The Ohio Edison Company, a subsidiary of FirstEnergy Corporation

National Labor Relations Board - Board Decisions

May 21, 2015

362 NLRB No. 88 (N.L.R.B. 2015)

362 NLRB No. 88
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.
Ohio Edison Company, a wholly owned subsidiary of
FirstEnergy Corp. and International Brother-
hood of Electrical Workers, Local Union No.
1194, AFL–CIO, CLC
FirstEnergy Generation Corp. and International
Brotherhood of Electrical Workers, Local Union
No. 272, AFL–CIO, CLC. Cases 08–CA–099595
and 06–CA–092312
May 21, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On January 17, 2014, Administrative Law Judge Mark
Carissimi issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief.
The General Counsel filed an answering 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,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2 We agree with the judge that the
Respondent violated Section 8(a)(5) and (1) by failing to
bargain with IBEW Local 272 (the Union) before im-
plementing a change in the Employee Service Recogni-
tion Program (ESRP) on January 1, 2013.3 Crucially, we

1 The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
In the absence of exceptions, we adopt the judge’s dismissal of the
8(a)(5) and (1) complaint in Case 08–CA–099595.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language. We shall substitute a new notice
in accordance with our decision in Durham School Services, 360 NLRB
No. 85 (2014).
3 In doing so, we reject the Respondent’s claim that the judge was
required to apply a five-part test to determine whether the ESRP awards
were gifts rather than terms or conditions of employment. See Woon-
socket Spinning Co., 252 NLRB 1170, 1172 (1980). The Respondent
acknowledges that the Board has applied that test only in cases involv-
ing monetary Christmas bonuses, and has never applied it to cases, like
this one, that involve tangible awards. See, e.g., Longhorn Machine
Works, 205 NLRB 685, 690 (1973) (employer’s unilateral discontinu-
ance of awarding gold watches to employees on 10-year anniversary
date violated Sec. 8(a)(5) and (1)). Further, in adopting the judge’s
affirm the judge’s findings and conclusion that Union
President Herman Marshman’s statements to Director of
Labor Relations Eileen McNamara constituted a request
to bargain over the change. When McNamara notified
Marshman of the change during the September 18, 2012
telephone call, Marshman responded, “[O]h no you
don’t! Again? Now you know I have to file a board
charge,” and stated that he would “ha[ve] to come to
Akron [the Respondent’s headquarters] for this one.”
The Respondent contends that Marshman’s request was
not sufficiently specific to constitute a bargaining request
because it was made after McNamara described proposed
changes to three other employment policies during their
September 18 telephone call. We reject that contention.
There is nothing in the record to indicate that
Marshman’s bargaining request did not encompass the
proposed change to the ESRP. Moreover, any doubt the
Respondent had about the Union’s desire to bargain was
clarified by the October 30, 2012 unfair labor practice
charge and the November 20, 2012 amended charge,
both of which specifically alleged that the Respondent
failed to bargain over the change to the ESRP.
We disagree with our dissenting colleague’s character-
ization of Marshman’s comments to McNamara as a
mere “protest.” In addition to stating his opposition to
the change, Marshman threatened to file a charge and
stated that he would travel to the Respondent’s headquar-
ters in Akron, Ohio. McNamara testified that she under-
stood from his response that Marshman was not happy
about the change and that he was “serious” about both
filing a charge and coming to Akron to discuss the matter
with the Respondent’s CEO, Tony Alexander.4 She fur-
ther testified that union representatives “frequently
spoke” to Alexander about employment issues, and in
this case, Alexander was the individual who had decided
to change the ESRP. Accordingly, we disagree with our
colleague that “[n]othing in Marshman’s responses to
McNamara can reasonably be construed as a request to
bargain[.]”5

finding that the change to the ESRP was substantial and material, we
note that approximately 43 employees represented by the Union did not
receive a recognition award because of the January 1, 2013 change.
In adopting the judge’s finding that a union’s acquiescence in past
changes to mandatory subjects of bargaining does not constitute a
waiver of the right to bargain over future changes, we do not rely on his
citation to FirstEnergy Generation Corp., 358 NLRB No. 96 (2012).
4 Consistent with the Respondent’s exception, we find that
McNamara’s email memorializing her September 18 telephone conver-
sation with Marshman was sent later that same day, and not on Sep-
tember 19, as found by the judge. The judge’s error does not affect our
analysis or conclusions.
5 The cases our colleague cites are distinguishable. In those cases,
the union’s mere protest of a proposed change was deemed insufficient
to constitute a request to bargain. As stated above, we agree with the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Our dissenting colleague further argues that we are re-
lying on the filing of an unfair labor practice charge to
“convert” Marshman’s comments into a request to bar-
gain. That is simply not the case. Marshman’s com-
ments constituted a bargaining request, and the record
supports the inference that the Respondent understood it
as such. Like the judge, we rely on the filing of the
charge only to clarify and provide context to Marshman’s
comments. As the judge noted, the Union filed the
charge soon after being notified of the change, and over 2
months before the change was implemented, which
would have allowed the parties an opportunity to bargain
over the change. Compare American Buslines, 164
NLRB 1055, 1055–1056 (1967) (holding that the union’s
letter stating its disagreement with a change that was to
take place in less than a week was not a request to bar-
gain, where the union took no other action until filing a
charge).
ORDER
The National Labor Relations Board orders that the
Respondent, FirstEnergy Generation Corp.,
Shippingport, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with the International Brotherhood of Electri-
cal Workers, Local Union No. 272, AFL–CIO, CLC as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All production and maintenance employees, including
Control Room Operators, employees in the Stores,
Electrical, Maintenance, Operations, I & T, and Yard
Departments at the Bruce Mansfield Plant, excluding
technicians, office clerical employees and guards, other
professional employees and supervisors as defined in
the National Labor Relations Act, as amended.
(b) Unilaterally changing the length of time employ-
ees must serve to be eligible for awards under the Em-
ployee Service Recognition Policy (ESRP).
(c) 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, notify and,

judge’s finding that the Union did more than merely protest the change:
Marshman threatened to file a charge over the change and expressed a
desire to discuss the matter with the decisionmaker.
on request, bargain collectively and in good faith with
IBEW, Local 272 as the exclusive collective-bargaining
representative of its employees in the appropriate unit.
(b) Rescind the change to the ESRP that was unilater-
ally implemented on January 1, 2013, and restore the 5-
year length of service requirement that existed before the
change was implemented.
(c) Make whole all employees in the bargaining unit
who were not granted a service award because of the
unlawful change made to the ESRP on January 1, 2013.
(d) Within 14 days after service by the Region, post at
its facility in Shippingport, Pennsylvania, copies of the
attached notice marked “Appendix.”6 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 6, after being signed by the Respondent’s author-
ized 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 posted. In addition to 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 January 1, 2013.
(e) Within 21 days after service to the Region, file
with the Regional Director of Region 6 a sworn certifica-
tion of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 21, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

6 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.”
OHIO EDISON CO. 3
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
A core requirement of the Act is the duty to bargain in
good faith regarding wages, hours, and terms and condi-
tions of employment.1 Yet the Act only requires em-
ployers to give the bargaining representative notice and
the opportunity for bargaining, consistent with two
longstanding principles that have been clearly established
by numerous Board and court decisions. First, to pre-
serve its bargaining rights, a union must request bargain-
ing after it becomes aware of a potential change. In
NLRB v. Katz, for example, the Supreme Court stated:
“A refusal to negotiate in fact as to any subject which is
within § 8(d), and about which the union seeks to negoti-
ate, violates § 8(a)(5)” (emphasis added). 369 U.S. at
743. Second, a union waives its bargaining rights when,
without requesting bargaining, it merely protests, raises
objections, or files a refusal-to-bargain unfair labor prac-
tice charge in response to the employer’s announced
plans.
I believe the judge and my colleagues have misapplied
both of these longstanding principles. Contrary to their
findings, I would reverse the judge and dismiss the re-
fusal-to-bargain allegation against Respondent FirstEn-
ergy Generation because (i) the Union here never re-
quested bargaining over the Respondent’s announced
intention to change its Employee Service Recognition
Plan, and (ii) the Union’s filing of a refusal-to-bargain
charge did not constitute a request for bargaining, and
decades of Board law establish that such a charge lacks
merit when there has never been a request for bargain-

1 See Sec. 8(a)(5) (making it an unfair labor practice for an employer
to refuse to bargain collectively with a union that is the representative
of employees); Sec. 8(b)(3) (making it an unfair labor practice for a
union that is the representative of employees to refuse to bargain col-
lectively with their employer); Sec. 8(d) (defining the obligation to
“bargain collectively” as “the performance of the mutual obligation of
the employer and the representative of the employees to meet at rea-
sonable times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment, or the negotiation of an
agreement or any question arising thereunder, and the execution of a
written contract incorporating any agreement reached if requested by
either party, but such obligation does not compel either party to agree
to a proposal or require the making of a concession”). The matters
about which bargaining is required under the statute—“wages, hours,
and other terms and conditions of employment”—are commonly called
“mandatory” subjects of bargaining. NLRB v. Wooster Division, 356
U.S. 342 (1958). It is unlawful for an employer to implement unilateral
changes in mandatory subjects without giving the bargaining repre-
sentative notice and the opportunity to request bargaining. NLRB v.
Katz, 369 U.S. 736, 743 (1962).
ing.2 For these reasons, I respectfully dissent from the
finding of an 8(a)(5) violation as to FirstEnergy.
Factual Background
The Respondent3 maintained a longstanding Employee
Service Recognition Plan (ESRP) to acknowledge and
reward employees for their loyalty to the Company. The
ESRP was changed several times over the years, mostly
through the Respondent’s unchallenged unilateral ac-
tions. Prior to the events at issue here, the ESRP provid-
ed awards of increasing value for every 5 years of ser-
vice. Thus, at 5 years, the value of the award was $35, at
10 years it was $69.50, at 15 years it was $75, and at 20
years it was $101. The award value increased in 5-year
increments up to 50 years of service.
On September 18, 2012, Eileen McNamara, the Re-
spondent’s director of labor relations, called Herman
Marshman, IBEW Local 272’s president, and, reading
from a prepared script, informed him of several planned
changes, among them that the ESRP would grant awards
to employees for every 10 years of service rather than
every 5 years. McNamara informed Marshman that the
change would take effect in January 2013.
In response, Marshman said, “Oh no you don’t, you
know I have to come to Akron [Respondent’s corporate
headquarters] on this,” and he added that he would also
have to “file a Board charge.” The judge credited
McNamara’s testimony that Marshman did not state that
the changes were subject to negotiation and did not re-
quest bargaining over any of the proposed changes, in-
cluding those to the ESRP.4 McNamara ended her call
with Marshman by reading from her script: “Should you
have any concerns or questions, please do not hesitate to
call.” On September 27, 2012, McNamara sent
Marshman a followup letter that, among other things,
restated the proposed changes to the ESRP. The letter
also stated, “If you have any questions or concerns re-
garding the foregoing, please do not hesitate to contact
me.” It is undisputed that Marshman did not contact
McNamara regarding the proposed changes. On October
30, 2012, Local 272 filed an unfair labor practice charge
against the Respondent alleging that its unilateral chang-
es to the ESRP violated Section 8(a)(5) and (1).

2 There are no exceptions to the judge’s dismissal of the refusal-to-
bargain allegation against The Ohio Edison Company in Case 08–CA–
099595, and I concur in the dismissal of that case.
3 “Respondent” here refers to FirstEnergy Generation Corporation.
As noted, the allegation against Respondent Ohio Edison was dis-
missed.
4 Conversely, the judge discredited Marshman’s claim that he told
McNamara that the proposed changes were subject to negotiation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Discussion
The judge found that Union President Marshman’s re-
sponses to McNamara—“oh no you don’t, you know I
have to come to Akron on this,” and “now you know I
have to file a Board charge”—“leave little doubt” that he
was requesting bargaining over the Respondent’s pro-
posed changes to the ESRP. These findings by the judge
reflect an erroneous application of the two principles of
black-letter Board law described above.
1. The Union never requested bargaining
The record reveals that the General Counsel has not
satisfied his burden of establishing that the Union re-
quested bargaining after being informed of the Respond-
ent’s proposed changes to the ESRP. At most,
Marshman’s responses constitute the type of protest or
objection that the Board, in numerous cases, has found
not to be an adequate substitute for requesting bargain-
ing.
For example, in Clarkwood Corp., 233 NLRB 1172,
1172 (1977), the employer’s unilateral removal of
phones and closing of a restroom were held lawful under
Section 8(a)(5) where union officials “contacted Re-
spondent and protested its contemplated actions,” but “at
no time did employee representatives request Respondent
to bargain about removing the phones or closing the re-
stroom.” In The Emporium, 221 NLRB 1211, 1214
(1975), the employer did not unlawfully fail to bargain
over subcontracting when the union representative, after
learning of the employer’s plans, “simply requested that
Respondent not contract out,” complained that the con-
tractor refused to recognize the union, asked whether the
respondent would “do something about this” and “took
the position that . . . Respondent had violated its bargain-
ing agreement,” but where the union “never tested Re-
spondent’ s willingness to satisfy its bargaining obliga-
tion.” In Medicenter, Mid-South Hospital, 221 NLRB
670, 679 (1975), the employer was found not to have
unlawfully failed to bargain over polygraph testing
where the union “showed no inclination to do anything
but object” and failed to request bargaining. In Kentron
of Hawaii Ltd., 214 NLRB 834, 835 (1974), the Board
held: “When an employer notifies a union of proposed
changes in terms and conditions of employment, it is
incumbent upon the union to act with due diligence in
requesting bargaining” (footnote omitted). In U.S. Lin-
gerie Corp., 170 NLRB 750, 751–752 (1968), there was
no unlawful failure to bargain over an employer’s reloca-
tion because, according to the Board, “the Union had
sufficient notice of Respondent’s intended move to place
upon it the burden of demanding bargaining if it wished
to preserve its rights to bargain. . . .” In American
Buslines, Inc., 164 NLRB 1055, 1055–1056 (1967), there
was no unlawful refusal to bargain over employee pro-
motions that resulted in the bargaining unit’s elimination
because the Board found that, upon receiving notice of
the employer’s plans, “the Union failed to prosecute its
right to engage in . . . discussion but contented itself by
protesting the contemplated promotions . . . and by sub-
sequently filing a refusal-to-bargain charge.”
The foregoing cases all stand for the same proposition:
there can be no 8(a)(5) violation unless the union, after
learning of an employer’s planned changes regarding a
mandatory bargaining subject, makes a request that
“clearly indicates a desire to negotiate and bargain.” Al
Landers Dump Truck, Inc., 192 NLRB 207, 208 (1971)
(emphasis added). Nothing in Marshman’s responses to
McNamara can reasonably be construed as a request to
bargain or negotiate with the Respondent over the change
to the ESRP. Marshman’s statements registered disa-
greement or protest. As reflected in numerous Board
cases, even strenuous objections or protests are not suffi-
cient under Section 8(a)(5) to constitute requests for bar-
gaining. See Associated Milk Producers, 300 NLRB
561, 564 (1990) (“It was incumbent on the Union to re-
quest bargaining—not merely to protest or file an unfair
labor practice charge.”); Citizens National Bank of
Wilmar, 245 NLRB 389, 389–390 (1979) (same); Ameri-
can Buslines, supra.5

5 The judge cited several cases in support of his finding that
Marshman’s protests conveyed a request to bargain. In each of those
cases, however, the union’s response included some reference to dia-
logue, discussion, bargaining, or an exchange of ideas. Thus, in Indian
River Memorial Hospital, 340 NLRB 467 (2003), upon which the judge
specifically relied, the employer notified the union of a change in the
work schedule, and the union’s business agent responded that a sched-
ule change was “a mandatory subject of bargaining.” In response, the
employer stated, “We are willing to bargain collectively over those
items covering wages, hours, and working conditions,” but “changing
schedules . . . is a management right.” Id. at 467. Thus, both the un-
ion’s statement and the employer’s response referenced bargaining, and
the Board found a clear request to bargain. Id. at 468–469. In Armour
& Co., 280 NLRB 824 (1986), the Board found a request to bargain
where, in response to a proposed change, the union stated that it “would
like the opportunity to discuss with your company your position.” Id.
at 828 (emphasis in original). Similarly, in Sunoco, Inc., 349 NLRB
240 (2007), the union business agent told the employer, on three occa-
sions regarding its plan to subcontract certain work, that it was “bar-
gaining unit work” and that the employer “ha[d] to bargain over that
work.” Id. at 242. On these facts, a request to bargain was found. Id.
at 245.
Here, unlike the three cases relied upon by the judge, Marshman’s
comments were devoid of any reference to discussion or bargaining.
On September 18, the day McNamara spoke with Marshman,
McNamara emailed her superior that Marshman was “not happy” and
that she was “sure he’s serious about the charge and coming to Akron.”
The judge found that McNamara’s email “reflects an understanding that
Marshman was requesting bargaining as it indicates that she felt he was
serious about coming to Akron to discuss the change to the policy”
OHIO EDISON CO. 5
2. The Union’s refusal-to-bargain charge was not a
request for bargaining
To bolster his finding that the Union requested bar-
gaining, the judge cited Trucking Water Air Corp., 276
NLRB 1401, 1407 (1985), for the proposition that “if an
employer has doubt about whether a request for bargain-
ing has been made, such doubt can be eliminated when a
union files an unfair labor practice charge claiming a
refusal to bargain.” I believe this proposition is incorrect
as a matter of law and objectionable as a matter of labor
law policy.
Decades of Board precedent establish that the filing of
an unfair labor practice charge, or the threat to file such a
charge, does not excuse a union’s failure to request bar-
gaining, nor is the filing of a refusal-to-bargain charge
equivalent to a bargaining request. The judge himself
acknowledged that filing an unfair labor practice charge
does not relieve a union of its obligation to request bar-
gaining. The Board has so held for nearly 50 years. See,
e.g., Boeing Co., 337 NLRB 758, 763 (2002); Associated
Milk Producers, 300 NLRB at 563; American Buslines,
164 NLRB at 1055–1056.6

(emphasis added), and my colleagues echo that finding. But what
McNamara actually testified, as the judge noted, was that she under-
stood Marshman’s reference about coming to Akron to mean that “he
wanted to complain” to the Respondent’s CEO about this issue (empha-
sis added). Thus, the judge subtly but significantly misstates McNama-
ra’s testimony. Marshman did not refer to discussion or bargaining,
and McNamara did not understand him to do so. McNamara’s email
reveals that she understood Marshman was unhappy about the ESRP
change and wanted to complain about it—not that he wanted to discuss
it or bargain about it.
6 Trucking Water Air Corp., upon which the judge relied, is not to
the contrary. There, the union president (Schueler) called the employ-
er’s president (Pace) after hearing that the company, whose employees
the union formerly represented, was back in business. The union presi-
dent testified, “I asked Mr. Pace that I wanted to sit down with him and
I wanted to talk about the situation. . . . I said I’d like to sit down with
you right now and he said no.” 276 NLRB at 1406. The judge found
that “Schueler’s request that Pace ‘sit down’ with him to discuss ‘the
situation’ [met] the criteria” for a request to bargain. Id. at 1407. The
judge then added the following dicta: “Were there any further doubt of
the meaning of Schueler’s statement to Pace, this doubt was eliminated
shortly thereafter when the Union filed the unfair labor practice charge
which led to the instant complaint.” Id. The judge then cited Sewanee
Coal Operators Assn., 167 NLRB 172, 177 (1969), where—as charac-
terized by the judge in Trucking Water Air—“the Board held that the
filing of charges acted as a renewal of the request to bargain and Re-
spondent’s failure to indicate an intention to negotiate, thereafter, con-
stituted a second refusal to bargain.” Thus, in Trucking Water Air, the
judge found that Schueler had requested bargaining, prior to and sepa-
rate from the subsequent filing of an unfair labor practice charge. And
the judge recognized that although filing a charge may renew a bargain-
ing request previously made, it does not substitute for a request that had
never been made. Here, by contrast, the judge erroneously cites Truck-
ing Water Air for the proposition that an unfair labor practice charge
effectively converts a prior union protest over a proposed change into a
request for bargaining. This reading goes far beyond Trucking Water
This case closely resembles American Buslines, where
a panel consisting of Members Fanning, Brown, and Jen-
kins unanimously dismissed the complaint alleging that
the employer violated Section 8(a)(5) by failing to bar-
gain with the union over the promotion and reclassifica-
tion of all union-represented porters, which eliminated
the bargaining unit and extinguished the union’s repre-
sentative status. 164 NLRB at 1055, 1057. A letter from
the union “expressed [its] disagreement with this project-
ed action, which it described as contrary to the [u]nion’s
certification and the existing labor agreement.” Id. at
1055. As the Board found, “the [u]nion’s immediate
reaction was merely to protest the proposal in a letter by
characterizing it as an invasion of its statutory rights.”
Id. The union’s “next and final course of action was to
file an unfair labor practice charge.” Id. (emphasis add-
ed). On these facts, the Board unanimously concluded
that dismissal was proper, reasoning as follows:
When the Union was first apprised of Respondent's
plan to promote all of the porters . . . with the
concommitant [sic] disappearance of the Union's bar-
gaining unit, it became incumbent upon the Union to
enforce its bargaining rights diligently by attempting to
persuade the Respondent to alter its decision if it found
the decision unacceptable. . . . In NLRB v. Columbian
Enameling & Stamping Co., 306 U.S. 292, 297, the
Supreme Court, in discussing the duty of labor organi-
zations to initiate collective bargaining, held “that the
statute does not compel . . . [the Employer] to seek out
his employees or request their participation in negotia-
tions for purposes of collective bargaining . . . . To put
the employer in default here the employees must at
least have signified to respondent their desire to nego-
tiate.” Although this statement was made in a different
context, we think it applicable to the facts in this case.
Here, Respondent gave the Union 1 week's advance no-
tice of its plan to promote the porters and invited dis-
cussion of “any phase of this situation.” Nevertheless,
the Union failed to prosecute its right to engage in such
discussion but contented itself by protesting the con-
templated promotions in its letter dated February 10
and by subsequently filing a refusal-to-bargain charge.
Id. at 1055–1056 (emphasis added). The Board’s conclu-
sion in American Buslines and other cases is clear: the fil-
ing of a refusal-to-bargain charge is not a request for bar-

Air and directly contradicts the Board’s long-held position that filing a
charge does not make up for a union’s failure to clearly indicate a de-
sire to bargain. The Board has never cited Trucking Water Air for the
proposition asserted by the judge in this case, nor have I found any
other Board decision that supports such a proposition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
gaining, nor does it excuse a union’s failure to make such a
request.
There is a separate, equally important policy reason
that should prevent the Board from treating a refusal-to-
bargain charge as equivalent to a request for bargaining.
The Act is intended to foster good-faith collective bar-
gaining without parties unnecessarily resorting to Board
litigation. The Board aids in that process by discharging
its responsibility to keep the applicable “rules of the
road” clear. See First National Maintenance Corp. v.
NLRB, 452 U.S. 666, 678–679 (1981) (emphasizing the
need for “certainty beforehand” regarding bargaining
obligations so that a party “may proceed to reach deci-
sions without fear of later evaluations labeling its con-
duct an unfair labor practice”). The decades-old re-
quirement of a request for bargaining is one of several
principles that permit parties to address bargaining obli-
gations in an orderly manner. As noted above, employ-
ers planning changes in mandatory bargaining subjects
must normally provide notice to the union and the oppor-
tunity for bargaining. Katz, supra. In response, the un-
ion has “the burden of demanding bargaining if it
wishe[s] to preserve its rights to bargain.” U.S. Lingerie,
170 NLRB at 751–752. Employers and unions then have
a “mutual obligation,” imposed by Sections 8(a)(5) and
8(b)(3), respectively, “to meet at reasonable times and
confer in good faith” regarding the contemplated chang-
es. See supra fn. 1.
Congress never intended a refusal-to-bargain charge to
commence the process by which parties satisfy their bar-
gaining obligations under the Act. An unfair labor prac-
tice charge enlists formidable Board investigative, prose-
cutorial, adjudicative, and remedial powers, the deploy-
ment of which Congress authorized only when a person
allegedly “has engaged in or is engaging in any . . . un-
fair labor practice”7—namely, under Sections 8(a)(5) or
8(b)(3), a refusal to bargain. Without a sufficient request
for bargaining, an employer cannot reasonably be
deemed to have refused to bargain. Nonetheless, my
colleagues, like the judge, give a refusal-to-bargain
charge a different purpose by permitting a union that
desires to challenge announced plans to file a refusal-to-
bargain charge as an alternative to requesting bargaining.
This is not the way Congress intended the Act to work.
“It is implicit in the entire structure of the Act that the
Board acts to oversee and referee the process of collec-

7 Sec. 10(b) (emphasis added). In relevant part, Sec. 10(b) states:
“Whenever it is charged that any person has engaged in or is engaging
in any such unfair labor practice, the Board, or any agent or agency
designated by the Board for such purposes, shall have power to issue
and cause to be served upon such person a complaint stating the charg-
es in that respect.”
tive bargaining, leaving the results of the contest to the
bargaining strength of the parties.” H.K. Porter Co. v.
NLRB, 387 U.S. 99, 107–108 (1970). I believe my col-
leagues’ decision is inconsistent with this principle.
For the above reasons, I would find that on the record
before us here, the General Counsel has not satisfied his
burden to prove that the Union requested bargaining after
learning of the Respondent’s planned change to the
ESRP, and absent such a request, the Respondent cannot
be found to have violated Section 8(a)(5). More general-
ly, I disagree with my colleagues’ adoption of the judge’s
finding that the refusal-to-bargain charge excused the
Union’s failure to request bargaining and triggered an
obligation for the Respondent to engage in bargaining
while the charge was pending. Accordingly, as to these
issues, I respectfully dissent.
Dated, Washington, D.C. May 21, 2015
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 fail and refuse to bargain collectively
and in good faith with the International Brotherhood of
Electrical Workers, Local Union No. 272, AFL–CIO,
CLC as the exclusive collective-bargaining representa-
tive of our employees in the following appropriate unit:
All production and maintenance employees, including
Control Room Operators, employees in the Stores,
Electrical, Maintenance, Operations, I & T, and Yard
Departments at the Bruce Mansfield Plant, excluding
OHIO EDISON CO. 7
technicians, office clerical employees and guards, other
professional employees and supervisors as defined in
the National Labor Relations Act, as amended.
WE WILL NOT unilaterally change the length of time
you must serve to be eligible for awards under the Em-
ployee Service Recognition Policy (ESRP).
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 your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain collectively with
IBEW, Local 272 as the exclusive collective-bargaining
representative of our employees in the appropriate unit.
WE WILL rescind the change to the ESRP that was uni-
laterally implemented on January 1, 2013, and restore the
5-year length of service requirement that existed before
the change was implemented.
WE WILL make whole all employees in the bargaining
unit who were not granted a service award because of the
unlawful change made to the ESRP on January 1, 2013.
WE WILL on request, bargain with IBEW, Local 272 as
the exclusive representative of the employees in the ap-
propriate unit concerning any change to the ESRP.
FIRSTENERGY GENERATION CORP.
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-099595 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.
Aaron Sukert, Esq., for the General Counsel.
Nick Nykulak, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was
tried in Cleveland, Ohio, on September 17, 2013. The Interna-
tional Brotherhood of Electrical Workers, Local Union No.
272, AFL–CIO, CLC (Local 272) filed the charge in Case 06–
CA–092312 on October 30, 2012, and an amended charge on
November 20, 2012, against FirstEnergy Corp.1 The Interna-
tional Brotherhood of Electrical Workers, Local Union No.
1194, AFL–CIO, CLC (Local 1194) filed the charge in Case
08–CA–099595 on March 5, 2013, against FirstEnergy Corp.
and an amended charge on June 21, 2013, against Ohio Edison
Co, a wholly owned subsidiary of FirstEnergy Corp. On June
28, 2013, the Acting General Counsel2 issued an order consoli-
dating cases, consolidated complaint, and notice of hearing in
these cases. On August 30, 2013, the Acting General Counsel
issued an amended consolidated complaint and notice of hear-
ing (the complaint). On September 3, 2013, the Acting General
Counsel issued an amendment to the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Ohio Edison Co., a wholly owned subsidiary of FirstEn-
ergy Corp. (Respondent Ohio Edison) is an Ohio corporation
and wholly owned subsidiary of FirstEnergy Corp. with head-
quarters located in Akron, Ohio, and is engaged as a public
utility in the purchase, production, transmission, and retail sale
of electricity. Annually, in the course and conduct of its busi-
ness described above, Respondent Ohio Edison derives annual
gross revenue in excess of $250,000 and purchases and receives
goods and materials valued in excess of $50,000 directly from
points located outside the State of Ohio.
FirstEnergy Generation Corp. (Respondent FirstEnergy Gen-
eration) is an Ohio corporation and a subsidiary of FirstEnergy
Corp. with an office and place of business in Shippingport,
Pennsylvania, and is engaged as a public utility in the genera-
tion and distribution of electricity. Annually, in the course and
conduct of its business described above, Respondent FirstEner-
gy Generation derives gross annual revenue in excess of
$250,000 and purchases and receives at its Shippingport, Penn-
sylvania facility goods and materials valued in excess of
$50,000 directly from points outside the Commonwealth of
Pennsylvania.
Respondent Ohio Edison and Respondent FirstEnergy Gen-
eration admit, and I find, that they are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that Local 1194 and Local 272 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that since on or about January 1, 2013,
the Respondents unilaterally changed, from every 5 years to
every 10 years, the length of service employees must serve to
be eligible to receive employee service awards in violation of
Section 8(a)(5) and (1) of the Act.

1 All dates are in 2012 unless otherwise indicated.
2 I have taken administrative notice of the fact that on October 29,
2013, the United States Senate confirmed President Obama's nomina-
tion of Richard F. Griffin Jr. to be the Board's General Counsel and that
he was sworn in on November 4, 2013.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Background
FirstEnergy Corp., the parent company of both Respondent
Ohio Edison and Respondent FirstEnergy Generation (collec-
tively the Respondents), was formed in 1997 as a result of the
merger between Cleveland Electric Illuminating, Toledo Edi-
son, Ohio Edison, and Pennsylvania Power. FirstEnergy cur-
rently employs approximately 16,000 employees and has a
collective-bargaining relationship with approximately 23 un-
ions.
Respondent FirstEnergy Generation and Local 272 are par-
ties to a collective-bargaining agreement effective by its terms
from December 5, 2009, until February 15, 2013, covering
certain employees at Respondent FirstEnergy Generation’s D.
Bruce Mansfield facility in Shippingport, Pennsylvania. On
August 16, 2012, the parties entered into a “stipulation of set-
tlement” that extended that agreement with certain modifica-
tions through February 15, 2014. The employees in the bar-
gaining unit covered by this agreement have been represented
by Local 272 since 1978. There are approximately 290 em-
ployees in the bargaining unit.
Respondent Ohio Edison and Local 1194 were parties to a
collective-bargaining agreement effective from September 3,
2008, until September 3, 2013. On September 6, 2013, the
parties entered into a tentative agreement effective from Sep-
tember 3, 2013, through September 2, 2016, that at the time of
the hearing was undergoing a ratification vote. The bargaining
unit is composed of transmission and distribution employees in
several geographic locations in Ohio. The bargaining unit em-
ployees have been represented by Local 1194 since 1946.
There are approximately 275 employees in the bargaining unit.
The Employee Recognition Award Policy
Respondent Ohio Edison and Pennsylvania Power, the pre-
decessor to Respondent First Energy Generation, utilized an
employee recognition award program applying to the FirstEn-
ergy Generation unit and the Ohio Edison unit since at least
1973. The purpose of the policy is “To acknowledge employees
for their service with the company.” (Jt Exh. 6.) Pursuant to
this policy, in the 1970s to the late 1980s, full-time employees
received a tie tack or charm bracelet on their 1-year anniversary
date of employment. During this same period, on an employ-
ee’s 5-year anniversary, he or she would receive a tie tack or
charm bracelet. The 5-year service recognition awards would
increase in value based on length of service. Employees were
also invited to a 5-year service recognition awards dinner after
every 5 years of service.
In 1989, Ohio Edison and Pennsylvania Power changed their
employee recognition policy to include an award catalog. Em-
ployees were permitted to choose an item from an award cata-
log on their 5-year anniversary. There were different levels of
catalogs to celebrate different anniversaries and the awards in
the catalog increased in value based on the number of years an
eligible employee had been employed.
After it was formed pursuant to the merger in 1997, FirstEn-
ergy continued the employee service recognition policy of its
predecessors. The FirstEnergy employee service recognition
award policy applies to all of the approximately 16,000 indi-
viduals employed by FirstEnergy, including supervisors. The
employee service recognition policy is typically not incorpo-
rated into collective-bargaining agreements. The exception is
that the contract between FirstEnergy Nuclear Operating Co., a
subsidiary of FirstEnergy and IBEW, Local 29, effective from
2008 through 2011, and an extension of that agreement effec-
tive from October 1, 2011, through September 30, 2014, pro-
vides for the granting of service recognition awards to members
of Local 29 at 5-year intervals. The most recent contracts and
extensions between the Respondents and Local 272 and Local
1194 do not contain a reference to the employee service recog-
nition policy, nor did any of the preceding contacts between
those two Unions and the Respondents and the Respondents’
predecessors contain such language. In fact, the parties to this
case have never negotiated regarding the employee service
recognition policy. In addition, the employee service recogni-
tion policy is not listed in the employee compensation and ben-
efits handbook utilized by the Respondents.
The employee service recognition policy is set forth in doc-
uments entitled “Human Resources Letter 307” posted on
FirstEnergy’s human resources website. The human resources
letters constitute the formal policies of all FirstEnergy subsidi-
aries. It is undisputed that human resources 307 letters applied
to employees represented by both Local 1194 and Local 272. In
a human resources letter 307 dated January 1, 1999 (Jt. Exh. 7),
eligibility was changed to include part-time employees. This
letter stated that employees would be recognized for their ser-
vice at 5-year intervals, thus eliminating the recognition of an
employee’s 1-year anniversary. The letter also indicated that
awards would be shipped directly to the human resources repre-
sentative at each location who would be responsible for presen-
tation of the award to the employee. Finally, this letter con-
tained the following language which was maintained in all sub-
sequent human resources 307 letters:
This personnel policy is not a binding contract, but a set of
guidelines for implementation. The Company expressly re-
serves the right to modify any of the provisions of this policy
at any time and without notice.
On February 1, 2002, a new human resources 307 letter (Jt.
Exh. 8) issued superseding the 1999 policy. The 2002 policy
indicated, for the first time, that employees had the option of
ordering their award from the website of the third-party vendor,
Pat Geary and Associates, that provided the catalogs from
which employees could select an award. The Pat Geary and
Associates website was accessible via FirstEnergy’s internal
website. Awards could be selected from an individual’s current
service level or from the next lower level.
In 2004, FirstEnergy changed vendors for the gift catalogs
from Pat Geary and Associates to C. A. Short. For the first
time, employees were restricted to selecting awards from the
catalog that corresponded to their award level. Previously,
employees were permitted to select an award from the catalog
at their anniversary level or a lower one. On January 1, 2004,
the 2002 employee recognition reward policy was superseded
by a new human resources letter 307 (Jt. Exh 9). Under the
2004 policy, the awards were delivered to the employee’s home
and not to the employee’s supervisor for presentation. The
2004 policy also announced that employees would receive a
OHIO EDISON CO. 9
“service award package” that included a certificate of apprecia-
tion and a letter from FirstEnergy’s CEO. The 2004 policy also
indicated that employees who failed to order an award from the
catalog would not receive one. Previously, if an employee did
not select an award one would be selected for him or her.
On January 1, 2009, FirstEnergy issued a human resources
letter 307 (Jt. Exh. 10) that superseded the 2004 policy. Under
the 2009 policy, the anniversary of employees who had a break
in service and were rehired after January 1, 2005, would be
measured by their rehire date, and not in accordance with the
pension plan’s break in service rules. Employees hired prior to
January 1, 2005, would continue to have their anniversaries
determined by the pension plan’s break in service rules. In a
human resources policy letter dated February 28, 2011 (Jt. Exh.
11), FirstEnergy only changed the Internet website for employ-
ee access to the catalog.
The record establishes that since C. A. Short began serving
as the third-party vendor the value of the employee service
award increased in a uniform manner with an employee’s
length of service. After 5 years the value of the award is $35,
after 10 years it is $69.50, after 15 years it is $75, and after 20
years it is $101. The value of the awards continues to increase
in 5-year increments up to a 50-year anniversary award, which
is worth $314.50. (Jt. Exh. 25.)
A sample 5 and 10-year anniversary award package, includ-
ing the corresponding award catalog, was admitted into evi-
dence at the hearing (Jt. Exhs.17 and 18, respectively). Each
anniversary level of a gift catalog contains between 90 and 100
items, broken down into separate categories such as jewelry,
electronics, cookware, and watches. There are 9 or 10 items
contained in each category at every anniversary level. The
catalogs are generated by C. A. Short around the time of an
employee’s anniversary date. The items contained in the cata-
logs are constantly changing as out-of-stock inventory is re-
placed with new items and new models of items replace older
models. All the items contained in a catalog are limited to tan-
gible items such as clocks, jewelry, and cookware. Employees
do not receive cash or gift cards under the service recognition
policy. The value of an award is not reported on an employee’s
W-2 form.
The Respondents’ September 2012 Communications with Lo-
cal 272 and Local 1194 and the Implementation of a Change in
the Employee Service Recognition Policy on January 1, 2013
On September 18, 2012, FirstEnergy representatives contact-
ed various union representatives including Herman Marshman,
Local 272’s president, and David Childers, Local 1194’s busi-
ness manager, to inform them of upcoming changes to certain
FirstEnergy employment policies, including the employee ser-
vice recognition policy. The ultimate decision to change these
policies, including the employee recognition award policy, was
made by Tony Alexander, FirstEnergy’s CEO. In order to
maintain uniformity in the communications with the various
unions, scripts were prepared for the labor representatives to
use when speaking to the union representatives.
On September 18, Eileen McNamara, FirstEnergy’s director
of labor relations, called Marshman and informed him that
various changes in employment policies would be announced to
employees the next day. According to Marshman, McNamara
told him that FirstEnergy would be making changes to various
employment policies including the employee service recogni-
tion policy, educational reimbursement, death benefits, and
long-term disability. Specifically with respect to the employee
service recognition program, Marshman testified that McNama-
ra told him that the change to the employee service recognition
award program would be from the then current 5-year service
award to a 10-year service award and that the change would
take place in January 2013. Marshman further testified that he
told McNamara that the changes in the policies that she had
informed him of were subject to negotiations and that he ex-
pressed concern about FirstEnergy making these proposed
changes without negotiations. According to Marshman,
McNamara replied that she understood his position but that
FirstEnergy did not agree with him on this point. Marshman
testified that he stated that the changes were subject to negotia-
tions and that FirstEnergy was forcing him to file an unfair
labor practice charge, which he did not want to do.
McNamara testified that she utilized the script (R. Exh. 1)
that had been prepared to discuss the upcoming changes to
some employment practices at FirstEnergy when she spoke to
Marshman on September 18. According to McNamara, she did
not deviate from the script during her phone conversation.
With respect to employee service awards the script indicates:
“Will be given for each ten years of service rather than each 5
years.” As a closing statement the script indicates: “As you can
tell we are making changes that we believe will make a differ-
ence, but we are facing long-term challenges. These changes
will take place at the beginning of the year, January 1, 2013.
Should you have any concerns or questions please do not hesi-
tate to call.” McNamara testified that Marshman did not state
that the changes she discussed with him were subject to negoti-
ations nor did he request to bargain over any of the changes that
she had relayed to him, including the changes to the employee
service recognition policy. McNamara specifically denied that
she said that FirstEnergy had no obligation to negotiate over
any of the proposed changes. McNamara further testified that
Marshman said in response to the changes in policies that she
had announced, “Oh no you don’t, you know I have to come to
Akron on this.” Marshman added that he would also have to go
to the Board. (Tr. 131.) McNamara testified that she under-
stood Marshman’s reference to going to Akron to be that he
wanted to complain to FirstEnergy CEO Alexander. McNama-
ra further testified that union representatives frequently spoke
to Alexander about employment issues that arose.
McNamara testified that her superior, Chuck Cookson, asked
her to update him on the conversations that she had with the
various union representatives that she had spoken to. Accord-
ingly, on September 19, McNamara sent the following email to
Cookson:
Chuck-heard back from Herman and Local 50. Local 50 is fi-
ne. Herman is not happy (although very polite and made nice
jokes). He said “on (sic) no you don’t! Again? Now you know
I have to file a board charge honey” and now he “has to come
to Akron for this one.” He was very nice about it though. He
was actually quite funny-but I’m sure he’s serious about the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
charge and coming to Akron. I told him to stop by my office
if he makes it Akron-he says, “oh yes, he is coming to Akron
for sure.” [R. Exh. 4.]
To the extent that the testimony of Marshman and McNama-
ra conflicts, I credit McNamara. McNamara’s demeanor while
testifying exhibited certainty. In addition, her testimony was
consistent with both the script that was prepared prior to her
discussion with Marshman and with the email she sent to
Cookson following her conversation with him. I find particu-
larly persuasive the email she sent to Cookson as I doubt she
would have included such detail regarding her conversation
with Marshman unless it was true. On the other hand, I do not
find Marshman’s testimony regarding their phone conversation
to be sufficiently reliable to base findings on it. His testimony
was not particularly detailed and his demeanor while testifying
was not impressive.
According to the uncontroverted testimony of Childers, Lo-
cal 1194’s business agent, on September 18, 2012, John
Rossero, a FirstEnergy labor relations representative, called
him to inform him of upcoming changes to employee benefits,
including the employee service recognition policy. Childers
was informed by Rossero, that FirstEnergy was going to change
the employee service recognition policy and that employees
would be rewarded at 10-year intervals as opposed to 5-year
intervals. Childers admitted that he did not request to bargain
over the change to the employee service recognition policy that
Rossero had announced to him. When Childers was asked at
the hearing why he did not do so, he replied, “The changes
were not going to take place until January so I felt there was
time, time to review what we were being told and how to re-
spond to that.” (Tr. 102–103.) The record establishes, howev-
er, that Local 1194 never requested to bargain over the change
to the employee recognition policy prior to its implementation
on January 1, 2013, or thereafter.
On September 19, the Respondents distributed to their em-
ployees and to Locals 272 and 1194, a copy of “FirstEnergy
Employee Update Special Issue” which included changes in
employee benefits that would be taking place effective January
1, 2013, including changes to the employee service recognition
policy. (Jt. Exh. 12.) In this connection, this document stated
“Employee Service Awards will be given for every 10 years of
service rather than every 5 years of service.”
The employee update included a message from FirstEnergy’s
CEO, Alexander, which indicated that because FirstEnergy
stock had lost 6.45 percent in value, certain staff reductions as
well as changes to employee benefits were being instituted. At
the hearing, Stacy Silvis, a FirstEnergy benefits manager, testi-
fied that FirstEnergy and its subsidiaries would save approxi-
mately $200,000 per year corporatewide by changing the em-
ployee recognition service policy from 5 to 10 years.
On September 27, 2012, McNamara sent to Marshman a let-
ter which stated in relevant part: “On September 19, 2012, the
following additional benefit changes were announced, effective
January 1, 2013:[ . . . ] Employee Service Awards-Will be
given for each 10 years of service rather than each 5 years. If
you have any questions or concerns regarding the foregoing,
please do not hesitate to contact me.” (Jt. Exh. 15) On the
same date, an identical letter was sent by Rossero to Childers
(Jt. Exh. 14).
On October 30, 2012, Local 272 filed an unfair labor prac-
tice charge in Case 06–CA–092312 alleging, in part, that Re-
spondent FirstEnergy Generation violated Section 8(a)(5) and
(1) by making a unilateral change in employee service awards
on or about September 27, 2012. On November 20, 2012, Lo-
cal 272 filed an amended charge that contained the same allega-
tion regarding the employee service award program.
On January 1, 2013, the Respondents implemented a new
human resources letter 307 (Jt. Exh. 16) which changed the
employee service recognition program to reflect that awards
would be received at 10-year anniversary intervals. The effect
of this was obviously to change the policy of granting an award
at a 5-year anniversary date to a 10-year anniversary date. This
change applied to all employees and supervisors throughout
FirstEnergy and its subsidiaries, except for employees repre-
sented by IBEW Local 29. Pursuant to their collective-
bargaining agreement, those employees would continue to re-
ceive awards at the 5-year anniversary date. As a result of the
January 1, 2013 changes to the employee service recognition
policy, approximately 89 employees represented by Locals 272
and 1194 did not have their anniversaries recognized, who oth-
erwise would have received a recognition award at a 5-year
anniversary interval.
On March 4, 2013, Local 1194 filed the charge in Case 08–
CA–099595 alleging, in part, that Respondent Ohio Edison
violated Section 8(a)(5) and (1) by unilaterally announcing
changes to the employee service award program on September
27, 2012, that became effective on January 1, 2013.
Analysis
Whether the Employee Service Recognition Policy is a Manda-
tory Subject of Bargaining
The General Counsel contends that the Respondents’ em-
ployee service recognition policy is a condition of employment
and therefore is a mandatory subject over which the Respond-
ents had an obligation to bargain. The Respondents contend
that the items provided to the employees through the employee
service recognition policy are gifts and therefore not a manda-
tory subject of bargaining over which they are required to bar-
gain.
Section 8(d) of the Act requires that an employer bargain
with a union representing its employees with respect to “wages,
hours, and other terms and conditions of employment.” It is
clear that an employer has a duty to bargain with the union over
mandatory subjects of bargaining and that its failure to do so
violates Section 8(a)(5) and (1) of the Act. First National
Maintenance Corp. v. NLRB, 452 U.S. 666, 679–682 (1981);
NLRB v. Katz, 369 U.S. 736, 743 (1962). In Postal Service,
302 NLRB 767, 776 (1991), the Board noted that it “has broad-
ly construed the term ‘wages’ in Section 8(d) of the Act to in-
clude “emoluments of value . . . which may accrue to employ-
ees out of the employment relationship.” Central Illinois Public
Service Co., 139 NLRB 1407 (1962). In other words the term
“wages” does not refer to a sum of money given for actual
hours worked; rather it also encompasses numerous other forms
of compensation.”
OHIO EDISON CO. 11
The Board has found that employee award programs which
are based upon length of service are mandatory subjects of
bargaining over which an employer has an obligation to bar-
gain. In Conval-Ohio, Inc., 202 NLRB 85 (1973), the employer
had a service award program which provided for the granting of
a gold watch to employees who attain 25 years of service and
granting fixed amount cash awards for employees who attained
30, 35, 40, 45, and 50 years of service. The complaint alleged
only that the unilateral discontinuance of the cash awards vio-
lated Section 8(a)(5) and (1) as the union did not raise a chal-
lenge to the discontinuance of the watch award. Id. at 88.
The Board found that the cash service award program for
longevity of service was a mandatory subject of bargaining and
therefore the employer violated Section 8(a)(5) and (1) by uni-
laterally discontinuing the program. In so finding, the Board
adopted the following rationale of the administrative law judge:
The cash service awards here involved are obviously not in
the same genre as a Christmas bonus as they are not in any
sense gratuities because they are essentially awards or pay-
ments for staying with [the] Company for stated long periods
of time. It is significant that they are not even called bonuses.
They are designated and known as employees’ service
awards. They are, in other words, awards for longevity of ser-
vice. They are the thus definitely and positively tied into the
working service of the employee and as such are part of an
employee’s compensation for continuous service for periods
in excess of a quarter of a century. The cash awards are fixed
in amount, depending only upon length of service and accord-
ingly do not vary from time to time . . . . Id. at 92.
In Longhorn Machine Works, 205 NLRB 685, 690 (1973),
the Board found that a service reward program that involved
the tangible item of a watch and not a cash award also consti-
tutes a mandatory subject of bargaining. In that case, the Board
found that an employer’s unilateral discontinuance of its estab-
lished practice of awarding gold watches to employees on their
10-year anniversary date of employment violated Section
8(a)(5) and (1).
The Board’s decisions in Conval-Ohio and Longhorn Ma-
chine Works, supra, are consistent with the rationale utilized by
the Board in later cases in determining whether a matter, such
as the employee recognition award policy involved here, is a
mandatory subject of bargaining or a gift, over which the em-
ployer has no obligation to bargain.
In Benchmark Industries, 270 NLRB 22 (1984), affd. Amal-
gamated Clothing v. NLRB, 760 F.267 (5th Cir. 1985), the
Board found that the employer did not violate Section 8(a)(5)
and (1) by unilaterally discontinuing its practice of giving em-
ployees Christmas hams and dinners. The Board found that
those items were gifts because they “had been given to all em-
ployees regardless of their work performance, earnings, seniori-
ty, production, or other employment related factors.” 270
NLRB at 22.
In North American Pipe Corp., 347 NLRB 836 (2006), the
same employment related factors were utilized by the Board in
considering whether the employer violated Section 8(a)(5) and
(1) by granting stock in the employer’s initial public stock of-
fering to unit employees without notifying and giving the union
an opportunity to bargain. The Board found that the stock
award was a gift and not a mandatory subject of bargaining. In
so finding, the Board noted the following:
The award was not tied to employee renumeration. The size
of the award was established without regard to any employ-
ment-related factors, including work performance, wages,
hours worked, seniority, or productivity. In fact, the value of
the award, when announced and when vested, was determined
solely by market demand for equity shares in Westlake. Fur-
ther, all eligible employees at each of Westlake’s facilities in-
cluding the Respondent’s Van Buren plant, received the same
amount of stock whether they were the highest paid managers
or the lowest paid hourly employees. Finally, the award was
related to a one-time event-the parent corporation’s IPO-with
no promise or prospect of repetition. [Id. at 838]
In North American Pipe Corp., 347 at 839, the Board further
found that the stock award at issue in that case was not tied to
an employee’s seniority. In this regard, the Board noted that in
order to establish a link between an award and seniority, the
seniority of employees must either be (1) proportionally related
to the amount received, see, e.g., Freedom WLNE-TV, Inc., 278
NLRB 1293, 1296–1297 (1986) (where the formula was based
in part on years of service); and Electric Steam Radiator Corp.,
136 NLRB 923 (1962), enfd. 321 F.2d 733 (6th Cir. 1963)
(where the bonus amount was based on length of service) or (2)
an award must be given in recognition of an employee obtain-
ing a specific level of seniority, see United Shoe Machinery
Corp., 96 NLRB 1309, 1326–1327 (1951) (where a stock
award was authorized to “recognize long continued service by
employees in a substantial way.”)
Finally, In North American Pipe Corp., 347 at 839, the
Board noted that there was no relationship between the em-
ployees’ relative seniority in the amounts they received as all
eligible employees received the same amount of stock. The
Board also noted that the stock was not given to employees in
recognition of their attaining any particular level of seniority.
Accordingly, the Board concluded that the employer’s unilat-
eral award of stock to unit employees did not violate Section
8(a)(5) and (1) of the Act.
In Phelps Dodge Mining Co., 308 NLRB 985, 985 fn. 3,
999–1001 (1992), the Board found that “appreciation pay-
ments” given to employees were more than token gifts. In this
regard the Board found that the payments constituted signifi-
cant economic benefits to eligible employees based on the em-
ployment related factors of wages and hours worked.
In the instant case, the employee service recognition policy
is tied to the employment-related factor of years of employee
service. It is also a recurring program that awards employees
regularly when they attain certain anniversary dates of em-
ployment with the Respondents. The awards have a fixed
amount of value depending upon the length of service of an
employee. Thus, the value of the award selected by an employ-
ee is tied to his or her length of service. Accordingly, I find that
the Respondents’ employee service recognition policy consti-
tutes a mandatory subject of bargaining and that the Board’s
decisions in Phelps Dodge Mining Co., Conval-Ohio, and
Longhorn Machine Works, support this conclusion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
I find the Board’s decision in Benchmark Industries, supra,
to be distinguishable since the dinners and hams distributed in
that case were given indiscriminately to employees without
regard to employment-related factors. I also find North Ameri-
can Pipe Corp., to be distinguishable. There, the stock granted
to employees was on a one-time basis without any expectation
of repetition. In addition, the award of stock was not sufficient-
ly tied to any employment related factor so as to make it a
bargainable matter.
I finally consider whether the change in the employee service
recognition policy was substantial and material. As a result of
the January 1, 2013 change in the policy, employees were given
awards at a 10-year anniversary as opposed to a 5-year anniver-
sary. Because of that change approximately 89 employees
from the Ohio Edison and FirstEnergy Generation units did not
receive awards in 2013. As noted previously, the value of the
items awarded ranged from approximately $35 to $315. I find
the change instituted by the Respondents is substantial and
material under the standards utilized by the Board. Bell Atlantic
Corp., 332 NLRB 1592, 1595 (2000); Millard Processing Ser-
vices, 310 NLRB 421, 424–425 (1993). Because the Respond-
ents instituted a substantial and material change in a mandatory
subject of bargaining, they were required to give notice to their
respective Unions of the change to the employee service recog-
nition policy and give them an opportunity to bargain over it.
Whether the Respondents Presented Locals 272 and 1194 with
a Fait Accompli regarding the Changes to the Employee Ser-
vice Recognition Policy
The General Counsel contends that the Respondents’ com-
munications to the Unions reflected the predetermined nature of
the change to the employee service recognition policy and thus
the Unions were presented with a fait accompli. The Respond-
ents contend that the Unions were not presented with a fait
accompli but rather were given sufficient notice of the change
to the employee service recognition policy and an opportunity
to bargain.
As noted above, both Marshman and Childers were called by
McNamara and Rossero, respectively, on September 18 and
informed that the Respondents would be instituting a change to
the employee service recognition policy on January 1, 2013.
Consistent with the scripts used by the Respondents’ represent-
atives for these calls, both union representatives were also told,
“Should you have any concerns or questions please do not hesi-
tate to call.” On September 19 both Unions received the em-
ployee update, again informing them of the change to the em-
ployee service recognition policy the Respondents intended to
institute on January 1, 2013. Finally, on September 27 both
Unions also received letters again advising them of change to
the employee service recognition policy that would be institut-
ed on January 1, 2013. The letters also included the language
“If you have any questions or concerns regarding the foregoing,
please do not hesitate to contact me.”
The standards utilized by the Board in determining whether a
union is presented with a fait accompli are set forth in Ciba-
Geigy Pharmaceutical Division, 264 NLRB 1013, 1017 (1982):
The Board has long recognized that, where a union received
timely notice that the employer intends to change a condition
of employment, it must properly request that the employer
bargain over the matter. To be timely, the notice must be giv-
en sufficiently in advance of the actual implementation of the
change to allow a reasonable opportunity to bargain. Howev-
er, if the notice is too short a time before the implementation
or because the employer has no intention of changing its
mind, then the notice is nothing more than informing the un-
ion of a fait accompli. [Footnotes omitted.]
In the instant case, both Unions were advised by the Re-
spondents that the employee service recognition policy would
be changed approximately 3½ months before the effective date
of the change. On two occasions both Unions were specifically
advised that if they had any questions or concerns they should
not hesitate to call the Respondents’ representatives. Under
these circumstances, I find that the Respondents did not present
the Unions with a fait accompli. Rather, both Unions were giv-
en notice long in advance of the Respondents’ intended change
to the employee service recognition policy. The Respondents’
representatives invited the representatives of both Local 272
and Local 1194 to contact them if they had any questions or
concerns regarding the new policy. Importantly, the Respond-
ents took no action to implement the new policy prior to Janu-
ary 1, 2013. Under these circumstances, I find that the Unions
were not presented with a fait accompli under the standards set
forth above.
The Board’s decision in WPIX, Inc., 299 NLRB 525 (1990),
relied on by the Respondents, is supportive of this conclusion.
In that case, on December 8, 1988, the employer notified its
employees that effective January 1, 1989, the mileage reim-
bursement rate would increase from 22-1/2 cents per mile to
$.24 per mile. While the union was not specifically notified by
the employer of the change in the reimbursement rate, a union
representative, by chance, noticed a memorandum to employees
notifying them of the January 1, 1989 change in the reim-
bursement rate shortly before Christmas in 1988. The union
never requested bargaining over the change in the mileage re-
imbursement rate prior to its implementation. Under these
circumstances, the Board concluded that the union had failed to
request bargaining over a change in working conditions of
which it had actual notice and there was insufficient evidence
to establish that a request to bargain would be futile. Accord-
ingly, the Board concluded the employer did not violate Section
8(a)(5) and (1) when it implemented the proposed change in the
mileage rate
In reaching the conclusion that the Unions in the instant case
were not presented with a fait accompli, I find the cases relied
on by the General Counsel to be distinguishable. In Ciba-
Ceigy, supra, on April 21, 1978, the employer notified the un-
ion of changes it was going to institute changes in the attend-
ance policy effective on May 1, 1978. The union requested
time to study the new policy and also requested the statistical
information relied on by the employer as the basis for its pro-
posed changes. At a meeting held on April 27, the union had
not yet received the information requested but indicated that it
would file a grievance over certain provisions of the policy. In
neither meeting, however, did the union specifically request
bargaining. However, on April 25, 26, and 27, the employer
OHIO EDISON CO. 13
mailed letters to employees whom it had targeted as chronic
absentees which contained warnings and set up counseling
sections. Under these circumstances, particularly since the new
policy had already begun to be implemented before the April
27 meeting, the Board found that the union had been presented
with a fait accompli regarding the implementation of the new
attendance policy. Accordingly, the Board found that the em-
ployer violated Section 8(a)(5) and (1).
In Pontiac Osteopathic Hospital, 336 NLRB 1021 (2001),
the employer sent a letter to the union advising it that it would
be changing its paid time off benefits and procedures effective
on January 2, 2000, that would affect both unrepresented em-
ployees and those represented by the union. In finding that the
employer’s notice to the union amounted to a fait accompli the
Board found that the employer’s decision to have a uniform
policy applicable to all employees had been made prior to the
December 8, 1999 notice to the union. The Board also found
the language of the memo indicating it was the intention of the
employer to “unilaterally” implement the revisions to be indica-
tive of the fact that it was a final decision about which it had no
intention to bargain. In the instant case, however, it is undisput-
ed that IBEW Local 29 and FirstEnergy Nuclear Operating
Company, another subsidiary of FirstEnergy, are parties to a
collective-bargaining agreement that provides for employee
recognition awards on an employee’s 5-year anniversary date.
While the record does not contain evidence as to the circum-
stances under which that provision was included in the collec-
tive-bargaining agreement, obviously, at some point, a subsidi-
ary of FirstEnergy had engaged in bargaining over the employ-
ee service recognition program.
On the basis of the foregoing, I find there is insufficient evi-
dence in the instant case to establish that the Respondents had
no intention to bargain, under any circumstances, over the pro-
posed change to the employee service recognition policy.
Whether Respondent FirstEnergy Generation Violated Section
8(a)(5) and (1) of the Act by Unilaterally Implementing a New
Employee Service Recognition Policy Regarding the Unit Rep-
resented by Local 272
As noted above, I found that Local 272 was not presented
with a fait accompli regarding the change in the employee ser-
vice recognition policy that Respondent FirstEnergy Generation
implemented at its Shippingport, Pennsylvania facility on Janu-
ary 1, 2013. I turn now to the issue of whether Local 272 made
a valid request to bargain over those changes.
The credited testimony establishes that when McNamara
called Marshman on September 18, and notified him that
FirstEnergy was going to be implementing a change to the em-
ployee service recognition policy on January 1, 2013,
Marshman replied, “[O]h no you don’t” and that he would have
to “file a Board charge.” Marshman added that “he has to come
to Akron for this one.” When McNamara told him to stop by
her office if he needed to come to Akron, Marshman replied
that he was “coming to Akron for sure.” McNamara testified
that she understood Marshman’s reference about coming to
Akron to be that he wanted to complain to Tony Alexander,
First Energy’s CEO about this issue. McNamara’s email that
she sent to her superior, Cookson, the following day indicates
that she was sure that Marshman was serious about filing a
charge and coming to Akron.
I find Marshman’s statements to McNamara objecting to the
change in the employee service recognition policy, that he was
going to file a charge over the issue and that he was “coming to
Akron on this one” constituted a request to bargain over Re-
spondent First Energy Generation’s announced change to the
policy. The Board has long held that a request for bargaining
“need take no special form, so long as there is a clear commu-
nication of meaning.” Armour & Co., 280 NLRB 824, 828
(1986). See also Sunoco Inc., 349 NLRB 240, 245 (2007);
MSK Corp., 341 NLRB 43, 45 (2004).
In Indian River Memorial Hospital, 340 NLRB 467, 468–
469 (2003), when the union discovered that the employer was
going to institute a change in the hours of work for unit em-
ployees, it faxed a letter to the employer indicating that the
change was a mandatory subject of bargaining. The letter fur-
ther indicated that unless the employer rescinded the notice to
employees advising them of the change the union would file an
unfair labor practice charge. The union’s letter did not specifi-
cally request bargaining. The Board found, however, applying
the principles set forth above, found that there was no doubt
that the union’s letter constituted a bargaining request.
In the instant case, although Marshman did not specifically
say to McNamara, “I want to bargain with you about this
change” the statements he made to her leave little doubt, in my
view, that he conveyed to her that he was interested in bargain-
ing about the change to the employee service recognition poli-
cy. I find that McNamara’s September 19 email reflects an
understanding that Marshman was requesting bargaining as it
indicates that she felt he was serious about coming to Akron to
discuss the change to the policy.
On October 30, 2012, Local 272 filed an unfair labor prac-
tice charge alleging that Respondent FirstEnergy Generation
violated Section 8(a)(5) and (1) by making a unilateral change
to employee service awards on or about September 27, 2012.
Obviously, this charge was filed well before the implementa-
tion date of January 1, 2013. Generally, the filing of an unfair
labor practice charge does not relieve a union of its obligation
to request that an employer bargain over a proposed change.
Associated Milk Producers, Inc., 300 NLRB 561, 563 (1990).
The Board has held, however, that if an employer has doubt
about whether a request for bargaining has been made, such
doubt can be eliminated when a union files an unfair labor prac-
tice charge claiming a refusal to bargain over the issue in dis-
pute. Trucking Water Air Corp., 276 NLRB 1401, 1407
(1985). In the instant case, I find that any doubt that the em-
ployer had regarding Local 272’s desire to bargain over the
announced change to the employee service recognition policy
should have been removed by the language contained in the
charge filed by Local 272.
I find Medicenter, Mid-South Hospital, 221 NLRB 670
(1975), relied on by the Respondents, to be distinguishable. In
that case, the employer and the union met several times during
the 2 days between the employer’s announcement of the poly-
graph testing program for its employees and the implementa-
tion of that program. Although during this period the employer
invited a discussion of alternative proposals from the union, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
union never requested bargaining over the testing program but
rather merely objected to it and said it would never agree to it.
Under these circumstances, the Board found that the employer
did not violate Section 8(a) (5) and (1) by implementing the
polygraph testing program. As noted above, I find that in the
instant case the statements of Marshman on September 18 indi-
cated a desire to further discuss the implementation of the
changes to the employee service recognition policy. Certainly,
at no time, did Respondent FirstEnergy Generation expressly
invite Local 272 to present an alternative to the impending
change.
Before reaching a conclusion as to whether Respondent
FirstEnergy Generation violated Section 8(a)(5) and (1) with
respect to the employee service recognition policy as it applied
to the unit represented by Local 272, I must consider a defense
applicable to the complaint allegations involving both Re-
spondent FirstEnergy Generation and Respondent Ohio Edison.
In this connection, the Respondents argue that the acquiescence
of both Unions to previous unilateral changes instituted in the
employee service recognition policy constitutes a waiver of the
Unions’ right to bargain over the change in the length of service
policy involved in this case.
The Respondents argue that FirstEnergy and its predecessors
made many unilateral modifications to the employee service
recognition program in the units represented by the Unions over
the course of 20 years without objections being raised by the
Unions. In this connection, the Respondents asserted that
FirstEnergy and its predecessors have previously made the
following changes to the policy: adding a gift catalog, eliminat-
ing the recognition dinners; eliminating the 1-year service an-
niversary award; expanding the policy to include all full-time
and part-time employees; changing the method of measuring an
employee’s anniversary for rehired employees; changing the
policy of shipping an award to the local human resources man-
ager to shipping the award to the recipient; ceasing the policy
of automatically selecting an award if the employee did not
select one; adding the option of selecting a gift on the Internet;
changing vendors; adding certificates of appreciation and letters
from the FirstEnergy CEO along with the award catalogs; and
restricting the level of the catalog from which an employee
could select an award.
The burden of proof to demonstrate that a waiver exists on
the basis of a union’s past practice of acquiescing in unilateral
changes rests on the Respondent. Caterpillar Inc., 355 NLRB
521, 522 (2010).
The Respondents cannot meet that burden in this case.3 Most

3 I do not agree with the Respondents that the Board’s decision in
Mount Clemens General Hospital, 344 NLRB 450, 460 (2005), sup-
ports their position regarding waiver. In the first instance, in Mount
Clemens, the Board indicated that the only exceptions before it for the
General Counsel's exceptions to the administrative law judge's order
and notice regarding an information request. Id. at 450 fn. 2. It is clear
therefore that no exceptions were filed to the administrative law judge's
finding that the employer did not violate Sec. 8(a)(5) and (1) by making
changes in its pension plan. Id. at 459–460. It is settled Board policy
that review of an administrative law judge's decision is limited to the
issues raised by exceptions and that in the absence of exceptions, the
Board does not pass on an administrative law judge's rationale, FES,
importantly, it is well established that a union’s acquiescence in
past changes regarding a bargainable subject does not constitute
a waiver of the right to bargain over further changes, even
when such changes are similar to those made by the employer
in the past without objection. FirstEnergy Generation Corp.,
358 NLRB No. 96, slip op. at 1 and 10 (2012); Caterpillar,
supra at 523. See also Georgia Power Co., 325 NLRB 420,
421 (1998); Bath Iron Works Corp., 302 NLRB 898, 900–901
(1991); Johnson-Bateman Co., 298 NLRB 180, 187–188
(1989). Moreover, in the instant case, the change of the length
of time to obtain a service award from 5 to 10 years is different
in nature from prior changes to the plan. Most of the prior
changes involved administrative matters involving the opera-
tion of the policy. Because the change in eligibility for an em-
ployee service award is significantly different from the relative-
ly minor administrative changes to the policy made in the past,
those prior changes do not serve as a basis to establish the Un-
ions waived their right to bargain over the change to the eligi-
bility period for employee service awards. FirstEnergy Gener-
ation Corp., supra. The most significant change, the inclusion
of part-time employees, occurred in 1999 and is therefore re-
mote in time. Finally, the record does not establish that the
Respondents and their predecessors give specific notice to the
Unions regarding prior changes to the employee service recog-
nition policy.
Based on the foregoing, I find that Respondent FirstEnergy
Generation violated Section 8 (a)(5) and (1) of the Act by fail-
ing and refusing to bargain with Local 272 prior to implement-
ing the change in the employee service recognition policy.
Whether Respondent Ohio Edison Violated Section 8(a)(5) and
(1) of the Act by Unilaterally Implementing a New Employee
Service Recognition Policy Regarding the Unit Represented by
Local 1194
As discussed in detail above, I find that Local 1194 was not
presented with a fait accompli when Childers was notified in
September 2012 that FirstEnergy would be instituting a change
in the employee service recognition policy effective on January
1, 2013.
After being given notice of this change, it is undisputed Lo-
cal 1194 did not request bargaining over the change to the em-
ployee service recognition policy prior to its implementation on
January 1, 2013, or thereafter. It was not until March 4, 2013,
that Local 1194 filed an unfair labor practice charge, alleging in
part that Respondent Ohio Edison unilaterally implemented the
change in the employee service recognition policy in violation
of Section 8(a)(5) and (1).
Under the circumstances present in this case I find that Local
1194 waived its right to bargain over the changes implemented
to the employee service recognition policy on January 1, 2013.
Respondent Ohio Edison met its obligation to give notice to the
Local 1194 about the plans change to the employee recognition

333 NLRB 66 (2001). Accordingly, I do not consider the portion of the
Board's decision in Mount Clemens relied on by the Respondents to be
binding precedent. I note, moreover, that in Mount Clemens that was
specific contract language supporting the administrative law judge's
conclusion that the union waived its right to bargain over changes to the
pension plan. Thus, the case is also distinguishable on its facts.
OHIO EDISON CO. 15
policy and afforded a reasonable opportunity to request bar-
gaining. Since Local 1194 never requested bargaining, it
waived its right to bargain over the change in the employee
service recognition policy. Associated Milk Producers, supra at
563, and cases cited therein.
As noted above, Local 1194 did not file an unfair labor prac-
tice charge over the implementation of the change to the em-
ployee service recognition policy until March, 2013. The filing
of this charge did not relieve it of its obligation to request that
the Respondent bargain over the proposed change. Associated
Milk Producers, supra at 563.
Based on the foregoing, I find that Respondent Ohio Edison
did not violate Section 8(a)(5) and (1) of the Act when it im-
plemented the change to the employee recognition policy in the
Ohio Edison unit on January 1, 2013, and I shall dismiss that
allegation in the complaint.
CONCLUSIONS OF LAW
1. The International Brotherhood of Electrical Workers, Lo-
cal Union No. 272, AFL–CIO, CLC (IBEW, Local 272) is, and,
at all material times, was the exclusive bargaining representa-
tive in the following appropriate unit:
All production and maintenance employees, including control
room operators, employees in the stores, electrical, mainte-
nance, operations, I & T, and yard departments at Respondent
FirstEnergy Generation’s Bruce Mansfield plant,
Shippingport, Pennsylvania facility; excluding technicians, of-
fice clerical employees and guards, other professional em-
ployees and supervisors as defined in the National Labor Re-
lations Act, as amended.
2. By failing to bargain in good faith with IBEW, Local 272
regarding a change from 5 to 10 years in the eligibility re-
quirement of its employee service recognition policy, imple-
mented on January 1, 2013, Respondent FirstEnergy Genera-
tion violated Section 8(a)(5) and (1) of the Act.
3. The above unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
4. Respondent Ohio Edison has not violated the Act.
REMEDY
Having found that Respondent FirstEnergy Generation has
engaged in an unfair labor practice by failing to bargain in good
faith with IBEW, Local 272 regarding a change to its employee
service recognition policy which it implemented on January 1,
2013, I shall order it to cease and desist therefrom and to take
certain affirmative action necessary to effectuate the policies of
the Act. Specifically, I shall order Respondent FirstEnergy
Generation to rescind the change to the employee service
recognition policy effective January 1, 2013, which changed
the length of time that an employee could receive a service
recognition award from every 5 years to every 10 years. I shall
also order Respondent FirstEnergy Generation to bargain with
Local 272 before implementing any further changes in the em-
ployee service recognition policy. I shall also order Respondent
FirstEnergy Generation to make whole each employee in the
bargaining unit at its Shippingport, Pennsylvania facility, who
would have been eligible to receive an employee service recog-
nition award based upon 5 years of service, and who did not
receive such an award because of the change in the eligibility
policy effective January 1, 2013, by granting such employees
an employee service recognition award.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, FirstEnergy Generation Corp.,
Shippingport, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing or refusing to bargain in good faith with the Inter-
national Brotherhood of Electrical Workers, Local Union No.
272, AFL–CIO, CLC (IBEW, Local 272) as the exclusive bar-
gaining representative of the employees in the following appro-
priate unit regarding the employee service recognition policy.
The unit is:
All production and maintenance employees, including control
room operators, employees in the stores, electrical, mainte-
nance, operations, I & T, and yard departments at Respondent
FirstEnergy Generation’s Bruce Mansfield plant,
Shippingport, Pennsylvania facility; excluding technicians, of-
fice clerical employees and guards, other professional em-
ployees and supervisors as defined in the National Labor Re-
lations Act, as amended.
(b) Unilaterally changing the employee service recognition
policy by changing the length of time required for an employee
in the bargaining unit described above to receive an employee
service recognition award from every 5 years to every 10 years.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request of IBEW, Local 272, rescind the change to the
employee service recognition policy regarding the 10-year
length of service requirement that was instituted on January 1,
2013, and restore the 5-year length of service requirement that
existed before the change was instituted.
(b) On request, bargain with IBEW, Local 272 as the exclu-
sive representative of the employees in the appropriate unit
concerning any change to the employee service recognition
policy.
(c) Make whole all employees in the bargaining unit who
were not granted an employee service recognition award be-
cause of the change in the length of service requirement insti-
tuted on January 1, 2013, and who would have received such an
award based upon 5 years length of service, by granting such
employees an employee service recognition award.
(d) Within 14 days after service by the Region, post at its fa-
cility in Shippingport, Pennsylvania, copies of the attached

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
notice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 6, 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 posted. I n addition to physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 January 1, 2013.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. January 17, 2014.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

5 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.”
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 or refuse to bargain in good faith with the
International Brotherhood of Electrical Workers, Local Union
No. 272, AFL–CIO, CLC (IBEW Local 272) as the exclusive
bargaining representative of the employees in the following
appropriate unit regarding the employee service recognition
policy. The unit is:
All production and maintenance employees, including control
room operators, employees in the stores, electrical, mainte-
nance, operations, I & T, and yard departments at Respondent
First Energy Generation’s Bruce Mansfield plant,
Shippingport, Pennsylvania facility; excluding technicians, of-
fice clerical employees and guards, other professional em-
ployees and supervisors as defined in the National Labor Re-
lations Act, as amended.
WE WILL NOT unilaterally change the employee service
recognition policy by changing the length of time required for
an employee in the bargaining unit described above to receive a
service award from every 5 years to every 10 years
WE WILL NOT in any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request of IBEW, Local 272, rescind the change
to the employee service recognition policy regarding the 10-
year length of service requirement that was instituted on Janu-
ary 1, 2013, and restore the 5-year length of service require-
ment that existed before the change was instituted.
WE WILL, on request, bargain with IBEW, Local 272 as the
exclusive representative of the employees in the bargaining unit
concerning any change to the employee service recognition
policy.
WE WILL make whole all employees in the bargaining unit
who were not granted an employee service recognition award
because of the change in the length of service requirement insti-
tuted on January 1, 2013, and who would have received such an
award based upon 5 years length of service, by granting such
employees an employee service recognition award.
FIRSTENERGY GENERATION CORP.