ON PETITION FOR REVIEW OF ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Van Dusen, Aldisert, and Rosenn, Circuit Judges. Rosenn, Circuit Judge (dissenting).
VAN DUSEN, Circuit Judge.
This case is before this court upon the petition of Libbey-Owens-Ford Company (hereinafter the "Company") to review and set aside a Supplemental Decision and Order of the National Labor Relations Board issued on March 1, 1973, and reported at 202 N.L.R.B. No. 15. The Board has made a cross-application for enforcement of that order. This court has jurisdiction over these proceedings by virtue of Section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(f).
The Company, an Ohio corporation, with its main offices in Toledo, Ohio, is engaged in the manufacture and sale of glass and glass products. On January 30, 1939, the Board certified the United Glass and Ceramic Workers of North America, AFL-CIO-CLC (hereinafter the "Union"), as the collective bargaining representative in a single bargaining unit consisting of the Company's production and maintenance employees at eight plants located in Ottawa, Illinois, Charleston and Parkersburg, West Virginia, Rossford and Toledo, Ohio, and Shreveport, Louisiana. Libbey-Owens-Ford Glass Company, 10 N.L.R.B. 1470 (1939).*fn1 The Company and Union have maintained a continuing bargaining relationship since the certification. Subsequently the Company recognized the Union as the collective bargaining representative also for the production and maintenance employees at two other plants, each of which was recognized as a separate unit with a separate bargaining agreement. One plant, located in Brackenridge, Pennsylvania, was recognized by the Company in 1943, after being acquired by purchase; the second plant, located in Lathrop, California, was recognized in 1962, shortly after it was constructed by the Company.
On July 13, 1966, the Union filed a unit clarification petition (6-UC-4) to clarify the existing multi-plant unit by including the represented employees in the single plant units at Brackenridge and Lathrop. Following a hearing on the petition, the Board issued a Decision and Direction of Election on January 12, 1968, in which it found that the existing separate units and an enlarged multi-plant unit were both appropriate and therefore ordered separate self-determination elections at the Lathrop and Brackenridge plants to permit the employees in the affected single-plant units to determine whether or not they were to be included in the larger, multi-plant unit. 169 N.L.R.B. 126 (1968). Board members Fanning and Jenkins dissented, being of the opinion that the Board lacked statutory authority to hold elections to determine the unit placement of represented employees.
The Company and the Union, in the interim, continued to bargain for the Lathrop plant as a separate unit until the multi-plant negotiations in October 1968. At that time, the Union demanded that the Brackenridge plant, the Lathrop plant, and a new plant at Mason City, Iowa, be included in the multi-plant unit. The Company steadfastly refused to include Brackenridge or Mason City but did include Lathrop in the multi-plant unit.
On December 10, 1968, following the directed elections held on March 20, 1968, the Board issued a Supplemental Decision and Order, in which it found that a majority of the employees in each of the two separate plant units had voted in favor of merger with the multi-plant unit and ordered that the multi-plant unit be clarified by including the Brackenridge and Lathrop plants. 173 N.L.R.B. 1231 (1968). Members Fanning and Jenkins dissented on the basis of their earlier opinion that this election should not have been held.
When the Brackenridge contract expired on September 30, 1969, the Company refused to add the Brackenridge plant as a part of the multi-plant unit and refused the Union's demands that the provisions of the multi-plant contract be made applicable to Brackenridge employees. The Union filed an unfair labor practice charge against the Company on October 13, 1969 (6-CA-4771), alleging that the Company had violated Section 8(a) (5) and (1) of the Act by refusing to bargain with the Union on behalf of the Brackenridge employees as part of the Board-clarified multi-plant unit. Thereafter an unfair labor practice complaint issued and a hearing was held.*fn2 In his decision, issued on July 29, 1970, the Administrative Law Judge held that he was bound by the Board's prior decision in the unit clarification case and that the Company had, therefore, committed an unfair labor practice by refusing to recognize and bargain with the Union as the duly certified representative of the Brackenridge employees as part of the multi-plant unit.
On April 16, 1971, the Board (with members Brown and Kennedy dissenting) issued its Decision and Order dismissing the complaint. 189 N.L.R.B. 871 (1971). Members Fanning and Jenkins based their decision to dismiss on their previously stated view that the Board did not possess statutory authority to determine unit placement of represented employees by conducting elections to clarify existing bargaining units. Chairman Miller concurred in dismissing the complaint, not because of any lack of statutory authority, but because "the Board has consistently refused since 1968 to follow and apply the Libbey-Owens-Ford doctrine, even in cases which were virtually indistinguishable," and because the Board's "duty to foster stable collective-bargaining relationships is well discharged by leaving the matter of changes in size of a multiplant bargaining unit to be worked out by agreement of the parties." Members Brown and Kennedy, in separate dissents, indicated that they viewed the underlying certification to be a proper exercise of the Board's authority, that the Company was under a duty to honor that certification, and that its failure to do so constituted a violation of its duty to bargain imposed by Section 8(a) (5) and (1) of the Act.
Thereafter, the Union filed a petition to review and set aside the Board's decision with this court. On June 21, 1972, we issued our decision remanding the proceedings to the Board for further consideration. United Glass and Ceramic Workers of North America v. N.L.R.B., 463 F.2d 31 (3d Cir. 1972). We held that the Board acted within its statutory authority in conducting a unit clarification proceeding designed to consider the merger of existing collective bargaining units and that the Board had the requisite authority to conduct the elections at the Brackenridge and Lathrop plants. We noted, however, that because of their respective views of the case, neither members Fanning and Jenkins nor Chairman Miller had passed on the appropriateness of both a multi-plant unit including the Brackenridge plant and of the Brackenridge single-plant unit. Accordingly, the case was remanded to the Board to make such a determination, unless a majority of the Board adheres to the view advanced by Chairman Miller that the determination of the unit should be left to collective bargaining or decides not to proceed with the case for other reasons.
On March 1, 1973, the Board (with Chairman Miller dissenting) issued its Supplemental Decision and Order, in which it reaffirmed its view that the single-plant and multi-plant units constituted equally appropriate units for bargaining for the reasons stated in the initial unit clarification decision. Thus, the Board found that the Company was obligated to bargain with the Union as the exclusive bargaining representative of its employees in the clarified multi-plant unit, and that by refusing to bargain with the Union on behalf of its Brackenridge employees as part of such unit, the Company violated Section 8(a) (5) and (1) of the Act. On April 9, 1973, the Company filed a motion for reconsideration of the Board's Supplemental Decision and Order, which the Board denied in an order dated May 18, 1973.
The only issue raised by the Company's petition to review and set aside the Board's Supplemental Decision and Order of March 1, 1973, is whether the Board's underlying unit determination was erroneous. In reviewing that determination, this court is mindful of the fact that the Board is granted broad powers under Section 9(b) of the Act to determine appropriate bargaining units.*fn3 Thus, the Supreme Court has declared that such a determination "involves of necessity a large measure of informed discretion, and the decision of the Board, if not final is rarely to be disturbed." Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 491, 91 L. Ed. 1040, 67 S. Ct. 789 (1947). See also N.L.R.B. v. New Enterprise Stone & Lime Co., 413 F.2d 117, 119 (3d Cir. 1969); N.L.R.B. v. David Friedland Painting Co., 377 F.2d 983, 987 (3d Cir. 1967). Nevertheless, as the Supreme Court also observed in Packard Motor Car, supra, a determination of a unit of representation may be so unreasonable and arbitrary as to exceed the Board's power.
The Company challenges the Board's unit determination on two grounds. First, it argues that the Board's finding in the unit clarification proceeding, that a multi-plant bargaining unit which included the Brackenridge plant is appropriate, is not supported by substantial evidence on the record as a whole.*fn4 The Company contends that the record in this case fails to establish, and indeed demonstrates the absence of, a number of factors generally considered relevant to the issue of the appropriateness of a multi-plant unit.*fn5 Although this contention appears correct as to the absence of some of these factors, it nevertheless does not preclude the Board from finding that the inclusion of the Brackenridge plant in the unit is appropriate. In determining whether certain employees should be grouped together for collective bargaining, the Board is free to consider a wide variety of factors, and the presence or absence of one or even several of them is not necessarily determinative of the case. See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 156, 85 L. Ed. 1251, 61 S. Ct. 908 (1941).*fn6 As the Supreme Court pointed out in N.L.R.B. v. Jones & Laughlin Steel Corp., 331 U.S. 416, 422-23, 91 L. Ed. 1575, 67 S. Ct. 1274 (1947), the Board's ...