Before MAJOR, Chief Judge, KERNER and DUFFY, Circuit Judges.
DUFFY, C.J.: This proceeding is before the Court on a petition to review and set aside an order of the National Labor Relations Board*fn1 issued against petitioner on July 31, 1951; in its answer the Board requests enforcement of said order.
The petitioner, United States Steel Company,*fn2 owns and operates the Gary Steel Works at Gary, Indiana. The Joliet Coke Plant, located near Joliet, Illinois, is a department of Gary Steel Works. The Joliet Plant consists of four batteries of coke ovens, 70 ovens to a battery, and a boiler house, storage tanks, coal chutes and auxiliary equipment. The operation of the coke plant is continuous, 24 hours a day, 7 days a week.Oven temperatures from 1800 degrees to 2200 degrees F. or more are required to produce coke. During full production approximately 375 employees in all classifications work at the Joliet Plant in the manufacture of coke and coal chemicals.
A battery of coke ovens of the size operated at the Joliet Plant contains approximately 3,000,000 silica bricks and has about 18,000,000 joints. Silica bricks are very sensitive to temperature changes under 1150 degrees F. They are designed to be gas tight, but after being heated, if allowed to get cold will not be gas tight again. Any cooling down of coke ovens causes damage, and uncontrolled cooling is certain to cause great damage to the ovens, accompanied by danger and loss from explosion and fire. The danger resulting from the cooling of ovens was known to Superintendent Jones, who had been in the employ of the Joliet Coke Works prior to and during the steel strike of 1919. During that strike the production employees of the Joliet Coke Works walked out and the ovens were permitted to become cold. The resulting damage was so great that the ovens had to be rebuilt at a cost of $2,000,000, and the rebuilding took three years. At the time of the hearing herein before the trial examiner, the estimated cost of rebuilding, such as was done after the 1919 strike, was $9,000,000.
Superintendent Jones and other company officials well remembered the fires and explosions that occurred during the reheating of batteries after the 1919 strike, and upon other occasions. They realized the serious danger of fires and explosions during the period of the 1946 strike, as 82,373 gallons of benzol, 18,532 gallons of toluol, and 7,144 gallons of xylol, 5,251 gallons of crude solvent naphtha, and 1,189 gallons of naphthalene, all of which was explosive and highly combustible, were stored at the plant on January 20, 1946.
The United States Steel Workers of America, CIO (hereinafter called the union) began a strike against petitioner on January 20, 1946. The union was agreeable that the company maintain the coke ovens at the Joliet Plant during the strike period, but only on condition that every employee working in the plant during the strike was a member of the union. Some 22 production and maintenance employees at the Joliet Plant were not at that time members of the union. The company claimed that to grant the union demand that it employ only union employees to maintain the ovens would be to discriminate against its non-union employees contrary to the employment contract, and it refused to accede to the demand. The contract with the union did not include a closed shop or union shop provision.
When coke is not being produced, coke ovens are maintained at "idle hot," a temperature of approximately 1600 degrees F. Natural gas was not available in January, 1946, at the Joliet Plant to keep the ovens heated, and therefore the company concluded that during the strike period it would operate one battery of coke ovens at "normal operating temperatures" (1800 degrees to 2000 degrees F.) for the purpose of supplying coke oven gas to maintain the other 3 batteries at idle hot (1600 degrees F.) temperature.
Anticipating mass picketing at the gates, the company requested its 47 supervisors,*fn3 none of whom belonged to the union, to live at the plant during the strike, and most of them agreed to do so. All of them reported at the plant on Sunday, January 20. On January 23, 1946, by midnight, 22 supervisors left the plant, refusing for the remainder of the strike to perform the tasks assigned to them for the heating of the battery of ovens during the strike emergency, and on January 24, all of the 27 plant protection employees, who also were not members of the union, walked out of the plant, likewise refusing to perform their usual assignments for the duration of the strike. However, 25 supervisors did remain in the plant for the duration of the strike and performed duties assigned to them, maintaining the ovens at safe temperatures and protecting company property in other ways.
On March 18, 1946, each of the 27 plant protection employees and 20 of the 22 supervisors who had walked off their jobs, and whom the company had subsequently suspended, received a letter of discharge from the Superintendent of the Joliet Plant informing them that their pension rights would be preserved and their continuous service record unaffected provided they were rehired by any subsidiary of the United States Steel Company within six months.
The Board filed a complaint on February 8, 1950, alleging unfair labor practices by the company during February and March, 1946, with respect to the suspension and discharge of the 22 supervisors and 27 plant protection employees at the Joliet Plant.*fn4 The trial examiner issued his intermediate report on October 24, 1950, recommending that the complaint be dismissed. The examiner considered that the Board's decision in Carnegie-Illinois Steel Corp., Gary Steel Works, 84 N.L.R.B. 851 (hereinafter called the Gary case), affirmed by this Court, Albrecht v. N.L.R.B., 181 F.2d 652, was applicable, and held that the supervisors and guards were not unlawfully suspended and discharged and that the company had not engaged in unfair labor practices within the meaning of the Act.
About 9 months later, on July 31, 1951, the Board issued its decision and order herein, holding that the suspension and discharge of the supervisors and plant protection employees designated in the complaint was in violation of Secs. 8(1) and (3) of the Act. The Board ordered petitioner to cease and desist from discouraging concerted activities or membership in any labor organization of its employees, and from interfering with its employees in the right of self-organization or in engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection. It ordered petitioner to reinstate with full back pay 22 supervisors and 23 plant protection employees.
Referring to the findings and report of the trial examiner the Board said: "Because of the extent of our disagreement with the findings, conclusions, and recommended order of the Trial Examiner, we make our own findings, conclusions, and order, * * *." The Board also stated: "Such testimony or other evidence as is in conflict with our findings, and is not specifically discussed hereinafter, is not credited."
The Board recognized how very similar the situation was at the Joliet and Gary Coke Plants during January and February, 1946, saying: "Precisely stated, then, the issue before us is whether the conduct of the foremen (and the guards) in the instant case was so like that of the foremen in the Gary case as to require us to find that by such conduct they forfeited the protection of the Act." The Board then pointed out some differences in the strike situation at each plant, which it apparently considered as justifying a ruling in the Joliet case opposite to its ruling in the Gary case.
A comparison of the similarities and differences in the strike situation at the company's coke plants at Joliet and at Gary in January and February, 1946, therefore seems desirable. Operations at the Gary Plant were on a larger scale than at Joliet, since the Gary Coke Plant included 15 batteries having 1055 ovens constructed of the same type of silica brick as the Joliet ovens. The gas supply for the city of Gary was produced at the Gary Plant. During the strike at Gary, the duration of which was the same period as the strike at Joliet, the company maintained 3 batteries at Gary at normal operating temperatures, and the remaining 12 batteries did not produce coke and were kept at idle hot temperature of approximately 1600 degrees F. by the coke oven gas supplied by the 3 batteries operating normally. During the strike period the supervisors at Joliet and Gary worked 12 hour shifts. The same union represented the strikers at both plants. The attitude of the union at Joliet that it would permit only union employees to pass the picket lines was the same as that of the opinion at Gary. S. M. Jenks was general superintendent and L. F. Burress was division superintendent at both coke plants. The seniority of employees at the Joliet Plant was recognized at the Gary Plant.
Eighty-two supervisors at Gary refused to remain at the plant during the strike and perform duties assigned to them, including the protection of the physical plant. The Board dismissed the complaint brought upon behalf of the discharged supervisors, saying: "* * * we believe that the complainants owed a duty to the respondent, inherent in their position as supervisors, to comply with all reasonable instructions designed to protect respondent's physical plant from imminent damage or destruction." The Court specifically approved of the language of the Board in the Albrecht opinion, supra, saying, p. 658:
"In the instant case, in view of the peculiar susceptibility of the respondent's plant to crippling damage from an abrupt shut-down of its operations, the respondent was entitled to have in supervisory positions persons on whom it could depend for emergency duty, to forestall destruction of key plant facilities, and it was not unlawful for it to discharge those of its supervisors who, by walking out or ...