Kurz-Kasch, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 804 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kurz-Kasch, Inc. and United Paperworkers Interna-
tional Union, Local 606, AFL-CIO. Case 9-CA-
11559
September 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.LO
AND TRUESDALE
On July 5, 1978, Administrative Law Judge Irwin
H. Socoloff issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the Charging Party filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, and modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Kurz-
Kasch, Inc., Dayton, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
recommended Order, as so modified:
Substitute the following for paragraph 2(d):
"(d) Post at its plants in Dayton, Ohio; Madison,
Indiana; and Wilmington and Newcomerton, Ohio,
copies of the attached notice marked 'Appendix"'
and mail a copy of said notice, by certified mail, to
each employee entitled to backpay hereunder. Copies
of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by Re-
spondent's authorized representative, shall be posted
I In sec. IiI, B, of his Decision, the Administrative Law Judge finds that at
the March 9, 1977, meeting International Union Vice President Hendershot
asked Respondent's attorney for certain information, including the "present
value of the pension plan funds." Hendershot's undisputed testimony was
that he requested information concerning the current value of the pension
plan funds, but the record does not disclose that he specifically requested this
information at the March 9 meeting. This apparently inadvertent error is
insufficient to affect the results of our decision.
2 We find that it will effectuate the purposes of the Act to additionallby
require Respondent to mail a copy of the notice to each of the employees
entitled to backpay under the section of the Administrative Law Judge's
Decision entitled "The Remedy." See Ozark Trailers, Incorporated and/or
Hutco Equipment Company and/or Mobilefreeze Compary., Inc.. 161 NL RB
561 (1966). We shall modify the recommended Order accordingly
and mailed by Respondent immediately upon receipt
thereof, and the posted notices shall be maintained by
Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that the
posted notices are not altered, defaced or covered by
any other material."
DECISION
STArEMENI OF IHE CASE
IRNVIN H. SOCO.OFF. Administrative Law Judge: Upon a
charge filed July 13, 1977, by United Paperworkers Interna-
tional Union, Local 606, AFL (IO, herein referred to as
the Union, against Kurz-Kasch, Inc., herein called the Re-
spondent, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region 9, issued a
complaint dated August 31, 1977, alleging violations by the
Respondent of Section 8(a)(5) and (I), and Section 2(6) and
(7) of the National Labor Relations Act, as amended,
herein called the Act. Respondent, by its answer, denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in Day-
ton. Ohio, on November 21, 1977. at which all parties were
represented by counsel and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce evidence. Thereafter, the parties filed briefs
which have been duly considered.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I make the following:
FlNUINDINGS ( FA( I
1. JURISDICTION
Respondent, and Ohio Corporation engaged in the
manufacture of plastic products, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and meets the Board's standards for assertion of
jurisdiction.
II. l.ABOR ORGANIZArIoN
United Paperworkers International Union, Local 606,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
11ii. rlE UNFAIR I.ABOR PRA( TICES
A. Background
Until September 15, 1977.' Respondent operated a plant
at Dayton. Ohio, where it produced thermal plastic prod-
ucts. It operates similar plants in Wilmington, Ohio and
Newcomerton, Ohio. On March 9, 1977, Respondent ad-
vised the Union, the collective-bargaining representative of
the Dayton plant production and maintenance employees.
t Unless otherwise indicated, all dates are in 1977.
238 NLRB No. 106
804
KURZ-KASCH, INC.
that the Dayton plant would "probably" be closed. There-
after. in July, Respondent purchased a plant located in
Madison. Indiana, where it commenced a manufacturing
operation identical to that conducted at the Dayton plant.'
Certain of the injection presses utilized at Dayton were then
transferred to Madison. On September 15, Respondent
closed the Dayton plant.
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to bargain with the
Union concerning: (a) the decision to close the Dayton fa-
cility; (b) the effects of that decision upon the unit employ-
ees; and (c) the transfer and sale of the Dayton plant pro-
duction equipment. In addition, Respondent is charged
with violating Section 8(a)(5) of the Act by refusing to fur-
nish to the Union information pertaining to the costs in-
curred by Respondent in maintaining contractually estab-
lished fringe benefit plans.
B. Facts'
At the March 9 meeting of Respondent and the Union,
Respondent's attorney, Young, informed the union repre-
sentatives that the Company might close its Dayton plant.
Young explained that Respondent was losing money, its
equipment was antiquated, and it could not meet market
competition while continuing to pay contractually estab-
lished wage rates, pension insurance premiums. holiday and
vacation pay and other fringe benefits. Young then asked
International Union Vice President Hendershot if the
Union desired to talk about the matter. Hendershot stated
that the Union understood the problem and might be able
to make cost-saving proposals. However. before the Union
made specific suggestions, Hendershot asked Young to fur-
nish it with certain information, including: (a) The total of
contributions made by Respondent to the pension fund: (b)
The present value of the pension plan funds and a schedule
of investment of those funds:' and (c) The costs to Respon-
dent of insurance and other fringe benefit programs estab-
lished by the contract.
Young said that the information would be forwarded to
the Union within a week and Hendershot stated that as
soon as he had received and analyzed that information, he
would ask for a meeting to discuss possible relief for the
Company in the areas of wages and fringe benefits.
Later that same day, Plant Manager Jan Paxton ad-
dressed the employees. According to employees Lou Forgy
and Phyllis Patterson. Paxton stated that the plant would
be moved since the Dayton building was too old and em-
ployee wages and benefits were too high. Forgy and Patter-
son further testified that Paxton stated that Respondent
2 The Madison plant was purchased as an "existing operation" and Re-
spondent continued the employment of the existing work force. Those em-
ployees are not represented by a labor organization.
1 Unless otherwise indicated, the fact-findings contained herein are based
upon a composite of the testimonv of United Paperworkers International
Vice President Kenneth Hendershot. United Paperworkers International
Representative John Buttrum and that of Respondent's plant manager. Jan
Paxton, its director of operations, Neal Allread and its vice president of
finance, Richard Griswold. The record is generally free of testimonial con-
flict.
4 Respondent is the sole administrator of the fund A bank serves as
trustee
would not hire any of the Dayton employees at the new
plant. Paxton testified that he told the employees that there
was a possibility, but not a certainty, of plant closure.
On March 14, Union International Representative But-
trum asked Paxton if Respondent had available the re-
quested information. Paxton replied that the Company was
still working on it and would forward the information as
soon as possible. Thereafter, Buttrum called Paxton some
five or six times about that matter and received the same
reply. On June I, Buttrum again called Paxton and was told
that the matter was out of Paxton's hands and that Buttrum
should contact Director of Operations Neal Allread. Hen-
dershot then called Allread, repeated the request for infor-
mation, and was told by Allread that Respondent did not
know what the Union was talking about.
On June 27, 1977, Buttrum sent a letter to Paxton an-
nouncing the Union's desire to modify the collective bar-
gaining contract. On July 1, Paxton wrote to Buttrum and
stated that the Dayton plant would be closed by September
15. By letter dated July 11, 1977, Buttrum requested a
prompt meeting "to discuss and negotiate ... the effects of
this decision upon our members."
The Union filed the instant charge on July 13. On July
28, by letter, Paxton informed the Union of Respondent's
willingness to meet and discuss the matter. During an ensu-
ing telephone conversation, Paxton asked Buttrum what the
Union wanted to talk about. Buttrum said that the Union
still needed the information previously requested and, fur-
ther, wanted to negotiate about severance pay. transfer
rights, and the effects of the closing upon vacation pay and
insurance coverage.
The parties met on August 15. Paxton again asked the
Union what it wanted to talk about. Buttrum restated the
items on the Union's agenda. Paxton replied that Respon-
dent was not prepared to discuss those matters and sug-
gested that the parties meet at a later date.
The next meeting occurred on August 29. Buttrum asked
if Respondent was prepared to supply information showing
Respondent's costs in the pension and other fringe benefit
areas. Respondent's attorney, Harvey Rector, stated that
the information would not be supplied. Rector further re-
fused to discuss severance pay, transfer rights, vacation pay,
and insurance coverage. He stated that the Company would
not talk about anything but the requirements of the existing
collective-bargaining contract.
On August 30, Buttrum sent a letter to Paxton, stating:
On several occasions we have asked the Company to
provide us with information regarding the pension in
effect for the Bargaining Unit employees.
We asked for the amount of money in the pension
plan and the amount of the Company's contributions
to the plan since Kurz-Kasch, Inc. absorbed the pen-
sion agreement from Standard Molding Corporation.
Also, several times we asked the Company to bar-
gain with the Union regarding moving of the plant and
to bargain on the following issues: vacation pay, sever-
ance pay, insurance coverage, employees rights to
transfer to the other location and to the status of the
employees covered under the pension plan.
On August 15, 1977, the Union Committee and my-
self met with you for the purpose of discussing the
805
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
above items which, by the way, you had been advised
by an earlier phone conversation that these were the
issues to be discussed. You refused to talk about them
but arranged another meeting for August 29th for the
same purpose. At this meeting you again refused to
discuss these items.
This letter is to advise you the Union desires to con-
tinue negotiating and will remain available to discuss
these issues at your earliest convenience.
Also on August 30. Respondent's vice president of finance,
Richard Griswold. sent to the Union copies of its annual
reports concerning the employee pension fund, filed with
the Internal Revenue Service, covering the years 1972.
1973, and 1975. On September 7, Buttrum informed Pax-
ton, by letter, that the information sent to the Union was
not the information that the Union had requested. Buttrum
reiterated the Union's desire for data showing the amount
of "contributions the company had made toward the nego-
tiated pension plan." Additionally, the Union again re-
quested bargaining concerning the "Company's decision to
move the plant to a different location." and bargaining on
the subjects of severance pay, vacation pay, insurance cov-
erage, transfer rights and the status of employees covered
by the pension plan.
Three days before the closing of the Dayton plant. on
September 12. 1977, Paxton wrote a letter to Buttrum ad-
vising that "The Company is willing to discuss the issues
outlined in your letter dated August 30. 1977, prior to Sep-
tember 15. 1977." That letter was received bv Buttrum on
September 14. On September 15. Hendershot advised Pax-
ton, by letter. that the Union desired to negotiate, and re-
quested sufficient advance notice of a meeting date to in-
sure the attendance of necessary parties. Paxton did not
respond.
As noted, prior to the closing of the Dayton plant on
September 15, Respondent purchased its Madison plant in
July. Thereafter, four of the Dayton plant injection presses
were transferred to Madison.' In August and September,
the Dayton employees were terminated. On September 28,
Respondent sent checks to the terminated employees, cov-
ering vacation pay, in accordance with the Company's in-
terpretation of the requirements of the collective-bargaining
agreement.
Respondent has not supplied the pension information, or
the fringe benefit cost information, sought by the Union.
Nor does it claim any inability to do so. Rather. Griswold
testified that Respondent's agent in administering the pen-
sion plan, the First National Bank in Dayton, submits to
Respondent annual reports showing, inter a/ia, the amount
of money in the fund and how it is invested. Moreover, as
administrator, Respondent has the right to request an up-
to-date report at any time. Griswold further testified that
the bank could not honor such a request by the Union.
5 Additionally, 2 presses were transferred to the Wilmington plant and the
remaining I presses were sold. Respondent did not notifs the Ulnion of its
decision to transfer and sell this equipment.
' Customer orders previously filled at Dayton are now filled at the Madi-
son Plant.
C. ('onclusions
Respondent argues in its brief' that the closing of the
Dayton plant was economically motivated and was not un-
dertaken for discriminatory reasons. However true that as-
sertion, it does not absolve Respondent from its failure to
meet its statutory bargaining obligations. Under Board
law,' Respondent was required to bargain with the Union
concerning the decision to close the Dayton plant, one of its
four plastic product manufacturing plants. Respondent was
also required to bargain about the effects of such a closing
upon the unit employees. It refused to do so.' Respondent
informed the Union that the cost of employee wages and
fringe benefits at the Dayton plant was principally respon-
sible for the decision to close. Yet, Respondent refused to
supply the Union with data showing the cost to Respondent
of the contractually established pension plan. health and
welfare plan, and life insurance plan. Likewise, it refused to
reveal to the Union the then current financial status of the
pension plan. In refusing to provide the Union with re-
quested information which was patently relevant to the dis-
charge of its duties as collective-bargaining representative,
Respondent further violated Section 8(a)(5) and (1) of the
Act.Y
IV'. litH tFi:i ()OFI o Ft liNFAIR I.ABO)R PRA('II('S UPON
(OMM IER('I
The activities of Respondent set forth in section III,
above, occurring in connection swith its operations de-
scribed in section 1. above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
\. t111 RLMIDI)Y
Ilaving found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(5) and (I) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of' the Act. Since Respon-
dent refused to bargain in good faith about its decision to
close the Dayton plant, and the effects of that decision
upon the Dayton plant employees, and further refused to
furnish the Union with economic data needed to bargain
intelligently about those matters, I shall recommend that
Respondent be ordered to furnish the requested data to the
Union and to bargain in good faith with the Union about
both the decision to close the D)ayton plant and the effects
of' that decision. I shall further recommend that Respon-
dent be ordered to make the discharged [)aton employees
whole for any loss of pay they may have suffered as a result
Oztark Trailers, Incorporated anldor Ilutio Equipment ( omnpan and/or
Mlobile/reeze Compani, Inc., 161 NL RB 561 (1966).
T 'he complaint alleges the unilateral transfer and selling tf equipment as
a separate violation of the Act. It seems to me that that action by Respon-
dent is more properl, siewed as part and parcel iof the unilateral decision to
close, and should not he the subject of a: separate vstolation.
' Verilol Dislon, Bticing (Comnipim, 182 NI RB 421 197(0)
806
KU RZ-KASC II. INC.
of Respondent's unfair labor practice conduct, less net in-
terim earnings, in the manner prescribed in F/ W4 [ ool-
wrorth (Company, 90 NLRB 289 (1950), with interest as set
forth in Florida Steel Corporation. 231 NL.RB 651 (1977).
Respondent shall pay the employees backpay, at the rate of
their normal wages when last in Respondent's employ, from
the dates of their respective layoffs in August and Septem-
ber, 1977. until the occurrence of the earliest of the follow-
ing events: (1) the date Respondent bargains to agreement
with the Union with respect to the decision to close the
Dayton plant and the effects of the closing on unit employ-
ees; (2) a bona tide impasse in bargaining; (3) the failure of
the Union to request bargaining within 5 days of this Deci-
sion, or to commence negotiations within 5 days tof Respon-
dent's notice of its desire to bargain with the Union or: (4)
the subsequent failure ot the Union to bargain in good
faith.1o
CON('I t:SIO)NS ()01 IAWN
1. Respondent Kurz-Kasch. Inc.. is an emploer engaged
in commerce. and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. United Paperworkers International Union, Iocal 606.
AFL (10, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees at Re-
spondent's l)ayton. Ohio facility. excluding all office cleri-
cal employees, plant clerical employees, job setters, profes-
sional employees. guards and supervisors as defined in the
Act constitute ai unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
\Act.
4. United Paperworkers International Union, lIocal 606.
AFt L (10. is. and at all times material herein has been, the
exclusive representati e of the employees in the unit de-
scribed above within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the UnIion about its deci-
sion to close the Dayton plant, and about the effects of that
decision, and by refiusing to furnish the Union with relevant
and necessary economic data bearing upon the decision and
its effects,. Respondent violated Section 8(a{5) and (I) of
the Act.
Upon the foregoing findings of fict, conclusions (of law.
and the entire record in this case, and pursuant to Section
10(c) of the Act. I hereby issue the follow ing recommended:
ORI)ER T
The Respondent, Kurz-Kasch, Inc.., Dayton, Ohio, its of:-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectivel' in good
faith vwith the Ilnion, as the exclusive representative of' its
oPrYrlution .,lcd Pltt,,. In, ml nDetrit/ Plait, :.ilding (', 227
NLtRB 776 (1977)
1 In the evenl nri exceptons are tiled its prosvled bh Sec. 10246 o,1 the
Rules and Regultails of the Natlnal I .habor ReKltions Board. the findings.
conclusions and recommended Order herein shall. as pros ided ill Set 102 48
of' the Rules and Regulatinns. be adopted hb the Board and becomrne its
findings. conclusions, .lad Order. anid .1 ohbjectlions Ihereto shall be deerlted
satsved ior all purposes
employees in the appropriate unit set forth above. concern-
ing the decision to close the Dayton plant and the effects of
the discontinuance of the plant on the unit employees.
(b) Refusing to furnish the Union with economic data
relevant and necessary to intelligent bargaining about the
decision to close the Dayton plant and the effects of that
decision on the unit employees.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmati e action designed to ef-
tectuate the policies of the Act:
(a) Upon request. bargain in good faith with the UInion.
as the exclusive bargaining representative of all employees
in the appropriate unit set forth above, with respect to the
decision to close the Dayton plant and the effects of that
decision on unit employees a;nd, if an understanding is
reached, embody it in a signed agreement.
(h) Make availahle to the Union requested economic
data which is relevant and necessary to intelligent bargain-
ing about the decision to close the Dayton plant and the
effects of that decision on the unit employees.
(c) Pa3 the discharged Dayton employees their normal
wages in the manner and for the period set forth in the
Remedy section of this Decision.
(d} Post at its plants in Dayton. Onio. Madison, Indiana.
Wilmington. Ohio. and Newcomerton, Ohio. copies oif the
attached notice marked "Appendix."1 2 Copies of said no-
tice. on forms provided by the Regional Director for Re-
gion 9. after being duly signed by Respondent's authorized
representative. shall be posted by Respondent immediately
upon receipt thereof, and be maintained b\ it for 60 con-
secutive dalns thereafter, in conspicuous places. including all
places where notices to emploxees are customarily posted.
Reasonable steps shall he taken to insure that said notices
are not altered. det'aced, or covnered by any other material.
(el Notiflv the Regional Directc)r for Region 9, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
t. In the event that this Order is enlarced bh a judgment otf a United States
('ourt of Appeals. the ,,ords in the notice reading "Posted bh Order of the
National l.habor Relatinms Board" shall read "Posted Pursuant tt a Judgment
of the United States Court .t' Appeals Entfircing an Order ofi the National
I.abor Relations Board"
APPENDIX
Noti( To EMPIp.oY} IS
PosIrE1 BY ORDEIR ()f- 11I
NAII()NAI L.ABOR() R I AIl)NS B()ARI)
An Agency of the U nited States Giovernment
Wt w"tli. NoI refuse to bargain collectively in good
faith with hnited Paperworkers International Union,
Local 606, AFL ( IO, as the exclusi e representative
of our employees in the appropriate unit set forth be-
low, concerning the decision to close the Dayton Plant
and the effects of the discontinuance of the plant on
those employees:
807
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees at the
Dayton, Ohio, facility, excluding all office clerical
employees, plant clerical employees, job setters, pro-
fessional employees, guards and supervisors as de-
fined in the Act.
WE WII.L NOT refuse to furnish the Union with re-
quested economic data which is relevant and necessary
to intelligent bargaining about the decision to close the
Dayton Plant and the effects of the discontinuance of
the plant on the employees in the appropriate unit.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act.
WE WILI, upon request, bargain in good faith with
the Union, as the exclusive bargaining representative
of all employees in the appropriate unit set forth
above, with respect to the decision to close the Dayton
Plant and the effects of the decision on unit employees
and, if an understanding is reached, embody it in a
signed agreement.
WE WILL make available to the Union requested
economic data which is relevant and necessary to intel-
ligent bargaining about the decision to close the Day-
ton Plant and the effects of the discontinuance of the
plant on the employees in the appropriate unit.
WE Wi' L pay the discharged Dayton employees
their normal wages plus interest for a period required
by the Decision and Order of the National Labor Rela-
tions Board.
KURz-KAsCItL IN( .
808