Bethlehem Steel Co.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 977 (N.L.R.B. 1964)

BETHLEHEM STEEL CO. (SHIPBUILDING DIVISION) 977
purchased bars which PR employees form into exact shapes accord-
ing to precise customer specifications. Thus Employer's employees
are engaged in the production of unshaped bars which are further
fabricated by employees of PR using skills not generally applicable
in the production of bars.'
On the other hand, and more compelling, are the facts that there is
no interchange of employees between the two plants; that the em-
ployees in each are subject to separate immediate supervision and that
while their hours, pay, fringe benefits, and other working conditions
are comparable, PR's operations are not a functional part of the pro-
duction and maintenance unit in Employer's plant.4 Each operates
independently of the other; their close physical proximity must be
regarded largely as a matter of convenience, not of necessity. We
do not feel that the joint use of common service facilities by. the two
employee groups is determinative of the question of accretion. Fi-
nally, the record shows that when the Employer and Petitioner entered
into their latest contract, PR was then in existence and had, ap-
parently, a full complement of employees, yet that contract's coverage
was limited to the Employer's employees and did not embrace those
of PR. In these circumstances we conclude that PR's employees
should not be added to the existing unit of Industrial Siderurgica em-
ployees by way of accretion.
[The Board denied the motion.]
3Pacific States Steel Corporation, 134 NLRB 1325, 1327.
4 Cities Service Refining Corporation, 121 NLRB 1091, 1093 ; Pacific States Steel Cor-
poration, supra, Chrysler Corporation, 129 NLRB 407, 411.
Bethlehem Steel Company (Shipbuilding Division) and Beth-
lehem-Sparrows Point Shipyard, Inc. and Industrial Union of
Marine and Shipbuilding Workers of America, AFL-CIO.
Cases Nos. 2-CA-6866 and 2-CA-6867. June 29, 1964
SECOND SUPPLEMENTAL DECISION AND ORDER
In prior decisions in this matter,' the Board found that the Re-
spondent violated Section 8(a) (5) of the Act by certain of its con-
duct occurring during 1959 bargaining negotiations with they Union.
It found further that the Respondent had not violated Section 8(a)
(5) of the Act by certain other conduct as alleged in the complaint.
Included in the conduct not found violative of the Act was Respond-
ent's unilateral institution of the "White Book" changes on August
1133 NLRB 1347; 136 NLRB 1500.
147 NLRB No. 151.
-756-236-65-vol. 147-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, 1959. In that connection, the Board found that the unilateral
changes in conditions of employment occasioned thereby. were not un-
lawful because the parties had, prior thereto, reached a bargaining
impasse.
Thereafter, the United 'States Court of Appeals for the Third Cir-
cuit handed down its opinion in this matter.2 The court agreed with
the Board's disposition of the case except for its treatment of the
the "White Book" issue. As to that, the court expressed the opinion
that the Board's determination was "premised on an erroneous view of
the law," and it denied enforcement and remanded the case to the
Board for further proceedings 'in conformity with its opinion.
Respondent's conduct of August 13 would, of course, constitute a
violation of the Act unless the parties had, by that time, reached a
bargaining impasse which justified this unilateral action. As stated
by the court, however, "there can be no legally cognizable impasse,
i.e., a deadlock in negotiations which justifies unilateral action, if a
cause of the deadlock is the failure of one of the parties to bargain
in good faith." The Board had been of the view that, despite certain
indications to the contrary, the record supported the finding, made
by the Trial Examiner, that Respondent had not engaged in such
bargaining as would taint the impasse reached by the parties bfore
August 12. The court, however, has found in the circumstances which
preceded the imposition of the "White Book". a basis for a holding
that there was no legally cognizable impasse, and has therefore re-
manded the case to us so that we might give "proper consideration"
to Respondent's pre-"White Book" conduct.
Turning to this earlier activity, it appears that the Respondent,
during bargaining negotiations with the Union, adamantly insisted
upon a contract clause requiring the signatures of individual employ-
ees on grievances and. thereby violated Section 8(a) (5) of the Act.
On August 1, less than 2 weeks before the unilateral changes in ques-
tion, the Respondent unilaterally 'abandoned certain current employ-
ment practices : it • ceased granting top seniority for union stewards
and instituted a different grievance procedure. Its unlawful conduct
on this occasion-the unilateral change in conditions of employment-
was of the very type again engaged in on August 13, when Respondent
had not purged itself of the earlier violations. Additional prior mis-
conduct of 'a similar nature, the court noted, was engaged in by Re-
spondent in 1947 and 1956.
Upon careful consideration of all the foregoing, including. the
opinion of the court, and upon 'a reappraisal of the effect upon nego-
tiations of Respondent's prior violations of its duty to bargain, we
have concluded that there was no legally cognizable impasse between
2 320 F . 2d 615 (C.A. 3).
BETHLEHEM STEEL CO. (SHIPBUILDING DIVISION) 979
the parties, as of August 13, 1959. - We, accordingly, hold that the
Respondent further violated Section 8 (a) (5) - of the Act by its im-
position of the "White Book" changes.
In remanding these cases to the Board for further consideration,
the court, addressing itself to the Union's request for a "backpay"
award to those employees who were injured by Respondent's uni-
lateral actions, observed that the Board's disposition of the remand
would, of course, include the issuance of an order which would ef-
fectuate the policies of the Act. We previously found, and the court
has agreed, that Respondent made unilateral changes in conditions
of employment in violation of Section 8(a) (5) of the Act. Upon
further consideration of the case, we now find that Respondent's
unilateral imposition of its "White Book" changes also violated that
section of the Act. To redress the effects of such unlawful conduct
on the employees injured thereby, and to effectuate the policies, of
the Act, we shall amend the Order previously entered in this case to
require Respondent to make whole its employees for any losses which
they may have suffered by reason of Respondent's unilateral altera-
tion of their conditions of employment.' In accordance with our
normal practice, we shall order that the amounts due be paid with
interest at 6 percent per annum, to be computed in the manner set
forth in Isis Plumbing t Heating Co., 138 NLRB 716.4
SECOND SUPPLEMENTAL ORDER
The National Labor Relations Board hereby amends its Supple-
mental Order previously entered in this proceeding by adding the
following paragraphs 2 (b) and (c) thereto and by renumbering para-
graphs 2 (b) and (c) accordingly :
(b) Make whole the eligible employees for any losses they may
have suffered by reason of Respondent's unlawful unilateral
changes in their terms and conditions of employment, in the man-
ner set forth in this Second Supplemental Decision.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all records necessary to analyze the
rights of employees under this Order.
The notice attached to the Supplemental Decision previously issued
in this case is hereby modified to -include the following paragraph as
the fourth indented paragraph thereof :
3 See Rose Printing Company, Inc., 146 NLRB 638, and the cases cited therein
s The requests for oral argument , filed by the Charging Party on September 9, 1963, and
by Respondent Bethlehem Steel Company (Shipbuilding Division) on February 3, 1964,
are hereby denied as the record in this proceeding, including the opinion of the court,
adequately presents the issues.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole all eligible employees for any losses they
may have suffered by reason of our unlawful unilateral changes
in their terms and conditions of employment.
Local 457, United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO and Walter McGraw and Kentile, Inc.
and United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, Party in Interest . Cases Nos. O-CB-3828
and 2-CB-3831. June ^09, 1964
DECISION AND ORDER
On March 20, 1964, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 his attached Decision. Thereafter,
the Respondent and the General Counsel filed exceptions to his De-
cision and supporting briefs, and the Charging Party filed a reply
brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Jenkins].
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 Trial Ex-
aminer's Decision and the entire record in this case, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions
and modifications: 1
1. The Trial Examiner found that the Respondent violated Sec-
tion 8(b) (1) (A) and (2) of the Act by demanding the discharge of
Fred M. Caruso on the ground that he was not included within the
unit represented by the Respondent and that the union-security clause
was therefore not applicable to him. The Respondent asserts that its
request for his discharge stemmed from an inadvertent error made
by the Company when it included his name in a list of employees. It
clearly appears from the evidence, however, that the Respondent be-
lieved Caruso to have been a strikebreaker and that its request for his
discharge was motivated by this consideration. It is solely on that
basis that we find, in agreement with the Trial Examiner, that the Re-
1 The Respondent 's request for oral argument is hereby denied as, in our opinion, the
record, including the exceptions and briefs , adequately presents the issues and the posi-
tions of the parties.
147 NLRB No. 115.