Owens-Corning Fiberglas Corporation v. NLRB

• Decision Date: 17 March 1969
• Docket Number: No. 12622.,12622.
• Parties: OWENS-CORNING FIBERGLAS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

407 F.2d 1357 (1969)

OWENS-CORNING FIBERGLAS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12622.

United States Court of Appeals Fourth Circuit.

Argued December 4, 1968.

Decided March 17, 1969.

COPYRIGHT MATERIAL OMITTED

Wm. H. Smith, Jr., Alexandria, Va. (Smith & Smith, on brief), for petitioner.

Marjorie S. Gofreed, Attorney, N.L. R.B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and John D. Burgoyne, Attorney, N.L.R.B., on brief), for respondent.

Before BRYAN, CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

This case comes before us on cross-petitions for review and enforcement of a decision and order of the National Labor Relations Board against Owens-Corning, 172 N.L.R.B. 20 (1968). The Board found the company to have granted employee benefits prior to a Board election in violation of § 8(a) (1) of the Act and to have discharged two employees in violation of § 8(a) (1) of the Act.¹

On August 15 and 16, 1967, pursuant to a representation petition filed by the Glass Bottle Blowers Association, an election was held at the company's Aiken, South Carolina, plant. There were three choices on the ballot: the Glass Bottle Blowers, the Teamsters, and "no union," none of which received a majority. In such situations § 9(c) (3) of the Act² and § 102.70(a) of the Board regulations³ require that a runoff election shall be conducted to determine the winner. The company, on August 23, filed objections to the August 1967 election based on conduct of the Teamsters Union which the Regional Director rejected, and the Board directed that a runoff election be held on February 13 and 14, 1968, between the Teamsters Union and the "no union" choice. Charges which resulted in the decision and order of the Board presently before us were filed October 16, 1967. The Teamsters lost the February 1968 election by a narrow margin and on September 19, 1968, the Board sustained Teamster objections and directed a second runoff election, which election, we were informed in open court by counsel for the company, resulted in a "no union" majority.

The petitions here for review and enforcement deal with events which took place immediately after the August 1967 election before the first runoff election had been scheduled for February of the following year. The company contends that none of the § 8(a) (1) violations found by the Board are supported by substantial evidence and that the § 8(a) (1) violations stemming from company grants of benefits prior to the election are not supported by the pleadings. We disagree and enforce the Board order.

I. THE GRANT OF BENEFITS PRIOR TO THE BOARD ELECTION

The Trial Examiner concluded and the Board adopted his conclusions that the company by granting benefits (wage differentials for employees working beyond their normal workday and improved maternity leave of absence benefits) shortly before a Board election interfered with their employees' free choice in that election and thereby committed unfair labor practices within the meaning of Sections 8(a) (1) and 2(6) and 7 of the Act.

(A) The Extension of Wage Differentials

Prior to the August 1967 election the company had a long-standing policy of paying its employees who worked on the second and third shifts a premium of 5 and 10 cents per hour respectively. Prior to September 1967 day workers working overtime into the later shifts did not receive the hourly premium, but, in September, the plant policy was changed to grant these workers (about 10 percent of the work force at the plant) the premium. It is not disputed that the extension of the shift premium was in fact granted. Section 8(a) (1) "prohibits the conferral of such benefits, without more, where the employer's purpose is to effect the outcome of the election." NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964).

The Board's conclusion that the shift premiums were extended for the purpose of influencing the outcome of the election is supported by substantial evidence considered on the record as a whole. Universal Camera Corp. v. NL RB., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). On August 30, 1967, Plant Manager Gene Lockhart, in a letter to the plant employees, stated:

The result of the recent union representation election held at the Aiken plant came as a suprise to me and other members of our company\'s management. We knew that the paid professional union organizers had spent several months and many thousands of dollars to win your support, however, we did not realize that so many Fiberglas people were convinced that a union could serve their best interests.

As a result of the closeness of the vote, I asked each of your supervisors to review the major reasons why so many people voted for unionization. During the past week, I met with each department\'s supervisory group to frankly discuss any major sources of dissatisfaction and asked for their recommendations as to what should be done to correct present conditions.

Many fine suggestions were made at these meetings.

* * * * * *

In addition, there are some policies that some Fiberglas people regard as unfair. These policies include Sunday seventh day premium pay, maternity leave of absence, Christmas holiday premium pay, shift premium for day people working outside of their regular hours and vacations for people hired after June 1. We are now reviewing these policies and, wherever possible, plan to make changes which will serve the best interests of everyone.

* * * * * *

In all of these actions, we regard the outcome of the recent election as a challenge to do a better job of managing our business in your interest as well as in the interest of the owners and our customers.

In addition, Personnel Manager Brelsford testified at the hearing before the Trial Examiner that the lack of a shift premium had become "a strong point of dissatisfaction among some of our day workers." This testimony and the Lockhart letter support the Board's conclusion that the change in shift premium policy was made for the purpose of inducing the employees to vote against the Teamsters in the runoff election which was then pending.

Brelsford also testified that the major reason for extending the shift premium to day workers was that the company had been in a period of tremendous expansion which required the day workers to work much later than their normal hours. Although this latter testimony may be interpreted as supplying a valid business motive for the extension, see, e. g., Imco Container Co. of Harrisburg v. NLRB, 346 F.2d 178 (4th Cir. 1965), it is not our province, where substantial evidence supports the conclusion of the Board, to substitute our own judgment for that of the Board.

The company complains that the pleadings before the Board do not support or permit the Board's conclusion that the company violated § 8(a) (1) by extending shift premiums. The complaint alleged that the company violated § 8(a) (1) by "implementing wage differentials for various shifts." The company alleges that because the complaint did not allege "an extension of the existing shift differentials" the evidence did not support the allegations. The distinction between "implementing" and "extending" shift differentials is one, we believe, without a difference. The allegation is consistent with and inclusive of the proof offered. That the company was aware of the charges it was required to defend against is clearly indicated by the answer of Personnel Manager Brelsford to company counsel's direct examination before the Trial Examiner:

Q: "In September, or approximately September of 1967, what was the shift differential, if any?

A: Well, I\'m not sure of the dates on this. The change, I think, is what we\'re probably trying to get at. The change that we made in shift differentials was to cover people on nonrotating shifts. In other words, this provision was introduced in about September.

"`All that is requisite in a valid complaint before the Board is that there be a plain statement of the things claimed to constitute an unfair labor practice that respondent may be put on his defense.' American Newspaper Pub. Ass'n v. NLRB, 193 F.2d 782, 800 (7th Cir. 1951). Such a complaint need state only the manner by which the unfair labor practice has been or is being committed, the absence of specifics being tolerated where there has been no special showing of detriment." Curtis-Wright Corp., Wright Aero. Div. v. NLRB, 347 F.2d 61, 72 (3rd Cir. 1965) (footnotes omitted). The issue of whether there was a § 8(a) (1) violation in extending shift premiums was pleaded adequately to permit the Board decision, and, indeed, the Board would have been remiss had it not decided the issue.

The record here shows that the issue of extending shift premiums was fully litigated. It was first brought out on the company's direct examination of its personnel manager, and there was cross-examination on the issue by General Counsel. The "courts as well as the National Labor Relations Board have held that a material issue which has been fairly tried by the parties should be decided by the Board regardless of whether it has been specifically pleaded." American Boiler Manufacturers Association v. NLRB, 366 F.2d 815, 821 (8th Cir. 1966). This rule finds its origin in the requirement that in Board hearings the rules of evidence applicable in the United States District Courts are, so far as practicable, controlling⁴ and in Rule 15(b) Federal Rules of Civil Procedure which provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

(B) Maternity Leave Benefits

The Board also found that the company had improved maternity leave benefits prior to a Board election in violation of § 8(a) (1). The company contends that this finding is not...