National Labor Rel. Bd. v. Libbey-Owens-Ford Glass Co.

• Decision Date: 11 March 1957
• Docket Number: No. 7347.,7347.
• Citation: 241 F.2d 831
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LIBBEY-OWENS-FORD GLASS COMPANY and L-O-F Glass Fibers Company, Respondents, and United Glass and Ceramic Workers of North America, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

241 F.2d 831 (1957)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LIBBEY-OWENS-FORD GLASS COMPANY and L-O-F Glass Fibers Company, Respondents, and United Glass and Ceramic Workers of North America, AFL-CIO, Intervenor.

No. 7347.

United States Court of Appeals Fourth Circuit.

Argued January 22, 1957.

Decided March 11, 1957.

Arnold Ordman, Atty., National Labor Relations Board, Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, Stephen Leonard, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William J. Avrutis, Atty., National Labor Relations Board, Washington, D. C., on brief), for petitioner.

Louis R. Becker, Washington, D. C. (Edward T. Cheyfitz, Washington, D. C., on brief), for respondents.

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, Movant for Intervention.

Before PARKER, Chief Judge, SOBELOFF, Circuit Judge, and HARRY E. WATKINS, District Judge.

PARKER, Chief Judge.

This is a petition to enforce an order of the National Labor Relations Board which found the Libbey-Owens-Ford Glass Company and its subsidiary, L-O-F Glass Fibers Company, hereafter referred to collectively as the employer, guilty of an unfair labor practice in refusing to bargain and which directed them to bargain with local union No. 968, International Brotherhood of Electrical Workers, AFL-CIO, hereafter referred to as IBEW. United Glass and Ceramic Workers of North America, AFL-CIO, hereafter referred to as the Intervenor, was allowed to intervene before the Board and contest the order and has been allowed to intervene, file brief and be heard before this court. The employer admits the refusal to bargain with the local of the IBEW, and the only question before us is whether the local was properly certified by the Board as bargaining representative of a properly constituted bargaining unit of employees. We think that it was.

Prior to May 1954, the intervenor had represented as bargaining agent all of the production and maintenance employees at the employer's plant here involved and had entered into collective bargaining agreements which, in the absence of action to the contrary, were to be automatically renewed on June 1 of each year. On May 7, 1954 the IBEW local filed a petition with the Board in which it requested certification as bargaining representative of the maintenance department employees. Hearing on this petition was held on June 4, 1954, at which time the IBEW made two alternative requests; first, that the bargaining unit which it was to represent be limited to electricians, instrument electricians and bushing fabricators, and second, that the unit be limited to electricians and instrument electricians alone. On September 3, 1954 the Board entered its decision finding in favor of a bargaining unit composed only of electricians and instrument electricians and one helper, twelve persons in all, and excluding all other employees, and directing that an election be held to determine the wishes of the members of the proposed unit. At the election held on September 24 pursuant to the order, all twelve of the members of the proposed unit voted in favor of the unit and of being represented by the IBEW local as bargaining representative. The local was so certified by the Board on October 4, but the employer refused to recognize or bargain with it and an unfair practice proceeding based on such refusal followed. The basis of the Board's action in setting up the separate bargaining unit composed of electricians and instrument electricians was stated by the Board in a note to its representation order as follows:

"The Petitioner seeks to sever a unit of all maintenance employees from an existing plantwide production and maintenance unit. The record shows that the maintenance group is composed, in part, of machinists, welders, carpenters, painters, and maintenance men. Moreover, the Federation of Glass, Ceramic and Silica Sand Workers of America, CIO, Intervenor herein, has, since 1952, represented a plant-wide unit of all production and maintenance employees. Under the circumstances, we find that a unit of all maintenance employees is not appropriate. General Textile Mills, Inc., 109 NLRB No. 39. However, in the alternative the Petitioner seeks a unit of electricians and instrument electricians. Approximately 12 electricians and instrument electricians perform the customary duties of their craft under the immediate supervision of the electrical instrument foreman. Although other `craftsmen\' and production employees may bid for jobs as electricians and instrument electricians, and although there is no formal training program for electricians and the instrument electricians are highly skilled, have had previous electrical experience or training before coming to the Employer, and they perform only that work normally performed by their craft. As it is clear from the record that the electricians and the instrument electricians are craftsmen and practitioners of the same allied craft, and as they are sought to be represented by a union which historically and traditionally represents them, we find, contrary to the employer and the Intervenor, that the electricians and the instrument electricians may constitute a separate appropriate unit for collective bargaining purposes. American Potash & Chemical Corporation, 107 NLRB No. 290."

The action of the Board was taken pursuant to section 9(b) of the Labor Management Relations Act, 29 U.S.C. A. § 159(b), the pertinent portion of which is as follows:

"(b) The Board shall decide in each case whether, in order to assure to employees 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: 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 * * *."

It is well settled that the determination of the bargaining unit under this provision, except as limited by the act itself, is a matter resting in the sound discretion of the Board. N. L. R. B. v. Williams Lumber Co., 4 Cir., 195 F.2d 669, 671-672; N. L. R. B. v. Clarksburg Publishing Co., 4 Cir., 120 F.2d 976, 980; Packard Motor Car Co. v. N. L. R. B., 330 U.S. 485, 491-492, 67 S.Ct. 789, 91 L.Ed. 1040; May Department Stores Co. v. N. L. R. B., 326 U.S. 376, 380, 66 S.Ct. 203, 90 L.Ed. 145. Here the only pertinent limitation of the act is that which forbids a craft unit to be held inappropriate on the ground that a different unit has been established by a prior Board determination; and that manifestly does not apply since the Board held the craft unit to be appropriate. The rule was thus stated by us in the Clarksburg Publishing case, supra, and quoted with approval in the Williams Lumber Company case, supra, viz.:

"`Subsection 9(b) of the Act, 29 U.S.C.A. § 159(b) gives the Board power to determine the appropriate group of employees for the bargaining unit; and a decision of the Board as to the appropriate unit cannot be disturbed unless the Board exercises the power conferred on it in an arbitrary and unreasonable manner.\'"

The employer and intervenor contend that the power of the Board was exercised in an arbitrary and unreasonable manner, because they say that the rule laid down by the Board for the exercise of the power in its decision in the case of American Potash & Chemical Co., 107 N.L.R.B. 1418, is unreasonable...