Kohler Co.

National Labor Relations Board - Board Decisions

Jan 27, 1989

292 N.L.R.B. 716 (N.L.R.B. 1989)

716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kohler Company and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of Amer ica, UAW Local 833.
Cases 30-CA-8876 and 30-CA-8949
January 27, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On June 8, 1988, Administrative Law Judge
Richard A. Scully issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs, and the Respondent
filed an answering brief to the General Counsel's
exceptions to the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
The General Counsel excepts to the judge's find-
ings and conclusions that the Respondent did not
violate Section 8(a)(5) and (1) of the Act by ex-
cluding the material control clerks in the generator
division from the bargaining unit. The General
Counsel claims that the material control clerks in
the generator division perform duties identical to
those bargaining unit employees--the cycle
counters in the engine and brass divisions and the
senior record clerks in the generator division. We
find that the record supports the judge's dismissal
of this allegation.
The material control clerks in the generator divi-
sion administer a structured. cycle count program,
which includes counting the inventory, entering
the data in a personal computer, running the entire
computer program, and making any adjustments in
the computer on-hand balances that the program
shows are necessary. The cycle counters in the
engine and brass divisions do not administer a
structured cycle count program, but simply phys-
ically count the inventory in their division and
report their findings to administrative, nonbargain-
ing unit employees for processing. Thus, as the
judge found, the material control clerks perform
administrative functions not performed by the
cycle counters in the engine and brass divisions.
' We note that the General Counsel has not filed exceptions to the
judge's dismissal of the allegations concerning the Respondent's rescind-
ing and reducing the 4-percent rate increase previously given certain
foundry employees, and the Respondent's alteration of the parties' con-
tractual grievance procedure for the processing and settlement of rate ad-
justment and backpay grievances in its brass division.
Only nonbargaining unit employees operate per-
sonal computers. Although the material control
clerks enter inventory data into personal comput-
ers, the senior record clerks access the Tandem
computer base. Further, the material control clerks
run the entire computer program, including verify-
ing the inventory count and making recommenda-
tions to correct any discrepancies, while the senior
record clerks essentially enter data into the
Tandem computer data base.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Kohler
Company, Kohler, Wisconsin, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
Gerald McKinney, Esq., for the General Counsel.
Robert W. Mulcahy, Esq., of Milwaukee, Wisconsin, for
the Respondent.
George F. Graf Esq., of Milwaukee, Wisconsin, for the
Charging Party.
DECISION
RICHARD A. SCULLY, Administrative Law Judge. On
charges ' filed by International Union , United Automo-
bile, Aerospace and Agricultural Implement Workers of
America, UAW Local 833 (the Union), the Regional Di-
rector for Region 30 of the National Labor Relations
Board (the Board) issued a consolidated complaint
against Kohler Company on October 31, 1985. The com-
plaint , as amended, alleges that the Respondent has com-
mitted violations of Sections 8(a)(1), (3), (4), and (5) and
8(d) of the National Labor Relations Act (the Act). The
Respondent filed a timely answer denying that it has
committed any violation of the Act. A hearing was held
on December 19 and 20, 1985, February 4-7, and March
4- , 1986, at which the parties were given a full opportu-
nity to participate , to examine and cross-examine wit-
nesses, and to present other evidence and argument.
Briefs submitted on behalf of the parties have been given
due consideration . On the entire record and from my ob-
servation of the demeanor of the witnesses , I make the
following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a Wisconsin
corporation with offices and facilities located in Kohler,
Wisconsin, engaged in the manufacture and nonretail sale
of plumbing products, engines, and generators. During
the calendar year 1984, a representative period, the Re-
' The original charge in Case 30-CA-8876 was filed on July 26, 1985,
and amended charges were filed on September 30 and October 29, 1985.
The original charge in Case 30-CA-8949 was filed on September 30,
1985, and an amended charge was filed on October 29, 1985.
292 NLRB No. 70
KOHLER CO
spondent, in the course and conduct of its business sold
and shipped from its facility in Kohler, Wisconsin prod
ucts goods, and materials valued in excess of $50 000 di
rectly to points located outside of the State of Wisconsin
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
At all times material, the Union was a labor organiza
tion within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Maintenance Stores Stock Control Clerk Issue
In January 1983, the Respondent reclassified a vacant
position of stock control clerk in its maintenance stores
department which was a position within the bargaining
unit, to the nonbargaining unit office administrative
position of maintenance order clerk and filled it with an
employee on layoff This was done unilaterally by the
Respondent , without first bargaining with the Union
The Union filed a charge a complaint issued , and the
Board ultimately determined that the Respondent had
violated Section 8(a)(5) of the Act by unilaterally re
moving the stock clerk position from the bargaining
unit 2 The Respondent was ordered , inter alia , to cease
and desist from altering the composition of the bargain
ing unit by reclassifying a position to remove it from the
bargaining unit while the incumbent continues to do bar
gaining unit work, without first negotiating with the
Union and to cease giving effect to the reclassification
of the position of maintenance stores stock control clerk
from the bargaining unit unless and until Respondent has
bargained in good faith with the Union concerning the
reclassification Pursuant to that Order , on April 29
1985 the Respondent restored the position to the bar
gaining unit by reclassifying it to the union eligible post
tion of stock control clerk The job was posted and
awarded to the incumbent Randall Clausing On May 6,
the Respondent informed the Union that it was going to
again reclassify Clausing s position to the nonbargaining
unit position of maintenance order clerk and did so on
May 13
The General Counsel contends that the Respondent
has again violated Sections 8(a)(5) and 8(d) of the Act by
unilaterally removing the same position from the bar
gaining unit The Respondent denies this and argues that
it informed the Union of its intention to reclassify the po
sition , that it repeatedly requested that the Union bargain
about the reclassification that the Union steadfastly re
fused to bargain with it and that as a result of the
Union s refusal it could lawfully reclassify the position
Although the Respondent in the instant case sought to
introduce evidence that its action in reclassifying the po
sition was justified by the fact that the duties of the post
tion had changed to such an extent that it was more
properly an administrative job than a union eligible job
this evidence was essentially the same as it had presented
2 Kohler Co 273 NLRB 1580 (1983) (Kohler I)
717
in Kohler I In that case it was found that the reclassifica
tion was a unilateral change with no discernible eco
nomic foundation and that the only cause for the
change must have been to remove the position from
union protection In the absence of any significant dif
ferent facts in support of the Respondents similar action
in reclassifying this position in May 1985, I necessarily
conclude that there were no compelling circumstances
which would justify the Respondents acting unilaterally
The Respondent also contends that this issue is moot
because the collective bargaining agreement executed by
the Respondent and the Union on April 27 1984, specifi
cally excludes from the bargaining unit order clerks in
the maintenance division therefore the Union bar
gained away the Maintenance Order Clerk position in
the contract I do not agree There is no evidence that
the negotiations leading to the agreement of April 27
1984, specifically dealt with the position in question The
reclassification of Clausing s position was at that time the
subject of pending litigation in Kohler I, throughout
which the Union maintained that Clausing s position was
properly that of stock clerk and union eligible, not
that of order clerk and administrative, a position the
Board upheld in Kohler I Also, long after the contract
went into effect, the Respondent restored Clausing s job
to the bargaining unit on April 27 1985, thus recognizing
it as the position of stock clerk and union eligible
under the contract
Unlike the situation in Kohler I the Respondent con
tends that its reclassification of Clausing s position in
May 1985 was not unilateral , but was done only after
giving the Union notice and the opportunity to bargain,
which the Union refused By letter dated May 22 1984
the Respondent requested that the Union bargain regard
ing reclassification of the maintenance order clerk The
Union declined this request by letter dated May 31 on
the ground that the proper time to bargain about the
matter would be during bargaining prior to the expira
tion of the then current collective bargaining agreement
The Respondent informed the Union by letter dated June
14 1984 that it considered the Union to have waived its
rights to bargain over the issue By letter dated March
26 1985 the Respondent again requested that the Union
bargain about the reclassification and the Union declined
by letter dated April 18 1985 As noted above on April
29, 1985 the Respondent reclassified Clausing s position
to a union eligible position in order to comply with the
Board's Order in Kohler I A week later the Respondent
by letter of May 6 informed the Union that because it
had rejected the Respondents requests to bargain over
reclassifying the position the Respondent considered the
matter to be at impasse and that it would reclassify the
position out of the bargaining unit in the near future The
Respondent did reclassify Clausing s position from union
eligible stock order clerk to administrative maintenance
order clerk
The Respondent contends that the only obligation it
was under regarding reclassifying the position was to
bargain with the Union before doing so and that once
the Union refused its requests for bargaining it was free
to reclassify the position The Respondents argument ig
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nores the fact that the parties had executed a collective-
bargaining agreement , effective from April 27, 1984, until
October 1 , 1986, This agreement was in effect before
May 22 , 1984, when the Respondent first requested that
the Union bargain with it about reclassification . At that
point , the Union was under no obligation to bargain
during midterm of the agreement and the Respondent's
unilateral reclassification of the position , which was cov-
ered by the agreement was in derogation of its bargain-
ing obligation under Section 8(d) and a violation of Sec-
tion 8(a)(5) of the Act.3
B. Lavatory Grinding Grievance 4154
1. Alleged 8 (a)(3) violation
The complaint alleged that the Respondent violated
Section 8(a)(3) of the Act by rescinding a 4-percent in-
crease in the incentive rate paid to employees doing
work on a particular style of lavatory and refusing to
give them backpay as it had agreed to do in settlement
of a rate grievance and that it did this in retaliation for
their having engaged in protected activity . The griev-
ance in question , No. 4154 , filed on October 31, 1983, al-
leged that after a change in the method of chipping and
reaming the lavatory, the applicable rate was inadequate
for the workers to maintain earnings. This grievance
eventually reached the fourth step of the grievance pro-
cedure. The facts surrounding the alleged settlement of
this grievance are far from clear . There is documentary
evidence (1) that Chief Steward Darryl Harmelink, on
behalf of the Union, and Industrial Engineering Supervi-
sor Frank Fialkowski, on behalf of the Company, signed
a memorandum , dated March 27, 1985, stating that in
settlement of the grievance the Company had given a 4-
percent concession on the rate and (2 ) that a new "rate
sheet" reflecting a 4-percent increase was prepared,
dated April 1, 1985, which indicated that the new rate
was effective January 21, 1985. However , neither Har-
melink nor Fialkowski gave any testimony as to how this
settlement came about. Union President Robert Lettre
testified about a "verbal agreement" on January 21, 1985,
but he was not directly involved and the source of his
information was not identified.
Lettre testified that he and Harmelink met with Fial-
kowski on April 12, 1985, in the latter's office, to resolve
the matter of payment of the backpay due pursuant to
the settlement of the grievance, something they had been
"pushing" for prior to that date. When they asked Fial-
kowski about it, he responded that his superior, Director
of Manufacturing Anthony Bocchini, would not approve
backpay and had told him to take back the 4-percent in-
crease. According to Lettre, Fialkowski said Bocchini
did this because the Union was "pushing for backpay."
Harmelink gave similar testimony about this meeting
with Fialkowski and the reason Fialkowski gave them
for the settlement being rejected.
Fialkowski testified that he met with only Harmelink
on April 12 and told him that the tentative settlements
on this and another grievance he had made with Harme-
link had been rejected by Bocchini because they exceed-
8 C & S Industries, 158 NLRB 454, 457 (1966).
ed the contractual maintenance of earnings levels. Fial-
kowski told Harmelink that he lacked authority to make
such concessions and that they would have to be re-
moved. Anthony Bocchini testified that when he learned
of the proposal to settle the grievance with a 4-percent
concession he told Fialkowski that the concession was
not necessary, that Fialhowski did not have the authority
to grant it, that he should rescind it, and that if there was
to be any increase in the maintenance of income level it
should be done at contract time. The Company's vice
president of human resources, Kenneth Conger, who has
among his duties responsibility for collective -bargaining
matters , credibly testified that on March 25, 1985, Har-
melink telephoned and told him that he had an agree-
ment with Fialkowski to settle the grievance with a 4-
percent adjustment , but that Bocchini would not agree to
the backpay involved. Conger asked why and Harmelink
said he did not know. Conger said that he would find
out and on March 27 sent Bocchini a memorandum in-
quiring about the matter. Harmelink and Lettre claimed
they had no knowledge of Bocchini's opposition to the
4-percent settlement before their meeting with Fial-
kowski. Harmelink said he might have called Conger
about the matter but could not recall doing so.
The 4-percent increase was rescinded, effective April
15, 1985, the first workday after Fialkowski informed the
Union that it would be done. On April 18, Lettre sent a
letter to Conger protesting the Company's action. The
letter refers to the agreement to increase the rate being
"reversed by Ken Conger and Tony Bocchini," but
makes no reference to it being done because the Union
was pushing for backpay. Conger responded in a letter
dated April 22, in which he stated that the tentative set-
tlement had not been approved by the company officials
with the authority to do so. Lettre wrote back to Conger
on May 20 complaining about the Company's actions and
arguing that the settlement was reasonable and that the
agreement should be honored.
The evidence fails to establish exactly when Fial-
kowski and Harmelink reached agreement on the 4-per-
cent increase or how it came about. There is no explana-
tion why Fialkowski signed the settlement agreement on
March 27, 2 days after Harmelink had called Conger and
told him Bocchini would not approve the backpay.
There is no explanation as to why, if the change giving
rise to the grievance predated October 31, 1983, the set-
tlement provided for backpay only from January 21,
1985.4
The allegation that the Respondent violated Section
8(a)(3) in rejecting the settlement is premised on the fact
that it was done in retaliation because the Union was
"pushing for backpay." I find that the General Counsel
has failed to establish by a preponderance of the credible
evidence that this was the reason or that protected con-
duct was in any way a motivating factor in the Respond-
ent's decision and, therefore, has not made out a prima
facie case under Wright line.5 There is no evidence that
* Conger's memorandum dated March 27, 1985 , states the company
policy that when a rate is adjusted prospectively the company normally
"make[s] the assumption that it should have been paid at that level from
the time of the grievance and that backpay is therefore due."
5 251 NLRB 1083, 1089 (1980).
KOHLER CO
Bocchini , who made the decision on the Company's
behalf, had been 'pushed " by the Union on the matter
His credible testimony established that the reason he re
jected the settlement was that he felt the concession re
suited in a rate that was higher than what had been con
tractually agreed on and that he did so immediately on
learning what the terris of the proposed settlement were
Fialkowski credibly testified that this was the reason he
gave Harmelink I find it unlikely that had Fialkowski, in
fact , told Lettre and Harmelink that the only reason
backpay would not be paid was because Bocchini was
"peeved" about the Union 's "pushing" for it and that for
this reason also the 4 percent concession would be re
moved , Lettre would have made no reference to it in his
letters of April 18 and May 20 The thrust of those let
ters appears to be that Lettre and the Union were upset
because the Company had reneged on an agreement, not
that it had retaliated because of protected activity Simi
larly, when he first described the April 12 meeting with
Fialkowski in his testimony , Lettre did not mention the
alleged retaliatory reason , but rather talked in terms of
Bocchini s decision going back on Fialkowski's word
The fact that Harmelink called Conger to discuss Boc
china 's opposition to the settlement on March 25, while
Lettre testified that neither he nor any other union offs
cial had any knowledge of a problem with the 4 percent
adjustment before April 12, casts doubt on the veracity
of Lettre and Harmelink in their testimony about the
matter Considering all the evidence bearing on this
issue , I find that it had not been established that the Re
spondent rejected the settlement between Fialkowski and
Harmelink in order to retaliate against the Union because
it requested payment of the backpay that would normal
ly have been generated by such a settlement or that Fial
kowski told the union representatives that this was the
reason the settlement was rejected I shall recommend
that this allegation be dismissed
2 Alleged 8(a)(5) violation
The Respondent 's action in repudiating the settlement
agreement between Fialkowski and Harmelink and re
moving the 4 percent concession is also alleged to violate
Section 8 (a)(5) of the Act because it amounted to a uni
lateral change in the conditions of employment I do not
agree As noted above , the circumstances surrounding
the agreement signed by Fialkowski and Harmelink on
March 27 1985 , are unclear How it came about, given
Bocchini s opposition, which Harmelink knew about has
not been explained Under the circumstances I am
unable to find that the agreement was binding on the Re
spondent Although supervisors at Fialkowski s level had
settled rate grievances in the past , in cases where back
pay was due as the result of the settlement, a backpay
memorandum had to be prepared and signed off on by
higher management officials before any payment was
made The Union was aware of that fact No backpay
memorandum relating to grievance No 4154 was ever fa
nally approved Further the evidence indicated that this
grievance was pending at the fourth step of the contrac
tual grievance procedure and had been there for some
time prior to the date Fialkowski and Harmelink signed
their agreement Lettre acknowledged that Fialkowski
719
was not one of the company officials who signed off on
settlements at the fourth step There is no evidence that
the grievance was removed from the fourth step and sent
back to a level at which Fialkowski had authority to act
Because it has not been established that this grievance
settlement was effective to bind the company , it cannot
be said that the Respondents repudiation of the settle
ment amounted to a unilateral change in violation of Sec
tion 8(a)(5) I shall recommend that this allegation be dis
missed
C Change in Grievance Approval Procedure
On January 16, 1986 , Michael Mair , a supervisor in the
Respondent 's brass division , issued a memorandum in
which he stated that effective immediately in instances
where resolution of a rate grievance resulted in a rate in
crease and backpay the industrial engineer would not
sign off on the grievance until the backpay statement had
been approved and backpay had been paid Previously,
once an agreement had been reached between the indus
trial engineer and the Union , the grievance settlement
had been signed , the rate changed , and a backpay state
ment prepared and circulated for approval , as in the case
of the lavatory grinding grievance No 4154 , discussed
above It is alleged that this change in procedure was an
unlawful unilateral change in violation of Sections
8(a)(1), (4), and (5) and 8(d) of the Act The General
Counsel 's position is based on the assumption that the
settlement of a rate grievance was a bifurcated " process
in which the rate adjustment and any resulting backpay
were settled separately The evidence does not support
this assumption There is substantial evidence in the
record that whenever the settlement of a rate grievance
by the Union 's chief steward and the Company 's repre
sentative called for the payment of backpay a backpay
statement had to be prepared and circulated for approval
of various management officials before backpay was au
thonzed In each instance in which backpay was ap
proved , a copy of the backpay statement was sent to the
Union, which was clearly aware of the approval process
There is no evidence of any grievance ever being settled
in a bifurcated manner in which a rate increase was
agreed on and continued in effect although the resulting
backpay was denied In the only two instances that ap
peared in the record where the backpay statement arising
out of a rate grievance settlement were disapproved, the
rate increases were also disapproved and removed From
all that appears once a rate increase had been agreed on
it was put into effect so that the backpay could be calcu
lated as of a given date This appears to be a matter of
administrative convenience rather than an acknowledg
ment by the company that the matter was finally settled
If it were true that once the rate change went into effect,
the grievance was in fact settled the backpay statement
approval procedure that had always been followed
would be a meaningless exercise at best and at worst in
every case a potential source of friction (if not ap
proved), which could undermine the whole grievance
resolution system Since the evidence does not establish
that there was a bifurcated system of resolving rate
grievances (which could produce contradictory results)
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it cannot be said that there has been a unilateral change
in the contractual grievance procedure. All that has been
changed is the way the Respondent's internal mechanism
for reaching final approval of a rate grievance settle-
ment, which results in a rate increase and backpay. This
does not purport to be governed by the collective-bar-
gaining agreement and does not change any of its sub-
stantive provisions. I find that the Respondent's action
did not violate Section 8(a)(5) of the Act. Although it
may well be that this change in procedure arose out of
the controversy over grievance No. 4154, which is a part
of this proceeding, there is no evidence that the Re-
spondent was seeking to penalize employees because of
the charge that was filed or the testimony that was given
in connection with that issue, which would constitute a
violation of Section 8(a)(4) of the Act. On the contrary,
its action appears to be an attempt to avoid future con-
troversies by clarifying when a grievance settlement
agreement has been finalized. I shall recommend that
these allegations be dismissed.
D. Removal of Cordax Layout Work from the
Bargaining Unit
David Reimer and Marlin Quast are members of the
bargaining unit employed as group I inspectors in the
engine division. For 6 or 7 years before September 1985,
as a part of their duties as group I inspectors , Reimer
and Quast had done "layout work" on a computer-
equipped "Cordax" machine for 3 to 8 hours a day. In
April 1984, a new computer was installed in the Cordax
machine and certain supervisors and technicians, who are
not members of the bargaining unit , were sent to a 1-
week training course to learn how to use it. Despite their
requests, Reimer and Quast were not given this training;
however, they continued to work with the Cordax ma-
chine and neither was ever told that his work on the ma-
chine was deficient. On August 28, 1985, Chief Steward
Donald Koenigs, who had been told by Reimer that he
was being taken off the Cordax machine layout work
and his shift was being changed, questioned Supervisor
Peter DeTroye about it. DeTroye told Koenigs that he
had recommended that the Cordax work be done by
nonbargaining unit employees "Reliability Technicians
II." On September 3, DeTroye gave Koenigs a memo-
randum stating that effective that date all Cordax ma-
chine work, including that previously done by group I
inspectors, would thereafter be performed by the reliabil-
ity technicians. He also gave Koenigs a revised statement
of the group I inspectors' duties, which deleted the pro-
visions concerning performance of layout work. When
Koenigs objected to this change, DeTroye responded:
"This is the way its going to be, do whatever you have
to." On that date, Reimer began working on the first
shift along with Quast and both were assigned to cali-
brating gauges of which there was a substantial backlog.
The Union objected and filed a grievance over the re-
moval of the layout work from bargaining unit employ-
ees. In January 1985, Koenigs had a discussion with Su-
pervisor James Race in which he noted the backlog of
gauges to be calibrated and suggested that an inspector
be added or that Quast and Reimer be put on overtime
to reduce the backlog. The complaint alleges that the
Respondent violated Section 8(a)(5) of the Act by unilat-
erally removing Cordax layout work from the bargaining
unit.
Reimer and Quast continued to do the same type of
layout work they had previously done on the Cordax
machine for about 16 months after it was retrofitted with
the new computer. There is evidence that because of
their lack of training on the new computer they occa-
sionally had to seek assistance from the technicians who
had received such training. There is also evidence that
the Respondent removed the inspectors from the Cordax
work in order to have them work full time on the back-
log of gauges that needed to be calibrated. Although this
establishes that the Respondent was motivated by effi-
ciency and cost-savings considerations in making its deci-
sion, there is nothing to suggest that there was any emer-
gency situation that precluded it from bargaining before
implementing its decision to remove the Cordax work
from the bargaining unit. On the contrary, both the new
Cordax machine computer and the gauge backlog were
in existence for many months before the decision was im-
plemented. In presenting this change in operations to the
Union, the Respondent made it clear that it would not
bargain it. It is also clear that the decision had an ad-
verse affect on the bargaining unit because it removed a
significant portion of the two group I inspectors' daily
work (3 to 8 hours a day) and concomitantly reduced the
likelihood of another inspector being added or overtime
being given to reduce the gauge backlog. There is no
evidence that the removal of Cordax layout work from
the bargaining unit was the result of a fundamental
change in the nature or direction of the Respondent's
business, which could exclude it as a mandatory subject
of bargaining.6 The layout work that was transferred to
the nonunit technicians was the same that the inspectors
had always done and, as noted above, reducing the labor
costs involved was part of the Respondent's motivation.
The Board has held that an employer violates Section
8(a)(5) and (1) of the Act by reassigning work performed
by bargaining unit employees to others outside the unit
without affording notice or an opportunity to bargain
with the collective-bargaining representative.7 That is
what the Respondent did in the present case. Although it
claims its action was authorized by the management
rights provision in the collective-bargaining agreement
with the Union, a similar claim was raised and rejected
in Kohler I in the context of reclassifying a position from
within to outside the bargaining unit.8 I also conclude
that it does not authorize removal of work from the bar-
gaining unit. I find that the Respondent violated Section
8(a)(5) and (1) of the Act when it transferred the Cordax
layout work from group I inspectors within the bargain-
ing unit to reliability technicians who were outside the
unit without first giving the Union an opportunity to bar-
gain about this change.
6 Cf. Otis Elevator Co., 269 NLRB 891 (1984).
7 E.g., University Health Care Center, 274 NLRB 764 (1985). Technicol-
or Services, 271 NLRB 1220 (1984); Fry Foods, Inc., 241 NLRB 76 (1979).
8 Kohler I, supra at 1583.
KOHLER CO
E Exclusion of Material Control Clerks from the
Bargaining Unit
In May 1985, the Respondent created three new pose
tions in its generator division designated as material
control clerks The Respondent takes the position that
these jobs are adminstrative in nature and are excluded
from the bargaining unit by the terms of the collective
bargaining agreement The General Counsel contends
that the duties performed by the material control clerks
are virtually identical to those of employees in the bar
gaining unit The Respondent did not bargain with the
Union about the creation of these positions or their ex
clusion from the bargaining unit and the Union has never
acquiesced in their exclusion from the unit
According to the credible testimony of David Fran
zen the Respondents material control system project
leader a formal cycle count program was set up in the
generator division to eliminate the need for an annual
physical inventory, which required shutting down the
factory once a year to count the inventory The purpose
of this cycle count program in the generator division is
identical to that of the engine division and was intended
to mirror the engine division program The brass diva
Sion does not have a formal cycle count program Reso
lution of this issue turns on whether the material control
clerks duties are sufficiently dissimilar from those of the
inventory counters who are included in the bargaining
unit so as to warrant their classification as administrative
and excluded from the unit A comparison of the duties
of the three positions indicates that there are certain si
milarities in their duties and purpose The basic function
of each of the three positions is to make an accurate
count of inventory The means of locating and counting
parts are similar in each of the three divisions except that
the generator division material control clerks do not op
erate forklift trucks because most of the materials they
count do not need to be moved Beyond this the nature
of their jobs and the skills needed to perform them differ
significantly The evidence indicates that the engine and
brass division employees are basically manual laborers
who find and count parts and report their findings to ad
ministrative personnel who take the action necessary to
adjust on hand balances Once the physical count and re
porting are done, their responsibilities cease The maters
al control clerks do much more than merely count inven
tory they are responsible for maintaining the cycle count
program This is a significant difference even in compan
son to the engine division cycle counters who have no
responsibility for analyzing count results or making ad
justments to the computerized records The material con
trol clerks take the count information and along with
cost information they obtain from the tandem computer
data base enter it into a personal computer and determine
whether the count is within tolerance If not they find
the reason for the discrepancy and correct it The mate
real control clerks have access to cost data and perform
functions which in the other divisions are limited to ad
ministrative personnel There is no evidence that any
bargaining unit personnel perform similar or comparable
functions or have the access to the tandem computer
data that the material control clerks have Because it ap
pears that the principal functions and responsibilities of
721
the material control clerks are those normally performed
by adminstrative personnel, who are specifically ex
cluded from the bargaining unit by the collective bar
gaining agreement and are significantly different from
those of the employees in the bargaining unit, the Re
spondent had no duty to bargain with the Union before
creating this new classification of administrative employ
ee Consequently it did not violate Section 8(a)(5) and
(1) of the Act in doing so 9
CONCLUSIONS OF LAW
1 The Respondent, Kohler 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
mg of Section 2(5) of the Act
3 The Respondent engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) and Section 8(d) of
the Act by unilaterally removing the position of mainte
nance stores stock control clerk from the bargaining unit
and by unilaterally removing Cordax layout work from
the bargaining unit during the term of the then current
collective bargaining agreement
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
5 The Respondent did not engage in unfair labor prac
tices alleged in the amended consolidated complaint not
specifically found here
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5) and
(1) and Section 8(d) of the Act I shall recommend that it
be required to cease and desist therefrom and to take
certain affirmative action designed to effectuate the pur
poses of the Act
Having found that the Respondent made unilateral
changes in the employees terms and conditions of em
ployment I shall recommend that it be required to re
store the status quo ante by reinstating the position of
maintenance stores stock control clerk in the bargaining
unit and by assigning to group I inspectors in the bar
gaining unit the Cordax layout work they did prior to
September 1985 and to make them whole for any wages
and/or overtime work they have lost as a result of the
Cordax layout work being reassigned to employees out
side of the bargaining unit plus interest computed in ac
cordance with the Board s decisions in New Horizons for
the Retarded 283 NLRB 1173 (1987), and Florida Steel
Corp 231 NLRB 651 (1977)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edio
"BASF Wyandotte Corp 276 NLRB 1576 1582 (1985)
10 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
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Kohler Company, Kohler, Wiscon
sin, its officers, agents, successors, and assigns shall
1 Cease and desist from
(a) Altering the composition of the bargaining unit by
reclassifying a position to remove it from the bargaining
unit while the incumbent continues to do bargaining unit
work without first negotiating with the Union
(b) Reassigning work performed by bargaining unit
employees represented by the Union to employees who
are not members of the bargaining unit, without first ne
gotiating with the Union
(c) In any like or related manner interfering with re
straining , or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Cease giving effect to the reclassification of the po
sition of maintenance stores stock control clerk outside
the bargaining unit until the Respondent has bargained in
good faith with the Union concerning such reclassifica
tion
(b) Cease giving effect to the reassignment of Cordax
layout work done prior to September 1985, by group I
inspectors in the bargaining unit to employees who are
not members of the bargaining unit until the Respondent
has bargained in good faith with the Union concerning
the reassignment of such work and make whole its group
I inspectors for any loss of wages and/or overtime work
resulting from the unilateral reassignment of such work,
including interest thereon computed in the manner set
forth in the remedy section of this decision
(c) On request bargain with the Union concerning all
proposed changes in the terms and conditions of employ
ment of the Respondents employees in the bargaining
unit
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards,
personnel records and reports and any other records
necessary to analyze the amount of backpay due under
the terms of this Order
(e) Post at its facility in Kohler, Wisconsin copies of
the attached notice marked Appendix 11 Copies of the
I I If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
notice, on forms provided by the Regional Director for
Region 30 after being signed by Respondent's authorized
representative shall be posted by the Respondent imme
diately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to insure that the
notices are not altered, defaced, or covered by any other
material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply
IT IS FURTHER ORDERED that the consolidated com
plaint is dismissed insofar as it alleges violations of the
Act not specifically found
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
WE WILL NOT unilaterally remove positions from the
bargaining unit
WE WILL NOT unilaterally transfer work done by
members of the bargaining unit to employees outside the
bargaining unit
WF WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed by Section 7 of the Act
WE WILL return the Cordax layout work done by
group I inspectors in the bargaining unit prior to Sep
tember 1985 to them and WE WILL make them whole for
any loss of wages resulting from unilateral transfer of
such work with interest
WE WILL on request bargain with the Union concern
ing all proposed changes in the terms and conditions of
employment of our employees in the bargaining unit
KOHLER COMPANY