Stevens International Inc.

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 143 (N.L.R.B. 2001)

STEVENS INTERNATIONAL 143
Stevens International, Inc. and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America, and its Local
Union No. 1688, UAW. Case 9–CA–36335
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On September 7, 1999, Administrative Law Judge
Richard H. Beddow, Jr. issued the attached decision.
The Respondent filed exceptions and a supporting brief
and the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find­
ings, and conclusions and to adopt the recommended
Order as modified.
We agree with the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by, inter alia,
failing to give the Union an opportunity to bargain con­
cerning the Respondent’s decision to transfer unit work
to nonunit supervisors.
The Respondent and the Union were parties to a col­
lective-bargaining agreement, which had been extended
by the parties through July 1998.1 The Respondent had
employed between 100 and 200 production and mainte­
nance employees, but by the end of June 1998, there
were only 11 unit employees remaining. On June 30, the
Respondent notified these employees in writing that they
were to be laid off effective July 2. At the time of the
layoff, unit employees were loading and preparing parts,
plant fixtures, and equipment for shipment to the Re­
spondent’s facility in Texas as well as continuing to per-
form their normal duties of inspecting and shipping parts
and performing maintenance work as needed. On June
29, the union committee met with Bill Kist, the Respon­
dent’s management official. Kist informed the Union of
the layoff. During this conversation, the Union’s vice
president, William Stevison, told Kist that there was a
good amount of work left and asked who was going to do
the work. Kist replied by lis ting some supervisors’
names. The Union filed a grievance on July 3, which the
Respondent denied on July 9. On or about July 20, the
Union visited the plant, and observed that machinery
parts previously packed for shipment by unit employees
had been moved in preparation for shipment.2
1 Unless otherwise indicated, all dates are in 1998.
2 The Union immediately requested information regarding the work
performed after July 2, including receiving records and pulling parts in
preparation for shipment and the duties of management personnel still
at the plant. The Respondent refused to provide any of this information
While our dissenting colleague is correct that the col­
lective-bargaining agreement gives the Respondent the
right to assign work, the contractual language also
clearly provides that such assignments will be made only
to “employees.” The Respondent and our dissenting
colleague rely on article 3, entitled “Management
Rights,” which provides in relevant part that the Respon­
dent has “the right to assign work and maintain perform­
ance records for all employees”3 (emphasis added). Ar­
ticle 1 of the contract, however, defines the term “em­
ployee” as including all production and maintenance
employees and categorically excludes, inter alia, supervi-
sors.4 There is no provision that gives the Respondent
the right to assign unit work to supervisors. Therefore,
by the terms of the contract the Respondent’s right to
assign work was limited to assignment of work to em-
ployees.5 Certainly, under these provisions, there is no ba­
sis for finding that the Union waived its right to bargain
under the Board’s “clear and unmistakable” waiver stan­
dard. Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
until it became part of the information provided for the hearing in this
case. We agree with the judge that the Respondent violated Sec.
8(a)(5) and (1) of the Act by failing to timely provide the requested
information.
3 Art. 3, secs. 1–3 read in full:
Management
Management’s Rights
Section 1. All rights to the Company existing before the exe­
cution of this Agreement are retained by the Company, except as
expressly modified by this Agreement.
. . . .
Section 3. The rights referred to in Section 1, above, also in­
clude, but are not limited to, the following: . . . .the right to assign
work and maintain performance records for all employees . . . .
4 Art. 1 reads in full:
Definition of Employee
The term “employee” as used in this Agreement shall include all pro­
duction and maintenance employees, including plant clerical employ­
ees, employed by the Company at its plants located at 851 Walnut
Street, Hamilton, Ohio, the Ninth Street Annex (located at 928 South
Ninth Street, Hamilton, Ohio); and 2175 Schlicter Drive, Hamilton,
Ohio, excluding all office clerical employees, technical employees,
time study employees, guards, professional employees and supervi­
sors as defined in the National Labor Relations Act, as amended, con­
stituting the bargaining unit certified by the National Labor Relations
Board on March 9, 1972, in Case No. 9-RC-9398.
5 Our dissenting colleague argues, inter alia, that the Union’s failure
to note this precise language undermines its meaning as limiting the
Respondent’s right to assign unit work. The Union did not file a brief
to the Board. However, it did file a contractual grievance which as­
serted that the Respondent violated the collective-bargaining agreement
by its extra-unit assignment. That contention indicates that the Union
was of the view that the assignment was not privileged by the manage­
ment-rights clause.
337 NLRB No. 23
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
708 (1983).6 Consequently, we find that the unilateral
assignment of the unit work to supervisors violated Sec­
tion 8(a)(5) and (1) of the Act.
Nor do we find the work assignment to be within the
purview of the agreement’s “zipper clause” (art. 31, sec.
3), which provides that “neither party, for the duration of
the Agreement, will be required to bargain collectively
with respect to any subject or matter referred to, or cov­
ered in this Agreement.” Moreover, since we find the
Respondent’s pre-expiration unilateral work assignments
unlawful, we find it unnecessary to reach our colleague’s
contention that the Respondent’s post-expiration assign­
ments were privileged as part of the pre-expiration
“status quo.” Of course, under our analysis, the Respon­
dent’s unilateral assignments continued to be unlawful
after the expiration of the collective-bargaining agree­
ment.
We agree with the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing to
bargain with the Union over the effects of its decision to
close its Hamilton, Ohio facilities. Accordingly, we shall
amend the judge’s remedy to provide for the Board’s
standard backpay remedy in effects bargaining cases as
modeled after the remedy set forth in Transmarine Navi­
gation Corp ., 170 NLRB 389 (1968).7
AMENDED REMEDY
Add the following after the third paragraph.
We shall also accompany our order to bargain over the
effects of its decision to close its Hamilton, Ohio facili­
ties with a limited backpay remedy as modeled after the
remedy set forth in Transmarine Navigation Corp ., 170
NLRB 389 (1968). Thus, the Respondent shall pay laid-
off employees backpay at the rate of their normal wages
when in the Respondent’s employ, from 5 days after the
date of this Decision and Order until the occurrence of
the earliest of the following conditions: (1) the date the
Respondent bargains to agreement with the Union on
those subjects pertaining to the effects of the closing of
its Hamilton, Ohio facilities; (2) a bona fide impasse in
bargaining; (3) the Union’s failure to request bargaining
within 5 business days after receipt of this Decision and
Order, or to commence negotiations within 5 business
days after receipt of the Respondent’s notice of its desire
to bargain with the Union;8 or (4) the Union’s subsequent
failure to bargain in good faith, but in no event shall the
6 Since the Respondent’s right to assign work is limited to assign­
ments to employees, we find that even under the “contract coverage”
test applied by our dissenting colleague, the Respondent’s unilateral
assignment is unlawful.
7 We have also modified the judge’s recommended Order and notice
to conform to the Board’s standard remedial language.
8 See Melody Toyota , 325 NLRB 846 (1998).
sum paid to these employees exceed the amount they
would have earned as wages from the date on which the
unit employees were laid off as a result of Respondent’s
closing its Hamilton, Ohio facilities, to the time they
secured equivalent employment; provided, however, that
in no event shall this sum be less than the employees
would have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ.
Backpay shall be based on earnings which the terminated
employees would normally have received during the ap­
plicable period, less any net interim earnings, and shall
be computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge and
orders that the Respondent, Stevens International, Inc.,
Hamilton, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi­
fied.
1. Substitute the following for paragraphs 2(a) and (b).
“(a) Furnish the information requested by the Union on
August 13, 1998; on request bargain in good faith with
the Union as the exclusive bargaining representative of
the appropriate unit of its employees with respect to the
assignment of unit work involving plant closure func­
tions and with respect to the effects on its unit employees
of its decision to cease operations at its Hamilton, Ohio
facilities; and on request, embody in a signed agreement
any understanding reached.
“(b) Make whole any unit employees who were de­
prived of the opportunity to perform unit work during the
closing down of the Hamilton, Ohio facilities, for all
losses incurred as a result of the unlawful assignment of
work to nonunit employees, with interest.”
2. Insert the following as paragraphs 2(c) and (d) and
reletter the subsequent paragraphs.
“(c) Pay employees who were laid off as a result of the
Respondent’s decision to close its Hamilton, Ohio facili­
ties their normal wages when in the Respondent’s em-
ploy from 5 days after the date of this decision until oc­
currence of the earliest of the following conditions: (1)
the date the Respondent bargains to agreement with the
Union on those subjects pertaining to the effects of the
closing of its Hamilton, Ohio facilities; (2) a bona fide
impasse in bargaining; (3) the Union’s failure to request
bargaining within 5 business days after receipt of this
Decision and Order, or to commence negotiations within
5 business days after receipt of the Respondent’s notice
of its desire to bargain with the Union; or (4) the Union’s
subsequent failure to bargain in good faith, but in no
STEVENS INTERNATIONAL 145
event shall the sum paid to these employees exceed the
amount they would have earned as wages from the date
on which the unit employees were laid off to the time
they secured equivalent employment elsewhere; pro­
vided, however, that in no event shall this sum be less
than the employees would have earned for a 2-week pe­
riod at the rate of their normal wages when last in the
Respondent’s employ, with interest.
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces­
sary to analyze the amount of backpay due under the
terms of this Order.”
3. Substitute the attached notice for that of the admin­
istrative law judge.
CHAIRMAN HURTGEN, concurring and dissenting in part.
I agree with the judge that the Respondent violated
Section 8(a)(5) by refusing to provide the Union with
requested information. I also agree with the judge, albeit
for different reasons, that the Respondent violated Sec­
tion 8(a)(5) by failing to bargain with the Union over the
effects of its decision to close its Ohio facilities. I do not
agree that the Respondent violated Section 8(a)(5) by
failing and refusing to bargain with the Union over the
assignment of unit work to supervisors.
The relevant facts are fully set forth by the judge.
Briefly, the Respondent and Union were bound to a col­
lective-bargaining agreement, which expired on July 19,
1998. Article 3 of that agreement (the management-
rights clause) sets forth a broad array of management
rights. The text is set forth below. The contract pro­
vided that these management rights were not subject to
the contractual grievance procedure. Article 31, section
3 of the same agreement (the “zipper” clause) specified
that:
[N]either party, for the duration of the Agree­
ment, will be required to bargain collectively with
respect to any subject or matter referred to, or cov­
ered in this Agreement even though such subjects or
matters may or may not have been proposed, consid­
ered, or contemplated by either or both of the parties
at the time this Agreement was negotiated and
signed.
. . . .
When this Agreement, or any renewal thereof,
terminates as provided, all rights, duties and obliga­
tions created thereunder shall also immediately ter­
minate.
The Respondent operated three facilities in the Hamil­
ton, Ohio area. After a period of sustained losses, during
which its work force decreased from 100–200 employees
to 11, the Respondent sold two of these facilities and
notified the Union on June 30, 1998, that it was laying
off its remaining 11 unit employees. This layoff was to
take effect on July 2, 1998. In response to the Union’s
inquiry as to who would continue to perform the remain­
ing unit work, the Respondent said that supervisors
would perform it. The Union filed a grievance claiming
that this assignment of unit work violated article 2 (the
recognition clause) and other provisions. The Union also
requested information as to what unit work was per-
formed after the July 2 layoff. This information was not
provided.
On July 19, the collective-bargaining agreement ex­
pired. Following this expiration, the unit work continued
to be assigned to supervisors.
Beginning on August 13, the Union made several pro­
posals for a plant closing agreement, which the Respon­
dent rejected.
The judge found that the Respondent violated Section
8(a)(5) by failing to provide the Union with requested
information. He additionally found that the Respondent
violated Section 8(a)(5) by unilaterally reassigning unit
work to supervisors, following the July 2 layoff of unit
employees, and by failing and refusing to bargain over
the effects of its decision to lay off unit employees. As
to the unilateral work reassignment, the judge found that
the Respondent violated Section 8(a)(5) because that
assignment impacted unit work and, thus, was a manda­
tory subject of bargaining.
The Respondent excepts to these findings. As to the
latter two, the Respondent argues, among other things,
that it had no obligation to bargain over the effects of its
closing of the Hamilton operation or of its assignment of
unit work to nonunit personnel because its actions were
privileged by provisions in the collective-bargaining
agreement. NLRB v. Postal Service, 8 F.3d 832, 836
(D.C. Cir. 1993). Specifically, the Respondent contends
that article 3 of the agreement (the management-rights
clause) specifies that it has the right to lay off, curtail, or
terminate its operations as well as the right to assign
work. The Respondent further contends that its position
is supported by article 31, section 3 (the “zipper” clause).
In response to the Respondent’s exceptions, the Ge n­
eral Counsel relies on the judge’s “mandatory subject of
bargaining” analysis, and contends that “Respondent’s
argument that it had a right to subcontract the work under
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the management-rights clause of the contract avoids the
issue.”
Assignment of Unit Work to Supervisors
I find merit to the Respondent’s exception concerning
the right to assign work to supervisors. I agree with the
Respondent that the “contract coverage” analysis, as set
forth by the D.C. Circuit in NLRB v. Postal Service, su­
pra, is the appropriate test, rather than the “clear and un­
mistakable waiver” analysis, for determining whether the
Respondent was obligated to bargain over this subject.
See, e.g., Mt. Sinai Hospital, 331 NLRB 895 (2000) (dis­
senting opinion). In my view, article 3 makes it plain
that the Respondent was lawfully entitled to assign work
as it chooses. Thus, on or about July 2, i.e., during the
contract term, the Respondent lawfully assigned unit
work to its supervisors.
My colleagues contend that article 3 does not privilege
the Respondent’s assignment of unit work to supervisors
under the “contract coverage” test. They assert that art i­
cle 3 permits the Employer to assign work only among
its bargaining unit employees. I cannot agree. Article 3,
in its entirety, specifies that:
The rights referred to in Section 1, above, also
include, but are not limited to, the following: The
right to maintain order, economy and efficiency; the
right to extend, maintain, curtail or terminate the
business or operations of the Company; the right to
subcontract work; the right to determine the size,
kind and location of the Company’s business or op­
erations, and to determine the type and amo unt of
products to be manufactured and equipment to be
used; the right to determine production and work
schedules, methods and processes and means of
manufacture and materials to be use, including the
right to introduce new and improved methods or fa­
cilities; the right to assign work and maintain per­
formance records for all employees; and the right to
determine the number and starting times of shifts
and the numbers and hours of days of work for all
employees. [Emphasis added.]
As noted, I disagree with the argument of my col­
leagues. In the first place, neither the Ge neral Counsel
nor the Union makes this argument. If the union-party to
the contract thought that the clause meant what my col­
leagues ascribe to it, one would assume that the Union
would have so contended.
Second, my colleagues’ interpretation would mean that
the Respondent had the right to assign unit work to a
different company (right to subcontract), but not the right
to assign such work to its own supervisors.
Third, although the “right to assign” and the “right to
maintain performance records” are in the same clause,
they are markedly different concepts. And, grammati­
cally, the phrase “for all employees” is tied only to per­
formance records, i.e., an employer does not assign work
“for” all employees.
Thus, the contract supports the Respondent’s actions.
Concededly, after the contract ended, the Respondent
continued to assign unit work to supervisors. Because
the contract ended, the Respondent could no longer rely
on article 3 to privilege the assignment of unit work to
supervisors. Article 31, section 3 makes it clear that this
contractual right ended with the contract.1
However, it is clear that, as a statutory matter, the
status quo continued, even after contract expiration, until
impasse or agreement on different terms.2 In my view,
that status quo included the Respondent’s right to assign
unit work to supervisors. This work assignment was as
much a part of the status quo as the employee’s wages
and benefits. Thus, just as the latter continue as a matter
of law after contract expiration, the former continues as
well. Accordingly, the Respondent’s continued assign­
ment of unit work to supervisors was lawful, even after
the exp iration of the contract.
I do not believe that Ironton Publications3 requires a
different result. That case teaches that a contractual wav­
ier of a right to bargain does not ordinarily survive the
expiration of the contract. However, in addition to the
fact that I would not apply a “waiver” analysis (see the
discussion above), my position does not turn on contract
rights. As discussed, it turns on the Act. The assignment
of unit work to supervisors was part of the status quo,
and, as such, it continued, as a matter of law, until im­
passe or agreement
Refusal to Bargain on Effects
Contrary to the Respondent, I do not believe that the
contract privileged its refusal to bargain about the effects
of its decision to close the two facilities. The contract
covers the decision but not the effects thereof. Since
there is a statutory right to bargain about the effects, and
since the contract (under a “contract coverage” analysis)
does not take away that right, the Respondent was obli­
gated to bargain about effects. Its refusal to do so was
unlawful.
1 See my concurring opinion in Ryder Ate, 331 NLRB 889 (2000),
where I concluded that the employer could not rely on the expired
contract to privilege a unilateral change.
2 Schmidt-Tiago Construction Co., 286 NLRB 342 (1987), White
Oak Coal Co., 295 NLRB 567 (1989).
3 321 NLRB 1048 (1996).
STEVENS INTERNATIONAL 147
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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to bargain collectively
with the Union, as the exclusive representative of the
employees in the bargaining unit, by unilaterally transfer-
ring bargaining unit work which had previously been
done by unit employees without bargaining with the Un­
ion.
WE WILL NOT fail to bargain in good faith with the Un­
ion concerning the effects of the closing of our Hamilton,
Ohio facilities, on the employees in the bargaining unit.
WE WILL NOT fail and refuse to timely provide the Un­
ion with requested information necessary and relevant to
the Union’s performance of its function as the exclusive
bargaining representative of unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL furnish the information requested by the Un­
ion on August 13, 1998; and on request bargain in good
faith with the Union as the exclusive bargaining agent of
the appropriate unit of employees with respect to the
assignment of unit work involving plant closure func­
tions and with respect to the effects on unit employees of
our decision to cease operations at our Hamilton, Ohio
facilities and, on request, embody in a signed agreement
any understanding reached.
WE WILL make whole any unit employees who were
deprived of the opportunity to perform unit work during
the closing down of our Hamilton, Ohio facilities, for all
losses incurred as a result of the unlawful assignment of
work, with interest.
WE WILL pay the unit employees who were laid off as a
result of our decision to close our Hamilton, Ohio facili­
ties their normal wages when in our employ from 5 days
after the date of the Board’s decision until the occurrence
of the earliest of the following conditions: (1) the date we
bargain to agreement with the Union on those subjects
pertaining to the effects of the closing of our Hamilton,
Ohio facilities; (2) a bona fide impasse in bargaining; (3)
the Union’s failure to request bargaining within 5 busi­
ness days after receipt of this Decision and Order, or to
commence negotiations within 5 business days after re­
ceipt of our notice of our desire to bargain with the Un­
ion; or (4) the Union’s subsequent failure to bargain in
good faith. In no event shall the sum paid to these em­
ployees exceed the amount they would have earned as
wages from the date on which the unit employees were
laid off to the time they secured equivalent employment
elsewhere; provided, however, that in no event shall this
sum be less than the employees would have earned for a
2-week period at the rate of their normal wages when last
in our employ, with interest.
STEVENS INTERNATIONAL, INC.
Eric J. Gill, Esq., for the General Counsel.

Timothy P. Reilly, Esq., of Cincinnati, Ohio, for the Respon­

dent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Cincinnati, Ohio, on June 4 and 22, 1999.
Subsequent to an extension in the filing date, briefs were filed
by the General Counsel and the Respondent. The proceeding is
based upon a charge filed October 19, 1998,1 by International
Union, United Automobile, Aerospace & Agricultural Imple­
ment Workers of America, and its Local Union No. 1688,
UAW. The Regional Director’s complaint dated January 7,
1999, alleges that Respondent Stevens International, Inc., of
Hamilton, Ohio, violated Section 8(a)(1) and (5) of the National
Labor Relations Act by using nonbargaining unit personnel to
perform unit work following the layoff of the bargaining unit
employees, by failing and refusing to respond to the Union’s
request for information concerning Respondent’s operations at
its Hamilton, Ohio facility and refusing to bargain about a plant
closing agreement concerning its Hamilton, Ohio operations in
violation of Section 8(a)(1) and (5) of the Act.
On a review of the entire record in this case and from my ob­
servation of the witnesses and their demeanor, I make the fol­
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent was engaged in the manufacture, distribution, nd
sale of printing presses and machinery in Hamilton, Ohio. It
has annually shipped goods valued in excess of $50,000 from
its Hamilton location to points outside Ohio and it admits that
1 All following dates will be in 1998 unless otherwise indicated.
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at all times material is and has been an employer engaged in
operations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR L ABOR P RACTICES
The Respondent operated three facilities or plants in the
Hamilton area. Plant one was used to assemble the machinery
and also for light machining work and offices. Plant three,
which is connected to plant one, contained the storeroom and
the repair department and the road service crew also worked
out of plant three. Heavy machining work was done at plant
two as well as some assembly work, storing of parts, and some
offices. Heavy assembly work was performed at plant two.
The Union and Respondent were parties to a collective-
bargaining agreement that was effective between the dates of
July 2, 1994, and December 19, 1997. The contract was ex-
tended by the parties through July 19, 1998. Prior to 1998,
Respondent has employed between 100 and 200 employees at
its Hamilton operations but by the end of June 1998, there were
11 bargaining unit employees working at Respondent’s Hamil­
ton plants. On June 30, Respondent notified these employees
in writing that they were to be laid off effective July 2. At the
time of the layoff, Respondent had sold plant two and unit em­
ployees who had been working at plant two had been trans­
ferred to plant one. In addition to the normal duties such as
shipping and receiving machine parts, the employees began
loading and preparing parts, plant fixtures, desks, cabinets, and
other plant equipment for shipment to Respondent’s corporate
facility in Texas. They also continued to inspect parts and then
ship them to Respondent’s customers and they performed
maintenance work as needed.
Paul I. Stevens, chairman and CEO, testified regarding the
history of the Company and its recent poor financial condition.
The Company began to lose money in 1996 when it had an
approximate net worth of $50 million and debts to banks and
insurance companies of approximately $60 million. It then
implemented a plan to reduce its debt by selling off product
lines and divisions but continued to lose money. In 1997–1998
it had an estimated loss of $15 million at its Hamilton opera­
tions, it lost $20 million at its Zerand, Ohio facility and had a
negative net worth in the $7 to $8 million range.
Business continued to decline but the Respondent was able
to continue its Hamilton operations because of one large order.
It hoped to receive another large order from an old customer
but when it finally learned in June 1998 that the order would go
to a competitor from France, the Company decided to close the
Hamilton operations. The Company’s operations are now con­
solidated in Texas, where approximately 30 employees work
producing products that were never made in Hamilton.
On June 29, the union committee spoke with Bill Kist, Re­
spondent’s management official, who informed the Union
about the layoff. During this conversation, Union Vice Presi­
dent William Stevison told Kist that there was a good amount
of work left to do and asked who was going to do the work.
Kist replied by listing some supervisors’ names and some of the
duties that they would be doing. When Stevison asked Kist
who was going to be pulling parts in preparation for shipment,
Kist said that the people who were left at the plant and the su­
pervisors would do the work. Thereafter, on July 2, Stevison
filed a grievance, which the Respondent denied in a written
response dated July 9.
Stevison testified that after his layoff, he and other union
members went to the plant on July 20 or 21, and observed that
there were many machinery parts that had been moved from
plant two to plant one. Stevison further observed that some of
the parts that the bargaining unit employees had started putting
in crates in preparation for shipment were being moved in
preparation for shipment. Stevison then asked Respondent’s
plant manager, Bob Zeiner, for information concerning the
work that was performed after the July 2, 1998 layoff, specifi­
cally receiving records, what parts were pulled (in preparation
for shipment) and the duties of the management people who
were still at the plant. Zeiner replied that he was not going to
give the Union the information requested and that Stevison
would have to put the Union’s request in writing. Stevison then
wrote the Union’s request for information on a piece of paper
and gave it to Zeiner. He was again told that he would not get
the information but Zeiner said he would send the written re-
quest to the Respondent’s office in Texas.
Stevison returned to the plant on August 12 and presented
Plant Manager Zeiner with another written request for informa­
tion which asked for a record of service parts that had been
shipped from the Hamilton plants, all sales orders shipped from
the Hamilton division, and copies of all records showing parts
received by the plant from July 20 to August 12, 1998.
The Union and Respondent had a conference call on August
13, between Hans Kossler, Respondent’s vice president, and
Ronald Rhine, a union international representative. The Union
made several proposals concerning a plant closing agreement,
however, Kossler replied in the negative to each proposal made
by the Union but made no counterproposals.
Rhine previously had met with Respondent’s representatives
on July 2, in order to gather information about Respondent’s
decision to close the Hamilton plants and to try to work out a
way to keep the plants open or to negotiate a plant closing
agreement. Rhine made specific proposals relating to the ex-
tension of insurance benefits for the employees, a severance
package and transfer rights for employees, and several other
proposals. Rhine also expressed his concern about proper noti­
fication from Respondent, as required under the WARN Act.
The Respondent said that they would get back with the Union
in a week or so but did not.
Thereafter, Rhine wrote a letter dated July 17, reminding Re­
spondent of its earlier agreement to get in touch and he again
requested that Respondent meet with the Union to address the
issues raised during the earlier meeting. Respondent sent a
crossing letter dated July 17, to the Union which stated that
Respondent appreciated the opportunity to meet with the Union
and stated that it remained open “to address the effect that the
closing of the Hamilton plant has had on the employees.” As
noted on August 13 Rhine participated in a conference call with
Kossler and reminded Kossler of Respondent’s obligation to
negotiate a plant closing agreement with the Union and its obli­
gation to provide the information that the union committee had
STEVENS INTERNATIONAL 149
originally requested. In response, Kossler agreed that the Re­
spondent had an obligation to sit down with the Union to nego­
tiate a plant closing agreement and told Rhine to send him the
Union’s proposal for a plant closing agreement. Rhine then
drafted a plant closing agreement, which was sent along with an
attached written request for the information that the Union had
previously submitted to Respondent. The letter, dated August
13, reiterated the Union’s request for a meeting with Respon­
dent to negotiate a closing agreement within a week or two.
Rhine’s letter further stated, “Due to the same operation being
in effect after July 19, the Employer and the Union should ne­
gotiate an agreement to cover his work, based on the UAW
Certification of Bargaining Agent still in effect.”
Rhine then received a letter dated August 27, from Con-
stance Stevens, Respondent’s vice president of administration,
which stated, “We are in the process of evaluating your propos­
als, in light of our current business situation, and plan to have a
response for you in the next two weeks.” After the Union heard
nothing further, Rhine initiated another conference call and on
October 13, Rhine and the union committee spoke with Re­
spondent’s representatives, led by Attorney Phil Jones. Stevi­
son asked Respondent’s representatives if he could look at or
obtain the information that the Union had previously requested
(early in the discussion, Jones had replied that he was willing to
give the Union the information and Stevison asked Jones if he
could go to the plant that day and look in the filing cabinet
where the information was stored but Jones replied no.) Stevi­
son again asked if the Union could look at the information in
order to process their grievance and Jones, replied by saying,
“No.” “What don’t you understand about no?” Stevison asked
Respondent for a copy of the Hamilton product list (needed to
determine what bargaining unit work was being performed at
the Hamilton facilities) but was told that they did not think they
had a product list and Jones stated that because there were not
two union jobs left at the facility, there was no union.
Rhine reminded Jones that Respondent had admitted it had
an obligation to negotiate a plant closing agreement and to
provide information as requested by the Union but Jones told
Rhine that Respondent was not going to respond further to the
Union. At that point of the conversation, Rhine said that in
order to be sure of where the parties were, he wanted to go
through the Union’s proposals submitted earlier in his August
13 letter one-by-one. Following Rhine’s recitation of the Un­
ion’s proposals, Jones’ response for each one “denied” and with
respect to whether Respondent would negotiate over the work
going on following the layoff, Jones’ response was that there
had to be two people left in the bargaining unit to have a con-
tract and certification.
Rhine offered to modify the Union’s proposals in order to
get Respondent to make some counterproposals and suggested
that rather than have Respondent provide 1 year’s insurance
coverage for the bargaining unit employees, as the Union had
originally proposed, Respondent would provide only 6 months’
insurance coverage. Jones’ responded that he was not inter­
ested. Rhine also proposed that Jones come to Hamilton to
meet with the Union in person to negotiate a contract. Jones
declined and replied that it was too expensive for him to travel
and meet with the Union.
Discussion
This case does not involve an issue concerning the right of
an employer to decide to close its plants but it does involve the
legal obligations that flow from that decision and the manner in
which the decision was implemented.
Here, there was an effective contract believes the Employer
and the Union. The employer was in serious financial condi­
tion and had reduced the scope of its operations. It then
abruptly laid off its 11 remaining unit employees and proceeded
to phase out its existing operations in Ohio while utilizing the
services of supervisory personnel who remained on the job to
perform some functions that normally had been performed by
unit personnel. It did not bargain over this reassignment of unit
work, it did not respond to the Union’s request for information
pertaining to the layoff and the work that subsequently was
performed, and it did not make any meaningful response to the
Union’s request to bargain over a plant closing agreement and
the effects of its plant closure decision.
The Respondent attempts to minimize the amount of unit
work that was done but it is clear that some such work was
done and that the Respondent made a unilateral decision to
retain a number of supervisory personnel and to have them do
the work that remained. In effect, the employer chose to substi­
tute a supervisor to perform the unit work of some laid off em­
ployees. This action involved a mandatory subject of bargain­
ing as it had a clear impact on bargaining unit work see Land
O’Lakes, Inc., 299 NLRB 982, 986 (1990).
The Employer kept a log of unit related work that was done
(information that was not shared with the Union) and assert that
there was never more than 20 hours a week and that it dimin­
ished further after September. It then cites D & B Masonry,
275 NLRB 1403 (1985), a case involving the construction in­
dustry, and asserts that it may unilaterally change terms and
conditions of employment where the employer employs one or
fewer unit employees. Here, however, the Respondent had a
permanent and stable work force comprised of 11 employees
who were placed on layoff status. Accordingly, it was not clear
that there yet was a condition where there was one or less em­
ployees “on a permanent basis” and the issue of performance of
the minimal amount of work left open and was susceptible to
negotiation. It also appears that the issue of performance of
work, left over because of the plant closure, is something that
logically comes within the envelope of the concept of the “ef­
fect of Employer’s closure action and it is clear that the Re­
spondent here did not notify or negotiate with the Union on this
matter.
In fact, after the layoff notice on June 30, the Union
promptly requested a meeting and met on July 2, the effective
date to express its concerns. The Employer then failed to honor
its statement that it would think about some things and get back
with the Union in a week. Accordingly, I find the Respondent
took unilateral action and failed to give the Union timely notice
or an opportunity to bargain over its decision to reassign bar-
gaining unit work to nonunit supervisory personnel, a manda­
tory subject of bargaining, and that by this action and by im­
plementing its decision on July 2, it thereby violated Section
8(a)(1) and (5) of the Act, as alleged.
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union initially utilized its contractual grievance proce­
dure to notify the Respondent of its bargaining (and informa­
tion) request and this was followed up by various written and
verbal requests that clearly communicated its bargaining de­
mand to the Respondent. On brief, the Respondent asserts its
right to unilaterally close its plants. While it may have that
right, it also has various attendant obligations, including the
notice provisions of the WARN Act as well as the duty to bar-
gain “in a meaningful manner at a meaningful time,” with the
Union that represents its employees over the effects of the clos­
ing. First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981). Otherwise, the Employer’s obligation regarding effects
bargaining extends to the period after the closing of an Em­
ployer’s facility, see Friedman’s Express, Inc., 315 NLRB 971,
973 (1994).
Here, it is clear that the Employer had been seriously cutting
back on employment going from over 100 unit employees in
1997 to 11 at the end of June 1998 and it had sold machinery
and made arrangements to sell its plant and other assets prior to
its sudden notification on Wednesday, June 3; that it would
close the facility 2 days later, on Friday, July 2.
In its defense, the Respondent asserts that it informed the
Union of the Employer’s poor financial condition and contend
that the Union’s closure (effects) proposals showed no appre­
ciation of the Employer’s financial plight. It then argues that it
was in no financial condition to provide economic benefits in
any plant closing agreement and was entitled to take a “hard
line” on negotiations.
First, it is noted that after the plants closed on July 2, Plant
Manager Robert Zeinner remained for 5-1/2 months until he
also was laid off in mid December along with two engi­
neer/designers. Nine other supervisors or clericals remained
until late September, while five others employees remained
thereafter to provide customer service and to administer the
closure. Meanwhile, professional liquidators were hired to
dispose of assets and their employees were on site to dispose of
or prepare equipment for auction. Thus, despite its financial
hardship, it chose to retain other employees to aid in plant clos­
ing functions and to disposal of assets and it clearly was possi­
ble to bargain over an opportunity for unit employees to share
at least some part of this as an “effect” of the plant closure.
Moreover, the mere fact that an employer may be entitled to
take a “hard line on negotiations” does not excuse an employer
from preemptively concluding that it could not agree to finan­
cially costly union proposal and thereby excuse itself from any
bargaining at all. Here, the Respondent made no proposals or
counterproposals, it merely rejected each union proposal with a
flat “no” and it otherwise refused to participate in any timely or
meaningful dialog. It did not negotiate to impasse over the
effects of its closure decision; it did not negotiate at all.
The subject of severance pay as well as various other union
proposals such as transfer rights to the Respondent’s Texas
facility and protection regarding possible future resumption of
operations are mandatory subjects of bargaining and an element
in the “effect” of plant closure. Accordingly, the Respondent
has a First National Maintenance obligation to bargain and to
bargain in good faith. The fact that the Respondent has finan­
cial difficulties does not affect this requirement. The exchange
of communications and the meetings in which the Union re-
quested bargaining and offered proposals did not reach the level
that could be considered to be “meaningful negotiations” and
they did not satisfy the Respondent’s obligation to affirmatively
participate in “effects” bargaining. Here, the Respondent failed
to give timely notice of its plant closure decision and it merely
stonewalled or put off the Union’s request and, accordingly, I
conclude that its failure in this regard is a violation of Section
8(a)(1) and (5) of the Act, as alleged, see the Friedman’s Ex-
press case, supra.
It also is well established that as part of its duty to bargain in
good faith, an employer must comply with a union’s request for
information that will assist the union in fulfilling its responsi­
bilities as the employees’ statutory representative, NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967), and Detroit Edison
Co. v. NLRB, 440 U.S. 301, 303 (1979), including information
relevant to both contract administration and the processing of
grievances, see Public Service Electric & Gas Co., 323 NLRB
1182 (1997). Moreover, and an employer’s delay in providing
the requested information violates the Act. Bryant & Stratton,
321 NLRB 1007, 1015 (1996). Here, any information provided
was delayed until it became part of the information provided
for the trial in this proceeding. Contrary to the Respondent’s
contentions, the contract between the parties did not expire with
the closing of the plant, and the Employer had a clear duty to
bargain with the Union about post-closing unit work. More-
over, it is clear that the Union had a reasonable basis, based
upon post closing observations by members of the union at the
Respondent’s facility, to believe that unit work was still being
done. Accordingly, relevancy clearly is established, see Mabur
Energy Corp., 295 NLRB 149 (1989). Under these circum­
stances, I find that the Respondent is shown to have failed at all
times to fully satisfy its obligation to bargain in good faith by
any timely satisfaction of the Union’s information requests and,
accordingly, I conclude that the Respondent is shown to have
violated Section 8(a)(1) and (5) of the Act in this respect, as
alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America, and its Local
Union No. 1688, UAW is a labor organization within the mean­
ing of Section 2(5) of the Act.
3. At all times material union Local 1688 has been the ex­
clusive representative of the relevant unit for the purposes of
collective bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment.
4. By failing and refusing to give the Union an opportunity
to bargain collectively concerning the employer’s decision to
lay off all unit employees and to transfer unit work to nonunit
supervisors and by implementing its decision on July 2, 1998,
and thereafter the Respondent herein violated Section 8(a)(1)
and (5) of the Act.
5. By failing to engage in “effects” bargaining with the Un­
ion prior to and after closing its Hamilton, Ohio facilities, Re-
STEVENS INTERNATIONAL 151
spondent has engaged in and is engaging in an unfair labor
practice in violation of Section 8(a)(1) and (5) of the Act.
6. By refusing to timely furnish the Union with information
requested relevant to the Union’s collective-bargaining duties,
the Respondent failed to bargain collectively with the Union
and engaged in unfair labor practices in violation of Section
8(a)(1) and (5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent violated the Act by unilater­
ally assigning bargaining unit work to supervisors without bar-
gaining with the Union, it will be recommended that Respon­
dent make whole unit employees for any loss of earnings they
may have suffered because of the discrimination practiced
against them by payment to them of a sum of money equal to
that which they normally would have earned in accordance with
the method set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the Re­
tarded, 283 NLRB 1173 (1987).2
The Respondent also shall be required to bargain with the
Union over the effect of the closing of its Hamilton, Ohio
facilities and to furnish the Union with the information (re­
flected in GC Exh. 13) requested. In view of the Respondent’s
demonstrated proclivity to ignore its responsibilities under the
Act and to insure that it bargain in good faith, the terms of this
order “in any like or related manner” shall require the Respon­
dent to timely furnish any other information3 requested by the
Union relevant to bargaining on the issue of the “effects” of the
plant closure.
Under these circumstances, it is not considered necessary
that a broad order be issued.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
2 Under New Horizons, interest is computed at the “short-term Fed­
eral rate” for the underpayment of taxes as set out in the 1986 amend­
ment to 26 U.S.C. § 6621.
3 See Supervalu Inc. v. NLRB, 184 F.3d 949 (8th Cir. 1999), involv­
ing information relevant to WARN Act information.
4 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.
ORDER
The Respondent, Stevens International, Inc., Hamilton, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the Un­
ion as the exclusive representative of the employees in the bar-
gaining unit, by unilaterally transferring bargaining unit work
which had previously been done by unit employees, without
bargaining with the Union.
(b) Failing to bargain in good faith with the Union concern­
ing the effects of the closing of its Hamilton, Ohi, facilities, on
the employees in the bargaining unit.
(c) Failing and refusing to bargain in good faith with the
Union by refusing to furnish the Union with requested informa­
tion necessary and relevant to the Union’s performance of its
function as the exclusive bargaining representative of unit em­
ployees.
(d) In any like or related manner interfering with, restrain­
ing, or coercing employees in the exercise of the rights guaran­
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec­
tuate the policies of the Act.
(a) On request, make timely responses to information re-
quest by the Union, and on request bargain in good faith with
the Union as the exclusive bargaining agent of the appropriate
unit of its employees with respect to the assignment of unit
work involving plant closure functions and with respect to the
effects on its unit employees of its decision to cease operations
at its Hamilton, Ohio facilities and, on request, embody in a
signed agreement any understanding reached.
(b) Within 14 days from the date of this Order make whole
any unit employees who were deprived of the opportunity to
perform unit work during the closing down of the Hamilton,
Ohio facilities, for all losses incurred as a result of the unlawful
assignment of work, in the manner specified in the remedy
section.
(c) Within 14 days after service by the Region, mail to all
unit employees employed at its Hamilton, Ohio facilities on
June 30, 1998, copies of the attached notice marked “Appen­
dix,” on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa­
tive.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps Re­
spondent has taken to comply.