Kirchoff Van-Ron

National Labor Relations Board - Administrative Judge Opinions

Dec 22, 2016

07-CA-168498 (N.L.R.B. Dec. 22, 2016)

JD–120-16
Tecumseh, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
LEWANEE STAMPING CORPORATION d/b/a
KIRCHHOFF VAN-ROB
and Cases 07-CA-168498
07-CA-172535
LOCAL 3000, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA (UAW), AFL-CIO
Rana Roumayah, Esq.,
for the General Counsel.
Michael Parente and Todd Dawson, Esqs.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Detroit,
Michigan, on September 26, 2016. Local 3000, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (the Union),
filed the charge in Case 07-CA-168498 on January 25, 2016, and the charge in Case 07-CA-
172535 on March 23, 2016, and the General Counsel issued an order consolidating cases,
consolidated complaint and notice of hearing (the complaint) on June 30, 2016.
The complaint alleges that the Respondent, about November 30, 2015, unilaterally
granted wage increases to skilled employees in the bargaining unit and, about March 28, 2016,
unilaterally granted wage increases to semiskilled employees in the bargaining unit, without the
Union’s consent, in violation of Section 8(a)(5) and (1) and Section 8(d) of the Act.
The complaint also alleges that since about March 28, 2016, the Respondent has been
unilaterally awarding sign-on bonuses and new hire referral bonuses to eligible bargaining unit
employees in violation of Section 8(a)(5) and (1) of the Act.
JD–120-16
2
On the entire record, including my observation of the demeanor of the witnesses,1 and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT5
I. JURISDICTION
The Respondent, a corporation, with an office and place of business in Tecumseh,
Michigan, is engaged in the stamping, assembly, and non-retail sale of automotive support 10
systems. In conducting its operations during the 12-month period ending December 31, 2015, the
Respondent sold and shipped from its Tecumseh, Michigan facility goods valued in excess of
$50,000 directly to points outside the State of Michigan. The Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 15
II. ALLEGED UNFAIR LABOR PRACTICES
Background
20
The Respondent is an automotive stamping and welding facility which supplies parts to
manufacturers such as General Motors, Chrysler, Ford, Toyota, and BMW. The Respondent and
the Union have had a collective-bargaining relationship since 1993. The most recent contract
between the parties covers the period from April 5, 2013 until April 5, 2018 (GC Exh. 2). The
bargaining unit represented by the Union is comprised of:25
All regular full-time production and maintenance employees employed by the
Respondent at its Tecumseh, Michigan 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.30
The bargaining unit is composed of skilled trade employees (skilled employees) and
semiskilled trade employees (semiskilled employees). According to the credited testimony of
Joseph Grisham, the unit chairperson of Local 3000 UAW (the Local Union), at the time of the
hearing on September 26, 2016, there were approximately 610 employees in the bargaining unit 35
represented by the Union. At that time, the bargaining unit contained 50 to 55 skilled trade
employees who are composed of die repairman and maintenance employees. There were

1 In making my findings regarding the credibility of witnesses, I have considered their demeanor, the
content of the testimony, and the inherent probabilities based on the record as a whole. In certain
instances, I credited some, but not all, of what a witness said. I note, in this regard, that “nothing is more
common in all kinds of judicial decisions to believe some and not all” of the testimony of a witness. Jerry
Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754
(2d Cir. 1950), revd. on other grounds, 340 U.S. 474 (1951). See also J. Shaw Associates, LLC, 349
NLRB 939, 939-940 (2007). In addition, I have carefully considered all the testimony in contradiction to
my factual findings and have discredited such testimony.
JD–120-16
3
approximately 550 employees in the semiskilled employee classification, who are responsible for
the actual production work at the plant. In November 2015, the total number of bargaining unit
employees was approximately 425. According to the terms of the current collective-bargaining
agreement, the starting wage rate for skilled employees is $22.19 per hour. According to
Grisham, after 3 months skilled employees progressed to a wage level of $24.10 an hour.5
Pursuant to the collective-bargaining agreement, the starting wage rate for semiskilled employees
is $10 an hour. The contract further provides that semiskilled employees have the following
wage progression: 12 months-$10.40; 24 months-$10.90; 36 months-$12; and 48 months-$14.35
(GC Exh. 2, appendix A, p. 68).
10
The Wage Increase for Skilled Employees
According to the credited and uncontradicted testimony of Melissa Tarsha, the
Respondent’s human resources manager, the Respondent’s facility operates approximately 300
dies, which are used to make various automotive parts. Die repairmen have a critical role in the 15
Respondent’s operation as they maintain the existing dies and also tests new dies that come into
the plant. The Respondent attempts to comply with the industry standard of having a die
repairman for every 10 dies, so that it needs to have approximately 30 die repairmen in order to
operate at maximum efficiency. Tarsha testified that from the latter part of 2014 into 2015 the
Respondent experienced a rapid decline of the die repairmen that it employed because they 20
voluntarily left employment with the Respondent. The Respondent reached its lowest point in
July 2015 when only five die repairman were employed.
According to Tarsha, the effect of the shortage of die repairman caused the remaining die
repairmen to have to work excessive overtime. In addition, the Respondent was not able to 25
maintain appropriate support for production or engage in preventative maintenance. Because of
the inability to maintain production levels, the Respondent had to outsource approximately $1.2
to $1.3 million of work a month. In an attempt to alleviate situation, the Respondent also hired
contract die makers at a cost of approximately $40-$50 an hour per individual. Because of the
production problems that the Respondent experienced, the Respondent’s customers became 30
concerned that the Respondent would not be able to meet their requirements and became more
involved in the Respondent’s business operations. One customer had a representative in the plant
to monitor the Respondent’s production process regarding the parts supplied to it. Other
customers required daily or weekly calls from Tarsha reporting on the manpower situation and
what the Respondent was doing to alleviate it.35
During 2015, the Respondent contacted multiple recruiters to assist it in hiring die
repairmen. The Respondent received reports from its recruiters reporting that the primary factors
hindering its recruitment of new die repairmen was that the Respondent’s wages were below the
market level and that the market for die repairmen was especially tight.40
In late November 2015, Grisham and Steve Gonzalez, the local union president, met with
John Donahoe, the Respondent’s plant manager, in Donohue’s office. According to Grisham,
Donahoe informed the union representatives that the Respondent intended to increase the starting
wage rate for skilled employees to $30 an hour. The union representatives informed Donahoe 45
that the Respondent could not increase the wages to $30 an hour without bargaining with the
Union. Donahoe presented no documentation to the Union at the meeting regarding the factors
JD–120-16
4
supporting the Respondent’s intention to raise the starting wage rate for skilled employees and
the union representatives did not consent to the increase.2
According to the uncontradicted testimony of Grisham, on November 30, 2015, the
Respondent increased the wage rate of the approximately 25 skilled employees who were 5
currently working for the Respondent to $30 an hour.
On November 30, 2015, Mike Thornton, a representative of UAW Region IA (the
International Union), sent an email to Tarsha indicating that he had received a phone call from
Ed Ward, the local union’s acting local chairman, informing him that the Respondent had 10
decided to increase the base wage rate of all skilled employees to $30 an hour. Thornton’s email
further indicated, inter alia, that if this information was accurate, he was putting the Respondent
on notice that its action was a violation of the collective-bargaining agreement.
After the change in wages for the skilled employees had been implemented, the Union15
and the Respondent had a series of meetings in December 2015 and January 2016 regarding,
inter alia, the wage increase that had been granted to the skilled employees. The first meeting
occurred on December 2, 2015.3 Grisham and Gonzalez attended on behalf of the Union, while
Donahoe and Tarsha represented the Respondent. At this meeting Donahoe reiterated that the
Respondent had to pay $30 an hour in order to attract more skilled employees into the plant. The 20
parties did not reach an agreement regarding the wage increase for skilled employees at this
meeting.
While there is not much detail regarding these meetings in the record, Grisham’s credited
testimony establishes that the Union was attempting to gain an increase in compensation for 25
other members of the bargaining unit, who had not been subject to the increase in wages
instituted by the Respondent for the skilled employees. At the meeting held on December 2,
2015, the Respondent made a proposal to the Union regarding proposed changes to the existing
collective-bargaining agreement, including article 17, the provision regarding skilled trades
employees. On December 10, 2015, the Union presented a counterproposal to the Respondent 30
regarding its requested changes to the existing collective-bargaining agreement. On December
17, the parties met again and the Respondent made a new proposal seeking to modify the
existing collective-bargaining agreement (GC Exh. 13). There was no agreement reached at this

2 Donahoe did not testify at the hearing and thus Grisham’s testimony regarding this meeting is
uncontradicted and I credit it. While Grisham’s testimony about the meeting was brief, it was clear and
concise with respect to its substance. Tarsha was not present for this meeting. Tarsha testified in a general
fashion that the Respondent met with the Union before increasing the wages of skilled employees.
According to Tarsha, the Union did not support the Respondent's position in raising the wages for skilled
trade employees and did not offer any alternate solutions.
3 There are minor discrepancies regarding the dates that the meetings were held by the parties in
December 2015 and January 2016 between Grisham’s testimony and a letter the Union sent to employees
on January 11, 2016 (GC Exh. 6), advising them of the status of discussions that were being held between
the Respondent and the Union. I have used the dates set forth in the letter to employees regarding these
meetings as it was signed by Grisham and other members of the bargaining committee and was prepared
shortly after the meetings were held. Under these circumstances I believe the Union's January 11 letter
more accurately sets forth the dates of these meetings.
JD–120-16
5
meeting regarding modifications to the collective-bargaining agreement. The parties also met on
January 6, 2016, but reached no agreement to modify the collective-bargaining agreement.
On January 6, 2016, the Respondent issued a memo to all employees (GC Exh. 5)
indicating:5
The Union and Company have agreed to sit down to discuss wages and areas of
improvements under the current Collective Bargaining Agreement. Changes to
semi-skilled wages, including those of temporary employees, are not finalized.
Further communications will be provided as we continue to have a dialogue. 10
Thank you for your time and patience.
As noted above, on January 11, 2016, the Union sent a letter to all unit employees
regarding the discussions between the parties that had taken place since the Respondent had
unilaterally increased the wage rate of skilled employees at the end of November 2015. In this 15
letter, Union indicated that the discussions had been generated because of the increase in wages
to skilled employees implemented by the Respondent. The Union’s letter also indicated it was
not opposed to giving the skilled employees a wage increase, but that its position was that all
bargaining unit employees should be compensated “for their hard work and efforts.” (GC Exh.
6.)20
On January 12, 2016, Grisham sent an email to Donahoe requesting that the Respondent
indicate in writing that it had increased the wages of skilled trade employees by $5.90 an hour, as
the Union had not received official notice of this wage adjustment (GC Exh. 7). On January 15,
2016, Tarsha replied in an email indicating “Skilled Trades employees are compensated at $30 25
an hour.” (GC Exh. 8.)
The parties met again on January 14, 19, 25, and in early February 2016, to discuss
possible modifications to the contract but did not reach an agreement.
30
According to Tarsha, as a result of the wage increase to skilled trade employees, at the
time of the hearing on September 26, 2016, the Respondent had 15 die repairmen and had been
able to bring back into the facility approximately 55 percent of the work it had previously
outsourced. In addition, overtime had been reduced and the Respondent’s customers no longer
required daily or weekly updates regarding the Respondent’s manpower situation.35
The Wage Increase for Semiskilled Employees and the Implementation of Sign-On and New-
Hire Referral Bonuses
Tarsha testified that during the latter part of 2015 and the first part of 2016, the 40
Respondent also had difficulty in maintaining the requisite number of semiskilled employees.
According to Tarsha the Respondent needs 712 semiskilled employees to effectively operate the
facility.4 Tarsha testified that during the early part of 2016 the number of semiskilled employees

4 According to Tarsha, this figure is composed of production employees, “hi-lo-drivers”, quality
employees, and team leaders. It also includes both temporary and full-time employees. Thus, it appears
that this figure includes supervisors and temporary employees who are not included in the bargaining unit.
JD–120-16
6
at the facility substantially declined. The Respondent received feedback from departing
employees, a staffing agency that supplies it temporary employees, and “Michigan works!” a
state job program, indicating that the reason for the decline was that the Respondent’s wage scale
was not competitive in the area. The information that the Respondent received reflected that the
starting wage rate for other manufacturing facilities in the area ranged from $11.25 to $12 an 5
hour. As noted above, the Respondent’s starting wage rate for semiskilled employees was $10 an
hour. In early 2016, the Respondent reached the level where it was approximately 100 employees
short of its optimal level of employment of semiskilled trade employee. According to Tarsha, the
result of the staffing shortage was excessive overtime, increased absenteeism, and the loss of
customer confidence because of production problems.10
As discussed above, from early December 2015 through February 2016, the parties had
meetings regarding the possibility of reaching modifications to the existing contract, including
the wages of skilled employees and semiskilled employees, but were unable to reach an
agreement.15
The Respondent periodically conducts “state of the business” meetings with employees to
inform them of important issues. According to Grisham’s credited and uncontradicted testimony,
he attended a “state of the business meeting” conducted by Donahoe on March 22, 2016. At this
meeting, Donahoe told the assembled unit employees that the Respondent was going to increase 20
the wage rate for newly hired semiskilled employees from $10 to $10.75 an hour. Donahoe also
told employees that if any current employee referred a new hire to work at the plant, the current
employee would receive a $100 referral bonus. Finally, Donahoe stated that any new employee
who completed the probationary period would receive a $1000 sign-on bonus.
25
Grisham testified that the Union had not consented to the $10.75 per hour wage rate for
newly hired semiskilled trade employees. Grisham further testified the Respondent had never
discussed the $100 referral bonus nor the $1000 sign-on bonus with the Union prior to the
meeting that Donahoe conducted with unit employees on March 22. Grisham learned of these
changes in compensation at the same time as the rest of the bargaining unit. On March 22, the 30
Respondent also posted flyers in the facility regarding the referral bonus and the sign-on bonus
(GC Exhs. 9 and 10). The new wage rate for semiskilled employees and the implementation of
the referral and sign-on bonuses became effective on March 22.
Grisham testified that shortly after the meeting Donahoe conducted on March 22, some 35
employees told him of their discontent with the Respondent’s action as it applied to them.
Grisham explained at the hearing that if current employees had not yet reached the $10.75 an
hour level as of March 22, 2016, their pay was increased. However, employees who were
making $10.75 an hour or above, received no increase. Under the contract wage scale,
semiskilled trade employees who had worked for the Respondent for 2 years at the time this 40
announcement were making $10.90 an hour. Grisham testified that there were approximately 200
employees who received no wage increase pursuant to the Respondent’s change in the wage
scale.
Later in the day on March 22, Grisham met with Donahoe and told him that the 45
Respondent’s action in increasing the starting wage rate to $10.75 an hour was creating some
discontent with respect to the manner in which it applied to current employees. Grisham also
JD–120-16
7
told Donahoe that he could not increase the wage rate by 75 cents an hour without bargaining
with the Union. Donahoe merely responded by saying he had to increase the wages in order to
attract new employees. Later in the day on March 22, Grisham called Donahoe and told him that
employees who were currently in their probationary period were frustrated that they were not
eligible for the $1000 sign-on bonus. Donahoe called Grisham back later that day and informed 5
him that the Respondent would agree to pay the currently employed probationary employees the
$1000 sign-on bonus, upon successful completion of their probationary period.
The parties met again on April 8, 2016, in an attempt to reach an agreement regarding
modifications to the contract, including the starting wage rate for newly hired employees, but10
were unable to reach an agreement.
Grisham testified that when he returned from vacation on April 24 or 25, 2016, he
listened to a voicemail message left on his phone by Donahoe on April 21. According to
Donahoe’s message, effective on April 24, 2016, the Respondent was going to raise the starting 15
wage rate for semiskilled employees from $10.75 an hour to $11.50 an hour in order to attract
new hires. Grisham credibly testified that the Respondent had not bargained with the Union
regarding this change, and the Union had not consented to it. After listening to Donahoe’s
voicemail message, Grisham later saw Donahoe in the plant and Donahoe made a gesture
crossing his fists. Grisham testified that he took this to mean that Donahoe was indicating that 20
his hands were tied with regard to this issue.
On May 2, 2016, Grisham sent an email to Tarsha, reiterating a request originally made
on April 12, 2016, asking that the Respondent provide something in writing pertaining to the
entry level wage rate for semiskilled employees, the $1000 sign-on bonus and the $100 referral 25
bonus. On May 10, Tarsha replied in an email indicating that the entry-level wage rate was
$11.50 for semiskilled employees and that the sign-on and referral bonuses that Grisham’s email
had referred to were current and accurate. (GC Exh. 11.)
Tarsha credibly testified that as a result of the wage increase to semiskilled employees, 30
overtime, absenteeism and employee turnover had decreased. In addition, she also testified that
the Respondent had brought back into the facility at approximately 55 percent of the work that
had been outsourced, and that customers no longer required daily or weekly updates. Finally, the
Respondent was no longer expediting shipments on a regular basis.
35
Analysis
Whether the Wage Increase Granted to Skilled and Semiskilled Employees Violated Section
8(a)(5) and (1) and Section 8(d) of the Act
40
As noted above, the Union and the Respondent are currently signatory to a collective-
bargaining agreement effective from April 5, 2013 until April 5, 2018, covering the production
and maintenance employees employed by the Respondent at its Tecumseh, Michigan facility.
Pursuant to appendix A of this agreement, there are specific starting wage rates and wage
progression levels for both skilled employees and semiskilled employees. On November 30, 45
2015, the Respondent unilaterally increased the wage rate for all skilled employees to $30 an
hour. Prior to that point, the starting wage rate had been $22.19 per hour for newly hired skilled
JD–120-16
8
employees. After 3 months skilled employees received a raise to $24.10 an hour. On March 22,
2016, the Respondent unilaterally increased the starting wage rate for semiskilled employees to
$10.75 an hour. The Respondent also unilaterally increased the wage rate of current employees
who were earning less than $10.75 an hour to that amount. However, semiskilled employees who
were being paid more than that did not receive a wage increase. On April 24, 2016, the 5
Respondent again unilaterally increased the wage rate for semiskilled employees to $11.50 an
hour. There is no record evidence regarding the effect this wage increase had on current
employees earning less than the amount. Given the fact that when the Respondent’s unilaterally
increased the starting wage rate for semiskilled employees to $10.75 an hour in March, it also
increased to that level the wages of all current employees who were earning less than that 10
amount, I draw the inference that the Respondent took the same approach when it unilaterally
raised the starting wage to $11.50 in April. I also draw the inference that semiskilled employees
earning more than $11.50 an hour were not given a wage increase
Under the express terms of Section 8(d) of the Act, wages are a mandatory subject of 15
bargaining. In NLRB v. Katz, 369 U.S. 736, 743-745 (1962), the Supreme Court held that an
employer’s unilateral implementation of a wage increase violates Section 8(a)(5) and (1) of the
Act. In Oak Cliff Golman Baking Co., 207 NLRB 1063, 1064 (1973), the Board held that the
unambiguous language of Section 8(d) forbids an employer from making a midterm modification
of a contract’s wage provisions without the union’s consent and noted that the union has the 20
privilege of refusing to grant consent. The Board found that the respondent’s conduct in
unilaterally reducing wages during the term of its contract with the union, modified its
collective-bargaining agreement within the meaning of Section 8 (d) of the Act, and thereby
violated Section 8(a)(5) and (1).
25
Since Oak Cliff Golman Baking Co., supra, the Board has consistently held that an
employer violates Section 8(a)(5) and (1) and Section 8(d) of the Act during the term of a
collective-bargaining agreement by modifying any provision governing a mandatory subject of
bargaining, such as wages, without obtaining the union’s consent. Daycon Products Co., Inc.,
357 NLRB 508 (2011), reaffirmed 360 NLRB No. 54 (2014); Republic Die & Tool Co., 343 30
NLRB 683, 686 (2004); St. Barnabas Medical Center, 341 NLRB 1325 (2004); Integrated
Health Services, 336 NLRB 575, 579 (2001); Wightman Center, 301 NLRB 573, 575-576 (1991)
Mack Trucks, Inc., 294 NLRB 864 (1989). In several of the cases cited above, the employer
unilaterally increased the wages of employees during the term of a collective-bargaining
agreement, the same action as that taken by the Respondent in the instant case. St. Barnabas 35
Medical Center; Integrated Health Services,; Wightman Center; Mack Trucks Inc. supra.
In St. Barnabas Medical Center, supra at 1329, the Board reiterated the following
applicable principle that was expressed in Integrated Health Services, supra, at 579:
40
The good intentions of the Respondent to stay in business and to deliver quality
patient care are, however, irrelevant to the issue of whether the Respondent
violated the Act when it unilaterally granted the wage increases during the term of
the collective-bargaining agreements. The unambiguous language of Section 8(d)
explicitly forbids midterm modification of a collective-bargaining agreement’s 45
wage provisions without the Union’s consent
JD–120-16
9
In the instant case, the Respondent contends that the shortage of skilled die repairmen
and semiskilled production employees caused serious issues including the performance of an
unsustainable amount of overtime work, substantial outsourcing costs, and the inability to
perform preventive maintenance. The cumulative effect of this series of problems led to
customer dissatisfaction. Respondent contends that the issues caused by the shortage of 5
employees threatened its continued existence. The Respondent asserts that increasing the wages
of skilled employees and semiskilled production employees was necessary to maintain the
effective and efficient operation of its facility.
Respondent contends that the midterm modifications it made to the wages of skilled and 10
semiskilled employees is permitted under its interpretation of the collective-bargaining
agreement. In this connection, the Respondent argues that the wage rates set forth in the
collective-bargaining agreement set forth the minimum amount that the Respondent is required
to pay, but that there is nothing to prohibit the Respondent from paying a higher wage rate. In
addition, the Respondent contends that its action in raising the wage rates of skilled and 15
semiskilled trade employees is permitted under the management-rights clause of the existing
collective-bargaining agreement which provides , inter alia, that the Respondent has the right to
“make, enforce and amend or revise such work rules and regulations as it may from time to
time, in its sole discretion, deems suitable for the purpose of maintaining the order, safety and/or
effective and efficient operation of Company facilities.” (GC Exh. 2, article 4, section 2, p. 6.)20
In support of its position, the Respondent relies on cases in which the Board has refused
to find a violation of Section 8(a)(5) and (1) and Section 8(d) on the basis that an employer’s
midterm modification of an agreement had a “sound, arguable basis” in the contract. American
Electric Power, 362 NLRB No. 92 (2015); Bath Iron Works Corp., 345 NLRB 499, 501-502 25
(2005), affd. sub nom. Bath Marine Draftsmen Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007);
Phelps Dodge Magnet Wire Corp., 346 NLRB 949 (2006); Thermo Electron Corp., 287 NLRB
820 (1987); NCR Corp., 271 NLRB 1212, 1213 (1984).
In the instant case, the current collective-bargaining agreement provides, in appendix A, a 30
“Wage Progression Schedule (2013-2018)” that states: “The Company shall follow the following
wage scales during the term of the agreement:” The agreement then provides, for both skilled
and semiskilled employees, specific starting rates and wage progression scales throughout the
term of the collective-bargaining agreement. There is absolutely no language in the collective-
bargaining agreement that provides that the Respondent has discretion with respect to paying 35
wages above those set forth in the collective-bargaining agreement. For example, there is nothing
in the agreement that indicates that the Respondent can pay wages within a certain range. There
is certainly nothing to support the Respondent’s position that the collective-bargaining
agreement sets minimum wage rates and that the Respondent has the unfettered discretion to pay
more than that. In this regard, I find that the Respondent’s right to make or revise “work rules 40
and regulations” does not apply to the specific wage rates set forth in appendix A of the parties
collective-bargaining agreement. Thus I find that the employer’s interpretation of the agreement
does not have a “sound, arguable basis”; rather, I find it to be implausible.
None of the cases relied on by the Respondent involve a conflict between the General 45
Counsel and a respondent regarding the interpretation of express wage rates set forth in a
collective-bargaining agreement. While the cases relied on by the Respondent involve the
JD–120-16
10
consideration of differing contract interpretations regarding a variety of other mandatory subjects
of bargaining, in each one, the Board found that there was a plausible contract interpretation to
support the respondent’s position. In such situations, the Board holds that, when the dispute is
solely one of contract interpretation and there is no evidence of, animus, bad faith or an intent to
undermine the union, “the Board does not seek to determine which of two equally plausible 5
contract interpretations is correct.” American Electric Power, supra, slip op. at 3; Phelps Dodge
Magnet Wire Corp., supra, at 951. It is on that basis that the Board refuses to find a violation of
Section 8(a)(5) and (1) and Section 8(d) of the Act in such situations.
In the instant case, since there is no language in the current collective-bargaining 10
agreement between the parties that supports the Respondent’s interpretation of the agreement, I
find the cases relied on by the Respondent to be distinguishable. Rather, I find the instant case to
be similar to Hospital San Carlos Borromeo, 355 NLRB 153 (2010). In that case, the Board
found that the respondent did not have a sound, arguable basis for its contract interpretation.
Rather, the Board found that the respondent’s interpretation was implausible. Accordingly, the 15
Board found that the respondent’s refusal to pay employees the full amount of the Christmas
bonus owed to them under the parties’ collective-bargaining agreements violated Section 8(a)(5)
and (1) of the Act.
As noted above, the Respondent also contends that the management-rights clause of the 20
collective-bargaining agreement supports its position that it is permitted to make midterm wage
increases in order to maintain effective and efficient facility operations (GC Exh. 2, article 4,
section 2). However, the management-rights clause specifically indicates that the Respondent
“has all rights, powers, prerogatives, authority and functions except as those rights, powers
prerogatives, authority and functions are expressly and specifically restricted by the written 25
provisions of this Agreement.” (GC Exh. 2, article 4, section 3). As noted above, appendix A of
the collective-bargaining agreement clearly sets forth the wages to be paid during the term of the
agreement.
In determining whether a management rights clause permits an employer to unilaterally 30
change a mandatory subject of bargaining during the term of a collective-bargaining agreement,
the Board applies its long held “clear and unmistakable waiver” standard. This standard “requires
bargaining partners to unequivocally and specifically express the mutual intention to permit
unilateral employer action with respect to a particular employment term, notwithstanding the
statutory duty to bargain that would otherwise apply.” Provena St. Joseph Medical Center, 350 35
NLRB 808, 811 (2007). It is, of course, the case that the union’s actual consent is required before
a mandatory subject of bargaining contained in a collective-bargaining agreement can be
modified. Id. at fn. 16. It is the burden of the party asserting a waiver of bargaining rights to
establish its existence. Philadelphia Coca-Cola Bottling Co., 340 NLRB 349, 353 (2003).
40
In the instant case, the general language that the Respondent relies on in the
management-rights clause certainly does not establish that the parties have unequivocally and
specifically expressed the mutual intention to permit unilateral employer action with respect to
the wage rates specifically set forth in the collective-bargaining agreement.
45
I also note that there is no reopener provision in the collective-bargaining agreement
between the parties regarding wages. Since there is no wage reopener provision, the fact that the
JD–120-16
11
parties met and discussed various proposals regarding modifications to the collective-bargaining
agreement, including the wages of skilled and semiskilled employees, did not impose traditional
bargaining obligations on the parties. St Barnabas Medical Center, supra, at 1325.The only
manner in which the Respondent could have lawfully implemented the wage increases granted to
skilled and semiskilled employees was to obtain the Union’s consent. Since it did not do so, the 5
Respondent’s implementation of wage increases to the skilled employees on November 30, 2015,
and the semiskilled employees on March 22 and April 24, 2016,5 during the term of the
collective-bargaining agreement, violated Section 8(a)(5) and (1) and Section 8(d) of the Act.
10
Whether the Respondent’s Unilateral Grant of New Hire Referral and Sign-On Bonuses to Unit
Employees violated Section 8(a)(5) and (1) of the Act
The first issue for resolution is whether the new hire referral and sign-on bonuses are
mandatory subjects of bargaining. In Ohio Edison Co., 362 NLRB No. 88, JD slip op. at 10 15
(2015), the Board reiterated some of the applicable principles with respect to this issue as
follows:
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 20
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 broadly 25
construed the term ‘wages’ in Section 8(d) of the Act to include “emoluments of
value. . . which may accrue to employees 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.”30
The Board has held that it finds payments to employees, including bonuses, to constitute
wages and thus a mandatory subject of bargaining, when there are clear ties to employment-
related factors. North American Pipe Corp., 347 NLRB 836, 837- 838 (2006). In Phelps Dodge
Mining Co., 308 NLRB 985 (1992), enf. denied 922 F.3d 1493 (10th Cir. 1994), the Board found 35
that “appreciation payments” in amounts of up to $1000 constituted significant employment
benefits to eligible employees, based on the employment-related factors of wages and hours

5 Paragraph 14(b) of the complaint alleges that “about March 28, 2016” the Respondent unilaterally
awarded a wage increase to semiskilled employees. In conjunction with paragraphs 15 and 16 of the
complaint, the complaint alleges that the Respondent's conduct violated Section 8(a)(5) and (1) and
Section 8 (d) of the Act. While the complaint does not specifically allege the wage increase that the
Respondent granted to semiskilled employees on April 24, 2016, to be a violation of the Act, there is an
extremely close connection between the specific allegation of the complaint and the Respondent’s nearly
identical unilateral conduct in April 2016. Accordingly, I find the Respondent's April 24, 2016 conduct is
sufficiently related to the complaint allegation for me to consider it as an unfair labor practice. Hi-Tech
Cable Corp., 318 NLRB 280 (1995), enfd. in part, 128 F.3d 271 (5th Cir. 1997).
JD–120-16
12
worked, and thus constituted a mandatory subject of bargaining over which the respondent was
required to bargain.
In the instant case, the record clearly establishes that the Respondent had a substantial
need to hire new skilled and semiskilled employees and to retain employees who were currently 5
employed. In an effort to assist it in alleviating the manpower shortage the Respondent was
experiencing, it offered a $100 referral bonus to existing unit employees if they referred an
individual to the Respondent and the referred employee completed the probationary period. The
payment of both the referral bonus and the sign-on bonus are clearly tied to the employment-
related factor of hiring new employees who successfully complete the probationary period. In 10
addition, the payment of the referral bonus, in effect, constitutes a wage increase for currently
employed employees and the sign-on bonus, in effect, constitutes a substantial wage increase to
newly hired employees who successfully complete the probationary period. It is clear that both
the referral and sign-on bonuses constitute mandatory subjects of bargaining and thus the
Respondent was obligated to give notice and an opportunity to bargain with the Union before 15
implementing the bonuses.
On March 22, 2016, the Respondent announced to the employees assembled at a “state of
the business” meeting that it was implementing the referral and sign-up bonuses. On the same
date, the Respondent posted flyers in the facility advising employees of the implementation of 20
these programs. The Union was not given prior notice or an opportunity to bargain over the
bonus plans prior to their implementation. As noted above, Grisham found out about the
implementation of these programs at the same time as unit employees by virtue of his attendance
at the meeting held on March 22. After the meeting, several employees who were currently in
their probationary periods spoke to Grisham and told him that they were frustrated by the fact 25
that they were not eligible for the sign-on bonus, as it would be granted only to employees who
started after March 22. Grisham called Donahoe later that day and informed him of the
frustration of the current employees in the probationary period regarding the fact that they were
not eligible for the $1000 sign-on bonus. The Respondent then agreed that it would pay currently
employed probationary employees the $1000 sign-on bonus upon the successful completion of 30
their probationary period.
It is clear that the Respondent did not provide the Union’s with prior notice and an
opportunity to bargain to regarding the referral and sign-on bonuses before they were
implemented on March 22, 2016. Rather, the Union found out about the implementation of the 35
bonuses at the same time as unit employees.
The standards utilized by the Board in determining whether a respondent has unlawfully
failed to notify the union in advance of an implemented change in a mandatory subject of
bargaining are set forth in Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013 (1982), enfd. 40
722 F.2d 1120, 1126-1127 (3d Cir. 1983). In that case the Board indicated:
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 45
be given sufficiently in advance of the actual implementation of the change to
allow a reasonable opportunity to bargain. However, if the notice is too short a
JD–120-16
13
time before the implementation or because the employer has no intention of
changing its mind, then the notice is nothing more than informing the union of a
fait accompli. [Footnotes omitted.]
The Board has consistently applied these standards in determining whether a5
respondent’s unilateral change in a mandatory subject of bargaining violates Section 8(a)(5) and
(1) of the Act. Ohio Edison Co., supra, JD slip op. at 12; Roll & Hold Warehouse & Distribution
Corp., 325 NLRB 41, 42 (1997); Intersystems Design and Technology Corp., 278 NLRB 759
(1986).
10
Applying those standards to the instant case, the Respondent did not give the Union prior
notice or an opportunity to bargain before notifying unit employees of its newly implemented
policy regarding referral and sign-on bonuses. Rather, the Union found out about these new
policies at the same time as unit employees. Thus, the Union was presented with a fait
accompli. The fact that the Respondent discussed with the Union the manner in which the sign-15
on bonus would be applied to employees currently in the probationary period, did not cure the
Respondent’s failure to give notice and an opportunity to bargain to the Union before the sign-on
bonus was implemented. The Respondent was obligated to give the Union notice in advance of
implementation in order to allow good faith bargaining to occur. Woodland Clinic, 331 NLRB
735, 738 (2000).20
I also note there is nothing in the parties’ current collective-bargaining agreement that
would privilege its unilateral implementation of the referral and sign-on bonuses. The only
mention of a bonus in the collective-bargaining agreement is that it provides that all employees
would receive a $1000 one-time signing bonus to be paid within 30 days of the ratification of the 25
collective-bargaining agreement (GC Exh. 2, p. 88). There is nothing in the collective bargaining
agreement that establishes that the Union waived its bargaining rights with respect to the
implementation of a referral and sign-on bonus during the term of the collective bargaining
agreement under the standards set forth above in Provena St. Joseph Medical Center, supra.
30
On the basis of the foregoing, I find that the Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally granting referral and sign-on bonuses to unit employees beginning on
March 22, 2016.
CONCLUSIONS OF LAW35
1. Local 3000, International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL-CIO (the Union), is, and, at all material times,
was the exclusive bargaining representative in the following appropriate unit:
40
All regular full-time production and maintenance employees employed by the
Respondent at its Tecumseh, Michigan 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.
45
2. The Respondent and the Union are parties to a collective-bargaining agreement that is
effective by its terms from April 5, 2013 until April 5, 2018.
JD–120-16
14
3. The Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and
(1) and Section 8(d) of the Act by, on November 30, 2015, unilaterally granting wage increases
to skilled unit employees and by, on March 22 and April 24, 2016, unilaterally granting wage
increases to semiskilled unit employees, without the consent of the Union.
5
4. The Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and
(1) by, beginning on March 22, 2016, unilaterally granting referral and sign-on bonuses to unit
employees without giving the Union prior notice and an opportunity to bargain.
5. The above unfair labor practices affect commerce within the meaning of Section 2(2), 10
(6,) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 15
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. I shall order the Respondent to rescind, upon the request of the Union, the
wage increases granted to skilled and unskilled employees. St. Barnabas Medical Center;
Integrated Health Services; Wightman Center; Mack Trucks Inc. supra. I shall also order the
Respondent to rescind, upon the request of the Union, the referral and sign-on bonuses granted to20
unit employees and bargain with the Union if it desires to grant referral and sign-on bonuses to
unit employees. Washington Beef, Inc. 328 NLRB 612, 613, 621 (1999).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended625
ORDER
The Respondent, Lewanee Stamping Corp. d/b/a Kirchhoff Van-Rob, Tecumseh,
Michigan, its officers, agents, successors, and assigns, shall30
1. Cease and desist from
(a) Refusing to bargain with Local 3000, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (the Union), in 35
the following appropriate unit, by unilaterally implementing wage increases to unit employees
during the term of a collective bargaining agreement, without the consent of the Union. The
appropriate bargaining unit is:
All regular full-time production and maintenance employees employed by the 40
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

6 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.
JD–120-16
15
(b) Refusing to bargain with the Union by unilaterally 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 employees in
the exercise of the rights guaranteed them by Section 7 of the Act.5
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On 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, 2016.10
(b) On request of the Union, rescind the referral and sign-on bonuses granted to unit
employees beginning on March 22, 2016, and give notice and an opportunity to bargain to the
Union regarding granting such bonuses to unit employees.
15
(c) Within 14 days after service by the Region, post at its facility in Tecumseh, Michigan,
copies of the attached notice marked “Appendix.”7 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 20
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. In the event that, during the pendency of these proceedings, the Respondent 25
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.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn 30
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., December 22, 2016.
35
____________________
Mark Carissimi
Administrative Law Judge
40

7 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.”
XI 0144440A1
16
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 refuse to bargain with Local 3000, International Union United
Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (the
Union), in the following appropriate unit, by unilaterally implementing wage increases during
the term of a collective bargaining agreement, without the consent of the Union. The appropriate
bargaining unit is:
All regular full-time production and maintenance employees employed by the
Respondent at its Tecumseh, Michigan 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.
WE WILL NOT refuse to bargain with the Union by unilaterally 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
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, on 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, on request of the Union, rescind the referral and sign-on bonuses granted to
unit employees on or after March 22, 2016, and give notice and an opportunity to bargain to the
Union regarding granting such bonuses to unit employees.
17
LEWANEE STAMPING CORP. d/b/a KIRCHHOFF
VAN-ROB
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-168498 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.