Pittsburgh Plate Glass Co.

National Labor Relations Board - Board Decisions

Sep 4, 1958

121 N.L.R.B. 758 (N.L.R.B. 1958)

758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board directed that the Regional Direct-or for the Sixteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballot of Raymond Campbell and serve upon the
parties a supplemental tally of ballots ]
Pittsburgh Plate Glass Company and International Brotherhood
of Electrical Workers, AFL-CIO. Case No. 5-CA-1208 Sep-
tember 4, 1958
DECISION AND ORDER
On March 6, 1958, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto Thereafter, the Respondent
and the Intervenor, United Glass and Ceramic Workers of North
America, AFL-CIO-CLC, filed exceptions to the Intermediate Re-
port and supporting briefs 1 The Respondent also requested oral
argument The request is hereby denied, as the record and briefs, in
our opinion, adequately present the issues and positions of the
parties
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed 3 The Board has considered the
i On April 7, 1958, the Board issued an order granting the Intervenor an opportunity
to file exceptions and a brief We hereby deny the Intervenor's request to reopen the
record to adduce evidence with respect to the status of the charging union as a "tradi-
tional representative" of craft employees , an issue which was fully litigated in Case
No 5-RC--2088, 117 NLRB 1728, which proceeding is part of the record in the instant
case Moreover, the Intervenor was a party to that proceeding and participated fully
therein
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated Its
powers in connection with this case to a three member panel [ Chairman Leedom and
Members Bean and Jenkins]
3 At the hearing in this case, as in the representation proceeding in Case No 5-RC-2088,
the Respondent sought to introduce evidence concerning the compliance status of Local 307
of the International Brotherhood of Electrical Workers, AFL-CIO, with the filing re-
ctuirements of Section 9 (f), (g), and (h) of the Act In Case No 5-RC-2088, the
Respondent and the Intervenor had moved for dismissal of the petition, alleging that
Local 307 was not in compliance The Board denied the motion upon the ground that
the compliance issue is litigable in an independent proceeding and not in a representation
proceeding, citing Standard Cigar Co, 117 NLRB 852 The Trial Examiner refused to
take the proffered testimony in the instant ease, relying on the Boards decisions in the
representation proceeding in Case No 5-RC-2088 and in Standard Cigar Co, supra We
agree with the Trial Examiner's ruling, which is in accord with established Board prac-
tice, that factual issues pertaining to the compliance status of Local 307 , such as the
Respondent sought to raise at the hearing herein and the Intervenor raised in its brief,
were matters for administrative determination and not litigable in Board representation
or complaint proceedings Standard Cigar Co, supra, at pp 854-855, Langdale Veneer
Products Corporation, 118 NLRB 985, 986, footnote 2, Sh,orehne Enterprises of America,
121 NLRB No 96
PITTSBURGH PLATE GLASS COMPANY 759
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Pittsburgh Plate
Glass Company, Cumberland, Maryland, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing or failing to bargain collectively in good faith with
International Brotherhood of Electrical Workers, AFL-CIO, as the
exclusive representative of Respondent's employees in the unit here-
tofore found appropriate.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-organi-
zation, to form labor organizations, to join or assist International
Brotherhood of Electrical Workers, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Upon request, bargain collectively with the above-named Union
as the exclusive bargaining agent of all its employees in the appro-
priate bargaining unit with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed agree-
ment.
(b) Post at its plant in Cumberland, Maryland, Works No. 7, copies
of the notice attached to the Intermediate Report marked "Appendix
A." 4 Copies of said notice, to be furnished by the Regional Director
for the Fifth Region, shall, after being signed by the Respondent's
Ino., 117 NLRB 1619 Neither party availed itself of the opportunity to present the
compliance issue to the Board in a collateral proceeding. Furthermore, the Board is
administratively satisfied that Local 307 Is, and at all times material to this proceeding
has been, in compliance with the filing requirements of the Act.
4 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
,the words "Pursuant, to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, be posted by the Respondent and maintained by it for,
sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, as to what steps the
Respondent has taken to comply herewith.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the Labor Management Relations
Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Baltimore, Maryland,
on December 3, 1957, pursuant to notice to all parties. The complaint, issued on
October 14, 1957, by the General Counsel of the National Labor Relations Board 1
and based on a charge duly filed and served, alleged that the Respondent, Pittsburgh
Plate Glass Company, had engaged in unfair labor practices proscribed by Section
8 (a) •(1) and (5) of the Act. The complaint alleged that although the Board
had formally certified the Union, International Brotherhood of Electrical Workers,
AFL-CIO, as the representative of the employees in an appropriate unit, the
Respondent has at all times since about September 9, 1957, refused to bargain
collectively in good faith with the Union. In its answer Respondent admitted the
commerce allegations in the complaint and admitted that the Union is a labor organ-
ization . In its answer Respondent contended that it was in no way obligated under
the Act to bargain with the Union because the representation proceedings were
conducted at a time when a certain local of the International Union-Local 307-
which local assisted the Union in the organization of the employees in the-appro-
priate unit and admitted into membership the employees in said unit , was' not in
compliance with Section 9 (f), (g), and (h) of the Act. Respondent contended
further in its answer that it was not obligated to bargain with the Union because
the Board's decision represented an arbitrary and capricious exercise of administra-
tive power and was violative of the due process provisions of the fifth amendment
to the Constitution. In its answer Respondent moved that this proceeding be
remanded to the Board with directions that it discharge its obligation under the
Act. In the alternative Respondent prayed that this proceeding be dismissed.
This motion and this prayer are hereby acted upon in accordance with the conclu-
sions and recommendations of this Intermediate Report.
Prior to the hearing Respondent obtained and served upon the Regional Director
a subpoena duces tecum calling upon the Regional Director to produce documents
relating to the compliance status of Local 307 of the International Union, and moved
the General Counsel for permission for the said Regional Director to respond to the
subpena, which motion was treated by the General Counsel as a request to have a
Board employee testify pursuant to Section 102.87 of the Board's Rules and
Regulations, Series 6, as amended, and which request was denied by the General
Counsel. Thereafter and prior to the hearing the said Regional Director moved
to quash and petitioned to revoke the subpoena duces tecum, which motion and
petition I granted on November 27 prior to the hearing.
Prior to the hearing United Glass and Ceramic Workers of North America,
AFL-CIO-CLC, filed with the Regional Director a motion to intervene as a re-
spondent together with a proposed answer, and prior to the hearing this motion was
denied by the Regional Director. At the hearing this motion was renewed before
me and was again denied. At the hearing I denied Respondent's motion to incor-
porate by reference the transcript and exhibits in the representation case herein-
Case No. 5-RC-2088. As this ruling may have been in error and as the Board
in any case will take official or judicial notice of the prior proceeding, I hereby
reverse my previous ruling and grant the motion to incorporate herein by reference
the transcript and exhibits in the representation case.
On January 9, 1958, after the close of the hearing, Respondent sought to correct
an inadvertent omission from paragraph VIII, line 4 of its answer by filing a
1 The General Counsel and the staff attorney appearing for him at the hearing are
referred to herein as the General Counsel.
PITTSBURGH PLATE GLASS COMPANY 761
motion to amend its answer and serving a copy thereof upon each of the other
parties. No objections have been filed to this motion, and under all the circum-
stances, the motion is hereby granted. This motion has been placed in the exhibit
file as Respondent's Exhibit No. 7.
At the hearing Respondent sought to introduce evidence concerning the compli-
ance status of Local 307. This testimony was not taken. Standard Cigar Com-
pany, 117 NLRB 852; see representation case herein, 117 NLRB 1728, footnote 4.
The Respondent, the Union, and the General Counsel were all represented at the
hearing and were afforded opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence, to argue orally, and to file briefs.
Upon the entire record in the case I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Pittsburgh Plate Glass Company, a Pennsylvania corporation
with its principal office in Pittsburgh, Pennsylvania, has plants, warehouses, and
stores in 45 States where it is engaged in the manufacture, distribution, and sale
of glass, paint, chemicals, brushes, and related products. This proceeding involves
its plant at Cumberland, Maryland, where it is engaged in the manufacture and
sale of plate glass. In the course and conduct of its business operations as de-
scribed above, Respondent annually manufactures goods and materials of a value
in excess of $500,000,000, of which an amount valued in excess of $100,000,000
is shipped across State lines in interstate commerce. Respondent admitted, and I
find, that Respondent has been at all times material herein engaged in commerce
within the meaning of Section 2 (6) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
Pursuant to a hearing in the representation case the Board in its Decision and
Direction of Election 2 found that the following employees constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act:
All electricians, including shift, shop, and electronics electricians, instrument re-
pairmen, and apprentices for such classifications, employed at the Employer' s plate
glass manufacturing plant in Cumberland, Maryland, excluding all other employees,
guards, and supervisors as defined in the Act.
This unit finding is binding upon the Trial Examiner. Morganton Full Fashioned
Hosiery Company, 115 NLRB 1267, 1268 (footnote 1), 1272.
In its answer Respondent contended that the Board's unit finding in the rep-
resentation case
was the direct result of the Board's discriminatory refusal to apply to Respond-
ent's operations the same objective standards that it applied in National Tube
Company, 76 NLRB 1199. The Board's decision thus represents an arbitrary
and capricious exercise of administrative power within the meaning of Section 9
of the Act and it is violative of the due process provisions of the Fifth Amend-
ment to the Constitution of the United States. Therefore, Respondent is not
now nor has it ever been under any obligation to bargain collectively with
the Union.
In its answer Respondent asserted further,
Section 9 (b) of the Act requires the Board to "decide in each case" the unit
appropriate for collective bargaining. In Case No. 5-RC-2088 the Board
failed to decide upon the record before it the appropriate unit for purposes of
collective bargaining. Instead, the Board granted the Union's petition for the
sole reason that it had declared its intention in American Potash & Chemical
2117 NLRB 1728.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation, 107 NLRB 1418, to apply a different doctrine to all but four
industries....
Analysis of the Board's Decision and Direction of Election in Case No. 5-RC-2088
(117 NLRB 1728) establishes that Respondent's defense is not well founded. Thus
the Board considered Respondent's contention before it there that "the refusal to
apply the principles of that case (National Tube) would be arbitrary and unreason-
able," and found the contention without merit . Then the Board set forth its general
policy, first announced in American Potash, of not extending the National Tube
doctrine beyond those industries in which it has already been applied. Then the
Board said,
Moreover , there is nothing raised herein concerning integration or pattern of
collective bargaining within the glass industry which has not been heretofore
considered by the Board, or which warrants a change of our established policy.
At this point the Board, in a footnote, cited cases, decided since American Potash,
in which the Board had considered the questions of integration or pattern of collective
bargaining within the glass industry.
After considering the composition of the unit, the Board, in a footnote, showed
that it considered-and found without merit-the Intervenor's 3 contention in that
case that the Cumberland plant was a mere accretion to an existing unit of other
flat-glass plants of the Employer, and that therefore the unit should include all
similar employees at all the Employer's plate and window glass plants.
In its Decision and Direction of Election in the representation case, the Board
rested its appropriate unit finding upon the points specifically treated in the Decision
and upon "the record as a whole." As has been seen above, on its face this Decision
reflected the fact that, in accordance with the requirement of Section 9 (b) of the
Act, the Board there reached its decision concerning the appropriate unit after
considering all the facts in the record of the representation case and after considering
the Employer's contentions regarding these facts. Among the points it considered
was the question of integration or pattern of collective bargaining within the.glass
industry, and having considered all matters raised which were related to that question,
the Board found that none of those matters had not been considered by it before
or warranted a change in its established policy. The Board therefore rested its ap-
propriate unit finding not solely upon its established policy as first announced in
American Potash, but as well upon the entire record in the representation case and
after consideration of integration or pattern of collective bargaining in the industry,
which was the controlling consideration in National Tube.
2. The Union's representation of a majority in the appropriate unit
Following the Board-directed secret balloting on June 19, 1957, at which a majority
of those voting in the appropriate unit cast votes in favor of International Brother-
hood of Electrical Workers, AFL-CIO, on June 27, 1957, the Board, through its
Regional Director for the Fifth Region, certified that this Union was the exclusive
representative of all the employees in the appropriate unit.
3. The refusal to bargain'
On or about July 5, 1957, the manager of Respondent's plant in Cumberland,
Maryland, received the following letter from Frank W. Adams, an International
representative of the certified Union:
On June 27, 1957, the International Brotherhood of Electrical Workers,
AFL-CIO was certified by the National Labor Relations Board to represent all
the company's electricians, including shift, shop and electronics electricians,
instrument repair men and apprentices for such classifications employed at the
Cumberland, Maryland Plant, Works No. 7.
As the certified collective bargaining agency for all such employees we are
hereby requesting that there be no changes made in their wages, hours of work
or any other condition of employment except and unless by mutual agreement
prior to the execution of a written working agreement between the Company
and the IBEW.
The Intervenor was United Glass & Ceramic Workers of North America, AFL-CIO-CLC.
PITTSBURGH PLATE GLASS COMPANY 763
We expect to request a negotiating conference in the near future. In the
meantime we have some preliminaries to take care of.
On or about August 23 , 1957, the plant manager of the Cumberland , Maryland,
plant , Mr. R. M . Hainsfurther , received the following further letter from Frank W.
Adams , dated August 22, 1957:
On June 27, 1957 , the I . B. E. W., AFL-CIO was certified by the National
Labor Relations Board to represent the electrical workers employed at Works
No. 7, Cumberland , Maryland.
Therefore , we respectfully request of the Company to designate authorized
representatives, to meet with the writer and a committee for the purpose of en-
tering into negotiations on the earliest possible date to attempt an amicable
understanding on a contract covering wages , hours and all other conditions of
employment for such employees.
We suggest that negotiations be opened on September 10, 1957 at some place
in Cumberland , Maryland designated by the Company.
We await your reply.
On or about August 28 , 1957, Plant Manager Hainsfurther wrote Frank W. Adams
as follows:
Your letter of August 22, 1957, was received.
I have referred the matter of your request to our General Office in Pittsburgh.
As soon as I receive word from there, I will advise you.
On September 9, 1957 , Plant Manager Hainsfurther wrote a further letter to Frank
W. Adams as follows, which was duly received by Adams:
Please be advised that the Pittsburgh Plate Glass Company, Works No. 7,
Cumberland , Maryland , does not recognize the International Brotherhood of
Electrical Workers as the collective bargaining representative for any of its
employees.
On or about September 15, 1957 , Adams sent the following night letter by Western
Union to Plant Manager Hainsfurther which was received by Hainsfurther the fol-
lowing day:
We are very much disturbed over your reply of September 10, 1957, to our
request for a bargaining conference.
It is our opinon that the Company is legally obligated to bargaining for those
employees included in the unit for which our Union was recently certified to
represent by the National Labor Relations Board.
Therefore , we again urgently request of the Company collective bargaining
conferences beginning on the earliest possible date at which we would propose
adoption of all applicable provisions of the Contract currently in effect covering
employees in the plant who are represented by another Union , and that any
such provisions adopted and set forth in a Contract properly identified as being
between our Union and the Company covering only those employees for whom
our Union has been certified.
Failure of the Company to give a favorable reply on or before September 19,
1957, will leave us no alternative except to immediately file refusal to bargaining
charges with the National Labor Relations Board.
At the hearing herein , Respondent 's counsel was asked if he would stipulate that
the Company has not met with any representative of the Union in any bargaining
session to date. While disinclined to stipulate , Respondent 's counsel conceded that
"I am not aware of any such meeting."
On the above evidence and on the entire record I find that on Septemebr 9, 1957,
and at all times thereafter , Respondent refused to bargain collectively with the Union
in violation of Section 8 (a) (5) and ( 1) of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in section III, above , occurring in connection with
Respondent 's operations described in section I, above , have a close , intimate , and sub-
stantial relation to trade, traffic , and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
It having been found that Respondent refused to bargain collectively with the
Union as the exclusive representative of its employees in the appropriate unit, I
recommend that Respondent upon request bargain collectively with the Union as
the exclusive representative of such employees with respect to rates of pay, wages,
hours, and other terms and conditions of employment.
CONCLUSIONS OF LAW
1. Pittsburgh Plate Glass Company is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, AFL-CIO, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
3. At all times material herein, the following employees of Pittsburgh Plate Glass
Company at its Cumberland, Maryland, plant, Works No. 7, have constituted and
now constitute a unit appropriate for the purposes of collective bargaining: All elec-
tricians, including shift, shop, and electronics electricians, instrument repairmen,
and apprentices for such classifications, excluding all other employees, guards, and
supervisors as defined in the Act.
4. At all times since June 27, 1957, International Brotherhood of Electrical Work-
ers, AFL-CIO, has been the exclusive bargaining representative of the employees
in the aforesaid appropriate unit in accordance with the provisions of Section 9, of
the Act.
5. By refusing, at all times since September 9, 1957, to bargain collectively with
the above-named Union as the exclusive representative of all its employees in the
aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) and (1) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International Brotherhood
of Electrical Workers, AFL-CIO, as the representative of all our employees in
the appropriate unit described below.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist International Brotherhood of Electrical Workers,
AFL-CIO, or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL bargain collectively upon request with the above-named Union as
the exclusive representative of all our employees in the appropriate unit with
respect to 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 . The appropriate unit is:
All electricians , including shift, shop , and electronics electricians , instru-
ment repairmen, and apprentices for such classifications, at our Cumberland,
Maryland, plant, Works No. 7, excluding all other employees , guards, and
supervisors as defined in the National Labor Relations Act.
THE CINCINNATI TRANSIT COMPANY 765
All our employees are free to become, remain , or refrain from becoming members
of the above-named Union or any other labor organization except to the extent that
this right may be affected by an agreement in conformity with Section 8 (a) (3) of
the Act.
PITTSBURGH PLATE GLASS COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
The Cincinnati Transit Company, Petitioner and Amalgamated
Association of Street and Electric Railway Employees of
America, Division 627, AFL-CIO. Case No. 9-RM-161. Sep-
tember 4, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William C. Humphrey,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.'
4. The Union seeks to add, to its existing unit of operating and
maintenance employees in the Employer's public passenger transpor-
tation system in metropolitan Cincinnati, Ohio, a group of 32 hitherto
1 The Union 's bylaws forbid participation in meetings and bargaining negotiations to
certain employees . The Employer contends that the Union is not a labor organization as
defined in Section 2 (5) of the Act because the division clerks herein are covered by such
provisions . We find the contention without merit. Employees do participate in the
Union. Further, the degree of participation of some employees is immaterial as to its
status as a labor organization , because the authority of a bargaining agent to represent
employees must be sought in the consent of the employees and not in the bylaws.
Capital Transit Company, 98 NLRB 141. -
121 NLRB No. 95.