Libbey-Owens-Ford Co.

LIBBEY-OWENS-FORD COMPANY 29 Libbey-Owens-Ford Company and United Glass and Ceramic Workers of North America, AFL-CIO, CLC, and its Locals Nos. 1, 5, 9, 19, 33, and 418.1 Case 6-CA-4771 March 1, 1973 SUPPLEMENTAL DECISION AND ORDER This case is before the Board pursuant to a decision of the United States Court of Appeals for the Third Circuit2 remanding for further consideration the Board's Decision and Order reported in 189 NLRB No. 139. It seems appropriate, for a better under- standing of the issues remanded, to summarize the prior Board decisions involving the Respondent (herein also called the Company) and the Union. Since 1939, the Union has been the certified3 bargaining representative in a multiplant bargaining unit consisting of the Company's production and maintenance employees at plants located in Rossford and Toledo, Ohio; Ottawa, Illinois; Charleston, West Virginia; and Shreveport, Louisiana.4 In addition, the Company has recognized the Union as the collective-bargaining representative of its production and maintenance employees at two other plants, located at Brackenridge, Pennsylvania, and Lathrop, California, each plant being recognized as a separate unit with separate collective-bargaining agreements.5 On July 13, 1966, the Union filed a unit clarifica- tion petition (Case 6-UC-4) requesting the Board to clarify the existing certified multiplant unit, then consisting of eight plants, by adding to such unit the employees represented by it in separate single-plant units at the Employer's Brackenridge and Lathrop plants. On January 12, 1968, the Board issued its Decision and Direction of Elections6 finding that the separate plant units and the multiplant unit are equally appropriate, and directing elections among the employees at the Brackenridge and Lathrop plants to determine whether or not they desired to be represented by the Union as part of the multiplant unit.7 On December 10, 1968, the Board issued a Supplemental Decision and Order Clarifying Units in which it found that a majority of the eligible employees in each of the two single-plant units had voted in favor of merger with the multiplant unit and ordered that the multiplant unit be clarified by specifically including therein the employees previous- ly represented by the Union in single-plant units at the Brackenridge and Lathrop plants. Subsequently, the Company agreed to include the Lathrop plant employees in the multiplant unit, but refused to include the Brackenridge plant employees. Thus, when the Brackenridge contract expired on October 1, 1969, the Company refused to bargain with the Union for the Brackenridge employees as part of the multiplant unit.9 The Union thereupon filed the unfair labor practice charges in the instant proceeding (6-CA-4771) alleging that the Respon- dent's refusal to bargain with the Union on behalf of the Brackenridge plant employees as part of the clarified multiplant unit violated Section 8(a)(5) and (1) of the Act. On July 29, 1970, Administrative Law Judge 10 Paul Bisgyer issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in the unfair labor practices alleged and recommending that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Thereafter, the Respondent filed exceptions to the Administrative Law Judge's Decision and a brief in support thereof, and the Charging Party (the Union) filed a brief in answer to the Respondent's excep-, tions. On April 16, 1971, the Board issued its Decision and Order" i in this proceeding dismissing the complaint in its entirety.12 Members Fanning and ' Herein collectively called the Union 8 United Glass and Ceramic Workers of North America, AFL-C/O-CLC v. N L R B, 463 F 2d 31 (1972) 9 10 NLRB 1470 The Union was certified in a unit of the "production and maintenance employees of Libbey-Owens-Ford Company, Toledo. Ohio, including watchmen , janitors, firemen, power employees, truck drivers, and subforemen, and excluding window-glass cutters, supervisory employees, timekeepers, and clerical employees not directly connected with production, at its plants situated in Shreveport, Louisiana , Ottawa , Illinois; Charleston and Parkersburg, West Virginia , and Rossford and East Toledo, Ohio " The Parkersburg , West Virginia, plant became a separate unit as a result of the Board's decision in 31 NLRB 243 (April 23 , 1949), and was sold by the Company in 1958 4 The Company has two plants located in each of the following cities Rossford, Toledo, and Ottawa. 5 The Company purchased the Brackenridge plant in 1943 and built the Lathrop plant in 1962 6 169 NLRB 126. Members Fanning and Jenkins , dissenting, were of the opinion that the Board lacked statutory authority to conduct unit clarification elections in situations where no question concerning represent- ation is raised r The Board also ordered the existing multiplant and Brackenridge plant units clarified by excluding from such units individuals employed as guards within the meaning of the Act 8 173 NLRB 1231 Members Fanning and Jenkins, dissenting, reaffirmed their views expressed in 169 NLRB 126, 129, that the Board acted without statutory authority in directing the unit clarification elections 9 The Company at all times expressed willingness to bargain with the Union concerning the Brackenridge employees as a separate unit, and indeed such bargaining was conducted and resulted in a new contract covering these employees in a separate unit iO The title of "Trial Examiner" was changed to "Administrative Law Judge," effective August 19, 1972. ii 189 NLRB No. 139 is Members Brown and Kennedy, in separate dissents, were of the opinion that the Board had the requisite authority to conduct the unit clarification elections and that the subsequent clarification of the certified unit was valid and proper in all respects and required the Respondent thereafter to bargain with the Union in the clarified unit Its failure to do so, therefore, violated Sec 8(a)(5) and (I) of the Act 202 NLRB No. 15 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jenkins reaffirmed their earlier dissenting views, expressed in 169 NLRB 126, 129, and concluded that the Board was without statutory authority to direct and conduct the elections in the underlying unit clarification proceeding and that, therefore, "the Order Clarifying Unit was of no force or effect." In these circumstances, they concluded, the unfair labor practice complaint must be dismissed "as resting on an improper clarification of certification." Chairman Miller, concurring, agreed that the complaint should be dismissed, not because of any lack of statutory authority,13 but for policy reasons. Noting that "the Board has consistently refused since 1968 to follow and apply the Libbey-Owens-Ford doctrine, even in cases which were virtually indistinguishable," he concluded that the Board's "duty to foster stable collective-bargaining relationships is well discharged by leaving the matter of changes in the size of a multiplant bargaining unit to be worked out by agreement of the parties." Thereafter, on June 21, 1972, the United States Court of Appeals for the Third Circuit issued its decision14 remanding the proceeding to the Board for further consideration. The court held that the unit clarification procedure is an appropriate mecha- nism for consolidating existing appropriate bargain- ing units and that the Board possessed the requisite statutory authority to conduct the clarification elections at the Lathrop and Brackenridge plants. The court, however, remanded the case to the Board because: [W ]hale we agree that it was proper for the Board to examine the validity of its underlying unit determination, we have concluded that the reconsideration of this issue required a finding by at least a majority of the Board of the appropri- ateness of the units involved and we remand for such a determination. The court further stated at 463 F.2d at 37-38: In the instant case, the Board majority in the underlying U.C. procedure first determined that both the single-plant Brackenridge unit and the employer-wide unit were presumptively appropri- ate and then ordered the election. Members Fanning and Jenkins relying on their position that the Board had no statutory authority to conduct the election, did not make a determina- tion of the appropriateness of either unit. In the unfair labor practice decision, members Fanning and Jenkins relied on their earlier dissents and 13 In Chairman Miller's view, the "statutory authority to establish the unit appropriate for bargaining purposes included the authority to merge separate units as was done in this case " 14 United Glass and Ceramic Workers of North America, AFL-CIO v N L R B, 463 F2d 31 once again expressed no opinion on the appropri- ateness of the unit. By reconsidering in 189 N.L.R.B. No. 139 [sic] (Opinion of April 16, 1971) the U.C. order of 1968, we conclude that members Fanning and Jenkins were obligated to express their opinion on the appropriateness of the unit before turning to the issues raised by the election. In such reconsid- eration proceeding, the Board did not fulfill its statutory duty to determine the appropriateness of the unit, since a majority of the Board expressed no opinion on this question. Members Fanning and Jenkins, as well as Chairman Miller, have not indicated whether they are in agreement with the earlier determination of the Board that the two units were presumptively appropriate. We remand for such a determination unless a majority of the Board adheres to Chairman Miller's view that, under the circum- stances of this case, the determination of the unit should be left to collective bargaining or decides not to proceed with the issues presented by this petition for review for other reasons. The Board, having reconsidered its Decision and Order in light of the court's opinion and remand order, has accepted the circuit court's opinion as the law of this case. In so doing, we have considered our underlying unit clarification decisions 15 as well as the Administrative Law Judge's Decision and the exceptions and, briefs in the unfair labor practice proceeding, and the record as a whole. For the reasons stated in the underlying unit clarification decision, we reaffirm the unit determi- nation there made. In our opinion, the Board's finding in that case that the single-plant and multiplant units constituted equally appropriate units for bargaining was proper and correct. And, having accepted the court's opinion as the law of this case, we now further find that the Respondent was obligated to bargain with the Union as the exclusive bargaining representative of its employees in the clarified 10-plant unit described in our Supplemental Decision and Order Clarifying Unit.16 It follows, therefore, that by refusing at that time to bargain with the Union on behalf of its Brackenridge employees as part of such unit, the Respondent violated Section 8(a)(5) and (1) of the Act.17 Accordingly we find that a bargaining order is warranted and necessary to effectuate the policies of the Act. 15 169 NLRB 126 and 173 NLRB 1231 16 173 NLRB 1231 17 The fact that the Company opened another plant after our initial unit determination does not affect our conclusion that such unit determination was proper and correct when made LIBBEY-OWENS-FORD COMPANY 31 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Libbey-Owens-Ford Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with United Glass and Ceramic Workers of North America, AFL-CIO, CLC, and its Locals Nos. 1, 5, 9, 19, 33, and 418, as the exclusive representatives of the Company's employees in the multiplant unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employment: (1) All production and maintenance employees who are employed at the Company's Plate, Safety and Thermopane Glass plants located at Toledo, Ohio; Rossford, Ohio; and Ottawa, Illinois; and its Window Glass plants located at Charleston, West Virginia, and Shreveport, Louisiana, exclud- ing employees in the Window Glass plants who are in the bargaining unit represented by the Window Glass Cutters League of America and guards, supervisors and clerical employees not directly connected with production; (2) All production and maintenance employees who are employed at the Respondent's plants located at Brackenridge, Pennsylvania, excluding clerical employees not directly connected with production and guards and supervisors as defined in the Act; and (3) All hourly paid production and mainte- nance workers employed by Respondent at its Lathrop, California, plant, excluding salaried employees, guards, janitors, office clerical work- ers and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of theAct: (a) Upon request, bargain collectively with the above-named Union, as the exclusive representative of the Brackenridge plant employees as part of the above-described unit, at such time as provided for in the current Brackenridge agreement, concerning rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Brackenridge, Pennsylvania, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN MILLER, dissenting: I dissent from the findings and conclusions of my colleagues and remain of the view that our unit clarification procedures were improvidently invoked here for the purpose, not of "clarifying" the parame- ters of an existing unit, but rather of combining, over the objections of one of the parties, an admittedly appropriate unit with some other unit or units. I would so hold regardless of whether the combination would result in yet another appropriate unit. And where, as here, a respondent (whether an employer or a union) is willing to continue good- faith bargaining in an admittedly appropriate preex- isting unit, which has not, by any changed circum- stances been rendered inappropriate, I would not find such a respondent guilty of a violation of our Act merely because the respondent will not consent to a demand that it abandon that unit and bargain in some other unit instead. In my view, any such combination of clearly appropriate units should be consensual. Nothing should prohibit the parties from voluntarily effectuating such combinations, but, as I interpret the Act, there is no statutory foundation for finding a party in violation of the Act when such party is complying with the statutory mandate, which requires only that it bargain in good faith in an appropriate unit. I recognize that "law of the case" considerations might suggest that my views be subordinated in deference to the prior decision in the unit clarifica- tion proceeding herein in the interests of institutional stability. Nevertheless I believe those considerations are overridden both by the importance of the policy question and the inequity inherent in joining in the issuance of this "last one-way ticket," as I explained in my earlier opinion in this case. For the above reasons, I would dismiss the com- plaint herein. 18 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain collectively with United Glass and Ceramic Workers of North America, AFL-CIO, CLC, and its Locals Nos. 1, 5, 9, 19, 33, and 418, as the exclusive representatives of the Company's Brackenridge employees as part of the multiplant unit described below, concerning rates of pay, wages, hours of employment, and other condi- tions of employment: (1) All production and maintenance employ- ees who are employed at the Company's Plate, Safety and Thermopane Glass plants located at Toledo, Ohio; Rossford, Ohio; and Ottawa, Illinois; and its Window Glass plants located at Charleston, West Virginia, and Shreveport, Louisiana, excluding em- ployees in the Window Glass plants who are in the bargaining unit represented by the Window Glass Cutters League of America and guards, supervisors and clerical employ- ees not directly connected with production; (2) All production and maintenance employ- ees who are employed at the Respondent's plant located at Brackenridge, Pennsylvania, excluding clerical employees not directly connected with production and guards and supervisors as defined in the Act; and (3) All hourly paid production and maintenance workers employed by Respondent at its Lathrop, California, plant, excluding sala- ried employees, guards, janitors, office cleri- cal workers and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain , or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL bargain collectively, upon request, with the above-named Union, as the exclusive representative of our Brackenridge plant employ- ees as part of the above -described unit at such time as provided for in our current Brackenridge bargaining agreement with the above-named Union, concerning rates of pay, wages, hours of employment , and other conditions of employ- ment, and, if an understanding is reached, we will embody such understanding in a signed agree- ment. LIBBEY-OWENS-FORD COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.