NLRB v. Pittsburgh Plate Glass Co.

• Citation: 270 F.2d 167
• Decision Date: 02 September 1959
• Docket Number: No. 7863.,7863.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PITTSBURGH PLATE GLASS CO., Respondent, and United Glass and Ceramic Workers of North America, AFL-CIO, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

270 F.2d 167 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PITTSBURGH PLATE GLASS CO., Respondent, and United Glass and Ceramic Workers of North America, AFL-CIO, Intervenor.

No. 7863.

United States Court of Appeals Fourth Circuit.

Argued June 17, 1959.

Decided September 2, 1959.

Norton J. Come, Deputy Assistant General Counsel, Washington, D. C. (Jerome D. Fenton, General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, and Melvin J. Welles, Attorney, National Labor Relations Board, Washington, D. C., on brief), for petitioner.

Milton C. Denbo, Washington, D. C. (Mark C. Curran and Shroyer, Denbo & Doolan, Washington, D. C., on brief), for respondent.

Abraham L. Friedman, Newark, N. J. (Samuel L. Rothbard, Newark, N. J., on brief), for United Glass and Ceramic Workers of North America, AFL-CIO.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOPER, Circuit Judge.

This petition for enforcement of an order of the National Labor Relations Board relates primarily to a determination of the Board that the electricians, including shift, shop and electronics electricians, instrument labor men and apprentices in the employ of Pittsburgh Plate Glass Company constitute an appropriate craft unit for purposes of collective bargaining at its plant in Cumberland, Maryland, although they comprise a small minority of the employees and the operations of the plant are highly integrated.¹

The present proceeding was brought when the Company refused to bargain with the Union as the representative of the group and charges were filed that the Company had violated § 8(a)(5)(1) of the statute. As the result of this proceeding the Board passed an order requiring the Company to bargain with the group and now seeks enforcement of the order.

The Company's plant commenced operations on September 8, 1956, before it was completely finished. On October 11, 1956, the International Brotherhood of Electrical Workers (Electrical Workers) filed a representation petition, pursuant to § 9(c) of the Act, requesting certification as the bargaining representative of the electricians at the plant. At that time the plant employees were not represented by any union. However, on November 8, 1956, the Company and the United Glass and Ceramic Workers of North America, AFL-CIO, (Glass Workers), entered into an agreement whereby an existing collective bargaining contract between the Company and the Glass Workers at all of the other flat glass plants of the Company in this country was made applicable to the production and maintenance employees at the Cumberland plant. Thereupon the Glass Workers intervened in the representation proceeding and joined the Company in urging that the petition of the Electrical Workers should be dismissed because the integrated nature of the plant's operations and the history of bargaining at the Company's other plants, and in the plate glass industry generally, rendered any bargaining unit inappropriate other than one embracing all the production and maintenance employees.

On May 23, 1957, the Board rejected this contention and issued its decision and direction of an election. It based its conclusion on its decision in American Potash & Chemical Co., 107 N.L.R.B. 1418, wherein it held that the rights of separate representation should not be denied to members of a craft group merely because they were employed in an integrated industry and had previously adopted a pattern of bargaining on an industrial basis. Finding that the electricians formed a distinct group of skilled journeymen craftsmen, the Board concluded that it was an appropriate unit for collective bargaining. Accordingly, it directed an election among the employees of the group at which the Electrical Workers received 12 votes against 9 votes for the Glass Workers, and was therefore certified as the bargaining representative of the unit.

The power of the Board to determine the appropriate bargaining unit in a particular plant is derived from § 9(b) of the statute, 29 U.S.C.A. § 159(b), which provides in relevant part that:

"The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not * * * (2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation * * *."

The Board had occasion to consider the relative advantages of the plant unit as opposed to the craft unit in its decision in National Tube Co., 76 N.L.R.B. 1199, on April 7, 1948. The Tube Company, a wholly owned subsidiary of the United States Steel Corporation, was engaged in the manufacture and sale of steel and tubular products at several plants in various parts of the United States. Only the plant at Lorain, Ohio, was involved in the case. The Bricklayers, Masons and Plasterers International Union of America-AFL petitioned the Board to establish a craft unit of bricklayers and apprentices at the plant. The United Steel Workers of America-AFL intervened and joined the Company in opposing the Bricklayers' petition. The United Steel Workers had been certified in 1942 as the exclusive bargaining representative for a multiple plant unit of the Company's production and maintenance employees and thereafter had bargained for them under a series of collective bargaining agreements following, in this respect, the pattern of collective bargaining generally in the steel industry. No unit confined to bricklayers had ever been established among the employees in any operation of the United States Steel Corporation or in any of the plants of the sixty-five other companies engaged in the production of basic steel. The Bricklayers contended that § 9(b)(2) of the Act removed from the Board's discretion not only the power to rely on a prior decision as the basis for finding a craft unit inappropriate, but also the power to find such a unit inappropriate by reason of collective bargaining history or any other circumstances upon which the Board had been accustomed to rely. The basis of this contention consisted of various statements found in the legislative history preceding the passage of the amendment of the Act. The Board overruled this contention on the ground that the proviso was not ambiguous and did not limit the Board's discretion to find a craft unit inappropriate so long as there was no reliance on a prior Board determination. It therefore held that the legislative history was not controlling; but it also held, upon an examination of the legislative history, that "there is no basis for finding a Congressional intent to prohibit the use of a prior Board determination or any bargaining history based thereon as a factor to be considered so long as neither is made the sole ground upon which the Board predicates its decision." Coming to the merits of the case, the Board concluded that the bargaining history of an industry was a "weighty factor" to be considered by the Board in making its decision. It found that the bricklayers in the plant, unlike usual craft maintenance employees, were engaged in a definite program of replacing and repairing instrumentalities used in the continuous production of basic steel and that their functions were therefore intimately connected with the steel-making process. It also found that the bricklayers and steel production employees enjoyed similar working conditions and had been represented together under a series of bargaining agreements between the employer and the United Steel Workers and that, because of the integrated nature of the operations in the industry, any change in the unit governing the bargaining relations between the employer and its employees would be detrimental to the basic wage-rate structure underlying the operations and would necessarily have an adverse effect upon the productive capacity in an industry of national concern. It therefore denied the Bricklayers' petition for separate representation.

Subsequently the Board made similar rulings affecting three other integrated industries, that is, the wet milling industry in Corn Products Refining Co., 80 N.L.R.B. 362, Nov. 18, 1948, the lumber industry in Weyerhaeuser Timber Co., 87 N.L.R.B. 1076, Dec. 16, 1949, and the aluminum industry in Permanente Metals Co., 89 N.L.R.B. 804, Apr. 27, 1950. In each of these cases the Board emphasized the need for collective bargaining on an industrial basis where the industry involved is highly integrated and its basic operations are interdependent.

On March 1, 1954, however, in American Potash & Chemical Corp., 107 N.L. R.B. 1418, the Board reversed this policy. This case involved an employer engaged in the manufacture of various basic chemical products by a continuous flow process and the operations demonstrated the same type of integration as was found to exist in basic steel. The United Mine Workers of America (AFL) had been the bargaining representative of the employees on a plantwide basis since 1941 and the continuance of a plantwide bargaining unit was sought by the employer and certain other unions. Separate bargaining units, however, were sought by other unions for the electricians, the engineering department, the pump packers and oilers, the riggers, and the tool room keepers. In considering these conflicting contentions, the Board referred to its decision in the National Tube case and held that it had had the effect of permanently foreclosing the possibility of establishing craft units in an entire industry by freezing the industry into an industrial unit for bargaining purposes, and it concluded that this result was...