KLB Industries, Inc. d/b/a National Extrusion and Manufacturing Company, (2011)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

KLB Industries, Inc. d/b/a National Extrusion & Manufacturing Company and International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America. Cases 82013CA201337672 and 82013CA201337835

July 26, 2011

DECISION AND ORDER

BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES

The issues in this case turn on whether the Respondent was obligated to provide information requested by the Union during the parties2019 negotiations for a successor collective-bargaining agreement at the Respondent2019s facility in Bellefontaine, Ohio.¹ The judge found that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with requested information relevant to the Respondent2019s asserted need for wage concessions. He further found that the Respondent, having unlawfully failed to provide that information, violated Section 8(a)(5), (3), and (1) by locking out its employees, temporarily replacing them, and canceling their health insurance coverage, including their COBRA rights.²

¹ On January 30, 2009, Administrative Law Judge David I. Goldman issued the attached decision. The Respondent filed exceptions and a supporting brief and the Charging Party filed a cross-exception and a supporting brief. The General Counsel, Charging Party, and Respondent filed answering briefs, and the Charging Party filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

In accordance with our decision in Kentucky River Medical Center, 356 NLRB No. 8 (2010), the judge2019s recommended remedy is modified to require that backpay and other monetary awards shall be paid with interest compounded on a daily basis. Additionally, we shall modify the judge2019s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB No. 9 (2010). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice. Finally, we shall modify the judge2019s proposed notice to conform to the Board2019s standard remedial language.

² There are no exceptions to the judge2019s dismissal of the allegations that the Respondent violated Sec. 8(a)(5) and (1) by engaging in overall bad-faith bargaining or by failing to provide requested information regarding bonuses, and violated Sec. 8(d) by failing to give proper notice for terminating its contract with the Union. Nor are there exceptions to the judge2019s finding that the Respondent violated Sec. 8(a)(1) by calling the police to its facility in response to lawful picketing activity, or to the judge2019s denial of the General Counsel2019s motion to amend the complaint to allege additional violations of the Act.

In adopting the judge2019s findings, we do not rely on his citations to Walgreen Co., 352 NLRB 1188 (2008); Metropolitan Home Health Care, 353 NLRB 25 (2008); and Wilshire Plaza Hotel, 353 NLRB 304 (2008).

The Respondent argues principally that it was not required to furnish the requested information relevant to its asserted need for wage concessions, and thus that its lockout and related conduct were not unlawful. But even if it was required to provide that information, the Respondent further argues, the judge still erred by finding the lockout unlawful. In support of that latter argument, the Respondent first contends that the General Counsel did not allege that the lockout was tainted by the Respondent2019s refusal to provide the information, and thus that the finding violated its due process rights. Second, the Respondent argues that its refusal to provide that information did not taint the lockout in any event. After consideration of the judge2019s decision and the record in light of the exceptions and the briefs, we reject those arguments and adopt in full the reasoning and findings of the judge.³

The Refusal to Furnish Information

The Respondent entered negotiations seeking significant wage and benefit concessions. On October 3, 2007,⁴ about 2 weeks after bargaining began, the Respondent proposed a 12-percent reduction in wages over 3 years. Both before and after that date, the Respondent repeatedly sought to justify its demands by stating that concessions were necessary to make its facility more competitive. In particular, the Respondent asserted that it faced competition from Asia and that its production costs had increased while its production had diminished.

On October 4, the Union requested the following information that it stated was necessary to evaluate the truth of the Respondent2019s repeated assertion that it needed wage concessions to improve its competitive position:

1. A list of all current customers so that the Union may contact the customers to determine if any of them is contemplating purchasing products from other sources.

2. A copy of any and all quotes that the Company has provided, and whom these quotes have been issued to. Also, how many quotes have been awarded (or not awarded) in the past five (5) years.

3. Identify any and all outsourced work: (in the past 5 years) that had previously been done at this facility by the bargaining unit employees.

4. A list of all customers who have ceased buying from this facility during the last 5 years. The union needs

³ For the reasons stated by the judge, we adopt his finding that the Respondent did not violate the Act by failing to comply with the Union2019s October 4, 2007 request for information regarding the Respondent2019s proposed health insurance plan.

⁴ All dates herein are in 2007, unless otherwise stated.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

this information to test the Company2019s assertion that they are not competitive. The union intends on contacting the former customers to learn the reasons why they stopped purchasing.

5. A complete list of prices for products so that the union can compare the prices of competitors.

6. In order for the Union to determine whether the company2019s assertion of uncompetitiveness is based on price or other factors. Please provide market studies and/or marketing plans that would impact sales of products produced at of [sic] the KLB Industries, Bellefontaine, Ohio facility.

7. With the current Company proposal to reduce wages, please provide a complete calculation of the projected company savings over the next three years, including any projected overtime.

In response to that request, the Respondent refused to provide any of the information except for the amount of its anticipated wage savings, which it provided without the underlying calculations that the Union had also requested. In denying the remainder of the Union2019s request, the Respondent stated that the information was neither necessary nor relevant to the Union2019s representation of bargaining-unit employees, and that disclosure of information about customers would compromise the confidentiality of its contracts and jeopardize ongoing customer relationships.

We agree with the judge that the Respondent violated the Act by failing to supply the Union with nearly all of the requested information relevant to the claim of uncompetitiveness. As the judge emphasized, an employer2019s duty to bargain includes a duty to provide information that would enable the bargaining representative to assess the validity of claims the employer has made in contract negotiations. The General Counsel2019s burden to show the relevance of the requested information to subjects of bargaining is 201cnot exceptionally heavy201d; 201cthe Board uses a broad, discovery-type of standard in determining relevance in information requests.201d Caldwell Mfg. Co., 346 NLRB 1159, 1160 (2006) (citations omitted).

In Caldwell, for example, the employer consistently maintained during negotiations that certain bargaining concessions were necessary to improve the competitiveness of its facility. Id. at 1160. In response to those specific assertions, the union requested information regarding material costs, labor costs, manufacturing overhead, productivity calculations, and competitor data. Id. The Board found that the union was entitled to that information, explaining that the employer, 201cin the course of bar-

gaining, made the information relevant and created the obligation to provide the requested data.201d Id. As the judge here pointed out, the holding in Caldwell is consistent with the Supreme Court2019s observation in NLRB v. Truitt Mfg. Co., that, 201cif . . . an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy.201d 351 U.S. 149, 1522013153 (1956); see also A-1 Door & Building Solutions, 356 NLRB No. 76 (2011).⁵

That observation applies with equal force in this case. As in Caldwell, the Respondent premised its demand for substantial wage concessions on its asserted competitive disadvantage in the marketplace. Not surprisingly, the Union responded by requesting information needed to evaluate the accuracy of the Respondent2019s claims and to assist the Union in developing appropriate counterproposals. The Union sought information concerning the Respondent2019s current and former customers, job quotes, outsourcing, pricing structure, market studies, and competitors. In light of the bargaining preceding that request, we agree with the judge that the Respondent violated its obligation to bargain in good faith by categorically denying the request.⁶

Our dissenting colleague disagrees with the judge2019s finding for several reasons. None withstands scrutiny.

The dissent mistakenly asserts that our decision 201csubverts201d the...