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NLRB Law Memo 07/20/2007
by Ross Runkel at LawMemo
NLRB Law Memo 07/20/2007
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NLRB - Staff summarized 2 decisions.
3-V, Inc. (11-CA-20894-1, 20895-1; 350 NLRB No. 24)
Georgetown, SC July 5, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35024.htm
The Board majority of Chairman Battista and Member
Liebman reversed the administrative law judge’s finding that the
Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
discontinuing its employees’ annual wage increases and by failing to pay
its employees a semi-annual safety bonus.
The Respondent informed its workforce in October 2004 that its access
to a critical chemical compound, necessary for a substantial portion of its
production, was substantially impaired.
Due to this supply problem the Respondent announced that wage
increases would not be given until the problem was resolved.
The majority found that the Respondent effectuated a change in its
established past practices prior to the Union’s selection as
representative of the Respondent’s employees such that it was privileged
to withhold the wage increase and safety bonus after the Union’s
certification. Thus, the
Respondent had changed the status quo prior to the Union’s election and
the status quo no longer included an annual wage increase or safety bonus.
Therefore, the Respondent did not violate the Act by failing to grant
either the wage increase or the safety bonus in the summer of 2005.
In dissent Member Walsh
would adopt the judge’s finding that the Respondent violated Section
8(a)(5) and (1) by unilaterally discontinuing the annual wage increase and
semi-annual safety bonus. Contrary
to the majority Member Walsh would find that the Respondent did not depart
from its established practice of conducting a wage survey and recommending a
wage increase. Rather, the
Respondent decided that the amount in that year would be zero.
Accordingly, in Member Walsh’s view, the Respondent’s wage
program remained a term and condition of employment at the time the
employees selected union representation.
By failing to maintain the fixed element of its wage increase program
and failing to bargain over the discretionary aspect, the Respondent
violated Section 8(a)(5) and (1). In
addition, Member Walsh would find that the Respondent’s failure to grant
the safety bonus was a unilateral change to the employees’ terms and
conditions of employment.
(Chairman
Battista and Members Liebman and Walsh participated.)
Charges filed by Steel,
Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and
Service Workers (USW); complaint alleged violation of 8(a)(1) and (5). Hearing at Georgetown, Feb. 22 and 23, 2006. Adm.
Law Judge George Carson II issued his decision April 27, 2006.
***
PPG
Industries, Inc. (25-RC-10347; 350 NLRB No. 25) Evansville, IN July 3, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35025.htm
Contrary to the hearing officer’s recommended
finding, the Board concluded that the conduct of several Union supporters
was sufficient to warrant setting aside the election held on June 28, 2006,
which the Auto Workers (UAW) won by a 186-to-158 vote.
The Board set aside the election and directed a second election.
During the critical
election period, several Union supporters, including members of the
employee-comprised voluntary organizing committee, made numerous statements
threatening physical harm and property damage to those employees who stated
they would, or would be inclined to, cross a picket line.
Applying the standard for determining whether third party threats are
objectionable, the Board found that the recurring and pervasive nature of
the serious threats throughout the critical period, combined with their
application to the entire bargaining unit and dissemination to numerous
employees, created a general atmosphere of fear and reprisal that warranted
setting aside the election.
(Chairman
Battista and Members Schaumber and Kirsanow participated.)
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