PPG Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 477 (N.L.R.B. 1969)

PPG INDUSTRIES , INC. 477
PPG Industries , Inc.' and United Glass and Ceramic
Workers of North America and its Local Unions
Nos. 2 , 3, 12, 13 , 14, 20; 63, 168, 180, 193, and
474, AFL-CIO,2 Petitioners . Cases 6-AC-5 and
6-UC-8
December 16, 1969
DECISION AND ORDER
Upon petitions duly filed under Section 9(b) of
the National Labor Relations Act, as amended, a
consolidated hearing was held before Richard H.
Martin, Hearing Officer. All parties appeared at the
hearing and were given full opportunity to
participate therein .' On May 22 , 1968, the Regional
Director for Region 6 issued an order transferring
the case to the National Labor Relations Board.
The Company and the Petitioner thereafter filed
briefs with the Board.'
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
' The Employer's name appears as amended at the hearing.
'The Petitioners' names appear as amended at the hearing . They are
jointly referred to herein as the Union or the Petitioner.
'International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , General Teamsters Local 431 sought to intervene
at the hearing based on the fact that it recently appeared on the ballot,
along with the Petitioner herein , in an election involving Employer's
Fresno, California , plant September 26 and 27, 1967, after which
Petitioner was certified as bargaining representative . Local 431 submitted a
showing of interest , in the form of authorization cards, in support of its
motion to intervene The motion was referred by the Regional Director to
the Board for final disposition . Since no question of representation exists
and no determination of majority status could result , the motion to
intervene is hereby denied.
'Petitioner thereafter filed a Motion for Leave to File Supplemental
Brief and enclosed a Supplemental Brief therewith . The motion is hereby
granted and the Supplemental Brief is made a part of the record. A
Upon the entire record, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
The Employer, a Pennsylvania corporation with
its home office in Pittsburgh, Pennsylvania, is
engaged in the manufacture and sale of glass and
glass products, paint, and chemicals; it operates
plants in various States of the United States. The
Employer's manufacturing and sales operations are
conducted through four separate and distinct
divisions: (1) Glass, (2) Fiber Glass, (3) Chemical,
and (4) Coatings and Resins, each of which is
headed by a Vice President and General Manager
who in turn reports directly to the President and
Chief Operating Officer. The Glass Division is the
one involved herein; it operates 16 manufacturing
and fabricating plants throughout the United States,
and at the time of the hearing a new float glass
plant was under construction at Meadville,
Pennsylvania, to begin production later in 1968.
The Petitioner filed two petitions, one for unit
clarification (Case 6-UC- 8) and one for amendment
of certification (Case 6-AC-5). These petitions seek
to combine into one bargaining unit, four of the
Union ' s separate existing bargaining units of the
-Employer's employees.' Thus, the Petitioner seeks to
request for oral argument was filed by the Chamber of Commerce of the
United States , and the Glass Bottle Blowers Association of the United
States and Canada, AFL-CIO, requested permission to file a brief amicus
curiae These requests are hereby denied, as the record and the briefs
adequately present the issues and the positions of the parties.
'The Glass Division plants and their representation status are as follows
Note that in this tabulation the symbol (M) indicates that Petitioner
represents these plants on multiplant basis, (S) that Petitioner represents
the plant on single-plant basis; and * that certain production employees are
represented by Window Glass Cutters League of America, AFL-CIO In
addition , as indicated , two plants are represented by no union and two are
represented by other unions.
Works No. and Location Principal Product Union Representing
3 - Creighton, Pa. Twindow Metal Edge - Double Petitioner (M)
Glazed Insulating Unit
21 - Lincoln, Ill. Twin-Weld Double Glazed Amer. Flint Glass
Insulating Unit Workers, etc.
25 - Greensburg, Pa. Fab. Auto Replacement Glass Petitioner (S)
26 - Crestline, Ohio Fab. Auto and Spec. Glass No union.
27 - Tipton, Pa. Fab. Auto Glass No union
I - Creighton, Pa. Plate , Specialty and Auto Petitioner (M)
Glass
4 - Ford City, Pa. Glass and Tempered Glass Petitioner (M)
180 NLRB No. 58
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
add the plants at Mt. Zion, Illinois,' Greensburg,
Pennsylvania,7 and Fresno, California,' to its
nine-plant multiplant unit.' Alternatively, the
Petitioner seeks an election at the single plants to
determine the preference of these employees
concerning their inclusion in the multiplant unit.
The Employer seeks dismissal of the petitions,
contending , inter alia , that the Board is without
statutory authority to amend or clarify herein, as
the Board ' s election processes cannot be used for an
election of this nature.
For some years the Union has sought enlargement
of the multiplant unit. The Employer has opposed
this. Among the reasons the Employer presently
gives are increased instability in bargaining because
of the Union's constitutional provision for
unanimity of approval by a wage committee of the
International before a bargaining agreement
becomes valid, and the fact that adding three plants
would mean at least six additional committeemen. It
also contends that, as three of the four units here
involved have been certified by the Board, the Board
Works No and Location Principal Product Union Representing
6 - Ford City, Pa. Glass, Optical and Petitioner(M)
Specialty Glass
7 - Cumberland , Md. Glass and Float Peti t ioner(M)
9 - Crystal City , Mo Glass and Float Petitioner(M)
10 - Henryetta , Okla. Window Glass Petitioner (M)'
I I - Mt Vernon , Ohio Window Glass Petitioner (M)'
12 - Clarksburg , W. Va. WindowGlass Petitioner (M)*
14 - Mt. Zion, III. Window Glass and Petitioner(S)
Tempered Glass
15 - Fresno , Calif. Window Glass and Petitioner(S)
Tempered Glass
19 - Kokomo , Ind. Architectural Metals Metal Polishers,
Buffers , Platers, etc.
(This Kokomo plant appears to be one of two plants excluded from the
multiplant unit of flat glass plants certified in 1939 . See fin . 8, below.)
'The Mt . Zion unit is a single -plant unit described essentially as follows
in the current contract (effective from August 31, 1966, to August 31,
1969): all hourly paid production and maintenance employees at Mt. Zion,
Illinois, excluding all salaried employees, guards, janitors , office clerical
workers , and supervisors. Petitioner was certified as the bargaining
representative on July 30, 1959, following a stipulated election.
'The Greensburg unit is a single -plant unit described in the current labor
agreement (effective from March 23, 1966 , to March 23 , 1969) as all
hourly paid production and maintenance employees at Greensburg,
Pennsylvania , excluding salaried employees , guards , professional
technicians, clerical workers , and supervisors On December 29, 1954, the
Employer recognized the Union at the Greensburg, Pennsylvania , plant,
following a card check by two Company and two Union representatives.
'On October 5, 1967, the Board certified the Petitioner for the Fresno,
California, plant after a stipulated election in a unit described in the
certification and current agreement (effective April 26, 1968, to April 27,
1971) as: all production and maintenance employees employed by the
Employer at its glass manufacturing and tempering unit, Fresno,
California; excluding all other employees , including quality control
technicians , laboratory technicians , office clericals , plant clericals,
storekeepers, storeroom attendants , hourly rated acting foremen,
professionals, guards , watchmen , and supervisors as defined in the Act.
The Fresno contract was entered into after the close of the hearing We
hereby accept and include in the record the stipulation of the parties that a
copy thereof be made part of the record and that during the negotiations
the Union made no request for inclusion of the Fresno plant in the
multiplant unit . Pursuant to that stipulation, the copy of the said contract
is also hereby admitted into the record.
'On January 13, 1939 , the Board certified (10 NLRB I11) the Petitioner
as the bargaining representative of a multiplant unit of the production and
maintenance employees at the Employer' s flat glass plants situated at Mt
Vernon, Ohio, Clarksburg, West Virginia, Henryetta, Oklahoma, Crystal
City, Missouri, Creighton, Pennsylvania (two), and Ford City,
Pennsylvania (two), excluding only two plants of the flat glass division,
located at Elwood and Kokomo, Indiana , whose work had no similarity to
that done in other plants of the division. The Cumberland, Maryland, plate
glass plant was added to the multiplant unit by agreement of the Employer
and Petitioner on November 8, 1959 This multiplant unit is currently
covered by a labor agreement effective from February 16, 1966, to
February 16, 1969.
The certification and the contracts exclude window-glass cutters who
were, and are , represented by the Window Glass Cutters League of
America.
PPG INDUSTRIES , INC. 479
should not assist the Union in its efforts to
repudiate such certifications.
In multiplant contract negotiations in 1954, 1958,
and 1962, the Union proposed various changes in
the recognition clause to include various plants
represented singly as part of the multiplant
bargaining unit. A 1964 proposal sought to add the
Mt. Zion, Greensburg, and Crestline, Ohio, plants,
Crestline being unrepresented.1° In 1965 the Union
again sought its 1964 objective, this time by
requesting the Board to amend its earlier
certification in the multiplant unit." The Regional
Director there denied the petition to amend the
multiplant certification'by the addition of Mt. Zion,
Greensburg and Crestline, noting, among other
factors, that these three plants were all in existence
at the time the then current multiplant contract was
executed.
During the multiplant negotiations of 1966, the
Union again requested the inclusion of Mt. Zion,
Greensburg and Crestline , as well as the inclusion of
unrepresented plants at Tipton , Pennsylvania, and
Fresno, California." Since that time a single-plant
unit has been certified by the Board at Fresno,
following a consent election , and the Employer and
the Union have agreed to a single plant bargaining
contract extending to April 27, 1971.
Petitioner here is the same labor organization
involved in Libbev- Owens-Ford Glass Companv.13 It
seeks similar relief for it would have the Board
certify the four existing units - the multiplant unit
of nine, and the three single plants it represents -
as an enlarged multiplant unit, or conduct elections
at the single plants to determine the wishes of these
employees on this question ." Although Petitioner
does not represent production and maintenance units
at four other glass plants of this Employer, two of
which are represented by other unions' s and two of
which are unrepresented , it urges that the same
decision should be reached as in
Libbev-Owens-Ford. It reasons that, although it did
represent the employees of all the Libbey-Owens
Ford glass plants, one of the two single -plant units
polled there might have voted against inclusion with
the multiplant unit so that the achievement of an
employerwide unit could not result . Member
Zagoria, in his separate concurrence here, rejects
this reasoning and would dismiss these petitions on
the ground that the multiplant unit here sought is
not one which the Board would find appropriate on
"The Union has been unsuccessful in establishing bargaining rights at
Crestline despite four Board proceedings.
"Case 6-AC-2, not printed in NLRB volumes.
"Later in 1966, during negotiation of the current Mt Zion single-plant
contract , the Union again requested that Mt. Zion be included in the
multiplant unit , and struck when its request was refused.
any basis except agreement of the parties. We agree.
The array of plants which our dissenting
colleagues would now be willing to merge based on
employee consent is not identifiable as an employer
administrative division (as the original group of flat
glass plants certified in 1939 was), or as
geographically related, or as related by a history of
bargaining. These are the accepted bases for
multiplant units which do not constitute
employerwide units.
Our dissenting colleagues charge us with
overlooking a subtle problem of labor and economic
relations in favor of a mechanical approach,
suggesting that flexibility in applying the statute is
required and that this Board not only may, but
must, examine unit effectiveness in a clarification
proceeding and be prepared to direct elections to
poll employee sentiment in order to give the
employees' bargaining representative a broader
bargaining base." They view the Act's broad policy
considerations as requiring this and question what
possible policy of the Act a dismissal can serve.
They speak of the extended history of bargaining on
a multiplant basis having been punctuated by
bargaining requests for inclusion of the said plants
as well as by several strikes, and assume that adding
plants to the unit is an assured panacea for
industrial stability. They ignore the Employer's
contention that the Union's bargaining structure
permits a single delegate to block agreements during
bargaining negotiations ; that the additional units
sought to be added to the multiplant unit will
increase the already large number of delegates by at
least six more; that failure to agree on problems
important only to a few plants prolonged the
1958-59 strike; that a serious bargaining problem
has developed in the multiplant unit because of the
complicated method of wage computation that has
evolved at the older plants, as shown by an
independent study authorized by both parties; that
the addition of the three plants now sought, which
have no such problem, may, because of the Union's
bargaining structure , draw three more plants into a
strike unnecessarily , just as significant age
"169 NLRB No. 2, Members Fanning and Jenkins dissenting.
"In this case Petitioner , possibly because of our query in footnote 19 of
the Libbey-Owear-Ford dissent as to why only the employees of the single
plants should be polled , introduced testimony by some of its
representatives designed to show the desire of the multiplant unit to be
joined by the single plant units, and vice versa.
"One of these plants represented by another Union is at Kokomo,
Indiana, and is not engaged in the manufacture of glass but of
architectural metals . Following the pattern of the Board's 1939
certification , it would appear that this plant , though in the glass division, is
not necessary to an all glass plant unit , employerwide, in which the Board
might appropriately direct a representation election.
"The broad implications of this approach are a far cry from early
amendment of certification cases following representation elections among
all employees on single plant or regional bases . See Chrysler Corporation.
13 NLRB 1303 and 17 NLRB 737, and Western Union Telegraph
Company, 58 NLRB 1283 and 61 NLRB 110.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
differences between older and newer plant
complements and consequent divergence of wage
and pension objectives may contribute, not to
stability, but to increased unrest in bargaining."
Great stress is laid by our dissenting colleagues on
the inequity of "freezing" the unit at the nine-plant
level and leaving the employees at the three separate
plants with little chance of being part of a larger
unit unless the Employer is willing ." Assume for the
sake of argument that the three plants now sought
would, with the existing multiplant unit, add up
to a compatible employerwide unit, as in
Libbev-Owens-Ford, a unit objective which a
majority of this Board would encourage by unit
elections in the now separate plant units. How under
existing Board law could this enlarged group of
employees later become "unfrozen" unit-wise? As
things now stand, each of the separate plants may
change or reject its bargaining representative on a
single plant basis at appropriate cycles with respect
to its collective-bargaining agreement. Fair play
would seem to require that those who bemoan a unit
freeze of employees and consequent separation of
employees at some plants from their fellows at other
plants should also warn that the "freeze" deepens
with the addition of each plant. Mere "bigness" of
bargaining unit is not an unmitigated employee
blessing in the present state of Board law."
The Board's responsibility under Section 9(b) to
select a unit which will assure to employees the
fullest freedom in exercising the rights guaranteed
by the Act we believe is nullified by the philosophy
of our dissenting colleagues, who can see only the
advantages of permitting a selected group of
employees to enlarge this multiplant unit over the
Employer's objection. The nine-plant unit exists
because the parties together have found it desirable
to bargain on that basis presumably for mutually
attractive reasons. They can expand it to a 12-plant
"That differing wage objectives , including those based on age and
entrenched methods of computing wages, are not considered "meaningful
labor relations considerations " by our dissenting colleagues is surprising.
Their concept of these as " insubstantial factors" is as curious as their
Llbbey-Owens-Ford characterization of bargaining history and Employer
objection as merely "technical problems".
"Our dissenting colleagues imply that the Employer is inconsistent here
with its position in 10 NLRB 1111 where it objected to the initial Board
divisionwide certification because employees at the Crystal City plant were
not permitted to determine for themselves whether they wished to be
represented in a single plant unit, by a nonaffiliated association , as they
had been . We see no inconsistency . Crystal City had had a bargaining
representative other than this Petitioner To urge that the wishes of
employees be considered on a representation issue is basic to the Act
"See Gould-National Batteries . Inc. 146 NLRB 1138, and additional
Gould cases involving separately certified single-plant units not long
merged by contract into a multiplant group, at 146 NLRB 1142 and 150
NLRB 418 These decisions indicate that although the unlikely possibility
of a stipulation to the appropriateness of a single -plant unit after
multiplant merger may move the Board to process a single-plant
decertification petition , a refusal by employees of one plant to participate
in a multiplant strike (directed chiefly to forcing the Employer to agree to
a single national unit ) will not move the Board to permit the employees an
opportunity to reject their bargaining representative and thus remove
themselves from multiplant bargaining
unit through negotiations which are addressed to the
needs of both parties and realities of their
relationship. They have not yet resolved the issues
standing as an obstacle to such agreement, and the
Union is seeking to have the Board intervene on its
side. This, in light of all the circumstances of this
case , we decline to do.
Contrary to our dissenting colleagues' assertion,
we are not holding that a merger of separate
bargaining units can only occur with the consent of
the employer. We believe, however, that when the
normal tests of administrative coherence,
geographical cohesiveness, bargaining history or
mutual consent are not met, there must be some
showing that, nevertheless, the single plant units
belong in the overall unit by virtue of such factors
as common terms and conditions of employment,
substantial uniformity of wage systems and fringe
benefits, substantial integration of operations,
interchange of employees across unit lines and the
like. Such a showing has not been made in this case.
There is no interchange across unit lines and no
interunit seniority. Wage systems are markedly
different. Local plant managers have substantial
authority over labor relations at their plants
including authority to enter into local agreements
governing seniority and job security. They have
authority to settle grievances.
On the basis of the foregoing, we find that the
record affords an inadequate basis for a finding that
the existing units have been merged into a single
overall unit.
Our colleagues apparently agree with us for they
are unwilling forthrightly to clarify the unit on the
grounds that the proposed unit satisfies the Board's
normal unit tests. Instead, they would conduct a
plebiscite amongst the employees in the single-plant
units to find out whether those employees wish to
have their units merged. We fail to see how the
employees' desires in this regard can overcome the
lack of evidentiary support for the unit requested,20
but assuming nevertheless that an employee
plebiscite can replace objective evidence, it seems to
us that the question should be submitted to all the
employees involved, not merely to those in the
single-plant units.
We have heretofore set forth the reasons we
believe the Board is without statutory authority to
conduct such a plebiscite," and we adhere to those
views. Our "informed discretion" - to use the
words of the Supreme Court in the Packard case
(330 U.S. 485, 491) - tells us that in circumstances
such as these the Board should not gamble on
"We note that the District of Columbia Court of Appeals views
testimony concerning employee wishes "with respect to the formation of a
bargaining unit" as "a precarious basis for fact-finding" See Retail.
Wholesale and Department Store Union v N L R B. 385 F 2d 301
(C A.D C.)
"Libbey-Owens-Ford, 169 NLRB No 2, Members Fanning and Jenkins
dissenting.
PPG INDUSTRIES, INC.
stability of bargaining by delegating to employee
choice the enlargement of the multiplant unit.
Contrived though this unit may seem as it now
exists , it represents a consensus of the bargaining
representative and the employer.22 Voluntary
agreements of this sort add up to a history of
bargaining . They tend to insure stability in
bargaining. In the Board's view they enjoy the same
status as multiplant units based on geography or
administrative considerations.
We, of course, are aware that the Court of
Appeals for the District of Columbia, in a divided
opinion, dissolved the District Court's injunction
arising out of Libbey-Owens-Ford, thus permitting
that election to be held. 13 In so doing , however, the
Court specifically refrained from interpreting
Section 9(b) of the Act as conferring authority on
the Board to use its election procedures to merge
units in the absence of a question concerning
representation. It found simply that judicial review
of representation petitions is very limited, and that
the action of the Board majority was not plainly
beyond the bounds of the Act, or clearly in defiance
of it. 2' The instant case, we suggest, is patently less
persuasive on the facts, than was
Libbev-Owens- Ford though equally lacking in what
we view as the requisite statutory authority for this
sort of election. Accordingly, we shall dismiss the
petitions.
ORDER
It is hereby ordered that the petitions herein be,
and they hereby are, dismissed.
MEMBER ZAGORIA , concurring:
While I agree that the petitions herein should be
dismissed, I do not agree with the rational upon
which my colleagues , Members Fanning and
Jenkins , reach the same conclusion. Rather, I find
this case distinguishable from Libbey-Owens-Ford
Glass Company, supra, in which I joined in
directing elections to aid in determining the unit
placement of the two plants which had been
separately represented . In that proceeding the
ultimate unit sought by the Petitioner was
employerwide and, as such, was presumptively
appropriate . In the present situation , the unit sought
comprises only part of the Employer 's glass
operations and in no event could it extend to the
entirety of such operations . Accordingly, in my
view, the unit sought herein is not one which the
Board would find appropriate on any basis except
"We note that in Libbey-Owens-Ford our dissenting colleagues termed
the multiplant unit "appropriate" because agreed to by the parties.
"McCulloch v. Libbey- Owens-Ford Glass Co.. 403 F . 2d 916 (C.A D.C.).
"Unquestionably the Supreme Court in its various pronouncements on
the Board 's power to define units has emphasized wide discretion. To our
knowledge the Court has not suggested that the exercise of such discretion
includes the authority to delegate it to employees when they are not
choosing a bargaining representative.
481
the agreement of the parties. I therefore conclude
that there is no reason for conducting the polls and
concur in the dismissal of the petitions in the instant
proceeding.
CHAIRMAN MCCULLOCH and MEMBER BROWN,
dissenting:
We would direct elections among the employees
in the three separately represented plants to
determine whether they wish to be represented for
purposes of collective bargaining on a multiplant
basis; and, if they register this choice by secret
ballot, we would clarify the unit to reflect their
wishes.
The instant case arises in the same industry,
involves the same petitioner, and presents essentially
the same issues of fact and law which the Board
considered recently in Libby-Owens-Ford. supra.
That decision explicates the Board's rationale for
concluding that there is statutory authority,25 if not
the duty, to direct such a poll. For the same reasons
we conclude that it is appropriate to do so here.
With all respect to our colleagues who now
constitute a majority, our disagreement with them
stems from our evaluation of the facts, the language,
legislative history and policy imperatives of the
statute, as well as relevant Board and court
precedents.
HISTORY OF BARGAINING
Since 1934 the Employer and the Petitioner have
engaged in multiplant bargaining for production and
maintenance employees in the Employer's glass
division. In 1939 the Board first certified Petitioner
as the bargaining agent for employees in a unit of
seven plants in this division26 located in
Pennsylvania, Ohio, West Virginia, Oklahoma, and
Missouri . Thereafter, in 1947 the parties agreed
voluntarily to add a new plant in Creighton,
Pennsylvania, to their multiplant unit, and in 1956
the parties similarly agreed voluntarily to add a new
plant in Cumberland, Maryland, to that unit; in
neither instance were the employees of these two
plants permitted to indicate by secret ballot whether
or not they wished to join the multiplant unit. Thus,
the present multiplant unit consists of 9 widely
separated plants. Three others in Mt. Zion, Illinois,
in Greensburg, Pennsylvania, and in Fresno,
California, are now represented by Petitioner on a
single plant basis; bargaining rights in these plants
were obtained in one instance by voluntary
recognition and in two instances by Board
certification.
"In McCulloch v. Libbey-Owens-Ford Glass Co. 403 F.2d 916
(C.A.D.C.), cert. denied 393 U.S. 1016, the Court of Appeals reversed the
District Court's restraint against the conduct of self-determination
elections, holding that the conduct of such elections violated neither "clear,
specific and mandatory provisions of the Act" nor the constitutional rights
of any party
"See Pittsburgh Plate Glass Company v N L R. B., 313 U.S 146. In
1939 this Employer , who in the instant case objects to self-determination
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are four remaining plants in this 16-plant
division ; two are unrepresented , and two are
represented by other labor organizations.
COMMUNITY OF INTEREST
The three plants which Petitioner presently
represents in separate units share nearly all the
common interests with the nine plants in the
multiplant unit which those plants share with each
other .:' They have the same bargaining agent. Labor
relations policies for the entire glass division are
centrally formulated. The Employer's director of
labor relations participates in negotiations for both
the multiplant and the single plant units. The
manager of each plant in the division has a
considerable measure of personnel autonomy. There
is a limited history of transfer and interchange of
employees between the multiplant and the
single-plant units, although this factor appears to be
primarily a consequence of the geographical
separation of the various plants . There is substantial
integration and interdependency of all plants in the
division for production purposes. For example, the
Mt. Zion and Fresno plants make window glass and
tempered glass, the very same products which are
manufactured in several plants in the multiplant
unit . Each plant in the division has separate
seniority rosters, as well as separate health , pension
and vacation programs. A single life insurance
program applies to all plants. The lines of
supervision in the division are related to individual
plant production differences ; thus, supervisory lines
apparently overlap, rather than follow, the
bargaining units . The distances between plants in the
multiplant unit and the single-plant units are not
and never have been a basis for unit cohesiveness.
For example, the Henryetta, Oklahoma, plant,
which has been part of the multiplant unit since
1934, is over a thousand miles from the four plants
in that unit which are located in Pennsylvania, but
the Greensburg , Pennsylvania , plant, a single-plant
unit, is less than 100 miles from the four other
Pennsylvania plants which are in the multiplant unit.
elections for employees in single plant units, objected to the Board's initial
multiplant certification on the ground that the employees of the Crystal
City, Missouri, plant were not permitted to determine for themselves
whether they wished to be represented in a single-plant unit . Pittsburgh
Plate Glass Company, 10 NLRB 1111.
"A careful reading of the Employer 's 55-page brief reveals only two
factors which , in the Employer's judgment , show that the employees in the
multiplant unit have a community of interest separate and apart from the
employees in the three single -plant units.
First , seven of the nine plants in the multiplant unit have incentive
wages, but neither the Cumberland plant nor some operations of the
Crystal City plant has incentive wages The three single plant units - like
the Cumberland plant and some operations of the Crystal City plant -
have nonincentive wages . This argument by the Employer proves too
much; it proves that all the plants in the multiplant unit do not even have a
common wage system which might distinguish them from the single plant
units. -
Second , the Employer points out that in the "older" multiplant units the
average age of employees is 50 years, while in the three separate plant
units the average age of employees is under 30 years The Employer does
IMPACT OF THIS DECISION ON COLLECTIVE
BARGAINING
Over the years Petitioner has unsuccessfully
sought on many occasions , in collective bargaining
and on the picket line, to persuade the Employer to
permit the single plant units to join the multiplant
unit. The Employer has consistently refused,
although , when it suited its purpose, the Employer
agreed to add the second Creighton, Pennsylvania,
plant in 1947 and the Cumberland, Maryland, plant
in 1956 to the multiplant unit.
This unit controversy has been the source of
continuing and sharp labor relations tension. In
1966 there was a 2-month strike at the Mt. Zion
plant in which the Employer's refusal to add that
plant to the multiplant unit was a primary issue. In
1958 a strike at the Greensburg plant similarly
involved the Employer's opposition to adding it to
the multiplant unit. Witness after witness in this
proceeding testified that the employees in both the
multiplant unit and the single-plant units have
repeatedly expressed their wish to join their units for
bargaining , and there is no contrary evidence before
us.
In these circumstances which , we reiterate, are
not meaningfully distinguishable from
Libbey-Owens-Ford , our colleagues in the majority
would dismiss the instant election petitions. They
would leave the employees in the single-plant units
separated from their fellow employees in the
multiplant unit with no recourse under the Act. This
means, as a practical matter, that the composition
of this unit would depend entirely upon the will of
the Employer, for the majority in effect
acknowledges that the Employer may agree or
refuse to agree to the broader unit for any reason,
or for no reason at all, despite the wishes of the
affected employees.
It is a curiosity of this case that neither the
Union-Petitioner, nor the Employer, nor our
colleagues in the majority have adverted to what
surely must be the underlying issue: Whether the
employees in the single plant units may combine
with employees in the multiplant unit in order to
improve their collective-bargaining position with the
Employer. It is not for mere fraternal reasons that
the Petitioner seeks this joinder, nor is it for any
apparent reason concerning production or
administration that the Employer opposes it. The
Union's obvious desire to enhance its bargaining
position is not an independent , valid reason to grant
not advise us of the average age for all employees in the multiplant unit. In
any event the Board has never based bargaining unit determinations upon
the average ages of employees and, in our judgment , may not do so
consonant either with this Act or with other federal statutes.
The Employer 's sole reliance upon these two factors as evidence of the
separate community of interests between the multiplant employees and the
single-plant unit employees is convincing that the multiplant and
single-plant employees are separated less by meaningful labor relations
considerations than by history and their employer 's preferences as to their
unit placement.
PPG INDUSTRIES, INC. 483
its election requests, nor is the Employer's obvious
desire to prevent any such enhancement of its
employees' bargaining position an independent, valid
reason to deny those requests. Our judgment must
be guided solely by the words and policies of the
statute.
One preeminent policy of this statute is:
to eliminate the causes of certain substantial
obstructions to the free flow of commerce . . . by
encouraging the practice and procedure of
collective bargaining and by protecting the
exercise by workers of full freedom of
association , self-organization , and designation of
representatives of their own choosing, for the
purpose of negotiating the terms and conditions of
their employeement . . . . [Section 1(b). Emphasis
supplied.]
The statute is not neutral on the question of the
desirability of collective bargaining . It directs us to
encourage, not discourage, collective bargaining, and
it directs us to do so by "protecting the exercise by
workers of full freedom of association." In making
unit decisions for purposes of collective bargaining,
therefore, the Board must, we believe, implement
the basic policies of Congress to help make
collective-bargaining work. And this means, in the
context of this case, that the Board may, and indeed
must, examine whether its unit determination
encourages or discourages effective collective
bargaining . Our colleagues treat the unit issue in
this case as though it were a mechanical exercise
which is governed by formal rules of symmetry,
rather than a subtle question of labor and economic
relations.
SECTION 9(B) AND EMPLOYEE FREE CHOICE
In its zeal to avoid the Libbey-Owens-Ford
precedent, the Employer argues for a wholly new
interpretation of Section 9(b) which would compel
reversal of literally hundreds of unit decisions made
during the entire 33 years of the statute's history.
Section 9(b) authorizes the Board to decide that an
appropriate unit "shall be the employer unit, craft
unit, plant unit, or subdivision thereof." The
Employer now asserts that the words "subdivision
thereof" modify only the words immediately
preceding them, i.e. "plant unit," not the words
"employer unit." Under this interpretation of
Section 9(b), multiplant, multistore, multioffice, and
all other units, which are less than employerwide but
more than plantwide , would be inappropriate, as
would administrative and supervisory division units
and metropolitan and state units . We reject this
wholly unsupported interpretation of the literal
language of Section 9 (b) for the reason that Section
9(b) has long and authoritatively been interpreted to
mean that a "subdivision " of an "employer unit"
can be appropriate for collective bargaining.38
"N.L R B v. Hearst Publications , 322 U.S. 111, 133-135; Pittsburgh
Section 9(b) affirmatively commands the Board to
"decide in each case" the appropriateness of the unit
"in order to assure to employees the fullest freedom
in exercising the rights guaranteed by this Act." But
Congress' emphasis on the paramount interest of
employees is scarcely considered in the architectonic
decision of our colleagues. Ironically, in the very
litigation which led to the initial certification of the
multiplant unit with this Employer nearly 30 years
ago, the Supreme Court said:
Naturally the wishes of employees are a factor
in a Board conclusion upon a unit. They are to be
weighed with the similarity of working duties and
conditions, the character of the various plants and
the anticipated effectiveness of the unit in
maintaining industrial peace through collective
bargaining. 29
Irony compounded, in another leading case
involving this Employer, this Petitioner and this
multiplant unit, wherein both parties stressed their
long history of multiplant bargaining, the Court of
Appeals for the Fourth Circuit in 1959 said:
As amended Sec. 9(b) does not strip the Board
of its original power and duty to decide in each
case what bargaining unit is most appropriate to
assure to the employees the fullest freedom in
collective bargaining . . . . In effect it frees the
Board from the domination of its past decisions
and directs it to reexamine each case on its merits
and leaves it free to select that unit which it
deems best suited to accomplish the statutory
purposes ....
The Board . . . had been set up by Congress as
an independent body presumed to possess the
expert knowledge and wisdom in the field superior
to that of the courts or of Congress or of the
active participants in the industrial world and
therefore better fitted than anyone else to decide
what would best serve the working man in his
effort to bargain collectively with his employer,
and what would best serve the interest of the
country as a whole.30
In applying these principles of the statute and of
authoritative interpretations, a number of questions
must be answered: What factors distinguish the
three single-plant units from the nine plants in the
multiplant unit? What policy of the law leads our
colleagues to approve any agreement which the
Employer and the Union might make to add the
single plants to the multiplant unit without the
consent of the employees, while disapproving a
secret ballot election in which the employees would
decide for themselves? What interest of collective
bargaining is served by freezing the status of
employees in the single-plant units?
The Employer in this proceeding , the record
shows, has grown substantially in recent decades.
Plate Glass Co v. N.L R B, 313 U.S 146, 164-165.
"Pittsburgh Plate Glass Company v. N.L.R.B., 313 U S. 146, 156.
"N L R.B. v. Pittsburgh Plate Glass Company. 270 F.2d 167, 172-173
(C.A. 4).
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New plants and new employees have been added as
the market demand for the Employer's products has
increased. The recently established PPG plants in
the glass division do not operate in rigid isolation
from the other plants in this division; they are
directed by the same divisional and enterprise
management and are part of the same dynamic
business organization. Why, therefore, must the
employees of recently established plants - not to
speak of future employees of future plants - be
rigidly isolated forever (or at their employer's
pleasure) from other employees in the same
division? Why must the employees of an expanding,
national enterprise be denied the opportunity to
expand the foundation of their self-organizational
interests in some corresponding proportion to their
employer's growth? Why must these employees not
be permitted to choose to concert their action with
that of fellow-employees making the same products
and represented by the same union, each of which
groups might otherwise tend to undermine the other
in the event of a bargaining breakdown and
stoppage resulting from a lawful strike or lockout?"
Our colleagues in the majority have only one
answer: The addition of the three single-plant units
to the multiplant unit, if that is the employees'
choice, they suggest, would create an inappropriate
or contrived unit. By this they mean that a 12-plant
unit would not conform to any existing
administrative unit of the Employer's operation, nor
would it be based on geographic contiguity.
Although they state that the present nine-plant unit
may seem contrived, they add that it is sanctioned
by the agreement of the parties. In effect they
acknowledge that this requested 12-plant unit would
also suffer no disability if its appropriateness were
agreed to by the Employer rather than determined
by the Board.
It is true that a 12-plant unit would not conform
to any existing administrative unit of the Employer.
But where does the statute sanctify or even mention
administrative units or, for that matter,
geographically based units? The Supreme Court has
long held that, with respect to units, "no absolute
rule of law is laid down by statute, and none should
be by decision. It involves of necessity a large
measure of informed discretion . . . ."32 And this
.Board has long held that the interests of employees
and the policies of the law will not always be best
served by limiting unit determinations to those
which are "optimal," "basically appropriate,"
"presumptively appropriate," or "most"
appropriate." These are not words of the statute.
"We previously adverted to the continuing labor relations tension and
the strikes that have been byproducts of the unit controversy. We do not
assert , as our colleagues suggest , that giving the employees a choice to
merge the separate units into a multiplant unit is "an assured panacea for
industrial peace ." But we do point out that it would remove one of the
sources of industrial conflict between the parties in the past.
"Packard Motor Car Co v. N L R B. 330 U.S. 485, 491.
"Allied Stores of New York. Inc, 150 NLRB 799, 803 See Retail.
Multiplant units which are neither employerwide
in scope nor based on strict administrative or
geographic lines are of course quite common in
American industry. (See, e.g., General Motors
Corp., 151 NLRB 156; Associated Transport, Inc.,
130 NLRB 167.) Yet Members Fanning and Jenkins
urge us to disregard all such experience, including
the immediate multiplant experience of the parties
to this case , for the reason that, they contend, such
a multiplant unit voluntarily established "tend(s) to
insure stability of bargaining" whereas such a unit
established by the Board creates a "gamble on
stability." Are our colleagues correct in their
assertion that a multiplant unit established as
appropriate by the Board is risky, while a
voluntarily established unit of the same plants tends
to insure stability? Our colleagues suggest not the
slightest evidence to support their theory, and we
doubt that such evidence exists. Indeed, if their
theory were correct, it would cast a reflection on
Congress' wisdom in conferring authority on the
Board to make unit determinations over the
objection of any party.
The views expressed by our colleagues in the
majority are not suitably addressed to the question
presented by this case; they are instead addressed to
a case in which a labor organization seeks an
election in order to establish bargaining rights
initially on a multiplant basis. In this case, in
contrast, this Employer already recognizes this
Union as the exclusive bargaining agent for each
and every one of the employees involved. Therefore,
the only question here is whether the Employer's
and the Union's present obligation to bargain for
the employees in these 12 plants must forever be
frozen in 4 separate units or whether, if the
employees in the single plant units choose by secret
ballot, the present bargaining obligation should be
performed on a single unit basis. There is no
indication in the extensive legislative history of the
Act and its amendments to suggest that Congress
intended so to freeze the performance of existing
bargaining obligations, despite the wishes of the
affected employees.
The decision of Members Fanning and Jenkins
admonishes that unit "bigness" is not an
"unmitigated blessing ." Big units may not be an
unmixed blessing , but neither the statute nor
experience has sanctified small, isolated units - the
view implicit in our colleagues' decision.
Our colleagues also seek refuge in the argument
that Congress has delegated to the Board alone the
authority to make unit determinations. Hence, they
maintain , permitting employees to choose between
membership in a single plant or a multiplant unit is
an unauthorized assignment of the Board's statutory
power to employees. This argument misconceives
the purpose of a self-determination election, which is
a flexible and democratic mechanism of the law to
Wholesale and Department Store Union v. N L R B, 389 F.2d 301
(C.A.D C )
PPG INDUSTRIES, INC. 485
permit employees to choose between membership in
one bargaining unit or another , either of which in
the Board ' s judgment is appropriate for collective
bargaining . For example , the craft severance
election -- the classic example of a
self-determination election permits skilled
craftsmen to choose between membership in a larger
production and maintenance unit or in a smaller
craft unit . It has not been suggested until today that
such self-determination elections illegally delegate
the Board ' s statutory powers to employees. On the
contrary , as the Board said in Libbey- Owens-Ford,
supra:
The Board has long given some weight to
employee expressions of preference determined
through the election procedure , as illustrated by
what have come to be known as Globe or
self-determination elections . Such elections are
uniformly conducted among the disputed
employees and have received consistent
acceptance notwithstanding that nowhere in the
statute are they mentioned or specifically
authorized , except for the Section 9(b)
requirement , adopted in 1947, that the Board
utilize its previously existing self-determination
election procedure in certain situations involving
professional and craft employees. Far from
disapproving this use of employee preference as a
factor and the means adopted to ascertain it,
these requirements indicate Congressional
approval thereof.
The decision of Member Zagoria , with which
Members Fanning and Jenkins agree, bespeaks an
"all or nothing at all" approach . Member Zagoria,
who joined the majority in Libbey-Owens-Ford,
distinguishes that case on the single ground that
there "the ultimate unit sought by the petitioner was
employerwide and, as such , was presumptively
appropriate ," whereas here "the unit sought
comprises only part of the Employer ' s glass
operations and in no event could it extend to the
entirety of such operations." Yet
Libbey-Owens-Ford obviously contemplated the
possibility that one or both of the two plants in
which the self-determination elections were
conducted might vote against joining the multiplant
unit . Here , it is true , the choice of employees in the
three separately represented plants to join the
multiplant unit would not result in a divisionwide
unit. It would , however , result in a unit consisting of
all employees performing the same kind of work for
this Employer who have historically been
represented by the same bargaining agent. This
common labor relations history - stretching back
to 1934 - is a factor which is entitled to much
weight . It has created a community of interest as
meaningful as any and more meaningful than most
other traditional unit criteria . Not even the
Employer contends in this case that any
administrative or production problems would result
from a 12-plant unit.
In view of the present majority ' s recent
determination in Transcontinental Bus System, 178
NLRB No. 110, to dismiss a petition which sought
an employerwide unit largely because of a history of
bargaining in smaller administrative division-type
units , one is tempted to ask whether the majority's
objection to the proposed self-determination
elections in this case is truly an objection to the
"appropriateness" of the unit which might thereby
be created or more simply an objection to any unit
expansion over an employer ' s objections -
regardless of "appropriateness" in terms of
traditional unit criteria . In other words , has not the
majority solo voce in fact promulgated a rather new
and most exceptional unit policy? - viz, separate,
appropriate bargaining units may not be expanded
or combined into a single , equally appropriate
bargaining unit over an employer ' s objections, no
matter the wishes of the employees . It is equally
plain to us that neither the words of Section 9 nor
the policies of the Act lend any support to this kind
of employer veto over units . On the contrary, until
today we had supposed that the statute ' s mandate
was that units should be formulated "in order to
assure to employees the fullest freedom in exercising
the rights guaranteed by this Act."
It is our conviction that today ' s decision violates
the policies and the spirit of the statute , if not its
precise words.
Wide variations in the forms of employee
self-organization and the complexities of modern
industrial organization make difficult the use of
inflexible rules as the test of an appropriate unit.
Congress was informed of the need for flexibility
in shaping the unit to the particular case and
accordingly gave the Board wide discretion in the
matter."
For these reasons we would direct
self-determination elections in the three single-plant
units.
"N L R.B v Hearst Publications , 322 U S. 111, 134