Ruth Weyand, of Washington, D.C., for petitioner.
Mr. Frederic D. Anderson, of Indianapolis, Ind., for respondent.
Mr. Justice MURPHY delivered the opinion of the Court.
The problem posed by this case is whether private plant guards, who are required to be civilian auxiliaries to the military police of the United States Army, are employees within the meaning of 2(3) of the National Labor Relations Act, 29 U.S.C. 152(3), 29 U.S.C.A. 152(3).
At all material times, the respondent corporation was engaged in the manufacture of saws, tools and armor plate. It employed more than 1,200 production and maintenance employees at its two plants at Indianapolis, Indiana. Before it began to produce armor plate for defense and war purposes, respondent employed about six watchmen or guards. When it entered upon war production, however, the War Department required that an auxiliary military police force of sixty-four members be established to guard the plants.
In1943, afte r the necessary additional guards had been recruited, a union1 petitioned the National Labor Rela- [331 U.S. 398 , 400] tions Board for investigation and certification of representatives pursuant to 9(c) of the Act, 29 U.S.C.A. 159(c). It was alleged that the union represented the sixty-four plant guards employed by respondent at its two plants. The respondent moved to dismiss the petition on the ground that it was not the employer of the guards within the meaning of 2(2) and that the guards were not employees as defined by 2(3). A hearing was thereupon held and evidence concerning the status of the guards was introduced.
On October 19, 1943, the Board concluded from the evidence thus submitted that these plant guards were employees within the meaning of 2( 3) despite their status as civilian auxiliaries to the military police. 52 N.L.R.B. 1470. It held that all the plant guards at respondent's two plants, excluding the chief guards, lieutenants and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constituted a unit appropriate for collective bargaining. An election was therefore directed to be held, which resulted in the union in question being chosen as bargaining representative. The union was certified by the Board as the exclusive representative of the plant guards.
Subsequently, the union filed charges that the respondent had refused to bargain collectively. A complaint was issued by the Board, followed by a hearing at which evidence regarding that refusal was introduced. The Board, on May 30, 1944, issued its decision in which it concluded that the guards were employees of respondent and that the latter had committed unfair labor practices in refusing to bargain with the union. 56 N.L.R.B. 1056. [331 U.S. 398 , 401] The Board accordingly issued an order requiring respondent to cease and desist from refusing to bargain collectively with the union, and commanding it to bargain with the union, upon request, in respect to rates of pay, wages, hours of employment and other conditions of employment. The Seventh Circuit Court of Appeals declined to enforce the Board's order, holding (1) that the guards were not employees of the respondent within the meaning of 2(3) of the Act since they were militarized, and (2) that even if the militarized guards were to be considered as employees of respondent, enforcement of the Board's order should not be allowed because to do so would be or would likely be inimical to the public welfare. 147 F. 2d 730.
In filing a petition in this Court for a writ of certiorari, the Board noted that the guard forces at respondent's plants had been demilitarized early in 1944, but urged that the case was not thereby rendered moot. We granted certiorari, vacated the judgment below and remanded the case 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 .
The Board and the respondent entered into a stipulation relative to the dates and circumstances of the demilitarization of the guards. The stipulation noted that most of the guards had been released from service and that only eleven of them had been retained as watchmen by respondent as of February 23, 1946; and those eleven had been 'sworn in as Deputy Policemen by the City of Indianapolis.' The Board then filed a motion in the Circuit Court of Appeals for a decree enforcing its order. This motion was denied and the prior holding was reaffirmed, the court stating that the demilitaization was irrevelant to the issue of whether the plant guards were [331 U.S. 398 , 402] employees at the time when the respondent refused to bargain with the union. 7 Cir., 155 F.2d 567. The importance of the problem raised by the case, together with a conflict over the answer to this problem between the court below and the Sixth Circuit Court of Appeals, National Labor Relations Board v. Jones & Laughlin Steel Corp., 146 F.2d 718, prompted us to grant a further review of the case.
We agree with the Circuit Court of Appeals that the demilitarization of the guards did not render the case moot and that it had no effect upon the prime issue in the case. The Board's order was based upon a holding that the respondent committed an unfair labor practice by refusing to recognize and bargain with the union selected by the militarized guards. And that refusal occurred at a time when the guards were still militarized. A determination that the respondent had a statutory duty to bargain with the union at that time is therefore essential to the validity of the Board's order. The fact that the guards were subsequently demilitarized did not affect their status as employees at this crucial juncture; nor did it relieve respondent of any duty to bargain that it might otherwise have had at that point.
The Board's order, moreover, was a continuing direction to bargain collectively with the union designated by the guards. Demilitarization has not dispensed with whatever duty respondent may have now or in the future to comply with that order. If the guards were employees of respondent entitled to the benefits of the Act during the period of militarization, a fortiori they are employees now that all connections with the Army have been severed; and their statutory rights continue to be entitled to full respect. Respondent's guard force still remains in existence, although considerably reduced in size, and the union presumably continues to be the representative of the guards. Under such circumstances, the case is not moot. National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271 , 576, 115 A.L.R. 307; J.I. [331 U.S. 398 , 403] Case Co. v. National Labor Relations Board, 321 U.S. 332, 334 , 578. See also Federal Trade Commission v. Goodyear Tire & Rubber Co., 304 U.S. 257, 260 , 864.
As to the merits, it is elementary that the Board has the duty of determining in the first instance who is an employee for purposes of the National Labor Relations Act and that the Board's determination must be accepted by reviewing courts if it has a reasonable basis in the evidence and is not inconsistent with the law. National Labor Relations Board v. Hearst Publications, 322 U.S. 111 . Realizing that labor disputes and industrial strife are not confined to those who fall within ordinary legal classifications. Congress has not attempted to spell out a detailed or rigid definition of an employee or of an employer. The relevant portion of 2(3) simply provides that 'The term 'employee' shall include any employee, * * *.' In contrast, 2(2) states that 'The term 'employer' includes any person acting in the interest of an employer, directly or indirectly, * * *.' As we recognized in the Hearst case, the terms 'employee' and 'employer' in this statute carry with them more than the technical and traditional common law definitions. They also draw substance from the policy and purposes of the Act, the circumstances and background of particular employment relationships, and all the hard facts of industrial life.
And so the Board, in performing its delegated function of defining and applying these terms, must bring to its task an appreciation of economic realities, as well as a recognition of the aims which Congress sought to achieve by this statute. This does not mean that it should disregard the technical and traditional concepts of 'employee' and 'employer.' But it is not confined to thos concepts. It is free to take account of the more relevant economic and statutory considerations. And a determination by the Board based in whole or in part upon those considerations is entitled to great respect by a reviewing court, due to the [331 U.S. 398 , 404] Board's familiarity with the problems and its experience in the administration of the Act.
Laying aside for the moment the matter of militarization, we cannot say in this case that the Board would be legally unjustified in holding that the rank and file plant guards are employees within the meaning of the Act. They bear essentially the same relation to management as maintenance and production employees. In fact, they are indistinguishable from ordinary watchmen, gatemen, patrolmen, firemen and guards-persons who have universally been regarded and treated as employees for purposes of union membership and employee benefits. They perform such duties as inspecting persons, packages and vehicles, carrying cash to various parts of the plant, and generally surveying the premises to detect fires, suspicious circumstances and sabotage. Moreover, the guards in question are not supervisors; they possess no power to affect the working conditions of other employees. Without collective bargaining, they are subject to the unilateral determination by the employer of their wages, hours, seniority, tenure and other conditions of work. Individually, they suffer from inequality of bargaining power and their need for collective action parallels that of other employees. From any economic or statutory standpoint, the Board would be warranted in treating them as employees. Even under conventional standards, they are controlled by management to an extent sufficient to justify designating them as employees.
Nor can we say, as a matter of law, that permitting plant guards to be considered as employees entitled to the benefits of the Act would make them any less loyal to their employer in carrying out their designated tasks. In guarding the plant and personnel against physical danger, they represent the management's legitimate interest in plant protection. But that function is not necessarily inconsistent with organizing and bargaining with the em- [331 U.S. 398 , 405] ployer on matters affecting their own wages, hours and working conditions. They do not lose the right to serve themselves in these respects merely because in other respects they represent a separate and independent interest of management. As in the case of foremen, we see no basis in the Act whatever for denying plant guards the benefits of the statute when they take collective action to protect their collective interests. Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485 .
We cannot assume, moreover, that labor organizations will make demands upon plant guard members or extract concessions from employers so as to decrease the loyalty and efficiency of the guards in the performance of their obligations to the employers. There is always that possibility, but it does not qualify as a legal basis for taking away from the guards all their statutory rights. In other words, unionism and collective bargaining are capable of adjustments to accommodate the special functions of plant guards.
The crucial problem in this case, however, is whether the militarization of the plant guards changed their status as employees as a matter of law so as to prohibit the Board from extending to them the benefits of the Act which they would otherwise have. The short answer to that problem is that militarization as such does not necessarily change the status of plant guards. It may or may not bring about a change, depending upon the particular circumstances. The militarization may be a qualified one; the employer may retain power to fix wages, hours and other conditions of work; the need and desirability for collective action on the part of the guards may exist as to the matters over which the employer retains control; and a recognition of the statutory rights of the guars may be e ntirely consistent with their military obligations. If that is the case, the guards remain employees for purposes of the Act. But if the militarization is such as to transfer to the Army all [331 U.S. 398 , 406] the matters over which the employer would normally have control, matters which would form the basis for collective bargaining as contemplated by the Act, the guards may lose their status as private employees within the purview of the statute.
The Board's determination that the militarization of the guards in respondent's plants was of a type that did not alter their status as employees under the Act must therefore be tested by the applicable War Department regulations and by the evidence introduced at the hearing before the Board. If such a result is consistent with the regulations and has a reasonable basis in the other evidence, the Board's order must be sustained.
The plant guards in this case were enrolled as civilian auxiliaries to the military police under War Department regulations issued pursuant to Executive Order No. 8972, dated December 12, 1941. That order authorized the Secretary of War to establish and maintain military guards and patrols, and to take other appropriate measures, to protect certain strategic premises, materials and utilities from injury and destruction. The Secretary of War accordingly directed the military organization of plant guard forces as auxiliary military police at plants important to the prosecution of the war, the directive to that effect being issued by the Adjutant General on July 2, 1942. Supplementary regulations were contained in Circular No. 15, issued on March 17, 1943, by Headquarters, Army Service Forces. 2
As stated by these regulations, the purpose of the military organization of the plant guards was 'to increase the authority, efficiency, and responsibility of guard forces [331 U.S. 398 , 407] at plants important to the prosecution of the war, and through military training to provide auxiliary forces throughout the United States to supplement the Army in wartime emergency situations.'3 It was made clear, however, that plant managements were not relieved of their responsibility 'for providing adequate protection at all times against all hazards.'4 In other words, employers who wished to obtain government contracts for the production of war materials were required to provide 'adequate protection' for their plants where the material was to be produced; if the existing plant protection forces were inadequate, additional guards were to be recruited by the employers. But all the original and additional guards were to be enrolled as civilian auxiliaries to the military police.
The military authorities reserved the right to veto the hiring or firing of any plant guard where such action by the employer might impair the efficiency of the guard force. 5 And the military plant guard officers were authorized to take appropriate action 'through the plant management' to correct conditions which might result in 'defective or inadequate performance by the guard forces of its ordinary protective duties.'6
The functions of these civilian auxiliaries to the military police were stated to be twofold: '(1) To provide internal and external protection of the plant against sabotage, espionage, and natural hazards. ( 2) To serve with the army in providing protection to the plant and its environs in emergency situations.' 7 They were subject to call for military service even where emergencies arose at places other than the plants where they normally [331 U.S. 398 , 408] worked. To these ends, militay plant gu ard officers were authorized to exercise direct control over the guard forces 'only in matters relating to military instruction and duties as Auxiliary Military Police.'8 But such orders 'will be issued only after consultation with and, if possible, concurrence by the plant management. * * * Control, therefore, will be exercised as heretofore through the plant management except at drill and except in emergency situations. Although the plant guard officers will be in command at all times, they will not supplant the civilian guard officers, and unless expediency demands otherwise will exercise their authority through the chain of command established by the plant management.' 9 The regulations also provided that the military drill of the guard forces should not exceed one hour per week 'except with the approval of the plant management.'10
As to the employer's relations with the guard force, the regulations were explicit in recognizing that those relations remained essentially the same as if there were no militarization. According to Circular No. 15: 'Basically, the militarization of plant guard forces does not change the existing systems of hiring, compensation, and dismissal; all remain primarily a matter between the guards and the plant managements. Guards in the employ of a private employer may, as heretofore, he dismissed by that employer.'11 A veto power over employment and dismissal, of course, was retained by the military. It was further provided: 'The status of the employer in respect to the employee benefits for the guard force is not changed. For example, social security, workmen's compensation, and [331 U.S. 398 , 409] employer's liability provisions remain unaffected.' 12 And the employer was expected to train the guard forces in their ordinary protective duties and was required to furnish them with uniforms and weapons.