PPG Industries

National Labor Relations Board - Administrative Judge Opinions

Nov 18, 2009

33-CB-004317 (N.L.R.B. Nov. 18, 2009)

JD-58-09
Mt. Zion, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISON OF JUDGES
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION,
AFL-CIO, CLC AND LOCAL UNION 193-G
and Case 33-CB-4317
PPG INDUSTRIES, INC.
Debra L. Stefanik, Esq., for the General Counsel.
Stephen A. Yokich, Esq., (Cornfield and Feldman),
Chicago, Illinois, for the Respondent Union.
Terrence H. Murphy, Esq., (Buchanan Ingersoll & Rooney),
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 Industries, 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 demeanor 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.
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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. 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 effect 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 parties 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.
(G.C. Exh. 3, p. 22).
Judy Lewkowski, PPG’s Director of Human Resources, notified Local Union President
Jeff Wallace on April 22, 2009, that PPG intended to open negotiations and suggested that
negotiations 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 meeting, 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 discussed PPG’s economic
situation with Mezo. Mordowanec told Mezo that due to the comparative labor costs of its
competitors, PPG had to reduce its cost per labor hour from $37 to $27 by the third year of the
next contract. Further, Modowanec told Mezo that to get to $27 PPG would treat laid off
employees 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
declined 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
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current employees. He reiterated PPG’s desire to achieve a $27 cost per labor hour by the end of
a three year agreement and opined that it would be difficult to achieve that figure without
significant concessions from current employees, G.C. 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 returning 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 concessions 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. However, 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 June 3, Mezo sent Mordowanec an email stating that the Union was
not obligated to bargain over any proposal made by the Company subsequent to June 1, G.C.
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 collective 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 collective 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 Employer contend that the Union, in
offering to bargain over some or all of the Employer’s proposals “provisionally,” violated
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Section 8(b)(3) of the Act. By doing so, the General Counsel and Charging Party allege that the
Union failed to “meet at reasonable times and confer in good faith with respect to wages, hours
and other terms and conditions of employment,” as required 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
involved 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 position for a month and a half that WWOR had failed to
properly terminate its 1993-96 contract and that therefore the contract 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 terminate 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 Union 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 October 17, and by unilaterally implementing
new terms and conditions 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, 1264-65, 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

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 employees, 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.
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illegally refused to bargain over International Paper’s proposal to permanently subcontract
bargaining unit work. The Union had filed an unfair labor practice charge contending that the
company violated the Act in making this proposal two 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 proposals 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 opposition
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 proposals and by contending that it
was only bargaining “provisionally.”
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2
ORDER
The complaint is dismissed.
Dated, Washington, D.C., November 18, 2009.
____________________
Arthur J. Amchan
Administrative Law Judge

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 purposes.