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,
PPG Aerospace Industries, Inc. and International Union, United Automobile, Aerospace and Agricultural
Implement Workers of
September 30, 2008
DECISION, DIRECTION, AND ORDER REMANDING
By
Chairman Schaumber and Member Liebman
On
October 19, 2007, Administrative Law Judge Lawrence W. Cullen issued the attached
decision. He issued an erratum on
November 14, 2007. The Respondent filed
exceptions, a supporting brief, and a reply brief; the Charging Party filed an
answering brief.
The
National Labor Relations Board[1]
has considered the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, findings, and conclusions
only to the extent consistent with this decision.
i.
introduction
On
October 18, 2006, an election among the Respondent’s production and maintenance
employees resulted in a tally of ballots showing 210 votes in favor of the union
representation, 214 votes against union representation, and 32 challenged
ballots. The
The
principal issue regarding the challenged ballots is whether 16 lead persons (leads)[2]
are supervisors. The judge found that
the leads are supervisors and, on this basis, recommended that the challenges
to their ballots be sustained. For the
reasons explained below, we reverse the judge and find that the
Among
the issues regarding the unfair labor practice allegations and objections is
whether Respondent Supervisor Sue Cooper unlawfully told employee Iva Jayne
Mayes, who supported the Union, that (1) Mayes could not join a conversation
with other employees because Cooper “couldn’t let two Union people gang up on a
non-union person” and (2) that the employees would “probably lose [their salary
continuance benefit] with all this Union stuff.” Mayes testified that Cooper made the alleged
statements; Cooper testified that she did not make the alleged statements. The judge credited Mayes, found that Cooper
made the alleged statements, found that the Respondent thereby violated Section
8(a)(1), and recommended that objections based on the statements be sustained.[3] As explained below, we remand these issues to
the judge for further consideration.
ii.
whether the leads are supervisors
The
judge found that the leads are supervisors because they have authority to prioritize
and make changes to employees’ work assignments. The Respondent contends that the leads, in
changing and prioritizing work assignments, do not exercise independent judgment
but rather simply follow directions from admitted supervisors. We agree.
The
party alleging supervisor status must prove not only possession of one of the
supervisory authorities enumerated in Section 2(11), but also that the putative
supervisor uses independent judgment in the exercise of that authority.
The
Lead
Tim Childers was the only lead who testified, and the parties stipulated that
the other leads, if called, would have testified as Childers did. With regard to prioritizing work assignments,
Childers testified: “I would probably go to my supervisor and say I have these
priorities here, make him make a decision.
Then I may go to the people and say we’re going to do this.” With regard to changing work assignments,
Childers testified: “We may have a meeting . . . with a supervisor and I’ll sit
down and have a meeting and, if our work assignments change, then it’s directed
by him at that point to change the work assignment. . . . This [meeting] would
be my immediate supervisor and our crew and myself.”
The
job description for Childers’ lead position is further evidence that admitted
supervisors control the leads’ assignment decisions. It states: “Based on Supervisor instructions,
[the lead] assigns duties to crew members at the beginning of each shift.”
Neither
the judge nor the
iii.
the judge’s crediting of mayes
The
judge found that Supervisor Sue Cooper made two unlawful statements to employee
Iva Mayes—(1) that Mayes (who supported the Union) could not join a conversation
involving an employee who supported the Union and an employee who opposed the
Union because Cooper “couldn’t let two Union people gang up on a non-union
person” and (2) that the employees would “probably lose [their salary continuance
benefit] with all this Union stuff.” In
finding that Cooper made these statements, the judge credited and relied on
Mayes’ testimony that Cooper made the statements. Cooper testified that she did not make either
of the statements.
In
crediting Mayes’ testimony regarding the no-ganging-up statement, the judge explained:
“I credit the testimony of Mayes . . . who [was a] current employee[] at the
time [she] testified in this regard.”
The judge did not note Cooper’s testimony denying the statement. In crediting Mayes’ testimony regarding the
lose-salary-continuance statement, the judge noted Cooper’s testimony denying
the statement and explained: “I credit Mayes’ testimony who was a current
employee at the time she testified and was not an alleged discriminatee. Her testimony was likely to be true.”
We
find that the judge has not adequately explained why he credited Mayes over
Cooper and that it is unclear to what extent, if any, the judge considered
witness demeanor in making these credibility determinations. Further, the judge, in crediting Mayes over
Cooper, did not address the discrepancies between Mayes’ testimony and an
incident report Mayes submitted to the
Accordingly,
we shall remand Case 10–CA–36530, in part, to the judge for the limited
purposes of (a) reconsidering his crediting of Mayes over Cooper regarding
these two statements, (b) explaining, more fully, the basis for his credibility
determinations upon reconsideration, and (c) modifying, if necessary, his credibility
based findings that Cooper’s disputed statements violated Section 8(a)(1).[6]
DIRECTION
It is directed that the Regional Director for Region 10 shall,
within 14 days from the date of this Decision, Direction, and Order Remanding,
open and count the 32 ballots cast under challenge and serve on the parties a revised
tally of ballots. If the revised tally
shows that the Petitioner has received a majority of the valid ballots cast,
the Regional Director shall issue a certification of representative. If the revised tally shows that the Petitioner
has not received a majority of valid ballots cast, the Regional Director shall
transfer the representation proceeding back to the Board for consideration of
the remaining issues.
ORDER
It is ordered that Case 10–RC–15611 is severed and
remanded to the Regional Director for Region 10 for the limited purposes
described in the above Direction.
It is further ordered that Case 10–CA–36530
is severed and remanded, in part, to the judge for the limited purposes described
above.
It is further ordered that the judge shall
prepare and serve on the parties a supplemental decision containing credibility
resolutions as more fully explained on remand, findings of fact, conclusions of
law, and a recommended Order. Following
service of the supplemental decision on the parties, the provisions of Section
102.46 of the Board’s Rules and Regulations shall be applicable.
It is further ordered that the final disposition
of all other issues raised in this proceeding shall be held in abeyance pending
our receipt of a supplemental decision from the administrative law judge.
Dated,
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Peter
C. Schaumber, |
Chairman |
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Wilma
B. Liebman, |
Member |
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(Seal) National Labor Relations Board
Gregory Powell, Esq., for the General Counsel.
John
J. Coleman, III, Esq., and Amy K. Jordan,
Esq., for the
Respondent, Employer.
George N. Davies, Esq., for the Charging Party,
Petitioner.
DECISION
Statement of the Case
On January 23, 2007, the
Regional Director of Region 10 of the National Labor Relations Board (the
Board) filed in Case 10–RC–15611 his report on challenged ballots and objections,
order directing hearing, order consolidating Case 10–RC–15611 with Case 10–CA–36530 and order transferring
cases to the board and notice of hearing.
Findings of Fact
i. the business of the respondent
The complaint in Case 10–CA–36530 alleges,
Respondent admits, and I find, that at all times material, Respondent has been
a Pennsylvania corporation with an office and place of business located in
Huntsville, Alabama, where it has been engaged in the manufacturing of aircraft
transparencies, that during the past 12-month period, Respondent sold and
shipped goods valued in excess of $50,000 directly to customers located outside
the State of Alabama, and that at all material times Respondent has been an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
ii. the labor organization
The complaint further alleges,
Respondent admits, and I find, that at all times material the
iii. the report on challenged ballots and objections
Pursuant to a Stipulated
Election Agreement approved by the Regional Director on September 8, 2006, an
election by secret ballot was conducted on October 18, 2006, among the employees
in an appropriate unit1 to
determine a question concerning representation raised by a petition filed by
the Petitioner on August 30, 2006.
On conclusion of the balloting,
a tally of ballots was made available to the parties showing that of
approximately 474 eligible voters, 210 cast valid votes for and 214 cast valid
votes against the Petitioner. In
addition there was 1 void ballot and 32 challenged ballots. The challenged ballots are sufficient in
number to affect the results of the election.
On October 25, 2006, the Petitioner filed timely objections to conduct
affecting the results of the election.
Pursuant to the provisions of
Section 102.69 of the Rules, an investigation was conducted under the direction
and supervision of the Regional Director who concluded that the issues raised
by the challenges and Objections 1, 3, 5, 8, and 10 can best be resolved by a
hearing. Accordingly, the Regional Director
directed that the issues raised by the challenges and by Petitioner’s
Objections 1, 3, 5, 8, and 10 be resolved by a hearing.
iv. the alleged unfair labor practices
The complaint alleges that
Respondent violated Section 8(a)(1) of the Act as follows:
Paragraph 7 of the complaint—Since on or about September 1, 2006, and continuing thereafter, Respondent, acting through its supervisors and agents, Sue Cooper, Greg Campbell and Paul Rigsby at its facility, more closely scrutinized and monitored the movements and conversations of employees because they supported the Union’s organizing campaign.
In his report on objections, the Regional Director found that paragraph 7 of the complaint alleges conduct which purportedly occurred during the critical period2 preceding the election and is substantially coextensive with the conduct alleged in Objection 1.
Paragraph 8 of the
complaint—On or about September 1, 2006, Respondent, acting through its
supervisor and agent, Sue Cooper, at its facility, threatened its employees
with loss of benefits because they supported the
In his report on objections the Regional Director found that paragraph 8 of the complaint alleges conduct which purportedly occurred during the critical period preceding the election and is substantially coextensive with the conduct alleged in Objection 3.
Paragraph 9 of the complaint—Alleges that Respondent, acting through its supervisor and agent, Greg Campbell, engaged in the following conduct:
(a) On or about the week of September 25, 2006, at its
facility, threatened employees with the inevitability of a strike if they
selected the
(b) On or about the week of September 26, 2006, at its
facility, threatened its employees with replacement if they went on strike in
support of the
(c) On or about the week of September 25, 2006, at its
facility, informed employees that it would be futile for them to select the
Union as their bargaining representative because the
In his report on objections the Regional Director found that paragraphs 9(a), 9(b), and 9(c) of the complaint allege conduct which purportedly occurred during the critical period preceding the election and is consistent with the conduct alleged in Objection 5.
Paragraph 10 of the complaint—Alleges that Respondent, acting through its supervisor and agent, Sue Cooper, and other agents presently unknown on or about October 16 and 17, 2006, in the finishing department, created the impression among employees that their union activities were under surveillance.
In his report on objections, the Regional Director found that paragraph 10 of the complaint concerns conduct which allegedly occurred during the critical period preceding the election and is substantially coextensive with the conduct alleged in Objection 8.
In Objection 10 petitioner asserts that the Employer abused the election process by harassing employees about how and when they were to vote. The employer denies engaging in any misconduct. The Regional Director found that in light of the conflicting evidence and positions of the parties, this objection raises substantial and material issues of fact which can best be resolved through record testimony.
In light of the conflicting evidence and positions of the parties, the Regional Director found that the issues raised by the challenges and by Petitioner’s Objections 1, 3, 5, 8, and 10 can best be resolved through record testimony and directed a hearing be held to resolve these issues.
The
Challenged Ballots
The report on challenged ballots by the Regional Director shows that the ballots of Timothy Bragg, Lea Anne Collins, Denise Gossett, Kenny Grant, Morgan Jensen, David Kimbrough, and Jennifer Newman were challenged by the Petitioner on the ground that they were hired after the cutoff date of August 27, 2006. The Employer contends these employees were hired and commenced orientation on August 21, 2006, and that they were eligible to vote in the election.
The report on challenged ballots shows that the ballots of Leroy Green, Michael McAllister, Beverly Moon, and John Reed were challenged by the Petitioner on the ground that they are process monitors and supervisors excluded from the unit. Petitioner contended that they are process monitors who oversee the work of the GCA temporary employees. At the hearing the Petitioner withdrew the challenges to the process monitors. The Petitioner originally challenged the ballot of Joe Simpson on the ground that he was a supervisor.
The Petitioner has challenged the ballots of Donnie Black, Tim Childers, Jimmy Cloud, Kenneth Dawson, Manda Dupree, Bill Everett, Denny Franchiseur, Morris Hill, Michael Hill, Bill Hopper, James Holder, David Knoer, Jackie Lackey, Monty Little, Vivian Lyle, David McNeal, Peter Mullen, Ronnie Steakley, Curtis Wales, and Clarence Zimmerman as supervisors. The report shows that the Petitioner contends they are lead persons who instruct employees, correct improper performance, move employees when necessary, decide the order in which work will be performed and effectively recommend discipline. The report shows that the Employer contends that these employees do not possess any supervisory authority and that the Petitioner did not challenge all persons working as lead persons, that it is picking and choosing employees to challenge on the basis of their perceived support for the Petitioner.
At the hearing, the Charging Party withdrew the challenge to the ballot of Joe Simpson and the challenges to the ballots of the process monitors and the challenge to the ballot of Ken Dawson. Charging Party did not withdraw its challenge to the ballot of Morris Neal Hill who Respondent showed was a lead person, at the hearing. Respondent contended that Clarence Zimmerman is a process monitor whereas Petitioner contended he was a lead person.
Respondent offered unrebutted
testimony from Step Up Supervisor Kevin Bailey that Clarence Zimmerman was a
process monitor over the strip buff area, which testimony I credit.
The
The newly hired employees who
were hired on August 21, 2006, were employees before the August 27, 2006 cutoff
date as every aspect of PPG employment attached to these individuals the date
they were hired. In Regency Services Carts, 325 NLRB, 617, 627 (1998). The Board held that the “party seeking to
exclude an individual from voting has the burden of establishing that the
individual is, in fact, ineligible to vote.”
These employees were placed on PPG’s payroll and earned wages beginning
on August 21, 2006, and worked under the supervision of PPG supervisors who controlled
the details of their work prior to the August 27, 2006 cutoff date. The Employer contends that the 30-day
training period in the instant case did not involve mere “preliminaries.” The Employer asserts that the challenged
ballots were not merely orientation and preliminaries. In CWM,
Inc., 306 NLRB 495, 496 (1992), the Board held that employees in a 1-week
training program were eligible. In Firesafe Builders Products Corp., 57
NLRB 1803, (1944), 5-day training program members were held to be eligible voters. In Dynocorp/Dynair
Services, 320 NLRB 120, 121 (1995), the Board distinguished between mere
orienting and preliminaries. The fact
that the employees were erroneously shown on a poster as “new hires” on
September 15, 2006, does not make them ineligible to vote.
I find that the challenge to the
“temporary” or “new” employees should be overruled. In Golden
Fan Inn, 281 NLRB 226, 230 fn. 24 (1986), the Board held that “the burden
of proof rests on the party seeking to exclude a challenged individual from
voting.” I find the
I find that the “lead persons”
are supervisors under the Act and should properly be excluded from in the unit
as ineligible to vote and that their ballots should not be counted. The
The lead persons in the instant
case before me have the ability to and do make changes to work assignments, and
prioritize these work assignments to assure production needs are met. Lead person Tim Childers testified that the Company’s
written job descriptions accurately reflect what he does including changing
work assignments when necessary. All
parties stipulated as testified by Childers that the lead employees did so only
after receiving approval from their supervisors. The Employer concedes that lead employees
assign work to groups of employees and may from time to time change work assignments
with the approval of their supervisor.
The Employer contends that although the lead persons may change the assignment
of a particular employee they do so only after checking with their supervisors. The lead persons have the authority to
prioritize work and change work assignments to meet production needs. In USF
Reddaway, Inc., 349 NLRB 329 (2007), the Board held that lead persons who
made changes in job assignments based on the employer’s needs were supervisors. In American
River Transportation Co., 347 NLRB 925 (2006), the Board held that
authority to change and prioritize work assignments required a finding of
supervisory status. The
Background
of the Alleged Unfair Labor Practices
In August 2006, the Union
commenced a campaign to organize Respondent PPG’s production and maintenance employees
at its
The complaint allegations are as
follows:
Paragraph 7 of the
complaint—More closely scrutinizing
and monitoring movements and conversations of employees because they supported
the
General Counsel contends that on
the day following the filing of the Petition for an election on or about
September 1, 2006, the Respondent began closely scrutinizing and monitoring the
activities of its production and maintenance employees because of their support
of the
Sims further testified that he
attended union meetings. At a union
meeting held in September 2006, Union Organizer Harvey Durham asked Sims and
several other employees to pose for a picture with a sign stating “Union
Yes.” They did so and held up their clenched
fists. The picture was posted on the
I find that the evidence
supports the conclusion that Respondent has, by its supervisors, violated
Section 8(a)(1) of the Act by disparately closely scrutinizing and monitoring
the conversations of its production and maintenance employees. I credit the testimony of Mayes and Sims who
were current employees at the time they testified in this regard. I find that the Respondent through its
supervisors was more closely monitoring and scrutinizing the movements and
conversations of its prounion employees while permitting antiunion employees to
engage in lengthy conversations without interruption.
Paragraph 8 of the
complaint—Threatening its Employees with Loss of Benefits Because of their
Support of the
Mayes testified that on about September 1, 2006, Supervisor
Cooper told her, she would probably lose her “Salary Continuance” benefit if
she and her co-employees voted to elect the
Paragraphs
9(a), (b), and (c) of the Complaint
Complaint Paragraph
9(a)—Threatening employees with the inevitably of a strike if they selected
the
Complaint Paragraph 9(b)—Replacement of striking employees, and
Complaint
Paragraph9(c)—Futility of supporting the
Sandra Lingo Hansen has been an
assembler the last 2 years. She inspects
and installs windows and windshield’s internal components. Her supervisor is Greg Campbell. She testified that during the last week of
September 2006
Complaint Paragraph 10—Creating the Impression Among Employees that Their Union Activities were Under Surveillance
On October 16–17, 2006, the
Respondent increased the number of supervisors on the second and third shifts
in anticipation of the possibility of a need for greater supervision as the
result of tension among the employees at the plant concerning the upcoming
election set for October 18, 2006. The
increase in supervision was modest.
Whereas, the first shift was normally staffed with 260 to 275 employees
and 15 to 20 supervisors; there was no increase in supervision on this
shift. Rather, two supervisors from the
first shift were assigned to supplement the supervision on the second shift and
on the third. The second shift had a
complement of 140 employees and 1 to 2 supervisors, the third shift normally
had a complement of 70 to 75 employees and 1 supervisor. Respondent’s witnesses, Operations Manager
Mitchell Bruce and Director of Human Resources John Faulds, testified that
there was tension in the plant concerning the upcoming election which was contributing
to a loss of production. They also
testified to three instances of suspected sabotage in which product had been
intentionally damaged and of the serious safety concerns about the infliction
of damage to its products which could threaten the life and safety of airplane
crews and passengers if the integrity of the windshields and windows were
compromised. Additionally Bruce testified
that he was informed by an employee that the employee had been threatened with
damage to his property and physical harm if he did not support the
I find that the General Counsel
did not make a prima facie case of the creation of unlawful surveillance among
the employees by Respondent. As noted
above, the increase of supervision on the second and third shifts was
modest. There was no increase in
supervision on the first shift. I credit
the testimony of Respondent’s witnesses, Bruce, Willey, and Faulds, concerning
the loss of production and the sabotage of its products. I credit the testimony of Bruce and Faulds
that there were reports received from an employee of the threat of property
damage and violence made by another employee.
In Crowley, Milner & Co.,
216 NLRB 443, 444 (1975), the Board held there was no objectionable evidence of
surveillance because of the employer’s increase in supervision in a 2-week
period prior to the election. It is undisputed
that sabotaged products could cause an airplane disaster if they were installed
in an airplane. Clearly, the Respondent
had the right and responsibility to ensure that there was no interference with
the production of safe products in the operation of its business and in view of
the threat to all who were affected by their installation in airplanes. I find this allegation of the complaint
should be dismissed.
With regard to Objection 1, I
find that the Employer engaged in objectionable conduct as well as a violation
of Section 8(a)(1) of the Act by more closely securitizing and monitoring the
movements and conversations of employees because they supported the Union’s
organizing campaign. This conduct occurred
during the critical period.
With regard to Objection 3, I
find that the Employer engaged in objectionable conduct as well as a violation
of Section 8(a)(1) of the Act by threatening its employee with loss of benefits
if she supported the
With regard to Objection 5, I
find that the Employer engaged in objectionable conduct as well as violations
of Section 8(a)(1) of the Act by threatening employees with the inevitability
of a strike if they selected the Union as their bargaining representative, by
threatening its employees with replacement if they went on strike in support of
the Union, and by informing employees that it would be futile for them to
select the Union as their bargaining representative because the Union would
never get a contract from the Employer.
These threats occurred during the critical period.
Objection 8 shall be overruled
as the evidence did not establish that the Employer engaged in the creation of
unlawful surveillance.
Objection 10 shall be overruled
as no evidence was submitted at the hearing in support of this objection.
Conclusions of Law
1. Respondent
is an employer within the meaning of Sections 2(2), (6), and (7) of the Act.
2. The
3. Respondent
violated Section 8(a)(1) of the Act by:
(a) More
closely scrutinizing and monitoring the movements and conversations of its
employees because of their support of the
(b) Threatening
loss of benefits because its employees supported the
(c) Threatening
its employees with the inevitability of a strike if its employees selected the
(d) Threatening
its employees with replacement if they supported a strike by the
(e) Informing
employees it would be futile for them to select the Union as their collective-bargaining
representative because the
4. The
Respondent did not violate the Act by creating the impression that the
employees’ union activities were under surveillance.
5. The
Employer did not engage in objectionable conduct as alleged in Objection 10.
In
view of my finding of a violation of the Act as alleged in complaint paragraph
7, I find that Objection 1 should be sustained.
In
view of my finding of a violation of the Act as alleged in complaint paragraph
8, I find that Objection 3 should be sustained.
In
view of my finding of a violation of the Act as alleged in complaint paragraphs
9(a), 9(b), and 9(c), I find that Objection 5 should be sustained.
In
view of my finding of no violation of the Act as alleged in complaint paragraph
10, I find that Objection 8 should be overruled.
I find
that the Charging Party failed to establish that the employer abused the
election process as asserted in Objection 10 and accordingly find that
Objection 10 should be overruled.
The Remedy
Having found that the Respondent
has engaged in the above violations of the Act, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative actions designed to
effectuate the purposes and policies of the Act and post the appropriate
notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, PPG Industries, Inc.,
1. Cease and desist from
(a) More closely scrutinizing and monitoring the movements and conversations
of its employees because of their support of the
(b) Threatening
loss of benefits because its employees support the
(c) Threatening
its employees with the inevitability of a strike if they select the
(d) Threatening
its employees with replacement if they support the
(e) Informing
employees it would be futile for them to select the Union as their collective-bargaining
representative because the
(f) The allegation that
Respondent unlawfully violated the Act by creating the impression that the
employees’ union activities were under surveillance shall be dismissed.
(g) In any like or related manner
interfering with, restraining, or coercing its employees in the exercise of
their rights under Section 7 of the National Labor Relations Act.
2. Take the following
affirmative actions to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix”4
at its facility in
(b) 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 proceeding in Case
10-RC-15611 be severed and remanded to the Regional Director5 for appropriate action. I recommend that the challenged ballots of
the temporary employees be counted. I
recommend that the challenged ballots of the lead men be set aside and not
counted. In the event that the
challenged ballots and the revised tally show a majority in favor of the
Dated at
APPENDIX
Notice To Members
Posted by Order of the
National Labor Relations Board
An
Agency of the
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 on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.
We will not more
closely scrutinize and monitor the movements and conversations of our employees
because of their support of the International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL–CIO (the Union).
We will not threaten our employees with loss of benefits because of their support of
the
We will not threaten our employees with the inevitability of a strike if they select
the
We will not threaten our employees with replacement if they support the
We will not inform our employees it would be futile for
them to select the Union as their collective-bargaining representative because
the
We will not in any like
or related manner interfere with, restrain, or coerce our employees in the
exercise of your rights under Section 7 of the National Labor Relations Act.
PPG Aerospace Industries, Inc.
[1] Effective midnight December 28, 2007,
Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in
anticipation of the expiration of the terms of Members Kirsanow and Walsh on December
31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the three-member
group. As a quorum, they have the
authority to issue decisions and orders in unfair labor practice and representation
cases. See Sec. 3(b) of the Act.
[2] Donnie Black, Tim Childers, Jimmy Cloud,
Manda Dupree, Bill Everett, Denny Franchiseur, Bill Hopper, James Holder, David
Knoer, Jackie Lackey, Monty Little, Vivian Lyle, David McNeal, Peter Mullen,
Ronnie Steakley, and Curtis Zimmerman.
[3] The judge also found that the Respondent
violated Sec. 8(a)(1) by other conduct and recommended that objections based on
this other conduct be sustained. The Respondent
has excepted to these findings. We do
not address these findings or exceptions at this time and will do so upon our
review of the judge’s supplemental decision on remand.
[4] Although some of the evidence concerning
the assignments is silent as to whether admitted supervisors, rather than
leads, make the underlying assignment decisions, there is no evidence
affirmatively showing that leads, rather than admitted supervisors, make the
underlying decisions.
[5] In addition to the 16 leads listed in
fn. 2 above, the
In the absence of
exceptions, we adopt the judge’s recommendations to overrule the challenges to
the remaining 14 challenged ballots: the ballots of Timothy Bragg, Lea Anne
Collins, Denise Gossett, Kenny Grant, Morgan Jensen, David Kimbrough, Jennifer
Newman, Leroy Green, Michael McAllister, Beverly Moon, John Reed, Joe Simpson,
Ken Dawson, and Clarence Zimmerman.
[6] In remanding these cases, we are holding
in abeyance the remaining 8(a)(1) allegations in Case 10–CA–36530 and we are
not addressing at this time the election objection issues. Following the judge’s supplemental decision
on remand, we will address the 8(a)(1) issues and, if the revised tally of
ballots shows that a majority of votes have not been cast for the Union, we
will address the election objection issues.
1 The appropriate unit as set forth in the
Stipulated Election Agreement is:
All production and
maintenance employees employed by the Employer at its Huntsville, Alabama
facility, but excluding all technicians, senior technicians, office clerical
employees, professional employees, guards, step-up supervisors and all other
supervisors as defined by the Act.”
2 The
critical period in this matter is the period between August 30, 2006, the date
the petition was filed, and October 18, 2006, the date of the election. Goodyear
Tire & Rubber Co., 138 NLRB 453 (1962).
3 If
no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
4 If this Order is
enforced by a judgment of a
5 Under the provisions of Sec. 102.69 of the Board’s Rules
and Regulations, Exceptions to this Report may be filed with the Board in