Libbey-Owens-Ford Co.

National Labor Relations Board - Board Decisions

Mar 1, 1973

202 N.L.R.B. 29 (N.L.R.B. 1973)

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 direc t ing 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 Examine r" 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.