Lenawee Stamping Corporation d/b/a Kirchhoff Van-Rob,

Docket Number:07-CA-168498
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Lenawee Stamping Corporation d/b/a Kirchhoff Van-Rob1 and Local 3000, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL– CIO. Cases 07–CA–168498 and 07–CA–172535

June 14, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE

AND MCFERRAN

On December 22, 2016, Administrative Law Judge Mark Carissimi issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations 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,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3

1 We amend the caption to correct the spelling of Lenawee.

2 We agree with the judge that the Respondent did not have a “sound arguable basis” for making a midterm contract modification by granting raises to unit employees without the Union’s consent, and that under this standard the Respondent violated Sec. 8(a)(5) and (d) of the Act when it changed contractual wage rates. See Bath Iron Works Corp., 345 NLRB 499, 501–502 (2005), affd. sub nom. Bath Marine Draftsmen Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007).

Chairman Miscimarra finds that the “sound arguable basis” standard, rather than the “clear and unmistakable” waiver standard, is the correct standard to apply in midterm contract modification cases. Accordingly, he does not rely on the judge’s “clear and unmistakable” waiver discussion regarding the Respondent’s management-rights clause.

Member Pearce does not agree with the “sound arguable basis” standard articulated in Bath Iron Works Corp., supra, but agrees that under this standard the Respondent violated Sec. 8(a)(5) and (d) of the Act when it modified the collective-bargaining agreement’s wage provision by granting wage increases to unit employees without the Union’s consent.

Member McFerran expresses no opinion whether Bath Iron Works was correctly decided, but she agrees that the Respondent’s wage increases violated the Act under the “sound arguable basis” standard insofar as it applies. To the extent the Respondent argues that the management-rights clause permitted the wage increases at issue here, Member McFerran believes that only the heightened “clear and unmistakable” waiver standard applies, and she would find that the wage increases violated the Act under this standard as well.

The Respondent’s sole argument in excepting to the judge’s finding that the Respondent violated the Act by unilaterally implementing referral and sign-on bonuses is that the bonuses do not constitute wages and, therefore, are not mandatory subjects of bargaining. We reject this argument for the reasons stated by the judge.

Chairman Miscimarra notes that the types of unilateral changes implemented by the Respondent closely resemble the unlawful unilateral employer changes implemented in the Supreme Court decision NLRB v.

ORDER

The National Labor Relations Board orders that Respondent, Lenawee Stamping Corporation d/b/a Kirchhoff Van-Rob, Tecumseh, Michigan, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing to continue in effect the terms and conditions of its 2013–2018 collective-bargaining agreement with Local 3000, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO (the Union) by granting wage increases to skilled and semiskilled unit employees without the Union’s consent.

(b) Unilaterally changing terms and conditions of employment of its unit employees by granting referral and sign-on bonuses to unit employees without giving notice and an opportunity to bargain to the Union.

(c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Upon request of the Union, rescind the wage increases given to skilled unit employees on November 30, 2015, and to semiskilled unit employees on March 22 and April 24, 2016.

(b) Continue in effect all the terms and conditions of employment contained in its 2013–2018 collectivebargaining agreement with the Union.

(c) Upon request of the Union, rescind the referral and sign-on bonuses granted to unit employees beginning on March 22, 2016.

(d) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the following bargaining unit:

All regular full-time production and maintenance employees employed by the Respondent at its Tecumseh facility; but excluding office clerical employees, group leaders, temporary workers, guards and supervisors as defined in the National Labor Relations Act, and all other employees.

Katz, 369 U.S. 736 (1962), which established that unilateral changes in mandatory bargaining subjects constitute violations of Sec. 8(a)(5) of Act. Katz dealt with unilateral wage increases, merit increases, and/or bonuses—the same types of unilateral changes the Respondent made here. Id. at 744–746.

3 We have modified the judge's recommended Order to conform to the Board's standard remedial language, and we shall substitute a new notice to conform to the Order as modified.

365 NLRB No. 97

2

Within 14 days after service by the Region, post at its facility in Tecumseh, Michigan, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 7, 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. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 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 current employees and former employees employed by the Respondent at any time since November 30, 2015.

Within 21 days after service by the Region, file with the Regional Director for Region 7 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.

Dated, Washington, D.C. June 14, 2017

______________________________________

Philip A. Miscimarra, Chairman

______________________________________

Mark Gaston Pearce, Member

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

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 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 benefit and protection

Choose not to engage in any of these protected activities.

WE WILL NOT fail to continue in effect the terms and conditions of our 2013–2018 collective-bargaining agreement with Local 3000, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO (the Union) by granting wage increases to skilled and semiskilled unit employees without the Union’s consent.

WE WILL NOT unilaterally change terms and conditions of employment of our unit employees by granting referral and sign-on bonuses to unit employees without giving notice and an opportunity to bargain to the Union.

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, upon request of the Union, rescind the wage increases given to skilled unit employees on November 30, 2015, and to semiskilled unit employees on March 22 and April 24, 2016.

WE WILL continue in effect all the terms and conditions of employment contained in our 2013–2018 collectivebargaining agreement with the Union.

WE WILL, upon request of the Union, rescind the referral and sign-on bonuses granted to unit employees beginning on March 22, 2016.

WE WILL, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the following bargaining unit:

All regular full-time production and maintenance employees employed by us at our Tecumseh facility; but excluding office clerical employees, group leaders, temporary workers, guards and...

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