Jones & Laughlin Steel Corp.

National Labor Relations Board - Board Decisions

Dec 30, 1946

71 N.L.R.B. 1261 (N.L.R.B. 1946)

In the Matter Of JONES & LAUGHLIN STEEL CORPORATION , VESTA-
SHANNOPIN COAL DIVISION and UNITED CLERICAL , TECHNICAL AND
SUPERVISORY EMPLOYEES UNION OF THE MINING INDUSTRY , DIVISION
OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA
Case No. 6-C-1085.-Decided December 30, 1946
Mr. Henry Shore, for the Board.
Reed, Smith, Shaw and McClay, by Messrs. John C. Bane, Jr., and
Nicholas Unkovic, and Mr. A. D. Riester, all of Pittsburgh, Pa., for
the respondent.
Messrs. Samuel Krimsly and John McAlpine, both of Pittsburgh,
Pa., for the Union.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
ORDER
On October 1, 1946, Trial Examiner James A. Shaw issued his In-
termediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and was engaging in' certaip unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report. On November 7, 1946 at
Washington, D. C., the Board heard oral argument in which the
Union and the respondent participated.
The Board has reviewed the rulings of the Trial Examiner at the
hearing. The rulings excluding parts of respondent's exhibits 2 and 3
and the whole of respondent's proffered exhibit 4 are hereby overruled.
All other rulings of the Trial Examiner are free from prejudicial
error and are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions thereto, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and modifica-
tions.
71 N. L. R. B., No. 203.
1261
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. This order, which does nothing more than reaffirm the repre-
sentation case decision,' issues at this time in order to expedite and
facilitate Court review of the Board's earlier holding, a result deeply
desired by the Board and by all parties.
In our decision in the representation proceeding, we held that, when
acting together to improve the terms and conditions of their own em-
ployment, the supervisors involved in this proceeding are "employees"
within the'meaning of Section 2 (3) of the Act; 2 that as "employees"
they are entitled under Section 9 (b) of the Act to be placed in some
bargaining unit, in this instance one wholly separate from the rank
and file employees; that so long as supervisors indicate a desire to bar-
gain collectively through a labor organization, industrial peace is most
likely to be fostered if they can utilize the peaceful machinery of the
Act rather than be relegated to self-help and strikes; that the Act
guarantees to all employees "gull freedom" to designate and then
bargain collectively through "representatives of their own choosing" ; 3
and, finally and most important, that the Act not only contains no
language empowering the Board to limit these employees' choice of a
bargaining representative to an unaffiliated labor organization 4 but
specifically contemplates that it is their choice that must govern.
As we read the Act, Congress has-always excepting company-dom-
inated labor organizations-placed no limitation upon the kind of
representative that employees may select. The preamble and Sections
7 and 9 unambiguously emphasize employee freedom of choice." We-
can discover no authority to decide this case on the basis of personal
opinion as to what might or might not be best for the respondent or
the employees or even for the operations of the Board itself. We are
administrators, not legislators. As we said in March, in the Jones and
I Matter of Jones it Laughlin Steel Corporation, 66 N L R B. 386 (decided March 1946).
' The Board's view that supervisors aie "employees" within the meaning of the Act has
since been confirmed by the Circuit Court of Appeals for the Sixth Circuit in N L R B. V.
Packard Motor Cat Company, 157 F (2d) 80, affirming 64 N L R B 1212 and 61
N L R B. 4. Certiorari was granted at the joint request of the company and the Board
on December 9, 1946; the case is to be aigued in the Supreme Court in January
b 49 Stat 449, Section 1 (Findings and Policy).
4 The New Yotk State Labor Relations Board has held that supervisory employees may
lawfully be represented by an affiliated union. This view has been sustained by the New
York Courts, including the Court of Appeals See New Yoi7, State Labor Relations Board
v Metropolitan Life Insurance Company, 183 Misc. 1064, 52 N Y S 2d 590, aff'd 269
App. Div. 933, 58 N. Y. S. 2d 343 , aff'd 295 N. Y . 839, 66 N. E. 2nd 853.
s In Hill v. Florida, 325 U. S. 538, the Supreme Court said (at p 541) : "The declared
purpose of the Wagner Act, as shown in its first section, is to encourage collective bargain-
ing, and to protect the 'full freedom ' of workers in the selection of bargaining representa-
tives of their own choice, * * * Congress attached no conditions whatsoever to their
freedom of choice in this respect . Their own best judgment , not that of someone else, was
to be their guide. 'Full freedom' to choose an agent means freedom to pass upon that
agent 's qualifications."
"* * * The function assigned to the Board is not the choice of the labor organization
to represent a bargaining unit, for that is to be the free choice of the majority of the
employees * , * *." Stone , C J , dissenting , in Pittsburgh Plate Glass Co. v N. L. R. B.,
313 U S. 146, 171.
JONES & LAUGHLIN STEEL CORPORATION 1263
Laughlin representation proceeding, "The Act as written today, re-
quires that we protect the right of employees [including supervisory
employees] to bargain collectively through representatives of their
choosing, not of our choosing. So long as the Congress of the United
States imposes no limitation upon their choice, it is not for us to do
so."
We therefore see no occasion to reply to so much of Mr. Reynolds'
-dissenting opinion as stresses the disadvantages of having the foremen
represented by aid affiliate of the union that has long represented the
rank and file.6 Our view of the statute eliminates such issues from
consideration here. We regret that he describes the majority opinion
as assigning "rather excessive prominence" to our lack of power to limit
the free choice of employees; we give it not only prominence but
predominance, because we believe it to be a correct interpretation of the
law. This view is not shaken by our colleague's citation of the irrele-
vant Fansteel, Southern Steamship and Indiana di Michigan cases,
which were all decided before we became Members of this Board.
Those cases involved incorrect exercise of the Board's admitted discre-
tion when it extended the remedial provisions of Section 10 (c) of the
statute to employees who had engaged in violations of law. The essen-
tial element of our position in this case is that the Act allows us no
discretion to deprive employees of full freedom to choose their bar-
gaining representatives.
2. By reversing the Trial Examiner, we are receiving into evidence
two graphs which, the respondent contends, prove the accuracy of the
prediction made by one of its expert Witnesses at the representation
hearing, that the -unionization of its supervisory personnel by the
Union would result in slackened enforcement of the Commonwealth's
safety regulations with a consequent increase in the mine accident
rate. The graphs contain data for two of the respondent's four mines
-is follows :
lllzne No. 4
Ratio of acci- Ratio per
Number Thousand dents per Number of thousand6-months period ending accidents s man clays thousand disciplinary man daysworked man days slips issued workedworked
12-31-43------------------------- 26 166 967 0 138 96 0 513
6-30-44-------------------------- 26 185 600 140 78 420
12-31-44------------------------- 26 184 695 141 29 .157
6_30-45 -------------------------- 28 170 506 164 26 .152
12-31-45 ------------------------- 42 156 083 269 23 .147
6-30-46- ------------------------- 48 166 254 . 289 24 .144
We note, in passing, that Air Reynolds' references to certain principles of the common
law concerning the relations of principals and agents are far from exhaustive He omits
to mention the fact that, although an agent stands in a fiduciary relationship to his
principal as against third persons, lie is not theieby piecluded fiem negotiatign with that
principal for the purpose of protecting his ossn interests The election results indicate
that that is what these foremen are seeking to do here
717734-47-vol 71-81
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hine No 5
Ratio of acct Ratio per
Number of Thousand dents per Number of lbousand6-months period ending accidents man days thousand disciplinary man daysworked man days slips issued workedworked
12-31-43 ------------------------- 12 139 655 0 086 97 0 695
6-30-44 -------------------------- 13 129 648 100 60 462
12-31-44 ------------------------- 15 121 146 124 72 594
6-30 15-------------------------- 20 130 824 .153 27 206
12-31-45 ------------------------- 28 120 023 233 12 100
6-30-46 --------------- ----------- 27 137 026 .197 18 131
NiTE Unionization of the supervisors commenced in 1944.
Assuming, arguendo, the relevance of that contention despite the
Board majority's view as to its limited power in the premises, we are
not satisfied that these graphs prove the respondent's contention that
the organizing drive of the Union is responsible for the increase in the
mine accident rate. The graphs show in quantitative terms the
fluctuations in the number of disciplinary slips issued and the iu tuber
of accidents in two of the respondent's four mines during a 3-year
period; they do not and cannot of themselves explain the cause of
these fluctuations. For example„ it is necessary to the respondent's
interpretation of these graphs that the accident rate vary inversely
with the change in the number of disciplinary slips issued. But the
figures do not always establish this relationship. Thus, in the case of
Aline Number 4, the ratio of disciplinary slips issued during the 6
month period ended December 31, 1944, declined approximately 70
percent from the ratio in the 6-month period ended December 31,
1943, yet the accident rate was approximately the same during both
periods. The respondent failed to introduce any evidence of concrete
situations other than the graphs indicating the adverse impact of
unionization of supervisors on the incident of accidents. It is also
significant that, although a statute of the Commonwealth of Pennsyl-
vania provides for the revocation or suspension of the certificate of
any fire boss or assistant mine foreman who "has failed or refused to
perform any duty with which lie is charged under the provisions of the
law, or has engaged in any acts or activities interfering with the safe
and lawful operation of any time . . . ," the respondent introduced
no evidence that any fire boss or assistant mine foreman has had his
certificate revoked or suspended pursuant to this law during the period
of the Union's organizing campaign or, indeed, that any charges have
been filed against any of the supervisors in these two classifications.
Moreover, the effective remedy for neglect of duty by the supervisors,
should such neglect exist, does not lie in depriving them of their rights
under the Act but in the respondent's exercise of its normal discipli-
nary power 8 and in the Commonwealth's exercise of its authority to
P L No 357, approved June 3, 1943
See lfattei of Atlre-Chalmers Manufacturing Company, 70 N. L R B. 348.
JONES & LAUGHLIN STEEL CORPORATION 1265
revoke or suspend the certificate of any fire boss or assistant mine fore-
man who fails properly to enforce the Commonwealth's safety regu-
lations. Finally, it should be noted that the conduct of which the
respondent complains, occurred during a period when the respondent
has declined to recognize the Union as the bargaining representative
of any of its supervisory employees. It by no means follows that con-
dnet which precedes recognition is typical of conduct which may be
expected to follow recognition and the stabilization of relations by
collective bargaining."
3. The respondent's alines are now in the possession of the Secretary
of the Interior and his deputy, the Coal Mines Administrator, pursuant
to Executive Order 9728, issued in part under the authority of the
War Labor Disputes Act.10 The respondent concedes that, notwith-
standing the seizure of its mines, it continues to be the employer of the
workers m, the mines and is subject to the Board's jurisdiction. It con-
tends, however, that this interpretation of its status has been rendered
doubtful by the Government's position taken in another suit allegedly
to the effect that, during the period of its possession, the Government
has the authority of a proprietor and may recognize the Union with-
out regard to the respondent's wishes." The respondent apparently
requests the Board to determine which of these two, the respondent
or the Government, is the employer of the workers in the mines.
The Board is not required to and does not pass on the precise nature
of the Government's relationship to the mine workers or of its au-
thority while in possession of the mines. It is sufficient for this pro-
ceeduig that, as the respondent admits, and the Board 12 and courts 13
have held, the private owner of the mines remains, for the purposes of
the Act, an employer of the nine workers during the period of govern-
mental possession and is subject to the Board's orders.
The respondent has also raised some question as to its ability to com-
ply with a Board order to bargain with the Union in view of the super-
9'the Court of Apppeals ioi the District of Columbia has recently endorsed the Board s
opinion, as expressed in the decision in the representation case, that the membership of the
supervisors here involved in the Union should not have, an adverse effect on the enforce-
ment of the Cmumonwealth's sated regulations Jones rC Laughlin Steel Corpoaation v.
United Mine Workers of America, et al, decided December 16, 1946; 19 LRRM 2115.
June 25, 1943, ch 144, 4 1, 57 Stat 168, 50 U S C App , Sees 1501, et seq
The suit was instituted by the respondent for the purpose of securing (1) a declara-
tory judgment that the Coal 'Mines Administrator had no authouty to enter into a collective
bargaining contract recognizing the Union as exclusive iepiesentative for supervsoty
employees in the unit previousl3 found appropuate by the Board, and (2) an injunction
to restrain the execution or the earring out of anv such agreement The case was decided
adve»ely to the respondent in the Federal District Court and in the Couit of Appeals for
the District of Columbia, Jones if Laughlin Steel Corporation v United Mine urorkeis.
et at (U S. D C. D C Cif Ac No 3.5308), decided June 26. 1946, aff'd App D C,
December 16, 1946, 19 LRR'1 2118
'e 3latter of Ford Collieries Compaml, 70 X. 1, R 13 842 ; Matter of Pennsylvania Coal
and Coke Corporation, 70 N L R. B 1182
N L R B v West Kentucky Coal Company, 152 F (2d) 198 (C C A 6), cert denied
326 U S 866, Glen Alden Coal Company v. N L R B, 141 F (2d) 47 (C C A 3).
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vening authority lodged in the Government agents who now exercise
general supervision over its operations. In view of the fact that the
Coal Mines Administrator is as anxious as the Board and, the respond-
ent for a judicial determination of the lawfulness of the Board's unit
finding and certification and has sought to facilitate such a test, pend-
ing which he has given effect to our certification, we regard the pos-
sibility that the Administrator will place obstacles in the way of the
respondent's compliance with the Board's order to bargain collectively
as too remote and unlikely a contingency to require anticipation in
this order. Moreover, Government possession of the mines may well
have terminated bythe time final judicial determination of the validity
of the Board's decision is achieved. However, if the unlikely even-
tuality of Government hindrance with compliance with this order
should arise, that fact will be taken into consideration in any com-
pliance proceeding.
4. Pursuant to the Board's Decision and Direction of Elections
herein, the Regional Director for the Sixth Region conducted elec-
tions by secret ballot among the employees in the appropriate units.
The results were as follows: (1) In the production and maintenance
supervisors' unit, there were approximately 160 eligible voters, of
whom 151 voted-115 for the Union, 23 against the Union, and 13
under challenge; (2) in the clerical and technical supervisors' unit,
there were approximately 10 eligible voters, all of whom voted-2 for
the Union and 8 against the Union. The observer for the respondent
at the elections joined in certifying that the counting and tabulating
were fairly and accurately done and that the secrecy of the ballots was
maintained. None of the parties has filed any objections to the con-
duct of the elections or conduct affecting the results of the elections.
Accordingly, we find that the results disclose the free and uncoerced
desires of the employees in the appropriate units in selecting a col-
lective bargaining representative.
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, Jones & Laughlin Steel
Corporation, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to recognize and to bargain collectively with United
Clerical, Technical and Supervisory Employees Union of the Mining
Industry, Division of District 50, United Mine Workers of America,
as the exclusive representative of all supervisors of production and
maintenance employees of the Vesta-Shannopin Coal Division, Pitts-
burgh, Pennsylvania, including fire bosses, mine crew foremen, as-
sistant mine foremen, maintenance bosses, mechanical bosses, and
JONES & LAUGHLIN STEEL CORPORATION 1267
assistant general master mechanic, but excluding supervisors of cler-
ical and technical employees, mine foremen, general assistant mine
foremen, tipple foremen, general master mechanic, mine superintend-
ents, general superintendent, assistant general superintendents, di-
rector of industrial labor relations, safety director, chief engineer,
chief of police, weighmasters, weighmasters' clerks, training Super-,
visor, safety inspectors, dispatchers, and filter operators, with respect
to rates of pay, wages, hours of employment, or other conditions of
employment;
(b) Engaging in any other sicts in any manner interfering with
the efforts of United Clerical, Technical and Supervisory Employees
Union of the Mining Industry, Division of District 50, United Mine
Workers of America, to negotiate for or represent the employees in
the aforesaid bargaining unit as 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 Clerical, Tech-
nical and Supervisory Employees Union of the Mining Industry,
Division of District 50, United Mine Workers of America, as the ex-
clusive bargaining representative of all employees in the bargaining
unit described herein with respect to rates of pay, wages, hours of
employment, or other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed agree-
ment ;
(b) Post at its Vesta Mines 4, 5, and 6, and its Shannopin Mine,
located in Washington and Greene Counties, Pennsylvania, and at its
Vesta-Shannopin Coal Division general offices in California, Pennsyl-
vania, copies of the notice attached to the Intermediate Report herein
marked "Appendix A." 14 Copies of said notice, to be furnished by
the Regional Director for the Sixth Region, shall, after being duly
signed by the respondent's representative, be posted by the respondent
immediately 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.
'4 This notice , however, shall be , and it hereby is, amended by striking from the first
paragraph thereof the words
"THE RECOMMENDATIONS OF A TRIAL EXAMINER"
and substituting in lieu then eof 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
ENFORCING "
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. JAMES J. REYNOLDS, Jr., dissenting :
I am unable to join my colleagues in a decision which orders the
respondent to bargain with the Union as the exclusive bargaining
representative of the employees here involved. Indeed, it is my firm
conviction that the American public, labor and industry would be well
served by the Board's most vigorous efforts to insure that no union
representing, or seeking to represent, rank and file workers be per-
mitted to obtain bargaining rights for supervisory employees.
It seems self-evident to me that the first duty of the Board is to
administer the Act in that manner consistent with the public interest
which provides the maximum degree of protection to the union
activities of rank and file employees. I believe it was the primary
intent of the Congress, when it considered and passed the Act which
we administer, to protect the activities of that great inarticulate
number who earn their bread by the sweat of their brow. It was to
assist workers-rank and file workers-to achieve bargaining power
more nearly equal to that of employers that the Act was created.
Years of administration of the Act by the Board and its interpreta-
tion by the courts reviewing the Board's efforts have been directed
to that end. In pursuance of that objective it has been the concern of
the Board to insulate the legitimate union activities of rank and file
employees from the effects of illegal conduct by a minority of em-
ployers seeking to impinge upon the rights guaranteed to workers
under the Act. In order to estop such mischief, the Board time
and again has held employers responsible for those acts of super-
visory employees which interfered with the proper union activities of
workers. In so doing, the Board has gone far beyond the Common
Law doctrine of respondent, superior and has held attributable to
employers any interference by supervisory employees even where it
appeared that the employer had expressly forbidden them to engage
in the conduct which became the subject of complaint. I agree with
the Board's policy in this respect for, as so aptly stated by Mr. Justice
Douglas in the opinion of the United States Supreme Court in the
International Association of Machinists case,' "We are dealing here
not with private rights nor with technical concepts pertinent to an
employer's legal responsibility to third persons for acts of his serv-
ants, but with a clear legislative policy to free the collective bargain-
ing process from all taint of an employer's compulsion, domination,
or influence."
In a long series of Board decisions this doctrine of imputation has
been employed as a buttress against the illegal anti-union conduct of
employers. In the Board's decision in Matter of Brown Company,',`
311 U S 72, 80
16 65 N L R. B. 208
JONES & LAUGHLIN STEEL CORPORATION 1269
the Board held that an employer had been guilty of an unfair labor
practice solely because rank and file workers, attempting to organize
a union, had successfully solicited the signatures of several supervisory
employees on, a petition, even though after the petition had resulted
in the formation of an independent union of the employees the com-
pany objected to the presence of these supervisory employees in the
union. It is interesting to note that in the Brown case the union
which filed the charge alleging that the company had engaged in
unfair labor practices was the United Mine Workers of America,
which in the case now before us is not only bargaining representative
of the respondent's rank and file workers but is also the parent body
of the Union which in this instance seeks the assistance of the Board
to require that the respondent bargain with it for supervisory em-
ployees. I believe the theory of that case to be sound, but I cannot
perceive how that decision can amount to more than empty legal
sophistry if the Board now accommodates the Act to support and
protect the unionization of foremen by rank and file unions. It seems
obvious to me that consistency now requires the Board to reverse its
foriiier policy and find no evil in support given rank and file unions
by supervisory employees. While the majority of the Board may be
prepared so to reverse its former policy, I am not, for I consider the
rights of those millions who toil an objective infinitely more impor-
tant to preserve than any right those relatively few who supervise may
have to insist that their bargaining agent be that union which also
represents rank and file employees.
The decision of my colleagues in this case also runs rampant over
the familiar and well-established rule of law which requires that one
who undertakes to serve one employer must not also place himself
under obligation to serve the conflicting interest of others. This is
the rule of fidelity which since time beyond memory has rendered it
impossible for an attorney to represent both the plaintiff and defend-
ant in a legal action, prohibits a real estate agent from collecting a
commission from both the vendee and the vendor, proscribes the
purchase by the executor of an estate of the assets of such estate,
disqualifies the witness to a will as a beneficiar3 thereto, etc.-common
sense principles familiar to all laymen.
I believe the majority decision completely ignores this rule when
it ]ends encouragement to a bargaining relationship which canilot
help but place supervisory employees, in their role of managerial
representatives, in a position where their obligations as fellow union
members of rank and file employees come in direct conflict with their
primary duty to -management. It is not enough, in my opinion, to
say, as the majority has, that managerial discipline can be exercised
effectively to discourage indiscretions of supervisory employees which
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arise from any such conflict of interests. The granting of legal sanc-
tion to a relationship which creates even the temptation within a super-
visory employee or agent to wander from the path of his primary
duty to the employer or principal appears to me to be repugnant to
the rule of fidelity." It is of particular interest to note, in consider-
ing this aspect of the matter before us, that the supervisors here
involved, when becoming members of the UCT, are required to take
the same oath of allegiance to the United Mize Workers which is
likewise sworn to by the rank and file of that organization :
I do sincerely promise, of my own free will, to abide by the
laws of this Union; to bear true allegiance to, and keep inviolate
the principles of the United Mine Workers of America; * * *
. . . to defend on all occasions and to the extent of my ability the
members of our organization. That I will not reveal
to any employer or boss the name of anyone who is a member
of our Union. That I will assist all members of our organiza-
tion to obtain the highest wages possible for their work; that I
will, not accept a brother's job who is idle for advancing the
interest of the-Union or seeking better remuneration of his labor;
and, as the mine workers of the entire country are competitors
in the labor world, I promise to cease work at any time I am
called upon by the organization to do so ... * * * To
all this I pledge my honor to observe,and keep as long as life
remains, or until I am absolved by the United Mine Workers of
America.
I do not comprehend how any individual whose primary duty is to
fulfill his obligations as a member of the managerial personnel can
assume the obligations involved in this oath and yet not violate the
rule of fidelity which requires that an agent "not assume any duty
incompatible with the interest of his principal, nor act in any trans-
action where he himself had any adverse interest." 18 Nor again do I
understand how a supervisory employee, swearing to this oath, can
fail "to put himself in a position in which his personal interest may
come in conflict with his duty to his principal." to The rule of fidelity
demands the utmost loyalty from agent to principal at all times and,
since the Board has consistently held in the development of its doctrine
of, imputation supra that supervisors are agents of management, the
majority decision appears to be in direct conflict with this highly
important principal of Common Law. This Board may not reason-
In Robertson v. Chapman, 152 U S 673, the Count held that an agent may not, without
the assent of his piincipal, "occupy a position in which he will be tempted not to (10 the
best lie may for his principal "
is Glover v. Ames, 8 Fed 351.
10 Pratt v Shell Petroleum Co, 100 F. (2d) 833 (C C A 10). cert. den 306 U. S. 659
(1939)
JONES & LAUGHLIN STEEL CORPORATION 1271
ably operate in a vacuum to effectuate any purpose it may deem desir-
able without regard to the rules of conduct by which human endeavor
in other fields is regulated.
As a body to the empirical qualities of which the Congress has dele-
gated considerable of its authority, this Board is clearly burdened
with the duty to insure that the administration of the Act shall not
accomplish irreparable damage to our industrial system. I believe
that the decision of the majority completely ignores the realistic
"facts of life" in this respect, for I do not perceive how it contem-
plates that the respondent may manage its mines to the best interests
of their owners with supervisory personnel who are subject to
the control of the Union whose interest in the efficient and profitable
operation of these mines is at best secondary to its quite understand-
able and proper devotion to the interests of those who are seeking
the fullest measure of profit from their toil. To assert that our action
here does not divest the respondent of a substantial degree of control
over its property, in my opinion, not only disregards the evidence,
which the majority minimizes, but ignores everyday human experi-
ence in industrial relationship.
In the early steps of grievance procedure, the supervisor is the
direct representative of management when dealing with his sub-
ordinates. Although a supervisory ruling not acceptable to the em-
ployee may be appealed by him or by his representatives through
subsequent grievance steps to final determination by top manage-
ment, the supervisor's decision made at the scene of a grievance arising
from events in the depths of the mine is for all practical purposes
the decision of top management and binding thereafter upon the
company. When one realizes that supervisory rulings on grievances
must henceforth be made by individuals who have sworn to the oath
partially set forth above, the impact of the majority's decision upon
management's ability to manage is evident.
Furthermore, in the matter of exercising managerial discipline, the
trend towards a less assiduous observance of their duties by supervis-
ory personnel is evidenced by respondent's Exhibits 2 and 3 which
reveal that, since organization of the respondent's supervisors by the
Petitioner, a gradual abandonment of the practice of reporting viola-
tions of the safety laws has occurred during a period when the acci-
dent rate has substantially increased. I find it difficult to believe
that this is due to any lessening of concern on the part of supervisors
with the safety of rank and file employees but rather to a growing
reluctance to visit discipline upon fellow union brothers. Such im-
pairment of well-established techniques of management is, in my
opinion, also an impairment of the "efficiency, safety,' or operation
of an instrumentality of commerce" and contrary to the purposes of
the Act.
1272 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Apparently the majority perceives some serious merit in the argu-
ments advanced as to why the respondent should not be compelled to
bargain with the Union for the supervisory employees involved, for
it assigns rather excessive prominence to its contention that the Board
has no authority under the Act to limit employees in their selection
of a bargaining representative. It argues, evidently, that because
supervisory employees are "employees" within the meaning of the Act
and are entitled under the Act to bargain collectively "through rep-
resentatives of their own choosing," the Board may not refuse to
invoke its powers to compel respondent to bargain with any union
which the supervisors may freely select-including a union which also
represents rank and file workers. In brief, this contention implies
that however disastrous the impact of the majority's order in this
case may be, Congress by the language of the Act has made it impos-
sible for the Board to arrive at any conclusion other than the one here
made.
With this inflexible interpretation of the ambit of our discretion, I
do not agree. In earlier cases, the Board has made similar gestures
of helplessness and has been emphatically reversed by the courts em-
powered to review the Board's decisions. Thus, in the Fansteel case 20
the Board contended that strikers who had seized and retained the
employer's premises nevertheless remained "employees" under the
terms of the Act and that, therefore, the Board was entitled to order
their reinstatement "in order to effectuate the purposes of the Act."
In rejecting this argument, the Supreme Court stated: "There is abun-
dant opportunity for the operation of Section 2 (3) [of the Act] with-
out construing it as countenancing lawlessness or as intended to sup-
port employees in acts of violence against the employer's property by
making it impossible for the employer to terminate the [employee]
relation upon that independent ground [i. e., the lawlessness in the
conduct of the strike]." Similarly, in the Southern Steamship case 21
the Board argued that the language of the Act was so inflexible that
it required (or at least permitted) the Board to reinstate employees
discharged for striking even though the strike also constituted a
mutiny. The Supreme Court was not impressed and noted, "It is suf-
ficient . .. to observe that the Board has not been commissioned to
effectuate the policies of the Act so singlemindedly that it may wholly
ignore other and equally important Congressional objectives. Fre-
quently, the entire scope of Congressional purpose calls for careful
accommodation of one statutory scheme to another, and it is not too
much to demand of an administrative body that it undertake this
task without excessive emphasis upon its immediate task." Further-
N. L R B. v Fansteel Metallurgical Corp , 306 U S 240. 256
Southern Steamship Company Y. N. L R B, 316 U S 31.
JONES & LAUGHLIN STEEL CORPORATION 1273
more, in the Indiana ct Michigan Electric Company case 22 the Supreme
Court agreed with the Board that the "evil or unlawful motives, or
the bad faith" of the charging union could not deprive the Board of
jurisdiction to remedy unfair labor practices of an employer. The
Court added, however, the following words:
The Board has wide discretion in the issue of complaints.
.. . It is not required to move on every charge; it is merely en-
abled to do so. It may decline to be imposed upon or to submit
its process to abuse.
While in the instant case I am not concerned with the motives of the
Union, I interpret this language of the Court to mean that this Board
is anything but "helpless" and need not confine its discretion so rig-
idly as to require that its only possible avenue of action be to compel
the respondent to bargain with the Union when the impact of such
compulsion will effect irreparable damage to the rights of those mil-
lions for whom the Act has heretofore served as a protection, and to
the public interest, the welfare of which is inextricably bound to the
efficient operation of our industrial system.
Finally, I wish this opinion to record that this Member of the Board
looks with understanding upon the desire and, indeed, in many cases,
upon the necessity for collective bargaining representation on the
part of supervisory employees. Too often they are expected to be
endowed with a measure of wisdom, tact, production ability and
loyalty far in excess of the emoluments accorded them by top man-
agement. I believe they have a right under the Act to articulate
effectively their desires, if such action is necessary to achieve their
just rewards, but, so far as this Board is concerned, the encourage-
ment and protection it may extend to that end must be tempered with
a full consideration of the right of all segments of our society.
INTERMEDIATE REPORT
Mr. Henry Sho? e, for the Board.
Mr. John C. Bane, Jr., and Mr. Nicholas Unkovic, of Reed, Smith, Shaw and
McClay, and Mr A D. Riester, of Pittsburgh, Pa, for the respondent
Messrs Samuel Krinnsly and John McAlpine, of Pittsburgh, Pa., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on August 22, 1946, by United Clerical, Technical and
Supervisory Employees Union of the Mining Industry Division of District 50,
United Mine Workers of America, 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 August 28, 1946,
against Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division,
herein called the respondent, alleging that the respondent had engaged in, and
22 N L R C V. Induana cC .3I chigan Electric Connpany , et al , 318 U S 9
1274 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing and copies of the charge were duly served upon the
respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance :
(1) all supervisors of production and maintenance employees of the respondent's
Vesta-Shannopin Coal Division, Pittsburgh, Pennsylvania, including fire bosses,
mine crew foremen, assistant mine foremen, maintenance bosses, mechanical
bosses, and assistant general master mechanic, but excluding supervisors of
clerical and technical employees, mine foremen, general assistant mine foremen,
tipple foremen, general master mechanic, mine superintendents, general super-
intendent, assistant general superintendents, director of industrial labor relations,
safety director, chief engineer, chief of police, weighmasters, weighmasters' clerks,
training supervisor, safety inspector, dispatchers, and filter operators, constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act: (2) Since May 28, 1946, and at all times thereafter,
the respondent has refused to recognize and to bargain collectively with the Union
as the exclusive bargaining representative of the respondent's employees in the
unit designated by the Board as appropriate for the purposes of collective bar-
gaining although a majority of said employees in such appropriate unit by secret
ballot conducted on April 1, 1946, selected said Union as their collective bargain-
ing representative and said Union was certified by the Board as such representative
on May 27, 1946.
Thereafter the respondent filed its answer in which it admitted certain of the
allegations of the complaint but denied that it had committed any unfair labor
practices. In substance the answer alleged that the Union was not a labor
organization within the meaning of Section 8 (5) of the Act, but "is instead a
name which has been used and is now being used by various officers, agents and
members of the unincorporated labor organization known as the `United Mine
Workers of America', with the approval and under the direction and control of
the officers and members of the latter organization" ; that the Union was not
legally qualified or legally competent to be the exclusive representative of any
supervisor or class of supervisors serving as such in the respondent's mines;
that the action of the Board in certifying the Union as the exclusive repre-
sentative of its supervisory employees in a unit found to be appropriate by the
Board was improper and improvident and that the Board had no lawful power
or authority to issue such certification for the following reasons: (1) That the
Union is in fact and truth the United Mine Workers of America which for many
years has represented the rank and file coal miners in the respondent's mines;
and as a result it is not legally competent to be qualified or to act as "exclu-
sive representative" of any supervisor or class of supervisors serving as such
in the respondent's coal mines; and (2) that the unit is not appropriate. In
addition the answer further averred as new matter, in substance the following:
(1) that on or about May 21, 194G, j A Krug, the Secretary of the Interior of
the United States, declared himself to be in possession of respondent's four coal
mines, pursuant to such authority as was vested in him by Executive Order No.
9278, and by the provisions of the War Labor Disputes Act; (2) that at all
times since May 21, 1946, said J. A. Krug and others acting under his direc-
tions and authority or purported authority, have declared that, under said
Executive Order and the War Labor Disputes Act. the powers of the respondent
to direct the operations of said mines, to deal and baigaua with the miners,
JONES & LAUGHLIN STEEL CORPORATION 1275
mine supervisors and others employed therein or serving therein, and to recog-
nize or deny recognition to labor organizations have passed from the respondent
to themselves and they have governed themselves accordingly and have in par-
ticular bargained or attempted to bargain with the United Aline Workers of
America as a representative of the rank and file miners and of the mine super-
visors and that the Union has bargained or attempted to bargain with them as
such; (3) that in a certain civil action lately pending in the United States Dis-
trict Court for the District of Columbia at its docket number 35308, and now
pending and undetermined in the United States Court of Appeals for the
District of Columbia at its docket number 9342, entitled Jones & Laughlin Steel
Corporation, plaintiff, versus United Mine Workers of America, J. A. King,
Secretary of the Interior, Admiral Ben Moreell, Coal Mines Administrator,
National Labor Relations Board, et at., deleudants, respondent has maintained
or attempted to maintain that its legal powers and rights to recognize or to
refuse to recognize the Union or any union as "exclusive representative" of the
coal mine supervisors aforesaid, and its other legal rights under the National
Labor Relations Act, have not been and cannot lawfully be impaired, destroyed
or suspended, by virtue of said Executive Order or any lawful order made under
the War Labor Disputes Act, and that neither J. A Krug nor any agent or other
person acting under his authority has now or has had any lawful power to
control or to supersede respondent's decision to recognize or not to recognize
any union as such "exclusive representative" ; but the said J. A. Krug has
disputed and contested all of respondent's contentions aforesaid, said proceeding
has not been concluded or decided.'
Pursuant to notice, a hearing was held in Pittsburgh, Pennsylvania, on
September 11, 1946, before the undersigned, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board, the respondent and the Union were
represented by counsel Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all parties A motion made by Board's counsel to conform the pleadings to
'In support of its averment of new matter in its answer the respondent offered in evi-
dence as an exhibit a printed document styled "Appendsa to Appellants Petition. and Brief,
United States Court of Appeals, for the District of Columbia, No 9342, Jones cc Laughlin
Steel Corporation, Appellant v. United Aline Workers of America, J A Krug, Secretary of
the Interior, Admiral Ben plorcell, Coal Aline Administrator, et al, Appellees Appeal front
a Final Judgment of the United States District Court for the District of'Columbia in Civil
Action No 35308 " The undersigned sustained an objection by Counsel for the Board to
its admission in evidence on the grounds that it was irrelevant and immaterial and ordered
that it be placed in the rejected exhibit file. The undersigned was of the opinion that the
matter contained therein was for the courts to consider and has no relevancy to the issues
involved herein. Furthermore, the undersigned is of the opinion that any comment he
might make on the issues involved in the proceeding referred to in the respondent's rejected
exhibit would be pfesumptious. Furthermore, the undersigned is of the opinion that the
issue attempted to be raised by the respondent in its averment of new matter and the re-
jected exhibit in support thereof are, in addition to being irrelevant and immaterial, with-
out merit in view of the decision of the United States Circuit Court of Appeals, Sixth Cir-
cuit, in the matter of N R. L. B. v. West Kentucky Coal Company, 152 F. (2d) 198 (C C A
6), enforcing as modified 57 N. L R. B , 89, and the decision of the United States Circuit
Court of Appeals, Third Circuit, in the Glen Alden Coal Company v N L. R B, 141 F (2d)
47. January 31, 1944-51 N L. R B. 656 An examination of these eases reveals that
similar issues were raised therein and the action of the Board in exeicising its statutory
duty sustained, even though the mines involved were in possession of and being operated
by the United States Government under the authority of an Executive Order issued by the
President of the United States See in the Matter of Ford Collieries Company and Local
Union No. 50, United Clerical, Technical and Supervisory Employees Union of the Miiiu'
Industry, Division of District 50, United Mine Workers of America, 6-R-1213
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the proof as to such matters as dates, typographical errors _nd other minor
variances was allowed without objection. Although all parties were given an
opportunity to argue orally before the undersigned none availed themselves of
this opportunity. The parties were afforded an opportunity to file proposed
findings of fact and conclusions of law and briefs with the undersigned. Pro-
posed findings of fact and conclusions of law have been received from the
respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT 2
1. THE BUSINESS OF THE RESPONDENT
Jones & Laughlin Steel Corporation is a Pennsylvania corporation engaged in
the manufacture and sale of steel and steel products with plants in Pittsburgh
and Aliquippa, Pennsylvania, and Cleveland, Ohio, and elsewhere On July 26,
1941, Vesta Coal Company and Shannopin Coal Company, wholly owned sub-
sidiaries of the respondent, were merged with the respondent; by virtue of the
merger, the respondent became engaged in the mining of coal in Washington
and Greene Counties, Pennsylvania, through its Vesta-Shannopin Coal Division.
The Vesta-Shannopin Coal Division has its general offices in California, Pennsyl-
vania, and operates four mines known as Vesta mines No. 4, 5, and 6, and Shan-
nopin Mine Practically all of the coal mined is transported via river tows to
the respondent's plants in Pittsburgh and Aliquippa, Pennsylvania During the
past twelve months' period the Vesta-Shannopin Coal Division mined in excess of
one million tons of coal, all of which was used at the respondent's Pittsburgh and
Aliquippa, Pennsylvania, plants.
During the past twelve months the value of the raw materials and other ma-
terial used by the respondent in its manufacturing operations in Pittsburgh and
Aliquippa, Pennsylvania, was in excess of $10,000,000, at least 50 percent of which
originated outside the Commonwealth of Pennsylvania During the same period
the value of the finished products of the Pittsburgh and Aliquippa, Pennsylvania,
plants was in excess of $50,000,000, of which more than 50 percent was shipped to
points outside the Commonwealth of Pennsylvania. The respondent admits that
it is engaged in commerce within the meaning of the Act.
IT. THE ORGANIZATION INVOLVED
United Clerical, Technical and Supervisory Employees Union of the Mining
Industry, Division of District 50, United Mine Workers of America, is a labor
organization admitting supervisory employees of the respondent to membership 3
2 The respondent, as indicated heretofore, has submitted to the undersigned proposed
findings of fact The undersigned accepts proposed findings 1, 2, 3, 4, 5, 6, 7, 8, 10, 12, 13,
14, 15, 16, 17, 18 and 19; he rejects 9, 11, and 20 It should be noted that the undersigned,
as indicated hereinafter, has in effect, adopted by reference, the Board's detailed findings
in its Decision and Direction of Election in Case No 6-R-1191 The substance of the afore-
said accepted proposed findings is reflected herein and in the Board's findings, as adopted
by reference
2 The respondent in its answer denies that the Union is a labor organization within the
meaning of the Act. It took the same position in Case No 6-R-1191, 66 N L. R. B 386,
which involved the same parties as herein The Board in its decision in that case found
that the Union is a labor organization within the meaning of the Act. The undersigned
finds the contention of the respondent to be without merit.
JONES & LAUGHLIN STEEL CORPORATION 1277
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
On March 7, 1946,' after an appropriate hearing, the Board found, in the
Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin. Coal Division
and United Clerical, Technical and Supervisory Employees Union of the Mining
Industry, Division of Dish ict 50, United Mine Workers of America, Case No.
G -R-1191, that all supervisors of production and maintenance employees of
the respondent's Vesta-Shannopin Coal Division, including fire bosses, mine crew
foremen, assistant mine foremen, maintenance bosses, mechanical bosses, and
assistant general master mechanic, but excluding supervisors of clerical and
technical employees, mine foremen , genet al assistant mine foremen, tipple fore-
men, general master mechanic, mine superintendents , general superintendent,
assistant general superintendents, director of industrial labor relations, safety
director, chief engineer , chief of police, weighmasters, weighmasters ' clerks,
training supervisors, safety inspector, dispatchers, and filter operators, consti-
tute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
In the original representation case involving the parties herein, Case No.
6-R-1191, the respondent contended that it unit of supervisory employees was
inappi opriate for several reasons An examination of the record and the Board's
Decision and Direction of Election in that case reveals that some of the re-
spondent's principal objections were as follows: (1) that since the Union is an
affiliate of the United Mine Workers of America, which is the exclusive rep-
resentative of the coal miners in the respondent's mines, that the Union would
therefore be dominated by the rank and file coal miners and thus seriously
impair the disciplinary duties of the supervisors and; (2) that as a result of
such a situation the supervisors would become lax in the enforcement of certain
safety rules and regulations, delegated to them for enforcement by the respondent
and the Commonwealth of Pennsylvania
At the hearing in the instant case the respondent again raised this issue and
offered certain documentary evidence and testimony in support thereof. The
evidence was offered for the purpose of showing the number of man-hours lost
by accidents from December 31, 1943 to June 30, 1946, and the increase in the
number of accidents and the decline in the issuance of disciplinary tickets by
the supervisors to rank and file miners for the violation of safety Rules and
Regulations since the Union's organizational efforts started' It is clear that
the respondent's purpose in otfering this evidence was to reiterate its position
as presented in the original hearing in Case No 6-R-1191. The respondent ad-
mitted that this evidence was available at the time of the original hearing except
4 The complaint alleges that the Board ' s Decision and Direction of Election was "decided
May 7 1946 " This is a typographical error , it should have read "decided March 7, 1946 "
The undersigned is of the opinion that this error is of no importance and has in fact been
coriected by motion of counsel for the Board to conform the complaint to the proof insotar
as dates, typographical errors and the like are concerned As heretofore pointed out above
this motion was granted by the undersigned without objection.
5 Under the respondent ' s system , supervisors carry with them a book of disciplinary slips,
printed in triplicate , which aie issued by them to rank and file miners found violating safety
rules One copy is given to the individual involved , one to the Director of Safety and the
thud is retained by the supervisor.
1278 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
for that portion of it that occurred after September 1, 1945' The undersigned
sustained an objection by counsel for the Board to the admission in evidence
of the documents referred to and ordered stricken from the record all testimony
in support thereof, except that portion of the documentary evidence that related
to events subsequent to September 1, 1945, and the testimony in support thereof,
since the evidence and the testimony in support thereof was available at the
time of the hearing in Case No. 6-R-1191.'
An examination of that portion of the documentary evidence and the testimony
in support thereof that was admitted by the undersigned reveals that it also
deals with matter that was considered by the Board in its Decision and Direction
of Election in Case No. 6-R-1191. An examination of that decision reveals that
the Board recognized the fact that bituminous coal mining is an extremely haz-
ardous industry and considered this factor at great length in arriving at its De-
cision and Direction of Election, and in particular that portion of it that relates
to the appropriateness of the unit. The undersigned after due consideration of
the entire record in the instant case and that portion of the record in Case No.
6-R-1191 that is pertinent to this issue is convinced that the respondent's conten-
tion is without merit. The evidence offered by the respondent in support of its
challenge to the appropriateness of the unit in the instant case is, in the opinion
.of the undersigned, not really new matter or newly discovered evidence but
merely a different approach to the same question, and does not change the funda-
mental factors involved therein which have been fully considered and adjudicated
by the Board in Case No 6-R-1191, and does not, in the opinion of the under-
signed, affect the appropriateness of the unit. Accordingly, the undersigned finds
the appropriate unit to be the same as that found by the Board in its Decision
and Direction of Election dated March 7, 1946.
2. The majority
On April 1, 1946, pursuant to the order of the Board dated March 7, 1946,
an election was held among the employees in the above-found appropriate unit
at which a majority of said employees by secret ballot selected the Union as their
bargaining representative. By order dated May 27, 1946, the Board certified said
Union as the exclusive representative of the employees in said unit. As the
respondent introduced no evidence at the present hearing tending to impeach
this certification or the majority status of the Union, the undersigned finds that
on May 27, 1946, and at all times thereafter, the Union has been, and continues
to be, the exclusive representative of all the employees in the above-found appro-
priate unit for the purposes of collective bargaining with the respondent with re-
spect to rates of pay, wages, hours of employment and other conditions of
employment.
3. The refusal to bargain
At the present hearing the respondent stipulated that it had refused to bar-
gain with the Union as the exclusive representative of the employees in the above-
found appropriate unit, from the date of its certification by the Board , May 27,
1946 and at all times thereafter.
The respondent at all tines pertinent herein has refused to meet with the
Union. The last request of the Union for a bargaining conference was on August
13, 1946 , when John McAlpine, its president , wrote the respondent and requested
a bargaining conference for the purpose of negotiating a contract for the em-
The hearing in Case No 6-R-1191 was held on various dates between September 27,
1945 and October 8, 1945
4 See N. L R R. v. West Kentucky Coal Company, 152 P. (2d) 198 (C. C. A. 6), enforcing
as modified 57 N. L. R B 89
JONES & LAUGHLIN STEEL CORPORATION 1279
ployees in the unit heretofore found to be appropriate. On August 14, 1946, the
respondent by W. H. Harvey, its Assistant Director of Personnel Relations, wrote
the Union's president the following letter :
JONES & LAUGHLIN STEEL CORPORATION,
Jones & Laughlin Bldg, Bldg., Third Avenue & Ross St,
Pittsburgh 30, Pa., August 14, 1946.
EARL F. BLANK,
Director of Personnel Relations.
Mr. JOHN MCALPINE,
President, United Clerical, Technical and Supervisory Employees of the
Mining Industry, Division of District 50, U. M. TV. of A., 1606 Laic &
Finance Building, 1'ittsburgli 19, Pennsylvania.
DEAR Sin: This will acknowledge receipt of your letter, dated August
13, 1946, addressed to Mr H E. Lewis, President, Jones & Laughlin Steel
Corporation, wherein you requested that a time and place be designated for
a meeting of Corporation and Union representatives to commence bargaining
on behalf of Supervisory Employees of the Vesta- Shannopin Coal Division.
We must decline your invitation to participate in such a meeting in view
of the fact that this Corporation is advised by Counsel that your Union does
not have the legal right to represent Supervisory Employees at our Vesta-
Shannopin Coal Mines.
Very truly yours,
JONES & LAUGHLIN STEEL CORPORATION,
S/s W. ,H. HARVEY,
Ass't Director of Personnel Relations.
WHH :AKD
The respondent's position is succinctly summed up in its proposed findings of
fact No. 17 filed with the undersigned :
"These [Union] demands [for exclusive recognition] have invariably
been rejected and refused by the respondent, its refusals being coupled
with its assertion of its conviction that, under the National Labor Relations
Act, the Union (with which it identifies the U. C. T.) cannot qualify as
exclusive representative, at the same time, of both the rank and file miners
in its mines and the supervisors, such as the Assistant Mine Foremen and
the Fire Bosses, who must be relied upon, under the law, for the direction,
control, discipline and safety of the rank and file."
The Board has heretofore considered and rejected this contention of the
respondent, and the undersigned, on the basis of the record herein made, sees
no reason for deviating therefrom.
The undersigned therefore finds that on May 28, 1946, and at all times there-
after, the respondent has refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit and has thereby
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
1V. THE EFFECT OF THE UNFAIR. LABOR PRACTICES UPON CODIDIERCE
The activities of the respondent, set forth in Section III, above, occurring in
connection with the operation of the'respondent described in Section I, above,
have a close, intimate, and substantial relation to tiade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstru-tii; commerce and the free flow of commerce
717764-47-N ol. 71 82
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices, 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
negotiate 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 s
1 United Clerical, Technical and Supervisory Employees Union of the Mining
Industry, Division of District 50, United Mine Workers of America, is a labor
organization within the meaning of Section 2 (5) of the Act.
2 All supervisors of production and maintenance employees of the respondent's
Vesta-Shannopin Coal Division, Pittsburgh, Pennsylvania, including fire bosses,
mine crew foremen, assistant mine foremen, maintenance bosses, mechanical
bosses, and assistant general master mechanic, but excluding supervisors of
clerical and technical employees, mine foremen, general assistant mine foremen,
tipple foremen, general master mechanic, mine superintendents, general super-
intendent, assistant general superintendents, director of industrial labor rela-
tions, safety director, chief engineer, chief of police, weighmastei s, weighniasters'
clerks, training supervisor, safety inspector, dispatchers, and filter operators,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act
3 United Clerical, Technical and Supervisory Employees Union of the Mining
Industry, Division of District 50, United Mine Workers of America, was on
May 27, 1946, and at all times thereafter has been the exclusive representative
of all employees in the aforesaid unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act
4 By refusing on May 28, 1946, and at all times thereafter to recognize and
to bargain collectively with United Clerical, Technical and Supervisory Em-
ployees Union of the Mining Industry, Division of District 50, United Mine
Workers of America, as the exclusive representative of all its employees in the
aforesaid appropriate unit, the respondent has engaged in and is engaging in
unfair 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 meaning of Section 8 (1) of the Act.
6 The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
8 The undersigned accepts respondent ' s proposed conclusion of law No. 1 ; he rejects 2,
3, 4, 5, 6 , 7,and8
JONES & LAUGHLIN STEEL CORPORATION
RECOMMENDATIONS
1281
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record tit the case, the undersigned recommends that the respondent,
Jones & Laughlin Steel Corporation, its ofhcers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Refusing to recognize and to bargain collectively with United Clerical,
Technical, and-Supervisory Employees Union of the Mining Industry, Division
of District 50. United Mine Workers of America, as the exclusive representative
of all supervisors of production and maintenance employees of the Vesta-Shan-
nopin Coal Division, Pittsburgh, Penns lvania, including fire bosses, mine crew
foremen, assistant mine foremen, maintenance bosses, mechanical bosses, and
assistant general master mechanic, but excluding supervisors of clerical and
technical employees, mine foremen, general assistant mine foremen, tipple
foremen, general master mechanic, mine superintendents, general superintend-
ent, assistant general superintendents, director of industrial labor relations,
safety director, chief engineer, chief of police, weighmasters, weighmaster's
clerks, training supervisor, safety inspector, dispatchers, and filter operators,
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 Clerical, Technical
and Supervisory Employees Union of the Mining Industry, Division of District
50, United Mine Workers of America, to bargain collectively with it on behalf
of the employees in the aforesaid appropriate unit
2 Take the tollowing affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request bargain with United Clerical, Technical and Supervisory
Employees Union of the Mining Industry, Division of District 50, United Mine
Workers of America, as the exclusive representative of all its employees in
the aforesaid appropriate unit, and if an understanding is reached, embody
such understanding in a written, signed agreement ;
(b) Post at its Vesta number 4, 5, and 6, mines and at its Shannopni Mine
located in Washington and Greene counties, Pennsylvania, and at the general
offices of its Vesta,5hannopin Coal Division, California, Pennsylvania, copies
of the notice attached to the Intermediate Report marked "Appendix A " Copies
of said notice, to be furnished by the Regional Director for the Sixth Region, after
being signed by the respondent's representative, shall be posted by the respondent
immediately upon the receipt thereof, and maintained by it for sixty (60) con-
secutive days thereafter, in conspicuous places, including all places where notices
to the supervisors of production and maintenance 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) days from the receipt of this Intermediate Report, what steps the
respondent has taken to comply therewith
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the 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
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Wash-
ington 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.
Immediately 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 other parties of all papers filed with the Board shall be
promptly made as required by Section 203.65. As further provided in said Sec-
tion 203 39, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days
from the date of service of the order transferring the ease to the Boaid.
JAMES A. SHAW,
Trial Exaniner.
Dated October 1, 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 Clerical,
Technical and Supervisory Employees Union of The Mining Industry,
Division of District 50, United Mine Workers of America, as the exclusive
representative of all employees in the bargaining unit described herein with
respect to rates of pay, hours of employment or other conditions of employ-
ment, and if an understanding is reached , embody such understanding in
a signed agreement . The bargaining unit is :
All supervisors of production and maintenance employees of the Jones
& Laughlin Steel Corporation Vesta-Shannopin Coal Division, Pittsburgh,
Pennsylvania, including fire bosses , mine crew foremen, assistant mine
foremen, maintenance bosses, mechanical bosses, and assistant general master
mechanics, but excluding supervisors of clerical and technical employees,
mine foremen , general assistant mine foremen , tipple foremen , general
master mechanics, mine superintendents, general superintendent, assistant
general superintendents, director of industrial labor relations, safety direc-
tor, chief engineer , chief of police , weighmasters , weighmaster 's clerks,
training supervisor, safety inspector, dispatchers, and filter operators.
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
exclusive representative of all our employees in the aforesaid described
appropriate unit.
JONES & LAUGHLIN STEEL CORPORATION,
(VESTA-SHANNON COAL DIVISION),
Employer.
Dated------------------------- By--------------------- ------------------
(Representative ) ( Title)