Libbey-Owens-Ford Co. v. National Labor Relations Board

495 F.2d 1195, 85 L.R.R.M. (BNA) 2668, 1974 U.S. App. LEXIS 9767

• Court: Court of Appeals for the Third Circuit
• Decided: March 8, 1974
• Docket: No. 73-1515
• Status: Published

Opinions

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This case is before this court upon the petition of Libbey-Owens-Ford Company (hereinafter the “Company”) to review and set aside a Supplemental Decision and Order of the National Labor Relations Board issued on March 1, 1973, and reported at 202 N.L.R.B.. No. 15. The Board has made a cross-application for enforcement of that order. This court has jurisdiction over these proceedings by virtue of Section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(f).

The Company, an Ohio corporation, with its main offices in Toledo, Ohio, is engaged in the manufacture and sale of glass and glass products. On January 30, 1939, the Board certified the United Glass and Ceramic Workers of North América, AFL-CIO-CLC (hereinafter the “Union”), as the collective bargaining representative in a single bargaining unit consisting of the Company’s production and maintenance employees at eight plants located in Ottawa, Illinois, Charleston and Parkersburg, West Virginia, Rossford and Toledo, Ohio, and Shreveport, Louisiana. Libbey-Owens-Ford Glass Company, 10 N.L.R.B. 1470 (1939).¹ The Company and Union have maintained a continuing bargaining relationship since the certification. Subsequently the Company recognized the Union as the collective bargaining representative also for the production and maintenance employees at two other plants, each of which was recognized as a separate unit with a separate bargaining agreement. One plant, located in Brackenridge, Pennsylvania, was recognized by the Company in 1943, after being acquired by purchase; the second plant, located in Lathrop, California, was recognized in 1962, shortly after it was constructed by the Company.

On July 13, 1966, the Union filed a unit clarification petition (6-UC-4) to clarify the existing multi-plant unit by including the represented employees in the single plant units at Brackenridge and Lathrop. Following a hearing on the petition, the Board issued a Decision and Direction of Election on January 12, 1968, in which it found that the existing separate units and an enlarged multi-plant unit were both appropriate and therefore ordered separate self-determination elections at the Lathrop and Brackenridge plants to permit the employees in the affected single-plant units to determine whether or not they were to be included in the larger, multi-plant unit. 169 N.L.R.B. 126 (1968). Board members Fanning and Jenkins dissented, being of the opinion that the Board lacked statutory authority to hold elections to determine the unit placement of represented employees.

The Company and the Union, in the interim, continued to bargain for the Lathrop plant as a separate unit until the multi-plant negotiations in October 1968. At that time, the Union demanded that the Brackenridge plant, the Lathrop plant, and a new plant at Mason City, Iowa, be included in the multi-plant unit. The Company steadfastly refused to include Brackenridge or Mason City but did include Lathrop in the multi-plant unit.

On December 10, 1968, following the directed elections held on March 20, 1968, the Board issued a Supplemental Decision and Order, in which it found that a majority of the employees in each of the two separate plant units had voted in favor of merger with the multi-plant unit and ordered that the multi-plant unit be clarified by including the Brackenridge and Lathrop plants. 173 N.L.R.B. 1231 (1968). Members Fanning and Jenkins dissented on the basis of their earlier opinion that this election should not have been held.

When the Brackenridge contract expired on September 30, 1969, the Company refused to add the Brackenridge plant as a part of the multi-plant unit and refused the Union’s demands that the provisions of the multi-plant contract be made applicable to Brackenridge employees. The Union filed an unfair labor practice charge against the Company on October 13, 1969 (6-CA-4771), alleging that the Company had violated Section 8(a) (5) and (1) of the Act by refusing to bargain with the Union on behalf of the Brackenridge employees as part of the Board-clarified multi-plant unit. Thereafter an unfair labor practice complaint issued and a hearing was held.² In his decision, issued on July 29, 1970, the Administrative Law Judge held that he was bound by the Board’s prior decision in the unit clarification case and that the Company had, therefore, committed an unfair labor practice by refusing to recognize and bargain with the Union as the duly certified representative of the Brackenridge employees as part of the multi-plant unit.

On April 16, 1971, the Board (with members Brown and Kennedy dissenting) issued its Decision and Order dismissing the complaint. 189 N.L.R.B. 871 (1971). Members Fanning and Jenkins based their decision to dismiss on their previously stated view that the Board did not possess statutory authority to determine unit placement of represented employees by conducting elections to clarify existing bargaining units. Chairman Miller concurred in dismissing the complaint, not because of any lack of statutory authority, but because “the Board has consistently refused since 1968 to follow and apply the Libbey-Owr ens-Ford doctrine, even in cases which were virtually indistinguishable,” and because the Board’s “duty to foster stable collective-bargaining relationships is well discharged by leaving the matter of changes in size of a multiplant bargaining unit to be worked out by agreement of the parties.” Members Brown and Kennedy, in separate dissents, indicated that they viewed the underlying certification to be a proper exercise of the Board’s authority, that the Company was under a duty to honor that certification, and that its failure to do so constituted a violation of its duty to bargain imposed by Section 8(a)(5) and (1) of the Act.

Thereafter, the Union filed a petition to review and set aside the Board’s decision with this court. On June 21, 1972, we issued our decision remanding the proceedings to the Board for further consideration. United Glass and Ceramic Workers of North America v. N.L.R.B., 463 F.2d 31 (3d Cir. 1972). We held that the Board acted within its statutory authority in conducting a unit clarification proceeding designed to consider the merger of existing collective bargaining units and that the Board had the requisite authority to conduct the elections at the Brackenridge and Lathrop plants. We noted, however, that because of their respective views of the case, neither members Fanning and Jenkins nor Chairman Miller had passed on the appropriateness of both a multi-plant unit including the Brackenridge plant and of the Brackenridge single-plant unit. Accordingly, the case was remanded to the Board to make such a determination, unless a majority of the Board adheres to the view advanced by Chairman Miller that the determination of the unit should be left to collective bargaining or decides not to proceed with the case for other reasons.

On March 1, 1973, the Board (with Chairman Miller dissenting) issued its Supplemental Decision and Order, in which it reaffirmed its view that the single-plant and multi-plant units constituted equally appropriate units for bargaining for the reasons stated in the initial unit clarification decision. Thus, the Board found that the Company was obligated to bargain with the Union as the exclusive bargaining representative of its employees in the clarified multi-plant unit, and that by refusing to bargain with the Union on behalf of its Brackenridge employees as part of such unit, the Company violated Section 8(a)(5) and (1) of the Act. On April 9, 1973, the Company filed a motion for reconsideration of the Board’s Supplemental Decision and Order, which the Board denied in an order dated May 18, 1973.

The only issue raised by .the Company’s petition to review and set aside the Board’s Supplemental Decision and Order of March 1, 1973, is whether the Board’s underlying unit determination was erroneous. In reviewing that determination, this court is mindful of the fact that the Board is granted broad powers under Section 9(b) of the Act to determine appropriate bargaining units.³ Thus, the Supreme Court has declared that such a determination “involves of necessity a large measure of informed discretion, and the decision of the Board, if not final is rarely to be disturbed.” Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947). See also N.L.R.B. v. New Enterprise Stone & Lime Co., 413 F.2d 117, 119 (3d Cir. 1969); N.L.R.B. v. David Friedland Painting Co., 377 F.2d 983, 987 (3d Cir. 1967). Nevertheless, as the Supreme Court also observed in Packard Motor Car, supra, a determination of a unit of representation may be so unreasonable and arbitrary as to exceed the Board’s power.

I.

The Company challenges the Board’s unit determination on two grounds. First, it argues that the Board’s finding in the unit clarification proceeding, that a multi-plant bargaining unit which included the Bracken-ridge plant is appropriate, is not supported by substantial evidence on the record as a whole.⁴ The Company contends that the record in this case fails to establish, and .indeed demonstrates the absence of, a number of factors generally considered relevant to the issue of the appropriateness of a multi-plant unit.⁵ Although this contention appears correct as to the absence of some of these factors, it nevertheless does not preclude the Board from finding that the inclusion of the Brackenridge plant in the unit is appropriate. In determining whether certain employees should be grouped together for collective bargaining, the Board is free to consider a wide variety of factors, and the presence or absence of one or even several of them is not necessarily determinative of the case. See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 156, 61 S.Ct. 908, 85 L.Ed. 1251 (1941).⁶ As the Supreme Court pointed out in N.L.R.B. v. Jones & Laughlin Steel Corp., 331 U.S. 416, 422-423, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947), the Board’s unit determinations “are binding upon reviewing courts if grounded in reasonableness,” which “necessarily implies that the Board has given due consideration to all 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.”

In its July 12, 1968, decision, the Board based its determination that an enlarged multi-plant unit was appropriate primarily on two factors: first, that the history of bargaining between the Company and the Union demonstrates a pattern of successful bargaining in a unit of widely scattered plants which are not functionally or operationally integrated, and, second, that the Bracken-ridge and Lathrop plants do not differ significantly from those plants which, over the years, have been successfully integrated into a single, multi-plant unit. 169 N.L.R.B. 126, 127-28. We believe that such reasoning shows a careful consideration by the Board of all the relevant factors and serves the purpose of assuring that the unit in question will be a viable bargaining unit. The only remaining question, therefore, is whether the two elements relied on by the Board are supported by substantial evidence in the record.

The existence of a pattern of successful bargaining in an expanding multi-plant unit is not disputed. The record reveals that for the past 40 years the Company and the Union have been bargaining on a multi-plant basis, and during that period the unit has been enlarged as the Company has acquired new plants. Thus, the unit found appropriate by the Board was virtually employ-ei'-wide — encompassing all but two of the Company’s plants then in existence.⁷ It is true, as the Company observes, that there is also a history of successful bargaining between the Company and the Union in the single-plant unit at Brack-enridge. However, that fact alone does not conflict with the Board’s finding that the inclusion of Brackenridge in the multi-plant unit would also be appropriate, for there is no reason to infer that a history of successful bargaining within a single-plant unit would interfere with successful bargaining by the same parties on a broader basis.⁸

The Company does dispute, however, the Board’s finding that Brackenridge does not differ significantly from the other plants in the multi-plant unit. That finding was based on an examination of three factors — location, plant integration, and similarity of operations. After a careful review of the record, we hold that the Board’s conclusion as to each of these factors is supported by substantial evidence. First, the testimony of Melvin B. Burwell, Vice President, Employee Relations, of Libbey-Owens-Ford Glass Company, supports the Board’s finding that the then-existing eight-plant unit “encompassed plants which are between 4 and 986 miles from the Employer’s home office in Toledo, Ohio, and hence is not based on any geographical considerations, while the Brackenridge and Lathrop plants are 240 and 2,367 miles from Toledo, respectively.” 169 N.L.R.B. 126, 128. Second, in light of the evidence demonstrating the operational independence of the plants within the multi-plant unit, the Board could reasonably conclude that “there is generally no greater functional or operational integration between the plants in the multiplant unit than between either of the two disputed plants and the others.” Id. Third, the testimony of Mr. Burwell also supports the Board’s finding that of the eight plants in the multi-plant unit, “five produce raw plate glass and fabricate it, while the other three [like Brackenridge] are engaged solely in fabrication,” and that “all the plants involved are engaged in essentially the same basic operations in that all are producing and fabricating glass and/or glass products.” Id. at 127.

The Company challenges this last finding by pointing out that Brackenridge no longer produces any products which are typically multi-plant operations ⁹ and that, as the Board noted, Brackenridge is the only plant which fabricates filmed surface glass products and mirrors. This operation includes both conventional silvering of glass by mechanical deposition and the more complex application of metallic films by thermal evaporation in a vacuum. Thus, the Company argues, the skills and functions of employees in the Brackenridge plant are not similar to those in a window glass, plate glass, or float glass plant. However, in view of our approval of the Board’s approach to the unit determination in this ease, the issue is not whether the skills involved at Bracken-ridge differ from those found elsewhere in the multi-plant unit, but whether such difference is greater than that found among the other plants. Since the unit includes plants using a wide variety of techniques for producing and fabricating glass and requiring differing levels of skill and organization, the Board could reasonably infer that the inclusion of Brackenridge’s employees would not introduce a significant new element of diversity.

II.

Second, the Company also argues that the Board’s unit determination in this case is arbitrary, discriminatory and inconsistent with Board policy applied in other cases. See Hotel Employees v. Leedom, 358 U.S. 99, 79 S.Ct. 150, 3 L.Ed.2d 143 (1958); Office Employees International Union v. N.L.R.B., 353 U.S. 313, 77 S.Ct. 799, 1 L.Ed.2d 846 (1957); N.L.R.B. v. Pittsburgh Plate Glass Co., 270 F.2d 167 (4th Cir. 1959); cert. denied, 361 U.S. 943, 80 S.Ct. 407, 4 L.Ed.2d 363 (1960). The Company points out that in every decision subsequent to the unit clarification in this case, the Board has dismissed unit clarifications seeking mergers into larger units. Rohm & Haas Co., 183 N.L.R.B. No. 20 (1970); Cities Service Oil Co., 182 N.L.R.B. 12 (1970); PPG Industries, Inc., 180 N.L.R.B. 477 (1969).¹⁰ Nevertheless, this difference in result does not constitute an arbitrary discrimination against Libbey-Owens-Ford Company. Rohm & Haas and PPG Industries involved companies in the same industry as the Company here, and the facts of those cases closely resemble those in the instant case. However, in both cases, members Jenkins and Fanning voted to dismiss on the grounds rejected by this court here, namely, that the Board lacked statutory authority to merge units, while a single member, member Zagoria, in PPG Industries and Chairman McCulloch in Rohm & Haas, respectively regarded the instant case as distinguishable because the unit here was virtually employer-wide and was based on a substantial history of multiplant bargaining. Since those cases were not appealed, the issue of appropriateness was not determined by a Board majority in either case, and thus the difference in result between those cases and this one is not attributable to a discriminatory application of Board policy. Cities Service, on the other hand, is distinguishable from the instant case in that the union there did not represent all the employer’s plants, but rather was seeking to merge three unrepresented plants with an existing multi-plant unit, and the proposed multi-plant unit was considerably less than employer-wide, since 12 plants would have remained unrepresented.

Finally, the Company contends that the Board’s unit determination in this case is inconsistent with the goal of stabilizing industrial relations, see Kalamazoo Paper Box Corp., 136 N.L.R.B. 134, 137 (1962), for the Union’s constitution and by-laws require the unanimous vote of all members of the wage committee to accept a contract, and thus as a member of that committee Bracken-ridge could prevent the consummation of a multi-plant agreement. To the extent that one important purpose of a unit determination is to foster efficient and stable collective bargaining, that end is accomplished where, as here, the Board correctly finds that a sufficient community of interest exists among the workers in the proposed unit to ensure that such unit will be viable for bargaining purposes. The fact that inclusion in the multi-plant unit may increase the bargaining power of the Brackenridge employees should not serve as a basis for exclusion.

III.

The dissenting opinion contends that because the Board has found that the combination of pre-existing units is an appropriate bargaining unit, the unit determination in this case should be subjected to special scrutiny and that the Board’s decision should not be upheld unless there is evidence to support a conclusion that labor relations will be positively improved by the merger. This approach assumes that the merger of two pre-existing units “will inevitably have a significant negative effect upon stability in labor relations.” No data is presented to support this assumption, and indeed the facts of this case indicate the contrary.¹¹ On this record, the Lathrop plant has been successfully integrated into the multi-plant unit, and there is no evidence to suggest that that merger had any adverse impact on the labor relations or operations of either the Lathrop plant or any of the other plants within the multi-plant unit. Also, the approach of the dissenting opinion fails to give sufficient weight to the preference of the Brackenridge employees, which in this case was overwhelmingly in favor of merger.¹²

We therefore see no reason to depart from the doctrine that a unit determination by the Board should be disturbed only if it is unreasonable or arbitrary, and that thus the Board may find appropriate the combination of two preexisting units so long as there is evidence that there is a sufficient community of interest among the workers in the proposed unit to insure that the merged unit will also be a viable one. While we would not necessarily have made the same determination as the Board in this case, for the reasons discussed above, we cannot say it was beyond the Board’s power.

For the foregoing reasons,¹³ the petition of the Company to review and set aside the March 1, 1973, Supplemental Decision and Order of the Board will be denied, and the Board’s cross-application for enforcement of that order will be granted.

1 . The plant at Parkersburg, West Virginia, was removed from the multi-plant unit in 1941, pursuant to the Board decision in Lib-bey-Owens-Ford Glass Company, 31 N.L.B. B. 243 (1941). In 1958, the Company sold this plant.

2 . At the hearing in the unfair labor practice case, the Union also filed a petition for clarification (6-UC--43) to include the Mason City, Iowa, plant as part of the multi-plant unit. The Company moved to have the petition made a part of this case, but the Administrative Law Judge denied that motion. On April 16, 1971, the Board (with members Brown and Kennedy dissenting) handed down its decision dismissing the petition to include the Mason City plant in the multi-plant unit. 189 N.L.R.B. 869 (1971). Members Fanning and Jenkins voted for dismissal for the reasons stated in their dissenting opinions in 169 N.L.R.B. 126, 129, and Chairman Miller, for the reasons stated in his concurring opinion in 189 N.L.R.B. 871, 871-72.

3 . “(b) The Board shall decide in each case whether, in order to assure the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof . . . .” 29 U.S.C. S 159(b).

4 . In Packard Motor Car, supra, 330 U.S. at 491, 67 S.Ct. 789, the Supreme Court made it clear that the scope of review, insofar as the Board’s unit determination depended on facts, was limited to whether there was substantial evidence to support the Board. See also N.L.R.B. v. Industrial Rayon Corp., 291 F.2d 809 (4th Cir. 1961); N.L.R.B. v. Plankinton Packing Co., 265 F.2d 638 (7th Cir. 1959).

5 . The Company claims that the evidence demonstrates the absence of such factors as a history of multi-plant bargaining that includes the plant in question, centralization of management, employee inter-change among plants, similarity of skills and functions of employees, inter-dependence or functional integration of operations, and geographical proximity.

6 . The Court in Pittsburgh Plate Glass, supra, stressed such factors as the wishes of the employees, the similarity of the working duties and conditions, the character of the various plants, and the anticipated effectiveness of the bargaining unit in maintaining industrial peace.

7 . As the Board noted, neither party sought their inclusion in the multi-plant unit, since one was an experimental plant manned solely by technical employees, and the other was a subsidiary engaged in the production of plastic and metallic dies, patterns, and molds. 169 N.L.R.B. 126, n. 5.

The later establishment of a new plant at Mason City was not relevant to the Board’s decision, since, as the Board noted in its Supplemental Decision and Order of March 1, 1973, “the unit determination was proper and correct when made.” 202 N.L.R.B. No. 15 at n. 17. Moreover, nothing in the record indicates one way or the other whether the Mason City plant would also be includable in the multi-plant unit, based on the criteria applied with respect to Bracken-ridge, for the Board dismissed the Union’s petition to merge Mason City into the mul-ti-plant unit for the same reasons it originally dismissed the complaint in the instant case. 189 N.L.R.B. 869.

8 . The Company also cites as evidence of the difficulty in merging Brackenridge into the multi-plant unit the differences in benefits, and in particular the fact that the pension benefit in the multi-plant unit was $4.25 per month per year of service, while the normal pension for Brackenridge was $2.50 per month per year of service. The reason for. this variation, according to the testimony of Mr. Bur-well, is that Brackenridge employs over 50% women, many of whom are secondary wage earners whose interests are less in pensions than in money in other areas. This difference does not appear to be a complete obstacle to successful bargaining between the Company and an enlarged multi-plant unit which included Brackenridge. In his testimony at the initial hearing on the unit clarification petition, Mr. Burwell also adverted to a similar difficulty in dovetailing the youthful Lathrop workforce into the multi-plant pension system, but, as noted above, the Company later agreed to the inclusion of Lathrop. It is not the function of this court to pass on the wisdom of multi-plant bargaining as being in the best interests of the Brackenridge employees, who voted overwhelmingly (391 to 19) for inclusion in the multi-plant bargaining unit.

9 . At the initial hearing in this case, there was testimony that although Brackenridge was then engaged in the production of automotive ventilators, that aspect of the business was being phased out.

10 . The Company also cites American. Saint Gobain Corp., Case Nos. 6-AC-13 and 6-UC-23, where petitions filed by the Union were dismissed by the Regional Director on the authority of PPG Industries. Since this was not a decision of the Board, it has little bearing on the question of discrimination and need not be considered.

11 . Recognizing the problem presented by the language in note 4 of the dissenting opinion, we note that the situation described there is not presented by the record in this case.

12 . See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. at 156, 61 S.Ct. 908, 85 L.Ed. 1251. See also N.L.R.B. v. Ideal Laundry and Dry Cleaning Co., 372 F.2d 307, 309 (10th Cir. 1967), where the court said, “Indeed, we think the relevancy of the wishes of employees concerning their inclusion or exclusion from a proposed bargaining unit is inherent in the basic right to self-organization under § 7 of the Act.”

13 . All other contentions of the Company have been considered and rejected.