Bethlehem Steel Co. v. National Labor R. Board

Decision Date12 May 1941
Docket NumberNo. 7503,7538.,7503
Citation120 F.2d 641
CourtU.S. Court of Appeals — District of Columbia Circuit


Alfred McCormack, of New York City, pro hac vice, by special leave of court (Richard H. Wilmer, of Washington, D.C., and Fontaine Broun, of New York City, on the brief), for petitioners Bethlehem Steel Co. et al.

S. Ralph Warnken, of Baltimore, Md., for petitioner Association of Employees at Maryland Plant of Bethlehem Steel Co.

Ruth Weyand, Atty., National Labor Relations Board (Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, and Ernest A. Gross, Asst. Gen. Counsel, all of Washington, D. C., on the brief), for respondent.

Douglass D. Storey, of Harrisburg, Pa., for intervener Plan of Employees' Representation at Steelton, Pa., Plant.

Robert H. Driskill, of Washington, D. C., for intervener Plan of Employees' Representation at the Cambria Plant.

Lee Pressman, of Washington, D. C. (Joseph Kovner and Anthony Wayne Smith, both of Washington, D. C., on the brief), for intervener Steel Workers Organizing Committee.

Before STEPHENS, VINSON, and EDGERTON, Associate Justices.

EDGERTON, Associate Justice.

Bethlehem Steel Corporation and its iron and steel producing subsidiary Bethlehem Steel Company, here called petitioners, ask us to review and set aside1 an order of the National Labor Relations Board.2 Charges of unfair practices were filed with the Board by the Steel Workers Organizing Committee (S.W.O.C.), a union affiliated with the Congress of Industrial Organizations (C.L.O.), and a complaint was issued. Hearings before a Trial Examiner occupied several months. The Examiner issued an intermediate report, to which petitioners filed exceptions, and the case was argued orally before the Board.

The Board dismissed a number of charges, including violence, discriminatory discharge, offering inducements not to join S.W.O.C., and conducting a "back-to-work" movement so as to interfere with employees in the exercise of their rights. But the Board found that petitioners had dominated, interfered with, and contributed support to ten labor organizations, called "Plans of Employees' Representation," located respectively at the Company's Cambria, Lackawanna, Lebanon, Steelton, Maryland, Bethlehem, and Concentrator Plants, Rankin Works, Leetsdale Works No. 1 and Leetsdale Works No. 2, and had expressed to employees their animus against S.W.O. C.; that the Company petitioner had surreptitiously given money to the Mayor of Johnstown, Pennsylvania, to insure continuance of his anti-union attitude and conduct, and that the Corporation petitioner must be held responsible therefor; that petitioners had employed detectives to obtain, by surveillance, information about union activities; and that by this conduct petitioners, had interfered with, restrained, and coerced employees in the exercise of the rights, guaranteed by Section 7 of the Act, 29 U.S.C.A. § 157, to form or join labor organizations and to engage in concerted activities for the purposes of collective bargaining, etc. The Board concluded as matter of law that by dominating, etc., the Plans, petitioners had engaged and were engaging in unfair labor practices within the meaning of Section 8(2) of the Act, 29 U.S.C.A. § 158(2), and that by interfering with, restraining and coercing their employees in the exercise of rights guaranteed by Section 7, petitioners had engaged and were engaging in unfair labor practices within the meaning of Section 8(1) of the Act. The Board's order directs petitioners and their officers, agents, successors and assigns to cease from dominating or interfering with, or contributing support to, the Plans of Employee Representation at the ten named plants; from interfering with the formation or administration of any other labor organization; from recognizing the Plans as representing employees; and from in any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, to form or join labor organizations and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. The order also requires petitioners to withdraw all recognition from the Plans and completely disestablish them as employee representatives for bargaining purposes, and to post notices of compliance.

In its answer to the petition, the Board asks enforcement of its order. Two of the Plans intervene in support of the petition. S.W.O.C. intervenes in support of the order. A petition of the Plan (now the Association of Employees) at the Maryland Plant, to set aside the order, is consolidated with these proceedings.

The Board's ultimate findings, which are succinctly stated, rest on basic findings which occupy 100 pages of the record. These basic findings meet all tests except brevity, and their length does not invalidate them. We shall not undertake to summarize all of these basic findings. Some of them, together with some items of evidence, inferences, and comments, are to approximately the following effect:

(1) Petitioners created most of the Plans and issued their charters. In material respects, the charters are nearly identical. In 1918, petitioners devised them, and distributed copies to employees at some of the plants together with an announcement that the Plan "is to be established." In the course of a few years the charters were put into operation by the Company, at its various plants. For years the Company recognized that the Plans were created by it, or by it and the Corporation, as a unilateral act. Thus a pamphlet entitled "Hints to Foremen in Meeting the New Employee," which the Company distributed at some of the plants about 1920, instructed foremen to explain to new men that "the Company * * * has adopted the Plan of Employees' Representation" and that it "is one of the most important policies of the Company."

(2) Although majorities have voted in various Plan elections, it is not found, and there is no evidence, that a majority of the men in any of the plants have ever approved of the Plans, or have ever been given an opportunity to vote for or against them.3

(3) Petitioners have continued not merely to hold out the Plans as a part of Company policy but to facilitate and encourage voting in the Plans; to represent to employees that the Plans are beneficial to them; and to advise employees to support the Plans and not to join other unions — specifically, not to join the C.I.O. (S.W. O.C.). Up to 1937 the charters required the Company to pay all the expenses involved in the conduct of nominations and elections, and to pay Employees' Representatives, for time spent in Plan meetings or in any Plan activities, at the rate they ordinarily received for their work.

(4) The charters of the Plans preclude independence and embody Company dominance. The Plans have no power to admit, exclude, expel, control or discipline members. All non-supervisory employees, whatever their characters, abilities, or sympathies, automatically become members as soon as they have worked for the Company for 60 days. The charters severely limit the power of the Plans to choose their own representatives. "Employees' Representatives" must be (1) employees of the Company, (2) of at least one year's standing, (3) working in the department which elects them, and (4) adult American citizens. However much Plan members may wish to select as their representative a good bargainer or administrator who does not meet all four of those requirements, the Plan charters prevent it. The charters authorize practically no action by the membership, other than voting for Employees' Representatives. While the Employees' Representatives meet as a "General Body" or "Committee of Representatives" and choose committees, the charters also provide for Joint Committees composed of a group of Employees' Representatives and a group of Management Representatives. The two groups have equal voting power in the Joint Committees. There is a "Management's Special Representative", who may be and sometimes is invited to attend meetings of the Employees' Representatives. The charters provide for no meetings of members and set up no machinery for formulating demands or for controlling or instructing representatives. Meetings are not held in practice. The charters made no provision for the raising of funds, by dues or otherwise. Independent action in such circumstances is obviously impossible.

(5) Until 1935, the charters of the Plans could not be amended without the concurrence of Management Representatives in the Joint Committees on Rules. In 1935 and 1936, the charters were amended to permit further amendment by a two-thirds vote of the Employees' Representatives; but with important exceptions. One exception is that no amendment which "might prevent the Plan from operating as a fair method of selecting representatives of the whole body of employees of the Company and as a fair method of collective bargaining"4 can be made without the approval of the Joint Committee on Rules, in which the Company has half the voting power. Counsel for petitioners, and also counsel for the Association of Employees at the Maryland Plant, in identical language in their respective briefs, describe the exception which we have just quoted as being "in effect, a condition upon which the Company Petitioner will deal with the representatives of its employees in accordance with the procedure outlined." In other words, the Company requires, as a condition of dealing with a Plan, (1) that the Plan shall continue to receive and retain as a member, regardless of his conduct, principles, or...

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