1. In the circumstances of this case, the militarization of
certain guards employed by a private plant engaged in war
production did not preclude the National Labor Relations Board from
grouping them in a separate unit for collective bargaining and
permitting them to choose as their bargaining representative a
union which also represented production and maintenance employees.
Pp.
331 U. S.
422-427.
2. The determination of the National Labor Relations Board that,
in the circumstances of this case, certain guards at a private
plant of the respondent engaged in war production, though employed
in accordance with a requirement of the War Department and enrolled
as civilian auxiliaries to the military police of the United States
Army subject to Army Regulations, were "employees" of respondent
within the meaning of § 2(3) of the National Labor Relations Act
was justified by the evidence and the law.
Labor Board v.
Atkins & Co., ante, p.
331 U. S. 398. P.
331 U. S.
422.
3. A proceeding under the National Labor Relations Act to
enforce a Board order requiring an employer to bargain with the
representative of militarized plant guards
held not
rendered moot by their subsequent demilitarization, in and of
itself.
Labor Board v. Atkins & Co., ante p.
331 U. S. 398. Pp.
331 U. S.
421-422.
4. The provision of § 10(e) of the National Labor Relations Act
that
"No objection that has not been urged before the Board, its
member, agent or agency, shall be considered by the court unless
the failure or neglect to urge such objection shall be excused
because of extraordinary circumstances"
refers to objections which might have been, but were not raised
in the original proceeding before the Board. P.
331 U. S.
427.
5. The reviewing court has power to consider an issue which has
come into existence since the proceeding was before the Board. Pp.
331 U. S.
427-428.
Page 331 U. S. 417
6. When circumstances arise after the Board's order has been
issued which may affect the propriety of enforcement of the order,
the reviewing court has discretion to decide the matter itself or
to remand it to the Board for further consideration. P.
331 U. S.
428.
7. In the circumstances of this case, it is unnecessary to
remand the case to the National Labor Relations Board for
consideration of the issue as to the status of plant guards who
were deputized as municipal policemen subsequently to the issuance
of the Board's order, there being nothing in the instant case which
would make inapplicable the Board's known policy with respect to
deputized guards. P.
331 U. S.
428.
8. The facts and law of this case would justify a determination
by the Board that the guards at the private plant in question were
"employees" within the meaning of § 2(3) of the National Labor
Relations Act, notwithstanding their deputization as municipal
policemen, and that they were entitled to select as their
bargaining agent a union which also represented production and
maintenance workers. Pp.
331 U. S.
429-431.
154 F.2d 932 reversed.
An order of the National Labor Relations Board, 53 N.L.R.B.
1046, issued under the National Labor Relations Act, was denied
enforcement by the Circuit Court of Appeals. 154 F.2d 932. (A
previous judgment, 146 F.2d 718, had been vacated and the case
remanded by this Court, 325 U.S. 838.) This Court granted
certiorari.
329 U. S. 710.
Reversed, p.
331 U. S.
431.
Page 331 U. S. 418
MR. JUSTICE MURPHY delivered the opinion of the Court.
Like
Labor Board v. Atkins & Co., ante, p.
331 U. S. 398,
this case involves the rights of militarized plant guards under the
National Labor Relations Act, 29 U.S.C. § 151
et seq. But
certain problems are raised here which are not present in the
Atkins case.
Respondent owns and operates several large steel manufacturing
works, and was engaged in the production of war materials during
the recent war. At respondent's Otis works at Cleveland, Ohio,
about 4,700 individuals are employed. Production and maintenance
employees constitute the great bulk of these workers. But there is
also included in the total a group of guards and watchmen,
numbering about sixty men normally.
A union affiliated with the United Steelworkers of America, CIO,
has been the exclusive bargaining agent for the production and
maintenance employees. Under a contract made with respondent late
in 1942, this union disclaimed any representation of "Foremen or
Assistant Foremen in charge of any classes of labor, watchmen,
salaried employees and nurses." On March 15, 1943, this union filed
a petition for investigation and certification of representatives
pursuant to § 9(c) of the Act, in which it sought to be certified
as the collective bargaining representative of the guard force. A
hearing was then held. Respondent claimed that a unit composed of
these guards was inappropriate because they "perform certain
assigned work that is strictly representative of management."
Respondent also claimed that any allegation by the union that a
unit including watchmen is appropriate was "a direct contravention"
of the 1942 contract. And it was further alleged that any
unionization of watchmen or guards was particularly inappropriate
during a time of war, that their duties "do not differ greatly from
the duties
Page 331 U. S. 419
performed by members of a city, county, or state police force,"
and that these guards had been sworn in as auxiliary military
police of the United States Army.
The testimony at the hearing showed that there were currently 72
plant protection employees. Of these, 58 were patrolmen whose sole
duty was to protect and guard the Otis Works; there were 2 firemen
to maintain the fire equipment; 2 dump laborers were assigned to
work at a refuse dump while watching that section of the plant, and
there were 8 lieutenants and 2 fire captains supervising the
others. All of them were carried on respondent's payroll, and were
under respondent's control as to pay, benefits, and conditions of
employment. And, as respondent had alleged, they had been sworn in
as civilian auxiliaries to the military police of the United States
Army, in the same manner and under the same conditions as detailed
in the
Atkins case.
On May 3, 1943, the Board issued its decision and direction of
election. 49 N.L.R.B. 390. It found that
"all patrolmen, watchmen, and firemen, including dump laborers,
employed by the Company at its Otis Works, but excluding
lieutenants, captains and supervisors"
constituted an appropriate unit, and that an election should be
held by the employees in this unit to determine if they desired to
be represented by the Steelworkers union. It rejected all of
respondent's contentions, pointing out, among other things, that
the union, while representing production and maintenance employees,
intended to bargain for the plant guards and watchmen as a separate
unit.
The election resulted in the selection of the Steelworkers union
as the bargaining representative of the unit in question. The union
was certified as the exclusive representative of the unit,
respondent refused to bargain with the union, and the Board issued
its complaint based upon that
Page 331 U. S. 420
refusal. On December 2, 1943, the Board reaffirmed the
appropriateness of the unit and found that respondent had committed
unfair labor practices in refusing to bargain. The usual order was
entered. 53 N.L.R.B. 1046.
The Sixth Circuit Court of Appeals denied the Board's petition
for a decree enforcing its order. 146 F.2d 718. While upholding the
Board's determination that the militarized guard forces were
employees within the meaning of the National Labor Relations Act,
the court felt that the unit selected for bargaining purposes was
inappropriate, and reflected a disregard by the Board of the
national welfare. In the eyes of that court, the Board's fatal
error was its authorizing the militarized guards to join the same
union which represented the production and maintenance employees,
because,
"when they were inducted into the Unions and became subject to
their orders, rules, and decisions, the plant protection employees
assumed obligations to the Unions and their fellow workers which
might well, in given circumstances, bring them in conflict with
their obligation to their employers, and with their paramount duty
as militarized police of the United States Government."
146 F.2d at 722.
The Board filed a petition in this Court for a writ of
certiorari. As in the
Atkins case, the Board pointed out
that the plant protection employees had been demilitarized at a
date (May 29, 1944) subsequent to the refusals to bargain, but
urged that this fact did not make the case moot. We granted the
writ of certiorari at the same time as we granted the writ in the
Atkins case, vacated the judgment below, and remanded the
cause to the Circuit Court of Appeals
"for further consideration of the alleged changed circumstances
with respect to the demilitarization of the employees involved, and
the effect thereof on the Board's orders."
325 U.S. 838.
Page 331 U. S. 421
The Board and the respondent then entered into a stipulation
relative to the dates and circumstances of the demilitarization of
the guards. From this stipulation it appeared that the
qualifications, strength, functions, and duties of the guards
continued to be the same after demilitarization as before. Also
included in the stipulation were facts showing that, both before
and after the period of militarization, August 5, 1942, to May 29,
1944, the guards were commissioned, sworn, and bonded as private
policemen of the City of Cleveland and exercised "the legal powers
of peace officers in their work as plant guards." It was further
stipulated that, because of
"the magnitude and other characteristics of the Otis Works, its
police protection by the ordinary police of the City of Cleveland
is not practical or feasible, and, as a result, for a great many
years, the police protection of the Works and the enforcement of
law, peace, and good order therein has been delegated wholly to the
plant guard force. For similar reasons, the work of preventing and
extinguishing fires has been, in large part, the responsibility of
the guard force, rather than that of the municipal fire
department."
The Board filed a motion in the Circuit Court of Appeals for a
decree enforcing its order. That court denied the motion, and held
that the facts concerning both the demilitarization and
deputization were to be considered as though they had been
presented at the hearing before the Board; on that basis, the court
reaffirmed its belief that the guards were employees within the
meaning of the Act, but concluded that, in view of the "drastic
police powers" exercised by the guards, it was "improper for the
Board to permit their organization by the same union which
represents the production employees." 154 F.2d 932, 934.
Our decision in the
Atkins case makes clear that the
demilitarization of the guards did not render this case
Page 331 U. S. 422
moot. The order was a continuing command which may be
effectuated in the future. But, unless the order was valid when it
was issued, there is no basis whatever for it, and no court can
decree its enforcement in the future. Hence, its validity must be
judged as of the time when it was issued, a time when the guards
were still militarized. This is not to say, however, that events
subsequent to demilitarization are irrelevant in deciding whether
the order should be enforced. All that we hold is that
demilitarization, in and of itself, is not enough to render the
order or the case moot.
The
Atkins decision likewise disposes of any issues
relating to the effect of militarization upon the status of the
guards as employees within the meaning of § 2(3) of the National
Labor Relations Act. To that extent, the Board's order here was
plainly valid. Unanswered by the
Atkins decision, however,
is the question whether the militarization of the plant guards
precluded the Board from grouping the guards in a separate unit and
permitting them to choose as their bargaining representative a
union which also represented production and maintenance employees.
To that issue, which is the primary one raised by this case, we now
turn.
The Board, of course, has wide discretion in performing its
statutory function under § 9(b) of deciding "the unit appropriate
for the purposes of collective bargaining."
Pittsburgh Plate
Glass Co. v. Labor Board, 313 U. S. 146. It
likewise has discretion to place appropriate limitations on the
choice of bargaining representatives should it find that public or
statutory policies so dictate. Its determinations in these respects
are binding upon reviewing courts if grounded in reasonableness.
May Dept. Stores Co. v. Labor Board, 326 U.
S. 376,
326 U. S. 380.
A proper determination as to any of these matters, of course,
necessarily implies that the Board has given due consideration
Page 331 U. S. 423
to all the relevant factors, and that it has correlated the
policies of the Act with whatever public or private interests may
allegedly or actually be in conflict.
Thus, in determining the proper unit for militarized guards and
in deciding whether they should be permitted to choose the same
union that represents production and maintenance employees, the
Board must be guided not alone by the wishes of the guards or the
union or by what is appropriate in the case of nonmilitarized
guards. It must also give due consideration to the military duties
and obligations of the guards, and their possible relationships to
a union representing other employees; it must consider what
limitations, if any, on the normal freedom to choose whatever
representative the guards may desire are necessitated by the war
effort.
It is clear that the Board has given these matters due
consideration. It has not acted in this case in disregard of the
national welfare. Sanctioning the creation of a separate unit of
respondent's guards and permitting them to select a union of their
own choosing, a union which happened to be the representative of
the production and maintenance employees, are indicative of a
considered, mature judgment on the Board's part. The problem has
been raised in many cases before the Board, and its conclusion is
in accord with that reached by the War Department.
In
Chrysler Corp., 44 N.L.R.B. 881,
Dravo
Corp., 52 N.L.R.B. 322, and
Armour and Co., 63
N.L.R.B. 1200, the Board has spelled out the various considerations
that have led it to adopt the policy applied in this case. Those
cases reveal the Board's belief that freedom to choose a bargaining
agent includes the right to select an agent which represents other
employees in a different bargaining unit. This principle may safely
be applied to militarized guards, in the Board's opinion, since the
collective bargaining
Page 331 U. S. 424
process is flexible enough to allow for the increased
responsibilities placed upon the militarized guards. And the Board
has concluded that the remedy for inefficiency or willful disregard
or neglect of duty on the part of such guards lies in the power of
the employer to discipline or discharge them, and in the power of
the military authorities to take whatever steps may be necessary to
protect the public interest. Moreover, the Board has discovered no
serious question as to any conflict between loyalties to the Army
and to the union, the Board finding no basis to assume that
membership in a union tends to undermine the patriotism of
militarized guards or that loyalty to the United States would be
secondary in their minds to loyalty to the union. But one
restriction is placed upon the statutory freedom of the militarized
guards. The Board insists that they be placed in separate
bargaining units, so that they may be better able to function
within the military sphere and so that the military authorities may
be able to exercise greater control over them.
This policy of the Board coincides with that expressed in the
regulations of the War Department. As we pointed out in the
Atkins case,
supra, the military authorities have
given full sanction to collective bargaining on the part of
militarized guards, provided only that such action does not
interfere with their military obligations. Paragraph 6h(2) of
Circular No. 15, issued on March 17, 1943, by Headquarters, Army
Service Forces, acknowledges with approval the Board's policy of
permitting militarized guards to be represented in collective
bargaining with the management by a bargaining unit other than that
composed of the production and maintenance workers, even though
both bargaining units may be affiliated with the same labor
organization. A clarifying memorandum of the War Department, dated
July 10, 1943,
Page 331 U. S. 425
reiterates the War Department attitude still further:
"In the event that plant guards enrolled as Auxiliary Military
Police desire to be represented in collective bargaining with the
management, they should be represented by a bargaining unit other
than that representing the production and maintenance workers.
However, in such event, both bargaining units may be affiliated
with the same trade union local, provided they are, in fact
separate bargaining units."
We are unable to say that the policy formulated by the Board is
without reason. When the employer retains unfettered power to fix
the wages, hours, or other working conditions of militarized
guards, the guards stand in the same relation to the employer
regarding those matters as do production and maintenance employees.
In disputes with the employer over those matters, they suffer from
the same inequality of bargaining power as suffered by other
unorganized employees; the appropriateness and need of collective
bargaining on their part through freely chosen representatives are
equally as great. But to prevent them from choosing a union which
also represents production and maintenance employees is to make the
collective bargaining rights of the guards distinctly second-class.
Such a union may be the only one willing and able to deal with the
employer. Its experience and acquaintance with the employer and the
plant may make it specially qualified to bargain for the guards.
The guards might thus be deprived of effective bargaining rights if
they are denied the right to choose such a union. Freedom to
choose, in this statutory setting, must mean complete freedom to
choose any qualified representative unless limited by a valid
contrary policy adopted by the Board.
After deliberation, the Board has concluded that this freedom
can safely be recognized to the fullest extent as
Page 331 U. S. 426
to militarized guards, provided only that they be placed in
separate bargaining units. We cannot say that this conclusion is
one so lacking in an appreciation of the military necessities of
the situation that we should voice our disapproval and substitute
our own views of public policy. It is significant that the Board,
in weighing the military requirements against the normal policies
of the Act, has arrived at a result which coincides with that
reached by the War Department. The latter agency has been satisfied
that militarized guards can safely join and choose unions
representing other employees without impairing their loyalty to the
United States or their ability to perform their military duties
satisfactorily. We assume that attitude was adopted after a full
consideration of all the military necessities, matters which are
peculiarly within the competence and knowledge of the War
Department. In light of that fact, it is impossible to say that a
civilian agency erred in failing to insist upon what the military
experts found to be unnecessary. To prohibit militarized guards
from joining or choosing unions representing production and
maintenance workers on grounds of military necessity is to erect
limitations which not even those most familiar with the military
situation thought essential or desirable. And, in this nation, the
statutory rights of citizens are not to be readily cut down on
pleas of military necessity, especially pleas that are unsupported
by military authorities. Certainly it would take more than the
speculation and theories advanced by the court below to undermine
the foundation of the policy adopted in this respect by the
Board.
Moreover, the experience of the Board has revealed none of the
dire consequences which the court below feared might flow from the
application of the policy in question. 146 F.2d at 722, 723. In its
brief before us, the Board has stated that it has certified
bargaining representatives for
Page 331 U. S. 427
units of militarized guards in more than 105 cases; in more than
80 of these cases, the certified union also represented a separate
bargaining unit of other employees of the same employer. Employer
recognition of the unions, collective bargaining, and contractual
relations have resulted in many instances. Yet the Board states
that it has received
"no indication from any source that the dangers to the public
interest, and particularly to the war effort, which the courts
below thought to inhere in that policy have in fact materialized in
any case."
One final matter remains. After the Board's order was issued,
and after the guards at respondent's Otis Works were demilitarized,
the guards were deputized by the police authorities of the City of
Cleveland. The Board claims that, since this matter was not raised
before it, the court below was precluded by § 10(e) of the Act from
considering the effect of the deputization upon the propriety of
enforcing the Board's order.
Labor Board v. Newport News
Co., 308 U. S. 241,
308 U. S.
249-250;
Marshall Field & Co. v. Labor
Board, 318 U. S. 253;
Labor Board v. Cheney Lumber Co., 327 U.
S. 385.
But the provision of § 10[e] that
"No objection that has not been urged before the Board, its
member, agent, or agency, shall be considered by the court unless
the failure or neglect to urge such objection shall be excused
because of extraordinary circumstances"
quite obviously refers to objections that might have been, but
were not, raised in the original proceeding before the Board. In
this case, however, the deputization of the guards occurred after
the Board had concluded its hearing and issued its order, and after
the court below had refused the first time to enforce the order. It
was thus a matter which could not have been raised before the
Board. And the failure of respondent to raise the then nonexistent
issue before the Board could not deprive the court below of power
to
Page 331 U. S. 428
consider the issue once it did come into existence.
See
Labor Board v. Blanton Co., 121 F.2d 564, 571.
When circumstances do arise after the Board's order has been
issued which may affect the propriety of enforcement of the order,
the reviewing court has discretion to decide the matter itself or
to remand it to the Board for further consideration. For example,
where the order obviously has become moot, the court can deny
enforcement without further ado; but where the matter is one
involving complicated or disputed facts or questions of statutory
policy, a remand to the Board is ordinarily in order. In this case,
however, the Board and the respondent have stipulated the facts
concerning the deputization of the guards. The only issue is
whether the deputization is so inconsistent with the policies of
the Act that the statutory guarantees must be denied to the guards
and the enforcement of the Boar's order refused. That issue is one
normally to be determined by the Board in the first instance, it
being the function of the Board, rather than the courts initially
to correlate the policies of the Act with conflicting interests.
But we do not believe that a remand is necessary under the special
circumstances of this case.
The Board has frequently considered the status of plant guards
who have been deputized as deputy sheriffs or special police. Where
the private employer retains the right to fix the wages, hours or
other working conditions of such guards, the Board's uniform
conclusion has been that they are employees of the private employer
and that they retain their rights under the National Labor
Relations Act.
See e.g., Luckenbach Steamship Co., 2
N.L.R.B. 181, 189;
American-Hawaiian Steamship Co., 10
N.L.R.B. 1355, 1363-1364;
American Brass Co., 41 N.L.R.B.
783, 785;
Bethlehem-Fairfield Shipyard, Inc., 61 N.L.R.B.
901, 905-906;
Standard Steel Spring Co.,
Page 331 U. S. 429
62 N.L.R.B. 660, 662-663. As in the case of militarized guards,
the Board has found no evidence that, when deputized guards join
unions or engage in collective bargaining through freely chosen
representatives their honesty, their loyalty to police authorities,
or their competence to execute their police duties satisfactorily
is undermined. It is sufficient, in the Board's judgment, to
protect the special status of these guards by segregating them in
separate bargaining units.
We find it impossible to say that the Board is wrong in adopting
this policy as to deputized guards. It is a common practice in this
country for private watchmen or guards to be vested with the powers
of policemen, sheriffs or peace officers to protect the private
property of their private employers. And when they are performing
their police functions, they are acting as public officers and
assume all the powers and liabilities attaching thereto.
Thornton v. Missouri Pacific R. Co., 42 Mo. App. 58;
Dempsey v. New York Central & Hudson River R. Co., 146
N.Y. 290, 40 N.E. 867;
McKain v. Baltimore & Ohio R.
Co., 65 W.Va. 233, 64 S.E. 18;
Neallus v. Hutchinson
Amusement Co., 126 Me. 469, 139 A. 671. But it has never been
assumed that such deputized guards thereby cease to be employees of
the company concerned or that they become municipal employees for
all purposes.
See Chicago & N.W. R. Co. v. McKenna, 74
F.2d 155. Wages, hours, benefits, and various other conditions of
work normally remain subject to determination by the private
employers. At least as to those matters, the deputized guards
remain employees of the private employers.
See Walling v.
Merchants Police Service, 59 F. Supp.
873. Hence, they may be held to be employees within the meaning
of § 2(3) of the National Labor Relations Act.
Labor Board v.
Hearst Publications, 322 U. S. 111.
Page 331 U. S. 430
Deputized guards bear the same relationship to management that
nondeputized guards bear -- a relationship that we discussed in the
Atkins case,
supra, and that we found to be
adequate for the Board to find the existence of an
employer-employee status. Likewise, their relationship to police or
municipal authorities is not one that is necessarily inconsistent
with their status as employees under the Act. Union membership and
collective bargaining are capable of being molded to fit the
special responsibilities of deputized plant guards, and we cannot
assume, as a proposition of law, that they will not be so molded.
If there is any danger that particular deputized guards may not
faithfully perform their obligations to the public, the remedy is
to be found other than in the wholesale denial to all deputized
guards of their statutory right to join unions and to choose freely
their bargaining agents. The state and municipal authorities, in
short, have adequate means of punishing infidelity and assuring
full police protection.
We find nothing in the instant case which would make
inapplicable the Board's policy with respect to deputized guards,
and the Board has so argued before us. The stipulated facts reveal
that the guards at respondent's Otis Works were commissioned as
private policemen of the City of Cleveland under § 188 of the
Cleveland Municipal Code (1924), and, as such, are members of the
municipal police force and exercise the legal powers of peace
officers in their work as plant guards. They are under the control
of a police captain and his lieutenants, the police captain being
directly responsible to respondent's director of plant security at
Pittsburgh and to respondent's executive officer in general charge
of the Otis Works. The police captain is also a deputy sheriff of
Cuyahoga County, Ohio. It is not denied that the guards continue to
be paid by respondent, and that their hours, benefits, and other
conditions of work remain the responsibility of respondents.
Page 331 U. S. 431
The court below pointed out that the Ohio law on the status and
duties of special policemen is in accord with the general rule
which we have noted. In other words, special policemen are public
officers when performing their public duties.
New York, Chicago
& St. Louis R. Co. v. Fieback, 87 Ohio St. 254, 100 N.E.
889;
Pennsylvania R. Co. v. Deal, 116 Ohio St. 408, 156
N.E. 502. But none of the Ohio cases attempts to say that the
public status of special policemen destroys completely their
private status as employees of individual companies. Nor is there
any basis for the intimation that their public duties are such as
to render incompatible the recognition of rights under the National
Labor Relations Act.
We therefore conclude that the facts and the law are
sufficiently clear to justify a determination that the guards at
respondent's Otis Works are employees within the meaning of the
Act, despite their deputization as municipal policemen. And they
have as much right to select as their bargaining agent a union
which represents production and maintenance workers as have
militarized guards, the same considerations being applicable. It is
obvious that the Board would apply such a policy to this case,
thereby making a remand to the Board a mere formality and a
needless addition to an already over-prolonged proceeding. Under
such circumstances, a remand to the Board is unnecessary.
It follows that the court below should have enforced the Board's
order.
Reversed.
THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON,
and MR. JUSTICE BURTON dissent substantially for the reasons set
forth in the opinion of the court below, 154 F.2d 932.