# United States Steel Corp. v. National Labor Relations Board > Court of Appeals for the Third Circuit · March 19, 1981 · 644 F.2d 286 URL: https://www.frixlaw.com/law-library/cases/8913004 ## Case - **Full name:** UNITED STATES STEEL CORPORATION, Inland Steel Company, Bethlehem Steel Corporation, Employers v. NATIONAL LABOR RELATIONS BOARD, District 2 Marine Engineers Beneficial Association—Associated Maritime Officers, AFL-CIO, District 2 Marine Engineers Beneficial Association—Associated Maritime Officers, AFL-CIO, Safety and Education Plan, United Steelworkers of America, Intervenors - **Court:** Court of Appeals for the Third Circuit - **Decided:** March 19, 1981 - **Citations:** 644 F.2d 286; 106 L.R.R.M. (BNA) 3045; 1981 U.S. App. LEXIS 19062 - **Precedential status:** Published - **Opinion:** Concurrence by Garth - **Judges:** Garth, Hunter, III - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8913004 ## Opinion text GARTH, Circuit Judge, concurring, with whom SAROKIN, District Judge, joins. I am in complete agreement with the majority’s conclusion that the students attending the licensing school were supervisory trainees lacking a community of interest with the unlicensed personnel remaining on the vessels. Thus, I join in the result reached by the majority. I write separately, however, to emphasize that in my opinion the central inquiry in this matter is whether the students attending the summer school remained members of the bargaining unit. My reading of the record satisfies me that the Board improperly included them in the bargaining unit. The record discloses that the expectations of both the steel companies and those employees selected to attend the school were such that the students involved would graduate to licensed positions. Assuming these expectations were fulfilled, the students would no longer be represented by United Steel Workers. As the majority points out, those students who attended .the school were paid sixty percent of their regular wages, with the remaining forty percent contingent upon their return to their former employers, in either a licensed or unlicensed capacity, for at least thirty days. Thus, although the students had no obligation to return to their former employers, and their former employers, in turn, did not have preferential hiring rights, the employers, in establishing this payment schedule, were clearly offering the forty percent payment as an incentive to both successful and unsuccessful students to return to their former companies. Viewed in this light, the evidence is compelling that the steel companies at no time intended to maintain the students’ status as bargaining unit employees. Given the companies’ objective of encouraging qualified employees to participate in the licensing program, the adoption of incentives as well as provisions to insure that unsuccessful students would not be in a worse position than they were before entering the program, is perfectly understandable. An examination of the language used by the Regional Director in certifying the Steel Workers as the exclusive bargaining representative of the employees of the steel companies and the language found in the relevant collective bargaining agreements, reveals unequivocally that the students were outside the bargaining unit. Both the terms of the Board certification and the terms of the parties’ agreements emphasize the physical presence of the employees on the vessel. Neither contemplates the inclusion in the bargaining unit of individuals who are not on board or employed on the vessels operated by their employers: NLRB Certification Language Contractual Definition of Bargaining Unit uss “All unlicensed seaman on board the employer's vessels . . (App. 8; 13) “All unlicensed personnel .. . employed on the fleet of Great Lakes vessels.” (App. 9; 13) Bethlehem “All unlicensed personnel on board the vessels, presently operated by the employer . . (App. 9; 13) “All unlicensed personnel .. . employed on all of the bulk freight vessels operated by . . . ” (App. 10; 13) Inland “All unlicensed personnel on board all vessels owned and/or operated by employer Inland (App. 8-9; 13) “All unlicensed personnel .. . employed on all bulk freight vessels . . . ” (App. 10; 13) Thus, the students who spent no time on board were clearly never intended to be members of the bargaining unit. Moreover, the evidence in this record discloses that any student who successfully completed the program not only would become a member of a new and perhaps com *292 peting union, but also would assume supervision over Local 5000, United Steel Worker members. The Supreme Court, writing in a similar context, noted that severe internal conflicts might ensue if competing interests were represented in the same unit: Here, even if, as the Board found, active and retired employees have a common concern in assuring that the latter’s benefits remain adequate, they plainly do not share a community of interests broad enough to justify inclusion of the retirees in the bargaining unit. Pensioners’ interests extend only to retirement benefits, to the exclusion of wage rates, hours, working conditions, and all other terms of active employment. Incorporation of such a limited-purpose constituency in the bargaining unit would create the potential for severe internal conflicts that would impair the unit’s ability to function and would disrupt the processes of collective bargaining. Moreover, the risk cannot be overlooked that union representatives on occasion might see fit to bargain for improved wages or other conditions favoring active employees at the expense of retirees’ benefits. (footnote omitted). Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172 , 92 S.Ct. 383, 394 , 30 L.Ed.2d 341 (1971). The potential for conflict which could “impair the unit’s ability to function and ... disrupt the processes of collective bargaining” is obvious under the instant circumstances. Taking into account these tensions, together with the lack of community interest discussed in the majority opinion, I conclude that the students were improperly included in the bargaining unit. I therefore concur in the majority’s decision to grant the companies’ petition for review and set aside the Board’s decision and order. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8913004. Public record. Not legal advice.