Pittsburgh Plate Glass Co.

National Labor Relations Board - Board Decisions

Sep 19, 1939

15 N.L.R.B. 515 (N.L.R.B. 1939)

In the Matter of PITTSBURGH PLATE GLASS COMPANY and FEDERATION
OF FLAT GLASS WORKERS OF AMERICA , AFFILIATED WITH C. I. O.
Case No. C-1222.-Decided September 19, 1939
Glass Manufacturing Industry-Unit Appropriate for Collective Bargaining:
production and maintenance employees , excluding window -glass cutters , super-
visory employees , and clerical employees not directly connected with production,
at ,fiat-glass plants of Company in six cities ; unit found appropriate by Board
in previous representation proceeding adhered to-Representatives : proof of
choice: majority of union ; findings of Board in prior representation proceeding
.adhered to-Collective Bargaining : refusal to bargain admitted by Company ;
refusal not justified by Company ' s denial of appropriateness of unit proposed
by union where Board had found that -unit appropriate in immediately preced-
ing representation proceeding ; Company ordered , upon request, to bargain
with union.
Mr. Robert W. Kleeb, for the Board.
Smith, Buchanan & Ingersoll, by Mr. John G. Buchanan, Mr. Wil-
liam J. Kyle, Jr., and Mr. Donald L. McCaskey, of Pittsburgh, Pa.,
and Igoe, Carroll, Keefe and McAfee, by Mr. J. Wesley McAfee, of
St. Louis, Mo., for the respondent.
ilfr. H. B. Holmes and Mr. W. T. Lewis, of Columbus, Ohio, for the
Federation.
Mr. Fred J. Ho f f meister, of St. Louis, Mo., for the Crystal City
Union.
Mr: Robert Kramer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Federation of
Flat Glass Workers of America, affiliated with C. I. 0., herein called
the Federation, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Fourteenth Region (St.
Louis, Missouri), issued its complaint, dated June 17, 1938, against
Pittsburgh Plate Glass Company, Pittsburgh, Pennsylvania, herein
called the respondent, alleging that the respondent at its plant sit-
15 N. L. R. B., No. 58.
515
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uated at Crystal City, Missouri, had engaged in and was engaging
in unfair labor practices affecting commerce., within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, accompanied by notice of hearing, were duly. served
upon the respondent and the Federation. Tn'respect of the unfair
labor practices within the meaning of Section 8 (2) of the Act, the
complaint alleged in substance that the respondent- had dominated
and interfered with the formation and administration of Crystal City
Glass Workers' Union, herein called the Crystal City Union, 'a labor
organization of the respondent's employees at its Crystal City, Mis-
souri; plant. A hearing was held in Crystal City, Missouri, on July
18, 20, and 22, 1938, before Joseph L. Maguire, the Trial Examiner
duly designated by the Board. The Crystal City Uilion did not enter
an appearance, or attempt. to intervene in the proceeding. On July
22, .1938, counsel for the Board, the respondent, and the Federation
entered into a stipulation, on the basis of which the Board, on Sep-.
tember 22, 1938, issued a Decision and Order 1 requiring the respond-
ent to cease and desist "from recognizing or dealing with the Crystal
City Glass Workers' Union as a labor organization, or any, person or
group of, persons. purporting to represent said organization." On
January 14, 1939, the United States Circuit Court. of -Appeals for the
Eighth ' Circuit entered a decree enforcing the Order of the Board.2
On April 4, 1938, the Federation filed with, the Regional Director
for the Sixth Region (Pittsburgh, Pennsylvania) a petition, and on
May 13,.1938, an amended petition, alleging that a question .affecting
commerce had arisen concerning the representation of the respond-
ent's employees at its plants located in Ford City and Creighton,
Pennsylvania; Mt. Vernon, Ohio; Clarksburg, West Virginia; Henry-
etta, Oklahoma; and Crystal City, Missouri, and requesting an inves-
tigation and certification of representatives pursuant to Section 9
(c) of the Act. On May 26, 1938, the Board ordered an investigation
and authorized the Regional Director to conduct it. Pursuant to a
notice of hearing issued on September 27, 1938, by the Regional Direc-
tor, a .hearing was held on October 13 and 14, 1938, at Pittsburgh,
Pennsylvania; before Tilford E. Dudley, duly designated- as Trial
Examiner by the Board. At the opening of the hearing the Trial
Examiner denied the request of the Crystal City Union to intervene
on the ground that the Crystal City Union, ' having been named in
the Federation's petition and amended petition as a labor organiza-
tion claiming to represent employees directly. affected by the investi-
gation, was already a party to the proceeding. The Crystal City
18 N. L. R. B. 1210.
2102 F. ( 2d) 1004.
PITTSBUJIGH PLATE GLASS COMPANY 517
Union then waived any absence of formal notice to it of the hearing.
The Board , the respondent , the Federation , and the Crystal City
Union were represented by counsel and participated in the hearing.
Full opportunity to be heard , to examine and cross-examine witnesses,
and to introduce evidence bearing on all the issues was afforded all
the parties , except that the Trial Examiner , because of the Board's
Decision and Order of September 22, 1938, refused to allow the
Crystal City Union to introduce evidence as to its membership or
representation of employees . After the hearing, the respondent, the
Federation and the Crystal City Union filed briefs , and on December
20, 1938, pursuant to notice duly served upon all the parties , oral argu-
ment, in which - counsel for the respondent and the Federation par-
ticipated , was had before the Board in Washington , D. C. On Janu-
ary 13, 1939 , the Board issued its Decision and Certification of Repre-
senatives ,3 finding: ( 1) that the production and maintenance em-
ployees of the respondent, excluding window-glass cutters, clerical
employees not directly connected with production , and supervisory
employees, at the respondent's fiat-glass' plants situated in Mt. Ver-
non, Ohio; Clarksburg, West Virginia; Henryetta, Oklahoma; Crys-
tal City, Missouri; Creighton, Pennsylvania; and Ford City,
Pennsylvania , constituted a unit appropriate, for the purposes of -col-,
lective bargaining within the meaning of Section 9 (b) of the Act;
and (2 ) that the Federation was the exclusive representative of all
the employees in the above-described unit for the purposes of col-
lective bargaining, .within the meaning of Section 9, (a) of the Act.
The Board certified the Federation as the exclusive representative of
the employees in the unit found to be appropriate.
Upon charges duly filed by the Federation, the Board, by the
Regional Director for the Sixth Region ( Pittsburgh , Pennsylvania),
issued its complaint in the instant , proceeding , dated February 20,
1939, against the respondent , alleging that the respondent had en7
gaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and ( 5) and Section 2
(6) and (7) of the Act . Copies of the complaint , accompanied by
notice of hearing, were duly served upon the- respondent and the
Federation.
In respect of the unfair labor practices the complaint alleged in
substance ( 1) that on or about January 18 and 19, 1939, and there-
after the respondent refused to bargain collectively with the Fed-
eration as the exclusive representative of all the respondent's em-
ployees in the unit found by the Board in its Decision of January
13,1939, to be appropriate for the purposes of collective bargaining;
810 N. L. R. B. 1111.
199-549-39-vol. 15--34
,518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (2) that by the above and other acts the respondent interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
The respondent filed an answer, dated March 3, 1939, admitting the
allegations of the complaint in respect to its refusal to bargain col-
lectively with the Federation, but denying that it had thereby engaged
in any unfair labor practices within the meaning of the Act. The
answer affirmatively alleged that the Board's Decision and Certifica-
tion of Representatives and the findings therein were "erroneous, arbi-
trary, and invalid, for the. reason, among others," that the unit found
appropriate for the purposes of collective bargaining by the Board
was not the appropriate unit "within the meaning of Section 9" of the
Act.
Pursuant to notice, a hearing was held at Pittsburgh, Pennsylvania,
on March -6, 1939, before Webster Powell, the Trial Examiner duly
designated by the Board. At the opening of the hearing, the Crystal
City Union requested leave to intervene. The respondent joined in
this request of the Crystal City Union. The Trial Examiner per-
mitted the Crystal City Union to intervene, but stated that he would
not permit it to addixce evidence on matters decided by the Board's
Decisions of September 22, 1938, and January 13, 1939. The Board,
the respondent, the Federation, and the Crystal City Union were
represented by counsel and participated in the hearing.
During the hearing the Trial Examiner excluded evidence offered
by the Crystal City Union to prove: (1) that at the time of the
hearing; 1,500 of the 1,800 employees at the Crystal City plant be-
longed to the Crystal City Union and had designated it as their rep-
resentative for the purposes of collective bargaining, and that the
members of the Crystal City Union were opposed to being represented
by the. Federation for the purposes of collective bargaining; (2)
that the respondent had not dominated, interfered with, or con-
tributed support to the Crystal City Union; (3) that the employees
at the Crystal City plant had distinct interests from employees at
the respondent's other plants; (4) that the Crystal City Union had
bargained collectively with the respondent for its members until the
respondent refused to continue such bargaining because of the
charges, mentioned above, filed against the respondent by the Federa-
tion with the Regional Director for the Fourteenth Region; and (5)
that since the stipulation of July 22, 1938, was entered into by the
Board, the respondent, and the Federation, and since the Board's
Decision of January 13, 1939, the membership of the Crystal City
Union had increased. The Trial Examiner also excluded substan-
tially similar evidence offered by the respondent.
PITTSBURGH PLATE GLASS COMPANY 519
Part (2) of the offers of proof was clearly inadmissible in view of
The stipulation of July 22, 1938, the Board's Order of September 22,
1938, and the court decree of January 14, 1939.4 As to part (3), at
the hearing in the representation case the respondent and the Crystal
City Union were given full opportunity to present such evidence,
and in the present proceeding neither the respondent nor the Crystal
City Union indicated that the proof sought to be admitted related to
evidence unavailable at, discovered since, or not introduced in, the
representation hearing. With respect to parts (1), (4), and (5) of
the offers of proof, we find it unnecessary herein f6 rule upon the ad-
missibility of such evidence. For the reasons hereinafter set forth,
even if the facts stated in the offers of proof are accepted as true,
they would not alter our determination of the appropriate bargaining
unit. Neither the respondent nor the Crystal City Union has there-
fore been prejudiced by the Trial Examiner's ruling.
Apart from the limitations resulting from the above rulings of the
Trial Examiner, full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all the parties.
During the course of the hearing the Trial Examiner made a num-
ber of rulings on other motions and on other objections to the admis-
sion of evidence. The Board has reviewed all the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On March 18, 1939, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon all the parties, finding
that the respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (1) and (5) of the
Act. He recommended that the respondent cease and desist from its
unfair labor practices and that, upon request, it bargain with the
Federation as the exclusive representative of the employees in the
unit, found appropriate by the Board in its Decision of January 13,
1939.
The respondent and the Crystal City Union each filed exceptions
to the Intermediate Report, and to various rulings of the Trial Exam-
iner-, and briefs in support of their exceptions. On June 8, 1939,
4 The Crystal City Union asserts that the stipulation of July 22 and the Order of
September 22 are not binding upon it because it did not intervene or participate in that
hearing or sign the stipulation. However, the Crystal City Union did not enter an
appearance or attempt voluntarily to intervene in the complaint proceeding. It was not
entitled to notice of the hearing in the complaint proceeding and its presence was not
necessary to enable the Board to issue an appropriate order against the respondent.
National Labor Relations Board Y. Pennsylvania Greyhound Lines, Inc., and Greyhound
Management Company, 303 U. S. 261 (1938).
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to notice duly served upon all the parties, oral argument
was had before, the Board in Washington, D. C., by the respondent,
the Federation, and the Crystal City Union. The Board has reviewed
all the exceptions to the Intermediate Report and to the rulings of
the Trial Examiner and finds them to be without merit, except as
they are consistent with the findings, conclusions, and order set forth
below.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Pennsylvania corporation with its principal
place of business in Pittsburgh, Pennsylvania. It is engaged in the
manufacture, sale, and distribution of, among other products, chem-
icals, paints, varnishes, lacquers, brushes, and many types of glass.
The respondent has separated its operations into five main divisions,
namely: glass; cement; brushes; chemicals; and paint, varnish and
lacquer.'. The present proceeding involves the glass division only..
The following table shows the location of the plants in the glass
division involved in this proceeding, the type of glass each pro-
duces, the volume of its production in 1937, the percentage of this
production shipped in 1.937 to points outside the State in which the
plant is located, the percentage of the raw materials used at each
plant shipped to it in 1937 from points outside the State in which
it is situated, and the normal number of employees at each plant.
I In its Decision of January 13, 1939, the Board found that the five main divisions of the
respondent's operations were : commercial, chemical, paint, brush, and flat glass. This
finding was based upon the testimony of Robert L. Clause, vice president of the respondent
in charge of the flat-glass division. At the hearing in the instant proceeding, counsel for
the Board and the respondent agreed that the respondent's five divisions were those set,
forth above in the present Decision.
Percent- Percent-
age of age of
products raw materials Normal number of em-
Plant Location Products Volume of production in 1937 shippedoutside
shipped Ployees as shown bypay roll of Sept. 30,
State of
into State
ofloca- 1938
location tion inin 1937 1937
21, 289 (plate workers)
Works No. 1___ Creighton, Pa_________ Plate and safety glass_________________
35,072,350.33 sq. ft. of plate glass___ ________________
{17,416,303.36 sq. ft. of safety glass __________________
1 99
3 95
8
4947 (safety workers)
-
2,236 (total).
Works No. 4____ Ford City, Pa_________ Plate glass____________________________ 22,203,732.94 sq.ft--------------------------------- 9.5 14 1,408
Works No. 6---- Ford City, Pa_________ Carrara structural glass__________ _____ 150,219.16 sq.ft------- _---------------------------- 95 45 268
Works N"o.9---- Crystal City, Mo_____ Plate and safety glass____ _____________
{34,511,734.17 sq. ft. of plate glass _ _______ ______ _ _ __
13,240,234 sq. ft. of safety glass______________ _______
3199
} 20 1,007
Works No. 10___ Henryetta, Okla Window glass _________________________ 494,530 boxes -------------------------------------- 83 50 2 273
Works No.ll__ Mt. Vernon, Ohio ----- Window glaass_________________________ 893,389 boxes ------------- _------------------------ 92 28 2 350
Works No. 12___ Clarksburg, W. Va____ Window glass -------------------- ---- > 975,806 boxes -------------------------------------- 99 39 353
Plate glass.
2 This figure is taken from the pay roll of Dec. 8, 1937, the last one prior to the hearing which reflected normal employment at this plant.
3 Safety glass.
4 This figure is taken from the pay roll of Feb. 1, 1938, the last one prior to the hearing which reflected normal employment at this'.plant.
Normal total number of employees, 6,495.
U_1
CD
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Federation of Flat Glass Workers of America is a labor organiza-
tion affiliated with the Congress of Industrial Organizations,' admit-
ting to its membership all production and maintenance employees,
excluding window-glass cutters, clerical employees not directly con--
nected with production, and supervisory employees, at all the plants
in the glass division of the respondent.
Crystal City Glass Workers' Union is an unaffiliated organization.
admitting to its membership only employees it the Crystal City p'laiit.
of the respondent.:
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
In our Decision of January 13, 1939, we found that the production,
and maintenance employees of the respondent , excluding window--
glass cutters , clerical employees not directly connected with produc-
tion , and supervisory employees , at the respondent 's flat-glass plants
located in Mt. Vernon , Ohio; Clarksburg , West Virginia; Henryetta,
Oklahoma ; Crystal City, Missouri ; Creighton , Pennsylvania ; and'
Ford City , Pennsylvania, constitute a unit appropriate for the pur-
poses of collective bargaining . In that Decision we reviewed, the-
evidence and set forth at length our reasons for holding such a unit
appropriate . Nothing in the record of the present proceeding per-
suades us that we should alter the conclusions we reached in our-
Decision of January 13, 1939, in regard to the appropriate unit.
As previously set forth , the Crystal City Union and the respondent
offered evidence , which was excluded by the Trial Examiner, to show
(1) that at the time of the hearing 1,500 of the 1,800 employees at
the Crystal City plant belonged to the Crystal City Union and had
designated it as their representative for the purposes of collective'
bargaining , and that the Crystal City Union members were opposed
to being represented by the Federation for the purposes of collective.
bargaining ; (2) that since the stipulation of July 22, 1938, was
entered into by the Board , the respondent , and the Federation, and
$ In Its Decision of January 13, 1939. the Board found that the Federation was affili-
ated with the Committee for Industrial Organization. The evidence Introduced at the.
present hearing establishes that late in November 1938, subsequent to the hearing in the
representation case, the Committee for Industrial Organization ceased to exist , and was,
replaced by the newly formed Congress of Industrial Organizations, with, which- the Fed:
eration is now affiliated.
PITTSBURGH PLATE GLASS COMPANY 523.
since the Board's 'Decision of January '13, 1939, the. Crystal City
Union's. membership had increased ; and ' (3) that the Crystal City
Union had 'bargained collectively with the respondent for its mem-
bers until the respondent refused to continue such bargaining be-
cause of the charges filed against the respondent by the Federation
in the proceedings resulting in the Board's Order and Decision of'
September 22, 1938. Accepting the foregoing offer of proof as-
correctly stating the facts, nevertheless, in view of the proceedings-
against the respondent culminating in the court decree of January
14, 1939, negotiations" between the respondent and the Crystal City
Union cannot be regarded by the Board as evidence of genuine col-
lective bargaining; nor can the Crystal City Union's membership.
and representation of employees at the Crystal City plant be con-
sidered by the Board as expressing the free choice of the employees.
at that plant or as establishing the existence of another labor organi-
zation, in addition to the Federation, capable of bargaining collec-
tively with the respondent for the employees there. In ' so far as,
this evidence can be assumed to show opposition among the Crystal
City plant employees to the Federation, the' Board's Decision of
January 13, 1939, considered such arguments by the respondent and'
the 'Crystal City Union. We see no reason'to alter our determina-
tion there set forth.
It is objected that the Board was in error in its finding in its-
January 13; 1939, Decision that the contracts between the respondent
and the Federation previous to the one of January 20, 1937, included
Federation members employed at the Crystal City plant.7 We have-
reexamined the record and adhere to our previous finding. The vice-
president of the respondent, Robert L. Clause, who represented the-
respondent at the negotiations preceding the signing of these con-
tracts, testified that the agreement. of November 13, 1934, covered
the Crystal City plant to the extent that the Federation had mem-
bers there." The following contract, dated February 5, 1935, granted
a 5-per cent wage increase to employees at all "plate and safety glass-
7 10 N. L. R. B. 1111, •1117.
'Clause testified :
Q. You didn't exclude in that particular' contract (November 1.. 1934] Crystal City,.
did you?
A. No, sir.
Q. And by the terms of that contract . . . it included all of your employees who were-
members of the Flat Glass Workers of America, didn't it?
A. That is right.
Q. If they had members in Crystal City at that time then that included them in so far-
as that. particular employee was concerned?
A. If they had any members in the plant, yes.
Q. Then Crystal City would be included in so far as it would affect members who were-
employees at that time?
A. As far as that agreement is concerned, yes.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plants," 9 and was not limited, expressly or by implication, to the
plants other than Crystal City. The contract of November 26, 1935,
states that the Federation is recognized by the respondent "as the
collective bargaining agency for those employees who are members"
of the Federation.1° It is true that the contract of November 26, 1935,
:referred to occupation base rates at several plants, omitting Crystal
City. But there is no indication in the contract that this list of
plants for occupation base rates, which includes three plants not even
involved in the present proceeding, was intended to restrict all the
other language and terms of the contract to the plants there listed.
It is also true that the contract of January 20, 1937, expressly ex-
eluded the Crystal City plant and that the Federation never ob-
tained an exclusive bargaining contract which included the employees
at the Crystal City plant. Nevertheless, we think that the record is
clear throughout not only that the Federation has endeavored at all
times. to organize on a division-wide basis but also that in the past
contracts have been signed upon such a basis.11
It is objected also that at the present time the respondent and the
Federation are bargaining in accordance with a contract which does
not cover the Crystal City plant and that the Board's ruling "sets
aside" this contract and in effect "extends" it to the Crystal City plant,
even though that plant is expressly excluded therefrom. It seems
clear to us, however, that the Board in its determination of the appro-
priate bargaining unit is not necessarily bound, and in many instances
should not adhere, to a unit fixed through some previous agreement
between private parties. This seems particularly clear where, as here,
one of the parties has made its position plain at the time of signing
0 This contract , as well as the previous one, contains the statements that the respondent
"covenants and agrees . . . to apply and abide by the following rules and regulations in
its relationships with its employees who are members of the Federalists . . : and that
the respondent "will discuss at any time matters of mutual interest to the Company and
those of 'our employees who are members of the Federation" with duly designated Federa-
tion representatives.
10 This contract also contains the statements in the previous two contracts set forth in
footnote 9, supra.
11 It is also stated that the parties to the contracts previous to the 1937 one "under-
stood" that employees at the Crystal City plant were not included in these contracts.
Both the testimony of Clause , the respondent 's representative , as 'set forth in footnote 8,
supra, and the testimony of Erwin L . DeShetler , who signed the November 26, 1935,
agreement as secretary-treasurer of the Federation and who previously had been vice
president of the Federation , is to the contrary .. DeShetler testified
Q. And you don 't have recognition in Crystal City plant at this time and you never
have had ; is that right?
A. I won't say we never did have. I say that the first three agreements that we nego-
tiated with the . . . Company gave us recognition at Crystal City. and we were only
excluded from Crystal City . . . starting with the agreement negotiated in February 1937.
Q. Well , were the Crystal City employees included in the first three agreements you
had?
A. I would say they were ; yes. They were not excluded.
Q. Did you have any organization down there at that time, at Crystal City?
A. We had a few members . . .
PITTSBURGH PLATE GLASS COMPANY 525
the contract that the proper unit should be one different from that
established in it. Previous contracts are an important factor in de-
termining the appropriate bargaining unit but the Board would, in
our opinion, be abandoning its plain functions under Section 9 (b)
of the Act if it refused to consider .all the factors in a case and relied
solely for its determination, of the bargaining unit upon prior col-
lective agreements'"
Finally, it is said that the decision of the majority "imposes" a
bargaining representative upon the Crystal City employees and
denies them the opportunity "to express their own free choice as to
representation"; and that it requires the respondent to deal with the
Federation as representative of the Crystal City employees "al-
though . . . the Federation has never been designated by a majority
of these employees to act as their representative." The same can be
said of the application of majority rule to any situation where a
group of employees are not unanimous in their choice of repre-
sentatives. Within a department of a plant certain employees may
not wish to be represented by the choice of a majority; within a plant
certain departments may likewise prefer their own representative;
and within the confines of a company certain plants (or a majority
of the employees therein) may not wish to bargain with the employer
through the majority representative. Yet that fact does not neces-
sarily mean that the department, plant or company-wide unit, as the
case may be, is not appropriate for collective bargaining. Such
restriction upon "free choice as to representation" is inherent in
majority rule. The question before, us, then, cannot be answered
merely by pointing out that certain employees are not permitted to
deal through the representative for which they may vote or which
they may prefer.13 ,
The issue before us is simply what bargaining unit will best insure
to all the employees involved the full benefit of their right to self-,
organization and collective bargaining. As stated in our previous
Decision,14 the fact that wages, hours, working conditions, and manu-
faeturing processes vary little as between the different plants; the
fact that the grouping of the plants together tends to' place the
employees on a basis of equal bargaining strength with the employer
and the fact that lack of a common grouping promotes disharmony
12 See the concurring opinion of Mr. Edwin S . Smith and the dissenting opinion of
Chairman Madden in Matter of American Can Co. and Engineers Local No. 30 and Firemen
and Oilers Local No. 56, 13 N. L . R. B. 1252.
Is It is likewise beside the point to say that the wishes of the Crystal City employees
should be determined by,a vote. Although no secret ballot was taken, prior to Certifica-
tion it was stipulated by all parties that the Federation had as members a majority of the
employees in the unit found appropriate..
24 10 N . L. R. B. 1111.
•526 DECISIONS OF NATIONAL LABOR RELATIONS BOAIW
in the bargaining process to the advantage of one section of the
employees as against the other, without rational justification based
on a difference in the nature of their work, as happened in the 1935
strike; the fact that throughout the history of self-organization in
the plants the only legitimate labor organization has recognized. the
importance of, and has constantly sought to establish, bargaining
upon a division-wide basis; the fact that in actual practice contracts
were signed upon a, division-wide basis until the respondent refused
to continue upon such a basis and insisted upon isolating the Crystal
City plant, where it was interfering with and dominating a labor
organization of its employees; the fact that the previous history of
collective bargaining between the respondent and the Federation,
even when the Crystal City plant was excluded, shows the feasibility
,of grouping all these plants, including Crystal City, in one bar-
gaining unit; the fact that the Federation possesses an acknowledged
majority in every plant but one and that conditions at the Crystal
'City plant will almost inevitably be determined by conditions fixed
for all the other plants; the fact that the membership of the' Crystal
City Union is coerced and not voluntary and that the Federation
has established some membership there-all these factors lead us to
the conclusion that the interests of all the employees of the various
plants are interwoven and that collective bargaining for all the
employees involved can most effectively be achieved through the es-
-tablishment of a single bargaining unit.
We find, therefore, that the production and maintenance employees
of the respondent, excluding window-glass cutters, clerical employees
not directly connected with production, and supervisory employees, at
the respondent's flat-glass plants located in Mt. Vernon, Ohio; Clarks-
burg, West Virginia; Henryetta, Oklahoma; Crystal City, Missouri;
'Creighton, Pennsylvania; and Ford City, Pennsylvania, constitute
a unit appropriate for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other
conditions of employment, and that said unit insures to employees
of !the 1respondent the full benefit of tiieir rights to self-organization
and to collective bargaining and otherwise effectuates the policies of
the Act.
2. Representation by the Federation of the majority in the
appropriate -unit
In our Decision of January 13, 1939, we found that a majority of
all the employees in the appropriate unit are members of the
Federation. None of the parties in the instant proceeding questioned
-that finding as to the Federation's majority. Indeed, at the repre-
sentation hearing, all parties stipulated that such was the fact.
PITTSBURGH PLATE GLASS COMPANY 527
. We find that on January 18 and 19, 1939, and at all times there-
sifter the Federation was the duly designated representative of a
majority of the employees in the appropriate unit, and, pursuant to
-Section 9 (a) of the Act, was the exclusive representative of all the
-employees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, and other con-
-ditions of employment.
3. The refusal. to bargain collectively
The respondent in its answer and at the hearing admitted the alle-
gations of the complaint in respect to its refusal to bargain collec-
tively on January 18 and 19, 1939, and thereafter with the Federation
as the exclusive representative of the employees in the appropriate
unit.. The evidence introduced at the hearing also establishes that,
as alleged in the complaint, the respondent then refused to bargain
collectively with the Federation. The respondent based this refusal
to bargain collectively with the Federation upon a. denial of the
appropriateness of the unit proposed by the Federation.- This unit,
however, had been found appropriate by the Board,in its Decision
of January 13, 1939, after the respondent had had full opportunity
to be heard.
We find that on January 18 and 19, 1939, and at all times thereafter
the respondent refused to bargain collectively with the Federation
as the exclusive representative of its employees in an appropriate
bargaining unit in respect to rates of pay, wages, hours of employ-
anent, and other conditions of work, and thereby interfered with,
coerced, and restrained its employees in the exercise of their rights
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining and other mutual aid and protection as guaranteed in
Section 7 of the Act.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
As we pointed out in our Decision of January 13, 1939, the respondent in January
1.937 had bargained collectively , and entered into a written agreement, with the Federation
for all Federation members employed at all the plants , except Crystal City, involved in the
present proceeding . In January 1937 and thereafter the respondent refused the Federa-
tion ' s request to bargain collectively for Federation members employed at the Crystal City
plant and to include these employees in the written agreement covering employees at the
other plants. In January. 1939 the respondent's only objection to the appropriateness of
the bargaining unit proposed by the Federation was the inclusion therein of employees at
the Crystal City plant, and the respondent was willing to, and did , renew the previous
agreement between it and the Federation covering employees at all the plants except
'Crystal City.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent described in Section I above, have a close, intimate ,'and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free floe- of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we shall, therefore , order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act and to restore, as nearly as possible, the situation
that existed prior to the commission of the unfair labor practices.
We have found that the respondent has refused to bargain collec-
tively with the Federation. In order to effectuate the policies of the
Act, we shall order the respondent , upon request, to bargain collec-
tively with the Federation as the exclusive representative of all enI-
ployees in the appropriate unit in respect to rates of pay, wages
hours of employment , and other conditions of employment.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
I. Federation of Flat Glass Workers of America; affiliated With
C. I. 0., is - a labor organization , within the meaning of Section 2 (5)
of the Act.
- 2. The production and maintenance employees of the respondent-,
excluding window-glass cutters, clerical employees not directly con-
nected with production, and supervisory employees, at the respond-
ent's flat-glass plants situated in Mt. Vernon, Ohio; Clarksburg, West
Virginia; Henryetta, Oklahoma; Crystal City, Missouri; Creighton,
Pennsylvania ; and Ford City , Pennsylvania , constitute a unit appro-
priate for the purposes of collective bargaining , within the meaning
of Section 9 (b) of the Act.
3. By virtue of Section 9 (a) of the Act , Federation of Flat Glass
Workers of America, affiliated with C. I. 0., having been selected as
their representative by a majority of the employees in an appropriate
unit, was on January 18, 1939, and at all times thereafter has been,,
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment , and other conditions of employment.
4. By refusing to bargain collectively with the Federation of Flat
Glass Workers , of America , affiliated with C. I. 0., as the exclusive
representative of its employees in the appropriate unit, the respond-
ent has engaged in and is engaging in unfair labor practices , within
the meaning of Section 8 (5) of the Act.
PITTSBURGH PLATE GLASS COMPANY 529
5. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
-of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Pittsburgh Plate Glass Company, and its officers , agents,
successors , and assigns, shall.:
1. Cease and desist from :
(a) Refusing to bargain collectively with Federation of Flat Glass
Workers of America, affiliated with C. I. 0., as the exclusive repre-
sentative of all its production and maintenance employees , excluding
window-glass cutters, clerical employees not directly connected with
production , and supervisory employees, at its flat-glass plants situ-
.ated in Mt. Vernon, Ohio; Clarksburg, West Virginia; Henryetta,
Oklahoma; Crystal City, Missouri; Creighton, Pennsylvania; and
Ford City, Pennsylvania ;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in con-
certed activities , for the purpose of collective bargaining and other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Federation of Flat
Glass Workers of America, affiliated with C. I. 0., as the exclusive
representative of all its production and maintenance employees, ex-
cluding window-glass cutters, clerical employees not directly con-
nected with production, and supervisory employees, at its flat-glass
plants situated in Mt. Vernon, Ohio; Clarksburg, West Virginia;
Henryetta, Oklahoma; Crystal City, Missouri; Creighton, Pennsyl-
vania ; and Ford City , Pennsylvania , in respect to rates of pay,
wages, hours of employment, and other conditions of employment;
(b) Post immediately notices to its employees in conspicuous
places throughout its flat-glass plants located in Mt. Vernon, Ohio;
Clarksburg, West Virginia ; Henryetta, Oklahoma ; Crystal City,
Missouri ; Creighton, Pennsylvania ; and Ford City, Pennsylvania,
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stating (1) that the respondent will cease and desist as provided in
paragraphs 1 (a) and (b) of this Order; and (2) that the respondent
will take the affirmative action required by paragraph 2 (a) of this
Order;
(c) Maintain such notices for a period of at least sixty (60) con-
secutive days from the date of posting;
(d) Notify the Regional Director for the Sixth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
Mn. WILLIAM M. LEISERSON dissenting :
I regret that I cannot concur in this decision. It imposes on the
largest single plant of the company a representative for collective
bargaining whom the employees of that plant have not chosen, and
it denies these employees any opportunity to express their own free
choice as to representation. It disregards the fact that the company
and the Federation are bargaining collectively in accordance with
the existing contract between them in all the plants of the company
where the Federation represents the employees, and it convicts the
company of a refusal to bargain with the Federation as the represent-
ative of the Crystal City employees, although the fact is not dis-
puted that the Federation has never been designated by a majority
of these employees to act as their representative.
This simple issue as to whether a union which represents em-
ployees in five plants may be imposed on a sixth without a vote of
some kind is hidden in the long recital of events and procedures in
the majority opinion, and in the conclusions as to interference, re-
straint, and coercion. As a matter of fact no unfair labor practices
are charged or found in the case, aside from the question whether
the employer must recognize a representative for the Crystal City
plant who had not been chosen by the employees of that plant.
Except for Crystal City, the company and the Union have been
bargaining collectively and making written contracts for a number
of years. There is no complaint as to the bargaining for the em-
ployees in the plants included under the contract. The case here is
in the nature of a friendly suit to determine whether the law per-
mits the certification of the Union for the Crystal City plant without
an election. Under these circumstances I think the repetition of the
legal verbiage about interference, restraint, and coercion is a mistake
that tends to frustrate the amicable collective bargaining which the
Act is designed to promote.
The Board was in error, in my judgment, when it merged into a
single bargaining unit the Crystal City employees with the em-
ployees in the five plants under contract with the Federation, and
PITTSBURGH PLATE GLASS COMPANY 531k
without a vote, certified the Federation as the exclusive representa-
tive of the employees in all the plants.,' This does not seem to me,
essentially different from the denial of free choice of representatives
in cases where employers impose labor. organizations. on their
employees.
The fact that the company formerly dominated the employees'"
organization in Crystal City is no justification for the Board's action.
in denying some 1,600 employees in the plant an opportunity to select
a representative of their own. In 1938 the company voluntarily con-
sented to withdraw all, recognition from the Crystal City Glass;
Workers' Union,17 and there is no charge that it 'has in any way
failed to carry out that stipulation. To assume that the employees.
are incapable of making a free choice of representatives because the
company may have in previous years participated in the affairs of
their organization seems to me quite improper.
I do not think the Board is vested with authority by the Act'to
extend to employees in unorganized plants the representatives chosen
by organized workers in other plants. The Board's authority is;
limited to restraining interference or domination by the employer
and to providing the employees an opportunity to express a free
choice as to the representation they desire. Even if the employer
misbehaved, that does not justify the Board in taking away from
his employees the right guaranteed by the Act to have a representa-
tive of their own choosing.
The majority justifies this procedure by its finding that the em-
ployees in all six plants constitute a single appropriate bargaining-
unit. But in order to. do this the decision disregards the history of
collective bargaining with the company and the policies and prac-
tices established by the series of contracts made between the Federa-
tion and the company. Prior to 1937 all the contracts recognized
the Federation as the representative of its members only. This
obviously established neither- a craft, plant, employer unit, nor any
other kind of unit, except the members who belonged to the Federa-
tion. Even if the Federation had some members at the Crystal City
plant and even if these were included under the contract, which is;
disputed, since it' is admitted that the vast majority of the Crystal
City employees were not members of the Federation, it is obvious.
that the Crystal City plant was not combined with other plants into,
a single corporation-wide bargaining unit. Nevertheless, the ma-
jority finds that because some Crystal City employees may have been
members of the Federation, therefore, a corporation-wide unit was
established by collective bargaining. The history of collective bar-
161.0 N. L. R. B. 1111.
118 N. L. R. B. 1210.
532 DECISIONS OF RATIONAL LABOR RELATIONS BOARD
gaining between the Federation and the company as evidenced by
the written contracts made prior to 1937 clearly establishes that the
employees of the Crystal City plant as a body were never included
in a bargaining unit for which the Federation was authorized to act
as a representative.
The decision not only disregards the collective bargaining history
and the contracts signed prior to 1937, but it also sets aside the
current contract which was signed in 1937.. This contract, by its
express terms, applies to five plants only and excludes the Crystal
City plant. To justify this setting aside of the express terms of the
contract, the majority decision argues : "The written agreement
signed on that day, (January 20, 1937) at the insistence of the
Company, despite the Federation's objections, did not cover the
Federation members at Crystal City." 18 It seems to me quite im-
proper for the Board to go back of a signed agreement and make
a finding that the Federation signed it against its will because of
previous objections to the exclusion of Crystal City. If this is
proper, then it is necessary to inquire also whether the company
had not previously objected to granting wage increases and other
requests of the Federation to which it finally assented in the agree-
ment. Anyone familiar with labor agreements knows that they are
most commonly signed at the insistence of organizations of em-
ployees and that the employer reluctantly concedes to the bargaining
strength of labor organizations.
The company's position is that the previous contracts did not cover
Crystal City and that the Federation never bargained for any of
the employees at that plant. It holds that the language of the 1937
contract merely changed ambiguous wording of the previous con-
tracts which might imply that Crystal City was included. That the
company's position is correct and that the Board is in error in find-
ing that Crystal City employees: were covered by the agreements
prior to 1937 is evident from the printed copy of the agreement
dated November 26, 1935. This agreement had appended to it a.
list of "Occupation Base Rates," which gave occupation numbers,
occupation names, and base rates to be paid in various plants of the,
company. But Plant No. 9, which is the Crystal City plant, was
not included in the list. Apparently the parties understood that
employees at this plant were not covered by the agreement.
The current contract dating from 1937 speaks for itself, and there
is no contention that it is not binding on the parties. Yet the
majority decision in effect extends it to a plant which is expressly
1810 N. L. R. B. 1111, 1117.
PITTSBURGH PLATE GLASS COMPANY 533
excluded by its terms. What the Federation could not itself secure
by collective bargaining when the contract was negotiated is given
to it by the Board in a finding as to the appropriate bargaining
unit. The majority decision argues that the Board has the authority
to determine bargaining units. I do not believe that the Act au-
thorizes the Board to establish any bargaining units that suit the
,fancy of its members.
There is nothing in the record to show that any collective bar-
gaining on a corporation-wide basis had ever been carried on.' In
none of the four contracts between the company and the Federation
.was the. Federation recognized as the exclusive representative of the
employees of any unit. All the' contracts were negotiated in behalf
of such employees only as were members of the Federation. Until
the agreement of 1937 was negotiated the question of representing
Crystal City employees was not discussed in the course of bargain-
ing, and then the question was settled by definitely excluding
Crystal City. This agreement is now in effect, and the Board may
not under the guise of settling a controversy as to representation
extend the agreement to cover a plant expressly excluded by the
parties themselves.
I am of the opinion, therefore, that the complaint against the
company, involving as, it does only the refusal to recognize the
Federation as representative of :1 he Crystal City employees, should
be dismissed.
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