NATIONAL LAB. REL. BOARD v. Jones & Laughlin Steel Corp.

• Decision Date: 10 February 1945
• Docket Number: No. 9730,9769.,9730
• Citation: 146 F.2d 718
• Parties: NATIONAL LABOR RELATIONS BOARD v. JONES & LAUGHLIN STEEL CORPORATION. SAME v. FEDERAL MOTOR TRUCK CO.
• Court: U.S. Court of Appeals — Sixth Circuit

146 F.2d 718 (1944)

NATIONAL LABOR RELATIONS BOARD v. JONES & LAUGHLIN STEEL CORPORATION.

SAME v. FEDERAL MOTOR TRUCK CO.

Nos. 9730, 9769.

Circuit Court of Appeals, Sixth Circuit.

December 8, 1944.

As Amended February 10, 1945.

F. J. Donner, of Washington, D. C. (Alvin J. Rockwell, Malcolm F. Halliday, Ida Klaus, and Marcel Mallet-Prevost, all of Washington, D. C., on the brief), for petitioner.

John C. Bane, Jr., of Pittsburgh, Pa. (Reed, Smith, Shaw & McClay and Paul J. Winschel, all of Pittsburgh, Pa., of counsel), for respondent.

In No. 9769:

F. J. Donner, of Washington, D. C. (Alvin J. Rockwell, Malcolm F. Halliday, Frank Donner, and Irene Shriber, all of Washington D. C., on the brief), for petitioner.

Hal H. Smith, of Detroit, Mich. (Albert E. Meder and Beaumont, Smith & Harris, all of Detroit, Mich., on the brief), for respondent.

T. R. Iserman, of New York City (Rathbone, Perry, Kelley & Drye and Nicholas Kelley, all of New York City, on the brief), for Chrysler Corp., amicus curiæ in both cases.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

HICKS, Circuit Judge.

For these cases one opinion will suffice. No jurisdictional question is involved.

In the Jones & Laughlin case, No. 9730, the petitioner, herein called the Board, seeks the enforcement of an order directing respondent to bargain collectively with United Steel Workers of America (C. I. O.), herein called the Union, as the exclusive representative of all its patrolmen, watchmen, firemen, including "dump laborers," herein called plant protection employees, employed by respondent at its Otis Works, but excluding lieutenants, captains and supervisors. There is included in the membership of this Union, not only plant protection employees, but production employees as well.

In the Federal Motor Truck Company case, No. 9769, the Board seeks the enforcement of an order directing respondent to bargain collectively with Amalgamated Plant Protection Local No. 114, U. A. W. (C. I. O.), herein called the Union, as the exclusive representative of all its plant protection employees at its three Detroit plants, excluding the plant engineer, the assistant chief of plant protection, and all supervisory employees.

The enforcement of the orders is resisted by respondents.

These orders were based upon records made before trial examiners, including results of elections held by direction of the Board, in which the majority of the plant protection employees, in each case, selected the Unions indicated, as their exclusive representatives for the purpose of collective bargaining with respect to rates of pay, wages, hours and other conditions of employment. In each case the Board affirmed the reports of intermediate examiners to the effect that the employees classified as "plant protection employees" constituted appropriate units for the purpose of collective bargaining within the meaning of Sec. 9(a) and (b) of the National Labor Relations Act, 29 U.S.C.A. § 159(a, b).

By subdivision (b) the duty of determining the unit of employees appropriate for the purpose of collective bargaining is placed specifically and exclusively upon the Board. Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 152, 61 S.Ct. 908, 85 L.Ed. 1251. But the Board's authority in making such determination is not an absolute one — it must be exercised within the permissible limits of administrative discretion and whether it did so in these cases is the principal question for review. Marlin-Rockwell Corp. v. National Labor Relations Board, 2 Cir., 116 F.2d 586, 587; National Labor Relations Board v. Delaware-New Jersey Ferry Co., 3 Cir., 128 F.2d 130, 137; National Labor Relations Board v. Botany Worsted Mills, 3 Cir., 133 F.2d 876, 880.

In determining an appropriate unit for collective bargaining, the Board is required by Sec. 9(b) to consider whether its order will insure employees the full benefit of their rights to self-organization and collective bargaining, and this involves the inquiry as to who are "employees," or to be more specific, whether "plant protection employees" are entitled to the benefits of the Act. Here, the Board must give consideration to Sec. 2(2) and (3). Subdivision (3) provides that "the term `employee' shall include any employee * * *," but subdivision (2) provides that "the term `employer' includes any person acting in the interest of an employer, directly or indirectly * * *."

Plant protection employees are "employees" when considered in their relationships to their employer (National Labor Relations Board v. Skinner & Kennedy Stationery Co., 8 Cir., 113 F.2d 667, 671) but we find it difficult to determine that they are "employers" when their relationship to their fellow employees is considered. However, under the facts pertaining to their duties as hereinafter set forth, we are unable to say that the Board exceeded the limits of its discretion in determining that plant protection employees are entitled to the protection of the Act. We think that, in determining this question, the Board properly accepted for its guidance the underlying economic facts of the cases in hand. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 129, 64 S.Ct. 851; National Labor Relations Board v. Blount, 8 Cir., 131 F.2d 585, 590; National Labor Relations Board v. Gluek Brewing Co., 8 Cir., 144 F.2d 847, 855.

The question as to who are employers or employees under the Act is usually presented in cases where some person or agency acting either directly or indirectly for the employer interferes or seeks to interfere with the rights of employees to organize. International Ass'n of Machinists, etc., v. National Labor Relations Board, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed 50; National Labor Relations Board v. Taylor-Colquitt Co., 4 Cir., 140 F.2d 92. That situation is not presented here.

Nevertheless the Board could not stop with its finding upon the facts that plant protection employees are entitled to the benefits of collective bargaining. It is required under Sec. 9(b) to go further and determine whether the unit or units selected for that purpose would effectuate "the policies of sections 151-166 of this title. * * *" In both cases respondents concede, as they must concede (Pittsburgh P. Glass Co. v. Board, supra) that the Board had wide discretion in determining whether the units selected were appropriate, and if so, whether their selection effectuated the policies of the Act. But each respondent has insisted from the beginning, and now insists, that in making such determinations the Board went clearly beyond the limits of its discretion. If this is true, the orders are invalid as a matter of law. Pittsburgh Plate Glass Co. v. National Labor Relations Board., 8 Cir., 113 F.2d 698, 701, affirmed 313 U.S. 146, 152, 61 S.Ct. 908, 85 L.Ed. 1251; Midland Steel Products Co. v. National Labor Relations Board, 6 Cir., 113 F.2d 800, 805.

We are confronted with a preliminary inquiry into the nature of the policies of the Act. These are set forth in its preamble, Title 29, Sec. 151, U.S.C.A., and we need not repeat them. It is sufficient to say that the fundamental purposes of the Wagner Act are to eliminate and prevent obstructions to the free flow of interstate commerce (National Labor Relations Board v. Fansteel Corp., 306 U.S. 240, 257, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599) and that in its administration, the Board acts in a public capacity and in the public interest.

In National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, at page 362, 60 S.Ct. 569, at page 576, 84 L.Ed. 799, the court said:

"The proceeding authorized to be taken by the Board under the National Labor Relations Act is not for the adjudication of private rights. Amalgamated Utility Workers v. Consolidated Edison Co. ante, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738, H. Rept. No. 1147, 74th Cong., 1st Sess., Committee on Labor, p. 24; cf. Federal Trade Commission v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed 138, 68 A.L.R. 838. It has few of the indicia of a private litigation and makes no requirement for the presence in it of any private party other than the employer charged with an unfair labor practice. The Board acts in a public capacity to give effect to the declared public policy of the Act to eliminate and prevent obstructions to interstate commerce by encouraging collective bargaining * * *."

In Amalgamated Workers v. Consolidated Edison Co., 309 U.S. 261, at page 265, 60 S.Ct. 561, at page 563, 84 L.Ed. 738, the court said:

"The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce."

In National Labor Relations Board v. Hearst Publications, supra, 322 U.S. 111, page 123, 64 S.Ct. 851, 857, the court said:

"The Wagner Act is federal legislation, administered by a national agency, intended to solve a national problem on a national scale."

In National Labor Relations Board v. Colten, 105 F.2d 179, 182, we said:

"This contention, however, ignores the essential nature of regulatory statutes of...