372 NLRB No. 78
PPG INDUSTRIES OHIO, INC.
372 NLRB No. 78
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
PPG Industries Ohio, Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW. Case
08–CA–279834
April 13, 2023
DECISION AND ORDER
BY MEMBERS KAPLAN, WILCOX, AND PROUTY
On April 8, 2022, Administrative Law Judge Robert A.
Ringler issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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 as modified and set
forth in full below.1
This case involves the Respondent’s unilateral sched-
ule modification for unit employees at its Cleveland,
Ohio plant from 8-hour shifts to 12-hour shifts in March
2021.2 The judge rejected the Respondent’s arguments
that it was not obligated to bargain with the Union over
the change because it was a continuation of its estab-
1 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language, and in accordance with our
decision in Paragon Systems, 371 NLRB No. 104 (2022). Member
Kaplan acknowledges and applies Paragon Systems as Board prece-
dent, although he expressed disagreement there with the Board’s ap-
proach and would have adhered to the position the Board adopted in
Danbury Ambulance, 369 NLRB No. 68 (2020).
In accordance with our decision in Thryv, Inc., 372 NLRB No. 22
(2022), we have also amended the make-whole remedy and modified
the judge’s recommended order to provide that the Respondent shall
also compensate the employees for any other direct or foreseeable
pecuniary harms incurred as a result of the unlawful unilateral change.
Compensation for these harms shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). We shall substitute a new
notice to conform to the Order as modified.
Unlike his colleagues, Member Kaplan would require the Respond-
ent to compensate affected employees for other pecuniary harms only
insofar as the losses were directly caused by the unlawful unilateral
change, or indirectly caused by the unlawful unilateral change where
the causal link between the loss and the unfair labor practice is suffi-
ciently clear, consistent with his partial dissent in Thryv, supra.
2
We note that the judge sometimes referred to these unilateral
schedule modification as “unilateral transfers” of employees; however,
the employees remained in their original positions and locations after
the schedule changes.
lished past practice of making similar changes or, alter-
natively, that the change was prompted by an economic
exigency. For the reasons set forth below, we agree that
the Respondent’s arguments are without merit and ac-
cordingly adopt the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
changing employees’ schedules.
Facts
The Respondent produces automotive paints and coat-
ings for major car manufacturers (referred to as original
equipment manufacturers, or “OEMs”). The Union rep-
resents around 400 hourly production and maintenance
employees working at the Respondent’s Cleveland, Ohio
facility. At the time the Union was certified in Decem-
ber 2019, almost all plant employees worked 8-hour
shifts on Monday through Friday.
The record shows that the Respondent made three
scheduling changes at the plant prior to the change at
issue here. As explained in more detail in the judge’s
decision, for at least 27 years prior to 2012, all employ-
ees worked 8-hour shifts Monday through Friday. In
2012, the Respondent assigned employees a mixture of
4-hour, 8-hour, 10-hour, and 12-hour shifts, with the
plant operating 7 days a week. In 2015, the Respondent
eliminated 4-hour, 10-hour, and hybrid weekend shifts.
And in 2019, the Respondent returned employees to 8-
hour shifts Monday through Friday, eliminating almost
all 10-hour and 12-hour shifts.
In November 2020, the Respondent and the Union
commenced negotiations for their first collective-
bargaining agreement.
At this time, Plant Manager
Gregory Kerr testified that the Respondent’s “biggest
concern” was that five new OEM plants were scheduled
to come online in March 2021. The Respondent ex-
pected that the new plants would greatly exacerbate the
increase in demand that existed due to an unexpected rise
in orders after COVID-19 related plant shutdowns. As
Kerr explained, “what was a [demand] problem was be-
coming a crisis,” and “with five new plants coming
online in a two-month period, the [current 8 hour-shift
Monday through Friday schedule] was not getting us
what we needed to get” in terms of product output. One
solution under consideration to address the increased
demand was to restructure the employees’ schedules to
maintain a 24-7 continuous operation at the plant. Con-
sequently, scheduling was a high priority bargaining is-
sue for the Respondent. And, upon hearing rumors that
the Respondent might move to a 12-hour shift schedule,
scheduling became a high priority issue for the Union as
well.
The parties exchanged several proposals during nego-
tiations but did not come to an agreement. In late Febru-
2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ary 2021, the Respondent sent an email to the Union as-
serting that “the Company is facing an exigent circum-
stance . . . from . . . increased customer demand” and that
it would therefore move forward with implementing a
12-hour shift schedule operational 7 days per week.3
Thereafter, the Respondent divided employees into day
and night groups and required them to perform 7 12-hour
shifts over a 2-week period. The new schedule was im-
plemented on March 5, 2021, and almost all employees
were assigned to 12-hour shifts, with the exception of e-
coat employees, whom the Respondent planned to phase
into 12-hour shifts over time. Thereafter, the Union filed
the instant unfair labor practice charge.
Analysis
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by modifying unit employees’
schedules from 8-hour to 12-hour shifts without bargain-
ing to a lawful overall impasse with the Union during
first-contract negotiations. On exception, the Respond-
ent raises the same arguments that it did before the judge.
First, the Respondent contends that it was not obligated
to bargain over the change because it was a continuation
of its past practice of making similar changes and thus
permissible under Raytheon Network Centric Systems,
365 NLRB No. 161 (2017). In support, the Respondent
relies on its three prior schedule changes in 2012, 2015,
and 2019. Second, the Respondent asserts that its change
was prompted by an economic exigency and thus was
lawful under RBE Electronics of S.D., Inc., 320 NLRB
80 (1995). The Respondent contends that it faced in-
creased demand based on existing customers returning
from their COVID-related shutdowns and from the open-
ing of five new OEM plants within a 2-month timespan.
As discussed below, we find no merit to the Respond-
ent’s exceptions.
A. Past Practice
We agree with the judge, for the reasons he states and
those additionally set forth herein, that the Respondent
has not demonstrated that its change to employees’ work
schedules was in accordance with an established past
practice. As found by the judge, the Respondent’s three
prior scheduling changes lacked the duration, frequency,
and consistency required to constitute a past practice.4 In
3 The newly announced 2021 schedule eliminated the 8-hour sched-
ule option for the first time, instead requiring unit employees to work
Monday through Sunday, alternating between 36- and 48-hour work-
weeks.
4 In finding that the scheduling change at issue was not made pursu-
ant to an established past practice, Member Kaplan does not reach the
issue of whether the prior changes occurred with sufficient regularity
and frequency. Rather, he agrees with his colleagues that the changes
addition to the reasons stated by the judge, we find that
the change at issue here was also materially different in
kind and degree from the previous scheduling changes.
See NBCUniversal Media, LLC, 371 NLRB No. 5, slip.
op. at 1 fn. 1 & 7–8 (2021) (employer failed to establish
past practice where unilateral change materially differed
from employer’s prior actions), enfd. 2022 U.S. App.
LEXIS 18393 (D.C. Cir. July 1, 2022). Specifically, we
note that, prior to the 2021 schedule change, the Re-
spondent had never required all unit employees to work
12-hour shifts. Rather, after introducing a 12-hour shift
option in 2012 and leading up to the change at issue here,
the percentage of unit employees working 12-hour shifts
fluctuated between 20 percent to 50 percent. Therefore,
the modification of the schedule to require nearly every
unit employee to work 12-hour shifts represented a “de-
parture from the norm.”
See Westinghouse Electric
Corp. (Mansfield Plant), 150 NLRB 1574, 1576 (1965).
Moreover, prior to 2021, even during times of in-
creased demand, a standard 8-hour shift (with or without
weekend/overtime work) was always included on the
schedule.
After the 2021 modifications, such 8-hour
shifts were eliminated. Further, employees were now
required to perform three to four 12-hour shifts on con-
secutive days—a “unique and controversial” modifica-
tion, as found by the judge. Indeed, testimony from em-
ployees describing the mental, physical, and financial
distress resulting from working such 12-hour shifts un-
derscores the severity of the schedule change.5 In these
circumstances, employees would not “reasonably consid-
er the action at issue to be consistent with what [the Re-
spondent] has done in the past.” See ABF Freight Sys-
tem, Inc., 369 NLRB No. 107, slip op. at 2 (2020).
The Respondent additionally contends that the change
was consistent with the “dynamic status quo” regarding
scheduling at the plant, evinced by its Hours of Work
policy. We find this contention, too, is without merit.
The Hours of Work policy provides for four different
schedules, including a 12-hour shift option, to allow
“[d]ifferent departments [to] establish different shifts as
needed to meet specific business requirements within
their departments” (emphasis added). The plain lan-
guage of the policy bears no resemblance to the plant-
wide scheduling change here. Indeed, two of the three
scheduling changes were implemented before the policy
was created, and there is no evidence indicating that the
at issue were not similar in kind and degree to the earlier scheduling
changes.
5 In finding that the scheduling change here was not similar in kind
and degree to the prior scheduling changes, Member Kaplan does not
rely on employees’ testimony concerning how the instant change will
affect them.
PPG INDUSTRIES OHIO, INC.
3
policy triggered any change in the plant’s scheduling
practices when it was created in 2017. There is also no
evidence that the 2019 change, made 2 years after the
policy was created, was made pursuant to or in reliance
on the policy. See ABF Freight System, Inc., supra, 369
NLRB No. 107, slip op. at 2 (“When determining wheth-
er there was an established past practice, the Board will
make a commonsense determination by comparing the
challenged action to the employer’s past actions.”) (in-
ternal citations omitted) (emphasis added).
Therefore, we affirm the judge’s finding that the rec-
ord fails to establish that the unilateral modification of
employees’ schedules from 8-hour shifts to 12-hour
shifts was a continuation of a permissible past practice
under Raytheon, supra.6
B. Economic Exigency
We also agree with the judge that the Respondent
failed to meet its burden of demonstrating an economic
exigency that excused its unilateral action. We do so,
however, for the following reasons rather than relying on
the judge’s rationale.7
Absent an overall impasse,8 an employer is obligated
to refrain from making unilateral changes to employees’
terms and conditions of employment during negotiations
for a collective-bargaining agreement. Bottom Line En-
terprises, 302 NLRB 373, 374 (1991), enfd. mem. sub
nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d
1087 (9th Cir. 1994). The Board has recognized a lim-
ited exception to this rule where an employer proves that
“economic exigencies compel prompt action.”
RBE
Electronics, supra, 320 NLRB at 81 (quoting Bottom
Line Enterprises, 302 NLRB at 374).
In evaluating
whether an employer’s economic situation constitutes an
economic exigency, the Board has held that “‘business
necessity is not the equivalent of compelling considera-
tions which excuse bargaining. Were that the case, a
respondent faced with a gloomy economic outlook could
6 Because the Respondent failed to meet its burden of establishing a
past practice, Members Wilcox and Prouty find it unnecessary to con-
sider whether Raytheon, above, was correctly decided.
In addition,
they agree that because the Respondent did not meet its burden of es-
tablishing a past practice relevant to the scheduling change, there is no
need to reach the issue of whether a past practice existing only prior to
a union’s certification is a defense to post-certification unilateral
changes.
7 In finding that the Respondent did not meet its burden of establish-
ing an economic exigency, the judge did not consider whether the Re-
spondent’s economic situation was caused by external events and/or
was outside of its control and instead considered whether the Respond-
ent was in a “dire financial situation,” which is not a requirement of the
type of economic exigency exception at issue here. See RBE Electron-
ics, supra, 320 NLRB at 81–82.
8 There is no contention that the parties were at an overall impasse
at the time the Respondent unilaterally implemented the new schedule.
take any unilateral action it wished or violate any of the
terms of a contract which it had signed simply because it
was being squeezed financially.’” Hankins Lumber Co.,
316 NLRB 837, 838 (1995) (quoting Farina Corp., 310
NLRB 318, 321 (1993)); see also RBE Electronics, 320
NLRB at 81 (“[E]conomic events such as loss of signifi-
cant accounts or contracts, operation at a competitive
disadvantage, or supply shortages do not justify unilat-
eral action.”) (citations omitted). Therefore, exigent cir-
cumstances create a very narrow exception to the general
statutory bargaining obligation.
Where “an employer is confronted with an economic
exigency . . . short of the type relieving the employer of
its obligation to bargain entirely,”9 the employer must
show “a need that the particular action proposed be im-
plemented promptly,” and that “the exigency was caused
by external events, was beyond the employer’s control,
or was not reasonably foreseeable.” RBE Electronics,
320 NLRB at 82. In these circumstances, an employer
will “satisfy its statutory obligation by providing [the
union with] adequate notice and an opportunity to bar-
gain over the changes it proposes to respond to the exi-
gency and by bargaining to an impasse over the particu-
lar matter.” Id.; Pleasantview Nursing Home, 335 NLRB
961, 962 (2001), enfd. in pertinent part 351 F.3d 747 (6th
Cir. 2003).
Here, the Respondent asserts that its unilateral sched-
ule change was necessitated by two factors contributing
to its inability to meet demand. First, orders were higher
than expected after the Respondent’s customers came
back from their COVID-related shutdowns in 2020.
Second, the Respondent was awarded contracts to supply
five new manufacturing plants scheduled to come online
in March 2021, all within a 2-month timespan.10
As to the first factor, the higher than expected orders,
we find that even if the increase in demand from existing
customers returning from their COVID-related shut-
downs was “caused by external events, was beyond the
employer’s control, or was not reasonably foreseeable,”
there has been no showing that the Respondent needed to
implement the scheduling change promptly, as required
by RBE Electronics, 320 NLRB at 82. As the judge
found, the Respondent did not present any evidence that
it lost or risked losing customers, experienced a delay in
fulfilling orders, or lost revenue as a result of the in-
9 The judge found, and we agree, that the Respondent’s economic
situation did not constitute an exigency that would excuse bargaining
altogether. Although the Respondent argues that the judge should not
have reached this issue because the Respondent did not raise it as a
defense, it does not dispute the judge’s finding that it could not satisfy
this exception. RBE Electronics, 320 NLRB at 81–82.
10 The judge did not address the testimony related to the five new
plants. However, the testimony related to this topic is uncontroverted.
4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
creased demand for its paint. And as explained, it is well
established that “business necessity is not the equivalent
of compelling considerations which excuse bargaining.”
Hankins Lumber Co., 316 NLRB at 838. Thus, the rec-
ord fails to show that the increased demand from existing
customers constituted an economic exigency under RBE
Electronics, supra.11
As to the second factor, the five new plants that were
expected to come online, the record establishes (and the
Respondent itself asserts) that the impending demand
increase from the new plants transformed the “problem”
of the post-COVID demand increase into a “crisis” re-
quiring prompt action by early March 2021. However,
the record is devoid of evidence that this “crisis” “was
caused by external events, was beyond the [Respond-
ent’s] control, or was not reasonably foreseeable” under
RBE Electronics. Plant Manager Kerr testified that the
Respondent was “awarded” the new business. Because
the Respondent made an internal decision to submit bids
for the contracts for the five new plants, the Respondent
itself “created the situation giving rise to the claimed
exigency.” Concord Honda, 363 NLRB 1223, 1223 fn.
3, 1232 (2016), vacated and remanded on other grounds
2018 U.S. App. LEXIS 20146 (9th Cir. July 19, 2018),
affd. and incorporated by reference 367 NLRB No. 104
(2019). See also Vincent Industrial Plastics, Inc., 328
NLRB 300, 301 (1999) (no economic exigency where
the situation “was strictly an internal matter and was not
beyond the [employer’s] control”), enfd. in relevant part
209 F.3d 727 (D.C. Cir. 2000). It is well established that
“an exigency resulting from an employer’s own action
does not constitute a substantial and legitimate business
justification.” RBE Electronics, 320 NLRB at 82 fn. 14
(citing P & C Food Markets, 282 NLRB 894 (1987)).
Therefore, the Respondent has not demonstrated that the
increase in demand from the five new plants constituted
an economic exigency under RBE Electronics, supra.12
In sum, we find that the Respondent has not demon-
strated that either an established past practice or econom-
ic exigency excused its unilateral actions. Accordingly,
we affirm the judge’s conclusion that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
11 Member Kaplan agrees with his colleagues that the Respondent
failed to present any evidence that the change at issue needed to be
made promptly as a result of the COVID-related increases in demand.
As a result, he finds it unnecessary to speculate about--let alone com-
ment on the sufficiency of--evidence that the Respondent did not intro-
duce.
12 Having found that the Respondent failed to establish an economic
exigency justifying its unilateral changes, we find it unnecessary to
pass on whether the parties were at an impasse over the scheduling
matter.
modifying the schedules of unit employees from 8-hour
to 12-hour shifts.
ORDER
The National Labor Relations Board orders that the
Respondent, PPG Industries Ohio, Inc., Cleveland, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing the terms and conditions of
employment of its unit employees.
(b) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with Internation-
al Union, United Automobile, Aerospace and Agricultur-
al Implement Workers of America, UAW (the Union) as
the exclusive collective-bargaining representative of em-
ployees in the following bargaining unit:
All full-time hourly production and maintenance em-
ployees, including operators, environmental, blenders,
maintenance, distribution, manufacturing, forklift/tow
motor drivers, fillers, mechanics, washers, grinders,
mixers, laborers, and warehouse employees, but ex-
cluding all lab employees, engineers, salaried employ-
ees, technical employees, contractors, temporary em-
ployees, office clerical employees, guards, manage-
ment, and supervisors as defined in the Act.
(b) Rescind the schedule change for its unit employees
that was unilaterally implemented on March 5, 2021,
specifically the change from 8-hour to 12-hour shifts.
(c) Make the affected employees whole for any loss of
earnings and other benefits, and for any other direct or
foreseeable pecuniary harms, suffered as a result of the
unlawful unilateral change, in the manner set forth in the
remedy section of the judge’s decision as amended in
this decision.
(d)
Compensate affected employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 8,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating backpay awards to the appropriate calendar year(s)
for each employee.
(e) File with the Regional Director for Region 8, with-
in 21 days of the date the amount of backpay is fixed by
agreement or Board order or such additional time as the
Regional Director may allow for good cause shown, a
PPG INDUSTRIES OHIO, INC.
5
copy of each backpay recipient’s corresponding W-2
form(s) reflecting the backpay award.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Post at its Cleveland, Ohio facility the attached no-
tice marked “Appendix.”13
Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to the physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since March 5, 2021.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 8 a sworn certifi-
cation of a responsible official on a form provided by the
13 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have
returned to work, and the notices may not be posted until a substantial
complement of employees have returned to work. If, while closed or
not staffed by a substantial complement of employees due to the pan-
demic, the Respondent is communicating with its employees by elec-
tronic means, the notice must also be posted by such electronic means
within 14 days after service by the Region. If the notice to be physical-
ly posted was posted electronically more than 60 days before physical
posting of the notice, the notice shall state at the bottom that “This
notice is the same notice previously [sent or posted] electronically on
[date].” 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
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
Region attesting to the steps the Respondent has taken to
comply.
Dated, Washington, D.C. April 13, 2023
______________________________________
Marvin E. Kaplan, Member
________________________________________
Gwynne A. Wilcox, Member
________________________________________
David M. Prouty, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TOEMPLOYEES
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 behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT change your terms and conditions of
employment without first notifying the Union and giving
it an opportunity to bargain.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with In-
ternational Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW (the
Union) as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All full-time hourly production and maintenance em-
ployees, including operators, environmental, blenders,
maintenance, distribution, manufacturing, forklift/tow
6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
motor drivers, fillers, mechanics, washers, grinders,
mixers, laborers, and warehouse employees, but ex-
cluding all lab employees, engineers, salaried employ-
ees, technical employees, contractors, temporary em-
ployees, office clerical employees, guards, manage-
ment, and supervisors as defined in the Act.
WE WILL rescind the schedule change for our unit em-
ployees that was unilaterally implemented on March 5,
2021, specifically the change from 8-hour to 12-hour
shifts.
WE WILL make the affected employees whole for any
loss of earnings and other benefits resulting from the
unlawful unilateral change, plus interest, and WE WILL
also make such employees whole for any other direct or
foreseeable pecuniary harms suffered as a result of the
unlawful unilateral change, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 8, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award(s) to
the appropriate calendar year(s) for each employee.
WE WILL file the Regional Director for Region 8, with-
in 21 days of the date the amount of backpay is fixed by
agreement or Board order or such additional time as the
Regional Director may allow for good cause shown, a
copy of each backpay recipient’s corresponding W-2
form(s) reflecting the backpay award.
PPGINDUSTRIES OHIO, INC.
The
Board’s
decision
can
be
found
at
https://www.nlrb.gov/case/ 08-CA-279834 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940
Stephen Pincus, Esq., for the General Counsel.
Stuart Shoup, Esq., for the Charging Party.
David R. Broderdorf and Richard J. Marks, Esqs. (Morgan,
Lewis & Bockius, LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This hear-
ing was held in mid-December 2021. The complaint alleged
that PPG Industries Ohio, Inc. (PPG) violated §8(a)(5) of the
National Labor Relations Act (the Act) by unilaterally changing
its employees’ work schedules. As will be discussed, the com-
plaint has merit. On the record, I make the following
FINDINGS OF FACT1
I. JURISDICTION
PPG, which produces automotive paints, annually sells and
ships goods exceeding $50,000 from its Cleveland, Ohio plant
(the plant) directly to points outside of Ohio, where it engages
in commerce under §2(2), (6) and (7) of the Act. The Interna-
tional Union, United Automobile,Aerospace and Agricultural
Implement Workers of America, UAW (the Union) is a §2(5)
labor organization.
II. UNFAIR LABORE PRACTICE
A. Record Evidence
1. Background
PPG produces 40 percent of the paints and coatings used by
U.S. and Canadian automakers.2 On December 26, 2019, the
Union was certified as the exclusive representative of PPG’s
employees at the plant in this appropriate collective-bargaining
unit (the Unit):
All full-time hourly production and maintenance employees,
including operators, environmental, blenders, maintenance,
distribution, manufacturing, forklift/tow motor drivers, fillers,
mechanics, washers, grinders, mixers, laborers, and ware-
house employees, but excluding all lab employees, engineers,
salaried employees, technical employees, contractors, tempo-
rary employees, office clerical employees, guards, manage-
ment, and supervisors as defined in the Act.
(Jt. Exh. 1).
Given that this case involves a unilateral scheduling
change, a brief review of the varied schedules that the
Unit worked before unionizing is useful. This chart of-
fers their various shifts:
1 Most of the relevant facts in this case are undisputed. Unless oth-
erwise stated, factual findings arise from joint exhibits, stipulations and
undisputed evidence.
2 Its clients include Nissan Motor Co., Mazda Motor Corp., Toyota
Motor Corp., General Motors and Stellantis NV.
PPG INDUSTRIES OHIO, INC.
7
SHIFT
START
END
1st Shift, 8-hours (Mon. – Fri.)
5:00 a.m.
1:30 p.m.
2nd Shift, 8-hours (Mon. – Fri.)
1:30 p.m.
10:00 p.m.
3rd Shift, 8-hours (Mon. – Fri.)
10:00 p.m.
6:30 a.m.
AM Weekday Shift, 10-hours (Mon. – Thur.)
6:30 a.m.
5:00 p.m.
PM Weekday Shift, 10 hours (Mon – Thur.).
6:30 p.m.
5:00 a.m.
Weekend AM
5:00 a.m.
5:30 p.m.
Weekend PM
5:00 p.m.
5:30 a.m.
7-Day AM
5:00 a.m.
5:30 p.m.
7-Day PM
5:00 p.m.
5:30 a.m.
(R. Exh. 6). This chart lists the periodic changes made to Unit schedules before unionization:
PERIOD
WORK SCHEDULES
REASONING FOR CHANGE
RECORD EVIDENCE
Pre-2012
Unit employees worked 8-hour shifts
(Monday to Friday) on the 1st, 2nd and
3rd shifts. They were not assigned 10-
hour or 12-hour shifts at this time.
N/A
Tr. 43–194 (employee Edward
Callahan); tr. 203–216 (employ-
ee David Thorn); tr. 217–224
(employee Scott McArthur; tr.
259 (Production Manager Robert
Kiser).
2012 to
2019
PPG assigned plant employees a mix-
ture
of
8-hour shifts (Monday to Friday) on the
1st, 2nd and 3rd shifts; 10-hour shifts
(Monday to Thursday); limited 4-hour
shifts; and 12-hour shifts (weekend and
7-day).3
PPG changed schedules in this
way as a result of an increase in
orders, which prompted it to
transition from a Monday to
Friday to a Monday to Sunday
production model.
Id.;4 GC Exh. 2; R. Exhs. 1-2.
Post-2019
to Mar.
2021 Uni-
lateral
Change
PPG returned most of its Unit employees
to
8-hour shifts (Monday to Friday) on the
1st, 2nd and 3rd shifts It also eliminated
almost all of the 10-hour and 12-hour
shifts.
PPG changed schedules in this
way as a result of a decrease in
orders, which prompted it to
mainly resume its Monday to
Friday production model.
Id.;5 R Exhs. 3-5.
3 Kiser stated that, in 2015, PPG eliminated the 4-hour, 10-hour and hybrid weekend shifts. See also (R. Exh. 3).
4 Kiser estimated that, during this period, 3 percent of the extant shifts were 8-hour and 50 percent were 12-hour.
5 Kiser said that, in 2019, due to decreased customer orders, another shift change was enacted, which returned almost all Unit employees to Mon-
day to Friday, 8-hour shifts. See (R. Exhs. 4–5).
8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. 2020—An Increase in Orders at the Plant
In 2020,6 PPG experienced a sharp increase in paint orders.
By way of example, from 2020 to 2021, production volume
rose from 13.04-million to 14.44-million gallons, while paint
batches similarly rose from 9,992 to 10,912. (R. Exh. 13). In
addition, between June and November, paint sales were
6 All dates that follow are in 2020, unless otherwise stated.
41percent higher than expected.7 (R. Exh. 15). This rise in sales
affected PPG’s benchmarks in the following way:
7 PPG calculated this number as the difference between monthly
forecasted sales (i.e., based upon customer communicated demand) and
actual monthly sales. (R. Exh. 15 at p. 2).
PRODUCTION BENCHMARK
JULY 2020
NOVEMBER 2020
TARGET
Days Inventory Total
95
56
70
Service to Customers
85%
89%
96%
(Id. at p. 2). PPG did not, however, present evidence showing
that it: lost, or risked losing, customers as a result of the in-
creased demand for its paint; experienced a delay in fulfilling
orders;8 or lost revenue as a result of the production crunch.9 It
decided, nevertheless, that pre-emptive action had to be taken
in order to ease the demands of its newly increased workload.
PPG determined that the best way to increase production,
proactively control future delays and ease employee burden
was to phase out its 5-day (Monday to Friday) production mod-
el and return to a 7-day (Monday to Sunday) model. (R. Exh.
15 at pp. 4–5). It concluded that this transition offered several
benefits: reduced productivity losses from weekly shutdowns
and start-ups; decreased staff burnout; lessened plant conges-
tion; enhanced handling of customer requests and process im-
provements; and lowered production costs. (Id. at p. 4). PPG
decided that it could transition to a 7-day operation in 2 ways,
i.e., model 1 or 2. (R. Exh. 15 at pp. 5–7). Model 1 used a mix
of schedules, including 8-hour (Monday to Friday) and 12-hour
(weekend) shifts;10 it resembled the staffing plan used from
2012 to 2019. Model 2 used rotating 7-day, 12-hour shifts and
eliminated all 8-hour (Monday to Friday) shifts; it was unique
and controversial, inasmuch as the plant never previously oper-
ated without 8-hour shifts. (Id. at pp 5–7). Model 2 (i.e., the
production road never previously traveled) was eventually
adopted, which prompted the instant ULP charge. (Id. at p. 7).
3. First Contract Bargaining Mixed With Piecemeal
Scheduling Talks
On November 4, the parties began first contract bargaining;
their negotiations on an overall agreement are unresolved and
continuing. (JT Exhs. 2–3; GC Exh. 20). PPG, however, abrupt-
ly decided that first contract negotiations might be protracted
and it could not wait to resolve its production shortfall during
such bargaining. It, therefore, decided to bifurcate first contract
bargaining for an overall agreement from shift schedule bar-
gaining designed to address its increased production needs. The
Union entertained this bifurcated approach, which resulted in
8 On the contrary, its service to customers benchmark actually in-
creased from 85 percent to 89 percent during this period.
9 It would appear that increased orders logically generated greater
revenues.
10 This model was “preferred,” although it was surprisingly not ulti-
mately chosen by PPG. (R. Exh. 15 at p. 5).
piecemeal bargaining over shift scheduling. Between Novem-
ber 4 and February 12, 2021, the parties met to negotiate a reso-
lution on shift scheduling for a total of 9 days. (Jt. Exhs. 4–23).
These negotiations failed to produce an agreement and PPG,
thereafter, declared impasse.
On February 23, 2021, PPG’s counsel sent this email to the
Union, which formally announced the parties’ alleged impasse
on the shift scheduling issue:
[T]he parties are at impasse on the 12-hour, 7-day schedule
…. [T]he Company is facing an exigent circumstance … from
… increased customer demand - which the Company has re-
peatedly been unable to meet under the current 5-day sched-
ule and mandatory/voluntary weekend overtime …. [We]
must make the change to … meet demand …. [and] will …
implement … the 12-hour, 7-day schedule ….
(Jt. Exh. 24).
On March 5, 2021, PPG advised Unit employees about its
decision to unilaterally change their schedules and told them
that they would be divided into day and night groups, who per-
form 7, 12-hour shifts over a 2-week period. (JT Exhs. 25-26).
This change represented the complete elimination of 8-hour
shifts, which was a first time event at the plant.11 At this time,
the parties had not reached a good faith impasse in overall first
contract bargaining.
B. Analysis
PPG violated §8(a)(5),12 when it transferred the entire Unit
to 12-hour shifts. PPG made this change without bargaining
with the Union to an overall good faith impasse in their first
contract negotiations, and effectively reassigned the entire Unit
from 8-hour (Monday to Friday) schedules to 12-hour (Monday
to Sunday) schedules.
1. Legal Precedent
a. General Bargaining and Unilateral Change Rules
Under §§8(a)(5) and 8(d), the duty to bargain collectively
requires an employer “to meet . . . and confer in good faith with
11 As noted, although schedules sporadically changed over the years,
PPG always assigned some 8-hour shifts. These assignments ranged
from a height of almost everyone to a floor of 30 percent of the Unit.
12 This allegation is pled under complaint ¶¶7 and 8.
PPG INDUSTRIES OHIO, INC.
9
respect to wages, hours, and other terms and conditions of em-
ployment.” NLRB v. Katz, 369 U.S. 736, 742–743 (1962). In
order to trigger a bargaining obligation, a change must be mate-
rial, substantial and significant. Crittenton Hospital, 342 NLRB
686 (2004). The GC can establish a prima facie unilateral
change violation, if it shows that an employer made a material
and substantial change in a term of employment without nego-
tiating. The burden then shifts to the employer to show that the
change was permissible (e.g., consistent with established past
practice). See, e.g., Fresno Bee, 339 NLRB 1214 (2003). An
employer’s regular and longstanding practices that are neither
random nor intermittent become terms and conditions of em-
ployment, even if those practices are not required by a collec-
tive-bargaining agreement. Id; see also Palm Beach Metro
Transportation, LLC, 357 NLRB 180, 183 (2011) (noting that
the party asserting the existence of a past practice bears the
burden of proof on the issue, and that the evidence must show
that the practice occurred with such regularity and frequency
that employees could reasonably expect the practice to continue
or reoccur on a regular and consistent basis), enfd. 459 Fed.
Appx. 874 (11th Cir. 2012).
b. Special Rule—Unilateral Changes During Contract
Bargaining
Where parties are negotiating a collective-bargaining agree-
ment, an employer’s obligation to refrain from making unilat-
eral changes extends beyond the mere duty to provide notice
and an opportunity to bargain. RBE Electronics of S.D., 320
NLRB 80, 81 (1995); Mike O’Connor Chevrolet, 209 NLRB
701 (1974). During collective bargaining, an employer must
also refrain from implementing unilateral changes, absent over-
all impasse on bargaining for an agreement as a whole. Id.
There are, however, some limited exceptions to the general
prohibition against piecemeal unilateral changes during con-
tract bargaining; they are described below.
c. Narrow Exception—Piecemeal Unilateral Changes During
Contract Bargaining
The Board recognizes limited exceptions to its general bar
against piecemeal unilateral changes during contract bargain-
ing. In Pleasantview Nursing Home, 335 NLRB 961 (2001),
enfd. 351 F.3d 747 (6th Cir. 2003), the Board summarized its
precedent:
[T]he Board recognized only two exceptions to that general
rule: [1] when a union engages in bargaining delay tactics and
[2] when economic exigencies compel prompt action …. The
Board has limited the economic considerations which would
trigger the … exception to “extraordinary events which are an
unforeseen occurrence, having a major economic effect [re-
quiring] the company to take immediate action.” …. Absent a
dire financial emergency, economic events such as... opera-
tion at a competitive disadvantage...do not justify unilateral
action ….
However, … the Board also found that there may be other
economic exigencies that, although not sufficiently compel-
ling to excuse bargaining altogether, should be encompassed
within the exigency exception. In those cases, the employer
will “satisfy its statutory obligation by providing [the union]
with adequate notice and an opportunity to bargain over the
changes it proposes to respond to the exigency and by bar-
gaining to impasse over the particular matter. In such time
sensitive circumstances, however, bargaining, to be in good
faith, need not be protracted.” ….
In defining the less compelling type of economic exigency,
the Board … made clear that the exception will be limited on-
ly to those exigencies in which time is of the essence and
which demand prompt action. The Board will require an em-
ployer to show a need that the particular action proposed be
implemented promptly. Consistent with the requirement that
an employer prove that its proposed changes were “com-
pelled,” the employer must also show that exigency was
caused by external events, was beyond its control, or was not
reasonably foreseeable.
335 NLRB at 962 (citations omitted). The Board has “charac-
terized the economic exigency exception as requiring a heavy
burden.” Sartorius Inc., 323 NLRB 1275, 1284 (1997).13
2. Synthesis
a. Prima Facie Case
The GC demonstrated that PPG made a material and substan-
tial change in the Unit’s terms and conditions of employment,
when it changed their work schedules from 8-hour (Monday to
Friday) shifts to 12-hour (Monday to Sunday) shifts.14 See, e.g.,
Mi Pueblo Foods, 260 NLRB 1096, 1097 (2014); 88 Transit
Lines, 300 NLRB 177, 184 (1990). This change in the Unit’s
schedule occurred in the middle of first-contract negotiations,
in the absence of an overall impasse or the Union’s consent.
b. Past Practice
PPG failed to show that its unilateral scheduling change was
based upon a permissible past practice. As said, an employer’s
practices, which are regular and long-standing, become terms
and conditions of employment. Sunoco, Inc., 340 NLRB 239,
240, 244 (2007); DMI Distribution of Delaware, 334 NLRB
409, 411 (2001). A past practice must, however, occur with
such regularity and frequency that employees would reasonably
expect it to reoccur on a regular and consistent ba-
sis. Eugene Iovine, Inc., 328 NLRB 294, 297 (1999). In
Ray-
theon Network Centric Systems, 365 NLRB No. 161, slip op. at
22–24 (2017), the Board explained that, in order to rise to the
level of a past practice, an employment policy must have: (1)
duration (i.e., the Raytheon practice ran from 2001 to 2012);
and (2) consistency (i.e., the Raytheon practice occurred annu-
ally every fall and was dictated by a constant formula). See also
Consolidated Communication Holding, Inc., 366 NLRB No.
13 See also Intermountain Rural Electric Assn., 305 NLRB 783
(1991), enfd. 984 F.2d 1562 (10th Cir. (1993).
14 As noted, on March 5, 2021, PPG changed the Unit’s work sched-
ules from a Monday to Friday, 8-hour shift, 40-hours per week sched-
ules with overtime eligibility for weekend hours to a Monday to Sun-
day, 12-hour shift schedule, where employees alternated working 36-
and 48-hour workweeks.
10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
152 (2018); Hospital San Cristobal, 358 NLRB 769, 772
(2012), reaffd. 363 NLRB 1610 (2016).
In this case, the record reveals that, excluding the unilateral
scheduling change at issue herein, over the course of the last
several decades at the plant, PPG has only changed the Unit’s
work schedule 3 times (i.e., in 2012, 2015 and 2019).15 For
several reasons, these discrete events are too sporadic to consti-
tute a past practice. First, they lack sufficient duration, inas-
much as past schedule changes only occurred 3 times over mul-
tiple decades, i.e., with no scheduling changes at all during
most years. See, e.g., Wendt Corp., 369 NLRB No. 135, slip op.
at 7 (2020) (“While a past-practice defense under Raytheon is
not susceptible to mathematical specificity, the evidence ad-
duced by the Respondent of two temporary layoffs in 17 years
comes nowhere near meeting its burden of proving an estab-
lished past practice that would have justified unilateral ac-
tion.”). Cf. Mike-Sell's Potato Chip Co., 368 NLRB No. 145,
slip op. at 3 (2019) (past practice established where employer
sold 51 company driver routes between 1998 and 2016). Sec-
ond, they lack consistency, inasmuch as past schedule changes
randomly occurred at different times in sporadic years and were
not controlled by a predictable formula. In sum, PPG’s history
of Unit schedule changes was insufficient to leave Unit em-
ployees with the reasonable expectation of when, and if, it
would change their schedules. Eugene Iovine, Inc., supra (re-
duced hours was not based on a past practice because prior
changes in hours were discretionary and based upon unique
business circumstances); Garment Workers Local 512 v. NLRB
(Felbro, Inc.), 795 F.2d 705, 711 (9th Cir. 1986) (employer
must bargain over economic layoff, which is “inherently discre-
tionary, involving subjective judgments of timing, future busi-
ness, productivity and reallocation of work”); NLRB v. Allis-
Chalmers
Corp.,
601
F.2d
870,
875–876
(5th
Cir.
1979) (employer must bargain over wage increase which did
not result from “purely automatic” policy and was not pursuant
to “definite guidelines”).
c. Exceptions to Bar against Piecemeal Unilateral Changes
during Contract Bargaining
Although the Board recognizes limited exceptions to its gen-
eral prohibition against piecemeal unilateral changes during
contract bargaining, PPG failed to show that these exceptions
are applicable. As an initial matter, there is no contention that
the Union improperly delayed bargaining. PPG’s sole conten-
tion is that economic exigencies caused by a backlog in orders
compelled prompt action, which excused its bargaining obliga-
tion altogether as an “economic exigency” or, in the alternative,
allowed it to “carve-out” scheduling bargaining from overall
contract bargaining as an “other economic exigency” and nego-
tiate with the Union to a good faith impasse. As said, the party
asserting these economic exigency exceptions bears a “heavy
burden.” Wendt Corp., supra, slip op. at 7.
15 In 2012, PPG changed the Unit’s schedules from 8-hour shifts to a
mix of 4-hour 8-hour, 10-hour, and 12-hour shifts as a result of a busi-
ness upturn. In 2015, PPG eliminated the 4-hour, 10-hour and hybrid
weekend crew shifts as a result of downturn. In 2019, PPG returned to
8-hour shifts from Monday to Friday on the 1st, 2nd and 3rd shifts,
while eliminating most remaining 10-hour and 12-hour shifts.
i. Exigent Circumstances—Bargaining Excused in its Entirety
Although PPG asserts that its 2020 production shortfall was
a compelling exigency, which completely excused scheduling
bargaining, this assertion is invalid. The Board has held that
economic exigencies do not include the loss of accounts or
contracts, operating at a competitive disadvantage or supply
shortages, as was the case herein. RBE Enterprises of S.D., Inc.,
supra, 320 NLRB at 81–82. An economic exigency is also lim-
ited to an unforeseen event, which has a major economic effect
that requires “immediate action.” Id. The Board has stated that
there is a significant distinction between an economic exigency,
which excuses bargaining, and a simple business necessity,
which does not:
[B]usiness necessity is not the equivalent of compelling con-
siderations which excuse bargaining. Were that the case, a re-
spondent faced with a gloomy economic outlook could take
any unilateral action it wished or violate any of the terms of a
contract which it had signed simply because it was being
squeezed financially.
Hankins, 316 NLRB 837, 838 (1995).
In the instant case, PPG failed to adduce an economic exi-
gency. It sought to change schedules in order to, “minimize
productivity losses,” better “handle customer requests” and
become “more cost effective.” (R. Exh. 15 at p. 4). It also
wished to improve its inventory and service target benchmarks.
It logically concluded that these valid business goals would be
advanced by altering schedules and transitioning to a 7-day
production model. For several reasons, these circumstances and
desires fail to meet the Board’s lofty “exigent circumstances”
standard, which would wholly excuse schedule bargaining.
First, PPG unilaterally implemented its scheduling proposal in
March 2021, even though it knew about its sales increase since
at least June 2020 (i.e., for 9 months). (R. Exh. 15 at p. 2).
Over 9 months of lead time hardly suggests an unforeseen
event that meets the “exigent circumstances” test. Second,
PPG’s rise in sales did not require “immediate action.” On the
contrary, PPG’s records demonstrate that, even if it retained the
status quo, it still had inventory ranging from 95 to 56 days
between July and November 2020. (R. Exh. 15 at p.2). Roughly
2 to 3 months of inventory falls short of a dire economic calam-
ity, which requires “immediate attention.” Third, PPG had other
potential venues to address increased sales. Although it had 7
other plants that could have temporarily pitched in, it offered no
explanation why it did not temporarily ramp up production at
these sites, until such time as it reached an overall contract
resolution with the Union. (GC Exh. 21 at p. 3).16 In sum, PPG
failed to show that its temporary increase in customer orders
16 PPG runs the following 8 manufacturing facilities: PPG Cleve-
land; PPG Delaware; PPG Adrian; PPG Euclid; PPG Circleville; PPG
Oak-Creek; PPG San Juan Del Rio; and PPG Springdale. Given that
PPG held the burden of proof on the exigency issue, it seems plausible
that the temporary backlog in orders could have also been curtailed
without resort to a unilateral scheduling change at the PPG Cleveland
plant, if PPG temporarily increased production at some of its other
facilities. PPG wholly failed to offer any proof on this issue, which
deeply undercuts its argument that the scheduling change was the only
way that it could address its need to increase production.
PPG INDUSTRIES OHIO, INC.
11
was an economic exigency that excused bargaining; at best, it
was attempting to avoid operating at a competitive disad-
vantage, which is not an economic exigency. RBE Enterprises
of S.D., Inc., supra, 320 NLRB at 81–82 (economic exigencies
do not include the loss of accounts or contracts, operating at a
competitive disadvantage or supply shortages). Cf. Tylertown
Wood Prods., 251 NLRB 515, 521 (1980) (an equipment fail-
ure making an entire plant inoperable is an exigency excusing
unilateral layoffs).
ii. Exigent Circumstances—Unilateral Action After Bargaining
to Good Faith Impasse
PPG also contends that, under RBE Electronics, its order
backlog amounted to “other economic exigencies,” which while
insufficient to wholly excuse bargaining, permitted unilateral
action after it reached a good faith impasse with the Union on
the scheduling issue. RBE Electronics, supra, 320 NLRB at 81-
82. As noted, the “other economic exigency” exception requires
that “an employer … show a need that the particular action
proposed be implemented promptly,” and that the “exigency
was caused by external events, was beyond its control, or was
not reasonably foreseeable.” Pleasantview Nursing Home, su-
pra, 335 NLRB at 962. PPG’s position on this issue is also
invalid.
Time of the Essence
PPG failed to show that it faced “other economic exigencies”
because time was simply not sufficiently of the essence. Its
business records stated that it had 2 to 3 months of inventory; a
surplus of this size is simply not a time crunch. See, e.g., Wendt
Corp., supra, slip op. at 8 (“long gap between the time when the
Respondent first raised the issue of the layoffs and the time it
implemented them refutes that the Respondent faced an eco-
nomic exigency in which time was of the essence.”); Naperville
Ready Mix Inc., 329 NLRB 174, 182–183 (1999), enfd 242
F.3d 744 (7th Cir. 2001) (sale of trucks not justified under RBE
Electronics’ economic exigency exception, although employer
could save some money if scheme was implemented before
July 1); Sartorius Inc., supra, 323 NLRB at 1284–1286 (unilat-
eral implantation of incentive bonus program not justified by
alleged economic exigency of increases in scrap rate on ma-
chine and unexpected high orders).
Foreseeability
PPG also failed to show that it faced “other economic exi-
gencies” because its increase in orders was somewhat unfore-
seeable. The record establishes that, over the last decade (i.e.,
from 2012 to the present), PPG has experienced 3 significant
contractions and expansions in orders, which prompted major
schedule changes (i.e., 2012, 2015, and 2019). One would be
hard-pressed to label an event occurring three times in the last
10 years as unforeseeable.17 See, e.g., Harmon Auto Glass, 352
NLRB 152, 154 (2008) (substantial deadline in sales revenues,
resulting in substantial net loss, plus placement into receiver-
17 This is not to suggest that the COVID-19 pandemic was a foresee-
able event; it was obviously not. Economic contractions and expansions
in the auto industry are, however, foreseeable to an auto paint supplier;
PPG’s recent history demonstrates this point.
ship, found not to be unforeseen economic emergencies excus-
ing unilateral action); Toma Metals, Inc., 342 NLRB 787, 801
(2004) (employer’s 50 percent decline in revenue over 6
months not unforeseen emergency, justifying unilateral lay off);
Hartford Head Start Agency, 354 NLRB 164, 185–188 (2009)
(funding decrease not “unforeseen” and did not justify unilat-
eral wages and schedule cuts).
Dire Financial Situation
PPG similarly failed to show that it faced “other economic
exigencies” because it was unable to demonstrate a sufficiently
dire financial situation. PPG sought to change the Unit’s sched-
ule because: it was operating below its 70-day inventory and 96
percent service target goals; and it forecasted a 3 percent in-
crease in gallons-ordered from 2019 to 2021. (R. Exh. 15 at pp.
2–3). Although PPG had valid business purposes for wanting to
ramp up to a 7-day production model, its rationale was not
based upon a dire financial emergency warranting immediate
attention. It has not asserted that it was losing money, losing
key customers or suffering other irreparable harm. On the con-
trary, it mostly wanted to streamline its operations, provide
more efficient deliveries, and save money. These motivations,
while sound, were just not dire. See, e.g., Wendt Corp., supra,
slip op. at 8 (“The … desire to save money in its shop opera-
tions, however understandable, does not constitute an economic
exigency where its economic health is not even asserted to be in
question …. [and it] is not threatened in any manner by strait-
ened financial circumstances but simply seeks some monetary
savings.”); United States Testing Co., 324 NLRB 854 (1997)
(respondent failed to offer evidence that its financial situation
was so dire that it either had to implement its final offer when it
did or suffer financial ruin); Beverly Health & Rehabilitation
Services, 335 NLRB 635, 637 (2001) (9.5 percent increase in
healthcare premiums does not warrant unilateral change in
increasing employees’ premium costs); Brannan Sand & Grav-
el, 314 NLRB 282 (1994); Circuit Wise Inc., 308 NLRB 1091
(1992).
iii. Synthesis
In sum, PPG has not met its heavy burden of showing that
bargaining was excused entirely or that its rise in orders consti-
tuted “other economic exigencies” under RBE Electronics,
which permitted unilateral action, after the parties reached a
good faith bargaining impasse on the scheduling issue.18 RBE
Electronics, supra, 320 NLRB at 81–82.
CONCLUSIONS OF LAW
1. PPG is an employer engaged in commerce under §2(2),
(6), and (7) of the Act.
2. The Union is a §2(5) labor organization and the designat-
ed exclusive collective bargaining representative of PPG’s em-
ployees at its Cleveland, Ohio plant in the following appropri-
ate collective bargaining unit:
18 It is unnecessary to pass on whether the parties reached a good-
faith impasse in scheduling negotiations, given that PPG failed to show
that, under RBE Electronics, economics exigencies validated piecemeal
bargaining.
12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time hourly production and maintenance employees,
including operators, environmental, blenders, maintenance,
distribution, manufacturing, forklift/tow motor drivers, fillers,
mechanics, washers, grinders, mixers, laborers, and ware-
house employees, but excluding all lab employees, engineers,
salaried employees, technical employees, contractors, tempo-
rary employees, office clerical employees, guards, manage-
ment, and supervisors as defined in the Act.
3.
PPG violated §8(a)(5) by unilaterally transferring Unit
employees to 12-hour (Monday to Sunday) shifts, without bar-
gaining to a lawful overall impasse with the Union during their
first contract negotiations.
4. These unfair labor practices affect commerce under §2(6)
and (7).
REMEDY
The appropriate remedy for the violations found herein is an
order requiring PPG to cease and desist from its unlawful con-
duct and to take certain affirmative action. Having found that it
unlawfully unilaterally changed Unit employees’ work sched-
ules, PPG is directed to reinstitute the terms and conditions of
employment that existed before its unlawful changes, upon
request from the Union. It shall also make employees whole for
any loss of earnings and other benefits resulting from its unlaw-
ful unilateral changes as prescribed in Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus
interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010). Under Don Chavas,
LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), it
shall compensate Unit employees for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award. Under
AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), and
Cascades Containerboard Packaging–Niagara, 370 NLRB No.
76 (2021), as modified in 371 NLRB No. 25 (2021), it shall,
within 21 days of the date the amount of backpay is fixed either
by agreement or Board order (or such additional time as the
Regional Director may allow for good cause shown), file with
the Regional Director for Region 8: a report allocating backpay
to the appropriate calendar year(s); and a copy of each backpay
recipient’s corresponding W–2 form(s) reflecting the backpay
award. The Regional Director will then assume responsibility
for transmitting the report and form(s) to the Social Security
Administration at the appropriate time 40 and in the appropriate
manner. Finally, it shall post the attached notice in accordance
with J. Picini Flooring, 356 NLRB 11 (2010).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended19
ORDER
PPG Industries Ohio, Inc., Cleveland, Ohio, its officers,
agents, successors, and assigns, shall
19 If no exceptions are filed as provided by §102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in §102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the In-
ternational Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW (the Union) as the
exclusive collective bargaining representative of the following
appropriate collective-bargaining unit of employees employed
at its Cleveland, Ohio plant (the Unit) by unilaterally their
changing their scheduled hours and days of work during collec-
tive bargaining in the absence of an overall lawful bargaining
impasse with the Union during their first contract negotiations:
All full-time hourly production and maintenance employees,
including operators, environmental, blenders, maintenance,
distribution, manufacturing, forklift/tow motor drivers, fillers,
mechanics, washers, grinders, mixers, laborers, and ware-
house employees, but excluding all lab employees, engineers,
salaried employees, technical employees, contractors, tempo-
rary employees, office clerical employees, guards, manage-
ment, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed by §7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the Act’s policies
(a) Upon request by the Union, rescind the unilateral chang-
es made to the Unit’s work schedules on March 5, 2021.
(b) Make affected Unit employees whole for any loss of
earnings and other benefits suffered as a result of the unilateral
change, in the manner set forth in the remedy section.
(c) Compensate affected Unit employees for the adverse tax
consequences, if any, of receiving lump-sum backpay awards,
and file with the Regional Director for Region 8, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board Order, a report allocating the backpay
awards to the appropriate calendar year for each employee and
a copy of the corresponding W–2 forms reflecting the backpay
award.
(d) Preserve and, within 14 days of request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Cleveland, Ohio facility the attached notice marked “Appen-
dix”.20 Copies of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily
20 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-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
PPG INDUSTRIES OHIO, INC.
13
posted. In addition to the physical posting of paper notices,
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since March 5, 2021.
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 8 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps the Respondent has taken to comply.
Dated, Washington, D.C. April 8, 2022
APPENDIX
NOTICE TOEMPLOYEES
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 no-
tice.
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 fail and refuse to bargain collectively with In-
ternational Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW (the Union) as
your exclusive collective bargaining representative at the
Cleveland, Ohio plant by unilaterally changing your scheduled
hours and days of work during collective bargaining in the
absence of an overall lawful bargaining impasse with the Union
during our first contract negotiations. The appropriate collec-
tive bargaining unit at the Cleveland, Ohio plant is:
All full-time hourly production and maintenance employees,
including operators, environmental, blenders, maintenance,
distribution, manufacturing, forklift/tow motor drivers, fillers,
mechanics, washers, grinders, mixers, laborers, and ware-
house employees, but excluding all lab employees, engineers,
salaried employees, technical employees, contractors, tempo-
rary employees, office clerical employees, guards, manage-
ment, and supervisors as defined in the Act.
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, upon request by the Union, rescind the unilateral
changes that we made to your work schedules on March 5,
2021.
WE WILL make you whole for any loss of earnings and other
benefits that you suffered as a result of our unlawful unilateral
change to your scheduled hours and days of work, plus interest.
WE WILL compensate you for the adverse tax consequences,
if any, of receiving lump-sum backpay awards, and we will file
with the Regional Director for Region 8, within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the ap-
propriate calendar year for each employee and a copy of the
corresponding W–2 forms reflecting the backpay award.
PPG INDUSTRIES OHIO, INC.
The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/08-CA-279834 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.