This National Labor Relations Board (NLRB) decision addresses two consolidated cases concerning alleged unfair labor practices by GE Appliances, a Haier Company (the Respondent), at its Louisville, Kentucky facility. The NLRB affirmed the findings and conclusions of Administrative Law Judge (ALJ) Kimberly Sorg-Graves, with minor modifications to the recommended order.

ALJ's Decision:

The ALJ found that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) on two grounds:

1. Unilateral Wage and Shift Differential Increases: The ALJ determined that the Respondent unilaterally implemented wage increases and shift differential adjustments for certain unit employees on October 4, 2021, without notifying or bargaining with the Union. This action violated Section 8(a)(5) and (1) of the Act. The ALJ rejected the Respondent's defenses of "exigent circumstances" due to the COVID-19 pandemic and claimed union obstruction regarding a separate work schedule dispute, finding that the staffing issues were not unforeseen or sudden enough to justify bypassing the bargaining process, and that the contract modification doctrine prohibited such unilateral changes regardless of economic pressures. The ALJ noted that prior mid-contract changes to compensation had been bargained with the Union.

2. Unreasonable Delay in Providing Information: The ALJ also found that the Respondent violated Section 8(a)(5) and (1) by unreasonably delaying its response to a Union information request. Following a grievance settlement regarding vacation scheduling, the Union requested information on who, and with what authority, had allegedly removed a previously agreed-upon vacation allotment change from the system. The ALJ found the information request relevant to the Union's duty to represent employees and police the collective-bargaining agreement. The Respondent's month-long delay in providing a comprehensive response, despite having the information readily available, was deemed unreasonable, as was their contention that a prior internal communication served as a sufficient response to the Union's formal request.

NLRB's Decision and Order:

The NLRB reviewed the ALJ's decision, exceptions, and briefs. It affirmed the ALJ's rulings, findings, and conclusions, adopting the ALJ's recommended order with modifications to conform to standard NLRB remedial language and prior Board precedent.

Specifically, the NLRB agreed with the ALJ that the Respondent violated Section 8(a)(5) and (1) by:

• Unilaterally changing employees' terms and conditions of employment without notifying and bargaining with the Union.
• Making midterm modifications to the collective-bargaining agreement by altering contractual wage and shift-differential rates without the Union's consent.
• Unreasonably delaying in furnishing information relevant and necessary to the Union's performance of its bargaining functions.

The NLRB modified the ALJ's order to include standard language regarding notice to employees and to reflect the Board's decision in Excel Container, Inc. The Board also denied the General Counsel and Union's request for a non-traditional make-whole remedy, such as extending the unilateral wage increases to all unit employees. The Board stated that such a remedy would require altering Board precedent and declined to do so. The Board reiterated that the traditional remedy for such violations involves rescission of the unlawful increases upon the Union's request and an affirmative bargaining order.

Member Prouty concurred with the majority but would have found the requested information presumptively relevant, even without the Union explaining its specific relevance, based on the judge's findings that the request concerned terms and conditions of employment and was necessary for the Union's representation duties. Member Prouty also advocated for a standard remedy of reading the notice to employees at a group meeting, deeming it particularly appropriate in this case due to the seriousness and widespread nature of the unfair labor practices.

The final order directed the Respondent to cease and desist from making unilateral changes to terms and conditions of employment, modifying the collective-bargaining agreement without consent, and refusing to bargain by delaying information. The Respondent was ordered to bargain before implementing changes to wages, hours, or other terms, to rescind the unilaterally implemented wage and shift-differential increases upon the Union's request, and to provide requested information in a timely manner.

Significant Cases Cited:

• NLRB v. Katz, 369 U.S. 736 (1962): This Supreme Court case established that unilateral changes by an employer to mandatory subjects of bargaining without prior bargaining constitute a refusal to bargain under Section 8(a)(5) of the Act.
• Oak Cliff-Golman Baking Co., 202 NLRB 614 (1973): This case clarifies that modifying the terms of a collective-bargaining agreement midterm without the union's consent violates Section 8(d) of the Act, and thus Section 8(a)(5).
• NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956): This Supreme Court decision held that employers have a duty to provide information to unions that is relevant to their collective bargaining responsibilities.
• Des Moines Cold Storage, Inc., 358 NLRB 488 (2012): This case outlines that an employer can be found liable for a violation under either the unilateral change doctrine or the contract modification doctrine, even if the remedies and defenses differ.
• Bath Iron Works Corp., 345 NLRB 499 (2005): This decision affirmed that unilateral changes by an employer are violations of Section 8(a)(5) regardless of whether the collective-bargaining agreement specifically addresses the action, distinguishing it from contract modification violations.

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