconsequential.'
Leiss, president of the clerical employees' local, then mentioned that
there was one nonmember, Patmore, in his unit, but Spiezio and the
other union representatives said that they would not have any trouble
with him so long as he was not scheduled to work. Patmore's name
did not appear on the schedule furnished to the Unions Jones left
for about 10 minutes; and when he returned, he asked if. the Union
"would allow any men from the Carnegie-Illinois Steel Corporation
to enter the plant." Krzywonos asked Jones if that meant workers
from Gary and South Chicago, and Jones said that it did. Krzy-
wonos then stated, "No, they wouldn't be allowed to enter the plant."
Jones thereupon terminated the meeting.'
3. The 72-hour ultimatum
In the meantime, on January 19, the foremen, were notified by
their superiors to be present at a meeting to be held at the plant about
10 a. m., on Sunday, January 20, and to bring to the plant sufficient
personal belongings for an indefinite stay in the plant. On Sunday
morning the foremen arrived in response to this notification and
congregated in an anteroom to Superintendent Jones' office where
they waited for the conference between the representatives of the
The Trial Examiner stated that the schedule submitted to Steelworkers included the
names of three employees for whom the Respondent had no checkoff authorizations "and
whom it must be presumed that the Respondent did not know were union members, if they
were."
7 On this subject, Superintendent Herbert Jones testified that no question had been raised
at this meeting as to whether the Respondent intended to bring in "outsiders." His assist-
ant, De Toffol, testified that the Respondent 's position was that it had the right to schedule
any employees and that s, teelworkers insisted only on union members ; he was not speci i'
as to whether or not outsiders had been discussed . George Jones did not appear or testify
at the hearing . The Intermediate Report makes no mention of the .testimony as to
"outsider. "
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent and Steelworkers. to end., All the foremen were present,
with the exception of a few who were- on duty during the 7 a. in. to
3 p. in. shift. When the meeting ended, Spiezio and Krzywonos, on
their way out, told the foremen what had occurred. Shortly there-
after, the foremen gathered in Superintendent Jones' office. There,
George Jones announced that management had met with Steelwork-
ers' representatives, that they had been unable to reach an agreement
whereby the rank-and-file would maintain the plant during the forth-
coming strike emergency, that lie told the Union that he wouldn't
need any union men to protect the plant, and there were enough super-
visors to operate the plant, and that they (the supervisors) were ex-
pected to do so. Foreman Ted. Girard then asked Jones if the reason
management planned to have the foremen stay in there was "to cool
the ovens down," and Jones replied, "absolutely not." George Jones
and De Toffol then left. Superintendent Herbert Jones, who re=
mained, was then again asked, this time more specifically, whether the
Respondent was going to produce gas in the No. 3 battery with the
intention of slowly cooling down the other three batteries, and Super-
intendent Jones replied that there was no such intention. When
asked why, he terminated the meeting and stated that he wanted to
see all of the foremen in his office, one at a time.
Immediately thereafter, Superintendent Jones called the foremen
in and asked each one, individually, in substance, whether he would
stay in the plant on a 24-hour basis and do whatever work was required
of him. Some agreed, others were uncertain, and still others refused
to commit themselves.
Following these interviews, about 25 to 30 foremen gathered in the
basement of the superintendent's building and discussed the matter of
cooling down the batteries during the impending strike. One of them,
Sweeney, testified that there was a belief among the foremen that
if the Respondent would cool down the batteries during the first 3
clays of the strike the amount of rank-and-file work they would be
required to do during the strike would gradually decrease as the bat-
teries cooled, and that after about a week such work would be "rela-
tively slight." At this meeting of the foremen on the eve of the rank=
and-file strike this feeling was general among them. Foreman
Anthony Borio testified that "nobody felt that they should stay
in there as long as the Company did not intend to cool down the
batteries. That seemed to be the issue from the start." Some of the
men were in favor of leaving immediately but others took the posi-
tion that they try staying on for a few days. The opinion was
expressed that as supervisors "we should do supervisory work . .
they didn't want to'do rank-and-file work."
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE- WORKS) 769 ,
After some discussion, it was decided by the group that Foremen
Sweeney, Adrian Ryan, and Zivec, represent them and apprise manage-
ment of their position.' In accordance with this decision, the three
spokesmen went to see Boswell, their general foreman. They asked
Boswell whether he was going to get natural gas as a substitute for
coal-an alternative that would have reduced the need for rank-and-
file work during the strike by the foremen to a minimum-and Bos-
well replied that he did not think that was possible. They thereupon
advised him that they would stay for a period of 72 hours only, unless
he could persuade Superintendent Jones to start cooling down the
batteries. General Foreman Boswell told them that he would talk
to Jones. He left for several minutes. When Boswell returned, he
gave them no direct answer but stated that he would proceed to draw
up a work schedule to last only 3 days "if the foremen really meant
what they were saying." Many of the foremen were assigned during
the strike to the electric station and that evening, January 20, in the
electric station, they again discussed the 72-hour proposal. Foremen
Ryan and Sweeney reported on their discussion with General Fore-
man Boswell. They said, "Well, we told Boswell this afternoon while
you fellows were working . . . that we wouldn't stay any more than
72 hours, and we told him to tell Mr. Jones, that, and he said he
did." The foremen assured each other of their determination to walk
out after the 72-hour period unless the Respondent commenced cool-
ing down the batteries.
Shortly thereafter, at 12: 01 a. m., January 21, the rank-and-file
strike began.
The foremen stayed in the plant after the strike 'began and per-
formed the duties assigned to them. However, the next evening they
met again in the electric station; some who had not been present
at the meeting of the night before learned of the planned walkout,
others who had taken part in the meeting were there to obtain as-
surance that their decision would be carried out. Some of the foremen
who did not sleep in the electric station learned about the planned
walkout from discussions among the foremen throughout the plant.
4. Conditions at the plant during the strike.
The discontent among the foremen, engendered by the refusal of
the Respondent to accept their proposal and by what appeared to the
8 The recital of the circumstances surrounding the meeting between the representatives
of the foremen and General Foreman Boswell on January 22 is based, for the most part, on
the testimony of Foremen Sweeney, Adrian Ryan, and Zivec. Boswell testified that he met
with the foremen on January 22, but described the so-called ultimatum as one given by the
Union. Like the Trial Examiner, we credit the foremen's version of the meeting.
770 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
foremen an unwillingness to use natural gas, was intensified during
the first 3 days of the strike by the character of the work they
were required to do, the sleeping and eating conditions in the plant,
the requirement that they remain there on a round-the-clock basis, and
the 12-hour and longer shifts that went into effect when the rank-and-
file employees stopped work.9 '
During the first 3 days of the strike the foremen did work normally
assigned to rank-and-file employees. Thus, Anthony Borio worked
as a "screening station operator" ; Sweeney worked as a "door extractor
operator" ; Randolph worked as a No. 3 pusher and he also kept. the
walk clean and helped mix mud; Vanderhyden worked as a coal
handler, running the conveyor belt; Adrian Ryan ran a larry car under
the coal tanks ; Vincent Ryan acted as a damperman ; Mandus Girard
acted as "coal transfer operator," transferring coal from the stockpile;
Botusich did labor work, put coal in the coal crusher, ran the crusher,
and ran the coal down the tanks; Petrie ran coal from the crusher
house to the tank, operated conveyors, and put coal through the tanks;
Krizmanic worked in the boilerhouse, shoveling and cleaning the
ashes, running the cranes, feeding the boiler, and getting the coal up
the hopper; Zivec heated 4 batteries, controlling gas, checking ovens,
and also helping on the pusher side of the battery ; Buric and Peter
Tomasich worked in the boilerhouse, Byczinski ran the hot car, helped
at the screening station, and spelled off on-the No. 3 door extractor;
Frank Borio kept the gas, house running, draining tar mains, pump-
ing the system, running up to the boilerhouse, and steaming the lines
out. In all, the 47 foremen, according to the record, did the work
of approximately 105 rank-and-file employees.
A number of-foremen slept in an area approximately 16 by 25 feet
in the electric station where, according to the testimony, it was "very,
hot" and the generators were constantly going and making consider-
able noise. Several foremen shared the same cot. Botusich slept on!
a bench in the coal hopper because he had no available cot. Vander-
hyden slept in an office. Mandus Girard, Shields, Beck, Williams,
and Romano slept in the chemical laboratory where there was very
little heat "but the windows and everything in the building was so
damn loose and open, it was zero a couple of nights." There were
insufficient covers. Krizmanic slept in the coal hopper shed located
about 30 to 50 feet from the Santa Fe trains, which passed by fre-
quently during the night' and made sleeping 'difficult. Buric slept
on an army cot in the machine shop, and because of the cold slept in
his clothing ; he complained about this to General Foreman McDowell.
e There was no substantial conflict in the record with regard to the condition in the plant
during the first 3 days of the strike.
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 771
The foremen described the food served during the 3 days in question
as "unclean" and "greasy,," consisting mostly of pork and eggs, and
prepared by persons without experience. Vanderhyden was told by
Superintendent Jones "to throw one pork loin into the 23 crane" be-
cause "it was spoiled." Joseph Tomasich testified that "most of the
boys were leaving because they said they couldn't take it. I don't
think they could take it because it was impossible."
5. The walkout
The foremen remained in the plant during the first 3 days of the.
strike despite these hardships.
On January 22, De- Toffol called Spiezio and arranged another
meeting with Steelworkers. At the meeting, Superintendent Jones
and De Toffol stated that they had heard that some of the foremen,
were going to walk out at the end of the 72-hour period "because the
union would then classify then as scabs," and Spiezio attempted to.
correct him by saying he (Spiezi.o) "understood the foremen had told
[management] to start cooling the batteries down within 72 hours or
that they would walk out." Superintendent Jones then asked the
union representatives if they "would talk to the foremen and try to
influence them to stay in the plant for an additional 72 hours."'
Spiezio asked whether, if that were done, they would start to cool the
batteries down, and Jones replied that they would not. At this point,.
Spiezio stated "there wouldn't be any sense in us talking to the fore-
men to stay in the. plant 72 hours if they still wouldn't start to cool,
the batteries down." After this meeting, Steelworkers, with the con-
sent of the Respondent, met with several of the foremen (Adrian Ryan,
Cox, and Vanderhyden), in the presence of both Jones and De Toffol.
The union representatives asked the foremen what their intentions
were, and the foremen advised them that "if management wouldn't
start to cool the batteries before the following day at midnight [Wed-
nesday, January 23] . . . they were going to walk out."
About noon on Wednesday, January 23, Adrian Ryan went to see
Superintendent Jones and told him "we [the foremen] were leaving
I told him I was speaking for some of the foremen, and he said,.
`You are not speaking for anybody but yourself.' " Ryan thereupon
told Jones, according to Jones' own testimony, that "he understood
that 18 or 19 foremen altogether were going to leave at midnight."
Jones also testified that General Foreman Boswell had previously
stated to him, on January 21 or 22, that he "was afraid some men were
going." About 2: 30 in the afternoon of that day, Anthony Borio
walked in to see Jones and told him, "I'm taking off tonight at mid.
night. I can't take it any more. None of the issues have been settled."
961974-52-vol. 95-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borio testified, "The issue 'was the ultimatum to cool down the other
three batteries." ' .
At about midnight that day (January 23), 17 foremen walked out.
In addition, Frank Borio, Hausser, Ted Girard, Krizmanich, and
Botusich had left a few hours earlier after the completion of their
shifts and after ascertaining that the others were leaving at mid-
night, and indicated that they intended to be part of the walkout 10
Twenty-five foremen remained in the plant.
B. The guards
1. The duties of the guards
In January 1946 there, were 28 guards at the Joliet plant, all under
the supervision of Superintendent of Plant Protection Nicholaisen.
The duties of the guards were: To patrol the plant; to prevent thefts,
acts of negligence, and fighting among employees; to see that em-
ployees had proper passes; and to obtain compliance with safety rules.
Like the foremen, they,were excluded from the units represented
by Steelworkers. They too were unorganized and had no bargaining
representative. -
2. Conditions at the plant during the strike
The guards remained at the plant after Steelworkers' strike began.
During the strike, they did the kind of work customarily performed
by them before the strike. However, they were placed on two shifts
of 12 hours each, instead of their normal three shifts of 8 hours each.
They stayed in the plant, for the most part, on a round-the-clock basis.
Most of them slept in the accounting office, some in the superintendent's
garage, and a few in the firehouse. The accounting office was a room
30 by 30 feet. Because of the "shape the mattresses were in . . some
slept on the desk." According to guard Kenney, the "food was
greasy; it wasn't cooked and we would be there watching how it was
prepared, and the way the dishes were dirty and wiping them-the
rags were black, so we decided we would-'start eating by ourselves, and
we had food-we sent the driver out, and he brought in ham and eggs
and coffee and butter and everything, and we start eating in our squad
room, a bunch of us." The guards paid for their own food."
10 The testimony both of the General Counsel's witnesses and the Respondent 's witnesses
was in substantial accord as to the circumstances immediately preceding the walkout of the
foremen.
11 There was no substantial dispute as to the working conditions . of the guards during the
period they stayed in the plant after the strike of the rank -and-file employees began.
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE. WORKS) 773
3. The arrival of the Gary men and the walkout of the guards
On Wednesday, January. 23, some of the guards heard that the Re-
spondent was preparing to bring strikebreakers into the plant. They
discussed. this among themselves, saying that if strikebreakers were
brought in to work at the batteries "and there was any trouble, we
wouldn't stay." When at various times during that day some of the
guards received instructions to count the number of pickets posted not
only at the regular. plant entrance but also at a seldom used towpath
road entrance, and not to let the pickets know this was being done,
the guards expressed even greater concern, and "talked it over there
different times . . . that if they ever brought in scabs that we weren't
going to protect them; we were there to protect the'Company property
and not them [strikebreakers], and we'd leave if they ever did that."
Among the guards that discussed this were Kenney, McGowan, Abday,
Maloney, Holler,. Gruenwald, McGuckin, Kurtz, Lockwood, Latz,
Woock, and Kellner. As a result of these discussions, the guards de-
cided among themselves that if outsiders arrived, they would leave.
About 1 a. ni., Thursday, January 24, guard Gruenwald accosted
Superintendent Nicholaisen and accused him of letting the men down,
saying, "They are bringing men in here." Nicholaisen denied that
this was so, and immediately called the guards together at his office.
There, Gruenwald again asked him-this time in the presence of all
the assembled guards-"if they were going to bring any strikebreak-
ers." Nichola.isen assured them that the Respondent would never do
that. He said, "No, as large as this Company is, they wouldn't think
of doing anything like that." Thereupon, the guards brought up the
subject of wages during the strike period, contending that if they had
to stay there 24 hours a day, they should be paid for 24 hours a day.
Nicholaisen said he would communicate with the Respondent's Pitts-
burgh office and let them know within 24 hours.
About 3 hours later--at about 4. a. m.--a group of 25' persons, es-
corted by a number of State police, and riding in private and police
automobiles, were brought in by the towpath entrance in the rear of
the plant. Neither the 25 men nor the police showed any credentials.
One of the guards, McGowan, who was in the gatehouse at the time,
heard someone shout, "Here they come!" He ran inside, woke up
many of the guards, went into the squad room and got his belongings,
and walked to the front of the clockhouse. There, seeing Nicholaisen,
he derided him "about the wonderful speech he had made a short
time before when he told us he would never let us down." Nicholaisen
said nothing. In the meantime, other guards were alerted by cries of
"Let's. get out of here. The state cops brought in a bunch of scabs"
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and "Get up, the state troopers are here on the plant." They dressed
hurriedly and got out.. Guard Kenney meanwhile called to be relieved.
at the office switchboard where he was stationed, and went out on the
ramp. State police were gathered on the ramp outside the plant, and
guard Diess overheard one of them say, "We have tear gas; we will
try that first." Another trooper said to the guards, "We're taking over
here." When the guards expressed anger at this turn in events, Super-
intendent Jones and De Toffol protested that they had not known about
it and had nothing to do with it. Division Superintendent Burress,
who had come with the group of 25 and the police, then addressed the
guards, asked them not to leave, and assured them that "there was no
need to be disturbed." Nevertheless, as pickets approached, Burress
also stated to the guards, "The only way we can stop it, if you break a,
few of their skulls open, they will stop, and they will forget it in a
hurry."
It developed at the hearing that the group of 25 men who arrived
at the plant on January 24 consisted of supervisors from the Re-
spondent's plant in Gary, Indiana, and had been brought to Joliet
for the purpose of replacing the foreman who had walked out about
4 hours earlier. However, the guards testified that they did not
know at the time that the 25 were Gary supervisors, nor did they recog-
nize Burress, who brought them in, as the Respondent's division su-
perintendent.12 Indeed, guard Kurtz testified that he asked both
Superintendent Jones and De Toffol who these men were and neither
Jones nor De Toffol knew. The guards testified that the use by
strangers of the towpath road never before used for entering the
plant, their failure to show credentials, and their heavily armed po-
lice escort, convinced them that they were the strikebreakers rumored
to arrive. They testified further that Burress did not identify them,
nor did they feel any need for making further inquiry because they
heard Superintendent Jones "arguing with Mr. Burress that they
should be removed from the plant."
After a brief interval, all of the guards, 28 in number, left the
-.plant.
72 The principal conflict in the testimony concerning the Gary men involved the question.
whether the guards knew who they were and whether the guards knew the identity of
Burress who arrived with them. The guards testified , for the most , that they did not
recognize Burress ; some of them, however , admitted, that shortly after he arrived that
morning he had addressed a group of guards and related what he had said in the course
of his talk . All the guards who testified denied that they knew that the 25 men from
Gary were supervisors at the Gary plant. Even if the guards knew or had reason to.
believe that Burress was one of the Respondent 's officials , it does not follow from this
that they would be chargeable with knowledge that the 25 men were Gary supervisors.
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 775
C. Events following the walkout of the foremen and guards
1. The change in operations
About daybreak on January 24, shortly after the walkout of the
guards, the Respondent sent away the 25 Gary men.13 This occurred
before any of them did any work. The Respondent then decided to
do what it. had advised the foremen it would not do-cool down all
the coke batteries, retarding the process as much as possible. Be-
ginning with January 27 or 28, it began using such supplies of butane
gas as it had on hand, spreading it out among the 4 batteries and
giving preference to 1 battery by which it had up Othat time been
pushing coke 14
2. The suspensions, interviews, and discharges
On February 15, 1946, the Respondent sent identical letters to all
the foremen and guards who had walked out, as follows :
Your conduct in leaving your position and assigned duties
during the current strike has caused management to suspend you
from all further duty until you are otherwise notified.
Upon termination of the strike, your case will be carefully
investigated , and-should evidence disclose that you, in manage-
ment's judgment, were derelict in your duty, you will be promptly
terminated. On the other hand, should the evidence prove other-
wise, your case will be handled accordingly.
Steelworker's' strike ended on February 18, 1946. Between March
8 and March 11, the Respondent called in for interviews all the fore-
men and guards who had walked out, except Allison. 'In the case of
the foremen, General Superintendent Jenks, Burress, and Herbert
Jones conducted the interviews, and, in the case of the guards,
Nicholaisen took the place of Jones. The foremen and guards were
asked to explain why they had left their jobs at the time of the strike '15
and, according to both Jenks and Herbert Jones, they were asked
"in most cases" whether they would do the same thing if a strike
18 One of the guards, Kenney , testified that during the morning of January 24, he
telephoned the plant and told Superintendent Jones or Nicholaisen , "now that the men
[from Gary ] were out I would go back to work and I-knew of a lot of fellows that would
go back now that the men were out." Jones replied that he didn't need them ( the guards),
that the "pickets were doing a better job protecting the plant than [ the guards] did."
This work was done by the 25 - foremen who did not join in the walkout on January 23.
is Jenks testified that he was interested in determining in each case whether the individual
had previously agreed to work during the strike emergency to protect the equipment,
whether or not he had later failed to carry out assigned duties, and whether there were
any excusable reasons for his action.
776 DECISIONS ; OF" NATIONAL LABOR 'RELATIONS BOARD
situation arose again. Jenks explained that their answer to the latter
question had very little, or ho weight in making the decision to dis-
charge, but that the question was asked "from the standpoint of
curiosity as much as anything else." . Jenks could not recall any other
questions that were asked out of curiosity.
Thereafter, on March 18, the Respondent discharged 47 of the 50
foremen and guards named in the complaint,!'- writing them, in part,
as follows :
You are hereby notified that you were suspended as of Febru-
ary 15, 1946. In accordance with our letter to you, advising you
of your suspension, we have carefully reviewed the evidence sur-
rounding your case, and our conclusion is that your failure to
perform your responsibilities to this Company, during the emer-
gency created by the recent strike, -warrants termination of your
employment with this Company. You are therefore discharged,
effective today, March 18, 1946.
D. The principal contentions of the parties
The General Counsel's principal contention is that the foremen)
and guards were discharged. because they had engaged in protected
concerted activities for their own mutual aid and protection, and that.
their discharge was therefore unlawful.
Relying on the decision of the majority of the Board in a recent case
involving its plant at Gary, Indiana,17 the Respondent contends that
the foremen were in fact "supervisors," and that, as such, they owed
a duty to the Respondent, under the decision in the Gary case, to
comply with all reasonable instructions designed to protect the Re-
spondent's property from imminent danger of destruction during the,
strike, and that by breaching that duty the foremen forfeited the
protection of the Act. The Respondent makes the same contention
with respect to the guards. The General Counsel asserts, in rebuttal,
that the foremen we're not supervisors, and therefore owed no special
'duty to protect the plant during the strike, and that the Gary case
is distinguishable on other grounds as well.
E. The Trial Examiner's findings
As to the foremen, the Trial Examiner found, in substance, that
the foremen were supervisors; that the negotiations between the Re-
spondent and Steelworkers for maintaining the batteries safely dur-
16 The three others, Peter Tomasich , V. Ryan, and Kramer , were reinstated to their
former jobs about this time.
17 Carnegie -Illinois Steel Corporation , Gary Steel Works, 84 NLRB 851, affd. in Albrecht
v. N. L. R. B., 181 F. 2d 652 (C. A. 7).
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 777
ping the' strike broke off because of the Union's insistence that only
union members be permitted to pass through the picket lines, and
that the Respondent was within its rights in rejecting "the Union's
conditional offer"; that the foremen had expressed in varying manner
their intention to remain in the plant during the.strike and to do
whatever was required of them, at least for the immediately ensuing
period; that at the outset of the strike the foremen through some of
their number demanded of the Respondent that it start cooling down
the batteries within a 72-hour period; that during the 3 days the fore-
men remained in the plant they worked on an abnormal schedule and
under difficult eating and sleeping conditions; that when no assurances
that the Respondent would start cooling down the batteries were
forthcoming, the foremen walked out at the end of the 72-hour period;
that danger of material damage exists when coke ovens are cooled
down, even when the process is under control, and that there is "more
probability of fire or explosion in cooling down batteries than in nor-
mal operations"; that there was no limitation on the Respondent's
right under the law to use the personnel which ordinarily supervised
the batteries to obviate such dangers; and that assuming, but without
finding, that the foremen, in refusing to work,, engaged in concerted
activities, such activities were not protected.
As to the guards, the Trial Examiner found, in substance , that they,
like'the foremen, were on duty in 2 shifts of 12 hours each although
their normal schedule called for 3 shifts, of 8 hours each; that during
the strike, after the group of about 25 men from the Gary plant ar-
rived at the Joliet plant, the guards walked out because of "sympathy
for the rank and file strikers, dissatisfaction with living conditions in
the plant, and disinclination, for family or personal reasons, to stay
in the plant 24 hours a day"; and even assuming, as in the case of the
foremen, that the guards, in refusing to work, engaged in concerted
activities, such activities were not protected.
Exceptions were filed by the General Counsel and the charging
parties taking issue with the Trial Examiner's principal finding as
set forth above. Exceptions were also filed by the Respondent.
F. Conclusions as to the foremen
1. The supervisory status of the foremen
The highest official at the Joliet plant at the time of the 1946 steel
strike was Superintendent Herbert Jones. He was assisted by. De
Toffol who was in charge of industrial relations. Under them were
four general foremen: Boswell, in charge of batteries ; Shields, gen-
eral foreman of byproducts ; Mandus Girard, general foreman of coal
handling; and McDowell, general maintenance foreman. Below
778• DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boswell were the assistant general foremen who ranked above the
battery foremen and heater foremen.. Below Shields were the by-
product foremen; below Girard, the assistant coal handling and yard
foremen; and, below McDowell, the maintenance and assistant main-
tenance foremen. All the foremen involved in this proceeding were
on a level below those named above except Anthony Borio, who was
an assistant general foreman and Girard who was a general foreman.
Although none of the foremen below the rank of general foreman
-had authority to hire, discharge, or effectively to recommend such
action, they participated in the hiring of new employees after pros-
pective employees were first screened at the employment office, and
had the right to discharge new employees summarily during a 260-hour
-probationary period. The foremen prepared records of positions
filled and hours worked by employees in their crews, showing assign-
ments and changes made by the foremen during their turns. They
had authority to send employees home for insubordination or refusal
to do assigned work. They made written reports of safety rule viola-
'tions and could request a written warning; however, if anything more
drastic than a. warning was recommended, such action had to be
decided by the plant superintendent. Some foremen, responsibly
directed the work of other employees, their crews varying from 2 to 25,
except for Mandus Girard, who had 45 to 55 subordinates. They were
Tesponsible for the enforcement of safety rules, attended safety meet-
vings conducted by the plant superintendent, and, in turn, conducted
safety meetings for the employees under their direction. They were,
for the most part, paid an hourly rate not substantially higher than
the rate accorded the production and maintenance employees. In
1942, the Board in a representation proceeding 18 excluded the foremen
from -the production and maintenance unit because they were super-
visors. They have been excluded from membership in Steelworkers
for the same reason. In January 1946, the foremen were excluded
from the bargaining units by agreement between the Respondent and
Steelworkers.
We find, in agreement with the Trial Examiner, that the foremen
were supervisors within the meaning of the original Act and the
amended Act.
2. The nature of the foremen's activities
. This proceeding arose under the Wagner Act, and the rights and
duties of the foremen are therefore considered in the context of that
Act, rather than the present amended statute. The events in issue
all occurred early in 1946.
Is Carnegie-Illinois Steel Corporation, 42 NLRB 1242.
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 779
The Supreme Court has held that the Wagner Act left "no room
for a construction . . . to deny the organizational privileges to
employees because they act-in the interest of an employer."' Thus,
the Court stated :
Even those who act for the employer in some matters, including
the service of standing between' management and manual labor,
still have interests of their own as employees. - Though the fore-
man is the faithful representative of the employer in maintain-
ing a production schedule, his interest properly may be adverse
to that of the employer when it comes to fixing his own wages,
seniority rights or working conditions. He does not lose his
right to serve himself in these respects because he serves his
master in others. And we see no basis in this Act whatever for
holding that foremen are forbidden the protection of the Act when
they take collective action to protect their collective interests.2°
[Emphasis added.]
The Board and the courts have consistently held that Section 2 (3)
of the Wagner Act included "supervisors" as "employees." As an
"employee,", a supervisor was protected in joining a rank-and-file
union,21 joining in a rank-and-file strike on behalf of the rank-and-file
union to which he belonged; 22 joining with other members of a fore-
men's union to assure rank-and-file strikers that the foremen belong-
ing to another union would not take their jobs; 23 and joining other
foremen in a strike, primarily for their own mutual aid, against per-
forming rank-and-file work during a rank-and-file strike.24
The Trial Examiner, however, adopted the Respondent's principal
contention that under the facts of the case at bar, special circumstances
were present which deprived the foremen of the protection of the
Wagner Act, and that the foremen were therefore lawfully suspended
or discharged. The Trial Examiner relied on the Board's decision
involving the Gary plant of the same Respondent 25 In that case,
a majority of the Board held a walkout by supervisors during a
rank-and-file strike not protected by the Wagner Act, stating:
.. . in the case at bar, we believe the complainants owed a duty
to the Respondent, inherent in their position as supervisors, to
comply with all reasonable instructions designed to protect the
Respondent's physical plant from imminent damage or destruc-
' Packard Motor Car Co. v. N. L . R. B.,- 330 U. S. 485.
20 Id. at pp . 489-490.
21 Fruehauf Trailer Company, 1 NLRB 68 , 76, enfd . 301 U. S . 49, 55.
22 Mackay Radio & Telegraph Company/, 1 NLRB 201 , 222-225 , enfd . 304 U. S . 333-347.
21 American Steel Foundries v. N. L. R. B., 158 F. 2d 896 ( C. A. 7), enfg . 67 NLRB 27,
68 NLRB 514.
24 E. A . Laboratories, Inc., 87 NLRB 233.
25 Carnegie -Illinois Steel Corporation, Gary Steel Works, supra ( Chairman Herzog and
Member Houston dissenting).
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. Certainly, if' the supervisors had been discharged for
wilfully or negligently damaging the Respondent's blast fur-
naces or coke ovens, we would have no hesitation in finding that
such discharge was for good cause ... The case is no different
in principle if, as in the case at bar, the supervisors, knowing
that the furnaces and ovens, unless properly banked or closed
down, would suffer serious damage, deliberately and concertedly,
and contrary to their employer's instructions, refuse to cooperate
with other supervisors in the ' work necessary to prevent . such
damage.
However, the decision in the Gary case was expressly confined "to
the particular facts of the supervisor's conduct involved therein,"
and the Board there pointed out that "our finding is not to be construed
as a holding that any action whatsoever contrary to his employer's
economic interests, through a strike or otherwise, will cause a super-
visor to forfeit the protection of the Act prior to amendment." 26
Precisely stated, then, the issue before us is whether the conduct of the
foremen (and the guards) in the' instant case was so like that of. the
foremen in the Gary case as to require us to find that by such con-
duct they forfeited the protection of the Act.
The Joliet plant produces coke, and the coke is then used in the
production of steel at the Respondent's South Chicago plant. In
the process of manufacturing coke, coke oven gas is necessarily pro-
duced, and byproducts such as tar, ammonia, benzol, toluol, zylol,
and naphtha are recovered from the gas. The plant consists prin-
cipally of 4 batteries of coke ovens, each battery being composed of
70-ovens. Silica brick is the chief structural component of the ovens.
'In the Gary case, a much larger plant was involved, consisting,
in addition to a coke plant, of 5 other main divisions. The coke
plant in Gary included 15 batteries with a total of 1,055 ovens. Like
the case at bar, one of the issues concerned the protection of the coke
oven batteries. The Trial Examiner in that case cited the testimony
of Superintendent Burress, who had been in charge of the Gary coke
plant for over 30 years, that when the coke ovens go out of production
they must be cooled as gradually as possible, that the silica brick is
sensitive to temperature changes, and that, should the coke ovens
ss The Board 's decision in the Gary case was affirmed in Albrecht et al . v. N. L. R . B., 181
F. 2d 652 (C. A. 7). The court of appeals sustained the Board in its conclusion that
the supervisors were not protected in their refusal to' perform the functions assigned them.
It pointed out, however , that its review in cases such as. this "has relatively narrow limi-
tations," and quoted from its decision in N. L . R. B. v. Illinois Tool Works, 153 F. 2d 811
(C. A. 7) to the effect that "it is the function of the Board to weigh the conflicts that arise
,from time to time out of the exercise of those rights to determine in each case whether
the interest of the employer or the interest of the employees is paramount ." [ Emphasis
added. ]
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 781
be suddenly abandoned, serious damage would result, necessitating
very costly repairs.27
The Trial Examiner, in the, Gary case, further found that General
Superintendent Jenks of the Gary plant, in his prestrike negotiations
with Steelworkers regarding the staffing of the plant during the
impending strike, "indicated that to furnish, gas for plant purposes
and for the City of Gary, it would be necessary to operate three
batteries of coke ovens," and that when Steelworkers' representative
demurred to the extent of the proposed operations, Jenks explained
"that it was essential to the safety of the plant to produce gas in suffl-
.cient quantity to maintain such, temperatures in all the coke ovens as
would allow the walls, built of silica brick, to cool very gradually." 28
[Emphasis added.]
In the instant case, there was similar testimony as to the suscepti-
bility of the silica brick to damage from changes in temperature.
'There was, in addition, much testimony concerning the feasibility of
cooling down the batteries, gradually, as proposed by. the foremen
in the instant case, and, by the Respondent itself only a month earlier
in the Gary case.
The Respondent's position here was that it was not feasible to cool
,down the coke batteries, and the only safe procedure was to maintain
them at a temperature of between 1,600 to 1,800 degrees for the duration
of Steelworkers' strike. Much of the Respondent's own testimony,
however, was in conflict. Jenks testified that when silica brick is
cooled from the operating temperature of 1,800 degrees Fahrenheit
or more, it can be cooled uniformly down to 1,150 degrees Fahrenheit,
but that from that point down to 200-300 degrees, the silica cools
unevenly, and the problem is to cool it slowly enough to avoid strain
on the brick. He testified that in the cooling process leakage may be
-caused, thus decreasing the manufacturing capacity of the batteries.
He also testified that the operating efficiency of the .Joliet batteries
was about 90 percent before the 1946 strike and that since then it has
not gone over 85 percent.. On the .other hand, Superintendent Jones
in an-article written by him in 1938 (one of Respondent's exhibits)
stated that the critical range for expansion and contraction of silica
brick is between 400 and 800 degrees Fahrenheit; this differed con-
from Jenks' testimony that a battery should not drop below
1,500-1,600 degrees Fahrenheit. Jones, in his article outlining a
procedure for safe cooling, indicated that a cooling operation can be
carried out successfully, stating :
17 Carnegie-Illinois Steel Corporation, supra, at pp. 925, 926. These findings were adopted
In the majority decision.
• -" Id. at p. 868. These findings were adopted in the majority decision.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The results to be worked for in cooling down a battery are to
keep the temperatures as uniform as possible throughout the
battery when it is being cooled down. Previous experience at
Joliet has indicated that keeping the battery temperature as
uniform as possible has eliminated most of the cracking that we
find in batteries that are not cooled down under control.
The record shows that the Joliet batteries were closed down com-
pletely in 1932, were reopened in about 1938, and two batteries again
shut down completely thereafter until shortly before the beginning of
World War II, and that despite these shutdowns, no major repairs
were necessary, and the plant was able to operate at 90 to 95 percent
efficiency as compared to a completely new battery. As to leakage,
it appeared from the testimony that leakage occurs also in the course
of normal operations, increasing with the age of the batteries. On the
subject of the life expectancy of the batteries, Jenks admitted that
the expectancy at the. time. of the hearing in 1950 was approximatelyt, I
the same as it was at the time of the 1946 strike. Finally, from the
testimony of Respondent's witness, Touzalin, it appeared that in the
year following the strike, production was at as high a rate as in the
preceding year. Thus, in October 1946, the plant produced at the rate
of .3,000 tons of coke daily, or 1,095,000 tons. annually, a rate as high
as any achieved prior to the strike.
.. From the foregoing, the following facts which we find are clear :
That in refusing to accede to the foremen's request in the instant
case for cooling down the batteries, the Respondent rejected the very
procedure which it had itself proposed to use at Gary, only a month
earlier; that after the foremen left the plant the Respondent did in
fact adopt their cooling-down - proposal, and,' no serious damage to
the batteries resulted and no. repairs were required.
We are accordingly not satisfied that the method of operation chosen
by the Respondent offered any advantages which justified the hard-
ships it imposed on the foremen in terms of indefinite and continuous
confinement in the plant under difficult living conditions. We find,
therefore, that the Respondent's insistence that the foremen maintain
the coke batteries at normal operating temperatures for the duration
of the strike, rather than cool them down gradually, was not reasonable,
under all the circumstances of the case, and that the foremen's refusal
to comply with the Respondent's instructions to maintain the batteries
at normal temperature, unlike the conduct of the foremen in the Gary
case , 29 was not such a breach of their duty to management as to deprive
.them of the protection of the Act. .
29 As already indicated the majority in that case found that the supervisors had violated
their duty "to comply with all reasonable instructions designed to protect the Respondent's
physical plant from imminent danger or restruction ." [ Emphasis added.]
CARNEGIE -ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 783
Moreover , in Gary; the supervisors not only refused to obey Re-
spondent's instructions to do rank-amid-file work during the strike
emergency, but actually left the plant, without ascertaining whether
anyone would remain to protect the will and prevent explosions and
without giving theEmployer a reasonable opportunity to recruit re-
placements. In that case, the unaffiliated Foremen's Association,
which represented the supervisors, advised the Employer at 4 a. m. on
January 21, after the picketing by Steelworkers had commenced, that
its members would not be permitted to work beyond 6 o'clock that
evening. This, in our opinion, is in marked contrast to the 72-hour
proposal by the foremen in the instant case, accompanied by an offer
to stay indefinitely in the plant, if the Respondent commenced at any
time during that 72-hour period to cool the batteries. .
Moreover, the Gary plant was engaged in rendering an essential
service to the inhabitants of the city of Gary, Indiana, as it was the
sole 'source of gas for that city. Here, however, the Joliet plant pro-
duced gas solely for the operation of another of the Respondent's steel
plants.in South Chicago, and an interruption of the operations of the
Joliet plant would not, as in the Gary case, involve the discontinuance
of an essential service to a community.
We have no reason to doubt, and we find, that the foremen's walkout
constituted a concerted activity. The foremen acted as a group in
discussing, both before and during the strike, their common problems
arising from the strike. They acted as a group in formulating a design
to alleviate their working conditions, and in selecting representatives
to meet with their supervisors. They held meetings for the purpose
of determining what action to take, and they walked out-again as a
group-at midnight of January 23, when the 72-hour period expired
and top management failed or refused to accept their proposal. We
are also satisfied and find that the activities taken in concert by the
foremen were primarily in furtherance of their own mutual aid and
protection, and only incidentally in furtherance of the interest of the
striking rank-and-file employees.30 During the first 3 days of Steel-
workers' strike, the foremen, experienced a radical worsening of their
working conditions. Not only were they assigned to rank-and-file jobs,
but they were required to do the work normally done by more than
twice as many rank-and-file employees, and their daily tour of duty was
increased from 8 hours to 12 hours. During the entire 3-day period,'
they were confined to the plant, where, as already related, the eating
and sleeping accommodations were of a primitive character. Faced
30 In view of this finding , we deem it unnecessary to pass upon the question whether the
foremen's activity would have been protected if the primary purpose of their walkout had
been to support the rank-and-file strike . See E. A. Laboratories, Inc., supra ; cf. N. L. R. B.
V. Illinois Bell Telephone Company, 189 P. 2d 124 (C. A. 7).
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the prospect that these conditions would continue for the duration
of Steelworkers' strike, they proposed to the Respondent a procedure--
the gradual cooling of the batteries-which promised some improve-
ment in their lot during that period. Their walkout on January 23,
can; therefore, be construed as primarily a concerted protest against
the Respondent's rejection of their demand for better working
conditions for themselves.31
We accordingly find upon the present record that the foremen's-
walkout constituted protected concerted activity under the Wagner
Act and the suspension and discharge of the foremen because of. such
activity constituted interference, restraint, and coercion, within the
meaning of Section 8 (1) of the Wagner Act. We also find that their
suspension and discharge constituted discrimination in regard to
hire or tenure of employment within the meaning of Section 8 (3) of
the Wagner Act 32 Whether Respondent's conduct is deemed to be a.
violation of Section 8 (1) or 8 (3) of that Act, we find that effectuation
of the policies of the Act requires that the foremen be offered reinstate-.
ment with back pay-"
G. Conclusions as to the guards
The Trial Examiner found in effect that, assuming that the guards,
in refusing to work, engaged in concerted activities, such activities.
were not protected by the Act. In support of this finding, the Trial
Examiner cited only the Board's decision in the Gary case. That
81In the Gary case, some of the foremen , on the day preceding the strike , promised
management to remain in the plant during the strike on a round-the -clock basis and to do
whatever work was required of them during that period . The majority of the Board held
that such foremen , by misleading their employer as to their intentions , had demonstrated
their lack of dependability in an emergency, and for that reason were justifiably dis-
charged. In support of this conclusion , the majority cited Greater New York Broadcasting
Corporation, 48 NLRB 718 , 720, where reinstatement was denied to a supervisor who failed
to report for work during a strike, after leading his employer to believe that he would do
so, on the ground that he had engaged in "deceptive conduct inconsistent with his duty
to respondent as chief engineer ." Some of the foremen in the instant case, according to
the record , made promises similar to those made by some of the foremen in the Gary case.
However, unlike the foremen in the Gary , case and the supervisor in the Greater . New York
Broadcasting case, the foremen here, acting as a group , subsequently communicated to the
Respondent their intcntion,of walking out if after 72 hours their "cooling -down" proposal.
was not adopted . This was done on the day preceding the strike and at various times
during the first 3 days of the strike . It cannot therefore be said that the foremen in the
instant case misled the Respondent or engaged in deceptive conduct to the Respondent's-
prejudice.
32 Such discriminatory action discouraged adherence to the "labor organization" of the
foremen which presented their demand to management for better working conditions during
the strike . Employees who informally join together to present their grievances to manage-
ment or engage in other concerted activities for their own mutual aid or protection-
constitute a "labor organization " within the "broad language used in the statute in
defining" that term . See N. L. R . B. v. Kennametal , Inc., 182 F. 2d 817, 818 ( C. A. 3).
enfg . 80 NLRB 1481 ; N. L. R. B. v. The Sandy Hill Iron & Brass Works, 145 F. 2d 631
( C. A. 2), enfg . 55 NLRB.
33 See Kennametal, Inc., 80 NLRB 1481 •; Spencer Auto Electric, Inc., 73 NLRB 1416,
1419. •
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE: WORKS) 785
case, however, did not involve - guards but only supervisors, so that
the Board had no occasion there to consider whether guards owe the
same duty 'as supervisors to their employer in a strike emergency such
as existed in the Gary plant, in that case, or in the Joliet plant in the
instant case.
The Supreme Court has held that the Wagner Act protected the
rights of guards to enage in concerted activities even where such
activities conflict with important wartime duties.34 The fact. that
guards owe a duty to management to protect plant and personnel from
damage or injury was not deemed by the Court sufficient reason to
deny them the benefits of the Act. The Court stated that guards "bear
essentially the same relation to management as maintenance and pro-
duction employees."
Past Board decisions discussing the relation of guards to manage-
ment characterized them as monitorial employees rather than -man-
agerial or supervisory employees. Thus, in the Cudahy case,35 re-
jecting the contention that guards are representatives of management,
the Board stated :
They do not formulate or determine the Company's labor rela-
tions policy. Their functions 'are unrelated to the production
process, and they neither assign nor direct the work of other
employees. As respects other employees, guards are merely
monitors -and not supervisory or managerial employees.36
It is conceded that the duties of the guards in the instant case were
primarily to patrol the plant, protect the property, and to see that the
other employees had ' proper' passes. The Respondent introduced in
evidence a copy of the protection department rules, which, in addition
to the above duties, required the guards to patrol the premises for
protection against fire or explosion, to prevent acts of negligence, and
to quell disturbances among the plant employees, and which subjected
guards to suspension or dismissal for, among other offenses, absence
without leave and leaving their posts without proper relief. It ap-
peared, however, that these rules were in effect only during the war
34 N. L . It. B. v. E . C. Atkins & Co ., 331 U. S. 398.
35 The Cudahy Packing Coiapany , 67 NLRB 150 . See, also , The Trailmobile Company, 72'
NLRB 1349 : Bethlehem Steel Corp ., 61 NLRB 892.
36 In drafting the present amendments to the Act , Congress rejected a proposal to deny
the protection of the Act to guards . The House Bill would have excluded guards , from the
definition of "employees ." However, this proposal was eliminated in conference. As
Senator Taft stated : "By the provision of the House Bill guards were completely excluded
from the Wagner Act. We compromised with the House by providing that they should
have the protection of the Wagner Act, but in a separate unit from the workers in the
plants. That is certainly a change-although a minorrone , nevertheless a reasonable one--
and certainly it is a compromise with the extreme position taken by the I3ouse." (93
Congressional Record , p. 6658 , :June 6 , 1947.) _
This action of Congress contrasts with its decision to exclude supervisors from the
definition of "employees " in the Act. "
786 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
period, which ended before the 1946 strike. Moreover, the Respond-
ent did not assign violation of plant rules as the reason for the guards'
suspension or discharge. In any event, the mere fact that the guards
absented themselves without leave or left their posts without proper
relief is, in our opinion,' no justification for their discharge, if such
action constituted concerted activity for the mutual aid or protection
of the guards. An employer may not be allowed to defeat the right
of employees to strike by enforcing a rule forbidding them to leave
the plant without his consent.
That the activities of the guards were concerted is clear from the
record. They discussed among themselves the possibility of strike-
breakers entering the plant; they decided, as a group, that if strike-
breakers were brought in, they would leave; they acted together in
stating this position at the meeting with Nicholaisen, their super-
visor; all of them walked out together when the group of 25 Gary
men escorted by the State police came into the plant. We are also
persuaded from the evidence and find that the guards acted in concert
primarily in furtherance of their own mutual aid and protection 37
and incidentally in furtherance of the interests of the striking em-.
ployees. They made it plain to management that they deemed pro-
tecting strikebreakers a significant change in their working conditions,
and that they did not consider this part of their duties. They
demanded of Nicholaisen-even before the early morning incident
involving the Gary men-that they be paid 24 hours'.pay for 24 hours'
work. And as the Trial Examiner found, the guards walked out,
for among other reasons, dissatisfaction with living conditions in
the plant, and disinclination for family or personal reasons to stay
in the plant 24 hours a day.
We accordingly find that the guards' walkout constituted protected
concerted activity and that, their suspension and discharge because
of such activity constituted interference, restraint, and coercion
within the meaning of Section 8 (1) of the Wagner Act, as well as
discrimination with regard to hire or tenure of employment within
the meaning of Section 8 (3) 38 of that Act. Whether the discrimi-
natory conduct be viewed as a violation of Section 8 (1) or 8 (3)
of the Act, we find that it would effectuate the policies of that Act
to order that the guards be reinstated with back pay s9
Interference, Restraint, and Coercion
Among other things, the complaint alleged, in substance, that the
Respondent interrogated various' of the foremen and guards regard-
ing their concerted activities. Specifically, the General Counsel
37 See E. A. Laboratories, Inc., supra.
88 See footnote 22, supra.
ge See footnote 23, supra.
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET'COKE, WORKS) 787
adduced testimony at. the hearing to show that between March 8 and
March 11, 1946- after the suspensions but before: the discharges-the
Respondent interviewed the foremen and guards, and during the inter-
views, "in most cases," asked them whether they would do the same
thing again if a strike situation arose again. AS the Trial Examiner
found, both Jenks and' Superintendent Jones admitted .asking this
question, and, in its context, the question must be taken as having
referred to activity "of a similar kind." The General Counsel con-
tends that asking this question was equivalent to asking the com
plainants to foreswear any future concerted activity.
The Trial Examiner found that in view of his conclusion that the
activities of the foremen and the guards, even if concerted, were not
protected, and their discharge was not violative of the original Act,
this interrogation, too, was not violative of that Act. He reasoned
that the right to discharge the complainants for such activity
logically includes the lesser right to question them as to the likelihood
of its recurrence. However, in view of our finding that the foremen
and the guards had been suspended and discharged for engaging in
protected concerted activity in violation of Section 8 (3) and 8 (1)
of the Wagner Act, we find that the Respondent's interrogation of
the foremen and the guards, relating as it did to their attitude toward
concerted action for their mutual aid or protection, constituted an
independent violation of Section 8 (1) of the original Act.-
The Effect of the Unfair Labor Practices upon Commerce
The activities of the Respondent set forth above, occurring in
connection with the operations described in Section I of this decision,
have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow thereof.
The Remedy
We have found that the Respondent has violated Section 8 (1) and
8 (3) of the original Act. We shall order the Respondent to cease and
desist from engaging in such conduct. However, as supervisors are
no longer protected under the amended Act, the cease-and-desist pro-
visions of our Order are based, not on the Respondent's conduct with
regard to the f oremen,41 but rather on its conduct with regard to the
guards.
We shall order the Respondent, to the extent that it has not already
done so,.to offer the persons listed in Appendices B ' (foremen) and C
40 Chairman Herzog disagrees with this finding, believing the inquiries , per se, to have
been reasonable in view of the nature of the functions performed by these two groups of
employees.
41 See Republic Steel Corporation , 77 NLRB 1107, 1111.
961974-52-vol. 95-51
788 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD.
(guards) reinstatement with back pay from February 18, 1946.42 In
accordance with usual practice the period from the date of the Inter-
mediate Report herein to the date of this Decision and Order will be
excluded in computing the-amounts of back pay, as the Trial Examiner
did, not recommend reinstatement or awards of back pay. With re-
spect to the computation of back pay we have recently adopted a
policy 43 consistent with which we shall order that the loss of pay ir_
each instance be computed on the basis of each separate calendar
quarter or portion thereof during the period beginning February 18;
1946, to the date 'of a proper offer of reinstatement. The quarterly
periods, hereinafter called "quarters," shall begin with the first day of
January, April, July,, and October. Loss of pay'shall be determined
by deducting from a sum equal to that which these employees would
normally have earned for each quarter or portion thereof, their net,
earnings ,44 if any, in other employment during that period. Earnings
in one particular quarter shall have no effect upon the back-pay lia-
bility for any other quarter.
We shall order the Respondent to make available to the Board upon
request payroll and other records to facilitate the checking of the
amount of back pay due.45
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Steelworkers of America and its Locals Nos. 1329 and
3082 are labor organizations within the meaning of Section 2 (5)
of the Act.
42 Eastern Coal Corporation v. N. L. R . B.,_ 176 F. 2d 131 ( C. A. 4), affirming 79 NLRB
1165.
The suspension of the foreman and the guards actually occurred on. February 15, 1946.
However, Steelworkers ' strike did not end until February 18, 1946. As there is no adequate
basis in the record for finding that any of the Complainants offered to return to work before
February 18, we shall require that back pay accrue from that date . See Kallaher and Mee,
Inc., 87 NLRB 410.
Exception is made, however, in the case of Charles Kenney, whose offer to return to
work on January 24 was rejected by the Respondent. His back pay will run from January
' 24, 1946.
One of the foremen , V. Ryan, was reinstated in March 1946, but was demoted several
weeks later . The General Counsel contends that this demotion was in reprisal for Ryan's
participation in the walkout of January 23. However , this contention is not supported by
the preponderance of the evidence in the record . Ryan , accordingly , will be entitled only
to back pay from February 18, 1946 , to the date of his reinstatement in March.
43 F. W. Woolworth Company , 90 NLRB 289.
44 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination , and the
consequent necessity for his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 660 . Monies received for work performed upon Federal , State, county, municipal,
or other work -relief projects shall be considered earnings . Republic Steel Corporation v.
N. L. R. B ., 311 U. S. 7. '
41 F. W . Woolworth Company, 90 NLRB 289.
CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 789
2. By discriminating in regard to the hire and tenure of employ-
ment and the terms and conditions of employment of the foremen
listed in Appendix B, the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (3),of the original Act.
3. By discriminating in regard to the hire and tenure of employ-
ment and the terms and conditions of employment of guards listed
in Appendix C, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (3) of the
original Act and 8 (a) (3) of the amended Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the Re
sponderit has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (].) of the original Act and Section.
8 (a) (1) of the amended Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within in the meaning of Section 2 (6) and (7)
of the Act.
Order
Upon the basis of the above findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor
Relations Act, as amended, the National Labor Relations Board hereby
orders that the Respondent, Carnegie-Illinois Steel Corporation,
Joliet Coke Works, Joliet, Illinois, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging concerted activities or membership in any labor
organization of its employees by discharging any of its employees or
discriminating in any other manner in regard to their hire or tenure
of employment, or any term or condition of their employment.
(b) In any other manner interfering with, restraining, or coercing,
its employees in the exercise of the right to self-organization, to join-
or assist any labor organization, to form labor organizations, to bar-'
gain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Sec-.
tion 7 of the Act, and to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) To the extent that it has not already done so, offer to the per-
sons listed in Appendices B and C immediate and full reinstatement
to their former or substantially equivalent positions without prejudice
790 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
to their seniority or other rights and privileges,- and make them whole
in the manner set forth in the section of this Decision and Order
entitled "The Remedy". for any loss of pay they may have suffered
by reason of the Respondent's discrimination against them.
(b) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary. to analyze the amounts of back pay due and the
right of reinstatement under the terms of this Order.
(c) Post in conspicuous places, at the Respondent's Joliet, Illinois,
plant, copies of the notice hereto attached marked "Appendix A."
Copies of said notice, to be furnished by the Regional Director for
the Thirteenth Region, after being signed by the Respondent's rep-
resentative, shall be posted immediately by the Respondent upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
MEMBERS REYNOLDS and STYLES took no part in the consideration
of the above Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES .
Pursuant to a Decision and Order of the National Labor Relations
Board , and iri'order to effectuate the policies of the National Labor
relations Act, we hereby notify our employees that :
r WE WILL NOT discharge any of our employees, or discriminate
in. any other manner in regard to their hire or tenure of. employ-.
ment or any term or condition of their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to join or assist any labor organization, to form labor
organizations , to bargain collectively through representatives of
their own choosing , ^ and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to
!o If this Order is enforced by.a decree of a United States Court of Appeals,, there shall be
inserted before the words, "A Decision and Order," the words, "A Decree of the United
States Court of Appeals Enforcing.".
CARNEG^,E-ILLINOIS' STEEL CORPORATION (JOLI.ET COKE WORKS) 791
the extent that such right may be affected by an agreement regilir--
ing membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the National Labor
Relations Act.
WE WILL offer to the individuals listed in Appendices B and C,
to the extent that we have not already done so, immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and we will make them whole for
any loss of pay suffered as a result of our unlawful conduct.
All our employees are free to become or remain members of any
labor organization,. or to refrain from so doing, except to the extent
that this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the amended Act. We will not discriminate in
regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or activ-
ity on behalf of any such labor organization.
CARNEGIE-ILLINOIS STEEL CORPORATION,
JOLIET CORE WORKS,
Employer.
By -----------------------
Representative (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
Joseph Tomasich Mandus A. Girard John Romano
Joseph Krizmanich Anthony D. Borio Frank G. Borio
Edward Hausser Adrian F. C. Ryan George Sweeney
John Batusich Ramond Zivec Peter Tomasich
Harold Randolph Tellesphore Girard Robert Allison
Frank Buric Paul Bobak Vincent Ryan
Frank Gato Ralph Vanderhyden
Anthony Petrie Edward J. Byezinski
Appendix C
John Aroch . Robert Kerr J. Abday
Ambrose Deiss Leo Kurtz E. Koenig
Warren Galloway Kenneth Lockewood V. Latz
Carl Gruenwald Michael Maloney F. Muster
George. Haller Edward McGowan W. Smith
Raymond Iverson Albert Weese J. Wahl,
Cyril Kellner Fred Whitmer F." Whitcamp
Charles Kenney Harry Woock