Bethlehem Steel Co.

National Labor Relations Board - Board Decisions

Apr 10, 1947

73 N.L.R.B. 277 (N.L.R.B. 1947)

In the Matter of BETIILEIIEII STEEL COMPANY and UNITED STEEL-
WORKERS OF AMERICA, C. I. O.
Case No. ('-C-1000. I>eeiderl April 10, 19/7
Mr. Joseph Lepie, for the Board.
Cravath, Swaine c6 Moore, by Mr. John H. Morse, of New York
City, for the respondent.
Mr. Daniel W. Skelly, of Johnstown, Pa., for the Union.
Mr. Julius Topol, of counsel to the Board.
DECISION
AND
ORDER
On September 18, 1946, Trial Examiner William J. Scott issued
his Intermediate Report in the above-entitled proceeding , finding
that the respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter , the respond-
ent filed exceptions to the Intermediate Report and a supporting brief.
On February 11, 1947, the Board, at Washington , D. C., heard oral
argument in which the respondent participated ; the Union did not
appear.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report , the respondent 's brief and exceptions , the contentions
advanced by the respondent at-the oral argument , and the entire
record in the case, and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner, with the following additions
and modifications :
The Trial Examiner found that the respondent refused to bargain
collectively with the Union on May 3, 1945 , and at all times thereafter,
in violation of Section 8 (5) of the Act. We agree for the reasons
hereinafter indicated.
' Chairman Herzog has read the transcript of this oral argument.
73 N. L. R. B., No. 54.
277
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent instituted its plant-protection system at its Johns-
town plant a number of years before the recent war. During the war,
the patrolmen constituting the plant-protection force were enrolled as
civilian auxiliaries to the Federal military police and as volunteer
police officers of the Commonwealth of Pennsylvania. At the time of
the Union's certification as bargaining representative of the patrolmen,
in July 1943, there were approximately 300 persons in the plant-pro-
tection force, of whom about 25 served in a supervisory capacity. Of
the non-supervisory members of the protection force, 5 performed
clerical duties at patrol headquarters, and 271 were actively engaged
in protecting the plant. It is this latter group of 271 patrolmen, alone,
which the Board, in the representation proceeding, found to be an ap-
propriate unit for collective bargaining. After that proceeding, in
December 1944, the patrolmen were demilitarized, but they retained
their commissions as volunteer police officers of the Commonwealth of
Pennsylvania.
The duties of the patrolmen in the unit, before and during the period
of militarization and after demilitarization, have been the normal
duties of plant-protection personnel. '[hey wear uniforms and carry
arms. Some of them patrol assigned "beats" covering important sec-
tions of the plant, while others guard plant gates. The patrolmen on
beats inspect various types of equipment, admonish employees concern-
ing violation of plant safety rules, such as that restricting smoking in
certain parts of the plant, and, in case of violation of other plant rules,
such as those prohibiting wandering in unauthorized plant areas or be-
ing intoxicated on the job, the patrolmen report employees to the super-
visory authorities. When instructed to do so by a supervisor, the pa-
trolmen escort employees from the plant or to an authorized area. The
patrolmen on gate duty are primarily concerned with preventing the
unauthorized movement, either into or out of the plant area, of per-
sons, materials, and vehicles. None of the patrolmen m the unit have
any authority to hire, discharge, or discipline employees, or to recom-
mend such action.
Upon their militarization, the patrolmen agreed to support and de-
fend the Constitution of the United States against all enemies, to dis-
charge faithfully their duties as civilian auxiliaries to the military
police, to protect war materials and utilities, and to obey all orders is-
sued in connection therewith by the President of the United States or
his duly authorized agent. When they accepted their commissions as
volunteer police officers, they took an oath to defend the United States
Constitution, and to discharge faithfully their duties as volunteer
police officers. As such police officers, they have all the powers of
Johnstown city policemen. The record is barren of any evidence,
however, that either the Army, during the period of militarization, or
the Commonwealth of Pennsylvania, at any time, has exercised any
BETHLEHEM STEEL COMPANY 279
measure of control over conditions of the patrolmen's employment.
During the period of militarization and of deputization as city police-
men, as before, the respondent has set qualifications of persons to be
employed as patrolmen, hired them, assigned them their duties and
superintended them in the performance thereof, paid their salaries,
and discharged them, all without interference from the Army or the
Commonwealth of Pennsylvania, as Indicated above. In addition,
during the period of militarization andl of deputization as city police-
men, as before, the patrolmen received the same benefits under social
security, unemployment couipensatloii, and workmen's compensation
laws, as the respondent's other employees.
The respondent seeks to justify its refusal to bargain on May 3,
1945, on the grounds, inter alia, (1) that the patrolmen in the unit
are not employees within the meaning of the Act; (2) that a unit
of such patrolmen is not appropriate; and (3) that the Union was
precluded from representing the respondent's plant-protection em-
ployees by reason of the fact that the Union already represented the
respondent's production and maintenance employees. The respondent
urged the first two of these contentions in the representation proceed-
ing which preceded the instant case, and we found them to be without
merit.2 We have considered them de novo for the purposes of this
proceeding. It is clear from our description of the duties and status
of the patrolmen, and from the record as a whole, that the material
facts in this case relative thereto are substantially similar to those
found to exist in numerous previous cases involving plant guards, in
which contentions similar to those here -urged have been advanced.'
For the reasons indicated m those cases, in addition to those set forth
in our decision in the representation proceeding and in the Trial Ex-
aminer's Inermediate Report herein, we reject these three contentions
as being without merit. We find that the patrolmen are employees
of the respondent, within the meaning of the Act, and that they con-
stitute an appropriate unit for the purposes of collective bargaining
The respondent further contends that the Board failed to prove
that the Union represented a majority of the patrolmen on May 3,
1945, the date of the alleged refusal to bargain, inasmuch as the
Board's certification of the Union, the sole proof of its majority status,
had then become stale. We find no merit in this contention. The
certification, which we issued in July 1943, clothed the Union with
status as the exclusive bargaining representative of the patrolmen.
Under general principles, and for purposes of practical administra-
tion of the Act, such status is presumed to continue until shown to
2 Matter of Bethlehem Steel Company, 50 N L It. B 713
3See, for example, Matter of Jones cC Laughlin Steel Cotpo7ation, 72 N L R B 975.
Matter of Watson ,C Co, Inc, 67 N. L. R. B. 662, Matter of Armour Company, 63
N L. R 13 1200 , Matter of Aluminum Company of Amen tea, 63 N. L R B. 828 , Mat ter
of Diavo Corpoaat3on, 52 N L R B 322.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have ceased or until such time as circumstances arise. which indicate
that the presumption no longer holds true.' Although the Union's
certification had been in force for approximately 21 months on May 3,
1945, the respondent on that date made no claim that the Union did
not then represent a majority of the patrolmen; rather, in refusing
to bargain, the respondent notified the Union that the respondent
desired to postpone collective bargaining until the courts had finally
adjudicated other cases involving issues similar to those present in
this case.5 Moreover, so far as appears, no rival union had presented
a request for recognition or was engaged in organizing the respond-
ent's patrolmen at the date of the refusal to bargain.6
Thus, apart from mere lapse of time, the respondent had no reason
to doubt that the Union represented a majority of the patrolmen and,
indeed, the respondent had no such doubt for it expressed none on
May 3, 1945. The Union, upon being certified in July 1943, promptly
entered into negotiations with the respondent for the consummation of
a contract. Disputed issues between them were referred to, the Na-
ional War Labor Board for determination and were pending before
that agency until December 1944, when the Union withdrew the dis-
pute. Clearly, at that time we would not have entertained a petition
of a rival union for certification of representatives, inasmuch as the
Union had not had reasonable opportunity since certification to dem-
onstrate its effectiveness as a bargaining agent., While the Union
made no request for resumption of bargaining negotiations until ap-
proximately 41/2 months after the dispute had been withdrawn from
the WLB, it appears that during the intervening period the Union
and the respondent were occupied in negotiating a contract covering
the respondent's production and maintenance employees. The Union's
request, on May 3, 1945, to resume bargaining negotiations on behalf
'See N L R B v. Whittier Mills Company, et a7, 111 F (2d) 474, 478 (C C. A 5),
enf'g 15 N L R B 457
The respondent thereby referred to Jones if Laughlin Steel Corporation v N L R B
146 F (2d) 718 (C C A 6), reaffirmed 154 F. (2d) 730 (C C A 6), cert granted Dec
23, 1946, and N L R B v. E. C Atkins cC Company, 147 F (2d) 730 (C C A 7), ie-
aflirmned 155 F (2d) 567 (C C A. 7), ceit granted, Dec 23. 1946
6 The respondent contends that, while practical administration of the Act justifies a
presumption of continuing majority status for a reasonable time after issuance of a ceiti-
fication, the presumption loses force where a "substantial change in the situation" takes
place after certification By "substantial change of situation," the respondent refers to a
redaction in the number of patrolmen in the unit from 271, at the (late of the election, to
154, at the date of the iespondent's refusal to bargain The record shows, however, that
there was no turn-over whatsoever of the employees in the unit, the 154 patrolmen em-
ployed on May 3, 1945, having been in the unit on the date of the election Pm thermoi e.
there has been no alteration in the scope or character of the unit or of the duties per-
formed by the patrolmen Under these circumstances, we are of the opinion and we find
that the reduction in the number' of patrolmen in the unit did not affect the Union's au-
thority to represent the patrolmen at the time of the respondent's refusal to bargain Cf
Matter of Virginia Bi idge Company/, 68 N L R. B. 295 , Matter of Pacific Plastic if Mfg.
Cc, Inc, 68 N. L R B 53
' See Matte) of Allis-Chalmers Manufacturing Company, 50 N L R B 306, Matter of
American-Marsh Pumps, Inc, 62 N. L R B 931 ; Matter of Craddock-Terry Shoe Corpora-
tion, 67 N L R B 105
BETHLEHEM STEEL COMPANY 281
of the patrolmen followed within 10 days the signing of a contract for
the production and maintenance workers. In any event, we are of
the opinion that the time which elapsed from the date of the certifi-
cation to the date of the refusal to bargain, a total of 9 months exclusive
of the War Labor Board proceeding, did not afford the Union a
reasonable period of undisturbed bargaining relations, and that,
under the circumstances, the certification had full force and effect on
May 3, 1945.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Bethlehem Steel Company,
Johnstown, Pennsylvania, and its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of
America, C. I. 0., as the exclusive representative of all patrolmen at
its Johnstown , Pennsylvania, plant, excluding the chief of patrol, the
captain, the lieutenants, the sergeants, and the chief clerk and clerks
,at the patrol headquarters, with respect to grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of
employment ;
(b) Engaging in any other act in any manner interfering with the
efforts of United Steelworkers of America, C. I. 0., to negotiate for or
represent the employees in the aforesaid bargaining unit as their
exclusive bargaining agent.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Steelworkers
of America, C. I. 0., as the exclusive representative of all its employees
in the aforesaid appropriate unit, with respect to grievances, labor dis-
putes , rates of pay, wages, hours of employment, or other conditions
of employment, and, if an understanding is reached, embody such
understanding in a signed agreement;
(b) Post, throughout its plant in Johnstown, Pennsylvania, copies
of the notice attached to the Intermediate Report and marked "Ap-
pendix A." s Copies of such notice, to be furnished by the Regional
Director for the Sixth Region, shall, after being duly signed by. an
authorized representative of the respondent, be posted by the respond-
8 This notice, however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "Recommendations of a Trial Examiner " and substituting in lieu
thereof the words "A Decision and Order " In the event that this order is enforced by
decree of a Circuit Court of Appeals, there shall be inserted, before the words "A Decision
and Order," the words . "A Decree of the United States Circuit Court of Appeals en-
forcing "
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent immediately upon receipt thereof, and maintained by it for sixty
(60) consecutive clays 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;
(c) Notify the Regional Director for the Sixth Region in writing,
within ten (10) clays from the date of this Order, what steps the
respondent, has taken to comply herewith.
Mn. JAMES J. RlivN oLDS, JR., dissenting :
I agree with my colleagues that the guards constituting the appro-
priate unit in this case are employees within the meaning of the Act
regardless of their status as volunteer police officers of the city of
Johnstown. However, since they are required to exercise monitorial
duties over those employees already represented by the petitioning
union, and for the reasons stated m my dissenting opinion in the
Matter of Monz.^anto Chemical Company, 71 N. L. R. B. 11, I do not
believe the purposes of the Act will be effectuated by following the
majority view.
INTERMEDIATE REPORT
Mr. Joseph Lepie, for the Board.
Cravath, Swaine d Moore, of New Yoik City, N. Y., by Mr. Jo/in H 1forse, for
the respondent.
Mr Daniel W. Skelly, of Johnstown, Pa, for the Union
STATEMENT OF THE CASE
•
Upon an amended charge duly filed by United Steelworkers of America
(C I 0.), herein called the Union, the National Labor Relations Board, herein
called the Board, by its Regional Director for the Sixth Region (Pittsburgh,
Pennsylvania), issued its complaint dated May 27, 1946, against Bethlehem Steel
Company, Johnstown, Pennsylvania, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1) and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint accompanied by notice of hearing thereon were duly
served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged, in substance,
that the respondent on or about May 3, 1945, and at all times thereafter, refused
to bargain collectively with the Union as the exclusive bargaining representative
of the respondent's employees with an appropriate bargaining unit, although
a majority of the employees in such unit, in an election conducted under the
supervision of the Board on July 15, 1943. had designated and selected the Union
as their representative for the purpose of collective bargaining, and that the
respondent thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
Thereafter, the respondent filed its answer, in which, in substance , it admitted
that it had refused to bargain with the Union Respondent also admitted certain
other allegations in the complaint but denied that its acts constituted an unfair
labor practice.
BETHLEHEM STEEL COMPANY 283
Pursuant to notice a hearing was held in Johnstown, Pennsylvania, on July
8, 1946, before the undersigned, the Trial Examiner duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel
and the Union by it union official Full opportunity to be heard, to examine
and doss-examine witnesses and to Introduce evidence hearing on the issues was
afforded all parties. Motions made by the respondent during and at the close of
the hearing to dismiss the complaint were denied At the conclusion of the
hearing a motion by Board's counsel to conform the pleadings to the proof with
respect to formal matters was granted by the Ti ial Examiner without objection.
Counsel for the Board and respondent argued orally on the record Opportunity
was afforded the pal ties to file briefs. A brief has been receiR'ed from respondent's
counsel
Upon the entire record of the case and from his observation of the witnesses,
the undersigned makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Bethlehem Steel Company, a Pennsylvania corporation, is engaged at its Johns-
town, Pennsylvania, plant, in the manufacture and production of various steel
products During the calendar year 1945, the aggregate volume of raw mate-
rials and other items purchased for the use at the Johnstown plant exceeded
1,000,000 net tons, of which approximately 45 percent was delivered to the plant
from points outside the Commonwealth of Pennsylvania During the same period
the volume of finished products exceeded 1,000,000 net tons, of which approxi-
mately 70 percent was shipped to points outside the Commonwealth of Pennsyl-
vania. The undersigned finds that the respondent is engaged in commerce within
the meaning of the Act.
II THE ORGANIZATION INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial O`r-
ganizations, is it labor emganization admitting to membership employees of the
respondent.
III 7HE UNFAIR LABOR PRACTICES
A The refusal to bat game
1. The unit alleged as appropriate and the Union's representation of a majority
therein
On June 17, 1943, as alleged in the complaint, the Board, in a decision and
Direction of Election, found that all patrolmen of the respondent at its Johns-
town, plant, excluding the chief of patrol, the captain, the lieutenants, the
sergeants, and the chief clerk and clerks at the patrol headquarters, constituted
a unit appropriate for the purposes of collective baigaunng within the meaning
of Section 9 (b) of the Act'
On July 15. 1943. an election was held put smut to the Board's Decision and
Direction of Election of June 17, 1943, and in accordance with the Pules and 1-tegu-
lations of the Board A majority of the employees in the unit voted for the
Union 2 No objections to tile election were filed by any of tile parties within the
time provided then etor and on July 26, 1043, the Board certified the Union to be
the exclusive"representative of the employees in the unit above-mentioned for
the purpose of collective bargaining.
i Bethlehem Steel Company, 50 N L It B 713
2 T,tli of ballota showed that of approximately 271 eligible voteI s, 22S cast valid ballets,
165 for the Union, 63 against
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The refusal to bargain
Following its certification as bargaining representative, the Union commenced
negotiations with the respondent for a collective bargaining agreement in the
plant protection unit. Thereafter, the Union and the respondent held a number
of collective bargaining conferences until December 8, 1943, but no contract was
consummated. On December 8, 1943, the Union submitted to the National War
Labor Board a dispute arising out of the failure of the parties to agree upon
certain provisions of the proposed agreement between them. On December 24,
1944, the Union withdrew the dispute from the Board before any hearing had been
held thereon. On May 3, 1945, the Union requested the respondent to resume
negotiations. The respondent refused, contending that the unit was not ap-
propriate and suggested that negotiations be deferred until the United States
Supreme Court had decided a pending case involving similar issues. Thereafter,
the Union attempted several times to negotiate but without success.
3. The duties and status of the patrolmen
The patrolmen are the usual plant-protection employees, hired to protect the
company property, prevent trespass and assist in enforcing company regula-
tions and disciplinary measures. During the war they were enrolled as auxiliary
military police of the United States Army but were demilitarized prior to Decem-
ber 26, 1944. They are commissioned by the Commonwealth of Pennsylvania as
Voluntary Police Officers of that Commonwealth, and as such are under and
subject to the direction of Local Police Departments or Commissions for the
purpose of preventing injury and destruction to the various industries of the
Commonwealth and to suppress riots and to preserve the public peace and safety.
They possess all the powers of police officers of the several cities, boroughs and
townships of the Commonwealth and are authorized to arrest upon view, with or
without warrant, any person apprehended in the commission of any offense
against the laws of the Commonwealth or of the United States. Their enroll-
ment as auxiliary military police of the United States and their commission as
voluntary police officers of the Commonwealth of Pennsylvania has never basi-
cally affected the respondent's control and supervision over them Their work-
ing conditions are controlled by the respondent and they are paid by the re-
spondent. They have no supervisory authority with respect to the wages, hours,
or other conditions of employment of the production and maintenance employees.
4. The respondent's contentions, and conclusions with respect thereto
The respondent takes the position that it is under no obligation to bargain with
the Union as the exclusive bargaining representative in the unit for substantially
the following reasons :
(1) Patrolmen are not employees within the meaning of the Act
(2) Patrolmen do not constitute an appropriate unit.
(3) The Union did not represent a majority of employees in the unit at the
time of the alleged refusal to bargain.
(4) The Union cannot represent both a unit of patrolmen and that of the pro-
duction and maintenance employees.
These contentions are hereinafter considered in the order indicated.
1 As to the contention that patrolmen are not employees
Substantially the sane contention has heretofore been considered by the Board
on numerous occasions and ruled on adversely to the respondent's position.'
3Matter of Bethlehem Steel Company, 61 N L R B 892, and cases cited therein Mat-
ter of Standard Steel Company, 62 N. L. R, B. 660, Matter of Armour and Company, 63
BETHLEHEM STEEL COMPANY 285
To support its po`sihon the respondent relies on the decision of the United States
Court of Appeals for the Seventh Circuit in the E. C. Atkins case' That the
Board has not acquiesced in this decision is reflected by its decision in the case
of General Cable Corporation
Under the circumstances, the undersigned is constrained to adhere to the clear
policy of the Board as piesently established He accordingly finds that patrol-
men are employees within the meaning of the Act.
2. As to the contention that patrolmen do not constitute an appropriate unit
This contention, likewise, has been raised in many other cases previously
considered by the Board and has been uniformly decided adversely to the
respondent's position here' In its previously decided cases the Board has
taken into account, as the undersigned does here, the considerations of public
policy and alleged conflict of interest and allegiance which the respondent
stresses There is nothing in the record of the instant case to indicate that the
duties, obligations, and status of the respondent's patrolmen has ever, now or
in the past, differed materially from that of militarized or deputized plant
protection employees who the Board has consistently held may form appropriate
bargaining units.
Respondent in support of its position relies on the Board's decision in
the case of the Maryland Drydock Conipaiiy' This decision has been reversed.'
Accordingly it is found that the respondent's contention, above noted, is without
merit.
3. As to the contention that the Union did not represent a majority at the
time of the refusal to bargain
The counsel for the Board relied solely on the results of the election, held
July 15, 1943, and the Board's certification July 26, 1943, for proof of its
majority.
The respondent claims it is unreasonable to assume that the Union had a
continuing majority from the time of the election until May 3, 1945, and that
therefore the Board should have produced proof of such majority at the hearing
After its certification on July 26, 1943, as previously stated, the Union and
respondent continued bargaining negotiations until December 8, 1943, when the
Union submitted a dispute arising from the negotiations to the War Labor Board.
The issue remained there until December 24, 1944, when it was withdrawn by
the Union before any hearing was held. Prom December 24, 1944, to May 3, 1945,
the Union made no request to resume negotiations for the reason that negotia-
tions were pending between the production and maintenance employees concerning
the basic steel contract
Under the principle enunciated in the Matter of Allis-Chalmers Manufacturing
Company, 50 N. L R. B. 306, and related cases, the time spent in attempting to
settle the dispute before the War Labor Board should be excluded. The record
thus shows the Union has only had approximately 9 months in which to negotiate
a contract.
N L R B 1200 , Matter of L A Young Spring & Wire Corporation , 65 N. L R B 298, Mat-
ter o f E. R Squibb & Sons, 67 N L R B 557 , Matter of Briggs-Indiana Corporation, 68
N. L R B 587
'N L R B v E. C. Atkins & Co , 147 F ( 2d) 730 (C C A 7), cert granted, judgment
vacated , case remanded for further consideration 325 U. S. 838 , decision on remand, 18
L R R 2Q92 ( decided May 31, 1946).
'ehfatter of General Cable Corpoiation , 68 N L R B . 660 (decided June 17, 19461.
The Board has filed a writ for certiorari in the second Atkins decision.
e See cases cited in footnote No. 3, supra.
' Matter of Maryland Drydock Company , 49 N. L. R. B 733
s Matter of Packard Motor Car Company, 61 N. L. R. B 4.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent concedes that the practical administration of the Act requires a
presumption of continuing majority for a reasonable time °
The number of employees have been reduced and they have been demilitarized.
Otherwise there has been substantially no change in the unit . So far as the
record shows no other union has attempted to represent the category of employees
here involved
The undersigned, under the circumstances, finds that the respondent's con-
tention, noted above, is without merit and that the Union will be presumed to
have had a majority on May 3, 1945
4.• As to the contention that the same Union cannot represent both a unit of
patrolmen and production and maintenance employees
The Board on numerous occasions has held that plant protection employees
may be represented in a sepai ate unit by the same union that represents the
production and maintenance employees 10 To support its position the respondent
relies on the decision in the Sixth Circuit Court of Appeals in the Jones and
Laughlin case The Board has not acquiesced in this case 11
For the Board to hold that there must be a separation of unions, would require
the Board to assume a power, not granted to it under the Act, to impose a limita-
tion upon what representative the employees, in the exercise of the rights guaran-
teed them by the Act, may choose as their bargaining agent.12
The requirement that militarized or deputized plant protection employees'
units be established separate and apart fiom units of employees who are not
militarized or deputized has been met in the instant case. On the record, the
undersigned is satisfied, and lie finds, that this separation has been, and will
continue to be, one of fact as well as form.
Under the circumstances, the undersigned accordingly finds that, the respond-,
ent's contention, noted above, is without merit.
5. General conclusions
On the basis of the foregoing it is concluded and found as follows :
1 That all patrolmen of the respondent at its Johnstown, Pennsylvania, plant,
excluding the chief of patrol, the captain, the lieutenants, the sergeants, and
the chief clerk and clerks at the patrol headquarters, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
2 That the Union on July 26, 1943, and at all times thereafter, was the ex-
clusive representative of all employees in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, wages, hours of employment
and other conditions of employment.
3. That the respondent on May 3, 1945, and at all times thereafter, has refused
to bargain collectively with the Union as the exclusive representative of its
employees, in an appropriate unit, in respect to sates of pay, wages, hours of
° N L. R B. v. Appalachian Electric Power Company, 140 F (2d) 217 (C C A 4) (The
Board, in effect, has held that one Year is a reasonable time for a newly certified union to
negotiate a contract. Hatter of Kimberly Clark Corporation, 61 N L R B 90, and cases
cited therein )
10 Matter of Wilson and Company, Inc, 67 •N L R B 662, and cases cited therein
11N L R. B v. Jones d Laughlin Steel Corp, 146 F (2d) 718, cert granted, judgment
vacated, case remanded for further consideiation, 325 U S 838, decision on remand, 154 F
(2d) 932 (C. C A. 6). The Board has filed a writ for certiorari in the second Jones
d Laughlin case
12 Matter of Jones if Laughlin Steel Corporation , 66 N. L. R. B. 386.
BETHLEHEM STEEL COMPANY 287
employment and other conditions of employment and has thereby interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act
1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring
in connection with the operations of the respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and such of them as constitute unfair labor
practices tend to lead to labor disputes burdening and obstructing commerce
and the fiee flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Because of the basis of the respondent's refusal to bargain as indicated in the
facts found, and because of the absence of any evidence that danger of other
unfair labor practices is to be anticipated from the respondent's conduct in the
past, the undersigned will not recommend that the respondent cease and desist
from the commission of any other unfair labor practices Nevertheless, in order
to effectuate the policies of the Act, the undersigned will recommend that the
respondent cease and desist from the unfair labor practices found and from
any other acts in any manner interfering with the efforts of the Union to nego-
tiate for or represent the employees as exclusive bargaining agent in the unit
herein found appropriate.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5)
of the Act.
2 All patrolmen of the respondent at its Johnstown, Pennsylvania, plant,
excluding the chief of patrol, the captain, the lieutenants, the sergeants, and
the chief clerk and clerks at the patrol office, at all times material herein con-
stituted and now constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3 United Steelworkers of America, C I 0., was at all times material herein
and now is the exclusive representative of all the 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 on or about May 3, 1945,
and at all times thereafter as the exclusive representative of the employees in
the above described unit the respondent had engaged in and is engaging in un-
fair labor practices within the meaning of Section 8 (5) of the Act.
5 By the above acts, respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act and
has thereby engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (1) of the Act.
6 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
739926-47-vol. 73-20
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that the respondent,
Bethlehem Steel Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of America,
C. I. 0., as the exclusive representative of all patrolmen at the Johnstown, Penn-
sylvania, plant, excluding the chief of patrol, the captain, the lieutenants, the
sergeants and the chief clerk and clerks at the patrol headquarters, with respect
to rates of pay, wages, hours of employment, or other conditions of employment;
(b) In any manner interfering with the efforts of United Steelworkers of
America, C. I. 0., to bargain collectively with it on behalf of the employees in
the aforesaid appropriate unit.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with United Steelworkers of America,
C. I. 0., as the exclusive representative of all its employees in the aforesaid ap-
propriate unit, with respect to rates of pay, wages, hours of employment, or other
conditions of employment, and if an understanding is reached, embody such un-
derstanding in a written signed agreement ;
(b) Post at its plant in Johnstown, Pennsylvania, copies of the notice attached
hereto and marked "Appendix A." Copies of such notice, to be furnished by the
Regional Director for the Sixth Region, shall, after being duly signed by an
authorized representative of the respondent, be posted by respondent immedi-
ately 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 respondent to insure
that said notices are not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Sixth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply with the foregoing recommendations
It is further recommended that unless on or before ten (10) days from the
date of this Intermediate Report, respondent notifies said Regional Director in
writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203 38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D. C , an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof ;
and any party or counsel for the Board may, within the same period, file an
original and four copies of a brief in support of the Intermediate Report. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the party
or counsel for the Board filing the same shall serve a copy thereof upon each of
the other parties and shall file a copy with the Regional Director. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203 39,
should any party desire permission to argue orally before the Board, request
BETHLEHEM STEEL COMPANY 289
therefor mu§t Jie,mane in widting.to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
WILLIAM J. Sco'TT,
Trial Examiner.
Dated September 18, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will bargain collectively upon request with United Steelworkers of
America, C. I. 0', as the exclusive iepresentative of all employees in the
bargaining unit described herein with respect to rates of pay, hours of
employment or other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement. The bargaining
unit is:
All patrolmen at our Johnstown, Pennsylvania, Plant, excluding the
chief of patrol, the captain, the lieutenants, the sergeants, and the chief
clerk and clerks at the patrol headquarters.
We will not in any manner interfere with the efforts of the above-named
union to bargain with us or refuse to bargain with said Union as the ex
elusive representative of all our employees in the aforesaid described appro-
priate unit.
BETHLEHEM STEEL COMPANY,
Dated ---------------------------- By ------ ------------- ------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.