PETITION FOR REVIEW NATIONAL LABOR RELATIONS BOARD BOARD NOS. 8-CA-12124, 8-CA-12125 AND 8-CA-12126
Before Hunter and Garth, Circuit Judges, and Sarokin,*fn* District Judge.
Petitioners United States Steel Corporation, Inland Steel Company, and Bethlehem Steel Corporation ("the steel companies") ask us to set aside an order and decision of the National Labor Relations Board ("the Board") requiring petitioners to bargain collectively with intervenor United Steel Workers of America ("the Union") with respect to wages and working conditions at a summer licensing school established by petitioners, intervenor District 2 Marine Engineers Beneficial Association-Associated Maritime Officers, AFL-CIO ("MEBA"), and intervenor District 2 Marine Engineers Beneficial Association-Associated Maritime Officers, AFL-CIO, Safety and Education Plan ("the Plan") to prepare unlicensed seamen for Coast Guard licensing examinations. The Board has filed a cross-application for enforcement of its order.*fn1 Because we find that the Board's order is not supported by substantial evidence, the petition for review to set aside the decision and order of the Board will be granted, and the Board's cross-application for enforcement will be denied.
The steel companies operate fleets of vessels that carry iron ore from the northern Great Lakes ports to the steelmaking centers in the south. Crews on these vessels are classified as either licensed or unlicensed personnel. Licensed personnel include captains, mates, engineers, and stewards; unlicensed personnel include watchmen, deck hands, oilers, firemen, firemen-maintenance and wipers. Unlicensed personnel on petitioners' iron-ore vessels are represented by Local 5000 of the Union. Licensed personnel are either unrepresented or represented by MEBA or the Masters, Mates & Pilots.
To supply petitioners and other employers with sufficient numbers of licensed personnel, MEBA and the Plan have annually operated winter schools in Toledo, Ohio to prepare employees to take Coast Guard licensing examination. Because of a shortage of licensed personnel, MEBA and the Plan had previously conducted summer licensing schools in 1973 and 1974.*fn2
By 1978, there was once again a shortage of licensed personnel to operate the Great Lakes vessels. On June 22, 1978, the Joint Training Advisory Committee*fn3 ordered the establishment of a special summer school to commence on July 31, 1978 for a period of ten to thirteen weeks. Petitioners selected ten unlicensed employees (five from United States Steel, two from Inland, and three from Bethlehem) to attend the school.
There was no provision in the collective bargaining agreement between the Union and the steel companies regarding a special licensing school. Petitioners chose seamen for the school on the basis of recommendations from supervisors. Employees who attended the school were paid sixty percent of their regular wages; the steel companies retained forty percent, its payment contingent upon an employee's return for at least thirty days. Petitioners provided travel and subsistence expenses for employees enrolling in the school. Payment was made twice monthly, rather than once per month as when the employees were sailing. The time spent at the school accrued towards vacation and year end bonuses provided for in the collective bargaining agreement. Petitioners suspended their normal practice of either checking off, or issuing separate checks for, union dues of unlicensed personnel attending the summer school. After successful completion of the course and licensing examination, employees were not obligated to return to their former employers.
On July 19, 1978, the Union filed unfair labor practice charges against the steel companies for refusing to bargain over wages, hours and other conditions of employment for employees attending the summer school. A hearing was held before an administrative law judge ("ALJ") who, in a decision and order issued on September 28, 1979, dismissed the Union's complaint because: 1) employees attending the summer school had no community of interest with unlicensed personnel on petitioners' ships; 2) the summer school students fell outside of the certified bargaining unit; 3) the employees at the summer school were supervisory or managerial trainees, and hence outside of the bargaining unit; and 4) the terms and conditions of employment at the summer school did not vitally affect bargaining unit employees.
In a decision and order of March 31, 1980,*fn4 the Board reversed the decision of the ALJ. The Board found
(T)he students here involved did not cease to be employees of Respondents (below) during their summer training but remained members of the units of unlicensed personnel employed by these Respondents. Accordingly, we find that the terms and conditions under which they attended the summer training school were mandatory subjects of bargaining and that Respondents' unilateral actions with respect to such terms and working conditions constituted violations of Section 8(a)(5) and (1) of the Act.
248 N.L.R.B. No. 90 at 6, reprinted in Appendix for Petitioners at 465a.
The Board ordered the steel companies to bargain collectively with respect to wages and working conditions of the summer school.
We must accept the Board's findings of violations of sections 8(a)(1) and 8(a) (5) of the National Labor Relations Act ("the Act") 29 U.S.C. §§ 158(a)(1) & (5) (1976), if they are supported by substantial evidence on the record as a whole, even if we would have resolved the issue differently in first instance. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951). We have examined the record in the case, but are unable to find substantial evidence to support the Board's finding that the students of the special summer school remained members of the units of unlicensed personnel employed by petitioners. Because we agree with the ALJ that ...