Pittsburgh Plate Glass Co.

National Labor Relations Board - Board Decisions

Mar 29, 1955

111 N.L.R.B. 1210 (N.L.R.B. 1955)

1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not permissible , under the circumstances and for the reasons found for Respond-
ent to break off the bargaining negotiations , and having found that the Respondent
refused to bargain collectively with the Union as the exclusive representative of its
employees in an appropriate unit, I shall recommend that the Respondent recog-
nize and bargain collectively with the Union and if an understanding is reached
embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. At all times since March 24, 1954, Retail , Wholesale and Department Store
Union, CIO, has been the certified bargaining representative of the Respondent's
employees in an appropriate unit.
2. By failing and refusing on, and at all times since June 25 , 1954, to bargain col-
lectively with Retail , Wholesale and Department Store Union , CIO, as the exclu-
sive representative of the employees in the appropriate unit, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
and (5 ) of the Act.
[Recommendations omitted from publication.]
PITTSBURGH PLATE GLASS COMPANY and GENERAL DRIVERS LOCAL
UNION No. 968, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL,
PETITIONER . Case No. 39-RC-828. March 29, 1955
Supplemental Decision , Order, and Second Direction of Election
On July 18, 1950, in an earlier proceeding 1 the Board certified the
Intervenor 2 as the exclusive bargaining representative in a unit of all
hourly paid employees at the Employer's retail glass and allied prod-
ucts branch warehouse at Houston, Texas, including auto glaziers and
leadermen, but excluding glaziers,' truckdrivers, truckdriver helpers,
truckdriver and glazier helpers, office and clerical employees, and su-
pervisors as defined in the Act.
On December 8, 1954, the Board issued a Decision and Direction of
Election 4 in the above-entitled case, finding appropriate a unit of all
truckdrivers at the Houston branch warehouse, excluding all other
employees and supervisors as defined in the Act, and directing an elec-
tion therein.-' On the same date, the Board issued a notice to show
cause why the Intervenor's certification of July 18, 1950, should not be
1 Case No 39-RD-4, not reported in printed volumes of the Board Decisions and Orders.
Inside Glass Workers Local No. 642, Brotherhood of Painters , Decorators and Paper-
hangers of America, AFL.
3 Both at the present time and at the time of the certification , the glaziers, their helpers,
and apprentices have been represented by Local No. 1778, Brotherhood of Painters, Dec-
orators and Paperhangers of America, AFL, not involved in this proceeding.
4 Not reported in printed volumes of the Board Decisions and Orders
6 The Petitioner requested ( a) a unit of the 5 truckdrivers and 14 of the 17 "inside" em-
ployees who, although covered by the certification, had never been actually repregented,
due to the Intervenor' s policy of "members only" bargaining ; and (b ) an alternative unit
of the 5 truckdrivers and all 17 of the unrepresented "inside" employees . An election in
this unit has been deferred , pending a determination of the issues herein raised.
111 NLRB No. 194.
PITTSBURGH PLATE GLASS COMPANY 1211
revoked in view of uncontroverted evidence adduced at the hearing to
the effect that since the date of its certification the Intervenor had con-
tinuously bargained with the Employer only for employees who were
members of the Intervenor's organization, in violation of the
certification.
On December 17, 1954, the Intervenor filed a reply to the notice to
show cause, alleging that on September 13, 1954, the Employer and
the Intervenor renewed their contract until September 13, 1955, and
that on December 16, 1954, they amended the contract so as to cover
all of the employees in the certified unit. It further contends that the
current contract therefore operates as a bar to a determination of rep-
resentatives at this time with respect to any employees covered by the
certification and that the units sought by the Petitioner are inappro-
priate and that the petition should therefore be dismissed.'
On December 22, 1954, the Petitioner filed a motion in which it
reiterated its original alternative unit requests and, in addition, re-
quested in the alternative an election in "the entire unit."
On January 5, 1955, the Petitioner filed a reply to the Intervenor's
reply to the notice to show cause, contending that the Employer and
the Intervenor amended their contract too late to avert revocation of
the certification; reiterating its original and alternative unit requests;
and expressing its willingness to participate in an election in whatever
unit the Board finds will best satisfy the bargaining desires of the
hitherto unrepresented employees.
On January 10, 1955, the Employer filed a memorandum in opposi-
tion to the Petitioner's motion, in which it agreed with the Board's
finding that the truckdriver unit was appropriate, and contended that
the truckdrivers would lack a community of interest with the inside
employees in a broader unit, and that the Petitioner's original and
alternative units are inappropriate. The Employer joined in the
Intervenor's allegation that their contract was amended on December
16, 1954, so as to cover all of the employees in the certified unit.
To place the unit issue which now confronts the Board in its
proper perspective, it should be pointed out that at the time the Board
issued its original Decision and Direction of Election, it had before it
only the Petitioner's two original unit requests, both of which in sub-
stance sought the Board's approval of a unit which includes truck-
drivers-a group specifically excluded from the Intervenor's certified
unit-and a segment of the warehouse employees whose sole distinc-
tiveness as a group lay in the fact that they had been denied the repre-
sentation to which they were entitled under the Intervenor's certifica-
tion. The Petitioner, at that time, expressed no desire to represent the
Employer's employees in a unit of larger size. Therefore, for the
Board, under those circumstances, to have held appropriate either of
6 A copy of the amendment was attached to the reply.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Petitioner's requested units would have been tantamount to ac-
cording at least tacit recognition to the Intervenor's "members-only"
group as an appropriate bargaining unit, in derogation of the Inter-
venor's certification. It was for this reason that the Board directed an
election in a unit of truckdrivers, which unit, although smaller than
those sought by the Petitioner, was clearly, on established Board prin-
ciples, an appropriate bargaining unit.
Consideration will therefore be given to the issue, now before the
Board, which was raised by the notice to show cause. In somewhat
analogous circumstances, following a notice to show cause why a cer-
tification should not be revoked for apparent violation of its terms,
the Board has refrained from revoking the certification where it has
received reasonable assurances that definite steps had been initiated
to comply with the terms of the certification.' This policy is by no
means an inflexible one, and its application to any individual case
must necessarily depend on a determination as to whether or not,
under the circumstances of that case, to apply the policy would pro-
mote the greatest freedom of choice of bargaining representatives
among the employees involved and at the same time cause the least
disruption to the existing bargaining pattern. Obviously the result
in any given case depends upon a careful weighing of all the conflict-
ing factors.
The Employer and the Intervenor contend that, by amending their
contract to cover all of the employees in the certified unit, and thus
eliminating the "members-only" feature of their past bargaining
which was the basis of the Board's notice to show cause, a basis for
revocation of the certification no longer exists. The Employer fur-
ther contends that any unit which includes truckdrivers and "inside"
employees at the Houston branch is inappropriate, and the Intervenor
further contends that, inasmuch as the Employer and the Intervenor,
after the petition was filed, renewed their contract until September 13,
1955, which occurred prior to the Petitioner's present request for an
election in the entire unit, the contract operates as a bar to a deter-
mination of representatives with respect to the employees in the
broader unit.
The Petitioner contends that the Employer and the Intervenor
cannot be permitted belatedly to remedy a bargaining defect of nearly
5 years' standing, where to do so would simultaneously deprive a large
unrepresented segment of the Employer's work force of their right to
select a bargaining representative at this time.
After carefully considering the contentions of all parties, and in
the light of all the above facts and circumstances, we conclude that.
the interests of all of the employees, both represented and unrepre-
sented, will best be served by revoking the Intervenor's certification,
7 Hughes Tool Company, 104 NLRB 318. i
PITTSBURGH PLATE GLASS COMPANY 1213
and by directing an election among all of the Employer's hourly paid
employees at the Houston branch, including truckdrivers.8 The adop-
tion of such a course will permit all of the hourly paid employees com-
plete freedom of choice of a bargaining representative in an appro-
priate unit and will at the same time be in accord with the historical
bargaining pattern at the Houston branch. Accordingly, we find that
the Petitioner's present unit position has merit.
Under the circumstances present in this case, we are convinced that
unless all the employees in the appropriate bargaining unit are
presently permitted to express their desires with respect to their choice
of a bargaining representative in a Board election, the serious defect
in the past bargaining history between the Employer and the Inter-
venor will not be adequately remedied. The Board wishes to make it
clear that it will not countenance the flagrant disregard of its certifica-
tion by an avowed policy on the part of the certified bargaining repre-
sentative to represent its members only rather than all the employees
in the bargaining unit. It is with this in mind that we are making the
present disposition.
We find no merit in the contention of the Employer and the Inter-
venor that their contract executed on September 13, 1954, constitutes
a bar. That contract was executed after the representation petition
was filed by the Petitioner and at a time when bargaining clearly was
being conducted on a members-only basis despite the Board's certifica-
tion which required representation of all the employees covered by the
certification. Although the Board has upheld as a bar a contract exe-
cuted after the filing of a petition where the petition was subsequently
amended to enlarge substantially the scope of the unit originally
sought,9 that principle is inapplicable here for the reason already
stated and because the change in the scope of the unit stems entirely
from the existence of a defective bargaining history, a factor to which
the Board accords little or no weight in making unit determinations.10
In our opinion, therefore, these facts render the contract no bar to a
present determination of representatives.
Upon the entire record in this case. the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations herein involved claim to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
8 The truckdrivers perform work in the warehouse , in addition to making city deliveries,
Their separate representation is not sought. Bachmann Uxbridge Worsted Corporation
(Uxbridge Mill ), 109 NLRB 868 . There appear to be no "auto glaziers " currently in the
Employer 's employ ; auto glaziers were included in the certification.
8 Dunbar G lass Corporation, 77 NLRB 742.
10 Anheuser-Busch, Inc., at al., 103 NLRB 1205 , at 1209-1210.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. We find that all hourly paid employees at the Employer's retail
glass and allied products sales branch warehouse at Houston, Texas,
including truckdrivers, warehousemen, warehousemen helpers, box
makers, order fillers, order clerks, packers and leadermen, the shipping
clerk, the metals man, and the office porter, but excluding office clerical
employees, professional employees, guards, watchmen, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
In view of the fact that we find appropriate a unit comprising all
of the hourly paid employees at the Employer's Houston branch, in-
cluding the truckdrivers, and are directing an election among the em-
ployees in that unit, we shall also order that the Decision and Direction
of Election issued by the Board on December 8, 1954, directing an
election in the unit limited to the truckdrivers, be rescinded.
Order
IT IS HEREBY ORDERED that the certification issued on July 18, 1950,
of Inside Glass Workers, Local Union No. 642, Brotherhood of
Painters, Decorators and Paperhangers of America, AFL, as the ex-
clusive bargaining representative of all hourly paid employees at the
Employer's branch warehouse at Houston, Texas, including auto
glaziers and leadermen, but excluding glaziers, truckdrivers, truck-
driver helpers, truckdriver and glazier helpers, office and clerical em-
ployees, and supervisors as defined in the Act, be, and the same hereby
is, revoked.
IT IS FURTHER ORDERED that the Decision and Direction of Election
issued by the Board on December 8, 1954, in the above entitled case,
directing an election in a unit of all truckdrivers at the Employer's
retail glass branch warehouse at Houston, Texas, be, and the same
hereby is, rescinded.
[Text of Second Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision, Order, and Second Direction of Election.
CHARLESTON TRANSIT COMPANY and AMALGAMATED ASSOCIATION OF
STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMER-
ICA, AFL. Case No. 9-CA-623. March 30,1955
Decision and Order
On November 20,1953, Trial Examiner Sidney S. Asher, Jr., issued
his Intermediate Report, a copy of which is attached hereto, finding
that the Respondent is not engaged in commerce or in activities affect-
111 NLRB No. 197.