Kurz-Kasch, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1987

286 N.L.R.B. 1343 (N.L.R.B. 1987)

KURZ-KASCH, INC.
Kurz-Kasch , Inc. and United Electrical , Radio and
Machine Workers of America (UE). Case 9-
CA-15429
30 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 25 March 1982 Administrative Law Judge
Mary Ellen R. Benard issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief. The General Counsel and the Charging Party
filed limited cross-exceptions and supporting briefs,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In finding the Respondent's promulgation and maintenance of the no-
solicitation and no-distribution rules unlawful, the judge cited , inter alia,
T.R.W. Bearings, 257 NLRB 442 ( 1981) 'We agree with the judge that
the rules were overly broad, but we do not rely on T.R.W, which was
overruled in Our Way, Inc., 268 NLRB 394 (1983).
We agree with the judge that the Respondent 's 20 March 1980 repri-
mand of Karen Green violated the Act. In so doing, we do not rely on
the judge's finding that Plant Manager Fannin did not have an honest
belief that Green had engaged in unprotected activity . Instead , we rely
on the judge 's finding that the General Counsel met the burden of estab-
lishing that the alleged misconduct did riot in fact occur The judge
found that the reprimand violated Sec 8(a)(3) and (1) of the Act We
find, however, that the reprimand violated only Sec 8(axl) of the Act.
See NLRB v. Burnup & Sims, 379 U.S. 21, 22-23 (1964). Cf. Magnolia
Manor Nursing Home, 284 NLRB 825 fn . 1 (1987) (an 8(a)(3) and (1) vio-
lation was found to be proper because the Respondent had no good-faith
belief that the employee had engaged in misconduct ) In any event, the
remedy remains the same regardless of whether we find only the 8(a)(1)
violation or both the 8(a)(3) and (1) violations.
We agree with the judge that the Respondent violated Sec 8(axl) of
the Act by asking probationary employee Osa Valentine whether anyone
had approached her "about the Union or about the machinery being
unsafe ." Valentine was not an open and active union supporter at the
time of the interrogation Valentine was called into the manager 's office 6
days after she began working for the Respondent and was questioned by
the plant manager in the presence of the administrative assistant and an
unidentified man There was no evidence that any assurances against re-
prisals were given We find, under all the circumstances of this case, that
such interrogation reasonably tends to restrain , coerce, or interfere with
rights guaranteed by the Act See Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir 1985), and Sunnyvale Medical Clinic, 277 NLRB
1217 (1985).
Member Johansen would find that the Respondent misled employees
about the reinstatement rights of strikers
1343
conclusions, to modify the remedy, 2 and to adopt
the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Kurz-Kasch, Inc., Wilmington, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
"(c) Remove from its files any reference to the
unlawful 20 March 1980 reprimand to Karen
Green and the unlawful discharges of Osa Valen-
tine and Brenda Johnson and notify the employees
in writing that this has been done and that the rep-
rimand and discharges will not be used against
them in any way."
2. Substitute the attached notice for that of the
administrative law judge.
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C § 6621. Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
With regard to the remedy for the discharges of employees Valentine
and Johnson , we leave to compliance the factual determination of wheth-
er Johnson and Valentine were permanently replaced before their dis-
charges. If so, they are to be treated for remedy purposes as economic
strikers.
8 We shall modify the judge 's recommended Order to require that the
Respondent remove from its files any reference to the unlawful dis-
charges of Osa Valentine and Brenda Johnson and to notify them, in
writing , that this has been done and that the discharges will not be used
against them in any way Sterling Sugars, 261 NLRB 472 (1982). We shall
issue a new notice accordingly
Chairman Dotson would overrule Abilities & Goodwill, 241 NLRB 27
(1979), and treat employees Valentine and Johnson as economic strikers
with regard to the remedy
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT request employees to remove
union insignia from their clothing unless such re-
quest is justified by safety or other legitimate busi-
ness considerations.
WE WILL NOT coercively interrogate employees
about their or about other employees' union activi-
ties or intentions to engage in a lawful economic
strike.
286 NLRB No. 131
1344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT maintain any rule that does not
clearly permit employees to solicit or engage in
other protected activity under Section 7 of the Na-
tional Labor Relations Act during break periods,
meal periods, and other times when employees are
not required to be working, or that does not clear-
ly permit employees to engage in distribution
during such times in nonwork areas.
WE WILL NOT issue reprimands to employees for
engaging in union or other protected concerted ac-
tivity.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they engage in a
lawful economic strike.
WE WILL NOT fail to reinstate economic strikers
after they have made unconditional offers to return
to work and jobs become available for them.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid
or protection, or to refrain from any or all such ac-
tivities.
WE WILL offer immediate and full reinstatement
to the following employees to their former jobs or,
if those jobs no longer exist, to substantially equiv-
alent jobs, without prejudice to their seniority or
other rights or privileges previously enjoyed, and
WE WILL make them whole for any loss of earnings
they may have suffered as a result of our discrimi-
nation against them, with interest:
Osa Mae Valentine
Brenda Johnson
Sharon Lorenzo
Sharon Osborne
Sandra Drake
George Twine
Frances Wilkinson
Joan Akers
Karen Green
Donna J. Taylor
Lisa Keller
Vicki Hamilton
Tanya Huff
Herschel Baker
WE WILL make whole, with interest, those of the
employees named below who are found in a subse-
quent proceeding to have been entitled to be re-
called to their former or substantially equivalent
jobs earlier than they were:
David M.
Swearingen
Betty Beam
Marian A. Tuffs
Teresa A. White
Kathy S. Burton
Margery L. Callahan
Shirley R. Morris
Aquila I. Shaw
WE WILL remove from our files any reference to
the unlawful reprimand of Karen Green and un-
lawful discharges of Osa Valentine and Brenda
Johnson and WE WILL notify Karen Green, Osa
Valentine, and Brenda Johnson that we have re-
moved from our files any reference to their unlaw-
ful reprimand or discharges and that the reprimand
or discharges will not be used against them in any
way.
KURZ-KASCH, INC.
Garey E. Lindsay, Esq., for the General Counsel.
Frank H. Stewart, Esq. and Timothy P. Reilly, Esq. (Taft,
Stettinius & Hollister), of Cincinnati, Ohio, for the Re-
spondent.
Leonard D. Polletta, Esq., of New York, New York, and
Paul Lodico, of Circleville, Ohio, for the Union.
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD, Administrative Law Judge.
The charge was filed on June 9, 1980, by United Electri-
cal, Radio and Machine Workers of America (UE), the
Union, against Kurz-Kasch, Inc., the Respondent. On
August 5, 1980, the complaint was issued alleging, in
substance, that Respondent refused to bargain with the
Union, thereby violating Section 8(a)(5) and (1) of the
National Labor Relations Act; failed and refused to rein-
state employees who engaged in a strike , and discrimina-
torily discharged two employees and issued a reprimand
to a third, all in violation of Section 8(a)(3) and (1) of the
Act; and engaged in various conduct that interfered
with, restrained, and coerced employees in the exercise
of the rights guaranteed them in Section 7 of the Act
and thus violated Section 8(a)(1) of the Act.' Respond-
ent filed an answer in which it denied the commission of
any unfair labor practices.
A hearing was held before me in Wilmington, Ohio,
on various dates from March 30 through June 24, 1981.
Following the hearing, the General Counsel and the Re-
spondent filed briefs, which have been considered.
On the entire record in the case and from my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation engaged in the
manufacture of plastic products at various locations, in-
cluding one at Wilmington, Ohio, the only facility in-
volved. During the 12-month period preceding the issu-
ance of the complaint, a representative period, Respond-
ent, in the course and conduct of its business operations,
sold and shipped from its Wilmington, Ohio facility
goods and products valued in excess of $50,000 directly
to points outside the State of Ohio. The answer admits,
' As discussed below , in the course of the hearing , the complaint was
amended to allege , inter alia, other violations of Sec . 8(axl) of the Act.
KURZ-KASCH, INC.
and I find , that Respondent is an employer engaged in
commerce within the meaning of the Act, and I find that
it will effectuate the policies of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a manufacturer of plastic knobs and
parts. For some period prior to 1974 Respondent operat-
ed a plant in Xenia, Ohio; as of June 1973 the production
and maintenance employees at this location were cov-
ered by a collective-bargaining agreement effective
through May 1975 between Respondent and Metal Pol-
ishers, Buffers, Platers, and Allied Workers International
Union, AFL-CIO (Metal Polishers). In April 1974 the
Xenia plant was destroyed by a tornado and Respondent
subsequently moved the operations that had been per-
formed in Xenia to a new plant in Wilmington, retaining
the same employees, and executed an agreement with the
Metal Polishers extending the contract through May
1977.
As detailed in Kurz-Kasch, Inc., 239 NLRB 1044
(1978), the Union began an organizing campaign at the
Wilmington plant in early 1977, culminating in a Board-
conducted election in April of that year. During the
course of this campaign a majority of the employees in
the production and maintenance unit stipulated by the
parties in the representation case to be appropriate signed
authorization cards. Also during the campaign, Respond-
ent committed numerous unfair labor practices which
caused the Board to issue a bargaining order. 2
Pursuant to the Board's Order, Respondent and the
Union commenced negotiations in October 1979.3 Be-
tween October 19 and February 15 there were 18 bar-
gaining sessions ; on March 14 Respondent and the Union
met with a Federal mediator in Dayton, Ohio. On March
24, no comprehensive agreement having been achieved,
the Union commenced a strike, which lasted until April
1 or 2.
B. The Alleged Violations of Section 8(a)(5) of the Act
1. The issues
The complaint alleges that Respondent refused to bar-
gain in good faith by ( 1) insisting on an "open shop"
provision; (2) offering a contract with a 1-year term; (3)
2 At the election the Union challenged six voters , but subsequently
withdrew five of the challenges The Board sustained the one remaining
challenge and directed that the other five ballots be opened and counted.
The Board further directed that the Umon be certified if the revised tally
of ballots revealed that it had received a majority of valid ballots cast,
and that if the Union did not receive such a majority , the election be set
aside and the petition be dismissed The revised tally disclosed that the
Union did not receive a majority of the valid votes cast and the Regional
Director for Region 9 consequently vacated the representation proceed-
ing
8 All dates hereinafter are in the latter 6 months of 1979 or the first 6
months of 1980 unless otherwise indicated
1345
delaying in providing information regarding employees
hired since January 1 and work leaders; and (4) refusing
to recognize the Union as the collective-bargaining rep-
resentative for Respondent's truckdrivers, work leaders,
and janitors.
2. The facts4
Throughout the negotiations described in this record
Respondent's negotiating team consisted of Frank Bar-
resi, a management consultant retained by Respondent,
who acted as Respondent's principal spokesman during
the bargaining sessions; Waldo Fannin, the plant manag-
er; Neal Allread, Respondent's vice president for finance
and operations ; Kathy Stephenson , Fannin 's administra-
tive assistant, whose primary function was to take notes
of the bargaining sessions ; and Dan Dehan, foreman of
Respondent's finishing department, who attended some
of the negotiation sessions in order to learn something
about them. The Union's bargaining committee, until
January 17, was comprised of Paul Lodico, a field orga-
nizer for the Union, who acted as the Union's principal
spokesman; and employees Joan Akers, Aquila Shaw,
Sharon Osborne, Betty Beam, and George Twine. All-
read and Dehan were not present for every meeting, nor
were all the employee members of the Union's commit-
tee.
October 19, 1979. s The Union requested certain infor-
mation , including , inter alia , the names, seniority date,
wages, and classification or department of all employees
in the bargaining unit, but did not submit any proposals
either orally or in writing. Respondent submitted a rec-
ognition proposal that provided that the bargaining unit
would be comprised of production and maintenance em-
ployees, but would exclude office and clerical employ-
ees, work leaders, janitors, truckdrivers, temporary em-
ployees, co-op," and confidential employees, guards, and
supervisors as defined in the Act. The Union noted that
the janitors were on the seniority list provided by Re-
spondent and Respondent explained that janitors had not
been included in the unit when it was represented by the
Metal Polishers and that one janitor worked part-time
cleaning offices.7 There was some discussion of the work
° Although the complaint alleges that the refusal to bargain in good
faith occurred only during the first 3 months of 1980, I have considered
prior events as relevant for background purposes
5 The findings regarding the bargaining meeting are based on docu-
ments and on a composite of the credible testimony of Lodico and Bar-
resi Both were impressive witnesses who exhibited unusual ability to
recall events that occurred more than a year before they testified Much
of what occurred at bargaining sessions is not in significant dispute,
where there are conflicts between Lodico's and Barren's testimony that
are not specifically noted, I have made credibility resolutions based on
the witnesses' demeanor and the inherent probabilities of the situation.
All of the testimony and exhibits have been considered, thus, evidence
that might seem to contradict the findings has not been disregarded, but
has been rejected as surplusage, irrelevant, or lacking in probative worth.
6 Temporary employees were defined in the proposal as those hired to
work for a specific period of time not to exceed 13 weeks, co-op employ-
ees were defined as students enrolled in a school training program while
employed by Respondent
7 Respondent also, at either the October 19 session or one soon after,
said it wanted to exclude janitors because the part-time janitor cleaned
the corporate offices and thus in the course of her duties could come
across information that Respondent did not want available to bargaining
unit personnel
1346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leaders, the parties agreeing that there would have to be
some definition of the term. According to Barresi, whom
I credit on this point , the parties also talked about the
exclusion of truckdrivers, Fannin explaining that there
were no truckdrivers at the Wilmington plant. The
Union suggested using the Metal Polishers agreement as
the basis for negotiations, but Barresi said Respondent
was unwilling to follow that course because much had
happened since that agreement had been in effect.
November 2, 1979: The Union received more of the in-
formation it had requested and the parties reached agree-
ment on jury duty, funeral pay, and a union bulletin
board. They also discussed recognition, the Union point-
ing out that many of the work leaders Respondent
sought to exclude had voted in the 1977 election. Re-
spondent informed the Union that there were five hourly
work leaders and four salaried work leaders. The Union
contended that anyone who had voted in the 1977 elec-
tion should be included in the bargaining unit; although
Respondent conceded that the work leaders' responsibil-
ities had not increased since the Wilmington plant had
opened , it nonetheless took the position that the work
leaders had responsibility for ordering materials and
noted they had been excluded from the bargaining unit
when it was represented by the Metal Polishers." The
Union also requested additional information, which was
supplied at the next meeting.
November 16: Provisions on which the parties had pre-
viously agreed were signed and information was submit-
ted; it does not appear that any of the matters at issue in
the instant case were discussed.
November 30: The Union made a general economic
proposal (apparently not in writing), including a 3-year
contract term. Lodico did not recall Respondent's re-
sponse . The parties discussed report -in pay, accident on
the job, and safety committee provisions, and reached
agreement on some of these issues.
December 7: The parties signed provisions on the
safety committee, injury on the job, and report-in pay.
December 14: There was extensive discussion of griev-
ance and arbitration provisions.
8 Barresl testified that at this meeting Fannin explained that the sala-
ned work leaders could requisition on their own authority within budget-
ary guidelines , while hourly work leaders required Fannin 's approval
The General Counsel then offered into evidence Stephenson's minutes of
that meeting as a prior inconsistent statement to impeach this testimony,
on grounds that the minutes do not include any references to such an ex-
planation I rejected the exhibit on grounds that it was not Barresi 's state-
ment as to what occurred at that meeting and was not shown to have
been adopted by him as required by Fed R .Evid 802(5) In his brief, the
General Counsel argues that the minutes are admissible under Rule 803(1)
as Stephenson's present sense impression of the events of the meeting as
they took place . However, there is no contention that Stephenson's mm-
utes of the meeting are verbatim accounts of what occurred , indeed, it is
clear from Stephenson's testimony that they are not Accordingly, al-
though the present sense exception to the hearsay rule might apply to
some statement in the minutes that a particular event occurred during the
meeting or a particular subject was discussed or the nature of that discus-
sion , the minutes do not convey Stephenson 's present sense impression
that something did not occur I therefore adhere to my ruling rejecting
the minutes for the purpose for which they were proffered In any event,
assuming, arguendo, that the minutes are admissible , the fact that they are
not verbatim accounts of what occurred renders them of no probative
value for the proposition that something was not said, and therefore they
do not impeach Barresi 's testimony.
December 21: The parties again discussed grievance
and arbitration proposals and also discussed seniority, job
position, and upgrading, but did not reach agreement on
any of these issues.
December 27: Leaves of absence, upgrading, transfers,
and several other issues were discussed without agree-
ment being reached. Just as the meeting was to adjourn,
Beam proposed a union-shop clause; Barresi counterpro-
posed an open shop but the subject was not discussed.9
December 28: The Union orally presented economic
proposals, which were apparently more specific than
those discussed on November 30, and again proposed a
3-year contract. At the end of the meeting the Union it-
erated its union-shop proposal and Barresi replied that
there were many key employees who had indicated that
they would quit working for Respondent if they had to
join a union . Barresi also said that the geographical area
was nonunion and that Respondent would have difficulty
in hiring new employees if it operated as a union shop.
Respondent did not volunteer the identities of the key
people and the Union did not ask.
January 4: Lodico said that a union shop was the out-
standing issue and the parties should plan on discussing it
at every session; Barresi said that "we're not slamming
the door on union security, that is, we're not married to
an open shop." Barresi raised the issue of management
rights and Lodico responded that he would be more
willing to go along with Respondent's proposal if he had
a union shop . Later in the session , Barresi asked for an
economic proposal and Lodico said he would be more
willing to discuss economics after they had come to an
agreement on union security and that the union-security
provision would have an effect on the Union's position
on economic issues . The parties signed final copies of the
grievance and arbitration provisions. At the very end of
the meeting Lodico said that union security was the out-
standing issue and Barresi replied that he was not saying
that the only proposal to which Respondent would agree
was an open shop.
January 11: Recognition, which had been set aside
after the November 2 session, was discussed. Respondent
provided a list of the work leaders it had proposed to ex-
clude from the unit and the parties discussed probation-
ary, co-op, and temporary employees. Respondent
agreed to eliminate the section on probationary employ-
ees from its proposal and to limit the number of co-op
employees who would be excluded. The parties agreed
to exclude office and clerical employees and discussed
the proposed exclusion of truckdrivers. Although there
were no truckdrivers at Respondent's Wilmington plant,
Respondent expressed concern about the status of drivers
from other plants who might go to the Wilmington facil-
8 As used herein, "a union shop" clause requires that all bargaining
unit employees, as a condition of continued employment , join the union
that represents them within a specified period after commencing their
employment An "agency shop" provision requires that employees either
join the union or pay a service fee, frequently equivalent to dues, and a
"maintenance-of-membership" clause provides that employees who are
currently members of the union will maintain their membership and em-
ployees who are not currently members may join or not as they choose
In an "open shop," employees are not required either to join the union or
to have a financial obligation to it as a condition of employment
KURZ-KASCH, INC. 1347
ity. Lodico said that he did not think that such drivers
would be included in the unit in any event and that "we
had no objection to the exclusion of the nonexistent
truckdrivers."
Fannin said that the work leaders should be exluded
because (1) they "released" employees even if they did
not discharge them, (2) work leaders were informed
about various matters as much as foremen were, and (3)
they approved timecards. Beam asked if foremen did not
have the responsibility to correct timecards and men-
tioned that the work leaders had voted in the 1977 elec-
tion and Fannin agreed. Fannin also said that some of the
work leaders had belonged to the Metal Polishers and
some had not. The Union contended that there had been
no substantial change in the work leader position since
the 1977 election and Barresi responded that the Union
had challenged the ballots of some of the work leaders.
The Union conceded that fact but argued that the
Board's decision as to what job categories were included
in the unit was dispositive, to which Barresi responded
with a suggestion that negotiations be suspended and a
unit clarification petition be filed with the Board. At that
point the parties began to discuss the proposed exclusion
of the toolmaker and then, again with reference to the
work leaders, Barresi said that Respondent's position
could change, but that he "really got hung up when
people effectively recommended discipline."
Near the end of the session the parties again discussed
union security and Barresi said in response to a union
question that perhaps Respondent might modify its posi-
tion to agree that current employees could choose
whether they would join the Union and future employ-
ees would be required to become members. The Union
merely noted the proposal. A no-strike/no-lockout clause
was also discussed, with Lodico indicating that this pro-
vision was tied in with union security and that if the
Union had a union shop he would be more than willing
to discuss the no -strike/no-lockout clause. Barresi again
raised the issue of "key" employees who did not wish to
be required to join the Union.
January 17: During a discussion of unit work, Lodico
said that if the Union had a union shop the issue of unit
work would not be a problem; however, although the
parties did not reach agreement on union security, they
agreed on a unit work provision, and signed a provision
on union leaves of absences. The Union orally modified
its economic proposal, withdrawing the proposal for a
full cost-of-living adjustment made on December 28. The
parties discussed management-rights and no-strike
clauses, the Union saying it would agree to management
rights and a no-strike provision in exchange for a union
shop.
January 18: The parties signed provisions covering job
transfer and promotion, seniority, temporary transfers,
overtime, and leaves of absence. Also at that meeting,
economic issues were discussed, Respondent offering a 1-
year economic proposal. Lodico said that the issues of
union security, checkoff, management rights, recognition,
and a no-strike clause were all "peas in a pod" that had
to be considered together and that there was language to
resolve all of these issues in the contract between Re-
spondent and the Metal Polishers Barresi responded that
he had not paid much attention to that contract because
if it had been successful, neither he nor Lodico would be
there. Toward the end of the meeting Lodico said that
the three issues most important to the Union were union
shop, checkoff, and the "funny bunnies," i.e., those indi-
viduals whose inclusion in the bargaining unit was in dis-
pute, but that the most important issue was the union
shop. Respondent modified its recognition proposal to
offer inclusion of work leaders in the unit in return for
an open shop.
January 25: Lodico said that the Metal Polishers had
had a union shop and he could not understand why Re-
spondent was objecting to it at this point; Barresi repeat-
ed that Respondent felt it had an obligation to certain in-
dividuals, some of whom were key employees, who did
not want to be required to join the Union. Respondent
also repeated that if there were an open shop it would be
willing to include work leaders in the unit.
The parties signed clauses on bargaining unit work,
union stewards, and military leaves of absence, and Re-
spondent submitted a second proposal on economics,
along with a written explanation of it. The Union asked
Respondent if it had a 3-year proposal on economics and
the meeting broke for lunch before Respondent replied.
After lunch Respondent said it did not have a 3-year
proposal on ecomonic issues and that, while it was not
opposed to a 3-year contract, such a contract would
have to be more conservative. Respondent further said it
was not opposed to a 2-year contract, bu, did not agree
with the Union's suggestion for an economic reopener
for the third year. Respondent also explained with re-
spect to the economic proposal that it normally gave
wage increases in June; if the contract took effect 4
months before the traditional date, the wage increases
would be effectively 33 percent higher than indicated on
the face of the proposal. Lodico replied that for the em-
ployees to take a one-third cut in order to receive the in-
creases 4 months earlier was "a very high discount rate."
During the discussion of the Metal Polishers contract,
Barresi said that he thought three aspects of that con-
tract were important: (1) some members of that bargain-
ing unit had told Fannin that they did not want either to
be members or to have a financial obligation to the
Union; (2) the plant's operation had changed; and (3) the
Metal Polishers no longer represented the employees be-
cause the employees chose not to have them. Barresi also
said that a 1-year contract with an open shop would
afford Respondent and the Union a chance to get to
know each other; Lodico predictably replied that if they
had a 1-year contract with a union shop at the end of
that year , Respondent could suggest different language.
January 28: The parties again discussed economics,
management rights, no-strike and no-lockout clauses, rec-
ognition, uniop security, and checkoff. Lodico reiterated
that the Metal Polishers had had a union shop, and asked
Barresi, "Don't you like us?" According to Lodico, he
suggested that employees who had signed authorization
cards for the Union were and should remain members,
but that other current employees could have "a choice"
and new employees would be required to join, saying
that this should take care of Respondent's concern about
1348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"key employees" because anyone who felt that strongly
would never have signed a card in the first place. Barresi
responded that in his view cards were not a good indica-
tor of desire to be a union member . Barresi also pro-
posed that the Union caucus and try to formulate a pro-
posal that would fall somewhere between a union shop
and an open shop, describing some variations of the two
provisions. According to Barresi, after the caucus
Lodico proposed that current employees be offered a
choice of whether to become members, but those who
did not join would have a financial obligation, and new
employees would be required to join. Barresi also testi-
fied that although the Union referred to this proposal as
an agency shop, he told them it was really little more
than a full union shop and that the Company was consid-
ering something more akin to allowing current employ-
ees a choice and new employees the more limited choice
of joining or paying a service fee to the Union. I credit
Barresi, whose testimony was the more explicit, on this
point, and find that the "choice" that the Union was
willing to offer current employees was between full
membership and financial obligation to the Union, not
between membership and no obligation at all. At this
point Barresi asked Lodico what criteria for current
membership he proposed and Lodico said that anyone
who had signed a union card should be considered a
member, even if the card had been signed in 1977.
During the discussion of recognition, Respondent ex-
plicitly modified its proposal to exclude only salaried
work leaders.' ° Respondent also submitted its third eco-
nomic proposal and a written explanation of it, and All-
read discussed the proposal in detail, saying that he was
willing to entertain either a 1- or 2-year economic pro-
posal, but that in light of economic conditions a 3-year
economic package would not be acceptable. The Union
also submitted an economic proposal at this meeting, the
first economic proposal it had submitted in written form.
Neither party's proposal was accepted.
February 1: Respondent submitted its final package
proposal, including provisions covering wages and bene-
fits, management rights, no-strike/no-lockout, union se-
curity, checkoff, and composition of the bargaining unit.
Barresi explained that Respondent felt that it had made
sufficient movement and that the package was Respond-
ent's full and final offer; he urged the Union to take it to
the members.
With respect to union security, Respondent proposed
that current employees be free to join the Union or not
as they preferred, with no financial obligation for those
who chose not to join; however, employees hired on or
after the effective date of the contract would be required
to pay a service fee to the Union if they chose not to
become members.
10 There is some inconsistency in the testimony of Barrest and Lodico
as to precisely when this modification was suggested by Respondent, but
it appears most likely that it was made at the January 28 meeting In any
event, it is clear that the proposal was changed in this manner on either
January 25 , January 28, or February I, and it is not particularly signifi-
cant for purposes of this proceeding which date is the correct one
The recognition proposal" excluded salaried work
leaders, a maximum of four co-op students, the toolmak-
er, and "plant salaried employees"; Lodico objected to
the last term on grounds that Respondent could exclude
any employee by converting him to salaried status, so
Barresi revised the language to meet Lodico's objection.
In addition , the part-time janitor who cleaned manage-
ment offices had quit in January and was not replaced;
consequently, Respondent withdrew its proposal that
janitors be excluded from the unit and a wage rate for
janitors had been included in Respondent's economic
proposal in January.
The Union responded to the request that it take the
package to the members by pointing out that some provi-
sions had not yet been discussed and that, even if Re-
spondent had agreed with the Union on union security
and checkoff, before the Union could take a proposal to
the employees, there would have to be agreement on va-
cation, holidays , insurance, and pensions . Lodico said
that the Union had also not yet received information pre-
viously requested about the hourly work leaders. There
was a caucus at which the union committee considered
the package; they then returned to the table with com-
ments and questions about it. Barresi testified that at that
time Lodico requested some additional information about
the employees represented and Barresi suggested that
Respondent caucus and present the information after-
wards. According to Barresi, during the caucus he wrote
out in longhand some language on holidays, and Fannin
wrote out some information on both salaried and hourly
paid work leaders; following the caucus Respondent
gave the Union the two documents that he and Fannin
had prepared' 2 along with the recognition language de-
i i Barrest credibly testified that the recognition proposal was submit-
ted following a caucus, and not with the other documents in the package
Two different documents , each identified as the proposal , were admitted
into evidence without objection from any party R Exh 24 was identi-
fied by Barresi as the February 1 proposal and U Exh. 16 was identified
by Lodico, testifying on rebuttal as the Union's witness . However, when
Lodico first testified as the General Counsel's witness , he stated on re-
cross-examination by the Union that he could not remember whether a
wntten proposal on recognition was submitted by Respondent on Febru-
ary I
The Union did not file a brief and the General Counsel's brief does not
address this issue . Respondent, however, contends that the union exhibit
is "surely suspect," noting that it was not produced until the last day of
the hearing, rather than when Lodico first testified as the General Coun-
sel's witness about this bargaining session . I note that the U Exh 16 is
the same as Respondent 's first recognition proposal submitted on October
19, except that there are handwritten changes regarding work leaders and
plant salaried employees and deleting the definition of temporary employ-
ees and the reference to janitors in the list of exclusions . Respondent's
exhibit conforms to the testimony as to Respondent 's proposal, and I find
that it is the recognition clause submitted by Respondent on February 1
I surmise , especially in view of Lodico's testimony the first time he was
called as a witness, that the Union's exhibit is a copy of Respondent's ini-
tial proposal, which was in the Union's possession and which someone
marked during the earlier part of the February 1 meeting to indicate the
changes in Respondent 's position on recognition , and that Respondent's
exhibit is the written proposal submitted after the caucus.
12 It is undisputed that typing facilities were not available at the bar-
gaming sessions and that consequently the parties made carbon copies of
some of the handwritten documents prepared during the sessions
KURZ-KASCH, INC. 1349
scribed above and a fourth document. Lodico, however,
testified that he had no recollection of seeing the materi-
al allegedly prepared by Fannin during the February 1
meeting. The conflict in the testimony on this issue,
along with other evidence relating to it, is discussed fully
infra.
Following the discussion on recognition, according to
Barresi, Jeff Riley, a field organizer for the Union who
had begun attending the negotiation sessions on January
17, said, "Well, if we can clear up recognition, why can't
we clear up union shop?" and the discussion turned to
that issue. Lodico reiterated the Union's willingness to
agree to a provision requiring that current union mem-
bers maintain their membership and new employees
become members, while giving current employees who
were not already members the choice of joining the
union or paying a service fee, using authorization cards
as the criterion for current membership. Barresi again ex-
pressed his view that previously signed cards were not
an accurate indicator, but offered to let Riley and
Lodico use the lunchbreak to sign up employees for a 6-
week period after the contract was executed. Barresi and
Fannin again asked the Union to take the package pro-
posal to the membership, but Lodico said that they could
not because the proposal did not include a union shop.
However, the package was submitted to the employees
at a union meeting on February 3; the members rejected
the offer and gave the negotiating committee strike au-
thorization. According to Lodico's uncontradicted and
credited testimony, part of the reason for the rejection of
the management offer was that the Union was of the
view that without union security, there would be no way
to enforce the rest of the contract.
February 8: Respondent did not make any new or
modified proposals, saying that it had shown sufficient
movement on the issues. The Union submitted in written
form its union-security proposal„ which required all em-
ployees who were members of the Union on the effective
date of the contract to maintain their membership, all
other current employees to pay a service charge in an
amount equal to dues as a condition of continued em-
ployment, and all employees hired after the effective
date of the agreement to become members of the Union
after completion of their probationary period. The Union
also said that it would offer Respondent a side letter ex-
cluding from the unit those individuals whom Respond-
ent felt strongly about, apparently referring to the sala-
ried work leaders, i a as Respondent had previously with-
19 Riley testified that the Umon asked Respondent who the employees
were who had threatened to quit their jobs if required to join the Umon
and that the Union offered to exclude these individuals from the bargain-
ing unit Leaving aside the question of whether an agreement to exclude
named individuals who work in classifications covered by a collective-
bargaining agreement from the operation of that agreement is lawful, I do
not credit Riley. He in general was not an impressive witness, his recol-
lection as to the bargaining sessions he attended was poor and some of
his testimony displayed a lack of candor Accordingly, I have largely dis-
regarded his testimony concerning what occurred during the course of
bargaining I therefore find on the basis of Lodico' s testimony regarding
a possible side letter that the individuals to be excluded were the salaried
work leaders
drawn its proposal to exclude the hourly paid work lead-
ers. The Union presented another economic proposal and
also suggested that the parties sign a contract that did
not include sections on union security, checkoff, manage-
ment rights, or no-strike/no-lockout, but management ne-
gotiators reaffirmed their support of the package they
had presented on February 1 and suggested seeing a
Federal mediator. The Union declined the offer, saying
that it would prefer to meet again without a mediator.
February 15: At this meeting Respondent said that its
offer had been on the table for 3 weeks and could not be
left dangling forever, and withdrew the second year of
the proposal. Barresi explained that, since the proposal
had been submitted, orders had fallen off and delivery
dates had been set back, while at the same time the price
of Respondent's raw materials had increased.14 Accord-
ing to Lodico, toward the end of the meeting, which
was on a Friday, Respondent said that it needed an
answer by 4:30 p.m. the following Tuesday and that it
would consider everything negotiated so far "up for
grabs." Also, according to Lodico, the Union reiterated
its request for information on work leaders and seniority
and hiring dates, as well as on some other matters. Ac-
cording to Barresi , at the February 15 meeting the Union
said it could accept Respondent's proposal because there
was no provision for compulsory union membership and
Barresi replied that Respondent had made substantial
movement and had gone as far as it could; he again
asked the Union to take the proposal to the membership.
The Union caucused and when it returned said that it
could not accept the package because it did not contain a
union-shop provision. At that point Respondent caucused
and when its negotiators came back to the table, they
said that they would have to withdraw the second year
of the proposal, but if that was the only obstacle to
agreement , they would be more than willing to talk
about the second year.
March 14: The parties met at a Federal mediator's
office in Dayton. Melvin Womack, International repre-
sentative of the United Electrical Workers, who had
taken over as principal negotiator for the Union, said
that the Union had to have union security before it could
agree to anything else and that if they agreed on this
issue , the other issues would fall into place. 1 s Barresi re-
peated his position that Respondent had made substantial
movement, that Respondent felt it had an obligation to
certain employees, and that if those or other employees
chose to join the Union that was their prerogative.
The Union met on March 21 and voted to begin a
strike on March 24.
14 It is undisputed that Respondent's business to some extent depends
on the automotive industry and that Respondent uses raw materials de-
rived from petroleum
to Barresi testified that Womack said "union shop," but in his pretrial
affidavit Barest quoted Womack as referring to "union security" and Re-
spondent 's position statement submitted during the investigation of this
case also stated that Womack referred to "union security " I therefore do
not credit Barresi's testimony on this point, particularly as the record es-
tablishes that the Union had made proposals for other forms of union se-
curity, and find that Womack said "union security" rather than "union
shop "
1350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The union-security clause
The General Counsel contends that Respondent
sought to avoid reaching agreement on a union -security
provision and thus refused to bargain in good faith on
that issue . In support of this contention , the General
Counsel points out that Respondent 's collective-bargain-
ing agreement with the Metal Polishers contained a
union-shop provision and contends that Respondent re-
jected the compromised union -security proposals sug-
gested by the Union.
Union security was mentioned for the first time at the
December 27 meeting , when the Union proposed a union
shop and Respondent counterproposed an open shop.
The next day the Union repeated its proposal and Barresi
explained Respondent 's concerns for employees who had
said they would quit if forced to join a union and about
the potential difficulty of hiring new employees. On Jan-
uary 4 Barresi said that Respondent was not "married to
an open shop," and the Union tied union security to its
positions on economics and management rights . On Janu-
ary 11 Barresi modified Respondent 's proposal by sug-
gesting that current employees have the rights to choose
whether to join the Union and new employees be re-
quired to have some financial obligation to the Union.16
At the January 17 meeting the Union said it would agree
to management -rights and no-strike provisions in ex-
change for a union shop. The next day the parties dis-
cussed the significance of the union -shop provision in the
Metal Polishers contract and Barresi offered to include
the work leaders in the unit in exchange for an open
shop . On January 25 the parties repeated their arguments
for their respective positions and each proposed a 1-year
provision : Respondent suggesting a 1-year open shop and
the Union offering a 1-year union shop. On January 28
the parties discussed authorization cards as indicators of
union membership and the Union modified its proposal
to require current employees to choose between mem-
bership and financial obligation and new employees to
join ; Barresi replied that he was thinking of allowing
current employees a choice as to whether to have any
obligation and new employees the choice between finan-
cial obligation and full membership. On February 1 Re-
spondent submitted a written proposal memorializing the
oral proposal made on January 28 , and on February 8
the Union submitted its written proposal calling for cur-
rent employees to pay a service fee, and for all new em-
ployees to join the Union. Neither party thereafter modi-
fied its position prior to the strike.
From the foregoing summary of the evidence on this
issue , it is clear that Respondent modified its position on
union security ; indeed , Respondent offered more of a
compromise than the Union did, for the Union's propos-
als moved only from a full union shop to a maintenance
of membership combined with an agency shop for cur-
rent employees and a full union shop for future employ-
16 Lodico testified that Barresi suggested as part of Respondent's pro-
posal that new employees "be members of the Union." However, as Re-
spondent never proposed in writing that new employees be required to
join the Union rather than pay a service fee in an amount equal to dues,
it is more likely that Barresi proposed that new employees hired after the
contract was executed have a financial obligation to the Union, and I so
find
ees. t 7 Respondent , however , moved from a full open
shop to financial core membership for employees hired
after the effective date of the contract.
It is well settled , as Respondent points out, that refusal
to grant a union-security clause does not by itself consti-
tute bad-faith bargaining, t 8 and that the mere fact that
such a clause has been included in a contract in the past
does not establish that the refusal to grant it again is un-
lawful.19 Where, as here, the employer shows a willing-
ness to discuss the union 's proposals , explains its reasons,
which are not frivolous, for refusing to agree to the
Union 's view , and submits compromise proposals, and
there is neither contention nor evidence that the employ-
er is engaged in overall surface bargaining , it cannot be
said that the employer is acting in bad faith and with a
desire to frustrate the reaching of an agreement.20 I
therefore find that Respondent did not refuse to bargain
about union security.
4. The recognition clause
The complaint alleges that Respondent "[r]efused to
recognize the Union as the collective -bargaining agent
for its truckdrivers, work leaders and janitors ." In sup-
port of this allegation, the General Counsel urges that
Respondent refused to bargain in good faith about the
recognition clause.
The parties stipulated in the representation proceeding
that a unit of "[a]ll production and maintenance employ-
ees employed at Respondent 's Wilmington , Ohio, facility,
excluding office clerical employees, quality control tech-
nicians, professional employees , guards, and supervisors
as defined in the Act," was appropriate for collective
bargaining, and the Board , in Kurz-Kasch, supra at 1046,
so found. It is undisputed, however, that the eligibility
list submitted by Respondent prior to the 1977 election
included the names of all the work leaders and the jani-
tors, and that the Union challenged the work leaders at
11 Thus, the Union's last proposal offered only that the ocntract make
explicit the rights employees already had by operation of law to pay dues
without becoming full members of the Union "[T]he 1947 amendments
[to the Act] not only abolished the closed shop but also made significant
alterations in the meaning of 'membership ' for the purposes of union-se-
cunty contracts Under the second proviso to Section 8(aX3), the burdens
of membership on which employment may be conditioned are expressly
limited to the payment of initiation fees and monthly dues. It is permissi-
ble to condition employment on membership , but membership , insofar as
it has significance to employment rights, may in turn be conditioned only
on payment of fees and dues 'Membership' as a condition of employment
is whittled down to its financial core ." NLRB v General Motors Corp.,
373 U S 734, 742 (1963)
is Dow Chemical Co., 186 NLRB 372, 382 (1970)
19 Star Expansion Industries Corp., 164 NLRB 563, 581 (1967)
zo The General Counsel cites Smyth Mfg. Co, 247 NLRB 1139 ( 1980);
Northfield Cheese Co, 242 NLRB 1117, 1122-1123 (1979); and Queen
Mary Restaurants Corp., 219 NLRB 776 (1975), as indistinguishable from
the instant case and requiring a finding that Respondent unlawfully re-
fused to bargain over the union -security issue . However, in Smyth the ad-
mmistrative law judge found that respondent 's argument for opposing a
union shop "was an act of disingenuous misrepresentation ," 247 NLRB at
1167, and in Northfield, the employer anticipatonly refused to bargain on
the issue by telling the strike replacements that they would have a "com-
plete choice" as to whether they would join the union and pay dues
Also, and significantly , in Smyth and Queen Mary Restaurants , respond-
ents never retreated from their original position that only an open shop
would be acceptable , and in Northfield, respondent modified its proposal
only as to duration I therefore find these cases inapposite.
KURZ-KASCH, INC. 1351
the election on grounds that they were supervisors, but
subsequently withdrew the challenges.
During the first bargaining session Respondent pro-
posed to exclude work leaders, janitors, and truckdrivers
and articulated at least some of its reasons. At the No-
vember 2 session Respondent identified which work
leaders were hourly paid and which were salaried and
their various responsibilities and stated that the work
leaders had been excluded from the bargaining unit in
the Metal Polishers contract. The Union contended that
anyone who voted in the 1977 election should be includ-
ed in the bargaining unit.
Recognition was not discussed again until the January
11 meeting, at which the parties agreed to list truckdriv-
ers among the excluded classifications. Respondent pro-
vided a list of those work leaders it wanted to exclude
and the parties discussed the work leaders' responsibil-
ities . Fannin said that some of them had been included in
the unit under the Metal Polishers and some had not.
Barresi noted that some of the work leaders had been
challenged in the 1977 election, but the Union argued
that the Board's Decision was dispositive. At that point
Barresi suggested that they suspend negotiations and file
a unit clarification petition, and said that Respondent's
position on the work leaders might change, but that he
"got hung up" about their authority to effectively rec-
ommend discipline.
At the January 18 session Lodi^co said that the recog-
nition issue could be treated as it had been in the Metal
Polishers contract and Barresi demurred, but said that in
exchange for an open shop he would include work lead-
ers in the unit. On January 28 Respondent modified its
recognition proposal to exclude only salaried work lead-
ers.
On February 1 Respondent proposed excluding the
salaried work leaders and plant salaried employees, and
including the hourly work leaders and the janitor. There
was a discussion of the term "plant salaried employees"
and Barresi revised the language to meet an objection
voiced by Lodico.
On February 8 the Union offered a side letter exclud-
ing salaried work leaders. There is no evidence that the
parties discussed recognition again prior to the strike.
The General Counsel contends in his brief that the
work leaders are not supervisors and that Respondent's
"proffered reasons for [their] exclusion . . . were noth-
ing more than a sham formulated in bad faith," and that
the "inference of bad faith is even stronger when one
considers the proposals Respondent offered in regards to
janitors and truck [drivers]." I disagree.
Assuming, without deciding, that the work leaders
were not supervisors, their status was not resolved in
either the prior unfair labor practice case or the repre-
sentation proceeding. Respondent described its reasons
for proposing the exclusion of the work leaders, includ-
ing its view that they might be supervisory and/or mana-
gerial personnel. Although the evidence in this record
does not establish that Respondent's view was correct,
Respondent nonetheless took a position that was not friv-
olous and which it could lawfully propose.21 Further, it
is clear that at least some of the work leaders were ex-
cluded from the bargaining unit represented by the Metal
Polishers and, especially in view of the Union's repeated
insistence that the Metal Polishers contract be the basis
for negotiations, there was no indication of bad faith in
Respondent's pointing out this fact to the Union. Most
important, Respondent not only modified its position to
agree to inclusion in the unit of hourly paid work lead-
ers, but it also appears that the Union was willing to
agree to a side letter that would exclude the salaried
work leaders. In these circumstances, I find that the
record does not warrant a finding that Respondent did
not bargain in good faith over whether work leaders
should be included in the bargaining unit.
Similarly, it is undisputed that the parties reached
agreement on the status of of truckdrivers the second
time they were discussed, on January 11, and reached
agreement on the janitors the second or third time they
were discussed. Respondent's articulated concern for dis-
posing of any potential issues concerning truckdrivers
was not frivolous and, although the janitor who cleaned
management offices was clearly not a confidential em-
ployee as the Board uses the term,22 the mere fact that
Respondent initially proposed exclusion of janitors for
this reason does not establish bad faith, particularly
when, as here, the proposal is subsequently withdrawn.
Accordingly, I conclude that the General Counsel has
not established by a preponderance of the evidence that
Respondent refused to recognize the Union as represent-
ative of work leaders, janitors, or truckdrivers and I shall
therefore recommend that this allegation of the com-
plaint be dismissed.
5. The proposal for a 1-year contract
It is undisputed that at the February 15 meeting Re-
spondent withdrew the second year of the 2-year propos-
al submitted on February 1, and Barresi testified that his
purpose in taking this action was to put pressure on the
Union to accept Respondent's package proposal of Feb-
ruary 1. It is also undisputed that Barresi said that, if the
only objection to Respondent's proposal was the dura-
tion, he would consider a second year.
As a matter of contract law, as Respondent points out,
an offer may be withdrawn at any time before it is ac-
cepted.28 However, when, as in the instant case, the alle-
gation is made that the offer was withdrawn in bad faith,
the motivation for the withdrawal must be determined. It
does not appear that the withdrawal of the second year
of the contract was undertaken to forestall agreement
2 i Because the status of the work leaders was not resolved in the prior
proceeding and the parties did not reach impasse on the recognition issue,
those cases that hold that changing the scope of an established bargaining
unit or one found appropriate by the Board is a subject about which a
party is not entitled to bargain to impasse are inapposite . Cf A-I Fire
Protection, 250 NLRB 217, 220 fn. 20 (1980); Tarlas Meat Co, 239 NLRB
1396, 1397 (1979) The General Counsel's theory does not appear to be
that Respondent insisted on a nonmandatory subject of bargaining, but,
rather, that it did not bargain in good faith
22 NLRB v Hendricks County Rural Electric Membership Corp, 102
S Ct 216 (1981)
23 Loggins Meat Co, 206 NLRB 303, 307-308 (1973)
1352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when acquiescence by the Union was imminent;24 on the
contrary, Barresi 's credible testimony and the circum-
stances surrounding the withdrawal lead me to conclude
that the purpose of the suggested withdrawal was to put
pressure on the Union to recommend the February 1
package to the membership. I further conclude that this
purpose was not an indication of bad faith but of a desire
to conclude the negotiations on a basis as favorable as
possible to Respondent and that this desire was not in-
consistent with the requirements of Section 8(d) of the
Act that an employer and his employees' representative
"meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions
of employment . . . but such obligation does not compel
either party to agree to a proposal or require the making
of a concession." I therefore find that Respondent did
not violate Section 8(a)(5) of the Act by withdrawing
the second year of its contract proposal and shall recom-
mend that this allegation of the complaint be dismissed.
6. The alleged delay in providing information
The complaint alleges that Respondent violated Sec-
tion 8(a)(5) of the Act by delaying in providing to the
Union , as the latter had requested ( 1) hiring dates,
wages, or salaries, and fringe benefits of work leaders;
and (2) names, addresses, hiring dates, classification, and
shifts of all employees hired since January 1. Respondent
does not dispute the relevance of the requested informa-
tion, but contends that it was in fact supplied in a timely
fashion.
It is undisputed that, at the first meeting on October
19, the Union requested a list of all employees in the bar-
gaining unit and their seniority dates, wages, and classifi-
cation or department, and that a current seniority list and
a list of employees' wage rates were provided by Re-
spondent at that meeting, but that Respondent did not in-
clude in that list the work leaders, who were excluded
from the unit under Respondent's recognition proposal.
It does not appear that there was any specific request by
the Union for information about work leaders25 until the
February 1 meeting when, according to Lodico's initial
testimony as a General Counsel witness, he told the man-
agement negotiators that one reason the Union could not
sign Respondent's package proposal was that the Union
had not yet received information about the work leaders.
Lodico also testified that at the February 15 meeting he
reiterated the Union's request for information about the
work leaders and that on February 20 he sent a letter to
Barresi which was "to confirm our telephone conversa-
tion today and to officially request" information about
the work leaders and the list of employees hired since
January 1, although Lodico did not recall the telephone
call to which the letter referred.
In contrast to the General Counsel's evidence on this
issue , Respondent offered into evidence as item 17 of Re-
24 Cf. Ramona 's Mexican Food Products, 203 NLRB 663, 685-686
(1973).
25 This is not to say that there was no pending request for this infor-
mation , since the Union had requested information about all "employees"
in the unit, Respondent was or should have been aware that the request
covered all those the Union viewed as in the unit , including the work
leaders
spondent's Exhibit 1326 a handwritten document listing
names and 1979 gross earnings and wage rates of the
work leaders and the fringe benefits received by the sala-
ried work leaders. At the top of the document appear
the handwritten words "Submitted 2-1-80."
Stephenson credibly testified that Fannin prepared
item 17 on February 1 using carbon paper and that she
wrote "Submitted 2-1-80" across the top as was her
normal practice on documents submitted to the Union
during the negotiations and that she would not have
made that notation unless and until the document was to
be handed to the Union.
Barresi testified that after Respondent presented its
package proposal at the outset of the February 1 meet-
ing, the Union caucused and returned with comments
and questions about the proposals, including a request for
language on holidays and information about the work
leaders. Barresi further testified that prior to the meeting
he had prepared the holiday language, but had inadvert-
ently left it in his office when he came to Wilmington for
the bargaining, so another caucus was taken. According
to Barresi , during the caucus he and Fannin sat side by
side at a coffee table and he prepared the holiday lan-
guage while Fannin wrote out the information about the
work leaders. Thereafter, Barresi forgot to give his docu-
ment to Stephenson for her to make the customary nota-
tion as to the submission date, but Fannin had her make
the notation on the document he had prepared and the
two documents, along with the recognition proposal dis-
cussed above, plus a typed proposal on vacations, were
given to Lodico together, although Barresi could not re-
member whether he or Fannin had physically handed
them over. Fannin also testified that Item 17 was pre-
sented to the Union on February 1.
With respect to Lodico's February 20 letter, Barresi
testified that on February 19 he was out of town and
called his office for messages and that he was told that
Lodico had called. When Barresi returned the call,
Lodico said that there was information the Union had
not yet received. According to Barresi, he explained that
the information had already been supplied and comment-
ed that Respondent was not "the Union's bookkeeper,"
but that he would call Fannin and ask him to get a copy
of the information to Lodico as soon as possible. Barresi
further testified that he called Fannin, who said he
would take care of the problem, and then called Lodico
again . I credit Barresi 's testimony, which was corrobo-
rated not only by Fannin but also by Barresi 's firm 's tele-
phone bill. Fannin testified that pursuant to Barresi 's tele-
phone call he sent Lodico a copy of the vacation sched-
ule for salaried employees and that portion of the seniori-
ty list that Lodico had requested.
Testifying as a rebuttal witness for the Union the last
day of the hearing, Lodico testified that he had no recol-
lection of seeing Respondent's Item 17 during negotia-
tions or of receiving it in the mail. Lodico was corrobo-
rated in this regard by Betty Beam, called as a rebuttal
witness for the General Counsel, who testified that she
26 R Exh 13 is a compilation of all the information that Respondent
asserts it supplied to the Union during the negotiations at issue, it consists
of 19 separate items
KURZ-KASCH, INC. 1353
did not recall any information tieing submitted to the
Union on February 1. However, Joan Akers, who stated
in her initial testimony that she was present at all of the
bargaining sessions except the last and perhaps the first
one, was also recalled as a rebuttal witness by the Union,
but was not asked about whether she had seen the docu-
ment at issue at the February 1 meeting.
Dan Dehan, Respondent's foreman of the finishing de-
partment, testified that he was present at the February 1
meeting and saw Fannin write item 17 during a caucus
while Barresi prepared something else. According to
Dehan, he remembered looking al the document because
wage rates were confidential and he was curious about
how much the work leaders earned.
The testimony of Barresi, Stephenson, Fannin, and
Dehan on this issue was essentially mutually corrobative
and all four witnesses testified in a forthright and candid
manner and apparently to the best of their respective
recollections about the meeting on February 1 and what
took place. I credit them and therefore find that the in-
formation on work leaders was in fact submitted to the
Union at this meeting. Consequently, I shall recommend
that the allegation that Respondent unlawfully delayed in
providing this information to the Union be dismissed.
Regarding to the list of employees hired since January
1, the General Counsel does not brief the issue of wheth-
er this information was supplied, although the complaint
alleges that it was not and that the failure to supply it
was unlawful. Lodico testified that this information was
requested at the February 15 meeting , and was not re-
ceived prior to the strike. However, Stephenson testified
that prior to the February 8 meeting , she prepared the
seniority list as of that date and laid it on the table in the
meeting room. I credit Stephenson, for the reasons de-
scribed above, and therefore find that the Union request-
ed the list of employees hired since January 1, not on
February 15 as Lodico testified, but at some earlier date,
and that the information was supplied on February 8. I
shall therefore recommend that this allegation of the
complaint be dismissed-"'
27 In finding that Respondent in fact gave the Union the information at
issue here , I do not pass on the good faith of the anion in making the
assertion that it did not receive the informal ion. In this regard, I note that
Riley was involved in the negotiations beginning with the twelfth session,
January 17, and became the principal negotiator for the Union shortly
after the strike Riley subsequently left that district of the Union . Lodico
credibly testified that documents were passed around among the commit-
tee members and that materials pertaining to the negotiations were all
kept in one briefcase , but changed hands several times during the course
of the negotiations. I also note that Beam credibly testified on rebuttal
that, although she did not recall the Union receiving any information of
February 1, when the Union received Respondent 's package proposal on
that date , "We were so upset when we seen that that we really didn't
look for anything else, I don't think . We never paid too much attention
to anything else that was presented ." Accordingly, it is at least possible
that the Union's representatives sincerely (but erroneously) believed, at
the time Lodico contacted Barresi on February 19, that Respondent had
not submitted the requested information.
As to the list of employees hired since January 1, Riley's notes of the
negotiations show that a request for a list of newly hired employees was
made on February 15 I conclude that the seniority lust was submitted to
the Union on February 8 and that the union negotiators did not realize,
on February 15, when they requested the list of new hires , that that in-
formation was included in the February 8 seniority list.
C. The Discipline and Discharges Alleged to Violate
Section 8(a)(3) of the Act
1. The reprimand of Karen Green
On March 20 employee and active union adherent
Karen Green was called to the office; when she arrived
there Fannin, Stephenson, Aquila Shaw, her steward,
Foreman Lloyd Rahmlow, and Work Leader Burt Craft
were already there. According to Green, Fannin read to
her parts of written statements from two employees,
Lynn Haines and Letha Frisby,28 and gave her a written
reprimand for allegedly harassing them into going to
union meetings and frightening them about possible acci-
dents with the plant machinery.
Green testified that she told Fannin that the statements
were not true, that she had not said that anyone had
been hurt, that she had invited the two employees to
union meetings "but I didn't push them," and that Haines
and Frisby "had walked out on him and I was still here
working hard for him and that I thought he ought to be-
lieve me instead of two people that would walk out on
him like that,"29 but Fannin replied that he had to be-
lieve what was written in the statements.
Green also testified that on some earlier date there had
been a conversation in the lunchroom during the lunch
break in which she, Frisby, Haines, and employees Her-
schel Baker and David Swearingen had participated, and
that in the course of a discussion of accidents in facto-
ries, Green had mentioned that the top of a molding ma-
chine in Respondent's plant had once dropped out while
an employee was working on it, but Green had specifi-
cally said that the machine operator had not been hurt.
According to Green, this conversation was the genesis of
Frisby's and Haines ' statements to Fannin , and she told
Fannin at the time she received the reprimand that Baker
and Swearingen could verify her version of events, but
Fannin said that the other employees were not needed.
Fannin testified that Haines and Frisby had told him
on March 20 that they were going to quit because they
could not stand the pressure from Green, and that
Haines said that Green was frightening her about the
equipment being unsafe and Frisby said that Green was
both frightening her about the equipment and threatening
her that, if she did not support the Union, "bad things,"
would happen to her. According to Fannin, he tried to
get the two employees to change their minds about quit-
ting, but when that attempt was unsuccessful he asked
28 The statements read as follows
3/20/80
Karen Green told me on first break , 3/17/80, that No. 9 had com-
pletely come down on an operator She specifically said the girl had
gotten hurt and the other machines were unsafe to operate and to
just be careful.
/s/Lynn Haines
3/20/80
Karen Green harassed [sic] an [sic] tried to scare me an [sic]
other new employees As far as the machinery being defective which
they are not and as far as the union goes she harassed [sic] constant-
ly about it. Giving threats as to if we didn't go Union something bad
would happen.
29 Frisby and Haines both quit on March 19
/s/Letha Frisby
1354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
them to make written statements , and he used those
statements as his basis for reprimanding Green.
The General Counsel contends that Green's activities
in discussing the Union and accidents were protected
and concerted, that she did not engage in any conduct
that would cause those activities to lose the protection of
the Act, and that consequently Respondent 's reprimand
of her for those activities violated Section 8(a)(1) of the
Act. Respondent, on the other hand, contends that
Fannin honestly believed that Green had engaged in mis-
conduct, that the General Counsel did not establish that
Green had not done so, and that therefore, the General
Counsel did not demonstrate that the reprimand was un-
lawful.
The principles governing the determination of whether
an employer unlawfully disciplined an employee in situa-
tions such as that presented by the instant case are stated
succinctly in Co-Con, Inc., 238 NLRB 283 (1978):
When an employer discharges an employee for mis-
conduct arising out of a protected activity such as a
strike, the employer's good-faith belief that the mis-
conduct occurred is not a defense to such a dis-
charge if it is shown that the misconduct never oc-
curred . NLRB v. Burn up and Sims, Inc., 379 U.S. 21
(1964). When an employer establishes such an
honest belief, the defense is adequate unless the
General Counsel affirmatively establishes that such
misconduct did not in fact occur. Rubin Bros. Foot-
wear, Inc. and Rubin Brothers Footwear, Inc., 99
NLRB 610 (1952), enforcement denied 203 F.2d 486
(C.A. 5, 1953).30
First, there is the question whether Fannin had a
good-faith belief that Green's activities had gone beyond
the limits of Section 7's protection. On the one hand, I
credit Fannin's testimony that Haines and Frisby told
him they were quitting their jobs with Respondent be-
cause of Green 's statements to them. However , discus-
sions about safety in the plant, as well as about union ac-
tivity, are protected by the Act, and the mere fact that
an employee may perceive that another employee's con-
duct is unprotected does not make it so. Thus, Haines
and Frisby's decisions to quit because of Green, while
certainly giving Fannin cause to look into the matter, do
not, standing alone, warrant a fording that Fannin had an
honest belief that Green's conduct was unprotected.
Turning to a consideration of the statements, the one
supplied by Haines does not allege any activity by Green
that could even arguably be said to be unprotected,31
and Frisby's references to harassment and threats are too
vague to support an honest belief that Green had en-
gaged in unprotected activity. Fannin did not testify that
Haines and/or Frisby made any specific allegations of
misconduct by Green other than what was indicated in
30 Although Co-Con, Inc., supra, involved strike misconduct, the pnn-
ciples quoted above apply to any situation where an employee is disci-
plined for misconduct in the course of protected concerted activity See,
e g, Classe Ribbon Co., 227 NLRB 406 (1976).
a 1 Green 's discussion of working conditions and machinery with other
employees was clearly protected and assuming , arguendo, that she said
that an employee had been hurt , her statement was protected , whether or
not it was accurate See R. J. Liberto, Inc., 235 NLRB 1450, 1453 (1978)
their statements, and neither Haines nor Frisby testi-
fied.92 I therefore find that Frisby and Haines did not in
fact report to Fannin any specific behavior of Green
other than that referred to in the statements, and that the
statements are an insufficient basis for an honest belief
that Green's behavior had exceeded the parameters of
Section 7's protection. In making this finding, I empha-
size that the misconduct of which Green was accused
occurred in the context of protected concerted activity;
this is not a case in which the employer lawfully disci-
plines an employee because of the former's reasonable
belief that the latter has engaged in activity that has no
relationship to conduct protected by the Act.33 Accord-
ingly, I find that Fannin did not have an honest belief
that Green had engaged in unprotected activity. In any
event, were I to find that Fannin had such a belief, I
credit Green's testimony that she did not engage in the
misconduct attributed to her by Frisby and Haines, and
that the General Counsel has therefore met his burden of
establishing that the alleged misconduct did not occur. I
therefore find that the reprimand of Green violated Sec-
tion 8(a)(3) and (1) of the Act.
2. The discharges of Osa Valentine and Brenda
Johnson
Valentine and Johnson were both probationary em-
ployees at the time of the strike, Johnson having worked
for Respondent since early February and Valentine since
about March 14. Both employees honored the picket line
and did not work during the strike. Valentine was appar-
ently discharged on March 27;54 Johnson was dis-
charged by letter dated April 1. According to Fannin,
whom I credit on this issue, he discharged both Valen-
tine and Johnson because they were probationary em-
ployees and quit coming to work.
Probationary employees are employees within the
meaning of the Act and, consequently, their discharge
for engaging in the protected concerted activity of a
lawful strike violates Section 8(a)(3) and (1) of the Act,
even absent a showing of actual union animus motivating
the discharge.35 In the instant case the sole reason for
the discharges of Johnson and Valentine was their failure
to work during the strike; I therefore find that the dis-
charges violated Section 8(a)(3) and (1) of the Act.
sa As neither Haines nor Frisby was employed by Respondent at the
tune of the hearing, there is no showing that they were more available to
one party than to another and I draw no adverse inference from the fail-
ure to call them as witnesses However, their failure to testify leaves their
written statements and Fannin 's testimony the only evidence of what
they said to him, and also leaves Green's testimony as to her conversa-
tions with them uncontradicted.
as Cf. Hartz Mountain Corp, 228 NLRB 492, 535 (1977).
99 Valentine 's separation report is dated March 27, however, she did
not learn of her discharge until April 2 when, having been told by Akers
that the strike had engaged , she called the plant to arrange for reinstate-
ment and was told by Stephenson that she had been terminated.
35 Kansas City Power & Light Co., 244 NLRB 620, 621-622 (1979).
KURZ-KASCH, INC. 1355
D. The Alleged Prestrike Violations of Section 8(a)(1)
of the Act
1. The instruction to remove union insignia
It is undisputed that on a date in late January or early
February some of the unit employees , apparently because
out-of-town management officials were visiting the plant,
wore signs and badges to work expressing their support
for the Union's negotiating position on wages and union
security . It is also undisputed that some of the signs were
made of small paper plates about 6 inches in diameter
and were hung around the wearer 's neck on a piece of
ribbon and that other employees wore signs of a similar
size or perhaps larger attached to their clothing with
pins. Toward the end of the workday, about 4 p.m.,
Fannin called employee members of the Union's bargain-
ing committee to his office, told them that Respondent
and the Union had agreed at the first bargaining session
that what was discussed at the bargaining table should be
left at the table, and demanded that those employees
who were wearing signs around their necks remove the
signs on grounds that they constitute a safety hazard
around the revolving machinery used in the plant.
Fannin also requested the employees to remove the other
'signs they wore on their clothing. According to Beam,
two or three employees wore signs opposing the Union
pinned to their clothes that day, but were not asked to
remove the signs.
The complaint alleges that the instruction to employ-
ees to remove their signs violated Section 8(a)(1) of the
Act; Respondent contends that those signs that were
hung around the employees' necks were a safety hazard
and that it was therefore justified in instructing that such
signs be removed.
One of Respondent's safety rules requires that "Long
hair must be tied behind the head when operating any
type of revolving equipment," and Fannin credibly testi-
fied that the plant uses high -speed revolving equipment
and that two employees had suffered scalp injuries be-
cause they had not tied back their hair and, apparently, it
was caught in the moving parts. of the machinery. Ste-
phenson credibly testified that on occasions when she
has been in the plant she has approached both male and
female employees and told them to tie back their hair be-
cause of the hazards of long hair when working around
revolving machinery. Stephenson further testified that
she advised employees not to wear necklaces when they
work around moving machinery, and that almost every
job involved such work. Beam , however, corroborated
by employee Joan Akers, another member of the Union's
bargaining committee , testified that employees wear
necklaces "all the time" and that she had never been in-
structed not to wear jewelry to work. Further Fannin
testified that some jobs did not involve the use of ma-
chinery and it appears that the employees regularly as-
signed to at least some of these jobs, such as painting
knobs after they have been molded, did not do other
types of work in the plant.
It is well established that employees have a protected
right to wear union insignia at work and that an employ-
er's interference with that right must be justified by
safety or other legitimate business considerations.36
Thus, for example, the Board found no unfair labor prac-
tice when a welder was instructed to remove 15 to 20
paper stickers from his safety helmet; 37 where an em-
ployee wore a 10- by 16-inch "vote yes" pasted on her
back and was ordered to remove it "for safety's sake"
because it caused a distraction to other employees;as or
where employees were discharged for refusing to heed
instructions that they remove union stickers from metal
hardhats that were selected because they were shiny and
made the employees more visible in the dim lighting of
their work areas . 39 In the instant case , it appears from
the record that, although not all the employees worked
with machinery that had revolving parts, most of them
did, and the Board has not, in the cases cited above or
those cited by the General Counsel in his brief, required
that an employer , in directing the removal of union insig-
nia because of safety considerations, fully explicate those
concerns or limit the proscription to circumstances in
which the hazard was most serious.40 I therefore con-
cluded that Respondent has justified its instructions to
employees to remove signs hanging around their necks
and that these instructions did not violate Section 8(a)(1)
of the Act.
I reach a different result, however, on consideration of
Fannin's request to employees that they remove the signs
that they had pinned to their clothing. Respondent does
not contend that there was any safety consideration that
prompted this request-Fannin testified that "with long
dangling string around thier neck, it could very seriously
injure them if it got caught in one of these high-speed
spindles," but made no reference to any specific safety
hazard posed by the signs that employees had pinned on.
An employer may unlawfully discourage the wearing of
union insignia by mere request as well as by direct
order,41 and I therefore find that Fannin's request that
the pinned-on signs be removed violated Section 8(a)(1)
of the Act.42
2. The alleged interrogation of Osa Valentine
Employee Osa Valentine, whose discharge is discussed
above, testified that she began working for Respondent
approximately March 14 and that on Thursday, March
20, she was called into the office where Fannin, Stephen-
son, and an unidentified man were waiting for her.
" Pleasurecraft Marine Engine Co, 234 NLRB 1216, 1225 (1978).
" Brown Mfg. Corp, 235 NLRB 1329, 1331-1332 (1978).
38 Fluid Packaging Co., 247 NLRB 1469, 1474 (1980)
39 Andrews Wire Corp., 189 NLRB 108 (1971)
so It is also noteworthy that the only union bargaining committee
member who wore a sign around her neck was Betty Beam , who was a
machine operator.
41 Dixie Machine Rebuilders, 248 NLRB 881 , 882 (1980), Stafford Con-
struction Co., 250 NLRB 1469 , 1473 (1980)
42 The complaint alleges only, with respect to this incident, that
Fannin "instructed employees who were wearing buttons and signs sup-
porting the Union to remove them ." However, as there is no dispute that
Fannin not only directed employees to remove signs hanging around
their necks , but also requested employees to remove signs pinned to their
clothes, this request was fully litigated and it is appropriate to make find-
ings regarding it
Having found that the request to remove signs was unlawful for the
reasons stated above, I find it unnecessary to pass on Beam's testimony
that antiumon employees were allowed to wear signs.
1356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fannin and Stephenson both told Valentine that she was
doing an excellent job and Fannin mentioned that an em-
ployee had injured her arm or hand in a machine and
asked Valentine if this frightened her. On cross-examina-
tion, counsel for the Union asked Valentine if Fannin
had asked her if she had been frightened by any other
employees and Valentine responded that Fannin had
asked her if anyone had approached her "about the
Union or about the machinery being unsafe and what-
not," and that she had answered that she minded her
own business and "didn't bother anyone, didn't pay at-
tention to much talk, whatever," and that she had not
been approached about the Union.
Respondent offered the affidavit Valentine executed
during the General Counsel's investigation of the charge
in this case in evidence as a prior inconsistent statement
on the basis of the following language in the affidavit:
Waldo asked me how I liked the job. I said fine.
We talked about working in plastics. He asked me
had been harrasing [sic] or frightening me. He ex-
plained an accident with another girl to me (she had
her hand cut off). I said I had not heard this.
Respondent correctly points out that there is no mention
in the affidavit of any question about Valentine being ap-
proached about the Union. However, it is clear that
some words are missing from the affidavit in the sen-
tence regarding whether Valentine had been harassed or
frightened and thus some doubt is cast on the validity of
the affidavit as a complete statement of what occurred in
that conversation.
Fannin admitted asking Valentine whether anyone had
tried to scare her into thinking that the equipment used
in the plant was unsafe, but denied asking her if she had
been approached about the Union.
I credit Valentine, who was an excellent witness and
appeared to testify in a straightforward manner and to
the best of her recollection. On many issues in this case I
have credited Fannin, but on this matter I conclude that
Valentine was the more credible witness and that any
conflicts in the testimony of these two witnesses should
be resolved in Valentine's favor. In addition, although
Respondent does not dispute Valentine's testimony that
Stephenson and an unidentified man were also present
for the discussion, Stephenson, although she was called
as Respondent's witness and testified extensively about
other issues in the case, was not asked about this conver-
sation. Accordingly, I find that Fannin did ask Valentine
whether she had been approached about the Union and
that this question, asked in a management office during a
discussion initiated by management officials and unac-
companied by any assurance against reprisals or state-
ments of legitimate reasons for the interrogation, was co-
ercive and violated Section 8(a)(1) of the Act.43
3. The alleged interrogations of employees about
whether they would participate in the strike
On Sunday, March 23, Fannin and Stephenson went to
the plant and telephoned employees to tell them about
43 Erie Technological Products, 218 NLRB 878 (1975)
the strike called for the next day and to advise them that
the plant would be open. Valentine testified that Ste-
phenson called her about 5:30 p.m. on Sunday and asked
her if she was aware of the strike, that Valentine replied
that she was not because she lived in another town and
did not receive the Wilmington newspaper,44 that she
then asked Stephenson "a bunch of questions," and that
Stephenson said she would call Fannin to the telephone
because "he knows more about this than I do." Valentine
further testified that Fannin got on the telephone and
told her that since she was a probationary employee, she
was expected to be at work, and that, when Valentine
said she did not like the idea of going through a picket
line, Fannin said, "Well, if they bother you, just roll up
your windows and drive on through, and if you hit one
of them, it's their problem."
Employee Sharon Lorenzo testified that on March 23
Stephenson called her and wanted to know if she was
aware of the impending strike and if she was coming to
work the next day, and, when Lorenzo responded in the
negative, Stephenson asked "if she could change my
mind about coming in to work on the next Monday."
According to Lorenzo she told Stephenson that she was
not going to work, and Stephenson responded that there
would be security guards at the plant.
Stephenson testified that she went to the plant the
afternoon of March 23 and called between 10 and 15 em-
ployees following Fannin's instructions as to what to say,
that she wrote down these instructions, and that she did
not deviate from them except to identify herself, say
"hello," or similar comments . Specifically, Stephenson
testified that she did not ask any employees whether they
were going to support the strike or say that she wished
she could change their minds about supporting the strike.
Fannin testified that he and Stephenson called employ-
ees to inform them that Respondent would be open for
business and that employees could report to work, but
denied that they called employees to find out if they
were coming to work. Fannin also testified that on Sat-
urday, March 22, he talked to Stanton from the law firm
that represents Respondent, that Stanton gave him spe-
cific instructions as to what he could and could not say
to the employees, and that he wrote out these instruc-
tions, told Stephenson what they were, and followed
them. Fannin's notes of these instructions are in evidence
and indicate that it was permissible to advise the employ-
ees that Respondent would be open for business and that
management "would like for you to come in," but that
the employees must not be asked whether they were sup-
porting the Union or whether they were coming to
work. Fannin specifically denied telling Valentine that
since she was a probationary employee, she would be ex-
pected to report to work.
Regarding the alleged statement by Fannin to Valen-
tine, I credit Valentine. As noted above, I found her to
be an impressive witness, and her testimony as to her
telephone conversation with Fannin is lent additional
44 Fannin credibly testified that he had read in the newspaper that
there would be a strike at Respondent 's plant beginning March 24 and
that he then called counsel , who advised him what to say to the employ-
ees
KURZ-KASCH, INC. 1357
credibility by the fact that she was subsequently termi-
nated for not reporting to work during the strike. Ac-
cordingly, I find that Fannin's statement to her that she
would be expected to work during the strike was coer-
cive and that by that statement Respondent violated Sec-
tion 8(a)(1) of the Act.45 However, with regard to the
allegation that Stephenson coercively interrogated Lor-
enzo on March 23, I credit Stephenson's denial that she
made the statement Lorenzo attributed to her. Stephen-
son appeared to be a straightforward and candid witness
and impressed me as someone who took her work seri-
ously and was conscientious about following instructions.
In these circumstances, I fmd it difficult to believe that
Stephenson would ask Lorenzo if she were coming to
work or state that she would like to change Lorenzo's
mind about whether she would come to work, comments
that Stephenson was well aware were improper. Accord-
ingly, I shall recommend dismissal of the allegation that
Stephenson coercively interrogated employees during the
March 23 telephone conversation.46
4. The no-solicitation and no-distribution rules
It is undisputed that Respondent has at material times
maintained work rules that include, inter alia, both
"Minor Rule Violations" and "Major Rule Violations,"
and that one violation of a minor rule will result in a
warning, two violations of a minor rule constitute a
major rule violation, and employees who commit a
major rule violation are subject to a 2- or 3-day discipli-
nary layoff. Among the conduct prohibited by the minor
rules are: "Taking up a collection of any kind or solicit-
ing without the Plant Manager's approval," and "Distrib-
uting or posting any written or printed materials without
the Plant Manager's approval." The General Counsel
contends, in his amendments to the complaint, that both
these rules are invalid . I agree.
The Board has held that:
[An employer] cannot lawfully require an employee
to secure permission as a precondition to engage,
without fear of management interference or retalia-
tion , in protected concerted activities on company
property in nonwork areas on the employees' free
time.47
Accordingly, I find that the rules at issue here impose an
unlawful restriction on employees' protected concerted
activity by requiring prior permission for solicitation and
distribution from the plant manager . In addition, the
rules are presumptively unlawful in that they do not limit
their restrictions on solicitation to times when employees
are supposed to be working or the restrictions on distri-
bution to times when employees are supposed to be
48 I further find that Fannin made the statement attributed to him by
Valentine as to driving through the picket line, a statement about which
Fannin was not examined at the hearing . However, there is no allegation
in the complaint that this comment was unlawful, and I make no further
findings regarding it
46 I also note that there is no evidence that Stephenson interrogated
any other employees during these conversations , yet there is no reason
apparent on this record why she should have singled out Lorenzo for
such questioning
47 AMC Air Conditioning Co, 232 NLRB 283, 284 (1977)
working or in areas where employees are working.48 Re-
spondent has not rebutted the presumption of illegality
and I therefore conclude that by promulgating overly
broad no-solicitation and no-distribution rules, Respond-
ent has violated Section 8(a)(1) of the Act.49
E. The Nature of the Strike
Lodico credibly testified that the Union's membership
voted to strike at a meeting on March 21 and that at that
meeting he or another union representative stated that
the major issue in the bargaining was union security and
that Respondent had shown no movement on that issue.
Newspaper articles about the strike that were admitted
into evidence stated that the Union had told reporters
that union security was the major issue in the strike and
economics a secondary issue.50
I have found above, that Respondent violated Section
8(a)(1) of the Act prior to the strike by the interrogations
of Valentine on March 20 and in the course of the
March 23 telephone calls from the plant, and that the
March reprimand to Karen Green violated Section
8(a)(3) and (1) of the Act. Of these unfair labor practices,
only one, the January request to remove signs, was di-
rected at more than one employee, and there is no evi-
dence or contention that any of these violations of the
Act bore any causal connection to the strike. Indeed, Lo-
dico's testimony establishes that the Union decided to
strike because, and only because, negotiations were not
proceeding as the Union wanted them to.5 t Having
49 T.R.W. Inc ., 257 NLRB 442 ( 1981), Singer Co., 220 NLRB 1179,
1180 (1975) I note that the Board 's decision in T R W Inc , above, issued
subsequent to the heanng in the instant case , however, the rules at issue
are overly broad and thus presumptively unlawful even under the doc-
trine enunciated in Essex International Inc, 211 NLRB 749 (1974), which
was in effect at the time of the hearing, but which was overruled in
T R. W Inc., above
49 I note that the US Sixth Circuit, the circuit in which this case
arises, recently denied enforcement to a Board decision finding an overly
broad no-solicitation/no-distribution rule unlawful on grounds that the
evidence showed that "the employees exercised [their solicitation and dis-
tribution] rights freely, openly , and frequently " Holiday Inn of Perrys-
burg, Ohio v. NLRB, 647 F 2d 692, 695 (6th Cir 1981 ) However, the
Board has long held that , if a rule is presumptively invalid, "it is not for
General Counsel to show that the rule was illegally motivated, discrimin-
atorily enforced , or enforced at all," Ferro Mfg Corp, 166 NLRB 878,
879-880 (1967), and that "[t]he coercive effect [of such a rule] must be
tested by the tendency of the conduct to inhibit the free exercise of em-
ployee rights under the Act." Id. at In . 5 Moreover, in the instant case
the complaint was amended on May 5, 1981, to allege that the rules were
unlawful , and the hearing was not closed until June 24, 1981, after an ad-
ditional 5 days of testimony Respondent thus was afforded ample oppor-
tunity to make a record for the court of appeals by adducing evidence
that it did not enforce the rules, but chose not to do so. Indeed, Respond-
ent presented no evidence regarding the rules at the hearing and does not
refer to the issue at all in its brief.
60 I do not credit Riley 's testimony that at the March 21 meeting, in
addition to telling the membership that recognition, management rights, a
no-strike/no-lockout clause, union security, and economics were at issue,
he specifically referred to "the whole question of the Company not bar-
gaining properly by not issuing certain information that the Union re-
quested in order to bargain with the Company "
51 The Board has held that it is not necessary to adduce specific proof
of the causal connection between an employer's unlawful conduct and a
subsequent strike to demonstrate that a strike is an unfair labor practice
strike Tarlas Meat Co, 239 NLRB 1400 (1979) However, such a connec-
tion must be inferrable from the record as a whole and, in the instant
case, inasmuch as there is no evidence that any of the unfair labor prac-
Continued
1358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
found that Resondent did not violate Section 8(a)(5) and
(1) of the Act by its conduct in the course of those nego-
tiations, I further conclude that the strike was not an
unfair labor practice strike but an economic strike.
F. Alleged Violations of Section 8(a)(1) During the
Strike
1. The alleged misrepresentation of strikers' right to
recall
On the seventh day of the hearing, at the close of his
case in chief, the General Counsel moved to amend the
complaint in several particulars, including the addition of
an allegation "that on or about March 24, 1980, Re-
spondent interfered [sic], restrained, and coerced its em-
ployees in exercise of their Section 7 rights by distribu-
tion [of] an information letter to employees."
It is undisputed that Respondent sent to employees a
letter dated March 24 (the day the strike began) and enti-
tled "Information Letter to Wilmington Plant Employ-
ees." The first paragraph of the letter reads as follows:
After many months of bargaining between Kurz-
Kasch, Inc. [sic] and the UE Union, the Union has
decided to strike . . . . Everyone should be aware
that Federal law allows economic strikers to be per-
manently replaced.
The General Counsel contends that the letter "can rea-
sonably be construed to give employees the impression
that they will forever forfeit their status as employees if
they strike because they could be permanently replaced,"
and misrepresents the strikers' right to recall, thus violat-
ing Section 8(a)(1) of the Act.
An employer is entitled to continue to run his business
during a strike and is entitled to hire replacements for
strikers to that end. However, economic strikers who un-
conditionally offer to return to work after their positions
have been filled by permanent replacements remain em-
ployees and are entitled to be recalled on the departure
of replacements unless the employer can show that the
failure to recall them was for legitimate and substantial
business reasons,52 and the Board has held in numerous
cases that an employer violates Section 8(a)(1) of the Act
by misrepresenting these rights.58 However, an employer
may lawfully advise employees that economic strikers
may be replaced and that the employer is not required to
discharge the replacements at the end of the strike in
order to rehire the strikers.54
In the instant case, the statement made by Respondent
falls somewhere between the two extremes described
above. Clearly, it is accurate to say that Respondent has
a right to replace economic strikers, but the statement in-
cludes no indication that such strikers are entitled to re-
instatement as jobs become available. Consequently, the
tices found above had any impact on negotiations , or were discussed at
union meetings or taken into consideration by the employees in deciding
whether to strike, I conclude that such an inference is not warranted.
See, e . g., Burlington Homes, 246 NLRB 1029, 1031-1032 (1979).
52 Laidlaw Corp, 171 NLRB 1366, 1369-1370 (1968).
ss See, e g , Edward A. Utlaut Memorial Hospital, 249 NLRB 1153,
1157-1158 (1980), St Anthony's Center, 227 NLRB 1777, 1785 (1977).
64 Dow Chemical Co, 186 NLRB 372, 379, 384 (1970)
question becomes whether, once an employer makes any
reference to the consequences to employees of joining an
economic strike, he must take a complete statement of
those consequences. This question must be answered in
the negative, for the Board has held in a number of cases
that an employer may notify employees that, if they
become economic strikers, they may be permanently re-
placed, and that there is no requirement of an explana-
tion of the strikers' poststrike rights under Laidlaw,
above. 55 Accordingly, I conclude that Respondent's
statement to employees that economic strikers could be
replaced did not violate the Act.
2. The assistance to an employee in resigning from
the Union
It is undisputed that on Monday, March 31, employee
Aquila Shaw, a striker and member of the union bargain-
ing committee, telephoned Fannin and told him that he
wanted to go back to work. Fannin told Shaw to come
see him at the plant the next morning and Shaw did so.
At the meeting Shaw again stated that he wanted to
return to work and Fannin said that he would have to
fill out a reinstatement form. While Shaw was filling out
the form, Fannin asked him if he knew that he could be
fined by the Union for crossing the picket line. Shaw
said he did not know that and Fannin told him that he
could avoid the possibility of being fined by resigning his
membership in the Union. At that point Shaw asked
Fannin if the latter would have a letter of resignation
prepared for him and, consequently, a secretary in Re-
spondent's office typed a letter that stated, in substance,
that Shaw resigned from the Union effective April 1.
After Fannin gave him the letter, Shaw signed it, left the
plant, and gave it to Riley, who was apparently at the
picket line. Shaw told Riley that he had resigned from
the Union, and Riley replied "Okay. 11 511 Shaw and
66 See, e.g., Puntech Industries, 246 NLRB 618, 622 (1979); Cagle's
Inc, 234 NLRB 1148, 1149-1150, 1156 (1978) (the Board reversed the
finding of the administrative law judge that the statement at issue was
lawful , but did so on the basis of its finding that the stoke was an unfair
labor practice strike and therefore respondent could not lawfully perma-
nently replace the strikers), Champagne Color, 234 NLRB 82 , 88 (1978);
Cal-Pacific Furniture Mfg Co, 228 NLRB 1337, 1344 (1977), Terry Indus-
tries of Oregon, 217 NLRB 133, 139 (1975 ) See also Hill Road Convales-
cent Hospital, 217 NLRB 460 In 2 (1975), a representation case in which
the Board found that an employer 's statements that it had the right to
hire permanent replacements for any employees who engaged in an eco-
nomic strike were not material misrepresentations "sufficient to warrant
setting aside the election . . . simply because [they were] not coupled
with a fuller explanation of economic strikers' poststrike rights to rem-
statement under the Act "
sa The foregoing account is based on the credited testimony of Shaw.
Fannin substantially corrobated Shaw's testimony as to this incident but
additionally testified that the discussion of fines was initiated by Shaw's
comment that "I'm tired of being lied to I want to come back to work
There ain't a damn thing that they can do about it, are [sic] there?"
In response to this statement Fannin said that he had heard that a lot of
union constitutions provide that if someone crosses a picket line, charges
may be brought against them and they could be fined , and that Shaw
then asked how he could avoid that result Fannin further testified that
Shaw told him the wording of the letter, while Shaw testified that he
asked Fannin to have the letter written and that Fannin then left the
room and came back a few minutes later with the prepared letter To the
extent that there are inconsistencies between the testimony of Shaw and
Fannin as to this conversation , I credit Shaw Specifically, with respect
Continued
KURZ-KASCH, INC. 1359
Fannin both credibly testified that Shaw asked Fannin to
have the letter typed for him because his handwriting
was not too good. It is also undisputed that Respondent
did not supply either an envelope or postage for the
letter.57 Shaw testified that Fannin gave him two copies
of the letter and that he asked Fannin to keep one of
these copies in his personnel file; Fannin credibly testi-
fied that he did not think it appropriate to keep a copy
of the letter so he threw it away.
The General Counsel contends that Respondent violat-
ed Section 8(a)(1) of the Act by assisting Shaw to resign
from the Union, while Respondent correctly points out
that there is no evidence that Fannin conditioned Shaw's
reinstatement on resigning from the Union ; thus, the sole
issue is whether Respondent's involvement in Shaw's de-
cision to resign and its participation in the preparation of
the letter went beyond the limits of that which the
Board finds permissible.
In Nordstrom, Inc., 229 NLRB 601, 604-605 (1977), a
management official called a meeting of employees the
day before a scheduled strike and handed out leaflets
that stated that in order for employees to cross the
picket line without being fined they would need to resign
from the Union . Management made prepared resignation
forms available to the employees and mailed the forms
after they were signed by the employees, but apparently
did not keep copies of the letters in employees' personnel
files. The administrative law judge, affirmed by the
Board, found that Respondent's conduct (lid not violate
the Act, as there was "nothing in the Company's con-
duct, so far as the record shows, from which a promise
of benefit or a threat of reprisal can be inferred. It fol-
lows that employee free will was unimpaired in the
matter of the resignation; hence, there was no violation."
In the instant case, as in Nordstrom, above, the issue of
resignation was raised by Respondent and the language
of the letter was prepared by Respondent, but copies of
the letter were not maintained by Respondent and there
is no evidence whatsoever that Shaw received any prom-
ise of benefit or threat of reprisal in connection with his
resignation from the Union. Accordingly, I find that Re-
spondent's participation in Shaw's resignation from the
Union was not such as to violate Section 8(a)(1) of the
Act, and shall recommend that this allegation of the
complaint be dismissed .58
to Shaw 's alleged remark that he was tired of being tied to, I note that
Shaw testified that he wanted his job back because he was in the process
of buying a house and that he rejoined the Union about 3 months after
this incident.
57 Of course, since the letter was delivered by hand, neither was neces-
sary.
sa The record establishes that in fact the Union 's constitution and
bylaws contain no provision for fining members who cross the picket
line. I do not view this fact as relevant to the question whether Respond-
ent violated Sec 8(a)(1) of the Act in assisting Shaw to resign, and note
that Nordstrom, Inc., above, contains no reference to whether respondent
was accurate in telling employees that they might be fined by the Union
if they crossed the picket line
G. The Termination of the Strike, the Failure to
Reinstate the Strikers
1. The termination of the strike
It is undisputed that about 3:30 p.m. on April 1 a
group of strikers went to the plant office and, when Ste-
phenson came into the office, told her that they wanted
to see Fannin. According to Beam, Akers, and Brenda
Johnson, they told Stephenson that they were ending the
strike and wanted to return to work; Stephenson's ac-
count of the incident did not include any mention of an
offer to return to work. Supervisors Dehan and Rahm-
low both testified that they accompanied Stephenson to
the office and heard the strikers ask for Fannin, but that
the strikers did not say anything about wanting their jobs
back or ending the strike. I credit Stephenson, Dehan,
and Rahmlow, and find that on April 1, after the strikers
were told that Fannin was not available, they left the
plant without stating that they were ending the strike.59
It is also undisputed that at or about 6 o'clock the next
morning the strikers returned to the plant, but were met
by guards, and that when the strikers asked the speak to
Fannin, the guards said that he was not available and
that they would have to call him. The employees, ac-
companied by Riley and Lodico, went to a local restau-
rant where Riley, after several unsuccessful attempts to
talk to Fannin by telephone, finally was able to talk to
Stephenson, who said that Fannin would like to talk to
him. Consequently, Riley gave Stephenson his home tele-
phone number and Fannin called him there later that
morning . At that time Riley told Fannin that the strike
had been terminated and Fannin said he would call Riley
back. About 10 or 15 minutes later Fannin did call Riley
and told him that the strikers should make appointments
to go to the plant and fill out forms requesting reinstate-
ment. It is undisputed that Riley made an unconditional
offer to return on behalf of all the strikers in his tele-
phone conversations with Fannin.
Fannin testified that he saw picketers when he arrived
at work about 5:30 a.m. on April 2, but Supervisor
Dehan testified that when he arrived at work on that day
he saw strikers and signs , but could not recall whether
people were actually holding the signs. Similarly, Super-
visor Rahmlow testified that he saw strikers at 5:30 a.m.
that day, but did not notice whether they were carrying
signs ; one man was leaning against a sign . Corporal Ran-
dall Cline of the Clinton County sheriff' s department tes-
tified that he was called to the plant that morning and
arrived at 6:21 a.m., at which time he saw people stand-
ing along the roadway, but he could not say whether or
not they had signs. I conclude that the strike ended on
April 1, and that Riley made an unconditional offer to
69 When the employees went to the plant on April 1 they were
stopped by a security guard who asked them if they were coming back to
work and the strikers replied in the affirmative The General Counsel ap-
pears to contend in its brief that this conversation constituted an offer to
return to work However , there is no evidence that the strikers asked the
guard to relay to Fannin the information that they were ending the strike
or that they had any reason to believe that the guard would transmit this
message on his own. I therefore find that the strikers ' comments to the
guard cannot appropriately be construed as an unconditional offer to
return to work.
1360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
return to work on behalf of all the strikers when he
spoke to Fannin the morning of April 2.60
2. The failure to reinstate all the strikers
It appears from the record that 29 employees initially
honored the picket line. Of these, six81 returned to work
before the end of the strike. Inasmuch as Respondent
continued to hire replacements after these employees re-
turned to work, they should not be included among the
strikers who allegedly were permanently replaced.
It is undisputed that Respondent hired 37 employees
between March 24 and 31. Respondent appears to con-
tend that all of these new hires were permanent replace-
ments for strikers. I disagree . As noted above , Haines
and Frisby quit their employment on March 19. One
other employee, Daphne Addis, also quit that day, and a
fourth employee, Doris Allen, quit on March 20. Inas-
much as no new employees were hired between March
19 and the strike, I find it appropriate to infer that four
of the new employees hired during the strike were re-
placements, not for the strikers, but for Haines, Frisby,
Allen, and Addis. In addition, inasmuch as I have found,
above, that Osa Valentine and Brenda Johnson were un-
lawfully discharged, they could have been permanently
replaced. Accordingly, I conclude that the record shows
31 permanent replacements for the 23 strikers.
a. The replacements who started working after the
strike ended
It is undisputed that 10 replacements were hired be-
tween March 27 and 31, but were not scheduled to begin
work until a later date. The General Counsel contends
that these individuals therefore cannot be considered
bona fide permanent replacements. Respondent contends
that it scheduled some of the replacements for later start-
ing dates because it was not able to train them all at
once, and all the starting dates were scheduled before
the termination of the strike. Fannin's testimony to this
effect is uncontroverted. 6 z
Both the General Counsel and Respondent cite Superi-
or National Bank & Trust Co., 246 NLRB 721 (1979),
which in turn quotes H. & F. Binch Co. v. NLRB, 456
F.2d 357, 362 (2d Cir. 1972):
On the one hand, a mere offer, unaccepted when
the striker seeks reinstatement, is insufficient to
qualify; on the other, actual arrival on the job
should not be required if an understanding has been
reached that this will occur at a reasonably early
date.
In Superior National Bank, above, two replacements
hired prior to the November 29 conversion on the strike
to an unfair labor practice strike began work on Novem-
ber 30 and December 1. The Board found that respond-
ent and the replacements had made "a mutual under-
standing and commitment," including the employees'
actual starting date, and thus the replacements were as-
sured that they would have permanent positions. The
General Counsel contends that in the instant case, where
some of the replacements were not to begin work until
the end of April or the first of May, no finding that the
starting dates are "reasonably early" can be made. How-
ever, in Southwest Engraving Co., 198 NLRB 694 (1972),
the Board found that a woman who had been given a
commitment of employment in February during a strike
was a permanent replacement even though she did not
begin working until August, 2 months after the strike
ended. Consequently, I conclude that the General Coun-
sel has not shown that the hiring of replacements with
delayed starting dates prevents these individuals from
being bona fide permanent replacements.63
b. The hiring of more replacements than there were
strikers
As noted above, Respondent hired 33 replacements64
for the 23 strikers. The General Counsel contends that
Respondent did not need to hire this many replacements
and that therefore some of them cannot be considered
bona fide. Respondent counters this argument with Fan-
nin's uncontroverted testimony that there is no set em-
ployee complement in the plant, and that in determining
how many replacements to hire he considered the
number of employees, Respondent's delivery schedule,
and the incoming orders and told Stephenson to begin
hiring. Fannin also testified that he knew from experi-
ence that new employees would not be as efficient as
those they replaced and that he had more orders during
the strike than he had people to fill them.
In Atlantic Creosoting Co, 242 NLRB 192 (1979), Re-
spondent hired approximately 80 replacements for about
63 employees. The plant manager testified that he ex-
pected some of the replacements would leave for one
reason or another and the administrative law judge, af-
firmed by the Board, found that, even though a substan-
tial number of the replacements were hired in the last 2
or 3 days before the end of the strike, they were none-
theless permanent. I find that decision controlling in the
instant case and therefore conclude that Respondent's
hiring of more replacements than there were strikers
does not prevent any of the replacements from being
considered permanent.
80 The precise timing of the termination of the strike or the offer to
return would not appear to be crucial , as there is no contention that any
replacements were hired between 3:30 p .m. on April 1 (near the end of
the workday) and 9.30 a.m on April 2.
61 Conine Firman , Lonna Frisco , Judy King , Rudy McCoart , Imogene
Mercer, and Regina Swisshelm
62 Some of the former strikers credibly testified to the effect that the
training required for performing most jobs in the plant is not as extensive
as Fannin indicated Nonetheless , it appears that as of March 31 nearly
half the employees in the plant were new, and the inference is therefore
warranted that Respondent would need a longer than normal period to
train all of them
89 I note that in H F Binch, above, as in Southwest Engraving, above,
the replacements were given delayed starting dates at their own behest,
whereas in the instant case, the replacements were given delayed dates to
report for the convenience of respondent . However , none of the cases
cited regarding this issue premise the result on the fact that the replace-
ment, rather than the employer , seeks the delayed start but, rather,
appear to be based solely on the fact that the commitment to hire the
replacements was made prior to the strikers' offers to return to work.
64 In discussing this issue , I consider it from Respondent 's perspective
that Valentine and Johnson were permanently replaced . As indicated
above, however, there were at most 31 bona fide replacements hired
KURZ-KASCH, INC.
c. The failure to recall strikers as other employees left
The following table identifies the strikers (other than
Valentine and Johnson ) who honored the picket line
through March 31:65
Name Hired
Classifica- Reinstatement
tion
Margery Callahan
Aquila Shaw
Sharon Lorenzo
Betty Beam
Marian Tufts
Kathy Burton
Sharon Osborne
Sandra Drake
George Twine
9-9-68
5-23-70
8-27-73
1-25-74
2-20-74
10-13-75
2-23-76
7-29-76
1-5-77
Finisher 8-11-80
Mainte- 6-24-81
nance
Molder
Finisher 9-15-80
Finisher 9-15-80
Finisher 8-11-80
Molder
Finisher
Machine
Operator/Finisher6 6
Frances 2-7-77 Finisher
Wilkinson
Joan Akers 2-14-77 Molder
David 1 -16-78 Hand! 3-9-81
Swearingen Molder
Shirley Morris 1-23-78 Hand 5-4-81
Molder
Karen Green 10-2-78 Moldier
Donna J . Taylor 10-2-78 Molder
Dan McDowell87 1-22-79 Mainte- 4-7-80
nance
Helper
Lisa Keller 2- 19-79 Finisher
Teresa White 6-18-79 Molder 4-15-80
Vicki Hamilton 7-30-79 Finisher/Operatorea
Tanya Huff 8-6-79 Finisher
Herschel Baker 9-23-79 Molder
The following table identifies employees who left Re-
spondent 's employ between April 1, 1980, and May 5,
1981:69
Name Classification
Termination
Date
Joyce Manor * did not start
Connie Estep * did not start
Rachel Teboe * Finisher 4-3-80
Sharon Mays Finisher 4-3-80
Phyliss Lowe Molder 4-3-80
James Terrel * Molder 4-7-80
Janice Davis * Molder 4-14-80
Debbie Huff * Molder 5-5-80
65 Compiled from the complaint, the answer, R. Exlis 15 (a list of em-
ployees who began or returned to work after April 2) and 16 (a list of
employees lured or separated between January 1, 1980, and May 5, 1981),
and G C Exhs 82 (a list of unremstated strikers) and 88 (a list of remstat-
ed strikers) as corrected by stipulations at the hearing
66 It is undisputed that prior to the strike Twine was the one machine
operator in the finishing department
67 McDowell is not named as a discnminatee in the complaint.
68 The record does not disclose the distinction, if any, between
finisher/operator and finisher.
69 This list is compiled primarily from G C. Exhs 81 (a list of replace-
ment employees no longer employed) and 83 (a list of employees who
have left) and R Exh 16
1361
Name Classification TerminationDate
Teresa Harris Shipper/
Inspector 5-5 or 6-80
Betty Shinkle * Molder 5-6 or 15-80
Yvonne Miller Molder 4-23 or 5-8-80
Pam Valentine Molder 5-12-80
Joann Black *70 Finisher 5-14-80
Cnsty Crowe * Finisher 5-14-80
Rhonda Goins * Finisher 5-27-80
Connie Firman71 Finisher 5-29-80
Rodney Henderer 0 Hand Molder 6-4-80
Robin Crites Molder 6-5-80
Donna Piatt * Molder 6-17-80
Sheila McCullah Finisher 6-25-80
Jacqueline Steward Molder 6-26-80
Patty Lou Hoffer * Finisher 6-26-80
Deborah Thompson ** Molder 7-29-80
Francis Boyd Molder 8-21-80
Sandra Brookover Finisher 8-21-80
Robert Storer * Hand Molder 8-28-80
Karen Hartsook Molder 9-12-80
Karen Sams Finisher 10-9-80
Cathy Hedge * Finisher 11-11-80
Larry Zurface *72 Machine 12-12 or 18-80
Brenda Lewis *
Operator
Finisher 12-23-80
Brenda Potter * Finisher 1-5-81
Betty Wright *73 Molder 4-16-81
Rodney Tudor * Hand Molder 4-30-81
* Replacement for striker.
** These two employees do not appear on R. Exh . 16, but do
appear on G C . Exh. 83 . At the hearing , Respondent stated that
it was checking G.C. Exh . 83 for accuracy and the exhibit was
admitted with the understanding that Respondent had not stipu-
lated that it was accurate. However , Respondent did not there-
after indicate that the exhibit , which purported to list all em-
ployees who had left Respondent 's employ since April 1, con-
tained any errors or omissions and, as the exhibit was apparently
prepared from Respondent's records and Respondent has not
controverted it, I find it appropriate to rely on it.
Having found that Respondent was justified in hiring
eight more replacements than there were strikers, it is
70 The difficulty of analyzing the more than a dozen exhibits purport-
ing to show changes in the employee complement between January 1980
and June 1981 is exemplified by the mystery of the Blacks- G.C. Exh. 76,
a list of replacement employees , shows the name of Joann Black, who
was hued March 31, clock number 3082 , in the finishing department. A
Roberta Black is listed on G.C. Exh 81 as employed March 31 as a fm-
isher inspector and last day worked as May 14; no clock number is given.
No Joann Black appears on that list and no Roberta Black appears on the
list of replacements. However, a Joann Black appears on a list, dated
April 7, of employees hired since January 1; Roberta Black is not listed.
Joann Black is also named on R Exh 16 as having quit on May 14.
Given that Joann and Roberta started working the same day in the same
department , quit the same day, and both names never appear on the same
list, I conclude that they are the same person.
71 Firman is one of the strikers who returned to work before April 2.
72 Testimony established that Zurface was the one machine operator in
the finishing department
7s Wright does not appear on G C Exh 83, which was presumably
prepared before she quit, but does appear on R Exh . 16. Her classifica-
tion is listed in some of the information submitted to the Union during
bargaining , which, although not received for the truth of the matter as-
serted there , is not likely to be in error on this point
1362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
appropriate to consider that the first eight employees to
leave Respondent's employ after the strike brought the
work force back to its normal level, rather than creating
vacancies that could be filled by recalling former strik-
ers. Accordingly, I find that the departures of Manor,
Estep, Teboe, Mays, Lowe, Terrel, Davis, and Huff did
not require Respondent to recall any of the former strik-
ers. Nonetheless, it is clear from a review of the evi-
dence that following the departure of these employees
other jobs became available but Respondent elected not
to recall former strikers to fill them.
The General Counsel contends that under well-estab-
lished precedent Respondent was obligated to recall
strikers when replacements or other employees quit or
were terminated, but that Respondent did not satisfy this
obligation. Respondent argues, on the basis of Fannin's
testimony, that it has hired no new employees since the
end of the strike, its work force is not organized so that
each employee has a discrete job, but that most employ-
ees perform various tasks74 and, thus, when an employee
terminates his employment, Respondent does not invari-
ably find it necessary to replace him. Fannin further tes-
tified that Respondent's business has declined since the
strike and that the replacements who stayed have im-
proved their productivity, and thus there has been no
need to recall all the strikers. Respondent adduced no
other evidence either of how it determined when the
recall of a striker was warranted or of the purported de-
cline in business since the strike .? s Fannin's testimony on
this point was vague and conclusory and did not have
the ring of truth, and he appeared less than candid. And,
although this testimony was not contradicted, it was also
not corroborated, although Respondent presumably had
records that would demonstrate how much business it
was doing during this period. I therefore do not credit
Fannin's testimony on this issue.
The operative principle on economic strikers' rights to
recall was articulated by the Supreme Court in NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 381 (1967):
If and when a job for which the striker is qualified
becomes available, he is entitled to an offer of rein-
statement . The right can be defeated only if the em-
ployer can show "legitimate and substantial business
justifications."
In attempting to apply Fleetwood, above, to the facts of
the instant case, I am cognizant of Respondent's conten-
tion that it did not normally always hire a new employee
when someone else left. However, the basic premise of
an economic striker's right to reinstatement is that when
a replacement or other employee leaves the employer, a
job becomes available and the vacancy must be filled
through recall of a striker unless the employer sustains
its burden of showing a legitimate and substantial busi-
ness justification for doing otherwise. Respondent has
74 It does appear , however, that there are several separate classifica-
tions, including , insofar as pertinent here, molding, hand molding , finish-
ing, and maintenance and that employees do not routinely work out of
their classification.
75 There is no contention that this decline was caused by the strike
which, as noted above, lasted for about a week
failed to demonstrate either that the departure of replace-
ments or other employees did not in fact leave vacancies
or that such vacancies could not be filled by recalling
strikers.7 a
A comparison of the list of strikers and the list of em-
ployees who left gives rise, inter alia, to the following
observations :7 7
(1) Fannm testified that hand molder Shirley Morris
was recalled when replacement Rodney Tudor left; as
Tudor left April 30, 1981, and Morris was recalled 4
days later, this appears to be the case. However, Re-
spondent offers no explanation for the fact that although
two other hand molders, Rodney Henderer and Robert
Storer, left on June 4, 1980, and August 28, 1980, respec-
tively, neither Morris nor David Swearingen, the other
hand molder who participated in the strike, was recalled
until the spring of 1981.
(2) It is undisputed that prior to the strike George
Twine was the one machine operator in the finishing de-
partment and that Larry Zurface was the replacement
who performed that job. However, as the General Coun-
sel points out, it is also undisputed that when Zurface
left Respondent's employ in December 1980 Respondent
transferred Orvel Curtis from the molding department to
the finishing department as a machine operator. Accord-
ing to Fannin, Twine was considered for the position,
but there were too many operators in the molding de-
partment, so Curtis was transferred instead.
In Textron, Inc., 257 NLRB 1 (1981), following an eco-
nomic strike and while there were still unreinstated strik-
ers, respondent posted a job for bidding by employees
currently on the payroll. The administrative law judge,
affirmed by the Board, found that this procedure violat-
ed the strikers' right to recall. In the instant case, Re-
spondent's only justification for failing to recall Twine
when Zurface left was that there were too many opera-
tors in the molding department. This mere assertion, nei-
ther explained, expanded by further testimony, nor sub-
stantiated by any documentary evidence, is insufficient to
establish the "substantial and legitimate business reasons"
required under the cases cited above.
(3) Although three of the replacements who worked as
molders had left within 6 weeks of the end of the strike
and six more had left by the end of 1980, the only
molder recalled was Teresa White, although she was
junior to five other molders who participated in the
strike.
(4) Similarly, four finishers left June 1 and three more
had left as of August 21, 1980, but only four strikers who
11 See K-D Lamp Co, 229 NLRB 648 (1977). Fannm also testified that
60 percent of Respondent's business comes from inventory and, therefore,
if an employee leaves, his job "isn't something that can't sit a day or
two." However, Respondent adduced no evidence that its inventory level
had remained too high to justify returning its complement of production
employees to the prestrike level. Denzil S. Alkire, 259 NLRB 1323 (1982)
47 Neither the General Counsel nor the Respondent offered a detailed
analysis of the evidence adduced as to when replacement or other em-
ployees left and when strikers were recalled However, as the complaint
specifically alleges that Respondent unlawfully failed to recall all the
strikers upon their unconditional offer to return to work , and as the evi-
dence, albeit in a cumbersome format, is before me, I consider it appro-
priate to make findings on this issue
KURZ-KASCH, INC. 1363
had been fmishers were ever recalled , and none of them
were offered their jobs back until August 11.
In sum , the evidence establishes that 26 vacancies oc-
curred between May 5, 1980, and May 5, 1981, but that
only 9 strikers were recalled through June 24, 1981. The
evidence further establishes that there were sufficient va-
cancies created in the positions of molder, hand molder,
and finisher to recall all the strikers who had occupied
those positions prior to the strike , but Respondent none-
theless only recalled a few of the strikers, and then the
selection of who should be recalled was apparently arbi-
trary.78 I therefore conclude that at least as of May 5,
1981, there were jobs available for all the former strikers
except, perhaps, Shaw , 79 and that by failing to recall
them by that or an earlier time Respondent violated Sec-
tion 8(a)(1) and (3) of the Act.
On the basis of the above findings of fact and the
entire record in this case , I make the following
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Electrical, Radio and Machine Workers of
America (UE) is a labor organization within the meaning
of Section 2(5) of the Act.
3. By issuing a written reprimand to employee Karen
Green for engaging in union and other protected con-
certed activity, Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(3) and
(1) of the Act.
4. By discharging employees Osa Mae : Valentine and
Brenda Johnson for engaging in a lawful economic
strike , Respondent has violated Section 8(a)(3) and (1) of
the Act.
5. By requesting employees to remove union insignia
pinned to their clothing, coercively interrogating em-
ployees about their and other employees ' union activities
and intentions to engage in a lawful economic strike, and
maintaining overly broad no-solicitation and no-distribu-
79 There is no contention , however , that Respondent 's decision to rem-
state one former striker rather than another was unlawful.
I also note that a strike settlement proposal submitted by Respondent
on April l i included a provision for recall of strikers "in seniority order
to a job similar the one previously performed " This proposal was appar-
ently not accepted by the Union , however, on September 19, 1980, Re-
spondent and the Union agreed to recall strikers "as work becomes
available, by seniority within the . . finishing, finishing/machine opera-
tors, hand molder , inspector shipper, mechanic, janitor , and maintenance
man.
96 Shaw , a maintenance employee, was apparently replaced by Jerry
Wing, who was still employed as of May 5 , 1981. The record does not
show when, if ever, Wing left, although Shaw was reinstated on June 24,
1981 , and thus there is insufficient evidence on which, to base a finding as
to whether Shaw was entitled to reinstatement earlier
The record shows that Shinkle, Piatt, and Steward „ whose departures I
have found created vacancies that should have been filled by the recall of
strikers , worked on the third shift . The record does not establish which
shift each of the former strikers had worked , however, Respondent has
not argued that the need to maintain a certain number of emloyees on
each shift was a factor in its determination of which employees to recall.
The recall agreement ultimately reached between Respondent and the
Union does not refer to shift as a factor and I note that , when Zurface,
who worked on the first shift , left, Respondent transferred Curtis even
though it appears that he worked on the second shift
tion rules, Respondent has engaged in unfair labor prac-
tices within the meaning of Sections 8(a)(1) and 2(6) and
(7) of the Act.
6. By failing to reinstate economic strikers after they
had made unconditional offers to return to work and
jobs became available for them, Respondent has violated
Section 8(a)(3) and (1) of the Act.
7. A preponderance of the credible evidence does not
establish that Respondent has otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action, including the posting of the customary notice, de-
signed to effectuate the purposes of the Act.
Having found that Respondent unlawfully issued a
written reprimand to employee Karen Green, I shall rec-
ommend that the reprimand and all references thereto be
removed from Respondent's records and that the original
and all copies thereof in Respondent's possession be de-
stroyed. Glenside Hospital, 234 NLRB 62 (1978).
With respect to Valentine and Johnson, the Board has
held that unlawfully discharged strikers are entitled to
the same remedy as other unlawfully discharged employ-
ees, i.e., an offer of reinstatement and backpay from the
date of the discharge to the date of the offer, and that
the discriminatees are not required to request reinstate-
ment in order to trigger the backpay obligation.80
Respondent contends that Valentine and Johnson are
not entitled to backpay because Respondent sent each of
them letters dated July 14, 1980, with the following text:
We are happy to inform you that your discharge
from the company has been rescinded. Accordingly,
if you still desire a position with the company, we
ask that you come to the company to fill out a
"Return from strike information sheet." We can
then put you on our waiting list of striking employ-
ees who have requested reinstatement, and you will
be recalled to work in accordance with your senior-
ity, to complete your probationary period.
Thus, according to Respondent, it offered to restore Val-
entine and Johnson as of July 14 to the positions-that of
unreinstated striker-that they would have been in had
they not been discharged and therefore no remedy is re-
quired. This argument, of course, completely ignores the
central premise of Abilities & Goodwill, above, that dis-
charged strikers are to be treated as discharged employ-
ees.81 I shall therefore recommend that Respondent be
so Abilities & Goodwill, 241 NLRB 27 (1979).
Si A further finding with regard to Valentine is appropriate. She testi-
fied that when she received a telephone call in July from Respondent
asking her to come in and make an appointment to be reinstated, she re-
sponded that "I already had a job and I had a marvelous employer, and I
had no intentions of leaving my immediate employment " It is well estab-
lished that the mere fact that a discriminatee indicates that he has ob-
tained other employment and is not interested in returning to work for
Respondent does not relieve Respondent of the obligation to make a
valid offer of reinstatement Central Cartage, 236 NLRB 1232, 1260
(1978). Accordingly, I conclude that Valentine, as well as Johnson, is en-
Continued
1364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ordered to offer Valentine and Johnson immediate and
full reinstatement to their former jobs, discharging any
replacements if necessary , or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice
to their seniority or other rights and privileges previous-
ly enjoyed. I shall further recommend that Respondent
be ordered to make Valentine and Johnson whole for
any loss of earnings they may have suffered as a result of
the discrimination against them by payment to them of
the amount they normally would have earned from the
date of their terminations, March 27 and April 1, respec-
tively, until the date of Respondent's offer of reinstate-
ment, less net earnings , in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), to which shall be added
interest , to be computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977).82
With respect to the former strikers, I have found that
all, except possibly Shaw, were entitled to be recalled
prior to May 5, 1981. However, although I have found
that before that date jobs were available for each former
striker who had been a molder, hand molder, or finisher,
in the position he or she occupied prior to the strike, it is
possible that certain strikers may have been capable of
performing other jobs as well and should have been of-
fered such positions as they became available. S 3 I shall
therefore recommend that Respondent be ordered to
offer reinstatement to each of the former strikers and
make them whole in the manner set forth above with re-
spect to Valentine and Johnson, but I shall also recom-
mend that the question of when each of the former strik-
ers should have been recalled be left to the compliance
stage of this proceeding. In addition , as some of the rein-
stated strikers were entitled to be recalled earlier than
they were, I shall leave to the compliance stage the ques-
tion of which strikers were entitled to earlier recall and
the amount of backpay due them.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed84
(c) Maintaining unlawful no-solicitation and no-distri-
bution rules.
(d) Issuing reprimands to employees for engaging in
union or other protected concerted activity.
(e) Discharging or otherwise discriminating against
employees because they engaged in a lawful economic
strike.
(f) Failing to reinstate economic strikers after they
have made unconditional offers to return to work and
jobs become availalbe for them.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise 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) Offer the following employees immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions , without
prejudice to their seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of
earnings they may have suffered as a result of Respond-
ent's discrimination against them , in the manner set forth
in the remedy section of this decision.
Osa Mae Valentine
Brenda Johnson
Sharon Lorenzo
Sharon Osborne
Sandra Drake
George Twine
Frances Wilkinson
Joan Akers
Karen Green
Donna J. Taylor
Lisa Keller
Vicki Hamilton
Tanya Huff
Herschel Baker
(b) If it is determined in the compliance stage of this
proceeding that any of the following named individuals
should have been recalled at an earlier date than they
were, make them whole for any loss of earnings they
may have suffered as a result in the manner set forth in
the remedy section of this decision.
ORDER
The Respondent, Kurz-Kasch, Inc., Wilmington, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Requesting employees to remove union insignia
from their clothing, unless such request is justified by
safety or other legitimate business considerations.
(b) Coercively interrogating employees about their or
other employees ' union activities and intentions to
engage in a lawful economic strike.
titled to backpay until such time as a valid offer of reinstatement is made
to her.
82 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
es For example , it is not clear whether one of the former strikers could
have filled the vacancy left by the departure of shipper/inspector Teresa
Hams on May 6, or whether George Twine could have filled a job that
became available before Larry Zurface left on December 12, 1980
84 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 pur-
poses.
David M. Swearingen Kathy S. Burton
Betty Beam Margery L. Callahan
Marian A. Tufts Shirley R. Morris
Teresa A. White Aquila I. Shaw
(c) Remove the March 20, 1980 reprimand to Karen
Green and all references thereto from Respondent's
records and destroy the original and all copies thereof in
Respondent 's possession.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Wilmington, Ohio facility copies of the
attached notice marked "Appendix."85 Copies of the
ea 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 Nation-
al 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 "
KURZ-KASCH , INC. 1365
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent 's author-
ized representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint alle-
gations not specifically found be dismissed.