United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers I

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356 NLRB No. 127 996 United Steel, Paper and Forestry, Rubber, Manufac- turing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO, CLC and Local Union 193-G and PPG Industries, Inc. Case 33–CB–4317 March 31, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES On November 18, 2009, Administrative Law Judge Arthur J. Amchan issued the attached decision. The General Counsel and Charging Party PPG Industries each filed exceptions and supporting briefs, the Re- spondent filed an answering brief, and the General Coun- sel and PPG each filed a reply brief. The General Coun- sel filed a motion to strike the Respondent’s answering brief, and the Respondent filed a statement in opposition to the General Counsel’s motion to strike. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions, and to adopt the recommended Order.2 We agree with the judge that the General Counsel failed to establish that the Respondent violated Section 8(b)(3) of the Act, as alleged in the complaint, by failing and refusing “to bargain collectively about the Employ- er’s [PPG’s] proposed changes to the Unit’s economic terms and conditions of employment.” The alleged vio- lation is based on the Respondent’s declaration, in reli- ance on article 34, section 2 of the parties’ expiring agreement, that it would only bargain “provisionally” over subjects that PPG failed to present by the first day of bargaining, including economic terms.3 While the 1 Member Becker is recused and did not participate in the considera- tion of this case. 2 The General Counsel’s Motion to Strike the Respondent’s answer- ing brief is granted solely as to those portions of the brief that cite to and rely on an arbitrator’s opinion and award that is not in evidence. Member Hayes finds it unnecessary to pass on the General Counsel’s motion. 3 Art. 34, sec. 2, provided: Should either party desire to discontinue or modify the existing agreement upon any termination date, at least thirty (30) days prior written notice of such intent must be given to the other party hereto. In the event of notice of cancellation or modification of the agree- ments, it shall be the duty of the parties to meet in conference not less than (10) days prior to the expiration date of said agreement for the purpose of negotiating new or modified agreements. Respondent made its declaration on June 2, 2009,4 the second day of negotiations, the Board examines the total- ity of a party’s conduct, both at and away from the bar- gaining table, to determine whether the party violated its statutory obligation to bargain in good faith.5 The totality of the Respondent’s conduct may be brief- ly summarized as follows. The Respondent met and ne- gotiated with PPG and made concessions during the 19 days of negotiations the parties held between June 1 and September 10. In addition, the Respondent timely filed a grievance asserting that PPG violated article 34 of the agreement by making proposals after the first day of ne- gotiations. Finally, the parties agreed to expedited arbi- tration of that grievance to secure a quick resolution of the Respondent’s interpretation of article 34, section 2. In those circumstances, we agree with the judge that the Respondent’s June 2 declaration does not evidence bad-faith bargaining. We rely, as the judge did, on the fact that the Respondent’s bargaining conduct—meeting at 19 negotiating sessions, advancing proposals, and making concessions—was entirely consistent with good- faith bargaining. We also rely on the absence of any facts demonstrating that the Respondent’s declaration actually affected negotiations. In this regard, Michael Mezo, the Respondent’s bargaining representative, testi- fied without contradiction that the Respondent’s “eco- nomic proposals . . . were no different than they would have been if they were not [made] provisionally because we know we have to deal with these problems . . . the viability of the plant depends on it and our jobs depend on it.” Finally, the Respondent’s filing a grievance and agreeing to expedited arbitration is persuasive evidence that the Respondent did not take the position it an- nounced on June 2 in order to forestall or indefinitely delay agreement or impasse, as the General Counsel con- tends.6 Rather, we find that the Respondent’s declaration meant only that it was preserving its right to arbitrate whether some of PPG’s proposed modifications to the existing collective-bargaining agreement were untimely; that is, the Respondent would bargain in good faith over the contested proposals subject to the outcome of its pending grievance. The Respondent’s position was thus It is further agreed that proposed changes or new agreements shall be presented not later than the first day of the conference by the party serving notice. 4 All dates hereafter refer to 2009. 5 See, e.g., Regency Service Carts, 345 NLRB 671, 671 (2005). 6 Mezo’s statement elsewhere that the Respondent’s bargaining posi- tion was a “tactic” and not a “strategy” does not indicate otherwise. Mezo testified, again without contradiction, that he had told the Local Committee “that it’s a tactic at best, it’s not a strategy. We’re going to have to deal with these issues.” SERVICE EMPLOYEES LOCAL 193-G (PPG INDUSTRIES) 997 akin to a position lawfully staked out by the union in WWOR-TV, 330 NLRB 1265, 1266 (2000).7 In that case, the union initially maintained that its existing contract had automatically renewed, that it was not obligated to negotiate a successor agreement, and that “it would not negotiate a successor agreement.” Id. at 1270. In re- sponse, the employer threatened to unilaterally imple- ment new terms and conditions of employment, claiming that the union had refused to bargain. The union then changed course and agreed to bargain “unconditionally and unequivocally” while expressly reserving its right to pursue a grievance alleging that the prior contract had automatically renewed. A Board majority found that the union’s latter position was consistent with good-faith bargaining, explaining that “a union can bargain in good faith with an employer while taking the legal position in other litigation that it was under no such bargaining obli- gation.” Id. at 1266 (citing International Paper Co., 319 NLRB 1253, 1264–1265, 1276 fn. 50 (1995), enf. denied on other grounds 115 F.3d 1045 (D.C. Cir. 1997)). The Board majority rejected the dissent’s argument that the union’s reservation of its contractual right to pursue arbi- tration was an unlawful condition that excused the em- ployer’s later refusals to bargain.8 Here, as in WWOR-TV, the Respondent’s declaration merely preserved a contractual litigation position without affecting its willingness and ability to engage in good- faith negotiations, as evidenced by the Respondent’s ac- tual conduct at the bargaining table.9 Thus, the facts support a finding that the Respondent was engaged in “lawful bargaining to achieve a contract that it consid- er[ed] desirable” and was not “unlawfully endeavoring to 7 In joining his colleagues in finding that the facts in this case do not establish that the Respondent was unlawfully endeavoring to frustrate the possibility of reaching agreement, Member Hayes finds it unneces- sary to specifically rely on WWOR-TV, supra. In that case there was no allegation that the union’s declaration that it would bargain uncondi- tionally, but without prejudice to its arbitration position, constituted an unfair labor practice. Moreover, the union in that case initially refused to bargain over any subject, which was not the case here. Most im- portantly, the parties here actually engaged in what the judge found to be extensive, substantive, and meaningful bargaining, which was not the case in WWOR-TV. 8 The Board found that the union’s initial position was inconsistent with good-faith bargaining and excused the employer’s refusals to bargain during the period the union maintained it. WWOR-TV, 330 NLRB at 1265. In contrast to the union’s initial position in that case, the Respondent here never took the position that it would not bargain for a successor agreement. 9 In dismissing the complaint, we find it unnecessary to decide whether the Respondent’s position was correct under art. 34, sec. 2 of the contract. In WWOR-TV, 330 NLRB at 1265 fn. 4, the Board ob- served that it was “now undisputed that the Union’s position was legal- ly incorrect,” but that did not affect the finding that the union did not fail to bargain in good faith. frustrate the possibility of arriving at any agreement.” Public Service Co. of Oklahoma (PSO), 334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003). For these reasons, as well as those set out by the judge,10 we shall dismiss the complaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Debra L. Stefanik, Esq., for the General Counsel. Stephen A. Yokich, Esq. (Cornfield and Feldman), of Chicago, Illinois, for the Respondent Union. Terrence H. Murphy, Esq. (Buchanan Ingersoll & Rooney), of Pittsburgh, Pennsylvania, for the Charging Party Employer. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Peoria, Illinois, on September 30, 2009. PPG In- dustries, the Employer, filed the charge on July 10, 2009. The General Counsel issued his complaint on August 31, 2009. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Respondent Union and the Charging Party Employer, I make the following FINDINGS OF FACT I. JURISDICTION PPG Industries, a corporation, manufactures glass products at a number of facilities, including the one at issue in this case in Mt. Zion, Illinois. At its Mt. Zion facility, PPG purchases and receives goods valued in excess of $50,000 directly from points outside of Illinois. PPG is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Respondent Union, the United Steelworkers of America and its Local Union 193-G are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The General Counsel alleges that the Respondent Union has since June 2, 2009, failed and refused to bargain collectively and in good faith with the Employer in violation of Section 8(b)(3) of the Act. On that date, the Union announced that it was not required to bargain with the Employer over economic matters because its existing collective-bargaining agreement required that all proposed changes be presented no later than the first day of negotiations, i.e., June 1, 2009. The Union did in fact bargain with the Employer, but said it was doing so “provisionally.” The Union has represented the production and maintenance employees at PPG’s Mt. Zion, Illinois facility for over 45 years. 10 We disavow, however, the judge’s statement that “[t]he remedy for PPG in this matter was not to file an unfair labor practice charge, but was instead to bargain to impasse and then, if it so desired, to uni- laterally implement its proposed changes.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998 PPG and the Union have been parties to a series of collective- bargaining agreements during this period. Currently there are about 195 employees in the bargaining unit. The most recent collective-bargaining agreement was in ef- fect from June 15, 2008, to June 15, 2009. Article 34, section 2 of that agreement, which been contained in every agreement the parties have had, provides: Section 2. Should either party desire to discontinue or modify the existing agreement upon any termination date, at least (30) days prior written notice of such intent must be given to the other party hereto. In the event of notice of cancellation or modification of the agreements, it shall be the duty of the par- ties to meet in conference not less than (10) ten days prior to the expiration of said agreement for the purpose of negotiating new or modified agreements. It is further agreed that proposed changes or new agreements shall be presented not later than the first day of the conference by the party serving notice. [GC Exh. 3, p. 22.] Judy Lewkowski, PPG’s director of human resources, noti- fied Local Union President Jeff Wallace on April 22, 2009, that PPG intended to open negotiations and suggested that negotia- tions for a new agreement begin on June 1, 2009, in Decatur, Illinois. The next day, Thomas Mordowanec, PPG manager of employee and labor relations, called Michael Mezo, a union international representative, and proposed a preliminary meet- ing, which was held at Chicago’s O’Hare Airport on May 14. Mordowanec and Mezo were the chief negotiators for PPG and the Union, respectively, in collective-bargaining negotiations. On May 14, Mordowanec and other PPG representatives dis- cussed PPG’s economic situation with Mezo. Mordowanec told Mezo that due to the comparative labor costs of its compet- itors, PPG had to reduce its cost per labor hour from $37 to $27 by the third year of the next contract. Further, Mordowanec told Mezo that to get to $27 PPG would treat laid-off employ- ees as new hires when they were recalled and that PPG would need wage concessions from current employees. Mezo asked for specifics regarding wage concessions. Mordowanec de- clined to give the Union specific figures. On May 28, Mordowanec sent Mezo an email calculating the cost per labor hour that would result if the parties agreed to a two-tier wage system without wage concessions from current employees. He reiterated PPG’s desire to achieve a $27 cost per labor hour by the end of a 3-year agreement and opined that it would be difficult to achieve that figure without significant concessions from current employees (GC Exh. 5). On June 1, the first day of collective-bargaining negotiations, Mordowanec reiterated PPG’s intention of getting down to $27 cost per labor hour. He made it clear that there would be a second tier wage scale for new employees and employees re- turning from layoff that would be lower than the wage scale for current employees who were not laid off. Whether Mordowanec specifically stated it or not, the Union was aware from the May 28 email that PPG would ask for wage conces- sions from current employees to reach $27 per hour. PPG did not present specific wage rates to the Union on June 1. Instead it presented and discussed with the Union proposals that all parties characterize as “non-economic.” On June 2, the second day of negotiations, Mezo announced, citing article 34 of the then-current collective-bargaining agreement, that the Union was not obligated to bargain over any proposal that had not been submitted to it on June 1. How- ever, Mezo stated that the Union was willing to bargain about employer proposals submitted after June 1 on a provisional basis. On either June 2 or 3, Mezo sent Mordowanec an email stat- ing that the Union was not obligated to bargain over any pro- posal made by the Company subsequent to June 1 (GC Exh. 8). He also stated that the Union did not have any proposals to submit at that time and that it was the Union’s position that “any provision of the CBA for which you have not submitted a proposed modification shall remain unchanged for the term of the CBA.” The email continued, “notwithstanding, the Union is willing to provisionally discuss any matter raised by the Company, provided that failure to reach agreement on such matter shall not alter the Union’s position as stated above.” The Union subsequently filed a grievance, contending that PPG violated section 34 of the existing contract by introducing proposals after the first day of negotiations. The grievance is currently pending before an arbitrator. PPG presented a two-tier wage schedule with specific figures to the Union on June 3. The parties met on 19 days in collec- tive-bargaining negotiations between June 1, and September 10, 2009. The Union made numerous proposals, but continued to maintain throughout negotiations that it was not obligated to bargain over proposals made by PPG after June 1, and that union proposals on such matters as employee wages were made “provisionally.” Analysis The General Counsel and Charging Party Employer contend first that PPG complied with article 34 of the existing collec- tive-bargaining agreement. They note that PPG notified the Union prior to June 1 that the Company intended to achieve a $10 per hour reduction in cost per labor hour in negotiations. Moreover, PPG notified the Union that it would seek to achieve this goal through a two-tier wage structure and that it would likely be seeking wage concessions from current employees. Secondly, the General Counsel and Charging Party Employ- er contend that the Union, in offering to bargain over some or all of the Employer’s proposals “provisionally,” violated Sec- tion 8(b)(3) of the Act. By doing so, the General Counsel and Charging Party allege that the Union failed to “meet at reason- able times and confer in good faith with respect to wages, hours, and other terms and conditions of employment,” as re- quired by Section 8(d) of the Act. All three parties rely on the Board’s decision in WWOR-TV, 330 NLRB 1265 (2000), in support of their positions. While WWOR is analogous, it is also distinguishable in that it in- volved an unfair labor practice filed against an employer. The Union in the WWOR case, the National Association of Broadcast Employees and Technicians (NABET) took the posi- tion for a month and a half that WWOR had failed to properly terminate its 1993–1996 contract and that therefore the contract SERVICE EMPLOYEES LOCAL 193-G (PPG INDUSTRIES) 999 had been automatically renewed. Thus, NABET contended that it was under no obligation to bargain for a new contract. On October 17, 1996, however, NABET offered to bargain “unequivocally and unconditionally” for a new contract. It did so without prejudice to its position that WWOR had failed to terminate the existing contract. NABET filed a grievance in support of this claim. At a negotiation session on November 6, 1996, the Union repeated its offer to bargain unconditionally, without abandoning its position that WWOR had failed to ter- minate the prior agreement. WWOR refused to bargain with the Union and within a few weeks implemented new terms and conditions of employment about which it had notified the Un- ion on November 1, 1996. The Board found that while the Union refused to bargain prior to October 17, it did not do so after October 17. As a consequence the Board found that WWOR violated Section 8(a)(5) and (1) by refusing to bargain with the Union after Oc- tober 17, and by unilaterally implementing new terms and con- ditions of employment. The most salient point in the WWOR case is contained in footnote 7 of the majority decision. The majority answered the dissent’s concern that its decision would require the Employer to withhold action for a prolonged period on its proposed changes. The Board majority stated: As the judge recognized, the Respondent would have been justified in unilaterally implementing its proposed changes had it first bargained with the Union to a bona fide impasse. International Paper Co., 319 NLRB 1253, 1264–1265, 1276 fn. 50 (1995), enf. denied on other grounds 115 F.3d 1045 (D.C. Cir. 1997), cited by the General Counsel and the Union, is also a case involving a refusal to bargain allegation against an Employer.1 International Paper argued that its Union was not entitled to certain documents it requested because the Union had illegally refused to bargain over International Paper’s pro- posal to permanently subcontract bargaining unit work. The 1 The Union also relies on Lou’s Produce, 308 NLRB 1194, 1195 (1992), in which the Board also rejected an employer’s defense to an 8(a)(5) allegation. The Employer contended that it was entitled to make unilateral changes due to bad-faith bargaining on the part of its union. In the context of the Employer’s unlawful polling of its em- ployees, the Board found that the Union did not engage in bad-faith bargaining by offering to bargain while at the same time contending that the parties’ prior agreement had been automatically renewed. Union had filed an unfair labor practice charge contending that the company violated the Act in making this proposal 2 months after unilaterally implementing its best and final offer. The Union also stated on several occasions that it would never agree to the permanent subcontracting of unit work. The Board found that the Union did not refuse to bargain over International Paper’s subcontracting proposal pending the disposition of its unfair labor practice charge. Noting that the Act does not require a party to agree to a proposal or make a concession, the Board found that since the Union never refused to meet and confer with International Paper, it did not violate the Act. As a consequence, the Board held that International Paper violated the Act in refusing to provide documents to the Union that pertained to its subcontracting proposal. I conclude that as in International Paper, that Respondent cannot be found to have refused to bargain over PPG’s pro- posals because the Union never refused to meet and confer with the Employer. Rather, like the union in International Paper, the Steelworkers regularly met with PPG, negotiated and made concessions. While the Union expressed its adamant opposi- tion to some of the Employer’s proposals, it was entitled to do so. The remedy for PPG in this matter was not to file an unfair labor practice charge, but was instead to bargain to impasse and then, if it so desired, to unilaterally implement its proposed changes. CONCLUSION OF LAW In the circumstances of this case, in which the Union met regularly with the Employer and in fact bargained with it, it did not violate Section 8(b)(3) of the Act, by maintaining that it was not obligated to bargain over some of the Employer’s pro- posals and by contending that it was only bargaining “provi- sionally.” On these findings of fact and conclusions of law and on the entire record, I issue the following recommended2 ORDER The complaint is dismissed. 2 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. 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