Tocco Division of Park-Ohio Industries

National Labor Relations Board - Board Decisions

Jul 30, 1981

257 N.L.R.B. 413 (N.L.R.B. 1981)

TOCCO DIVISION OF PARK-OHIO INDUSTRIES
Tocco Division of Park-Ohio Industries, Inc. and In-
ternational Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, Local 91, UAW. Case 8-CA-12702
July 30, 1981
DECISION AND ORDER
On June 27, 1980, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief. Respondent
filed an answering brief to the General Counsel's
exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The complaint alleges, inter alia, that Respond-
ent violated Section 8(a)(1) and (5) by unilaterally
transferring work to its Boaz, Alabama, plant. The
record evidence described by the Administrative
Law Judge shows that the Union has represented
the production, maintenance, and service employ-
ees at Respondent's Tocco plant for 35 years. Be-
tween 1974 and 1976 Respondent conceived, con-
structed, and opened a plant at Boaz which had the
same manufacturing capacity as the Tocco plant.
The purpose of the Boaz plant was and is to manu-
facture the Tocco products at less cost. Following
this transfer of some manufacturing equipment
from Tocco to Boaz in 1976, the Union filed a
charge that the transfer of the machinery and trans-
former work to Boaz, without bargaining with the
Union, violated the Act.
During the parties' contract negotiations between
December 1976 and June 1977, Respondent submit-
ted nine separate lengthy and complete proposals.
Each proposal made reference to the Boaz plant
and the earlier settlement. In each proposal, Re-
spondent also maintained its right to transfer work
from Tocco to Boaz and invited the Union to make
any proposal it desired to restrict or limit Respond-
ent's asserted right. The Union made no such pro-
posal. On January 14, 1977, the Union did propose,
however, a severance pay clause. Respondent op-
posed severance pay until April 20 and on June 13
both parties agreed on a severance pay provision.'
On July 11, a new contract was agreed to and ex-
ecuted, and the strike, which had commenced on
'As reported by the Administrative Law Judge. the contract \t.as
never offered or admitted into evidence in this case. The severance pay
clause provides that in the event "the Company determines" to close the
Tocco plant or transfer a Tocco toperation. severance pay ill be pro-
vided
January 21 when the old contract expired, was
ended.
On August 25, 1977, the Company announced to
the Union that all transformers, transformer com-
ponents, and oscillators would be manufactured at
Boaz in the future. This announcement also stated
that future transfers of work were under considera-
tion but gave no specifics. At a point not specified
in the record, between the August 1977 meeting
and January 1979, Respondent informed the Union
that "contractor manufacturing" and a six-spindle
numerical control lathe would be transferred to
Boaz.
On January 30, 1979, the Company announced
the transfer of the water systems, work stations,
control stations, TOCCOtrols, and electrical con-
trol panel from Tocco to Boaz. Respondent ex-
plained that this transfer would involve the "relo-
cation" of approximately 25 employees at Tocco
over the ensuing 6 months. The Union requested
time to consider the transfer and a further meeting
on the entire subject was scheduled for February 8.
Due to the nonavailability of various participants
the February 8 meeting was not held.
Meanwhile, on February 27, the Union was noti-
fied that four employees were to be laid off the fol-
lowing day. This layoff was the topic of discussion
at the meeting held on March 1. At that meeting,
the Union claimed that the layoffs were premature
and that there should have been prior negotiations
or bargaining. The Respondent claimed that the
entire matter had been settled during the 1976-77
contract negotiations. The instant charge was filed
on March 21.
In his Decision (sec. II,C,I), the Administrative
Law Judge dismissed the 8(a)(l) and (5) allegations
arising from the transfer of the work to Boaz by
finding that:
The language of the severance pay clause,
the bargaining history, and the evidence as a
whole dictate my conclusion in this case that
the union waived its right to participate in or
bargain about any decision to transfer work to
Boaz and any resulting terminations or layoffs,
except as may be otherwise provided in the
contract. I simply feel that that matter is so
clearcut in this case that it deserves no further
discussion or attention in this Decision.
It is well settled that an employer has an obliga-
tion to bargain concerning a decision to relocate
unit work.2 The statute, rather than the contract,
gives the employees' bargaining representative a
right to be consulted concerning such unilateral
2.,murican .edle & .bv . tv Com(pan. el a.. 20) NI.RB 534 (1973.
257 NLRB No. 44
413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change affecting terms and conditions of employ-
ment. 3 A union may waive its statutory right to
bargain about such changes in terms and conditions
of employment. 4 The Board requires, however,
that the waiver not be lightly inferred but must be
"clear and unmistakable."5 Such waiver may be
found in express contract language or in unequivo-
cal extrinsic evidence bearing upon ambiguous con-
tractual language.6
Applying these principles here, we do not find
that the severance pay provision of the parties'
contract standing alone constitutes a clear and un-
mistakable waiver by the Union of its statutory
right to be consulted in advance about Respond-
ent's decision to transfer work to Boaz. The sever-
ance pay provision speaks only of the severance
pay to be provided in the event of the closure of
the Tocco plant or transfer of a Tocco operation.
The provision is at best equivocal, however, as to
the waiver issue before us. It contains no specific
reference to a right by Respondent to transfer
work to Boaz without prior notice or consultation
with the Union. 7
Nor do we find that the bargaining history estab-
lishes that the Union has waived its right to bar-
gain over the transfer of unit work. The entire
thrust of Respondent's bargaining proposals during
the 1977 negotiations was to notify the Union that
Respondent did not recognize any restrictions on
its freedom to transfer work and to invite the
Union to submit proposals to restrict this asserted
freedom. But there is no showing on this record
that the Union clearly relinquished its statutory
right prior to the 1977 negotiations. Absent such a
finding, the thrust of Respondent's proposals,
which ignore the Union's statutory right, represent-
ed an attempt by Respondent to shift the burden
: McDoninell Douglas Corporation, 244 NLRB 881 (1976). See also
Brown Company, erc.. 243 NL.RB 769, 769 77(1 (1979).
4Sece e g. Consolidated Foods Corporation, 183 NLRB 832 (1970).
r Keller-Crescent Company a Division of Molser. 217 NLRB 685 (1975);
and ew York Mirror, Division of Hlearst Corporation, 151 NLRB 834
(1965).
See also he Timken Roller Bearing Co. v NL.R.B.. 325 F 2d 746. 751
(6th Cir. 1963), cert. denied 376 U.S. 971 (1964).
International Union of Operating Engineers. Local 18 (Davis-McKee,
Inc.), 238 NLRB 652 (1978)
7 That a clear and unmistakable waiver is not present here is plainly
shown by comparing the severance pay provision with the explicit con-
tract language in Consolidated I;ods. supra a case relied on by Respond-
ent in its brief to the Board. There, the contract afforded the employer
"the exclusive right" to "change, modify or cease its operation. process-
es, or production. in its discretion . " as well as provisions that "the
Employer shall be the sole judge of all factors involved including
location of business and personnel." The instant case contains no such ex-
plicit language.
In its brief to the Board. Respondent also relied on Radioear Corpora-
tion, 214 NLRB 362 (1974), to support its waiver contenltion. We note
that the majority there relied heavily on a zipper clause in the parties'
contract to support the waiver finding. No such claim hased on a zipper
clause is present here Thlt aside. Chairman Fanning and Member Jen-
kins continue to adhere to their dissent in Radioeur
for obtaining contract language dealing with trans-
fer of unit work to the Union.8 It was not, howev-
er, incumbent on the Union to obtain contract lan-
guage. Instead, it was incumbent on Respondent, if
it sought to limit or restrict the Union's statutory
right, to obtain the waiver. 9 That Respondent
never even submitted a proposal which sought to
limit or restrict the Union's statutory right under-
cuts Respondent's reliance on the bargaining histo-
ry to establish a waiver.
Finally, we find no merit in Respondent's con-
tention that the Union's acquiescence in earlier
transfers, alone or with the severance pay provi-
sion and bargaining history, establishes a union
waiver. In both instances where Respondent an-
nounced work transfers that affected directly the
employee complement in the bargaining unit the
Union questioned Respondent's action. t Thus, the
Union protested the first transfer of unit work to
Boaz in 1976 and filed a charge with the Board.
And the Union requested a meeting on the instant
transfer when it learned about it on January 30,
1979. Although the Employer agreed to meet with
the Union, it carried out the transfer before the
meeting took place."
In sum, we do not find that the Union waived its
right to bargain regarding the transfer of unit work
either in express contract language or by unequivo-
cal extrinsic evidence bearing upon ambiguous con-
tract language. Accordingly, we conclude that Re-
spondent's failure to bargain as to the January 1979
' The Board has held that unilateral removal of bargaining unit work
during a contract term is the type of contract modification proscribed by
the Act. Under Sec. 8(d) of the Act, a party to the contract cannot be
compelled to bargain about such a modification. See Brown Company.
supr a.
9 We also note that there is no evidence that the Union took the bait
dangled by Respondent's bargaining stance. i.e.. the Union did not submit
any proposal to limit or restrict Respondent's asserted right. Arguably.
the absence of any such proposal by the Union is evidence that the Union
did not recognize the right asserted by Respondent during negotiations.
Compare Amear Division. ACF Industries, Incorporated, 247 NLRB 1056
(1980). And, of course, the Union's filing of the charge in 1976. on the
first occasion that Respondent moved unit work to Boaz and immediately
preceding the 1977 negotiations, comports with the Union's view that
Respondent does not ejoy the asserted freedom to transfer unit work
without bargaining with the Union.
'° By contrast, the record here does not indicate that any employee
layoffs or transfers were aallounced, or resulted from, the other two
equipment transfers between August 1977 and January 1979.
We note that the prepared statement by Respondent which was read to
the Union in August 1977 specifically stated that the Company does not
wish to discontinue any current Cleveland operation and has no intention
to do so. Further, it stated that if additional decisions are made on this
matter, Respondent will inform the Union.
The record fails to establish the precise timing. scope, or effect, if any.
on unit employees of the two changes that occurred after August 1977
but before January 1979
" Cmrnpare International Shoe Company. 151 NLRB 693 (1965), where
the pattern of acquiescence occurred prior to the disputed negotiations
and served as background to explain the union's unsuccessful attempt to
obtain language restricting the employer's right to move during the nego-
tia lions.
414
TOCCO DIVISION OF PARK-OHIO INDUSTRIES
decision to transfer unit work to its Boaz plant
constituted a violation of Section 8(a)(5) and (1).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of Respondent con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All production, maintenance and service em-
ployees and timekeepers of the Ohio Crank-
shaft and Camshaft Division and the Tocco
Division of Park-Ohio Industries, Inc., exclud-
ing office employees, plant protection employ-
ees, salaried employees, all group leaders, fore-
men, foreladies, and all other supervisory em-
ployees, guards and professional employees as
defined in the Act.
4. By transferring to its Boaz, Alabama, plant
work formerly performed by employees in the
above-described unit, without providing the Union
with an opportunity to bargain concerning the de-
cision to locate such unit work, which transfer re-
sulted in the layoff of unit employees, Respondent
has violated Section 8(a)(5) and (1) of the Act.
5. Such unfair labor practices are unfair labor
practices affecting commerce within the meaning
of the Act.
THE REMEDY
We have found that Respondent violated Section
8(a)(5) and (1) by unilaterally transferring unit
work to another of its plants. Hence we shall order
Respondent to cease and desist from unilaterally
transferring unit work or otherwise making unilat-
eral changes in the employees' terms and condi-
tions of employment without providing an opportu-
nity to bargain to the employees' designated bar-
gaining agent. In order to insure that there is genu-
ine bargaining over the decision to transfer unit
work to another plant, we shall order Respondent
to restore the status quo ante by reinstituting the
water systems, work stations, control stations,
TOCCOtrols, and electrical control panel at its
Tocco-Cleveland plant and to fulfill its statutory
duty to bargain. There is no evidence that this
remedy creates an undue hardship on Respondent.
Respondent is still in existence and presently per-
forms many functions at the same plant facility it
did in February 1979.
The loss of employment of unit employees here
stems directly from Respondent's unlawful action
in failing to meet its bargaining obligation. We find
that a meaningful bargaining order can be fash-
ioned only by directing Respondent to offer unit
employees immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions without prejudice to
their seniority or other rights and privileges and to
make them whole for any loss of earnings suffered
by reason of their unlawful termination, by pay-
ment to them of a sum of money equal to that
which normally would have been earned from the
date of layoff to the date of Respondent's offer of
reinstatement, less net earnings during such period,
with backpay computed on a quarterly basis, with
interest, in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). 12
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Tocco Division of Park-Ohio Industries, Inc.,
Cleveland, Ohio, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, Local 91, UAW,
as to the decision to transfer unit work and by uni-
laterally transferring unit work to its Boaz, Ala-
bama, plant where such transfer has a substantial,
adverse effect on unit employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action:
(a) Upon request by the Union, bargain collec-
tively with the Union with respect to the decision
to transfer the water systems, work stations, con-
trol stations, TOCCOtrols, and electrical control
panel from Tocco to Boaz, Alabama.
(b) Reinstate at the Cleveland-Tocco plant the
work previously performed by unit employees rep-
resented by the Union and make whole these em-
ployees in the manner set forth in the section above
entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
2
See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, all payroll records, social security payment re-
cords, timecards, 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 place of business at Cleveland,
Ohio, copies of the attached notice marked "Ap-
pendix."'3 Copies of said notice, on forms provided
by the Regional Director for Region 8, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not found herein.
'3 In the event that 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 Relations Board" shall read "Posted Pursu-
ant to Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain with the
Union as to the decision to transfer unit work,
or unilaterally transfer unit work without bar-
gaining with the Union, or any other union the
employees may select as their exclusive bar-
gaining representative.
WE WILL NOT in any like or related manner
interfere with the efforts of the Union to bar-
gain collectively on behalf of the employees in
the appropriate unit described below:
All production, maintenance and service em-
ployees and timekeepers of the Ohio Crank-
shaft and Camshaft Division and the Tocco
Division of Park-Ohio Industries, Inc., ex-
cluding office employees, plant protection
employees, salaried employees, all group
leaders, foremen, foreladies, and all other su-
pervisory employees, guards and profession-
al employees as defined in the Act.
WE WILL, upon request by the Union, bar-
gain collectively with it with respect to the
decision to transfer the water systems, work
stations, control stations, TOCCOtrols, and
electrical control panel from Tocco Division
to Boaz, Alabama, and, if an understanding is
reached thereon, reduce to writing and sign
any agreement reached as a result of such bar-
gaining.
WE WILL reinstate at Tocco Division of
Park-Ohio Industries, Inc., the work previous-
ly performed by unit employees represented
by the Union, and offer to these employees im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and make them whole for any loss
of pay suffered by them, with interest.
Tocco DIVISION OF PARK-OHIO IN-
DUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge:
This case was heard by me in Cleveland, Ohio, on No-
vember 7, 8, and 9, 1979.' The charge was filed by the
Union on March 21 and the complaint was issued May
30 by the Regional Director for Region 8 of the National
Labor Relations Board (the Board), on behalf of the
Board's General Counsel. The complaint alleges that the
Company unilaterally transferred work to its Boaz, Ala-
bama, plant and subcontracted out other work resulting
in the layoff of four employees without first bargaining
with the Union, in violation of Section 8(a)(l) and (5) of
the National Labor Relations Act (the Act).2 The com-
plaint further alleges that the Company improperly re-
All dates hereafter are in 1979 unless otherwise indicated.
2 The pertinent parts of the Act provide as follows:
Sec. . (a) It shall be an unfair labor practice for an employer-
(I) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7 ....
Sec. 7. Employees shall have the right ... to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
and other mutual aid or protection ....
* . . . S
Sec. 8. (a)(5) to refuse to bargain collectively with the representa-
tives of his employees . . .
416
TOCCO DIVISION OF PARK-OHIO INDUSTRIES
fused to furnish the Union with information regarding
the transfer of work and subcontracting.
Upon the entire record including my observation of
the demeanor of the witnesses, 3 and after due considera-
tion of the briefs filed herein by the General Counsel and
Respondent Company, I make the following:
The pleadings and admissions herein establish the fol-
lowing jurisdictional facts. Respondent Company is and
has been at all times material herein a corporation duly
organized under and existing by virtue of the laws of the
State of Delaware and maintains its Tocco Division, a
manufacturing facility or plant, in Cleveland, Ohio, the
sole facility directly involved herein, and where it is en-
gaged primarily in the production of heat induction
units. Annually, in the course and conduct of its business
operations, the Company ships products valued in excess
of $50,000 from its Tocco facility directly to points lo-
cated outside the State of Ohio. Thus, and as admitted, I
find and conclude that Respondent Company is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Also as admitted, I find that the Charging Union is
now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the
Act.
A. Background4
The Union has represented the Company's production,
maintenance, and service employees for some 35 years.5
In 1974 the Company conceived the Boaz, Alabama,
plant and in mid-1975 construction commenced. Boaz
has the same manufacturing capabilities as Tocco and its
original and continuing purpose was and is to manufac-
ture the Tocco products more cheaply. In 1976 the Com-
' The facts found herein are based on the record as a whole and upon
my observation of the witnesses. The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teaching of N.L.R.B. v. Walton Manufacturing & and Lo-
ganvile Pants Company, 369 U.S. 404, 408 (1962). As to those testifying in
contradiction to the findings herein, their testimony has been discredited
either as having been in conflict with the testimony of credible witnesses
or because it was in and of itself incredible and unworthy of belief. All
testimony has been reviewed and weighed in light of the entire record.
' A complete summary of the testimony of all the witnesses will not
appear in this Decision, although all testimony has been considered. Ref-
erence will be made to individual portions of testimony where appropri-
ate. The General Counsel called four witnesses as follows: employee and
Union President Joseph Imars; Union International Service Representa-
tive Horace Browner; employee and Chief Tocco Plant Committeeman
Dennis Szulinski; and employee and Union Vice President Edwin L.
Hoag. The Company called Personnel Director Ben M. Kozman, Tocco
Materials Manager Robert Rossley, and Attorney John J. Adams.
' The alleged appropriate unit for the purposes of collective bargaining
is set out in par. 5 of the complaint, is admitted in the Company's answer,
and I so find. It will not be completely set out here but will appear later
herein in the section entitled "Conclusions of Law." In addition to the
Tocco Division plant (95 employees) the unit also includes the employees
of the Company's crankshaft and camshaft division, another separate and
larger plant (850 employees) also located in Cleveland.
pany transferred some work to Boaz, including several
pieces of manufacturing equipment from Tocco, which
resulted in the filing of a charge by the Union and the
subsequent issuance of a complaint on September 3, 1976
(Case 8-CA-10328). The existing contract between the
Company and the Union was due to expire January 21,
1977, and negotiations began in mid-December 1976. The
then existing case was eventually settled during these ne-
gotiations and on March 21, 1977.6 In the meantime with
the expiration of the contract on January 21, 1977, the
employees struck, the parties went to Federal mediation,
and finally on July 11 a new contract was agreed to, ex-
ecuted, and the strike was ended. 7
During the contract negotiations and between Decem-
ber 17, 1976, and June 13, 1977, some nine separate,
complete, and lengthy typewritten proposals were sub-
mitted to the Union for consideration. In each of these
proposals the Company made reference to the Boaz
plant, the earlier settlement, maintained its right to use
and transfer work from Tocco to Boaz, and invited the
Union to make any proposal it desired which would re-
strict the Company's freedom from transferring work to
Boaz or otherwise limiting its use. The Union never re-
sponded nor commented but did, on January 14, 1977,
interject into the negotiations a severance pay clause,
which had never been discussed before. The Company
opposed severance pay up until April 20 and on June 13
both parties agreed on a severance pay provision, which
essentially settled the entire contract dispute. On August
25, 1977, the Company announced to the Union that it
intended work transfers to Boaz and some work was in
fact transferred on several occasions without union ob-
jection.
I find and conclude without doubt that the issue of
Boaz plant transfers was "on the table" during the above
negotiations and the matter was resolved with full free-
dom in the Company, but with severance pay should lay-
offs or terminations occur.
B. Events Surrounding the Charge and Complaint in
This Case
On January 8, 1979, employee and Union President
Imars wrote Personnel Director Kozman about the Com-
pany's policy of "sub-contracting," requesting the cus-
tomer jobs that were being "farmed out," the names of
the subcontractors, the dates the work was contracted
out, and the number of hours of work involved. On Jan-
uary 9 Union Representative Browner also wrote
Kozman expressing concern about "problems regarding
loss of work at the Tocco plant," and requesting a meet-
ing. Kozman replied on January 17, agreeing to a meet-
ing after the Company had responded to Imars' January
9 letter. On January 19, Works Manager John Watson
replied to Imars' information request of January 9, fur-
nishing all of the requested information except for specif-
ic dates, which Watson stated were "not immediately
I The settlement involved approximately S15.000 in backpay to seven
employees, and the settlement agreement contained a "non-admission"
clause in favor of the Company.
' For reasons unknown to me. the contract was never offered or ad-
mitted into evidence in the case.
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available," and the actual names of the subcontractors,
which Watson advised would not be "good business
practice." The names and specific dates were never for-
warded, although the record itself does not reflect any
renewed request or dissatisfaction with the initial re-
sponse. On January 30 at a meeting at the plant of the
union committee members and Union Representative
Browner, the Company announced further future trans-
fers of work to Boaz which would involve the "reloca-
tion" of approximately 25 employees at Tocco over the
next 6 months." The Union made no immediate response
to the announcement, requested time to consider it, and a
further meeting regarding the entire subject was tenta-
tively set for February 8. Due to the nonavailability of
various participants the February 8 meeting was not held
and the meeting finally occurred on March 1. On Febru-
ary 27 Chief Plant Committeeman Dennis Szulinski was
notified that four employees were to be laid off the fol-
lowing day and in fact on February 28 the first four lay-
offs occurred, which was the major topic of discussion at
the March I meeting, the Union claiming that the layoffs
were premature and that there should have been prior
negotiation or bargaining, and the Company claiming
that the entire matter had long since been settled during
and in the 1976-77 contract negotiations. The charge in
this case was soon thereafter filed (March 21).
C. Evaluating Law and Evidence
1. The work transfer
The language of the severance pay clause,9 the bar-
gaining history, and the evidence as a whole dictate my
conclusion in this case that the Union waived its right to
participate in or bargain about any decision to transfer
work to Boaz and any resulting terminations or layoffs,
except as may be otherwise provided in the contract. ' I
simply feel that that matter is so clear cut in this case
that it deserves no further discussion or attention in this
Decision.
2. Subcontracting
Although the contracting out of work done, or which
may be done, by employees in a bargaining unit is gener-
ally considered to be a mandatory subject of bargain-
ing, I find that such is not the case here. The evidence
reflects that for many years approximately 10 percent of
Tocco's work was contracted out. This involved a small
portion of almost every contract from a major customer
involving $50,000 or more. The Company's motivation
B The announcement was read from a prepared statement which was
admitted into evidence. The statement makes reference to the Company's
warning of August 25. 1977, concerning the uncertainty of the Tocco
plant and work transfers to Boaz and gives other reasons for the transfer.
' The clause provides that, in the event "the Company determines" to
close the Tocco plant or transfer a Tocco operation, severance pay will
be provided.
'o See International Shoe Company, 151 NLRB 693 (1965); Consolidated
Foods Corporation, 183 NLRB 832 (1970); Radioear Corporation, 214
NLRB 362 (1974); and McDonnell Douglas Corporation, 224 NLRB 881
(1976). Such things as recall rights and seniority are of course not encom-
passed in this conclusion.
" Fibreboard Paper Products Corporation, 138 NLRB 550 (1962), enfd.
322 F.2d 411 (D.C. Cir. 1963). affg. 379 U.S. 203 (1964).
was always and solely economic, that is, it either lacked
the ability to produce the item or product, or it was nec-
essary to meet a delivery schedule. The record lacks any
demonstrable evidence of an adverse impact on unit em-
ployees, and the Union had in the past the opportunity
to bargain about changes in existing subcontracting prac-
tices at general negotiating sessions. 2 I find that the
Company did not violate its statutory bargaining obliga-
tion by failing to invite union participation in its subcon-
tracting decisions. 3
3. The information request
In early January the Union requested information re-
garding contracting. The Company's January 19 reply
was, I find, complete and informative, but did exclude
the specific subcontract dates and the names of the sub-
contractor firms. Relative to the dates, the number of
hours during the previous -year period was listed
(8,200), the Company adding that "[e]very major order
has at least several sub-contracts over a period of time
with delivery scheduled for different appropriate times
. . . [s]pecific information on each and every order is not
immediately available." Regarding the firm or company
names, refusal was based on "good business practice, in-
cluding competitive considerations," although the Com-
pany explained that it had used three firms that it had
been doing business with "anywhere from three to over
twenty years." Other than the Union's initial request and
the Company's reply, there is no evidence that the
matter was further discussed or pursued at the March 1
meeting or otherwise until the issuance of the complaint.
I thus find and conclude that there was substantial and
adequate compliance with the information request.
Upon the foregoing findings of fact and initial conclu-
sions, and upon the entire record, I hereby make the
following:
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent Company
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All production, maintenance and service employees
and timekeepers of the Ohio crankshaft and Cam-
shaft Division and the Tocco Division of Park-Ohio
Industries, Inc., excluding office employees, plant
protection employees, salaried employees, all group
12 The subject was specifically addressed during the 1974 negotiations.
Over the years, the Union had filed numerous grievances regarding the
subject apparently none of which had gone to arbitration. Further, re-
duced emphasis was placed on the matter of subcontracting in this case
by the General Counsel, whose major thrust was aimed at the work
transfers to Boaz.
'3 Westinghouse Electric Corporation (Mansfield Plant),. 150 NLRB 1574
(1965).
418
TOCCO DIVISION OF PARK-OHIO INDUSTRIES 419
leaders, foremen, foreladies, and all other supervi- the Company were not guilty of unlawfully refusing to
sory employees, guards and professional employees bargain with the Union regarding said actions.
as defined in the Act. 5. The Company in this case has not refused to tender
relevant information to the Union in violation of Section
4. The Company's unilateral work transfers, subcon- 8(a)(5) and (1) of the Act.
tracting, and layoff of employees in this case were not in 6. The Company in this case has not otherwise violat-
violation of Section 8(a)(5) and (1) of the Act, and thus ed the Act.
[Recommended Order for dismissal omitted from pub-
lication.]