Bethlehem Steel Co.

National Labor Relations Board - Board Decisions

Jun 7, 1943

50 N.L.R.B. 172 (N.L.R.B. 1943)

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In the Matter of BETHLEHEM STEEL COMPANY, SHIPBUILDING DIVISION
(EAST BOSTON YARDS) and INDUSTRIAL UNION OF MARINE AND SHIP-
BUILDING WORKERS OF AMERICA, LOCAL 25 (C. I. 0.)
Case No. R-5338.-Decided June 7,'1943
Cravath, de Gersdorff, Swaine c Wood, by Mr. C. A. McLain and
Mr. E. E. Buchanan, both of New York City, appearing specially for
the Company.
Grant d Ango ff, by Mr. Frederick Cohen and Mr. Edward L. Malick,
both of Boston, Mass., for the Union.
Mr. David V. Easton, of counsel to the Board.
DECISION,
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Industrial, Union of Marine and Ship-
building Workers of America, Local 25' (C. I. - O. ), herein called the
Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Bethelehem Steel Com-
pany, Shipbuilding Division (East Boston Yards), East Boston, Mas-
sachusetts, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Robert E. Greene, Trial Examiner. Said hearing was held at Bos-
ton, Massachusetts, on May 12, 1943. The Company and the Union
appeared, participated, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Company made a motion at the hearing
to dismiss the petition on the grounds that guards are not employees
within.the meaning of the Act, and that a unit of guards is not appro-
priate in,that it will not carry out the purposes of the Act. The Trial
Examiner referred this motion to the Board. For reasons herein-
after stated, the motion of the Company is denied. The Trial Exam-
iner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. The Company filed a brief which the Board -
has considered.
50 N. L. R. B., No. 33.
172
BETHLEHEM' STEEL COMPANY 173
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Bethlehem Steel Company, Shipbuilding Division (East Boston
Yards), is a Pennsylvania corporation. The Shipbuilding Division
of the Company operates two shipyards located at East Boston, Mas-
sachusetts, for the conversion and repair of vessels, most of such
work being done for the United States Government under contracts
with the United States Army, United States Navy, and United States
War Shipping Administration. We are concerned herein with the
Company's operation of its East Boston Yards. During the calendar
year 1942 the volume of all materials used by the Company at these
yards was in excess of $3,806,827, of which more than,75 percent was
delivered to the yards from points outside the State of Massachusetts.
During the same period the aggregate amount billed by the Company
for work at these yards was in excess of $14,000,000, of which more
than 65 percent was billed in respect of work for the United States
Government. In view of the above, we find that the Company is
engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATION INVOLVED
Industrial Union of Marine and Shipbuilding Workers of America,
Local 25, is a labor organization affiliated with the Congress of In-
dustrial Organizations, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has taken the position that guards are not employees
within the meaning of the Act, and therefore cannot constitute a unit
appropriate for the purposes of collective bargaining; for this rea-
son, it has refused to bargain with the Union with regard to guards.
The record discloses that the guards of the Company are members
of the Coast Guard Reserve in which they hold rank as chief boat-
swain's mates. At present about 90 percent of them are uniformed,
but the Company expects that in the near future the entire personnel
will be uniformed. They are armed and receive instructions from
the air raid protection civil defense authorities. Their duties consist
of, the general duties of plant-protection employees; the identification
of persons and vehicles entering and leaving the yards, and the-general
supervision and observation of the property of the' Company. The
174 DECISIONS IOF NATIONAL LABOR RELATIONS, BOARD
Company pays these employees, supplies their uniforms and arms, has
authority to hire and discharge them, and controls their working, con-
ditions and their wages. Permission of the Coast Guard is not neces-
sary in order' to transfer these employees from one duty to another.
These employees are paid upon 'a salary' basis, and participate in
the Company's relief plan for its salaried employees. All reports of
these employees are filed in the Company's office and are Company
files, although they are subject to Coast Guard inspection. In view of
the foregoing, we adhere to our opinion previously expressed," and find
that the Company's plant-protection employees are employees within
the meaning of the Act.
'The Company contends that the duties of the plant-protection em-
ployees, involving as-they do the power to apprehend or expel from the
premises those who violate rules laid down for the protection of Com-
pany property, clothe them in the eyes of their fellow employees with
authority generally attributed to management, and for this reason,
they cannot constitute an appropriate unit. While the duty to pro-
tect the property of the Company necessarily entails the power to
apprehend or expel, this power is not of a substantial supervisory
nature but is of a monitory character. It cannot be seriously argued,
that plant-protection employees in the performance of their duties
have the 'discretionary authority to affect wages, hours, or other con-
ditions of employment; their power to affect their fellow employees
arises only through their- obligation to protect the property of the
Company. The considerations which impelled a majority of the,
.Board to hold that employees with substantial supervisory authority
cannot constitute units appropriate for the purposes of collective bar-
gaining are not here applicable.2
The Union has already been recognized as the exclusive bargaining
representative of the production and maintenance employees of the
Company under a contract dated September 18, 1942. The, employees
involved herein were specifically excluded from the purview of that
contract. However, no valid contention has been raised against per-
mitting these employees to be represented "by the same bargaining
agent as the production and maintenance employees, and we shall,
As we have done in the past,3 allow the plant-protection employees to
be represented by such agent if they so desire, but only as a separate
unit.
A statement of the Regional Director, introduced into evidence at the
3 Matter of Jones tt Laughlin Steel Corporation, Otis Works and United Steelworkers of
America (C. 1. 0 ), 49 N. L. R. B 390, and cases cited therein.
2 Matter of The Maryland Drydock Company , 49 N. L. R. B. 733.
8 Matter of Jones & Laughlin Steel Corporation , footnote 1, supra, and cases cited therein.
BETHLEHEM STEEL COMPANY 175
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.4
We' find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
•IV. THE APPROPRIATE UNIT
,The Union contends that all guards at the Company's East Boston
Yards, excluding captains and sergeants, constitute a unit appropriate
for the purposes of collective bargaining. Aside from urging- that
such employees cannot constitute an,appropriate unit, because they
are not employees within the meaning of the Act and because the
establishment of a unit of guards will not carry out the purposes of
the Act, the- Company makes no objection to the inclusion of any
particular classification of guards within the unit.
We find all guards at the Company's East Boston Yards, excluding
captains and sergeants of the guards, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of our Direction of Elec-
tion,'subject to the limitations and additions set forth therein.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor,
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Bethlehem Steel
Company, Shipbuilding Division (East Boston Yards), East Boston,
Massachusetts, an election by secret ballot shall be conducted as early"
as possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Di-
rector for the First Region, acting in this matter as agent for the
* The Regional Director reported that the Union submitted 110 application cards, of
which 104 bore apparently genuine original signatures . Of these signatures , 101 are the
names of persons appearing upon the Company 's pay roll of March 28, 1943. This pay
roll contained 158 names of employees in the unit hereinafter found appropriate.
176 'DECISIONS IOF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Bbard, and subject to Article III, Section
10, of said Rules and Regulations, among 'the employees in the unit
found appropriate in Section IV, above, who were employed during
the pay-roll period immediately preceding the date of this Direction,'
including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and
including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding any who have
since quit or been discharged for cause, to determine whether or not
they desire to be represented by Industrial Union of Marine and
Shipbuilding Workers of America, Local 25, affiliated with the Con-
gress of • Industrial Organizations, for the purposes of collective bar-
gaining. -
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