DAP GLOBAL, INC.

373 NLRB No. 24 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. DAP Global, Inc. Employer/Petitioner and Interna- tional Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) Region 28 and its Local Union No. 888 Union. Case 09–UC–304153 February 16, 2024 ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY The Union’s request for review of the Acting Regional Director’s Decision and Order Clarifying Bargaining Unit is denied as it raises no substantial issues warranting re- view.1 Dated, Washington, D.C. February 16, 2024 ______________________________________ Lauren McFerran, Chairman _____________________________________ Marvin E. Kaplan, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER PROUTY, dissenting. Contrary to my colleagues, I would grant the Union’s request for review of the Acting Regional Director’s De- cision and Order Clarifying Bargaining Unit because there are compelling reasons for reconsideration of the Board’s decision in Ziegler, Inc., 333 NLRB 949 (2001). On 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has exercised its discretion to review the record in this matter. Sec. 102.67(e) of the Board’s Rules and Regulations. In denying review, we agree with the Acting Regional Director’s statement that the disputed “paint side” employees are historically ex- cluded from the bargaining unit. Although the Acting Regional Director did not thoroughly explain the basis of this conclusion, we find that the record fully supports it, as the disputed employees have been excluded from the unit dating back to the unit’s move to the Employer’s Tipp City, Ohio facility in about 1998. Prior to the filing of the instant grievance on May 3, 2022, the Union has never sought to apply the collective-bar- gaining agreement to them. We further find that there have been no re- cent and substantial changes in the duties of the disputed employees; the handful of changes the Union has identified were instituted 4 or more years before the Union filed its grievance. Although the Union claims that it only recently became aware of corporate changes that were made in the 2000s, and did not protest certain work assignments based on its lack of knowledge, there is no requirement “that the union have acqui- esced in the historical exclusion of a group of employees from an existing unit . . . It is the fact of historical exclusion that is determinative.” United review, I would set aside the Acting Regional Director’s decision, overrule Ziegler, and then defer the instant peti- tion and await the outcome of the parties’ grievance and arbitration process. Specifically, as then-Member Lieb- man stated in her partial dissent in Ziegler, the Board should “not make the unit clarification procedure availa- ble to the parties to settle their dispute, but should stay our hand and allow them to work it out themselves through good-faith collective bargaining.” Id. at 952 (Member Liebman, dissenting in part). The parties in this case negotiated a grievance-arbitra- tion procedure to resolve contractual disputes, including contractual disputes such as the one at issue here over the contract’s recognition clause. Federal labor policy has historically favored deferral to the parties’ mutually agreed to method of contractual resolution. However, ap- plying Board precedent under Ziegler, the Acting Re- gional Director clarified the parties’ bargaining unit to ex- clude “paint side” employees. Revealing its deeply flawed premises, Ziegler provides for clarification of the unit not despite—but precisely because—the Union in- voked the federally-favored policy of grievance arbitra- tion to resolve its dispute with the Employer. Ziegler is an unfortunate exception to the general and sage Board pol- icy which counsels that, in the absence of substantial changes, a unit clarification (“UC”) petition seeking to confirm the exclusion of a historically excluded group will not be entertained. The Ziegler exception provides that the Board drops its “non-interference” policy in unit clar- ification cases after a union exercises its right to grieve a recognition dispute. Only then will the Board intervene to clarify a unit to confirm the status quo historical exclusion of employees. This is the wrong outcome, mandated by a poorly reasoned decision. If the Board were to instead overrule Ziegler, as I urge it to do, we would further the policies of the Act by simply respecting the parties’ nego- tiated agreement and not preemptively intervening in den- igration of longstanding Federal labor policy and in Parcel Service, 303 NLRB 326, 327 (1991) (emphasis in the original), enfd. 17 F.3d 1518 (D.C. Cir. 1994), cert. denied 513 U.S. 1076 (1995). We also agree with the Acting Regional Director that, regardless of how many employees the Union contends should now be covered by the parties’ collective-bargaining agreement, the Union is seeking to accrete at least some historically excluded employees. “[W]here a classification has been historically excluded from a unit, it cannot be added by means of the accretion doctrine.” Williams Transportation Co., 233 NLRB 837, 838 (1977). Given the fact of the disputed employees’ historical exclu- sion, it was unnecessary for the Acting Regional Director to engage in the accretion analysis; we therefore do not pass on her conclusion that the disputed employees do not share an “overwhelming community of interest” with the unit employees. Having found that this case turns on the issue of historical exclusion, we agree with the Acting Regional Director that this is a representation issue that is not appropriate to defer to the parties’ grievance and arbitra- tion procedure. See Ziegler, Inc., 333 NLRB 949 (2001). We do not, however, rely on the Acting Regional Director’s misstatement that “a question concerning representation exists” in this case. Chairman McFerran notes that no party has requested that the Board revisit Ziegler, and she applies it here as extant precedent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 contradiction to our own general policy of not intervening in such circumstances.1 The Employer and the Union in this case executed a col- lective-bargaining agreement, effective from July 10, 2022, through March 23, 2025, containing a grievance and arbitration procedure permitting the Union to grieve “a claim or dispute which the Union . . . has concerning the effect, interpretation or application of the terms of this Agreement” and to “request arbitration of the issue” after exhausting the parties’ agreed-upon grievance procedure. “Article 2—RECOGNITION” of the parties’ collec- tive-bargaining agreement provides that “[t]he Employer recognizes the Union as the sole bargaining agent for its production and maintenance employees (including part- time employees, if any, but excluding all employees em- ployed by the DERUSTO-WOODLIFE Division of DAP) employed at its plant at 875 North Third Street, Tipp City, Ohio.” The Union argues that this language requires the Employer to recognize the Union as the bargaining agent for all of its production and maintenance employees at its Tipp City, Ohio facility, except those employed by the Employer’s DERUSTO-WOODLIFE Division. The Em- ployer contends that its DERUSTO-WOODLIFE Divi- sion has not existed for decades and that all employees whose work is comparable to what had been performed by employees in the DERUSTO-WOODLIFE Division are excluded from the bargaining unit. In no uncertain terms, the Union has a contractual dis- pute with the Employer. In furtherance of its attempt to resolve this dispute, the Union filed a grievance under the parties’ collective-bargaining agreement and, when the Employer refused to process that grievance, filed a motion to compel arbitration in Federal District Court. In re- sponse, instead of allowing the parties’ contractual dispute resolution process to play out, the Employer filed a UC petition requesting that the Board intervene and clarify the composition of the bargaining unit. Under the Board’s well-reasoned decision in Bethlehem Steel Corp., “where a position or classification has histor- ically been excluded from or included in the unit, and there have not been recent, substantial changes that would call into question the placement of the employees in the unit, the Board generally will not entertain a petition to clarify the status of that position or [classification], re- gardless of when in the bargaining cycle the petition is filed.” 329 NLRB 243, 244 (1999). Citing and quoting 1 In a previous case, I similarly argued that deferral to the parties’ contractual grievance and arbitration procedure, rather than the pro- cessing of a UC petition, was the appropriate course. See Penske, Inc., 371 NLRB No. 113 (2022) (Member Prouty, dissenting). In that case, a grievance was filed over whether employees at a new facility were in- cluded within an existing bargaining unit, and the Board should have de- ferred because the parties’ agreement provided a specific procedure out- side of the Board’s processes for determining voluntary recognition at certain new facilities. 2 See Labor-Management Relations Act, Sec. 203(d), 29 U.S.C. § 173(d) (“Final adjustment by a method agreed upon by the parties is its earlier decision in Union Electric Co., 217 NLRB 666, 667 (1975), the Board in Bethlehem Steel recognized that: “Clarification is not appropriate, however, for upsetting . . . an established practice of such parties concerning the unit placement of various individuals.” Id. (emphasis in Bethlehem Steel). As the Acting Regional Director recognized in her de- cision, the Employer does not argue that there have been recent and substantial changes to the unit. Instead, the Employer’s UC petition seeks to do exactly what Bethle- hem Steel proscribed. The UC petition asks the Board to weigh in on the appropriate composition of the bargaining unit in advance of the parties’ prescribed path for resolu- tion of their dispute through their mutually agreed to dis- pute resolution procedure. If the Board were to have ap- plied the Bethlehem Steel rule here, the Employer’s UC petition would have been administratively dismissed. Unfortunately, the Board in Ziegler created an excep- tion to the Bethlehem Steel rule. Under Ziegler, the Board will intervene and process a UC petition where “there is a pending grievance that ultimately could result in an incon- gruous arbitration award.” 333 NLRB at 950. In other words, as applied to this case, just because the Union sought to assert its contractual rights to grieve and arbi- trate a dispute over article 2 of the parties’ collective-bar- gaining agreement, the Board will not follow its general practice of not intervening as required under Bethlehem Steel. It will now, because of Ziegler, intervene notwith- standing the general axiom that Federal labor policy fa- vors the grievance and arbitral resolution of disputes be- tween parties to a collective-bargaining agreement where the parties have agreed to follow that policy.2 I agree with then-Member Liebman’s partial dissent in Ziegler. Although the Board in Williams Transportation Co., 233 NLRB 837 (1977), determined that it should in- tervene to process a UC petition where an arbitral ruling has already issued that is clearly at odds with Board pol- icy, there is no reason, as then-Member Liebman phrased it, to “jump the gun” by finding that the possibility of a ruling that is contrary to Board policy is equivalent to the Union’s mere assertion of its contractual grievance rights. 333 NLRB at 952 (Member Liebman, dissenting in part). The Board need not, and should not, take a position at the current moment on the viability of the Union’s argument regarding the composition of the unit. Rather, it should allow the parties to advance their arguments, negotiate the declared to be the desirable method for the settlement of grievance dis- putes arising over the application or interpretation of an existing collec- tive-bargaining agreement.”); see the Steelworkers Trilogy cases: United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). In accord with this policy, the Supreme Court has enforced agreements to arbitrate even where it might ultimately be determined that the claim involves a matter, such as representational rights, that is within the primary jurisdiction of the Board. Carey v. Westinghouse Electric Corp., 375 U.S. 261 (1964). DAP GLOBAL, INC. 3 issue through the grievance procedure, and ultimately, if necessary, put the matter to their designated arbitrator and allow the arbitrator to rule first. The Board can, if neces- sary, then clarify the unit in accordance with Board pol- icy—only if the dispute results in an arbitration award at odds with Board policy. To weigh in preemptively under- mines the Union’s right to process its contractual claim, and to do so because of speculation as to what may ulti- mately be decided in an arbitration decision that may or may not occur does a disservice to the Act and to the prin- ciples of collective bargaining at its core. Then-Member Liebman had it exactly right when she stated: In this context, the collective bargaining process should be allowed to work. There is no indication that the par- ties will not engage in good faith collective bargaining to resolve their dispute, either within or outside the grievance procedure, in a manner that conforms to Board policy. Collective bargaining is a flexible, adapt- able process, and the grievance procedure is an integral part of that process, with which we should not interfere unless there is some reason connected with our statutory duties that compels us to do so. The parties could utilize that process to settle their dispute in any number of ways, most of which we could not even begin to predict. Id. At 952. The Board should acknowledge and accept these fundamental principles of collective bargaining by honoring what the parties have negotiated. Today’s decision inappropriately uses the Act not to foster collective bargaining but to stymie it, as the Board weighs in to prejudge a possible outcome of the Union and Employer’s dispute in violation of its own policies and precedents (save for the wrongly decided Ziegler). Be- cause denying review allows the Acting Regional Direc- tor’s unit clarification to stand, despite the parties having negotiated a procedure for resolving precisely this type of contractual dispute, I respectfully dissent. Dated, Washington, D.C. February 16, 2024 _____________________________________ David M. Prouty, Member NATIONAL LABOR RELATIONS BOARD