K & C Supply

National Labor Relations Board - Board Decisions

Dec 7, 2000

332 N.L.R.B. 141 (N.L.R.B. 2000)

332 NLRB No. 141
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
K & C Supply, Inc. and Teamsters, Chauffeurs,
Warehousemen and Helpers Local Union No. 20
a/w the International Brotherhood of Teamsters,
AFL–CIO. Case 8–CA–31369
December 7, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
Upon a charge and an amended charge filed by the Un-
ion on February 25 and May 25, 2000, respectively, the
General Counsel of the National Labor Relations Board
issued a complaint on May 31, 2000, against K & C
Supply, Inc., the Respondent, alleging that it has violated
Section 8(a)(1) and (5) of the National Labor Relations
Act. Although properly served copies of the charge and
complaint, the Respondent failed to file an answer.
On October 13, 2000, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On October
18, 2000, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
no response. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated September 11, 2000, notified the Respondent
that unless an answer were received by September 25,
2000, a Motion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Ohio corpo-
ration, with an office and place of business in Toledo,
Ohio, has been engaged in the non-retail sale of plumb-
ing supplies. During the 12-month period preceding the
issuance of the complaint, the Respondent sold and
shipped from its Toledo, Ohio facility, goods valued in
excess of $50,000 directly to points outside the State of
Ohio. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All utility workers in the warehouse of the Employer,
but excluding office employees, outside salespersons,
janitorial and maintenance employees, management
employees and supervisors.
Since about June 1, 1998, and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit and since then the
Union has been recognized as the representative by the
Respondent. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent
of which is effective from June 1, 1998, to May 31,
2000.
At all times since June 1, 1998, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the unit.
Since on or about February 23, 2000, the Union, by
letter, requested that the Respondent bargain collectively
over the effects of the Respondent’s closing of its Toledo
facility, and since that time, the Respondent has failed
and refused to do so.
This subject relates to the wages, hours, and other
terms and conditions of employment in the unit and is a
mandatory subject for the purposes of collective bargain-
ing.
Since about February 23, 2000, the Union, by letter,
has requested that the Respondent furnish it with the fol-
lowing information: The names and addresses, dates of
hire, and date of last employment for all bargaining unit
employees from January 1, 1998, to the present.
The information requested by the Union is necessary
for and relevant to the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit.
Since about February 23, 2000, the Respondent has
failed and refused to furnish the Union with the re-
quested information.
CONCLUSIONS OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of its employees within the
meaning of Section 8(d) of the Act, and has thereby en-
gaged in unfair labor practices affecting commerce
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
within the meaning of Section 8(a)(1) and (5) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(1)
and (5) by failing to bargain with the Union, we shall
order the Respondent, on request, to bargain with the
Union about the effects of its decision to close its Toledo
facility. As a result of the Respondent’s unlawful failure
to bargain in good faith with the Union about the effects
of its decision to close its facility, the terminated em-
ployees have been denied an opportunity to bargain
through their collective-bargaining representative.
Meaningful bargaining cannot be assured until some
measure of economic strength is restored to the Union.
A bargaining order alone, therefore, cannot serve as an
adequate remedy for the unfair labor practices commit-
ted.
Accordingly, we deem it necessary, in order to effec-
tuate the purposes of the Act, to require the Respondent
to bargain with the Union concerning the effects of clos-
ing its facility on its employees, and shall accompany our
order with a limited backpay requirement designed both
to make whole the employees for losses suffered as a
result of the violations and to re-create in some practica-
ble manner a situation in which the parties’ bargaining
position is not entirely devoid of economic consequences
for the Respondent. We shall do so by ordering the Re-
spondent to pay backpay to the terminated employees in
a manner similar to that required in Transmarine Naviga-
tion Corp ., 170 NLRB 389 (1968).
Thus, the Respondent shall pay its terminated employ-
ees backpay at the rate of their normal wages when last
in the Respondent’s employ from 5 days after the date of
this Decision and Order until occurrence of the earliest of
the following conditions: (1) the date the Respondent
bargains to agreement with the Union on those subjects
pertaining to the effects of the closing of its facility on its
employees; (2) a bona fide impasse in bargaining; (3) the
Union’s failure to request bargaining within 5 business
days after receipt of this Decision and Order, or to com-
mence negotiations within 5 business days after receipt
of the Respondent’s notice of its desire to bargain with
the Union;1 (4) the Union’s subsequent failure to bargain
in good faith; but in no event shall the sum paid to these
employees exceed the amount they would have earned as
wages from the date on which the Respondent terminated
its operations, to the time they secured equivalent em-
ployment elsewhere, or the date on which the Respon-
dent shall have offered to bargain in good faith, which-
ever occurs sooner; provided, however, that in no event

1 Melody Toyota , 325 NLRB 846 (1998).
shall this sum be less than the employees would have
earned for a 2-week period at the rate of their normal
wages when last in the Respondent’s employ. Backpay
shall be based on earnings which the terminated employ-
ees would normally have received during the applicable
period, less any net interim earnings, and shall be com-
puted in accordance with F.W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
In view of the fact that the Respondent’s facility is cur-
rently closed, we shall order the Respondent to mail a
copy of the attached notice to the Union and to the last
known addresses of its former employees in order to in-
form them of the outcome of this proceeding.
Further, having found that the Respondent has failed to
provide the Union information that is relevant and neces-
sary to its role as the exclusive collective-bargaining rep-
resentative of the unit employees, we shall order the Re-
spondent to furnish the Union with the information re-
quested.
ORDER
The National Labor Relations Board orders that the
Respondent, K & C Supply, Inc., Toledo, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the unit set forth below, by
failing and refusing to bargain about the effects of its
decision to close its Toledo, Ohio facility:
All utility workers in the warehouse of the Employer,
but excluding office employees, outside salespersons,
janitorial and maintenance employees, management
employees and supervisors.
(b) Failing and refusing to provide to the Union the
following information necessary for and relevant to bar-
gaining, which the Union requested on about February
23, 2000: the names and addresses, dates of hire, and
date of last employment for all bargaining unit employ-
ees from January 1, 1998, to the present.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exe rcise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union over the effects
on unit employees of the closure of its Toledo facility
and reduce to writing any agreement reached as a result
of such bargaining.
(b) Pay the former unit employees their normal wages
when last in the Respondent’s employ from 5 days after the
date of this Decision and Order until occurrence of the ear-
liest of the following conditions: (1) the date the Respon-
dent bargains to agreement with the Union on those sub-
jects pertaining to the effects of the closing of its facility on
K & C SUPPLY, INC. 3
its employees; (2) a bona fide impasse in bargaining; (3)
the Union’s failure to request bargaining within 5 business
days after receipt of this Decision and Order, or to com-
mence negotiations within 5 business days after receipt of
the Respondent’s notice of its desire to bargain with the
Union; (4) the Union’s subsequent failure to bargain in
good faith; but in no event shall the sum paid to these em-
ployees exceed the amount they would have earned as
wages from the date on which the Respondent terminated
its operations, to the time they secured equivalent employ-
ment elsewhere, or the date on which the Respondent shall
have offered to bargain in good faith, whichever occurs
sooner; provided, however, that in no event shall this sum
be less than the employees would have earned for a 2-week
period at the rate of their normal wages when last in the
Respondent’s employ. Backpay shall be based on earnings
which the terminated employees would normally have re-
ceived during the applicable period, less any net interim
earnings, and shall be computed as set forth in the remedy
portion of this decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Provide the Union in a timely fashion the information
it requested by latter dated February 23, 2000.
(e) Within 14 days after service by the Region, duplicate
and mail, at its own expense and after being signed by the
Respondent’s authorized representative, copies of the at-
tached notice marked “Appendix” 2 to the Union and to the
last known address of all former unit employees.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certificate 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 7, 2000

John C. Truesdale, Chairman

Wilma B. Liebman, Member

Peter J. Hurtgen, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 the National Labor Relations Act and has ordered
us to mail and abide by this notice.

WE WILL NOT fail and refuse to bargain in good faith
with the Union as the exclusive collective-bargaining rep-
resentative of our employees in the following unit, by fail-
ing and refusing to bargain about the effects of our decision
to close our Toledo, Ohio facility:
All utility workers in the warehouse of the Employer,
but excluding office employees, outside salespersons,
janitorial and maintenance employees, management
employees and supervisors.
WE WILL NOT fail and refuse to provide to the Union the
following information necessary for and relevant to bar-
gaining which the Union requested on about February 23,
2000: the names and addresses, dates of hire, and date of
last employment for all bargaining unit employees from
January 1, 1998, to the present.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union concerning
the effects on unit employees of the termination of our
business at our Toledo, Ohio facility, reducing to writing
any agreement reached, and pay limited backpay to the unit
employees.
WE WILL provide to the Union in a timely fashion the
following information it requested on about February 23,
2000: the names and addresses, dates of hire, and date of
last employment for all bargaining unit employees from
January 1, 1998, to the present.
K & C SUPPLY, INC.