Dow Chemical Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 11 104 Dow Chemical Company and Local 12075, United Steelworkers of America, AFL–CIO Local 12075, United Steelworkers of America, AFL– CIO and Dow Chemical Company. Cases 7– CA–43257, 7–CA–43388, 7–CA–43504, 7–CA– 44023, and 7–CB–12626 January 29, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On August 14, 2002, Administrative Law Judge Mar- tin J. Linsky issued the attached decision. The General Counsel, the Respondent Employer (Dow), and the Re- spondent Union (the Union) each filed exceptions, a sup- porting brief, and an answering brief. Dow and the Un- ion each also filed a reply brief. On May 1, 2006, the Union, the Charging Party in Cases 7–CA–43257, 7–CA–43388, 7–CA–43504, and 7– CA–44023 (the CA cases), sought to withdraw its charges in those cases. On June 14, 2006, the General Counsel filed a Motion to Sever and Remand the CA cases to the Regional Director so the Regional Director could process the Union’s withdrawal request. Dow filed a response opposing the motion. On September 5, 2006, the Board issued a Notice to Show Cause why the motion should not be denied, instructing the General Counsel and the Union to set forth the reasons for the Union’s request to withdraw and the reasons for the General Counsel’s motion. The General Counsel, Dow, and the Union each filed a response to the Notice to Show Cause. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has decided, as explained below, to grant the General Counsel’s Motion to Sever the CA cases.1 With regard to the remaining CB case (Case 7–CB– 12626), the Board has considered the judge’s decision recommending that the complaint allegations be dis- missed, and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,2 and conclusions. We shall accordingly order that the CA cases be severed and remanded to the Re- 1 We deny Dow’s request for oral argument regarding the Motion to Sever. 2 Dow has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. gional Director and that the complaint in the CB case be dismissed. The Motion to Sever The Union seeks to withdraw its charges underlying complaint allegations that Dow violated Section 8(a)(2) by establishing and dominating human resource teams (HRTs) that functioned as labor organizations, that Dow violated Section 8(a)(5) by direct dealing with employees in matters relating to the HRTs, and that Dow violated Section 8(a)(5) by unilaterally changing and reassigning the duties of certain employees. In support of the Motion to Sever and Remand the CA cases, the General Counsel and the Union assert that, subsequent to the issuance of the judge’s decision, Dow changed its practices so that (1) Dow’s relationship to the HRTs no longer violates the Act; and (2) the position involved in the unilateral change allegations no longer exists.3 In opposing the Motion to Sever, Dow notes that the parties and the Board have expended substantial effort litigating the CA cases. Dow also suggests that if the Union withdraws its charges, the Union might nonethe- less file future charges against Dow. We find the General Counsel’s and the Union’s prof- fered reasons sufficient to support the General Counsel’s motion. We also find that granting the Motion to Sever will effectuate the policies of the Act by conserving Board resources that would otherwise be required to de- cide the issues presented by the CA cases and by ena- bling the Board to expedite issuance of its decision in the remaining CB case. Although Dow notes that the HRTs continue to exist, Dow does not controvert the assertions that Dow does not dominate them or deal directly with them. Indeed, our dissenting colleague can only assert something that Dow does not, viz. that Dow may change its practice from the current status quo. However, Dow itself does not even suggest that it would make such changes, and thus our colleague’s prediction is speculative. The dissent argues that the Board and the parties have expended substantial resources litigating the case. How- ever, the issue is whether—in light of Dow’s subsequent substantial changes that largely eliminate the allegedly unlawful conduct—the expenditure of further potentially significant resources best serves the public interest. We find that it does not. Proceeding to decision in the CA cases will require the Board to expend additional resources; furthermore, a Board order on the merits in the CA cases may result in 3 These assertions are supported by the affidavit of the president of the Union local representing the Dow employees. They are not denied by Dow. DOW CHEMICAL CO. 105 the parties’ and the Board’s expenditure of still more resources litigating that order in the appellate court. Dow has not shown benefits to the public interest war- ranting the expenditure of such additional resources. Our dissenting colleague says that the case is in the last stages of litigation and that little additional resources need be spent. Implicit in this is the notion that the party adversely affected by a Board decision would not seek judicial review. Given the amount of litigation thus far, we are less certain than our colleague that a Board deci- sion would end the matter. In any event, we decline to speculate that this would be so. Further, contrary to the dissent’s suggestion, it is unlikely that a Board decision on the merits in the CA cases would provide relevant guidance to the parties. Such a Board decision would address the operational facts as they existed at the time of the hearing. However, given the substantial changes Dow has made in the in- terim, that decision would not address the potential fac- tual or legal issues regarding Dow’s current or future operations. Were the Union to file charges against Dow in the future, they would presumably be on some new basis. The changes Dow has made would be considered by the General Counsel and, if complaint were to issue, by the Board. We also reject the dissent’s suggestion that a Board decision on the merits in the CA cases is needed to pro- vide guidance to employers generally regarding these issues. Although Board decisions do provide guidance, the Board’s primary purpose is to resolve actual disputes; the guidance flowing from such resolutions can be bene- ficial, but it is not the prime reason for the decision. The dissent notes that Dow’s operational changes alle- viating the allegedly unlawful conduct occurred in 2002, and that the Union delayed seeking to withdraw the CA charges until 2006. The dissent then notes Dow’s infer- ence, from these facts, that the Union’s motive in seeking to withdraw the charges is a purported belief that the current Board would dismiss the CA allegations. We find no support for that inference. There can be a myriad of explanations for the Union’s waiting until 2006. For example, the Union may well have been less than confi- dent that Dow had permanently alleviated the allegedly unlawful conduct. That confidence was gained only after several years had passed and, as Union President Kent Holsing noted in his affidavit in response to the Notice to Show Cause, “Dow and the [Union had] entered into two subsequent collective-bargaining agreements, without any reappearance of the violations alleged.” In any event, unlike our colleague, we would not speculate as to the Union’s motives. Finally, we disagree with the dissent’s reliance on Metropolitan Taxicab Board of Trade, Inc., 342 NLRB 1300 (2004). Although the Board there rejected the charging party’s request to withdraw its charge and in- stead chose to decide the case on the merits, the issue presented there—whether nearly 2000 New York City taxi drivers were statutory employees rather than inde- pendent contractors—was an undisputedly live and im- portant issue to all involved parties. By contrast, the issue presented here—whether certain of Dow’s now- abandoned practices violated the Act—is clearly less vital and significant. For these reasons, we grant the General Counsel’s Mo- tion to Sever and Remand the CA cases to the Regional Director.4 ORDER It is ordered that Cases 7–CA–43257, 7–CA–43388, 7–CA–43504, and 7–CA–44023 are severed from this proceeding and remanded to the Regional Director so that the Regional Director may process the Union’s re- quest to withdraw its charges in those cases. IT IS FURTHER ORDERED that the complaint in Case 7– CB–12626 is dismissed. MEMBER SCHAUMBER, dissenting in part. I join my colleagues in adopting the judge’s decision and dismissing the remaining CB case (Case 7–CB– 12626). However, contrary to my colleagues, I would deny the General Counsel’s Motion to Sever the CA cases and would not permit the Charging Party to with- draw its charge. In my view, permitting the withdrawal of the charge at this late date would be inconsistent with the public interest and would not effectuate the policies of the Act. Background The judge issued his decision in this case on August 14, 2002, after a multiweek hearing conducted between June 2001 and February 2002. Subsequent to the judge’s decision, Dow, the Union, and the General Counsel filed exceptions and extensively briefed the relevant issues. The issues before the Board in the CA portions of the consolidated complaint include whether: (1) Dow vio- lated Section 8(a)(2) by establishing and dominating hu- man resource teams (HRT) that were “labor organiza- tions” under the Act; (2) Dow violated Section 8(a)(5) by direct dealing with employees in matters relating to the 4 In his motion to sever, the General Counsel did not explain why the Union no longer wished to pursue its charges. In their responses to the Notice to Show Cause, the General Counsel and the Union provided the explanation, discussed above. Accordingly, we need not reach Dow’s contention in its response to the Motion to Sever that, in the absence of such an explanation, the motion should be denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 106 HRTs; and (3) Dow violated Section 8(a)(5) by unilater- ally changing and reassigning the duties of certain em- ployees.1 In May 2006, nearly 4 years later, while these issues were still pending before the Board, the Union sought to withdraw its charges against Dow. Dow opposed the request, arguing that the administrative law judge’s rul- ings were “flawed” and “the mere fact that the union may suspect that it will receive an adverse ruling from the Board hardly seems like an appropriate justification to permit withdrawal, especially after all the resources the Board and the Company have poured into these cases over the years.” The General Counsel subsequently filed a Motion to Sever and Remand the CA cases to the Re- gional Director so the Regional Director could process the Union’s withdrawal request. According to the Gen- eral Counsel, “the Charging Union requested withdrawal of the charges in [the CA cases] [because it] no longer wishes to pursue the matter.” The General Counsel did not address Dow’s letter opposing the Union’s request. Dow filed a Response pointing out that the General Counsel did not give a reason why the Board should sever the cases and permit a withdrawal of the ULP charges. On September 5, 2006, the Board issued a Notice to Show Cause why the motion should not be denied, in- structing the General Counsel and the Union to set forth the reasons for the Union’s request to withdraw and the reasons for the General Counsel’s motion. The General Counsel, the Union, and Dow each filed a response to the Notice to Show Cause. According to the Union and the General Counsel in their responses, the passage of time has mooted the is- sues in the case because the focus of the HRTs has changed since the judge’s decision and the Respondent no longer deals directly with them. The Union asserts, in addition, that the job classifications at issue with respect to the unlawful unilateral change have been eliminated, thus resolving that issue. 1 In 1997, Dow began implementing an employee empowerment ini- tiative known as implementing the strategic blueprint (ISB). One com- ponent of the ISB was the establishment of HRTs, groups comprised of volunteer bargaining unit and nonbargaining unit employees. The HRTs addressed a variety of issues, including job postings, applicant selection, shift scheduling, employee training, employee certification, conflict resolution policies, and overtime assignment policies. The HRTs’ decisions were subject to review by the production leaders who could veto any HRT decision. The HRTs were led by a Dow-appointed coach, met at least monthly, and distributed copies of meeting minutes to building employees. Through the HRTs, Dow discussed employ- ment terms with bargaining unit employees who were HRT members, and the HRTs also solicited input from other bargaining unit employees regarding terms and conditions of employment. Dow argues it would be against the public interest to permit the withdrawal of the Union’s charges at this late date. Dow asserts that the reasons now proffered by the Union were never mentioned when the General Counsel approached Dow about the potential withdrawal of the charges. At that time, Dow was told simply that “the Union no longer wished to pursue the matter.” Dow ex- presses its concern that the Union is motivated by a de- sire to avoid having the case decided by the current Board. Dow further states that, even if the reasons pro- vided by the Union in its response to the Notice to Show Cause are correct at this time, they do not justify granting the Union’s request to withdraw its charges after 4 years of intense litigation. Apart from the enormous amount of time and resources the General Counsel and the parties have expended, Dow argues that a dismissal would be prejudicial to it because there is no settlement agreement, the HRTs continue to be utilized by Dow, and the Union could decide to challenge them again at any time based on some future “dissatisfaction.” Analysis Unlike my colleagues, I would deny the General Coun- sel’s Motion to Sever and Remand and issue a decision on the merits. It is well settled that only the Board is vested with discretion to determine whether a proceed- ing, once instituted, may be abandoned. See Robinson Freight Lines, 117 NLRB 1483, 1485–1486 (1957), enfd. 251 F.2d 639 (6th Cir. 1958). In my view, that discretion should not be exercised in favor of abandonment in this case. Granting the motion to permit the Union to with- draw its charges will neither effectuate the purposes of the Act nor further the public interest. The Respondent, the Union, and the General Counsel have expended a significant amount of time and re- sources on this case, as has the Board. My colleagues state that the issuance of a decision on the merits may result in the expenditure of further substantial resources. To the contrary, this case is at a late stage in the deci- sional process and the issuance of a decision on the mer- its should require little additional effort. Further, in my view, the possibility of a subsequent appeal of a decision on the merits, is too speculative a consideration to take into account. In any event, the Board’s business is ap- plying its resources to resolve disputes concerning the lawfulness of challenged conduct, and to provide guid- ance to our regulated community through decision- making. Both objectives would be furthered by a deci- sion in this long pending matter. The Union contends that Dow changed the way it util- izes the HRTs after the judge issued his decision in 2002, and notes that the parties have since executed two collec- tive-bargaining agreements “without any reappearance of DOW CHEMICAL CO. 107 the violations alleged.” However, the Union has not re- linquished its position that the manner in which Dow initially established and operated the HRTs violated the Act. Similarly, Dow has not abandoned its position that its conduct was perfectly lawful. A live dispute as to that issue—a dispute already aggressively and thoroughly litigated by all parties and considered by the Board— remains. Moreover, even if Dow does not presently in- tend to revert to its original operational structure for the HRTs, a decision on the merits will provide effective guidance to both Dow and the Union regarding permissi- ble future parameters for the program, guidance Dow obviously desires. More broadly, our decision would serve to further clarify a nettlesome area of Board law that has enmeshed a number of employer initiatives in recent years.2 Another troubling aspect of the Union’s request is its timing. The changed circumstances now asserted by the union as a basis for the withdrawal purportedly occurred after the judge issued his decision in 2002. Yet the Un- ion, waited nearly 4 years to seek a withdrawal of its charges, during which time the Board (and the parties) devoted significant resources to the case. The Union offers no explanation for its delay. Consequently, it is not surprising that Dow questions whether the Union is simply motivated by a desire to avoid an imminent ad- verse decision on the merits by the current Board. Fail- ing to issue a decision under these circumstances and over the strong objection of the party against whom the charges were filed does little to foster the integrity and impartiality of the Board’s deliberative processes.3 The Board has declined under analogous circum- stances to grant a charging party’s request for withdrawal of its unfair labor practice charge. In Metropolitan Taxi- cab Board of Trade, 342 NLRB 1300 fn. 2 (2004), while the exceptions to a judge’s decision were pending before the Board, the charging party sought to withdraw its un- 2 There have been a number of decisions since E. I. du Pont & Co., 311 NLRB 893, 894 (1993), addressing the issues of whether: (1) an employer violates Sec. 8(a)(2) and (1) by interfering with, dominating, or supporting an employee participation committee which exists in circumstances where employees have selected an exclusive collective- bargaining representative; and (2) the employer bypassed the union by dealing with the committee, in violation of Sec. 8(a)(5). See, e.g., Georgia Power Co., 342 NLRB 192 (2004), enfd. 427 F.3d 1354 (11th Cir. 2005); Crown Cork & Seal Co., 334 NLRB 699 (2001); Summa Health System, Inc., 330 NLRB 1379 (2000); Keeler Brass Co., 317 NLRB 1110, 1114 (1995). 3 The majority says that I have inferred that the Union’s motive in seeking to withdraw the charges is to avoid an adverse decision. My colleagues have overstated my position. As I state above, I am troubled by the fact that the Union has given no reason for waiting nearly 4 years for its request to withdraw and this has reasonably caused Dow to question its motives. fair labor practice charge and exceptions. The respon- dents and the General Counsel did not oppose the request although the General Counsel did not withdraw his own exceptions. The Board declined to exercise its discretion to dismiss the charge. It reasoned that the case had been fully litigated, exceptions and briefs had been filed, the case had been pending before the Board for a number of years and the Board had devoted considerable time and resources to it. Id. The Board further observed that the issue whether various New York City taxi drivers were independent contractors or statutory employees was not moot simply because the charging party no longer wished to represent them. Id. As in Metropolitan Taxi- cab, this case has been fully litigated, it has been pending before the Board for a number of years, the Board has spent considerable resources on it, and the issue raised cannot be said to be moot on the record before us. Fi- nally, the Board has a heightened obligation to complete its adjudication by issuing a decision in this case. In ad- dition to the time and expense which has already been devoted over many years by the General Counsel, the parties and now the Board, the complaint raises issues that are important in the modern workplace as employers increasingly seek to improve morale and production by empowering employees with more voice over workplace concerns. For all the foregoing reasons, I respectfully dissent. Joseph Canfield and Donna M. Nixon, Esqs., for the General Counsel. Jeffrey C. Kaufman and Philip A. Miscimarra, Esqs., of Chi- cago, Illinois, and Lawrence A. Looby and Betsy T. Kyle, Esqs., of Midland, Michigan, for the Dow Chemical Com- pany. Bruce A. Miller, Esq., of Detroit, Michigan, and Arlus J. Stephens, Esq., of Pittsburgh, Pennsylvania, for Local 12075, United Steelworkers of America, AFL–CIO. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. There are two Respondents or charged parties in this case. They are the Dow Chemical Company (Dow), and Local 12075, United Steelworkers of America, AFL–CIO (the Union). The Union filed a number of charges against Dow which re- sulted in the National Labor Relations Board by the Regional Director for Region 7 issuing a consolidated amended com- plaint in Cases 7–CA–43257, 7–CA–43388, and 7–CA–43504 dated February 27, 2001. On July 31, 2001, the National Labor Relations Board again by the Regional Director for Region 7 issued a complaint in Case 7–CA–44023 after the Union filed an additional charge against Dow. The complaints against Dow (complaint) were consolidated for trial. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 108 Dow filed a charge against the Union which resulted in the National Labor Relations Board, by the Regional Director for Region 7, issuing a complaint in Case 7–CB–12626 on Febru- ary 27, 2001, which was consolidated for trial with several cases against Dow. Dow and the Union both deny that they violated the Act in any way. Although we went on the record briefly on April 5 and 6, 2001, trial on the complaint did not actually begin until June 5, 2001. Trial was held before me in Bay City and Midland, Michigan, over 14 days between June 5, 2001, and February 26, 2002. On the entire record in this case, including the posthearing briefs submitted by the General Counsel, Dow, and the Union and based on my observation of the witnesses and their de- meanor, I issue the following FINDINGS OF FACT I. JURISDICTION At all material times Dow, a corporation with an office and place of business in Midland, Michigan (Dow’s Michigan op- erations), has been engaged in the global manufacture and pro- duction of basis chemicals and chemical specialty products. Dow admits, and I find, that at all material times it has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Dow and the Union admit, and I find, that at all material times the Union has been a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview This case involves Dow’s Michigan operations in Midland, Michigan, where the Union or predecessor unions have repre- sented a unit of employees for over 50 years. Dow’s Michigan operations consist of 25 to 30 separate buildings (departments). The Union represents approximately 1500 hourly employees at Dow’s Michigan operations. In the 1990s, Dow began a process which it called “Imple- menting the Strategic Blueprint” or ISB for short. ISB was explained as a way to empower employees by de- layering levels of management. Before the process of imple- menting ISB began there were 11 to 13 levels between the low- est Dow employee and the CEO. The goal of ISB was to re- duce the number of levels between the lowest employee and the CEO to five or six levels. The overall goal of ISB was to im- prove the way Dow performed. At Michigan operations, the various departments—pretty much synonymous with separate buildings—had five or six levels between the department head and the lowest employee in the department and the goal of ISB was to have just two levels, i.e., the department head called production leader and everyone else. The “everyone else” category would consist of hourly employees represented by the Union and salaried, non- management employees who were not represented by a union. On September 30, 1998, the Union offered its conditional okay to ISB in a letter, which stated as follows: LOCAL 12075 BARGAINING COMMITTEE POSITION ON I.S.B. The Dow Chemical initiative called I.S.B. (Implement- ing the Strategic Blueprint) has raised many questions, and controversy in the Midland Site. It is with these concerns that the leadership of Local 12075, U.S.W.A. feels it is necessary to address what our position is on I.S.B. I.S.B. is a globally driven program in Dow Chemical that is effecting all Dow sites, including ours. It is under- stood to be a corporate initiative to empower the workers; eliminate waste; be value added; business supported; func- tion driven, and Dow’s vision for the future. We also un- derstand that I.S.B. is not to be an initiative to reduce peo- ple; command and control management; low value activ- ity; status quo structure, or a program of the month. After much discussion and examination, we feel that I.S.B. is a concept that, within the boundaries of the con- tract, should be helpful in making the Midland Site more competitive. It should give us the opportunity to be in- volved in the future growth of this site and also to have some control over our future. We, as Dow employees and members of Local 12075, USWA, can make I.S.B. work for us and for the Company. If the I.S.B. concept is to work here in Midland, it must be allowed to work. If the work- ers are to be empowered, we must be empowered in real- ity, not just as a theory. The leadership of Local 12075, USWA cannot support I.S.B. if management does not allow it to work. It cannot work if management forces it onto the employees; is hesi- tant in its duties (in regards to I.S.B.); is inconsistent in dealing with the issues; limits communications, and them- selves being resistant to the I.S.B. process. Also, if I.S.B. is being used as a tool to eliminate hourly jobs; water down classifications, deteriorate jurisdictional lines, and erode seniority, we view this as an assault on our Union. However, as leadership of Local 12075, USWA, we can endorse I.S.B. when management allows it to work and actually gives genuine empowerment to the employ- ees. Who best knows the work processes and the deci- sions that need to be made to give optimum performance to that work process . . . the workers themselves, the members of Local 12075. We urge all members of Local 12075, USWA, if and when involved in I.S.B., to analyze each step and action carefully to make sure that it really benefits the Union and the Company. Make sure that I.S.B. does not take you outside the boundaries of the contract. Do not require someone to get involved but do not turn down sincere help. Find ways to be more competitive while preserving our jobs. Make sure that you have open communications with everyone . . . do not hold information from others, this only breeds mistrust. Get involved in future growth. Have some control over our future while preserving our job security. As stated, we as members of Local 12075, USWA and employees of Dow Chemical, can make a dif- DOW CHEMICAL CO. 109 ference in the Midland Site; make Dow Chemical more competitive, and preserve our jobs and make it work for the Union [GC Exh. 19] [Emphasis in original]. The position statement was signed by the president, vice president, and all three committee persons. As part of ISB, teams were created and vested with certain duties and responsibilities. Among other teams each depart- ment had a human resources team (HR team), which consisted of a coach and the members of the team. The members of the team consisted of salaried nonmanagement employees and hourly employees who were represented by the Union. The General Counsel alleges that the Act was violated with respect to the operation of two of the human resources teams, i.e., the building 489 (herbicide formulations) HR team, and the build- ing 25 (oxide derivatives) HR team. The issue with respect to the two HR teams are whether they are labor organizations within the meaning of Section 2(5) of the Act and, if so, did Dow violate Section 8(a)(2) of the Act by dominating or inferring with the formation or administration of the HR teams or contribute unlawful support to it and whether Dow violated Section 8(a)(5) of the Act because it is alleged that Dow bypassed the Union and dealt directly with employees represented by the Union. This part of the case will be referred to as the ISB case. In July 2000, the Union withdrew its conditional support of ISB, as more fully set forth below and complained about ISB. Dow requested the Union furnish Dow with specifics on the Union’s complaints about ISB implementation. The complaint alleges that the Union violated Section 8(b)(3) of the Act in failing and refusing to comply with Dow’s information request regarding the specifics of the Union’s complaints with ISB implementation. This part of the case will be referred to as the information request case. Lastly, it is alleged in the complaint that Dow in May 2000 unilaterally changed the job duties of crew leaders, who were represented by the Union removing work (semisupervisory duties) traditionally performed by unit employees in this classi- fication and assigning those duties to salaried nonmanagement employees not represented by the Union without giving prior notice to the Union and without affording the Union an oppor- tunity to bargain with Dow about the removal of these duties. This part of the case will be referred to as the crew leader case. The three parts of this case—the ISB case, the information request case, and the crew leader case, will be discussed sepa- rately. B. The ISB Case It is alleged that the building 489 HR team and the building 25 HR team are labor organizations within the meaning of Sec- tion 2(5) of the Act. If they are, then the issue presented is whether Dow dominated and interfered with their operation in violation of Section 8(a)(2) of the Act. Section 2(5) of the Act defines a labor organization as fol- lows: “any organization of any kind, or any agency or em- ployee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employees concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or conditions of work.” Under the statutory definition the organizations at issue, i.e., the building 489 and building 25 HR teams, are labor organiza- tions if (1) employees participate, (2) the organization exists, at least in part, for the purpose of “dealing with” employers, and (3) these dealings concern “conditions of work” or concern other statutory subjects, such as grievances, labor disputes, wages, rates of pay, or hours of employment. The concept of “dealing with” is broader than collective bargaining—it in- volves a bilateral mechanism in which proposals concerning subjects listed in Section 2(5) is coupled with real or apparent consideration of the proposals by management. Electromation, Inc., 309 NLRB 990, 994 (1992), enfd. 35 F.3d 1148 (7th Cir. 1994). In Crown Cork & Seal Co., 334 NLRB 699 (2001), a unani- mous Board held that certain employee committees did not exist for the purpose of “dealing with” the employer—and thus, did not constitute “labor organizations”—where their “purpose” was to perform functions that were managerial or supervisory in nature. The Board decision in Crown Cork & Seal was consistent with preexisting and well established case law. In General Foods Corp., 231 NLRB 1232 (1977), the Board likewise held that various production teams did not constitute a “labor or- ganization” where the employer had delegated to them various managerial decisions, including interviewing job applicants, engaging in safety inspections, and establishing starting and quitting times. The implementation of ISB at Michigan operations in Mid- land, Michigan, involved the delayering of supervisory levels. The various departments at Michigan operations were known by their building number. There were approximately 25 to 30 buildings or departments in Midland. Building 489 was the herbicide formulations department and building 25 was the oxide derivatives department. Building 489 and building 25 each had as stated previously a HR team. The HR team was made up of hourly employees represented by the Union and salaried nonmanagement employees not rep- resented by Union. The goal of ISB included the delayering or elimination of supervisory positions and in building 489 and building 25 there would be one supervisor only, i.e., the pro- duction leader, on level one and all the other employees in the building or department, hourly and salaried, would be at the second level. The HR teams were vested with certain supervi- sory or managerial responsibilities. Each HR team had a coach appointed by management who assisted the HR team. No employee was required to be on the HR team. Initially the HR teams decided issues before it by consensus and later by majority vote. The production leader did not par- ticipate in team meetings unless asked by the team to do so. The production leaders, Karen Schweitzer in building 489 and Paul Leonard in building 25 could accept or reject any recommendation made by the HR teams similar to the way a decision or recommendation by lower management can be overruled by higher management. Throughout the process of implementing ISB at Michigan operations, it was the clear understanding of Dow and the Un- ion that the collective-bargaining agreement between Dow and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 110 the Union was what the parties referred to as a “boundary” to ISB and the operations of any of the teams created under ISB to include the HR teams. I find that the building 489 HR team and the building 25 HR teams were not labor organizations within the meaning of Sec- tion 2(5) of the Act. Section 8(a)(2) makes it an unfair labor practice for an em- ployer “to dominate or interfere with the formation or admini- stration of any labor organization or contribute financial or other support to it. Provided, that subject to rules and regula- tions made and published by the Board pursuant to Section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.” You can’t have a violation of Section 8(a)(2) of the Act in this case unless the building 489 and building 25 HR teams are labor organizations and I find that they are not. Accordingly, Dow did not violate Section 8(a)(2) of the Act. The minutes of the meetings of the building 489 and building 25 HR teams were introduced into evidence at the hearing. I believe that both Dow and the Union were acutely aware that the collective-bargaining agreement was to be a boundary to what the HR teams did. Dow believes the HR teams oper- ated consistent with the collective-bargaining agreement and the Union believes the HR teams went too far. The HR teams engaged in activity which management had previously done which indicates to me that the HR teams were performing management duties and were not a labor organiza- tion “dealing with” management but the teams were manage- ment. These tasks included posting jobs, interviewing appli- cants for jobs, and making a recommendation as to who would be hired, working on vacation and coverage questions all of which management had heretofore done, holiday work sched- ules which management had previously done, scheduling work and training which had heretofore been strictly a management prerogative. Sometimes the HR teams strayed into areas where they did not belong, e.g., the HR teams started to consider a program to reward bargained for employees for a job well done. When the HR teams did so Director of Labor Relations Darrell Debenham promptly told them not to do so. Indeed Debenham put out an order that the HR teams were forbidden from awarding any tangible items to hourly employees for a job well done. The HR team could run an item in the plant paper verbally praising an hourly employee. But when it came to anything tangible, e.g., a cash award that was strictly between Dow Management and the Union and covered by the collective-bargaining agree- ment. The Union and management would have to agree to any such cash or other tangible reward or recognition as the parties did when they agreed to bonus money being given to employ- ees upon reaching certain goals in the implementation of ISB. The building 25 HR team talked about instituting a “Leak- buster” program whereby employees who found leaks at the oxide derivatives facilities would receive a reward. Debenham properly told the team to drop the idea and the team did. Any decisions or recommendations of the HR teams could be overruled by the production leader in that building. Building 25 Steward Tom Stopyak said Production Leader Paul Leonard told him he could overrule any HR team decision or recom- mendation. The HR team coach in building 25 Leo Abby and the Production Leader Paul Leonard conceded as much when they testified. The building 489 and building 25 HR teams acted as part of management and its recommendations and decisions could be overruled by higher management. They were not labor organi- zations within the meaning of Section 2(5) of the Act. How- ever, if the Board or Courts conclude the teams were labor organizations then they were clearly dominated by the em- ployer since the production leader could overrule or modify any decision or recommendation the team made. The second aspect to what I refer to as the ISB portion of the case is whether Dow violated Section 8(a)(5) of the Act by bypassing the Union and dealing directly with the employees represented by the Union. I find that Dow did not bypass the union and deal directly with the employees represented by the Union. The two HR teams performed management functions, which if done by statutory supervisors would not amount to direct dealing or the unlawful bypassing of the Union. Dow argues that even if the HR teams in building 489 and building 25 were labor organizations dominated or interfered with by Dow and even if Dow bypassed the Union and dealt directly with the employees that Section 10(b) of the Act and waiver preclude any finding of unfair labor practices. I dis- agree. The Union reluctantly signed on to the concept of ISB and had problems from the beginning with its implementation. The Union through its President William Laney brought these union perceived problems to the attention of Dow’s senior labor relations person onsite at Michigan operations, namely Labor Relations Manager Darrell Debenham. I credit the testimony of Laney that he told Debenham about ISB problems the Union had and Debenham told him not to put anything in writing but to give Debenham a chance to fix the problems. I discredit Debenham’s denial that this ever took place. I credit Laney’s testimony because he appeared honest and forthright on the stand and what he testified to made sense. It was obvious that Dow wanted to implement ISB at all its facili- ties worldwide. As the labor relations manager at Michigan Operations Debenham wanted ISB to be implemented at Michigan operations peacefully and without grievances and unfair labor practice charges. It simply makes sense that he would ask Laney to hold off on putting things in writing until he (Debenham) had a chance to see if he could fix the problem. The charges filed by the Union regarding the alleged 8(a)(2) and (5) violations were filed in a timely fashion. C. The Information Request Case The Union on July 17, 2000, circulated the following posi- tion paper to its membership. The position paper came to the attention of Dow management. The position paper was as fol- lows: DOW CHEMICAL CO. 111 USWA, LOCAL 12075 BARGAINING COMMITTEE POSITION ON ISB It has been just about two years since the Local 12075 Bargaining Committee had put out the original position paper on ISB (September 30, 1998). Since then, many things have happened. Although there have been positive developments, there have been far more negative effects. This is not due to ISB, but due to the manner in which ISB has been implemented. This has elevated the concerns and anxiety of the membership. It is with this concern of the membership and various issues that have developed in the recent months which causes the Bargaining Committee to readdress what our position is on ISB. As we had stated on September 30, 1998, we believed that I.S.B. is a concept that, within the boundaries of the contract, should be helpful in making the Midland Site more competitive. It should give us the opportunity to be involved in the future growth of this site and also to have some control over our future. We, as Dow employees and members of Local 12075, USWA, can make I.S.B. work for us and for the Company. If the I.S.B. concept is to work here in Midland, it must be allowed to work. If the work- ers are to be empowered, we must be empowered in real- ity, not just as a theory. However, we firmly believe that there are many exam- ples where the implementation of ISB has been manipu- lated by too many in management. There are too many examples of where various management has disregarded or overturned the decisions of different ISB teams. There are various managers that disregard ISB and have been an obstacle to fruitful implementation. There are examples where ISB has been used to bypass the elected, designated Union representatives. There are examples where ISB has been used to try to circumvent or erode our Collective Bargaining Agreement (i.e.: seniority, etc.). Examples where ISB may be used to move forward personal agenda, to the detriment of the majority. Examples where man- agement uses the excuse of “It’s a business decision,” without any basis, explanation, or reasoning to those their “decision” effects. Most of these examples have been ex- pressed to us by many of the members of Local 12075. There are many more examples, coupled with recent events such as the Company’s position on the 1616 Tool & Die negotiations and subsequent move, and the Com- pany’s position on Crew Leaders and the Global Mainte- nance Work Process. We view the above as an assault on the membership and the foundation of the Union. Now, there are those in the Company that have worked closely with Local 12075 and believe that it is imperative to have good cooperative relationship between the Com- pany and the Union for successful ISB implementation. Unfortunately, their efforts have not been strong enough to help us overcome many of our concerns and the problems that exist today. Because of this, the Local 12075 Bar- gaining Committee, has carefully deliberated whether or not to support ISB. We have decided that it is not the question of whether or not to support ISB as it is support of the implementation of ISB. After much thought and de- bate, we have come to the conclusion that we can not, in good faith, support the implementation of ISB as it cur- rently exists. Therefore, until the Company can furnish the Union with sufficient reasons and the good faith changes needed to make ISB work for the Company AND the Un- ion, the Local 12075 Bargaining Committee does not sup- port ISB as it is on the Midland Site. What does this mean for you, the Union member? Well, everyone must remember, you are the Union! Any negative effects as a result of the current implementation of ISB effects the Union, which is you. We can not be short sighted, but must look at the long-term effects the current implementation of ISB may have on the member- ship. What may seem to be a good idea today may indeed be harmful to the overall good of the entire membership. As stated on September 30, 1998 we urged all members of Local 12075, if and when involved in ISB, to analyze each step and action carefully to make sure that it indeed does benefit the Union AND the Company. Those that are Union Stewards, you each must deter- mine which is the best way to represent the membership and execute your duties to fully carry out the Contract in your departments. If ISB efforts continue in your depart- ment, you must be sure that they do not circumvent you (as elected Union representatives in the department) or any provision of the Contract. The Local 12075 Bargaining Committee can assist with advice and answer questions that you may have to best do that. For members of USWA, Local 12075, we each must realize that we are all together in this effort. It is every- one’s responsibility to be safe in everything that we do; to produce quality product, and keep the Company competi- tive. It is also everyone’s responsibility as a member of USWA, Local 10275 to uphold the values of our Union. Again, we can not be short sighted about how the current implementation may effect us personally. You MUST ask yourself some tough questions. How will it effect my fel- low member? How will it effect the Union? How will it effect the Company I work for? Look at what is going on today in the Midland Site. Observe what has been happen- ing over the last two years. How far have we, as Dow Chemical employees, really been empowered? Is this what empowerment is about? Is this something we can support? In closing. Let it be clearly stated and understood by all, USWA, Local 12075 is not anti-ISB. We support the Company program that allows for employee empower- ment, eliminates waste, and is value added. It could and should happen here. But is it? It’s been proven to work on other Unionized Dow sites. The Bargaining Committee of Local 12075 is committed to implementing real change cooperatively with the Company. We want ISB to work the way it was intended, not the way it is currently hap- pening. We (the Union) are constantly being told by the Company that we need to accept change and ISB is the way to become a more competitive Site. We agree that we need to change and become more competitive and if ISB is a way to help, we can accept that. But if this is how they DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 112 want to implement that “change” (ISB), we can not and will not support it. [Emphasis in the original.] Ten days later, on July 27, 2000, Union President William Laney sent the following letter to Labor Relations Manager Darrel Debenham: It has been brought to our attention by many in our membership that there are salaried leaders (Production Leaders, coaches, etc.) in the Company that are bypassing or circumventing the stewards in their department by util- izing various ISB teams (HR teams, Leadership teams, etc.) to make determinations or decisions on contractual issues and working conditions. We are currently investigating these concerns and upon our finalization of the investigation, will determine what course of action to take. Mr. Debenham, we are very concerned about these re- ports and this was one of the facts we had considered in deciding to withdraw our support for ISB. It is against the National Labor Relations Act to have the employer “direct deal” with employees that are exclusively represented by a recognized bargaining agent. We are urging you to help stop such actions. The en- tire Site leadership of the Dow Chemical Company needs to understand that we are the sole bargaining representa- tives as recognized by law. USWA, Local 12075 may have no choice but to seek action through the National La- bor Relations Board or other legal avenues to address this issue. We understand that ISB is to empower employees but it is not meant to erode at the basic fundamentals of the Bargaining Unit. We question whether or not it is the in- tention to erode the Union by, what we believe, is the will- ful action of those leaders who are trying to implement ISB, contrary to the spirit of its intent. As stated in our ISB position, dated July 17, 2000, Local 12075 can not support the implementation of ISB as it currently exists, therefore, until the Company can furnish the Union with sufficient reasons and the good faith changes needed to make ISB work for the Company and the Union, we can not support ISB as it is on the Midland Site. Please let us know as soon as possible of Company’s intentions regarding this matter. Thank you for your time and consideration to this matter. On August 21, 2000, Dow’s Darnell Debenham sent the fol- lowing information request to Union President William Laney: This letter responds to your letter dated July 27, 2000 discussing issues associated with ISB. The July 27 letter also refers to Local 12075’s position on ISB dated July 17, 2000. The ISB initiatives, as you know, began here several years ago. Over these many months, the Company has tried its best to keep Local 12075 informed and engaged in the ISB process as it moves forward. The Company con- tinues to believe that ISB can and will work for the Com- pany, the Union, and Union-represented employees. We therefore appreciate the statements in your July 27 letter and the Union’s July 17 position paper expressing a shared belief in the same ultimate goals. The Company has never intended to deal directly with unit employees on matters of compensation or working conditions, or bypass the Union, in violation of law: With ISB, we have always recognized the Union as the exclu- sive representative of the bargaining unit for purposes of collective bargaining, and continue to do so. We do not understand, after substantial progress has been made, exactly why the Union seeks to withdraw sup- port now for further implementation of ISB. We want to review your concerns and respond appropriately. In order to do so intelligently, however, we will need some specific information. In the July 17 position paper, reference is made to “ex- amples” of matters that now raise concerns for the Union and Union members about ISB implementation. Please provide me with specific detail (who, when, where, what, how, etc.) regarding all the examples and any other in- stances that are the basis for the Union’s current position. After we have that information, we will be able to respond to your request regarding the position of the Company. Please provide this information as soon as possible so we can review it and respond. The Union did not respond in writing to Dow’s information request until February 13, 2001, when Union President William Laney sent to Dow’s Darnell Debenham the following letter: This is [sic] letter is written to answer your letter of August 21, 2000. Your letter states it was written in re- sponse to our July 17th position statement on ISB where we stated, among other things, that there were examples where the Company was abusing the ISB process. You asked for “specific details (who, when, where, what, how, etc.) regarding all the examples and any other instances that are the basis for the Union’s current position.” Of course, I have already given you and many other Dow management officials information about ISB abuses on many occasions with the hope that we could work out the problems and successfully implement ISB. In fact, you protested on many occasions that we gave you too much information and that I should leave out the names of the supervisors involved because you “did not want to get personal” with your managers. Nevertheless I will give you this information again, this time in a written letter. The principal problem areas we were concerned about were in the Herbicide Formulations, 489 Building; Dry- tech, 686 Building, and the Valve Shop in 49 Building. The Production Leader in Herbicide Formulations is Karen Schweitzer. The Production Leader in Drytech is Mary Beth Heydick. The Resource Leader for the Valve Shop is John Gordon. In both Herbicide Formulations and Drytech, the prin- cipal problem was that management was cutting the Union Steward out of matters in which they had always been in- volved, either by contract or past practice. Sometimes management had ignored the Stewards and delegated re- sponsibility to the Human Resources (HR) Team, accept- DOW CHEMICAL CO. 113 ing their proposals, or by negotiating with the HR Team instead of the Steward. In addition, our Stewards in Dry- tech have not only been shut out by the management, but management has even refused to tell them who is on the Drytech HR Team. In the Valve Shop, we had a concern with the way management was bypassing the established ISB operation in the shop. After the redesign team came up with a pro- posed redesign (specifically concerning the crew), and af- ter the Union and the Company approved the redesign, the proposal was rejected by management. We believe this was contrary to the ISB principles we had been taught and we had agreed to support. Please let me know if this information helps you to understand even better why the Union issued its July 17th position paper. If you have any more questions, I will do my best to answer them. However, the union can not serve as the Company’s investigator, investigating the ac- tions of the Company’s own supervisors and preparing re- ports for you. That is simply too burdensome. But if you have other investigative reports that are reasonable, we will try to help with them as we are always ready to work with you to resolve the ISB problems here in Midland.” The Union’s written response to Dow’s information request was sent almost 6 months after the information request was made. However, in its February 13, 2001 letter, Union Presi- dent Laney made reference to oral reports to Dow management about the Union’s problems with ISB. In any event on Febru- ary 26, 2001, Debenham sent the following letter to Union President Laney: This letter responds to your letter dated February 13, 2001, which I received on February 14. Your letter states it is in answer to my letter of August 21, 2000. In that let- ter I had requested specific details (who, when, where, what, how, etc.) regarding any and all instances the Union was referring to as “examples” that the Union relied upon in taking its position on ISB. I do not find your February 13 letter on this subject to be helpful for several reasons. First, the “answer” is unreasonably late, coming almost six (6) full months after the request for information. Secondly, your letter contains inaccuracies. In the second paragraph, for instance, you appear to claim that the specific information we requested already had been provided to unnamed “Dow management officials,” and that I had “protested on many occasions” that the Union had given too much information and I did not want names. I categorically deny these assertions, or any other assertion implying that our August 21 information request was somehow unnecessary or that we retracted our request for specific information. Thirdly, your letter is not responsive. You now have identified three areas within Michigan Operations and named several leaders. However, there is no specific in- formation regarding dates, subject matter, or who specifi- cally was involved and how. We cannot investigate or re- spond intelligently based on this sketchy information re- ceived months after the alleged events took place. Our requests for additional information remain as stated on August 21, 2000. Please specifically reply to these requests as soon as possible. Employers and Unions have a duty to bargain in good faith. Section 8(b)(3) of the Act makes it an unfair labor practice for a union to refuse to bargain collectively with an employer pro- vided it is the representative of its employees subject to the provisions of Section 9(a) of the Act. A failure by a union to furnish information requested by an employer which information is reasonably necessary to negoti- ate in an informed manner, to administer the collective- bargaining agreement, and to address potential grievances vio- lates the Union’s obligation to bargain in good faith. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); Detroit Newspaper Printing & Graphic Communications Local 13 (Oakland Press), 233 NLRB 994 (1977), enfd. 598 F.2d 267 (D.C. Cir. 1979). The particulars of the Union’s problems with the implemen- tation of ISB was information that the Union should turn over to Dow. As noted above in section III,B, I credit Laney’s testimony that he orally advised Debenham about the Union’s problems with ISB. The trial of this case took 14 days. The vast majority of which was on ISB issues. Dow now knows the depths of the Union’s ISB concerns at least as regards to the HR teams in building 489 and building 25 HR. In view of the Union’s written response to Dow regarding its information request, as well as the fact that Laney orally briefed Debenham about the Union’s concerns with ISB, I conclude that the Union did not violate Section 8(b)(3) of the Act. D. The Crew Leader Issue It is alleged that in May 2000, Dow, without giving prior no- tice and opportunity to bargain to the Union, unilaterally changed the duties of persons filling the crew leader position. More specifically Dow removed from the crew leaders certain semisupervisory responsibilities that they had been doing since a grievance was resolved between Dow and a predecessor un- ion on January 8, 1946. The semisupervisory duties that had been performed by the crew leaders, who were represented by the Union, were reassigned to salaried nonsupervisory employ- ees who were not in the bargaining unit. The 1946 agreement on the duties and responsibilities of the crew leaders was as follows: JOB DESCRIPTION OF CREW LEADER’S DUTIES AND RESPONSIBILITIES The job of Crew Leader consists of doing any neces- sary work required of the classification or classifications for which he is responsible. It includes directing and in- structing members of the crew as well as doing specifi- cally assigned duties such as keeping records, controlling processes and key operations, or starting and shutting down processes or projects in a manner outlined by super- vision. It also includes taking reasonable steps at all times to maintain good housekeeping practices and adequate safety precautions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 114 The Crew Leader is responsible for his own work and the coordinating and balancing of the work of the crew he is leading. It is his function to endeavor to meet supervi- sion’s requirements as pertains to quality and quantity of production, and upon failing to do so, he should contact supervision. The classification of Crew Leader shall be granted only providing there has been an assignment of the above mentioned duties and responsibilities. Although ISB was promoted as a concept to empower em- ployees in the case of the crew leader the impact was the re- verse of empowerment, i.e., the semisupervisory duties of the crew leader were after more than 50 years taken away from the crew leader and given to salaried nonunit employees created under ISB, i.e., initially the semisupervisory duties were per- formed by the maintenance focal point and then by the work coordinator. During negotiations for the 1998–2001 collective-bargaining agreement the parties entered into a work transfer agreement. The intent of the work transfer agreement was to transfer work to bargaining unit employees. In discussing the work transfer agreement both Union Presi- dent William Laney and Union Vice President Kent Holsing credibly testified that a key management official said that Dow had no intent of removing work from hourly employees. Both Laney and Holsing testified that Rick Gross, who headed the Dow negotiating team during the negotiations for the 1998–2001 collective-bargaining agreement, said that Dow had no intent to remove work from hourly employees and that work the hourly employees did today would remain in the bar- gaining unit. Rick Gross, who had been director of Michigan operations and chief negotiator for Dow and is now a corporate vice presi- dent for research and development said he told Laney and Holsing that Dow would not remove work from the bargained- for employees as a result of the pull back event in the work transfer agreement which is spelled out in paragraphs 3 and 9 of the work transfer agreement. Paragraph 3 provides “The Union will not claim any job rights to work which has been transferred into the bargaining unit during the first 12 months following transfer. If after 12 months the Company has not removed the transferred work, any jobs created by such transfers will become a bargaining unit job.” Paragraph 9 provides The Company and the Union agree that the roles listed in Ap- pendix A are covered by this Agreement. Both Parties agree that some of the responsibilities within roles identified in Ap- pendix A are currently being performed by bargaining unit employees. These responsibilities will be retained by bargain- ing unit employees on jobs that are created and removed un- der Paragraph 3 above. Additional roles may be added. I credit the testimony of Laney and Holsing that Gross said what they claimed he said. In any event, there was clearly no agreement that Dow could remove semisupervisory duties from the crew leader position and Dow unilaterally made this change and transferred the work to salaried nonunit employees. There was no notice and opportunity to bargain furnished to the Union. The collective-bargaining agreement in effect at the time the semisupervisory duties and responsibilities were reassigned from the crew leaders to salaried, nonmanagement, and non- unit employees provided in part as follows 1. Article XI, Section 6 (“. . . Non-bargained for em- ployees shall not regularly do assigned tasks which are normally done by bargained for employees”) (G.C. Exh. 17 at 92.) 2. Article VIII, Section 2 (“It is understood and agreed that any changes in the Rate Book, involving the insertion of new jobs, rearranged jobs, or the upgrading of jobs, are arrived at by a jointly administered job evaluation plan and procedure. Such revisions to Rate Book must be ratified by the two Bargaining Committees.”) (G.C. Exh. 17 at 79.) 3. Article IV, Section 28A (“The Company will only reclassify employees, or duties, or occupations performed, as specified in this Agreement. . . .”) (G.C. Exh. 17 at 62– 63.) There was no negotiations between Dow and the Union to modify the portion of the rate book that spoke to the crew leader position. Although the Union did not file a grievance in the past over Dow’s decision not to fill a crew leader position, but that is a totally different situation from taking duties away from a crew leader already in place. Uncontradicted testimony at the hear- ing from now retired Crew Leader Jerry Heintz was that prior to his becoming a crew leader in 1995, he worked 100 percent of the time with the tools but only 15–20 percent with the tools after becoming a crew leader but after the removal of semi- supervisory duties he worked 80 percent of the time with the tools. Accordingly, I find that Dow violated Section 8(a)(1) and (5) of the Act when it made the aforementioned change in the du- ties of the crew leader without giving prior notice and opportu- nity to the Union to bargain about the matter. Jerry Heintz, a leader, received a written reprimand in part because Dow claimed he scheduled some work, which he had been specifically told he could not do, but which he would have been allowed to do under the crew leader position duties and responsibilities before the unilateral changes made by Dow. Heintz, who like the other crew leaders, continued to receive the same pay he had received prior to the unilateral change filed a grievance. The grievance was denied at third step and the Union lacked the ability to force arbitration. The correct response to an alleged unlawful unilateral change in crew leader duties and responsibility is to pursue a grievance and/or file an unfair labor practice charge but to fol- low the supervisor’s direction until the matter is resolved. Heintz later retired from Dow after more than 36 years of ser- vice. The remedy for this unfair labor practice is for Dow to re- store the semisupervisory duties and responsibilities to the crew leaders and to make no change in crew leader duties and re- sponsibilities until after furnishing the Union with prior notice and an opportunity to bargain about the matter. DOW CHEMICAL CO. 115 CONCLUSIONS OF LAW 1. The Respondent, Dow Chemical Company, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Local 12075, United Steelworkers of America, AFL–CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (5) of the Act when it unilaterally, without giving prior notice and opportunity to bargain to the Union, removed work traditionally performed by crew leaders represented by the Union and reassigned that work to nonbargaining unit employees. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended1 ORDER The Respondent, Dow Chemical Company, Midland, Michi- gan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally, without giving prior notice and opportunity to bargain to the Union, changing the duties of crew leaders and assigning their semisupervisory duties to nonbargaining unit employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Restore the semisupervisory duties to the crew leaders and make no changes in the duties and responsibilities of crew leaders without giving prior notice and opportunity to bargain to the Union. (b) Within 14 days after service by the Region, post at its fa- cility in Midland, Michigan, copes of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided 1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- by the Regional Director for Region 7 after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT unilaterally, and without giving prior notice and opportunity to bargain to the Union, change the duties of crew leader by removing semisupervisory duties and transferring those duties to salaried nonbargaining unit employees. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL restore semisupervisory duties to the crew leader position. DOW CHEMICAL COMPANY ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”