Hastie, Van Dusen and Aldisert, Circuit Judges.
This petition by the United Glass and Ceramic Workers of North America, AFL-CIO-CLC and its Locals 1, 5, 9, 19, 33 and 418 (Union) challenges an April 16, 1971, order of the National Labor Relations Board (Board) dismissing an unfair labor practice complaint filed by the General Counsel of the National Labor Relations Board. The alleged unfair labor practice was based on the failure of the Libbey-Owens-Ford Company (Company) to bargain collectively with a multiplant unit including its plant in Brackenridge, Pennsylvania. The issues before this court concern existence of a valid determination by the Board that the multiplant unit was "the unit appropriate for the purposes of collective bargaining."*fn1
The Union has been the certified collective bargaining representative of the production and maintenance employees of the company in a multiplant unit since 1939. The size and composition of the multiplant unit has varied as plants were opened and closed and, by July 13, 1966, it included eight plants. At this point the Union filed a unit clarification (U.C.) petition pursuant to the Board's rules, 29 C.F.R. § 102.60(b), to clarify the multiplant unit by adding the company's plants in Lathrop, California, and Brackenridge, Pennsylvania. These two plants had previously constituted separate bargaining units and the Union was recognized by the Company as the collective bargaining agent for all three units.*fn2 On September 8 and 9, 1966, a hearing on the U.C. petition was held and all parties appeared and participated. The case was then transferred to the Board and on January 12, 1968, it issued its "Decision and Direction of Election." The majority of the Board found that the existing separate plant units and an employer-wide multiplant unit would be presumptively appropriate. Therefore, it ordered that a self-determination election should be held at the Lathrop and Brackenridge plants to determine which unit the employees of those plants favored. The Board dismissed the Company's objection that the U.S. procedure was inappropriate in this situation and that a representation petition under Section 9(c) should have been filed. Libbey-Owens-Ford Glass Company, 169 NLRB 126 (1968). Board members Fanning and Jenkins dissented on the grounds that there was no statutory authority for the Board to conduct an election in the absence of a question of representation.*fn3 The Company filed a motion for rehearing, which was denied, and on March 20, 1968, elections were held at which the employees at both the Lathrop and Brackenridge plants indicated their support for the multiplant unit. On December 10, 1968, the Board issued an order clarifying the existing multiplant unit to include the Brackenridge and Lathrop plants.*fn4
During the period between the hearing on the U.C. petition and the issuance of the Board's order clarifying the unit, the Company opened a new plant for the production and fabrication of glass in Mason City, Iowa. On August 10, 1967, the Union filed a representation petition, asking to be certified as a collective bargaining agent for a unit consisting of the Mason City employees, and on December 8, 1967, they were so certified by the Regional Director.
In subsequent contract negotiations, the Company agreed to the inclusion of the Lathrop Plant employees in the multiplant unit but refused to include the Brackenridge employees.*fn5 When the Brackenridge contract expired on October 1, 1969, the Company continued in its refusal to bargain with the employees of that plant as part of the multiplant unit, but did bargain with them as a separate unit. As a result, the Union filed an unfair labor practice charge against the Company for its refusal to bargain with the multiplant unit which had been certified by the Board. On December 31, 1969, the General Counsel of the Board filed the complaint in the unfair labor practice proceeding.*fn6 The Company, in its answer to the complaint, asserted that the underlying unit clarification determination was not supported by the evidence and was made in excess of the Board's authorized powers. A hearing was scheduled for March 25, 1970.*fn7 The hearing examiner refused to consider the validity of the underlying U.S. proceeding and found that an unfair labor practice had been committed. The Company filed exceptions to the trial examiner's decision and renewed its attack on the underlying U.C. proceeding.
On April 16, 1971, the Board issued its decision and order and, by a 2-1-2 vote, refused to enforce the decision of the trial examiner and dismissed the complaint. Members Fanning and Jenkins adopted the rationale of their prior dissents in the underlying U.C. proceeding and held that the Board did not have sufficient statutory authority to direct and conduct the self-determination elections. The order clarifying the unit, therefore, could have no force or effect and could not serve as the basis for the complaint.
Chairman Miller concurred in the result but disagreed with the finding that the Board lacked statutory authority to conduct the elections. He reasoned that the Board had not followed the Libbey-Owens-Ford doctrine in its subsequent cases and that a return to the prior procedure of "leaving the matter of changes in size of a multiplant bargaining unit to be worked out by agreement of the parties" would best fulfill the Board's duty to foster stable collective bargaining relationships. The two remaining members voted to enforce the decision of the trial examiner.
In reviewing the Board's dismissal of the unfair labor practice complaint, this court must examine the underlying unit determination since the unit proceeding and the complaint are really one.*fn8 Normally a challenge to a ruling of the Board determining the appropriate bargaining unit is not subject to direct review and must await an unfair labor practice complaint predicated upon the unit determination.*fn9 In the instant action, the Company has challenged at all stages of this proceeding not only the Board's finding of the appropriate unit but the authority of the Board to make such a determination in the manner and under the procedures that it did. In dismissing this complaint, the Board relied on its determination that the underlying U.C. order was involved and thus could not serve as the basis for an unfair labor practice complaint. While we agree that it was proper for the Board to examine the validity of its underlying unit determination,*fn10 we have concluded that the reconsideration of this issue required a finding by at least a majority of the Board of the appropriateness of the units involved and we remand for such a determination.
The company raises two separate grounds of invalidity of the Board's actions in this case. The first is that the U.C. proceeding was an unauthorized mechanism for the consolidation of existing collective bargaining units under the statutory language, and the second is that the Board lacked the authority to conduct an election in the absence of a question of representation.
As to the first contention, we find that the Board acted within its statutory authority in conducting a U.C. proceeding designed to consider the merger of existing collective bargaining units. The Board is granted broad powers under Section 9(b) of the Act to determine appropriate bargaining units,*fn11 and is granted the authority under Section 10(d) to change or modify its order in such manner as it may deem proper any time prior to the filing of a court challenge to the order.*fn12 Pursuant to these powers, the Board adopted its U.C. procedures which are embodied in Rule 102.60(b):
"A petition for clarification of an existing bargaining unit or a petition for amendment of certification, in the absence of a question concerning representation, may be filed by a labor organization or by an employer."
The rule was adopted in recognition of the fact that changes in circumstances might necessitate changes in a collective bargaining arrangement and that initial unit determinations made in a representation proceeding are not immutable.
In Carey v. Westinghouse Corp., 375 U.S. 261, 11 L. Ed. 2d 320, 84 S. Ct. 401 (1963), the Supreme Court sanctions the use of the U.C. procedure. The Court relied on the existence of a dispute which was representational in nature as the predicate for invoking the U.C. procedure. A representational dispute was described as one "involving the duty of the employer ...