Kurz-Kasch, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1991

301 N.L.R.B. 946 (N.L.R.B. 1991)

946
301 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 286 NLRB 1343.
2 865 F.2d 757.
3 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3rd Cir. 1951). We have carefully ex-
amined the record, including the testimony and documents that were not dis-
cussed in the judge’s original decision, and find no basis for reversing the
findings.
Judge Nations, at fn. 6, found that the record does not support the claim
that Respondent had a practice of shifting employees temporarily to deal with
its volatile business. We agree with this finding.
We have examined the Fannin and Stephenson testimony and the document
the court found were ignored in the original judge’s decision. The document
only provides information about the size of the work force on the 16th of each
month. Stephenson’s testimony, which related to the introduction of the docu-
ment, speculates that the work force could have expanded and contracted from
month to month. The document, however, because it shows only the work
force size on a particular day each month, cannot be used to corroborate
Stephenson’s opinion. We find that the document and Stephenson’s specula-
tion fall far short of demonstrating that the Respondent’s business repeatedly
grew and shrank to meet demand. Having found that Stephenson’s testimony
and the documentary evidence fail to sustain the Respondent’s burden, we con-
clude there is no basis for reversing the judge’s discrediting of Fannin.
4 We have modified the judge’s recommended Order to include provisions
which were included in the Board’s original Decision and Order reported at
286 NLRB 1343.
Kurz-Kasch, Inc. and United Electrical, Radio and
Machine Workers of America (UE). Case 9–
CA–15429
February 27, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On November 30, 1987, the National Labor Rela-
tions Board issued a Decision and Order in this pro-
ceeding1 in which it found, inter alia, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
failing to reinstate economic strikers after they had
made unconditional offers to return to work and jobs
became available for them. Thereafter, the Respondent
filed with the United States Court of Appeals for the
Sixth Circuit a petition for review of the Board’s
Order. The General Counsel filed a cross-application
for enforcement of the Board’s Order.
On January 13, 1989, the court denied enforcement
of the above-mentioned portion of the Board’s Order2
and remanded the case to the Board to consider evi-
dence that the court found the administrative law judge
had ignored bearing on whether the Respondent had
vacancies to which to recall the economic strikers.
On June 1, 1989, the Board remanded the case to
an administrative law judge for further hearing and the
issuance of a decision in accordance with the court’s
opinion.
On June 18, 1990, Administrative Law Judge Wal-
lace H. Nations issued the attached decision on re-
mand. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in
support of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision on remand
and the record in light of the court’s decision, which
the Board accepts as the law of the case, the excep-
tions, and briefs and has decided to affirm the judge’s
rulings, findings,3 and conclusions and to adopt the
recommended Order as modified and set forth in full
below.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that 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.
(c) Maintaining unlawful no-solicitation and no-dis-
tribution 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 available for them.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) After determination in the compliance stage of
this proceeding of the date on which the following em-
ployees should have been recalled but for Respond-
ent’s discrimination against them, 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 the judge’s decision:
Osa Mae Valentine Joan Akers
Brenda Johnson Karen Green
Sharon Lorenzo Donna J. Taylor
Sharon Osborne Lisa Keller
Sandra Drake Vicki Hamilton
George Twine Tanya Huff
Frances Wilkinson Herschel Baker
Kathy S. Burton David M. Swearingen
Betty Beam Margery L. Callahan
947KURZ-KASCH, INC.
5 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
Marian A. Tufts Shirley R. Morris
Teresa A. White Aquila I. Shaw
(b) Remove from its files any reference to the un-
lawful March 20, 1980 reprimand to Karen Green and
the unlawful discharges of Osa Valentine and Brenda
Johnson and notify the employees in writing that this
has been done and that the reprimand and discharges
will not be used against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Wilmington, Ohio facility copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT request employees to remove union
insignia from their clothing, unless such request is jus-
tified by safety or other legitimate business consider-
ations.
WE WILL NOT coercively interrogate employees
about their or other employees’ union activities or in-
tentions to engage in a lawful economic strike.
WE WILL NOT maintain any rule that does not clear-
ly permit employees to solicit or engage in other pro-
tected activity under Section 7 of the National Labor
Relations Act during break periods, meal periods, and
other times when employees are not required to be
working, or that does not clearly permit employees to
engage in distribution during such times in nonwork
areas.
WE WILL NOT issue reprimands to employees for en-
gaging in union or other protected concerted activity.
WE WILL NOT discharge or otherwise discriminate
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 you in the exercise of the
rights guaranteed you by Section 7 of the Act.
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 recalled
to their former or substantially equivalent jobs earlier
than they were:
Osa Mae Valentine Joan Akers
Brenda Johnson Karen Green
Sharon Lorenzo Donna J. Taylor
Sharon Osborne Lisa Keller
Sandra Drake Vicki Hamilton
George Twine Tanya Huff
Frances Wilkinson Herschel Baker
Kathy S. Burton David M. Swearingen
Betty Beam Margery L. Callahan
Marian A. Tufts Shirley R. Morris
Teresa A. White Aquila I. Shaw
WE WILL remove from our files any reference to the
unlawful reprimand of Karen Green and unlawful dis-
charges of Osa Valentine and Brenda Johnson and WE
WILL notify Karen Green, Osa Valentine, and Brenda
Johnson that we have removed from our files any ref-
erence to their unlawful 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 and Timothy P. Reilly, Esq., of Cincinnati,
Ohio, for the Respondent.
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 286 NLRB 1343.
2 865 F.2d 757 (6th Cir. 1989).
3 The names of the striking employees and their dates of offers of reinstate-
ment to them are as follows:
Osa Mae Valentine 7/14/80**
Brenda Johnson 7/14/80**
Sharon Lorenzo 6/13/81
Sharon Osborne 7/07/81
Sandra Drake 6/12/81
George Twine 7/12/81
Frances Wilkinson 6/12/81
David Swearingen 3/09/81
Betty Beam 9/15/80
Marian Tufts 9/15/80
Teresa White 4/15/80
Dan McDowell 4/07/81***
Joan Akers 7/13/81
Karen Green 7/16/81
Donna J. Taylor 7/13/81
Lisa Keller 7/16/81
Vicki Hamilton 7/16/81
Tanya Huff 7/16/81
Herschel Baker 7/15/81
Kathy S. Burton 8/11/80
Margery Callahan 8/11/80
Shirley Morris 5/04/81
Aquila Shaw 6/24/81
** These two employees were discharged during the strike. The dis-
charges were rescinded on 7/14/80 and Respondent contends that the em-
ployees did not request reinstatement.
*** McDowell is not named as a discriminatee in the complaint.
DECISION ON REMAND
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. On
March 25, 1982, Administrative Law Judge Mary Ellen
Benard issued a decision in which she found, inter alia, that
Respondent Kurz-Kasch, Inc. (Respondent or Employer) vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act (Act) by failing and refusing to reinstate former eco-
nomic strikers after they had made unconditional offers to re-
turn to work and jobs became available for them. Respondent
subsequently filed exceptions to this decision with the Board.
By Order dated November 30, 1987, the Board adopted the
administrative law judge’s findings, conclusions, and rec-
ommendations pertaining to the issue involving the reinstate-
ment of the former economic strikers.1 Thereafter, Respond-
ent filed with the Sixth Circuit United States Court of Ap-
peals a petition for review of the Board’s Order; the Board
filed a cross-application for enforcement of its Order.
On January 13, 1989, the Sixth Circuit issued its decision
remanding the instant matter back to the Board for a ‘‘full
appraisal of the evidence adduced by [Respondent] that it
had no vacancies for substantial and legitimate business rea-
sons.’’2 The Board accepted the court’s remand and re-
quested that the parties submit statements setting forth their
respective positions on the remand issue. Both the General
Counsel and Respondent filed statements and thereafter the
Board, by Order dated June 1, 5 1989, concluded that ‘‘addi-
tional fact findings cannot be made on the basis of the evi-
dence in the existing record’’ and therefore remanded the
case to an administrative law judge for the purpose of further
hearing and additional findings and conclusions in light of
the court’s opinion.
In response to the Board’s direction, further hearing on
this matter was held before me in Wilmington, Ohio, on Feb-
ruary 2 and March 19, 1990. Briefs were received from the
parties on or about April 23, 1990. Based on the entire
record in this proceeding and from my observation of the de-
meanor of the witnesses, and with consideration of the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Ohio corporation engaged in the
manufacture of plastic products at various lcations, including
one at Wilmington, Ohio, the only facility involved in this
proceeding. The Board has heretofore found and it is undis-
puted that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Board has heretofore found and it is undisputed that
United Electrical, Radio and Machine Workers of America
(UE) (Union) is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ISSUE OF UNFAIR LABOR PRACTICES ON REMAND
A. The Issue on Remand as Framed by the Court
Respondent is engaged in the business of manufacturing
molded plastic parts at its facility located in Wilmington,
Ohio. By Order dated December 27, 1978, the Board ordered
Respondent to bargain with the Union as the exclusive col-
lective-bargaining representative of its production and main-
tenance employees because Respondent committed pervasive
and egregious unfair labor practices which interfered with the
conducting of a fair election.
The Union and Respondent commenced negotiations in
October 1979. They were unable to reach an agreement for
a contract and on March 24, 1980, the Union established a
picket line at Repondent’s facility in support of its bar-
gaining demands. Respondent’s payroll records show that
during the pay period immediately preceding the establish-
ment of the picket line, Respondent employed approximately
66 employees in the bargaining unit. Five of the 66 employ-
ees were on a medical leave of absence when the strike
began: Karen Sams, Yvonne Miller, Theresa Harris, Vicki
Hamilton, and Karen Hartsook. Also, three employees quit
before the strike: Daphney Addis, Lynn Haynes, and Letha
Frisby. Approximately 29 of the 58 active employees hon-
ored the Union’s picket line. Six of these striking employees
returned to work during the strike.
At the onset of the strike, Respondent began to hire re-
placements for the striking employees. Although the strike
lasted only 1 week, Respondent hired replacements for the
remaining 23 striking employees before the strike ended.
After the strike ended, Respondent reinstated the first former
striker on April 7. The last former striker was not reinstated
until July 16, 19813
Administrative Law Judge Benard concluded that ‘‘26 va-
cancies occurred between May 5, 1980 and May 5, 1981’’
and that ‘‘there were sufficient vacancies created in the posi-
tion of molder, hand molder and finisher to recall all the
949KURZ-KASCH, INC.
strikers who had occupied those position.’’ In reaching her
conclusion that Respondent had violated the Act by not rein-
stating the strikers to these vacant positions she observed:
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 em-
ployee has a discrete job, but that mot employees per-
form various task and, thus, when an employee termi-
nates his employment, Respondent does not invariably
find it necessary to replace him. Fannin further testified
that Respondent’ 8 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 re-
call of a striker was warranted or of the purported de-
cline in business since the strike. 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 pre-
sumably had records which would demonstrate how
much business it was doing during this period. I there-
fore do not credit Fannin’s testimony on this issue.
As previously noted, the Board adopted the administrative
law judge’s findings with regard to the striker recall issue.
The court, however, stated (865 F.2d at 759–760):
[W]e come to the narrow question posed by this con-
troversy. A prima facie case of a violation is made
when it is shown that the employer failed to make an
offer of reinstatement ‘‘when a job for which the striker
is qualified [became] available. . . .’’ Fleetwood Trail-
er, 389 U.S. at 381. But when is it permissible to con-
clude that a job has become ‘‘available’’? We are
called upon here to minimize two dangers: first, the
danger that the Board might order an employer to main-
tain a workforce larger than is justified by its genuine
economic needs; and second, the danger that an em-
ployer—silently and without intimating its real pur-
pose—will postpone reinstating economic strikers until
they have found legally equivalent work elsewhere or
otherwise lost interest in their old jobs. Further, we
must respect, as the Supreme Court has done, the fact
that the employer has full and free access to evidence
of its own motives and of the current demand for its
goods or services. The rule that the employer should
shoulder the burden of proving that, for legitimate busi-
ness reasons, it could not maintain vacancies, balances
conflicting interests failure to reinstate.
Fleetwood Trailer points clearly towards this appli-
cation of the rule. The burden of proving vacancies
cannot be placed on the General Counsel: ‘‘Such proof
is not essential to establish an unfair labor practice. It
relates to justification, and the burden of such proof is
on the employer.’’ Fleetwood Trailer, 389 U.S. at 378
n. 4. And the Court explicitly opened the door to the
precise justification advanced in the present case: ‘‘the
need to adapt to changes in business conditions or to
improve efficiency.’’’ Fleetwood Trailer, 389 U.S. at
379. The leading Supreme Court case therefore fore-
closes us from concluding, as the Board concluded in
another controversy, that ‘‘[i]t is the General Counsel’s
burden to show that a striker’s former job was avail-
able.’’ Lincoln Hills Nursing Home, Inc., 257 N.L.R.B.
1145, 1158 (1981).
Subsequent cases, without explicitly addressing the
question, have assumed that the lack of vacancies falls
to the employer to prove as a business justification. The
N.L.R.B. has held that the termination of a worker
‘‘prima facie create[s] a vacancy’’ which an employer
could rebut by demonstrating a decline in its business.
K-D Lamp Co., 229 N.L.R.B. 648, 650 (1977). A simi-
lar ‘‘legitimate and substantial business justification’’
was held to have been established where the employer
proved that, subject to its contracts with its customers,
it was required to maintain an inventory which, in turn,
made immediate post-strike replacements unnecessary.
Randall, 257 N.L.R.B. 1, 6–7 (1981), enforcement
granted in part and denied in part on other grounds sub
nom. Randall Div. of Textron, Inc. v. N.L.R.B., 687
F.2d 1240 (1982), cert. denied, 461 U.S. 914 (1983).
The Eleventh Circuit has explicitly taken Fleetwood
Trailer’s invitation to find justification in purely eco-
nomic business decisions, holding that a ‘‘legitimate
and substantial business justification’’ was dem-
onstrated where an employer proved that, having elimi-
nated a service during the strike, it made a business
judgment after the strike that the change both pleased
its customers and saved it money. N.L.R.B. v. Southern
Florida Hotel and Motel Ass’n., 751 F.2d 1571, 1583
(11th Cir. 1985).
The ALJ in this case held that vacancies arise when-
ever a replacement or other worker leaves the em-
ployer, and then scrutinized the business justification
advanced by Kurz-Kasch. We must conclude that this
formulation elides an important step. Where the ques-
tion is whether vacancies arose, the fact that an em-
ployer allows its workforce to decline below the pre-
strike level merely creates the presumption that vacan-
cies existed. The employer then bears the burden of
proving that no vacancies existed, and one method of
proof is to show that it had substantial and legitimate
business reasons for deciding that the pot was no longer
economical. Once it has advanced such proof, the bur-
den shifts back to the General Counsel to show that, in
fact, the business reasons advanced are pretextual and
the employer’s real motivation was to discourage union
activity.
B. Respondent’s Asserted Legitimate and Substantial
Reasons for its Failure to Recall Strikers as
Vacancies Occurred
The Respondent contend on remand that it did not violate
the Act by failing to recall a striker whenever an employee
left its employ and presumably a vacancy was created. In
support of this position, it advances 10 reasons which it con-
tends are dispositive of the issue:
1. The Company hired no new employees to fill the jobs
for which strikers were eligible following the strike.
2. The Company did not subcontract any work which
could have been done by strikers following the strike.
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 There was nothing offered in evidence in the hearing held before me
which would cause me to change any of the findings, including credibility
findings, made by the administrative law judge or the Board on the earlier
record in this case and I reaffirm those findings.
3. The Company did not remove any bargaining unit work
from its Wilmington plant to any other company plants fol-
lowing the strike.
4. The Company did not work any additional or excessive
overtime following the strike.
5. The Company did not use group leaders to perform
work for which strikers were eligible following the strike.
6. The Company’s business and workload slumped fol-
lowing the strike.
7. The Company used the same criteria and followed the
same practice in deciding when to recall strikers as it had in
hiring employees prior to the strike. The Company has never
had a practice of hiring an employee simply because another
employee leaves.
8. The Company followed the same practice regarding the
intradepartmental and interdepartmental transfer of employ-
ees after the strike that it had followed prior to the strike.
9. The Company did not refrain from recalling strikers
when the Company’s workload required additional employ-
ees following the strike, pursuant to its agreement with the
Union.
10. The Company did not need the strikers any sooner
than the times it recalled them in 1980 and 1981.
On brief, the first five facts relied on by Respondent as
set out above are not contested by General Counsel. Part of
the reason he does not contest them is the inability to do so
because of Respondent’s recordkeeping procedures. The mat-
ter of work being shifted to other plants of Respondent or
subcontracted to other manufacturers cannot be proven or
disproven as records which would have reflected such ac-
tions were destroyed by Respondent. Respondent’s ‘‘rea-
sons’’ 9 and 10, above, are merely conclusions. The crux of
the matter for determination is whether Respondent did suf-
fer a business decline following the strike, and whether it
followed its normal production and staffing procedures in
that period of time. For the reasons set out below, I agree
with General Counsel, and the earlier Board decision, that
Respondent did not fail to recall strikers because of declining
business. I find that on the contrary, it juggled its production
to delay the recall of strikers for reasons related to its pre-
viously found union animus. Its ultimate purpose for the
delay may not be known, but the one suggested by the court
of appeals seems logical, that is, ‘‘an employer—silently and
without intimating its real purpose—will postpone reinstating
economic strikers until they have found legally euivalent
work elsewhere or otherwise lost interest in their old jobs.’’
As will be demonstrated below, much of the evidence of-
fered by Respondent is contradictory, and much is in the
form of self-serving testimony. As stated by the court in its
remand, the Respondent has the burden of proof with regard
to its defense in this proceeding. Thus where Respondent has
destroyed records which would support its contentions, and
there exists in the record credible evidence on point which
either contradicts or places in serious question its conten-
tions, the adverse evidence will be credited. To the extent
that self sering testimony has been offered by Respondent,
for example, testimony to the effect that it did not sub-
contract bargaining unit work or shift that work to other
plants, such testimony is accorded less weight than evidence
backed by records. Respondent’s business records on these
and other points in issue were not destroyed inadvertently or
accidentally, but rather in the ordinary course of business
even though this matter was on appeal. I would also note
that such records were not offered by Respondent to support
its contentions in the first hearing herein, even though they
existed at the time of that hearing.4
1. The alleged business decline
As stated above, during 1979, 1980, and 1981 Respondent
was engaged in the manufacture of plastic parts. The manu-
facturing process consist of two stages. The first stage is
where the part is formed or molded. The second stage is
where the molded part is finished by, e.g., painting, drilling,
and tapping a hole.
During 1979, 1980, and 1981, Respondent manufactured
two product lines at its Wilmington facility: a ‘‘custom’’ line
and a proprietary or ‘‘knob’’ line. The ‘‘custom’’ line is a
part for which the customer owns the mold from which it is
formed. The ‘‘knob’’ line is described as a part for which
Respondent owns the mold.
Respondent contends that during 1979, as reflected by
press hours, approximately 40 percent of its production was
devoted to the manufacture of ‘‘custom’’ products and 60
percent of its business was devoted to its ‘‘knob’’ products.
A press hour is one hour of machine time in the molding de-
partment to produce a product. According to Respondent, it
reflects the number of employees involved in molding. It
would not necessarily reflect demand nor would it reflect
work performed by the finishing department. In addition, ac-
cording to Respondent’s president, Neal Alread, some ‘‘cus-
tom’’ orders can take anywhere between one to six employ-
ees to produce. The record does not indicate how many em-
ployees are involved in the production of ‘‘knobs’’; although,
finishing hours are always higher for ‘‘knob’’ production as
compared to ‘‘custom’’ production. Thus by concentrating on
certain ‘‘custom’’ orders or certain ‘‘knob’’ orders, while de-
laying others, Respondent can apparently get by with less
employees than would be needed to handle a normal mix of
work without delay. I believe the evidence reflects that this
is what Respondent did for as long as it could before cus-
tomer pressure required it to resume normal production.
Respondent contends that after the strike ended, its busi-
ness declined. In support of its position in this regard, Re-
spondent submitted evidence showing that overall profits for
1980 were less than profits for 1979. In addition, Respondent
contends that because its profits declined during the periods
following the strike, it was necessary to shorten the work-
week of some of its molding employees during the months
of April and May. In fact, it does appear that there was a
shorter workweek for a 1-month period.
Profits and losses are reported by accounting periods; there
are 13 accounting periods each year. In 1980, the accounting
period which preceded the strike was March 23 and is des-
ignated the third period. Respondent’s Exhibits 50 and 51
show that poststrike profits declined during 1980 and 1981.
However, the profits reported for the first three periods of
1980 appear to be higher than normal. For instance, in 1979
in only one period, the 10th, did Respondent’sprofits exceed
the profits shown for the first three periods of 1980 and only
twice did the profits exceed $70,000 in any period, the first
951KURZ-KASCH, INC.
5 The record does not reflect whether an ‘‘order’’ is for a uniform amount
of product, or whether as would be normal, an order could be for varying
amounts of product. Without the actual orders, which Respondent destroyed,
the amount of product represented by its summary figures is not discernible.
Similarly, the degree of work necessary to process an order is not susceptible
of being determined in the absence of the actual orders themselves.
6 Respondent contended at the previous hearing and in this one that at least
part of the reason why it was not necessary to recall strikers earlier was its
ability to switch workers back and forth between molding and finishing, and
thus achieve productivity efficiencies. This argument is not supported by the
evidence. First, records in evidence indicte that each of these two departments
had an assigned work force, and employees of each department were paid at
a different wage level. Employees were transferred from one of these depart-
ments to the other on a permanent basis and personnel forms documenting the
transfer and change in wage were executed. Temporary transfers were not rou-
tine and were not for prolonged periods of time. Employee Joan Akers, called
as a witness by Respondent, testified that transfers of employees from molding
to finishing were only for the purpose of performing finishing work during
shift overlap or when, on a given day, molders would be idle for a period
of time. This was an infrequent occurrence. In addition, she testified that em-
ployees rarely went from finishing to molding.
and 10th periods. Although Respondent asserts that it did not
solicit work or complete work early in anticipation of the
strike, the higher-than-normal profits for those period suggest
otherwise, especially considering that the records of customer
orders were destroyed by Respondent. These records could
potentially demonstrate whether orders were solicited in an-
ticipation of a strike.
Further, the amount of profits earned by Respondent does
not establish whether Respondent’s business declined. Thus,
while overall profits declined slightly in 1980, there was a
substantial increase in gross sales from 1979 gross sales. In
addition, gross sales for ‘‘custom’’ product was higher in
1980 than in 1979. Also, gross sales for the ‘‘knob’’ product
in the 8th, 9th, 10th, and 11th accounting periods of 1980
exceeded the prestrike level for the third period of 1980 and
the gross sales for the ‘‘knob’’ product in the 5th and 6th
accounting periods of 1980 exceeded gross sales in the 12th
period for 1980.
The 1980 decline in profits may be better explained by an
increase in expenses, rather than an alleged decline in busi-
ness. For example, Respondent’s expenses for 1979 were
$2,674,679.99 compared to $2,788,791.75 in 1980. It is not
known, however, whether the exhibits in the record reflect all
of Respondent’s expenses for 1979, 1980, and 1981. The rea-
sons for the increased expenses can be traced in part, at least,
to a wage increase granted employees in 1980 and to rising
interest rates in that year. Respondent submitted general busi-
ness data showing rising interest rates in an attempt to bol-
ster its business-decline argument. Clearly, this attempt fails
because Respondent’s dollar volume of sales for 1980 and
the first half of 1981 equal or better its sales for the year
preceding the strike. As noted, Respondent has destroyed all
the underlying data for its summary exhibits reflecting reve-
nues and expenses and, therefore, it is impossible to deter-
mine their completeness or accuracy. For instance, there does
not appear to be any expense entry for the purchase of an-
other business, Norton Laboratory, in July 1981. Thus, Re-
spondent’s expenses may be greater than shown in the exhib-
its.
Respondent’s records of ‘‘orders’’ during 1979, 1980 and
1981 do not establish a substantial decline in business.5
Thus, for the third period of 1980, orders for ‘‘knobs’’ was
137. This figure was exceeded in the 4th, 5th, 11th, and 12th
periods in 1980 and the 4th, 5th, and 6th periods in 1981.
At the same time, the backlog of ‘‘knob’’ order (orders not
yet made or shipped to the company’s customer) increased
after the strike and did not decline to prestrike levels until
the ninth period of 1980. It may be inferred that Respondent
was diverting its resources to reducing the backlog in ‘‘cus-
tom’’ orders that existed at the beginning of 1980. In this
connection, at the end of 1979 the backlog for ‘‘custom’’ or-
ders was 295. It increased to 356 at the end of the first pe-
riod for 1980, and declined to 339 at the end of the second
period and to 307 at the end of the third period. This is sup-
ported by Respondent’s former Wilmington plant manager
Waldo Fannin’s testimony at the original hearing that during
the strike, after the end of the third period, Respondent’s
‘‘custom’’ customers were calling inquiring about the late
shipment of their orders.
While Respondent was decreasing the backlog in orders
for ‘‘cutom’’ parts, the backlog in orders for ‘‘knobs’’ stead-
ily increased above prestrike levels, reaching a high of 500
in the fifth period for 1980. The knob backlog did not de-
cline to below prestrike levels until the ninth period for
1980; the same period that the backlog in custom order
began to increase again. In fact, ‘‘custom’’ backlog order
fluctuated up and down after the ninth period when it
ballooned in the third period for 1981 to 578. It should be
recalled that Respondent testified that an increase in ‘‘knob’’
orders usually meant that more finishers were needed.
The data suggests that, in fact, there was work available
for employees to perform either completing actual orders or
working on backlog. Although it appears that there was a de-
crease in orders for 1980 compared to 1979, this data alone
does not disclose the entire picture. Without the raw data it
is impossible to determine whether Respondent delayed pro-
ducing orders that it normally would have produced earlier
by juggling its product mix.6
Respondent suggests that two other factors demonstrate
that its business declined. The first is that its 1980 press
hours were less than the 1979 press hours. While overall
press hours for 1980 appear to be less than they were in
1979, the press hours for ‘‘knobs’’ increased after the strike.
For example, the fourth, fifth, eighth and ninth periods for
1980 show an increase in press hours from prestrike levels.
(The seventh period is Respondent’s shutdown period.) It
should also be noted that the increase in press hours is con-
sistent with the increase in orders for the fourth and fifth pe-
riods of 1980 and the gross sales increase in the eighth and
ninth period for 1980.
Press hours for ‘‘custom’’ parts for the first six periods of
1980, three period before the strike and three after it, were
greater than the press hours for the comparable period of
1979. This logically could be the result of Respondent’s ef-
forts to fill customer orders in advance of the strike since it
had no way of knowing how long the strike would last. Un-
fortunately, Respondent destroyed the records which would
show whether Respondent solicited customers to place their
orders early, whether the amount of ‘‘custom’’ work per-
formed in advance of the strike was abnormally large, or
whether the work may have been shipped out to another
plant for production.
Moreover, press hours do not tell the entire story about
Respondent’s production process. Thus, while overall fin-
ishing hours for 1980 were allegedly less than the hours for
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 One striker was recalled on 4/15/80, but left for military service without
returning to work at Respondent’s plant.
1979, there are no records still in existence, which would
show whether there was a decline in finishing hours after the
strike ended. Indeed, this is important to know because, as
Respondent stated, some finishing work required up to five
employees to complete and there usually was more finishing
work associated with the production of ‘‘knob’’ parts.
With regard to the reduction of hours for employees dur-
ing 1980, Respondent submitted two letters, one dated April
23, 1980, and the other May 6, 1980. The April 23 letter was
allegedly sent to the Union notifying it that the molding de-
partment would be working 3 10-hour days effective the
week of April 28 ‘‘due to the lack of business and the
present economic slump.’’ It does appear that for approxi-
mately a 2-week period most of the employees in the mold-
ing department worked a reduced workweek. However, it is
unclear what economic slump or decline in business Re-
spondent was referring to in the letter. As previously noted,
orders for ‘‘knobs’’ increased in the first and second periods
after the strike, the periods of the so-called economic slump.
Also, although Respondent’s molding department worked a
reduced workweek, the press hours during this period ex-
ceeded prestrike levels.
The May 6 letter allegedly sent to the Union states that
‘‘due to the lack of business and the present economic
slump, effective the week of May 5, 1980, [the] . . . fin-
ishing department will work a 3-day week, 10 hours a day,
with the exception of the 10 to 13 most senior people who
will work the fourth day. Again, it is noted that orders for
‘‘knobs,’’ as well as backlog orders, increased in the periods
after strike. Further, Respondent testified during these pro-
ceedings that more finishing work is required for knob work.
Because Respondent failed to maintain the records showing
the number of finishing hours worked by Respondent during
1980, by accounting period, there is no way of determining
whether the finishing department, like the molding depart-
ment, also had an increase in the number of hours worked
during the so-called ‘‘lack of business’’ or ‘‘economic
slump’’ period.
In conclusion on this point, I find that Respondent did not
meet its burden of showing that it suffered an economic
slump or a business decline serious enough to affect the re-
call of strikers as vacancies occurred through separation of
employees, especially in the degree exhibited in the ratio of
vacancies created to strikers recalled. This ratio increased
dramatically and without an equally dramatic decline in busi-
ness. This will be discussed below.
2. The Company’s contention that it used the same
criteria and followed the same practice in deciding
when to recall strikers as it had in hiring employees
prior to the strike
Respondent contends that it does not necessarily hire a
new employee each time an existing employee ceases his or
her employment. From the exhibits in the record, this does
appear to be the case. However, Respondent has historically
maintained at least some understandable ratio of employees
leaving to those hired. For example, in the year 1979, the
year preceding the strike, 68 employees permanently left Re-
spondent’s employ and 42 new employees were hired. This
is an approximate ratio of two replacements for every three
vacancies. In the 8-plus months following the strike, 29 em-
ployees left permanently, but only 5 strikers were recalled.7
This is an approximate ratio of one replacement for every six
vacancies, and one of the positions filled by recall was a
maintenance position. Certainly, this drastic reduction in the
replacement to vacancy ratio is not justified by Respondent’s
1980 sales figures, which are as good as or better than those
of 1979, or even its press hours, which show only an approx-
imate 12-percent reduction from 1979.
The table set out below dramatically illustrates the extraor-
dinary delay Respondent exhibited in its recall of strikers to
fill vacancies:
Employee Sepa-
rations from
Date of Strike
Recalls of
Strikers
4/4/80 Finisher
4/4/80 Finisher
4/10/80 Molder 4/7/80 Maint.
4/16/80 Molder
4/1780 Molder
5/6/80 Shipper
5/7/80 Molder
5/8/80 Molder
5/13/80 Molder
5/13/80 Molder
5/27/80 Finisher
5/29/80 Finisher
5/29/80 Finisher
6/5/80 Molder
6/9/80 Molder
6/17/80 Molder
6/28/80 Finisher
6/28/80 Molder
7/10/80 Finisher
8/6/80 Molder
8/22J80 Finisher 8/11/80 Finisher
8/22/80 Finisher 8/11/80 Finisher
8/22/80 Molder
9/8/80 Molder
9/12/80 Molder 9/15/80 Finisher
10/9/80 Finisher 9/15/80 Finisher
12/2/80 Finisher
12/12/80 Molder
12/28/80 Finisher
1/6/81 Finisher
4/16/81 Molder 3/9/81 Hand Mold
5/4/81 Molder 5/4/81 Hand Mold
5/14/81 Molder 6/12/81 (2) Finishers
6/13/81 Molder
6/24/81 Maint.
7/7/81 Molder
7/12/81 Finisher
7/13/81 (2) Molders
7/15/81 Molder
7/16/81 Molder
7/16/81 (3) Finishers
Respondent also argues that it does not lay off employees
to adjust its work force when there is a decline in business.
Rather, Respondent asserts that it relies on employee attri-
tion. However, reference to the exhibits reflecting employee
separations for the year 1979 will show that 31 of the 68 em-
ployees separated from Respondent’s employment were dis-
charged, with 22 of those discharges coming in the period
953KURZ-KASCH, INC.
July-November of that year. The reasons for these discharges
are not discernable from the record. Finally, Respondent does
not, as it contends, rely exclusively on employee attrition to
adjust the size of its work force during a ‘‘decline in busi-
ness.’’ This is demonstrated by Respondent’s Exhibits 54 and
55 which show Respondent adjusted the work schedules of
employees rather than rely on employee attrition.
There is also the matter of testimony from Respondent’s
witnesses that indicated that employees who were on medical
leave during the poststrike period would have been put back
to work if they recovered and requested reinstatement. More-
over, Fannin testified that Respondent had work for every
employee separated following the strike up until the last day
they worked. Thus, when they left, there was work available
that either had to be done by another employee or not done
at all.
I find that Respondent has failed to meet its burden. It has
not rebutted the presumption that vacancies to reinstate
former strikers existed following the departure of other em-
ployees after the strike. The reasons advanced by Respond-
ent, as demonstrated above, are neither substantial nor legiti-
mate. It is apparent that Respondent seized on a temporary
decline in orders for some of its product line as justification
to delay the reinstatement of former striking employees. Re-
spondent was able to accomplish this task by alternating its
production between ‘‘custom’’ and ‘‘knob’’ products when-
ever the backlog increased too much. This juggling act, how-
ever, eventually had to cease when, during the third period
of 1981, the backlog orders skyrocketed. It was the sky-
rocketing backlog that caused Respondent to recall the
former strikers, not the purchase of the Norton Laboratories
in July 1981, as its witnesses stated. Work resulting from the
Norton purchase did not begin until after July and there is
no specific showing of the impact that this purchase had on
Respondent’s orders in the latter half of 1981.
Respondent did not reinstate any former strikers between
May and July 1980 and October 1980 and February 1981.
These lengthy periods of not hiring new employees are un-
precedented. If Respondent had reinstated the former strikers
there would have been work for them to perform. Thus, Re-
spondent testified that there was work available for the em-
ployees who left its employ between May 1980 and May
1981. Respondent also testified that there was work available
for employees who were on a medical leave of abence before
the strike had they chosen to return to work after the strike
ended and, in fact, it did allow some employees on a medical
leave of absence to return. Under these circumstances, and
given Respondent’s proven antiunion animus, I find, as did
the administrative law judge and the Board before me, that
Respondent’s alleged buiness decline justification for its fail-
ure to recall strikers a vacancies occurred is pretextual and
without substance.
For all of the reasons set forth above, I find that Respond-
ent has failed to meet it burden of proof on its buiness jus-
tification defense and that its failure and refusal to recall
strikers when vacancies for which they were qualified oc-
curred after the unconditional offer to return to work had
been made is in violation of Section 8(a)(1) and (3) of the
Act. I further find that there is substantial evidence to sup-
port the Board’s heretofore made findings, conclusions, and
Order remedying these unfair labor practices and will rec-
ommend that they be reinstated. Neither Respondent nor the
court of appeals questions the Board’s findings, conclusions,
and Order relating to any of the other unfair labor practices
found to have been committed by Respondent in its Decision
and Order dated November 30, 1987, and they are incor-
porated herein by reference.
On the basis of the above findings of fact and the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. Kurz-Kasch, Inc. is an employer engaged in commerce
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 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.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practice I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action, in-
cluding the posting of the customary notice, designed to ef-
fectuate the purposes of the Act.
Having found that the former strikers were entitled to be
recalled prior to May 5, 1981, and having further found that
Respondent did not offer reinstatement to all such strikers
until July 16, 1981, I recommend that Respondent be ordered
to make them 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 the unconditional offer to return to
work until the date of Respondent’s offer of reinstatement,
less net earnings, in accordance with F. W. Woolworth 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). See generally Isis Plumbing Co., 138
NLRB 716 (1962). I shall also recommend that the question
of when each of the former strikers should have been re-
called be left to the compliance stage of this proceeding. In
addition, as some of the reinstated strikers were entitled to
be recalled earlier than they were, I shall leave to the com-
pliance stage the question of which strikers were entitled to
earlier recall and the amount of backpay due them.
[Recommended Order omitted from publication.]