Kohler Co.

National Labor Relations Board - Administrative Judge Opinions

Jun 3, 2008

26-CA-022733 (N.L.R.B. Jun. 3, 2008)

JD(ATL)–19–08
Searcy, AR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
KOHLER CO.
and
KEVIN BREWER, an Individual
Case 26–CA–22733
and
JOHN CLIFTON, an Individual
Case 26–CA–22750
and
JAMES SKINNER, an Individual
Case 26–CA–22744
Linda M. Mohns, Esq., for the General Counsel.
Jack G. Pawley and Kevin J. Kinney, Esqs.,
for the Respondent.
Mr. Kevin Brewer, Mr. John Clifton, and
Mr. James Skinner, the Charging Parties.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. These cases were heard in Searcy,
Arkansas, on February 4, 2008, and April 8, 2008, pursuant to a second amended consolidated
complaint that issued on January 11, 2008.1 On February 4, 2008, prior to hearing any
testimony, I granted a joint motion for postponement so that Kohler Co. and International Union,
United Automobile, Aerospace & Agricultural Implement Workers of America–UAW, could
pursue the resolution of various issues. On March 10, 2008, I was advised that the Company
and Union had agreed upon a collective-bargaining agreement, that the Union’s strike that had
lasted for over a year had ended, and that the parties had settled the complaint allegations
predicated upon multiple charges that had been filed by the Union. On March 17, 2008, I
approved an informal settlement agreement relating to those complaint allegations and severed
Cases Nos. 26–CA–22792, 26–CA–22812, 26–CA–22833, and 26–CA–22919 from Cases Nos.
26–CA–22733, 26–CA–22744, and 26–CA–22750.
The remaining cases, individually filed by the three Charging Parties named above,
were tried on April 8, 2008. When the hearing convened on April 8, I granted the motion of
Counsel for the General Counsel to withdraw the substantive allegations encompassed by the
settlement agreement. The remaining complaint paragraphs, 14(b), (d), and (f), 17, and 18,

1 All dates are in 2007 unless otherwise indicated. The charge in Case No. 26–CA–22733 was
filed on April 17 and was amended on June 7 and October 22, the charge in Case No. 26–CA–
22744 was filed on May 1, and the charge in Case No. 26–CA–22750 was filed on May 11.
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allege that the Respondent stated to unit employees that they were required to complete new
applications in order to return to work and implied that contractual job protections and other
benefits would not exist when they returned to work in violation of Section 8(a)(1) of the
National Labor Relations Act, and that the Respondent failed and refused to reinstate
employees who had not been allowed to work during the strike in violation of Section 8(a)(1)
and (3) of the Act. The Respondent’s answer denies any violation of the Act. I find that the
Respondent violated the Act substantially as alleged in the complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following2
Findings of Fact
I. Jurisdiction
The Respondent, Kohler Co., the Company, a Wisconsin corporation, is engaged in the
manufacture of stainless steel sinks at its facility in Searcy, Arkansas. The Company annually
purchases and receives at its Searcy, Arkansas, facility goods and materials valued in excess
of $50,000 directly from points located outside the State of Arkansas. The Respondent admits,
and I find and conclude, that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America –UAW, and it Local 1000,
herein jointly referred to as the Union, is a labor organization within the meaning of Section 2(5)
of the Act.
II. Alleged Unfair Labor Practices
A. Background
The Union had represented production and maintenance employees of the Company at
Searcy, Arkansas, in the following appropriate unit since 1967:
Included: All production and maintenance employees employed at the Respondent’s
Searcy, Arkansas, facility
Excluded: All office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
The most recent collective-bargaining agreement was effective by its terms from
December 5, 2002, until December 5, 2006. The parties had not agreed upon the terms of a
new collective-bargaining agreement when that contract expired. One point of disagreement
was a Company proposed two-tiered wage structure under which new employees would be paid
less than current employees performing the same job.
At the hearing, the parties submitted a stipulation to various facts including the following:

2 The unopposed motion of the General Counsel to correct the transcript is granted and
received into the record as General Counsel’s Exhibit 20.
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1. At 12:01 a.m. on December 9, 2006, UAW Local 1000 commenced a strike at
Respondent’s Searcy, Arkansas facility.
2. During the period from December 10, 2006, through February 15, 2007, no
bargaining unit employees reported to work at the Searcy, Arkansas, facility.
3. During the period from December 10, 2006, through about February 14, 2007,
Respondent did not hire any new employees to perform bargaining unit work at the
Searcy, Arkansas, facility.
4. Beginning about February 13, 2007, Respondent began the process of hiring
temporary replacement employees for the purpose of performing bargaining unit work.
On March 6, 2007, said temporary replacements were first advised that their status had
been changed to the status of permanent replacements.
The complaint, in paragraph 11, alleges that “[s]ince on or about December 9, 2006,
certain employees of Respondent represented by the Union and employed at Respondent’s
Searcy, Arkansas, facility ceased work concertedly and engaged in a strike. (Emphasis added.)
The Respondent’s answer states: “Admit the allegation contained in paragraph 11, but
affirmatively state that all bargaining unit employees employed by the Respondent at its Searcy,
Arkansas, facility ceased work concertedly and engaged in a strike since on or about December
9, 2006.” (Emphasis added.)
The strike ended in March 2008, pursuant to the negotiations that, as noted above, also
resulted in agreement upon a new collective-bargaining agreement and settlement of the unfair
labor practice charges filed by the Union.
This proceeding relates to the failure to reinstate the three individual Charging Parties,
all of whom are in the unit but none of whom are members of the Union. Charging Party John
Clifton was recalled on March 10, 2008, pursuant to the settlement.
B. Facts
During the period from December 19, 2006, until February 14, no unit employees
worked. Supervisors and nonunit personnel filled orders from existing inventory. On Monday,
February 12, the Company issued a press release, and on February 14, the substance of that
press release was reported in an article in the Searcy daily newspaper, The Daily Citizen. The
article, in pertinent part states:
In a press release titled, “Kohler Company hiring at Searcy Plant,” dated Monday, the
company announced it has begun recruiting new employees to fill skilled and unskilled
positions at the plant. … Individuals interested in applying for positions should call the
factory at (501) 268-4483, officials said and leave their name and number. Applicants
will be contacted by phone with further instructions. Kohler is not taking walk-in
applications.
Mary Johnson, who is currently the Human Resources Manager for the Kitchen Product
Team at the Company’s headquarters in Kohler, Wisconsin, was at all times relevant to this
proceeding the Human Resources Manager at the Searcy, Arkansas, facility. Johnson
explained that, after the article appeared, the Company initially tried to return calls as they were
received but, due to the large number of calls received, she “realized we were going to need to
track this because there was a lot more phone calls coming in than we were making going out.”
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Therefore, on February 21, the Company created a data base, alphabetized by first name, that
reflected the caller’s name, telephone number, and any other information that the caller gave
that appeared to be relevant. Anyone who called between February 14 and 21, before the data
base was created, was included if the Company “still had their records,” but Johnson
acknowledged that everyone who called between February 14 and 21 was “not necessarily”
placed into the data base.
Over the next several weeks, the data base was recopied and consolidated several
times. On or about March 9, the Company began assigning tracking numbers to the names on
the data base. Although there was an attempt to keep the same tracking number assigned to a
specific applicant when the data base was updated, examination of the printouts of the data
base list reveals that the attempt was unsuccessful.
Johnson’s chief assistant regarding the application process was Senior Human
Resources Assistant Amanda Stanisor, alleged in the complaint and admitted in the answer to
be an agent of the Company. Due to the large number of applicants, Cathy Hartsell, the plant
accountant, and Marilyn Hummer, an administrative clerical support person, also assisted.
Plant Manager Jerry Stone explained that the Company decided to hire replacement
employees in order to assure that its customers would be served. Management determined the
wages that would be offered. Employees in the general labor classification would be paid
$13.25 an hour, with a $1 an hour raise after 30 days. Notwithstanding the fact that the
Company’s final offer had proposed a two tiered wage system, the Tier I wages that were to
apply to current employees were not offered to returning employees. Rather, returning
employees in the general labor classifications were offered the Tier II wage, but with the 30 day
waiting period waived. Thus they would be hired at $14.25 per hour. Stone acknowledged that
at least one returning employee “slipped through the cracks” and was only paid $13.25 an hour
for 30 days. When asked whether the Company was treating a returning employee “as an
experienced new employee,” Stone answered, “They were an experienced employee, yes.”
Stone admitted that no returning employee was paid at the Tier 1 rate.3
No witness for the Company testified to any application procedure that distinguished
employees seeking to return to work from new applicants. Employees seeking to return called
the same telephone number as new applicants, and their names were placed into the data base
alongside new applicants. Johnson acknowledged that all who called seeking employment were
advised that they would have to fill out an application, have an interview, pass a drug test, and
go through new employee orientation. Johnson noted that employees seeking to return were
given their former applications and claimed that the application requirement was to “make sure
that we had current or updated information.” I do not credit that testimony. If that were the
purpose, there would be no reason to require the employee to complete pages 2, 3, and 4 of
the application relating to prior employment history, references, and language skills and
certifications. The Company wanted a new application. Interviews of employees, as opposed to
new applicants, were, according to Johnson, to determine whether the employee had any skills
of which the Company was unaware. Whether that be true is immaterial. Another purpose of
the interview was to inform the employee seeking to return that he or she was going to be paid
at the same rate as new employees, albeit with the 30 day waiting period waived.
It is undisputed that Charging Party Kevin Brewer’s name does not appear on the data
base list. Brewer, contrary to the instruction in the newspaper article, went to the plant. General

3 The wage rate for certain highly skilled positions was the same for Tier I and Tier II.
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Counsel’s Exhibit 12 (GC Exh. 12) reflects the various incarnations of the data base.4 Charging
Party James Skinner’s name appears four times: on the “ORIGINAL,” GC Exh. 12, Tab A, page
3, with the notation “kohler [sic] associate; on the “PULLED OF [sic] PHONE 022407
[presumably 2/24/07]”, GC Exh. 12, Tab E, page 2, with the notation “Kohler associate;” on the
“CALL LIST 3_07,” GC Exh. 12, Tab F, page 3, with the notation “current employee;” and on
the “NEXT CALL LIST,” GC Exh. 12, Tab J, page 2, with the notation “Kohler associate.”
Charging Party John Clifton’s name appears twice, both times on the “NEXT CALL LIST,” GC
Exh. 12, Tab J, first on page 6, about three quarters of the way down the page with the
notations “prior employee” and “Not interested-6/1 records show not a good associate,” and
again at page 14, about three quarters of the way down the page with the notation “duplicate
from 186, wanted to keep.” The reference to 186 is in error; Clifton, at page 6, was assigned
the number 182.
Kevin Brewer began working for the Company through a temporary agency. He became
a full time employee on September 23, 2006. He was in training to be a packer. Shortly before
the strike began, his supervisor, Terry Bunch, informed him that he would be awarded that
position, but the strike occurred before he assumed it. At time of the strike, Brewer was
unassigned and was placed on various jobs. His base pay was $13.37 plus a shift differential of
10 cents for a total of $13.47 per hour. For the three weeks immediately preceding the strike,
his rate of pay was higher because of the jobs he was performing and varied from a low of
$13.52 to a high of $13.65 per hour. The proposed Tier I rate for a packer was $15.75 an hour.
On the first day that he was scheduled to work after the strike began, the morning of December
11, 2006, Brewer went to the plant but was denied access. He called Human Resources
Manager Johnson who informed him that there was not enough work for the “12 to 15 nonunion
members,” that he should apply for unemployment benefits. He did so but was denied. In early
February, Brewer called the Human Resources office at Company headquarters in Wisconsin.
The female employee with whom he spoke told him that the Company “had me out on special
leave just like everyone else on the strike and that I had to take it up with the Searcy plant.”
On February 14, a friend who was on strike informed Brewer of the article in The Daily
Citizen. Brewer called the number and was informed that he should call later and get an
appointment. Brewer called The Daily Citizen, explained that he was aware that the Company
had started hiring, that he was not a member of the Union, and “expected some problems”
when he went to apply for work. The reporter with whom he spoke told him to go ahead and
then call him back.
Brewer went to the plant. A security guard called into the plant and then permitted
Brewer to enter. As he was walking up the hall to the Human Resources office, he was met by
Amanda Stanisor who had some papers in her hand. He asked why he was not working, why
he was not called. Stanisor explained that “if we call one person, we have to call all.” She
explained that he had to fill out an application. Brewer asked why he had to fill out another
application “when I’m already employed.” Stanisor answered that “this is just the way we have
to do this." Stanisor handed the papers she was carrying to Brewer. One was his original
application; the other was a blank application. He filled out the blank application, but placed the
date of his original application, September 18, 2006, on the new application. Having observed
that Human Resources Manager Johnson was alone in her office, he went to speak with her.
She asked if he was “interested in returning” to work, and Brewer answered, “[Y]es.” He asked
Johnson the same questions he had asked Stanisor, why he was not working and had not been

4 GC Exh. 13 is the computer disk containing the various versions of the data base, which prints
out as the spread sheets that comprise GC Exh. 12.
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called and why he had to fill out an application. Johnson gave the same answers, that if the
Company called one person they had to call all and “this is just the way we have to do this.”
Brewer was given a sheet that was given to all applicants which reflected that general
production employees would be paid $13.25 an hour with a $1 an hour raise after 30 days. He
and Johnson spoke of pay, and she informed Brewer that his rate would be the $13.25 with the
raise after 30 days. Brewer protested, asking why he would be paid less than he was making
when the strike began. Johnson answered that this was “the way we have to do it.” Brewer, who
was aware that a legal proceeding in which he was involved would require his attendance in
court for one day in the near future, expressed concern that he did not want to lose his job for
missing a day shortly after resuming work. Johnson replied that the Company was working
upon a handbook, and that the manner in which his anticipated absence was handled would be
“up to the supervisor.” Brewer stated that he wanted to talk the situation over with his wife.
Johnson informed him that if he was going to come back to work he should report to orientation
on Friday, to call and let her know.
Brewer spoke with his wife and decided that it would not be in his best interest to return
because he would “have to start all back over” and had no assurance that he would not lose his
job for missing work the day he had to be in court. He explained that if “you miss a day, you get
written up … [o]ne day don’t determine your job.” He thought that “the strike could be over any
day and then I could go back with my job.” He called Johnson several times, but only the
answering machine responded. Finally he left a message, stating, “At this time, Mary, I didn’t
think it would be in my best interest to come back to work.” Brewer did not call the newspaper
reporter, but in the late afternoon on February 14, the reporter called him. Brewer spoke with
him. The article, which appeared on February 15, related that Brewer had to fill out a new
application but incorrectly reports Brewer’s wage rate before the strike as $13.25 per hour.
Johnson acknowledged that Brewer received the sheet reflecting the wage rate of
$13.25 per hour. She stated that Brewer would be making $14.25 an hour because he had
worked there previously and, therefore, the 30 day waiting period would not apply. When
questioned whether that was what she had actually told Brewer, Johnson answered that “it was
14 or so months ago, I think. I can’t attest to the exact statement that I made.” Johnson
acknowledged that she “should have told him $14.25” and then said that she did so because
“[t]hat’s what we had indicated to anybody else that had come in.” I do not credit that testimony.
Brewer was clear that he was offered only $13.25 and that he protested, but to no avail.
Johnson stated that she did inform Brewer that there would be no waiting period for
benefits, such as insurance. She stated that Brewer inquired whether he would be returning to
his former job and that she informed him that “it would make sense if the need was there,” but
that his job assignment was “up to manufacturing management.” Johnson did not deny that she
informed Brewer that the Company was working on a handbook and that the effect of his
anticipated absence for his appearance in court would be “up to the supervisor.”
Johnson testified that Brewer returned on Thursday, February 15, and spoke with her
again. Whether he did so is immaterial in view of her vague testimony that she did not recall
“anything specific that was different than maybe things that we had covered the day before.”
Brewer did not attend the orientation meeting on Friday. Johnson testified that Stanisor reported
to her that Brewer left a voice message that morning stating that he would not be returning, that
“he wanted to wait until the strike issues were resolved.” Whether Brewer left the message that
he would not be returning on Wednesday afternoon or Friday morning is immaterial. Stanisor
did not testify, and I do not credit the hearsay report that Brewer stated that he wanted “to wait
until the strike issues were resolved.” I credit Brewer’s testimony that he said that he “didn’t
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think it would be in my best interest to come back to work.” Brewer filed the charge herein on
April 17.
John Clifton began working for the Company in 1994, and at the time of the strike was a
pack operator on first shift. On December 11, Clifton went to the plant to report to work but
observed that picketers were present and that the gate was locked. He returned home and
called the Company, but got only a busy signal. Later that week, he sought to apply for
unemployment compensation, but his application was denied. In February, he heard that the
Company was hiring, and he bought the February 14 edition of The Daily Citizen. He did not call
at that time because he “assumed they was going to call me back since they were hiring
people.” He received no call. On March 2, Clifton called the number given in the newspaper
article. Amanda Stanisor answered the telephone. He told her that he “wanted to come back to
work.” Stanisor informed him that “they weren’t hiring at that time.” Clifton asked if he was fired,
and Stanisor answered that he was not, that he would have to fill out an application to come
back to work, “that was Company policy.” She stated that she would let Plant Manager Jerry
Stone know he had called and would “call me back with they started hiring.” Clifton heard
nothing and called the Human Resources telephone number on March 9 and 16. His call was
answered by a machine. In both instances he left his name and number and stated that he
wanted to “come back to work.” He filed the charge herein on May 11.
At some point prior to May 11, Clifton filed a complaint with the Equal Employment
Opportunity Commission, EEOC, alleging that he had not been recalled because of his race.
The Company responded to that complaint on May 7. The response contains several
statements relevant to this proceeding, including the acknowledgement that “Mr. Clifton … did
apply when Ms. Stanisor placed his name on the list [emphasis added]” and the explanation
that he has “not been allowed to ‘return to work’” because he did not call until March 2 and
“there are now over 180 people ahead of him on the list of people that have expressed an
interest in employment at the Searcy facility.”
Human Resources Director Johnson recalled that Stanisor informed her that Clifton had
called inquiring about “the process of returning to work” but, according to Stanisor’s report,
Clifton never specifically stated that he wanted to return. Regardless of the report that Stanisor
made, Johnson admitted that “we assumed that that [a desire to return to work] was the intent
of his call.” Thus, his name was placed on the list in the data base. Stanisor did not testify, thus
Johnson’s testimony of what Clifton purportedly said to Stanisor is hearsay. I credit Clifton’s
testimony that he told Stanisor that he “wanted to come back to work.”
On July 17, when stating the position of the Company regarding the charge filed by
Clifton, the Company, consistent with the notation next to Clifton’s name on the data base list,
contended that Clifton’s work performance had been “unfavorable and below expectations …
[t]herefore he did not merit further consideration for a replacement position.” The parties
stipulated that the most recent discipline in Clifton’s file was a warning for failing to follow
instructions issued on March 6, 2006. The Company presented no witness relating to Clifton’s
alleged deficient performance. He was recalled on March 10, 2008, pursuant to the settlement.
James Skinner began working for the Company on August 5, 1996, and was a
maintenance employee on third shift. On the first day that he was to report to work after the
strike began, he went to the plant. He was told by a picketing employee that the Company had
sent an e-mail telling nonmembers of the Union to go to the unemployment office. On February
23, a fellow employee informed him that he had called the Company, gone in and filled out an
application, and been rehired. The friend brought him the newspaper that contained the article
regarding rehiring. Skinner called the number that appeared in the article in the newspaper. His
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call was answered by an answering machine and, pursuant to the instructions, he left his name
and telephone number. The friend suggested that he also call Human Resources, and he gave
Skinner a telephone number which was different from the number given in the newspaper
article. Skinner called and was connected to an answering machine. He left his name and
telephone number, and stated that he wanted a job interview. He heard nothing further. He filed
the charge herein on May 1.
C. Analysis and Concluding Findings
1. The Failures to Reinstate
The complaint, in paragraph 17, alleges that the three Charging Parties “who were not
allowed to work at Respondent’s facility during the strike … made individual unconditional offers
to return to their former or substantially equivalent positions of employment” and, in paragraph
18 alleges that the “Respondent has failed and refused to offer to reinstate the … [three
Charging Parties] to their former or substantially equivalent positions of employment.”
The parties stipulated that “[d]uring the period from December 10, 2006, through
February 15, 2007, no bargaining unit employees reported to work at the Searcy, Arkansas,
facility.” (Stipulation 2.) Brewer, Clifton, and Skinner each went to the plant and discovered that
no unit employees were being permitted to enter. This Respondent, like the employer in Amoco
Oil Co., 285 NLRB 918 (1987), closed the gates and, as the brief of the General Counsel notes,
effectively locked out employees who otherwise would have worked. Unlike the employer in
Amoco, the Respondent herein did not contend that its action was to assure no violence or
hostility between striking employees and employees who otherwise would not have struck. Id. at
fn. 4. The Respondent herein admits in its answer that it considered “all bargaining unit
employees … [to have] ceased work concertedly and engaged in a strike.” (Emphasis added.)
In view of the foregoing admission and the absence of any complaint allegation relating to the
lawfulness of the lockout, I need make no finding regarding the Respondent’s actions prior to
February 14.
Board precedent, since the decision in Laidlaw Corp., 171 NLRB 1366 (1978),
establishes that economic strikers who have not been permanently replaced are entitled to
reinstatement upon their unconditional offers to return to work. When the Respondent unlocked
the gates, the three Charging Parties, as hereinafter discussed, sought to return to work.
The Respondent, in its brief, argues that Laidlaw is not applicable because the three
Charging Parties were not on strike. That argument has no merit. The complaint, at paragraph
11, alleges that “[s]ince on or about December 9, 2006, certain employees of Respondent
represented by the Union … ceased work concertedly and engaged in a strike. (Emphasis
added.) The Respondent’s answer, which is not cited in its brief, states: “Admit the allegation
contained in paragraph 11, but affirmatively state that all bargaining unit employees employed
by the Respondent at its Searcy, Arkansas, facility ceased work concertedly and engaged in a
strike since on or about December 9, 2006.” (Emphasis added.) The Respondent considered
“all bargaining unit employees,” which included the three Charging Parties, to be on strike.
It is immaterial whether particular employees actually “engaged in any union or strike-
related activity” insofar as the Company “believed that these employees were strikers.”
Marchese Metal Industries, 313 NLRB 1022, 1028 (1994). Although the three Charging Parties
were not members of the Union, they are in the bargaining unit and, insofar as the Respondent
was concerned, “all bargaining unit employees” were on strike.
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Precedent establishes that the use of the word “unconditional” is unnecessary when
making an offer to return to work. Statements that the employee “would like to return to work”
insofar as no conditions are attached, constitute unconditional offers to return to work. Diamond
Walnut Growers, Inc., 340 NLRB 1129 (2003).
The Respondent cites Rapid Armored Truck Corp., 281 NLRB 371 (1986), and
erroneously states that the Board affirmed the findings of the administrative law judge that
various employee inquiries regarding returning to work in that case did not constitute
unconditional offers to return. The Board never reached that issue. It affirmed the primary
finding of the judge that the strike in which the employees engaged was unprotected, thus, the
strikers were not entitled to reinstatement even assuming that they made unconditional offers to
return. Id at fn. 1 and 382. Furthermore, in that case, the employees were individually
contacting the employer without any instruction from the employer. In this case, the Respondent
specifically directed individuals who wished to seek employment to call the number given in the
newspaper article and wait to be called with “further instructions.” They were not to walk in.
The Respondent argues that Brewer never, in specific words, made an unconditional
offer to return to work. I find that by going to the plant and complaining that he had not been
called, filling out the new application after pointing out that he was already employed, and
answering “yes” when asked by Johnson whether he was “interested in returning,” Brewer did
make an unconditional offer to return to work. His actions establish that he was unconditionally
offering to return to work, and he stated no conditions detracting from that unconditional offer.
The conditions were imposed by the Respondent. Those conditions, in Brewer’s case, included
completion of a new application, acceptance of a wage less that he was receiving prior to the
strike, assignment to whatever job management decided, and treatment of an anticipated
absence upon whatever terms his supervisor decided. The Respondent, citing Brewer’s
testimony, argues that he wanted the protections of a union contract before returning. Although
that may well have been true after Johnson informed Brewer that he would be earning less, that
he would be working wherever the Respondent put him, and that treatment of his anticipated
absence would be at the discretion of his supervisor, Brewer, when appearing at the plant and
following the instructions of the Respondent to complete a new application, placed no
conditions upon his offer to return. The conditions were imposed by the Respondent. Brewer
never informed the Respondent that the protections of a union contract were a condition of his
return. After being informed of the conditions imposed by the Respondent, he stated that did
not think “it would be in my best interest to come back to work.”
A returning striker must be reinstated to the same position or to a position substantially
equivalent to the position held before the strike. Employee Brewer was offered the same
starting wage as a newly hired employee which was less than he had been earning and told
that his job assignment was “up to manufacturing management.” He was not offered
reinstatement to the same position or to a substantially equivalent position. Thus, he was
privileged to reject the offer that was made to him. By failing and refusing to reinstate employee
Brewer to his former position or to a substantially equivalent position to the position that he held
before the strike, the Respondent violated Section 8(a)(1) and (3) of the Act.
Both Clifton and Skinner made unconditional offers to return to work. Each followed the
instructions given by the Respondent regarding the procedure they should follow by calling and
not walking in. Both were placed upon the list maintained by the Respondent, but neither were
afforded the rights guaranteed to strikers who unconditionally offer to return to work. Their
names were placed on the list in the order that their calls were received along with the names of
individuals who had never been employed by the Respondent.
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Clifton informed Stanisor that he “wanted to come back to work.” The Respondent, in its
response to the charge that Clifton filed with the EEOC, specifically stated that “Mr. Clifton …
did apply when Ms. Stanisor placed his name on the list.” Clifton did more than “apply.” He
made an unconditional offer to return to work by stating that he “wanted to come back to work”
without attaching any conditions. As of March 2, the date of Clifton’s conversation with Stanisor,
the Respondent had hired no permanent replacements.
Skinner never talked with a human being. He called the telephone number given in the
newspaper. His call was answered by a machine. He left his name and telephone number, as
instructed in the newspaper article. He also called a number at the plant. His call was again
answered by a machine. In that instance he left his name and telephone number and stated
that he wanted a job interview. The Respondent argues that this did not constitute an offer to
return. I disagree. Skinner followed the instructions given to him. Johnson admitted that an
interview was a requirement for all, including former employees. Thus, the request for an
interview was not inconsistent with the Respondent’s required procedures and certainly did not
make his request for reinstatement conditional. His name was placed in the data base. The
Respondent, in replying to employee John Clifton’s EEOC complaint, asserted that it had not
discriminated against him because it had “placed his name on the list.” James Skinner’s name
appears on the “Original” data base list with the notation that he is a Kohler associate. It
appears on the list of February 24 with the same notation. It appears on what is designated as
“Call List 3-09” with the notation “current employee,” and on what is designated as “Next Call
List” with the notation “Kohler associate.”
The Respondent argues that Skinner, after making the telephone calls “made no further
attempt to contact Kohler.” Although he did not do so directly, he did file the charge herein. The
Respondent, in its brief, observes that Skinner did not “make the simple effort to report to the
plant.” The short answer to that observation is that Skinner was following the Respondent’s
instructions. He did not walk in. Consistent with the instructions in the article in the newspaper,
which were taken directly from the Respondent’s news release, he called the number given, left
his name and number, and waited to be contacted with “further instructions.” The data base
reflects that Skinner contacted the Company in the manner that it prescribed, and it identifies
him as a Kohler associate and current employee. Although having made that identification, the
Respondent never contacted him. Although making no further effort to contact the
nonresponsive Respondent directly, Skinner filed the charge herein on May 1, in which he
states that he was not recalled after making an “unconditional offer to return.” Even after
Skinner filed the charge herein, the Respondent did not contact him or, consistent with its
commitment in the newspaper article to provide further instructions, give him any “further
instructions.” Skinner’s “name [was] on the list.” The Respondent, although now contending that
Skinner “made no further attempt to contact Kohler,” did not contact him after he filed the
charge and give “further instructions.” The Respondent’s answer admits that all bargaining unit
employees were on strike. The failure to contact Skinner is explained only by the fact that the
Respondent was treating returning strikers in the same manner as new applicants.
I find that Skinner and Clifton made unconditional offers to return to work that the
Respondent was obligated to act upon. Skinner contacted the Respondent on February 23. As
of March 2, the date of Clifton’s conversation with Stanisor, the Respondent had hired no
permanent replacements. The parties stipulated that the replacement employees did not
become permanent until March 6. As explained in Consolidated Delivery & Logistics, 337 NLRB
524, 533 (2002):
In NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967), the Supreme Court held that an
employer having received an unconditional offer to return to work by economic strikers
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must reinstate such strikers unless the employer can demonstrate a “legitimate and
substantial” business justification for refusing to do so. The hiring of temporary
replacements does not excuse the employer's refusal to reinstate economic strikers who
made an unconditional offer to return to work. Zapex Corp., 235 NLRB 1237, 1240
(1978).
The Respondent, by failing and refusing to reinstate Clifton and Skinner pursuant to
their unconditional offers to return to work violated Section 8(a)(1) and (3) of the Act.
2. The Independent Section 8(a)(1) Allegations
The complaint, in paragraphs 14(b) and (d), alleges that the Respondent, on February
14 and March 2, informed unit employees that they would be required to complete a new
application in order to return to work. The testimony of Kevin Brewer confirms that on February
14, he was required to complete a new application. On March 2, Amanda Stanisor informed
Clifton that he would have to fill out an application to come back to work, “that was Company
policy.” The foregoing requirement, which placed unit employees Brewer and Clifton, whom the
Respondent considered to be striking employees, “on a par with someone who applies for a job
off the street,” is inconsistent with their status as returning striking employees and violated
Section 8(a)(1) of the Act. See Sunol Valley Golf Club, 310 NLRB 357,373(1993), citing Scalera
Bus Service, 210 NLRB 63, 63-64 (1974).
The complaint, in paragraph 14(f) alleges that the Respondent, by Human Resources
Manager Johnson, implied that contractual job protections and other benefits would not exist
when the striking employees returned to work. The foregoing allegation is predicated upon the
conversation between Brewer and Johnson in which she noted that the Respondent was
working upon a new handbook and informed him that treatment of his anticipated absence
would be up to his supervisor. I cannot find that the reference to working upon a new handbook
implied anything. Although the testimony of Brewer suggests that Johnson’s statement that
treatment of his anticipated absence would be up to his supervisor constituted a deviation from
past practice, the record does not establish the past practice, thus there is insufficient evidence
before me to support a finding in that regard. Although an attendance policy is contained in the
Respondent’s final offer, it does not appear in the expired collective-bargaining agreement.
Insofar as there was no contract, there could have been no implication relating to contractual
job protections or benefits rather than past practices established by the expired contract. I shall
recommend that subparagraph 14(f) be dismissed.
Conclusions of Law
1. By requiring returning striking employees to fill out applications for employment, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By failing and refusing to reinstate striking employees upon their unconditional offers
to return to work, the Respondent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
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The Respondent having unlawfully failed and refused to reinstate Kevin Brewer, John
Clifton, and James Skinner upon their unconditional offers to return to work, it must offer
Brewer and Skinner reinstatement and must make Brewer, Clifton, and Skinner whole for any
loss of earnings and other benefits. Backpay shall be computed on a quarterly basis from
February 14, 2007, to date of proper offer of reinstatement in the case of Brewer, from March 2,
2007, to March 10, 2008, in the case of Clifton, and from February 23, 2007, to date of proper
offer of reinstatement in the case of Skinner, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
The Respondent will also be ordered to post an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER
The Respondent, Kohler, Co., Searcy, Arkansas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from:
(a) Failing and refusing to reinstate striking employees represented by International
Union, United Automobile, Aerospace & Agricultural Implement Workers of America–UAW, and
it Local 1000, to available positions upon their unconditional offer to return to work.
(b) Requiring returning striking employees to fill out applications for employment.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Kevin Brewer and James Skinner
full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make whole Kevin Brewer, John Clifton, and James Skinner for any loss of earnings
and other benefits suffered as a result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful failure to reinstate Kevin Brewer, John Clifton, and James Skinner and within 3 days
thereafter notify them in writing that this has been done and that the failure to reinstate them will
not be used against them in any way.

5 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
purposes.
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(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 designated 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, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Searcy, Arkansas,
copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by
the Regional Director for Region 26, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent 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 ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
February 14, 2007.
(f) 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 that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., June 3, 2008.
_____________________
George Carson II
Administrative Law Judge

6 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in
the notice reading “POSTED BY ORDER OF THE NATIONAL 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.”
JD(ATL)–19–08
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 had found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail and refuse to reinstate any of you who are striking employees represented
by International Union, United Automobile, Aerospace & Agricultural Implement Workers of
America–UAW, and it Local 1000, to available positions upon your unconditional offer to return
to work.
WE WILL NOT require any of you who are striking employees to fill out applications for
employment as a condition of your returning to work.
WE WILL, within 14 days of the Board’s Order, offer Kevin Brewer and James Skinner full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
WE WILL make Kevin Brewer, John Clifton, and James Skinner whole for any loss of earnings
and other benefits suffered as a result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to our unlawful failure to reinstate Kevin Brewer, John Clifton, and James Skinner and
within 3 days thereafter notify them in writing that this has been done and that the failure to
reinstate them will not be used against them in any way.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
KOHLER CO.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
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investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
The Brinkley Plaza Building, Suite 350
80 Monroe Avenue, Memphis, TN 38103-2416
(901) 544-0016, Hours: 8:00 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (901) 544–0011