Wyman Gordon Pennsylvania, LLC v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC, 04-CA-182126

• Court: National Labor Relations Board
• Writing for the Court: JOHN F. RING, CHAIRMAN
• Parties: Wyman Gordon Pennsylvania, LLC v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC.
• Decision Date: 16 December 2019
• Docket Number: 04-CA-188990,04-CA-182126,04-CA-186281

Wyman Gordon Pennsylvania, LLC and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC.

Nos. 04-CA-182126, 04-CA-186281, 04-CA-188990

United States of America, National Labor Relations Board

December 16, 2019

Chairman Ring and Members McFerran and Emanuel

DECISION AND ORDER

JOHN F. RING, CHAIRMAN

On July 13, 2018, Administrative Law Judge Arthur J. Amchan issued the attached decision. Wyman Gordon Pennsylvania, LLC (the Respondent) filed exceptions and a brief in support, the General Counsel and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers Union, AFL- CIO-CLC (the Union) each filed answering briefs, and the Respondent filed a reply brief. Additionally, the General Counsel filed exceptions and a brief in support, the Respondent filed an answering brief, and the General Counsel filed a reply brief. Finally, the Union filed cross-exceptions and a brief in support, the Respondent filed an answering brief, and the Union filed a reply 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 only to the extent consistent with this Decision and Order.^[2]

For the reasons discussed below, we reverse the judge's findings that the Respondent violated Section 8(a)(5) and (1) by insisting on resolving noneconomic subjects of bargaining before discussing economic subjects and by failing to comprehensively respond to the Union's September 17, 2015 complete contract proposal. We affirm the judge's findings that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with relevant information requested in paragraphs 4 and 5 of the Union's August 12, 2016 information request and in paragraphs 1, 2, and 4 of the Union's September 6, 2016 information request; we reverse, however, the judge's finding that the Respondent unlawfully failed to provide the Union with the information requested in paragraph 5 of the Union's September 6, 2016 information request. Finally, we affirm the judge's finding that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union because the Respondent failed to establish that the Union had, in fact, lost majority support at the time that it withdrew recognition.^[3]

I. INSISTENCE ON BARGAINING NONECONOMIC SUBJECTS BEFORE ECONOMIC SUBJECTS

A. Relevant Facts

On April 14, 2015, the Board certified the Union as the exclusive collective-bargaining representative of a unit of production and maintenance employees at the Respondent's facility in Plains, Pennsylvania, where it manufactures components for aircraft engines. On May 1, 2015, the Union wrote to the Respondent requesting information to prepare for bargaining. On June 26, 2015, the Respondent provided the requested information and listed a number of dates in August and early September 2015 on which it was available for the parties' first bargaining session. Because Joseph Pozza, the Union's Sub-District Director and lead negotiator, was not available on any of those dates, the parties scheduled their first bargaining session for September 17, 2015.

At the first bargaining session, the Union presented the Respondent with a complete contract proposal. The proposal combined elements of a collective-bargaining agreement between the Union and the Respondent at the Respondent's Mountain Top, Pennsylvania facility and the Respondent's employee handbook at its Plains facility. While the parties did not discuss the Union's proposal in great detail during the first bargaining session, the Respondent clearly communicated in subsequent bargaining sessions that it did not want to simply duplicate the Mountain Top contract as it had proven to be difficult to administer because of its vague and imprecise language. The parties primarily discussed ground rules during the first session. In ground rule 5, they agreed that “[l]anguage [(i.e., noneconomic)] proposals will be discussed prior to the discussion of economic proposals.” Thus, when the Respondent reviewed the Union's initial proposal during the second bargaining session, it said that it would table all economic provisions.

From September 17, 2015, to August 12, 2016, the parties held 14 bargaining sessions. During that period, they reached tentative agreements on non-discrimination, purpose and intent, bereavement leave, and jury duty. Additionally, the parties discussed and exchanged proposals on dues checkoff, union security, no strike/no lockout, management rights, plant regulations, and absenteeism and tardiness.^[4] However, they were unable to reach tentative agreements on those provisions; in fact, during the August 12, 2016 bargaining session, they agreed that they were at impasse on dues checkoff, union security, no strike/no lockout, and absenteeism and tardiness. The parties also began to bargain over the annual August wage increase during the August 12 session.^[5]

At the parties' next bargaining session, on August 26, 2016, Nathan Kilbert, the Union's attorney, was present for the first time. Kilbert pointed out that the Respondent had not responded to many of the provisions in the Union's initial proposal and asked the Respondent to respond to all outstanding provisions. Kilbert specifically inquired whether the Respondent would provide economic proposals, but the Respondent, citing ground rule 5, replied that the parties had agreed to resolve all noneconomic subjects before discussing economics. The Union followed up with a letter dated August 31, 2016, which stated:

The Union wishes to reiterate its statement at the table last Friday that we wish to know the Company's positions on all issues contained in our September 2015 proposal to which the Company has not yet provided a response. These issues include Grievances, Arbitration, Seniority, Job Posting Federal & State Laws, New Classifications/Rates, Rights and Assigns, Termination, Payday, Timekeeping, Safety and Health, and the non-economic components of Vacation and Holidays. In particular, we would like to prioritize discussions of Seniority and Job Postings. You have had our proposals for nearly a year, so it is not too much to ask for you to provide a response on all such open items.^[6]

From August 26 to October 12, 2016, the parties held six bargaining sessions, and the Respondent made initial counterproposals regarding recognition, grievance procedure, arbitration, Federal and State laws, job posting and bids, and seniority. The parties reached tentative agreements on grievance procedure and Federal and State laws. They discussed and exchanged proposals regarding recognition, arbitration, job posting and bids, and seniority, but they did not reach tentative agreements on those subjects during this period. The parties also continued to bargain over the annual August wage increase.

On October 17, 2016, Pozza sent a letter to the Respondent, which stated:

I write also to request that the Company come to our sessions on October 26 and 27 prepared to discuss the Union's economic proposals. As I wrote to you on August 12, I believe that the Company has withdrawn from our ground rules agreement regarding discussion of economics.^[7] In any event this agreement has out- lived its usefulness. I entered into the agreement with the belief that the non-economics could be resolved relatively quickly in view of the successful model we have in the Mountain[ T]op CBA. The Company has had other ideas and has dragged out the process for over a year. We would therefore like to discuss our economic proposals and to hear your proposals. Further, we demand that the Company provide responses to all of those other items in our September 2015 proposal to which it has not provided responses to date

In a reply letter dated October 26, 2016, Rick Grimaldi, the Respondent's attorney and lead negotiator, wrote:

[I]t is somewhat surprising that now, after almost a year of bargaining, the Union decides it does not like the ground rules that it negotiated and voluntarily, without coercion agreed to implement. The Company has not withdrawn from the ground rules. The Company continues to bargain over the language of the contract as was agreed upon. The Parties have exchanged many proposals. If the Union is unhappy with the proposals that the Company has provided, it may counter. The Company believes that in a first contract, the language must be resolved adequately as both parties must live with and abide by that language going forward. The light duty issue, that you raised, is yet another example of why it is so important. The Company has come to the table at every session armed with proposals and counter proposals-ready to bargain. Can the Union say the same?

At the October 26, 2016 bargaining session, the Respondent requested that the Union send a list of the provisions in Union's initial proposal to which it had not yet responded. That same day, Kilbert emailed the requested list to the Respondent and stated that it included economic provisions “because the Union wishes to understand the Employer's vision for a completed contract and to discuss all issues that are outstanding.” In an email sent later that day, Grimaldi replied, “I believe some of these, at least as they relate to language, should be easy agreements. We will start putting together proposals. Many of them are, of course, tied to overall economics.” During an October 27, 2016 bargaining session, the Respondent reiterated that it did not want to repudiate ground rule 5.

From October 26 to November 17, 2016, the parties held five more bargaining sessions. While...