PPG Industries, Inc.

450 PPG INDUSTRIES, INC. PPG Industries, Inc.' and International Chemical Workers Union, Local 776, AFL-CIO. Case 9-CA-4298 June 27, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On April 2, 1968, Trial Examiner Thomas S. Wil- son issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below, and hereby orders that the Respondent, PPG Industries, Inc., Circleville, Ohio, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. Substitute the following for Section 1 of the Trial Examiner's Recommended Order: "1. Cease and desist from: The name of the Respondent has been changed from Pittsburgh Plate Glass Company to PPG Industries, Inc 2 We note that Respondent does not contest the Trial Examiner's finding that it may not unilaterally institute Labor Grade 13, however it contends that the Order and notice recommended by the Trial Examiner are too broad and infringe upon Respondent 's contractual right to administer its job evaluation program We find merit in Respondent 's contention and shall amend the Recommended Order and notice We also find merit in Respondent 's exception to the Trial Examiner's finding that Respondent had engaged in a variety of unfair labor practices "(a) Refusing to bargain by unilaterally creating new or additional labor grades for the employees in the bargaining unit described below, during the term of any collective-bargaining agreement cover- ing said employees, without first consulting with and bargaining with the Union concerning such changes and reaching agreement on any modifica- tion of the terms of the contract. The bargaining unit is: All production and maintenance employees of Respondent including process control men, product finishers, warehousemen, and utility maintenance men, employed at Circleville, Ohio, but excluding all other employees, technicians, material dispatchers, office cleri- cal employees, guards, and supervisors as defined in the Act. "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities, except to the extent that such right may be affected by the proviso in Section 8(a)(3) of the Act." 2. The notice attached to the Trial Examiner's Decision is modified by substituting the following for the first indented paragraph thereof: WE WILL NOT refuse to bargain collectively with International Chemical Workers Union, Local 776, AFL-CIO, by unilaterally creating new or additional labor grades for the em- ployees in the bargaining unit described below, during the term of any collective-bargaining agreement covering said employees, without first consulting with and bargaining with the Union concerning such changes and reaching agreement on any modification of the terms of the contract. The bargaining unit is: 3. Delete the second indented paragraph of the notice. 4. Amend the Employer's name as it appears in the notice to PPG Industries, Inc. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein by the Board. and that Respondent was opposed to the policies of the Act Accordingly, we shall issue a narrow Order herein We find, contrary to the Trial Examiner, that the letter sent by Respon- dent to its employees did not constitute an attempt to denigrate the Union or undercut its authority and shall dismiss that allegation of the complaint We hereby correct the inadvertent error in the last paragraph of Conclu- sions under section III by substituting for the Trial Examiner's finding of a violation of Sec 8 ( a)( I) and (3), a finding of a violation of Sec 8(a)( I ) and (5) 172 NLRB No. 61 PPG INDUSTRIES, INC. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon a charge duly filed on June 1, 1967, by International Chemical Workers Union, Local 776, AFL-CIO, hereinafter referred to as the Union, the General Counsel of the National Labor Relations Board, hereinafter referred to as the General Counsel' and the Board, respectively, by the Regional Director for Region 9, Cincinnati, Ohio, issued its complaint dated August 28, 1967, against Pittsburgh Plate Glass Company, hereinafter referred to as the Respondent. The complaint alleged that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting cer- tain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice a hearing thereon was held in Circleville, Ohio, on November 1, 1967, before me. All parties appeared at the hearing, were represented by counsel, and were afforded full op- portunity to be heard, to produce, examine, and cross-examine witnesses , and to introduce evidence material and pertinent to the issues. At the conclu- sion of the hearing, oral argument was waived. Briefs were received from General Counsel and Respondent on December 6, 1967. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Pittsburgh Plate Glass Company is a Pennsyl- vania corporation engaged in the manufacture, dis- tribution, and sale of glass chemical coatings and related products at various locations in the State of Ohio and in other States of the United States. Respondent's operation at Circleville, Ohio, is the only plant involved in this proceeding. The complaint alleged, the answer admitted, and I find that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Chemical Workers Union, Local 776, AFL-CIO, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES 451 Respondent's Circleville plant started production in 1963 . As a part of the startup process all jobs in the plant were evaluated and labor grades assigned by Respondent in accordance with Respondent's "Job Evaluation Manual for Hourly Rate Jobs." At the time the Circleville jobs were initially evaluated thereunder , the employees at the plant were not represented by a union. In 1965 International Chemical Workers Union, Local No . 776, AFL-CIO, was certified as the bar- gaining representative for all production and main- tenance workers in Case 9-RC-6213 in the follow- ing appropriate unit : "All production and main- tenance employees of the Employer including process control men, product finishers, warehousemen , and utility maintenance men, em- ployed at Circleville , Ohio, but excluding all other employees, technicians , material dispatchers, office clerical employees, guards , and supervisors as defined in the Act." After the certification but prior to the negotia- tion of the first and current labor agreement, Respondent 's manager of wage and salary adminis- tration met with the local union committee and ex- plained in detail Respondent 's job evaluation system . The union committee was given a copy of the Respondent's "Job Evaluation Manual for Hourly Rate Jobs " and a copy of the "Job Evalua- tion Sheet" showing the point range for Labor Grades I through 14. As part of the training session for job evaluation , members of the union commit- tee actually tried their hand at evaluating jobs using the criterias set forth in the job evaluation manual and the job evaluation schedule listing Labor Grades I through 14, together with a point range applicable to each job class. Thereafter, the Union and Respondent negotiated a collective-bargaining agreement, the first such agreement between these parties, which became effective on September 20, 1965, and by its terms was to continue in full force and effect until September 20, 1968 . Article IX of this agreement reads as follows: ARTICLE IX-WAGES Section 1. The Circleville Wage Schedule set forth in the addendum shall become effective September 20, 1965, and shall be considered a part of this Agreement. Section 2. All jobs covered by this Agree- ment have been analyzed and evaluated in ac- cordance with the procedures set forth in the "Job Evaluation Manual for Hourly Rated Jobs" which is accepted and agreed to by the ' This term specifically includes the attorneys appearing for the General Counsel at the hearing 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties. Except as provided below, the resulting job descriptions and the labor grade applicable to such jobs, are accepted by both the Com- pany and the Union for the term of this Agree- ment. These job descriptions are written for the sole purpose of identifying the various jobs in order that proper evaluation may be made. They do not constitute an exclusive listing of all duties that may be required of an employee in the job nor shall they be construed so as to prevent other employees from performing the same or similar work . The existence of a job description does not mean that the job must necessarily be filled. Wages applicable to the various labor grades are listed in the Wage Schedule which appears as an addendum at the end of the Agreement and is a part hereof. The Wage Schedule shall become effective upon the signing of this Agreement and shall remain undisturbed for the life thereof, except as pro- vided below. Section 3. It is recognized that the establish- ment of new jobs or a change in job content of established jobs may from time to time require the adjustment or modification of existing job rates or the installation of new job rates not in effect on the plant's wage scale as of the date of this Agreement . This may be due to new manufacturing processes , new products, new units, new occupations, etc. In such cases Management will, within the framework of the existing labor grades and Wage Schedule at- tached to and made a part of this Agreement, develop an appropriate wage rate as follows: (1) Management will evaluate a new or revised job using the accepted evaluation procedure to determine the appropriate labor grade . A copy of the job description will be furnished to the Union. (2) Management 's determination of the labor grade will be reviewed jointly with the Union Committee in an attempt to arrive at a mu- tual agreement. (3) Employees' hourly rates will be adjusted according to the results of any re-evaluation. Section 4 . If such agreement is not reached, the labor grade and applicable wage rate proposed by the Company shall be put into ef- fect . If, after a trial period of twenty (20) calendar days, the Union shall claim any in- equity with respect to such labor grade and the wage rate , the claim may be submitted to the Settlement of Complaints procedure in ac- cordance with Article XVII, provided the com- plaint is submitted in writing within twenty (20) calendar days beginning immediately after the last day of such trial period ; otherwise the new or adjusted labor grade and wage rate shall be considered satisfactory and shall remain unchanged for the life of this Agree- ment. If a complaint is submitted to the arbitration machinery , the decision shall be governed by the principle that the new labor grade and wage rate shall bear a fair relationship to the other jobs in the plant . The decision shall be effective as of the date when the employee was assigned to the `new' job [ Emphasis supplied.] The Circleville Wage Schedule attached to the Agreement referred to Labor Grades 4 through 12, exclusively . When the union negotiators attempted to secure the inclusion of Labor Grade 13 during the negotiations, Respondent refused on the ground that all Circleville jobs had been rated from Labor Grades 4 through 12. Hence , the Wage Schedule addendum was restricted to Labor Grades 4 through 12. In the administration of Respondent 's job evalua- tion program , an attempt is made to review all eval- uated jobs, hourly or salaried , union or nonunion, at least once each year to determine whether there had been any change in job content which warrants a reevaluation up or down. Such a review was conducted at the Circleville plant by William T. Branthoover , Respondent's assistant manager, wage and salary administration, in the period March 8 through 10, 1967. Branthoover, working with a local plant committee consisting of the plant manager, the department head , the immediate supervisor, and the industrial relations manager , reviewed all jobs at Circleville to determine which , if any, warranted reevaluation. As a result of this review this committee, with concur- rence from Branthoover , did propose reevaluations for several salaried nonunion jobs as well as an increase from Labor Grade 12 to Labor Grade 13 for the maintenance man occupation "to reflect the additional responsibility and training now required in connection with expanded instrumenta- tion requirements and maintenance responsibilities in the new polyether plant." The results of this reevaluation of the main- tenance man occupation were confirmed to the plant manager by Branthoover in a letter dated March 15, 1967. Donald F . Cree, Circleville plant manager, ad- vised Alvin York, Local Union president, 2 or 3 days prior to March 17, 1967, that Respondent had under consideration for reevaluation the main- tenance man occupation from Labor Grade 12 to Labor Grade 13 as well as a 25-cent across-the- board wage increase and a year 's extension of the current agreement . York was noncommittal. Cree suggested that Respondent and a union committee meet at the L & K Restaurant on March 17, 1967, when Respondent would submit a proposition to the Union. On March 17, a group of Respondent officials headed by Cree held a dinner meeting with some of the local union officers headed by York. At this meeting, Cree handed the following written PPG INDUSTRIES, INC. proposal to York in addition to orally proposing an immediate 25-cent across-the-board wage increase: AMENDMENT TO ARTICLES OF AGREEMENT Pittsburgh Plate Glass Company, Circleville Plant, Circleville, Ohio (referred to herein as the "Company") and the International Chemi- cal Workers Union and its Local No. 776 (referred to herein collectively as the "U- nion"), hereby amend the ARTICLES OF AGREEMENT between the parties dated Sep- tember 20, 1965 (referred to herein as the "ARTICLES OF AGREEMENT"), as follows: 1. ARTICLE IX-WAGES, Section 1 of the ARTICLES OF AGREEMENT is amended to read in its entirety as follows: Section 1. The Circleville Wage Schedule set forth in the addendum shall become ef- fective , and shall be considered a part of this Agreement. II. Effective , the Wage Schedule at- tached to this Amendment covering Labor Grades 2 through 13 is substituted for the Wage Schedule attached as an addendum to the ARTICLES OF AGREEMENT covering Labor Grades 4 through 12. III. ARTICLE XX-TERM OF CON- TRACT, Section 1 of the ARTICLES OF AGREEMENT is amended to read in its en- tirety as follows: Section 1. This Agreement, as amended, shall become effective , and shall con- tinue in full force and effect until 6: P.M., September 20, 1969, and shall automati- cally renew itself from year to year thereafter unless either party desires to discontinue or modify the existing Agree- ment upon any termination date; at least sixty (60) days' prior written notice of such intent must be given to the other party hereto. Notice under this Section will be by registered mail. In the event of notice of cancellation or modification of the Agreement, it shall be the duty of all parties to meet in joint conference within thirty (30) days after receipt of notice for the purpose of negotiating a new or modified agreement. It is further agreed that proposed changes or new agreements shall be presented not later than the first day of its conference by the party serving notice. Although the union group objected to the proposal, York did agree to submit it to the union member- ship for approval or disapproval. On Tuesday, March 21, York advised John E. Bowen, industrial relations manager at Circleville, that the proposal had been voted down by a vote of 33 against and 13 for, out of a total union member- ship of 58. Approximately 1 week later, on or about March 453 24, Plant Manager Cree and Industrial Relations Manager Bowen again discussed the reevaluation of the maintenance man with two union officers, York and Crooks. York advised Cree that the proposed Grade 13 would cause dissention in the union ranks. Cree answered, "Take your time, we want to be right on this" and then suggested that it might be best to have "one great mass confusion" and get it over with. Subsequently, York did discuss the matter again with his committee and thereafter advised Cree and Bowen that the committee had turned it down. However, on March 27, Respondent unilaterally increased the maintenance man from Labor Grade 12 to Labor Grade 13 with a corresponding in- crease in wage rate. On March 30, York addressed the following tele- gram to Cree: You have indicated to me that it is presently the Company's intention to create a Grade 13 for the maintenance men. I wish to point out to you that Article IX, Section 3 requires that any reevaluation be within the framework of the existing labor grades and wage schedule at- tached to and made a part of the agreement with the Company. At the present time there is no Grade 13 in the contract and such cannot be added during the life of the contract without the agreement of the Union. If management unilaterally creates a Grade 13 for maintenance men, such action will be a willful and knowing breach of the contract (having notice by this wire) and as such-would also be an unfair labor practice under Sections 8(a) 1, 3, and 5 of the NLRA. Such action would amount to coercion of members of the bargaining unit in the exercise of their rights under Section 7 of the NLRA with an effect of setting maintenance men against production men thereby weakening the Union, and would also be an affirmative showing that the Com- pany bargained in bad faith with the Union in executing the agreement between the Union and the Company which was signed on the 20th day of September, 1965. Furthermore, the Company and the Union mu- tually agreed in Article XXII, Section 2 of the contract that neither party would have a duty or right to insist that the other party bargain collectively during the life of this agreement with respect to any economic or non-economic demands. Therefore, the Union is unwilling to discuss the increase of the maintenance men from Grade 12 to Grade 13, unless manage- ment will also agree to negotiate an increase for everyone within the bargaining unit without an extension of the contract. 454 DECISIONS OF NATIONAL Cree replied to York by letter dated April 5 as follows: Reference is made to your telegram dated March 30, 1967 protesting the Company's ac- tion in reevaluating the Maintenance Man job from Labor Grade 12 to Labor Grade 13. If a job evaluation program is to work satisfactorily, it is imperative that the jobs covered by the program be reviewed from time to time so that any substantial changes in job content may be properly reflected in the rate for the job. Depending upon the nature of the changes, the reevaluation may result in reclas- sifying the job in a lower labor grade, the same labor grade, or a higher labor grade. On March 8-10, 1967, W. T. Branthoover, Assistant Manager for Wage and Salary Ad- ministration, visited Circleville in connection with a routine review of bargaining unit jobs. As a result of this review the Maintenance Man job was reevaluated from Labor Grade 12 to Labor Grade 13 to reflect the additional responsibility and training now required in connection with expanded instrumentation requirements and maintenance responsibilities in the new polyether plant. The reevaluation indicated that there was justification for in- creasing the points allotted to the factors Training Time and Responsibility. Since the total point score on the reevaluation was higher than the maximum for Labor Grade 12, it was necessary to institute a new Labor Grade 13 in accordance with the Company's standard job evaluation procedure. Under our labor contract, it is not necessary to wait until the termination of a contract to reevaluate jobs where the situation warrants. Article IX, Section 3 recognizes that there may be a change in job content during a contract term and provides a procedure for reevaluating jobs to reflect the impact of any such changes. The procedure outlined in Section 3 is quite clear and was followed to the letter in the reevaluation of the Maintenance Man job. Your reference to Article XX, Section 2 in support of your position that neither party has a duty or right to insist that the other party bargain collectively during the life of the agreement is not applicable in this instance for the reason that Article IX specifically provides a procedure to be followed in reevaluating jobs to reflect changes in job content during the contract term. We are not asking the Union to bargain concerning this matter, merely to discharge its responsibilities under the con- tract. Finally, it is certainly difficult for me to see how the Company could be in violation of the National Labor Relations Act when it scru- The facts here are not in dispute As set forth above, the Examiner has in large part plagiarized Respondent 's brief with minor changes in LABOR RELATIONS BOARD pulously followed the procedure set forth in the contract for adjusting wage rates. We intend to make our job evaluation pro- gram work and to keep our evaluation of in- dividual jobs on a current basis. Accordingly, we are not willing to withdraw the increase which has been announced for the Main- tenance Man. If you disagree with this reevaluation, the contract provides in Section 4 of Article IX the procedure to be followed by the Union in protesting the reevaluation. So the maintenance man remained at Labor Grade 13 despite the protest. Thereafter, on April 9, the Union did file grievance 13 alleging that the Company's action in reevaluating the maintenance man's job was in violation of article XIII of the Labor Agreement. After requesting and receiving an extension of 15 days from May 10 to 25 to further process the grievance , the Union on May 24 withdrew that grievance.2 On April 18, Cree addressed a "Mr. and Mrs." letter to the entire membership of Local 776 and their wives advising them as follows: As you probably know, the present contract between the Company and Local 776 provides for an increase of $0.08 per hour on Sep- tember 20, 1967, and is scheduled to expire on September 20, 1968. When that contract was signed , both the Company and the Union be- lieved it to be a good agreement. Since that time, however, there has been a substantial in- crease in the cost of living, and both our em- ployees and the Company have had to pay in- creased prices for the things they buy. Because the Company now believes that the existing wage schedule no longer meets the needs of its employees, the following offer was made to your Union on March 16: 1. The wages of all employees would be increased $0.25 per hour effective March 20, 1967, and the increase of $0.08 an hour which is provided by the existing contract would still go into effect on Sep- tember 20, 1967. 2. The job of Maintenance Man would be reclassified from Labor Grade 12 to Labor Grade 13. 3. The existing contract, which is due to expire on September 20, 1968, would be extended, and an additional increase of $0.08 per hour would be made effective on September 20, 1968. This recent voluntary Company offer would have increased the wages of each employee by a minimum of $780 for the period between phraseology, some chronological rearrangement, a few additional para- graphs, and quotations from the actual documents PPG INDUSTRIES, INC. March 20, 1967 and September 20, 1968. In return for this , the Company only asked that the current contract be extended for one year with an additional $0.08 per hour increase. This, in my opinion , was very fair and generous. I was very disappointed to learn that the Union membership had voted against accepting the Company's offer. I want you to know that our offer was made in good faith, and that the loss of pay which you will suffer over the next 18 months cannot be attributed to the Company. As determined by the Union vote, our only al- ternative now is to pay the schedule of wages provided for in the contract until it expires on September 20, 1968. However, I want to as- sure you that the Company is always ready to discuss problems with employees at any time. [Emphasis supplied.] Conclusions In this Trial Examiner's experience , this case is unique in that there is only one point of disagree- ment between the parties and that on a question of mixed law and fact. Respondent's brief sets forth this disagreement as follows: The General Counsel apparently bases its posi- tion that the Company unlawfully refused to bargain with the Union on one sentence in Ar- ticle IX of the labor contract which reads as follows. In such cases management will, within the framework of his existing Labor Grades and Wage Schedule attached to and made a part of this agreement, develop an ap- propriate wage rate as follows: Since , according to the General Counsel, the wage schedule which in a part of the agree- ment lists only labor grades 1 [sic-actually 4] through 12, the Company had no right under Article IX to unilaterally install Labor Grade 13 for the Maintenance Man. This argument ignores the fact that in Section 2 of Article IX, the Union accepts and agrees to the "Job Evaluation Manual for Hourly Rate Jobs," which, of necessity, includes Respondent's Ex- hibit 3 listing Labor Grades 1 through 14 and the point ranges applicable to each such Grade. As Respondent's witness Branthoover stated, Respondent 's Exhibit 3 is an integral and essential part of the job evaluation system which the Union accepted in Article IX of the labor contract.... Thus Respondent 's argument in its brief is that the reference to the manual in article IX, section 2, of the contract necessarily includes all 14 labor grades referred to in such manual. General Counsel , on the contrary , argues in his brief that the references to the Circleville Wage Schedule addendum which admittedly is limited to 455 labor grades 4 to 12 in article IX, sections 2 and 3, restrict the labor grades and wages negotiatted in the contract to Grades 4 through 12: Section 2 ... Wages applicable to the various labor grades are listed in the Wage Schedule which appears as an addendum at the end of the Agreement and is a part hereof. The Wage Schedule shall become effective upon the sig- ning of this Agreement and shall remain undisturbed for the life thereof, except as pro- vided below: Section 3 ... In such cases Management will, within the framework of the existing labor grades and Wage Schedule attached to and made a part of this Agreement, develop an ap- propriate wage rate as follows .... Under ordinary contract construction the phrase "within the framework of the existing labor grades and Wage Schedule attached to and made a part of this Agreement" in section 3 must necessarily limit the labor grades with their accompanying wages to Labor Grades 4 through 12 at the Circleville plant. Section 2 provides that those grades "shall remain undisturbed" for the life of the Agreement. Hence, under the terms of the Agreement, the Union was under no duty to bargain over the establishment of a new labor grade. If further corroboration of this construction of the contract is required, it is to be found in the un- denied testimony in the record that during the negotiation of the contract the Union requested the inclusion of Labor Grade 13 in the Wage Schedule addendum to the contract but that Respondent refused its inclusion on the grounds that only Labor Grades 4 through 12 jobs existed at Circleville. Thus, I must find that by the agreement of the parties, the labor grades at the Circleville plant, and the wages thereof, were restricted to Labor Grades 4 through 12 exclusively for the duration of the negotiated agreement. With that disagreement so settled by ordinary rules of contract construction, the law applicable to the instant case and to all the various legal conten- tions made is set forth by the Board in the case of C & S Industries, Inc., 158 NLRB 454. In the C & S case the respondent employer and the certified union had reached a collective-bar- gaining agreement setting forth the wage rates of the various jobs. During the life of that agreement respondent suggested to the union the possibility of establishing incentive wage rates in lieu of the wage rates negotiated in the collective-bargaining agree- ment . When the union objected, the respondent employer unilaterally established such incentive rates without the consent of the certified union. As occurred in the instant case, the union in C & S at first brought its objections to this unilateral establishment of the incentive wages under the grievance procedure but later withdrew such grievances and filed unfair labor practices. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In C & S the Board answered all questions raised here as follows: It is true, of course, that where during timely negotiations for a new agreement, an employer has offered to bargain with a union concerning a proposed change in contract conditions and the Union has refused to bargain, the Em- ployer does not violate his statutory obligation if following the effective period of the expiring contract he unilaterally institutes the change. The situation is different, however, where, as here, an employer seeks to modify during the life of an existing contract terms and condi- tions of employment embodied in the contract and made effective for its term. In the latter situation , a bargain having already been struck for the contract period and reduced to writing, neither party is required under the statute to bargain anew about the matters the contract has settled for its duration, and the Employer is no longer free to modify the contract over the objection of the Union. The Board has also held that an employer acts in derogation of his bargaining obligation uder Section 8(d), and hence violates Section 8(a)(5), when he unilaterally modifies contrac- tual terms or conditions of employment during the effective period of a contract-and this even though he has previously offered to bar- gain with a union about the change and the Union has refused. * In the instant case, we think it quite clear, and we find, that Respondent's unilateral su- perimposition of an incentive wage plan upon the contractually established wage structure operated as a "modification" of contract terms, within the meaning of Section 8(d). Although the contract makes no specific men- tion of wage incentives, such incentives are in- separably bound up with and are thus plainly an aspect of the payment of wages, a subject expressly covered by the contract. Any doubt of this is removed by the presence in the con- tract of Article XXIX, which expressly prohibits any change in the method of payment without the written consent of the parties. We therefore conclude, for reasons above set forth, and without regard to whether or not Respondent made a sufficient prior offer to bargain, that Respondent's unilateral installa- tion of its wage incentive system was in deroga- tion of its statutory obligation under Section 8(d), and was therefore violative of Section 8(a)(5). [All citations omitted.] In addition, the respondent employer in C & S, like Respondent here, argued that the union's com- plaint should have been heard under the grievance and arbitration provisions of the contract between the two. On this point the Board held in C & S as follows: Section 10(a) of the Act, which confers on the Board power to prevent unfair labor prac- tices, provides that "[t]his power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise. . . ." The Board is not precluded from resolving an un- fair labor practice issue calling for appropriate remedial relief under the Act, simply because as incident thereto it may be necessary to con- strue the scope of a contract which an arbitra- tor may also be empowered to construe. Although it lies in a discretion of the Board to defer to arbitration, we do not regard the con- troversy before us as one calling for our exer- cise of such discretion. Here we do not have an issue which, although cast in unfair labor prac- tice terms, is essentially one involving a con- tract dispute, making it reasonably probable that arbitration will put the statutory infringe- ment finally at rest in a manner sufficient to ef- fectuate the policies of the Act. Nor does resolution of the unfair labor practice issue here involved primarily turn on an interpreta- tion of specific contractual provisions of am- biguous meaning , within the special com- petence of an arbitrator to determine. Nor has either party placed this dispute before an ar- bitrator or secured an award passing upon any other issues here raised. In urging deferral to arbitration, the Respondent contends only that the incentive plan was not specifically prohibited by the contract and that its installa- tion was economically justified. But, for reasons earlier indicated, the absence of a specific incentive plan prohibition cannot and does not affect our judgment that Respon- dent's unilateral action was violative of the Act. And we agree with the Trial Examiner that Respondent's claim of economic necessity affords no justification for its unlawful con- duct. Consequently, and as no other com- pelling reason appears for our doing so, we shall not defer to arbitration. In view of the foregoing and the entire record in the case, we find that the Respondent violated Section 8(a)(5) by instituting, without the consent of the Union, a wage incentive system during the term of the existing collec- tive-bargaining agreement. The Board's decision in C & S might just as well have been written as the decision in the instant case . I refrain from quoting the whole decision in C & S only in the interest of saving space. Accordingly, I must, and hereby do, find that Respondent violated Section 8(a)(1) and (3) of the Act by unilaterally establishing Labor Grade 13. Interference, Restraint, and Coercion In the light of all the circumstances here Respon- dent's "Mr. and Mrs." letter of April 18 to the em- PPG INDUSTRIES INC. 457 ployees can only be interpreted as an attempt by Respondent to undercut the authority of the Union as the bargaining representative of the employees in the appropriate unit and as an attempt to denigrate the Union as such. One of the best ways to achieve such results is by the method employed by the Respondent in this instance : Let the wives know how much money their husbands are supposedly losing by following the advice of the bargaining agent-a decision incidentally which the husbands adopted rather overwhelmingly in this instance. A woman talking to her husband about money sup- posedly lost often proves most persuasive-which no doubt accounts for the "Mr. and Mrs." address of the communication. The concluding sentence of these letters removes all doubts as to the Respondent's purpose lurking behind the communication : " However , I want to as- sure you that the Company is always ready to discuss problems with employees at any time." (Emphasis supplied.) Accordingly, I must, and hereby do, find that by these letters of April 18, 1967, the Respondent in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by the Act in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above , occurring in connection with the Respondent 's operations described in section I, above, have a close , intimate , and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has en- gaged in certain unfair labor practices , it will be recommended that Respondent cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent refused to bargain with the certified representative of the employees in an appropriate unit by unilaterally instituting Labor Grade 13 over the objection of the Union, I will recommend that Respondent bargain with the Union upon request , rescind the institution of Labor Grade 13 unless and until the Union agrees thereto , and cease and desist from instituting changes in the wages, hours, and other terms and conditions of employment of its employees during the effective term of the collective-bargaining agreement covering said employees without first reaching agreement with the Union concerning such changes. Because of the variety of the unfair labor prac- tices engaged in by Respondent, I sense an opposi- tion by Respondent to the policies of the Act in general, and hence I deem it necessary to order the Respondent to cease and desist from in any manner infringing upon the rights guaranteed its employees in Section 7 of the Act. CONCLUSIONS OF LAW 1. International Chemical Workers Union, Local 776, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees of Respondent including process control men, product finishers, warehousemen, and utility maintenance men employed at Circleville, Ohio, but excluding all other employees, technicians, material dispatchers, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 3. At all times since January 1965, the Union has been, and still is, the exclusive representative of all the employees within said appropriate unit for the purposes of collective bargaining with Respon- dent in regard to rates of pay, wages, hours of em- ployment, and other conditions of employment, within the meaning of Section 9(a) of the Act. 4. By unilaterally instituting Labor Grade 13 without the consent of the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By addressing a "Mr. and Mrs." letter to all of the employees in the appropriate unit denigrating and undercutting the Union as the representative of such employees, Respondent has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed to them by Section 7 of the Act in violation of Section 8(a)(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. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Pittsburgh Plate Glass Company, Circleville, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the above-named labor organization as the exclusive representative of its employees in the following ap- propriate unit with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment: All production and maintenance employees of Respondent including process control men, product finishers, warehousemen, and utility maintenance men, employed at Circleville, 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio, but excluding all other employees, technicians, material dispatchers, office cleri- cal employees, guards, and supervisors as defined in the Act. (b) Making unilateral changes in wages, rates of pay, or other terms and conditions of employment of its employees in the above-described appropriate unit during the term of the contract without first reaching agreement with the above-named Union concerning such changes and particularly by establishing Labor Grade 13 over the Union's ob- jection. (c) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form, join, or assist the above-named or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities ex- cept to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. 2. Take the following affirmative action, which I find necessary to effectuate the policies of the Act: (a) Upon request of the above-named Union, rescind the instituting of Labor Grade 13 which Respondent unilaterally instituted in the agreement with the Union without the Union's consent (b) Post at its plant in Circleville, Ohio, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words " a Decision and Order " ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read " Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with International Chemical Workers Union, Local 776, AFL-CIO, as the exclusive representative of the employees in the follow- ing appropriate unit: All production and maintenance em- ployees of Respondent including process control men, product finishers, warehousemen, and utility maintenance men, employed at Circleville, Ohio, but excluding all other employees, techni- cians, material dispatchers, office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT unilaternally institute new labor grades or other changes in wages, hours, or other terms and conditions of employment of the employees in the bargaining unit described -above; during the term of any collec- tive-bargaining agreement covering said em- ployees, without first consulting or bargaining with the Union concerning such proposed changes and reaching agreement on any such modification of the terms of the contract. WE WILL, upon request, revoke the institu- tion of Labor Grade 13 for our employees which we unilaterally instituted on or about March 27, 1967. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the above-named or any other labor or- ganization , to bargain collectively through representatives of their own choosing, to en- gage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Sec- tion 8(a)(3) of the Act. All our employees are free to become, remain, or to refrain from becoming or remaining members of any labor organization, except to the extent that such right may be affected by the provisos in Sec- tion 8(a)(3) of the Act. PITTSBURGH PLATE GLASS COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. PPG INDUSTRIES INC. 459 If employees have any question concerning this Office, Room 2407 Federal Office Building, 550 notice or compliance with its provisions, they may Main Street, Cincinnati, Ohio 45202, Telephone communicate directly with the Board's Regional 684-3663.