Kohler Co.

National Labor Relations Board - Administrative Judge Opinions

Aug 26, 2009

26-CA-022733 (N.L.R.B. Aug. 26, 2009)

JD(ATL)–21–09
Searcy, AR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
KOHLER CO.
And
KEVIN BREWER, An Individual Case 26–CA–22733
And
JAMES SKINNER, An Individual Case 26–CA–22744
Linda M. Mohns, Esq., for the General Counsel
Kevin J. Kinney, Esq., and Jack G. Pawley, Esq.,
for the Respondent
SUPPLEMENTAL DECISION
Statement of the Case
MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in Searcy,
Arkansas, on August 3, 2009. The issue in this compliance proceeding is whether the
Respondent, Kohler Co., has complied with the terms of the Board’s Order, dated July 18, 2008,
which required the Respondent, inter alia, to reinstate Charging Parties Brewer and Skinner and
make them whole for all wages and benefits lost as a result of the Respondent’s discriminatory
refusal to reinstate them upon their unconditional offer to return to work during a strike at the
company’s Searcy facility.1
Counsel for the General Counsel contends that the Respondent failed to comply with
the order by failing to make a valid offer of reinstatement to the Charging Parties and that, as a
result, back pay has continued to accrue to the present. She is seeking net back pay for Brewer
in the amount of $15,574.83 and for Skinner in the amount of $14,021.86, with interest.2
Respondent contends that it has complied with the reinstatement provisions of the Board’s order
by reinstating Brewer and Skinner to a list of strikers to be recalled, in order of seniority,
pursuant to the terms of a settlement agreement executed by the Respondent, the General
Counsel and the International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America – UAW, the Union representing its employees who were on strike at the
Searcy facility at the time the unfair labor practices in this case were committed. The
Respondent contends further that it has already made Brewer and Skinner whole for back pay
from the date each was unlawfully denied reinstatement until the date the strike ended pursuant

1 The Board’s Order adopted the June 3, 2008 decision of Administrative Law Judge George
Carson II, in the absence of exceptions. The United States Court of Appeals for the Eighth
Circuit enforced the Board’s Order, upon the consent of the parties, on October 22, 2008.
2 These amounts represent back pay calculated through March 31, 2009. General Counsel
argues that back pay is continuing to accrue because no offer of reinstatement has ever been
made. However, Counsel for the General Counsel has not updated the calculations beyond
March 31, 2009.
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to the settlement agreement. At that point, according to the Respondent, Brewer and Skinner
would have been laid off along with all strike replacements and any other unit employees who
had abandoned the strike and returned to work. Under the Respondent’s defense, neither
Brewer nor Skinner had sufficient seniority to be reinstated to the positions available at the end
of the strike.3
After hearing the testimony of witnesses, reviewing the documentary evidence, and
considering the arguments made by counsel at the hearing, I rendered a bench decision in
accordance with Section 102.35(a)(10) of the Board’s Rules and Regulations. I hereby certify
the accuracy of the portion of the transcript, pages 72 through 83, as corrected, containing my
bench decision.4 A copy of that portion of the transcript is attached to this decision as the
“Appendix”.
Having found that the Respondent failed to comply with that portion of the Board’s order
requiring that it make offers of reinstatement to Brewer and Skinner, I shall require, as explained
in my bench decision, that the Respondent maintain Brewer and Skinner on the striker recall list,
in proper order of seniority, until such time as a position for which they are eligible, based on
seniority, becomes available and that it notify each of them that it will do so. Having found
further that there were no jobs available, at the conclusion of the strike, to which Brewer and
Skinner could have been reinstated because they lacked sufficient seniority, I have concluded
that back pay was tolled as of March 10, 2008. Because the Respondent has already made
Brewer and Skinner whole for back pay accrued to March 10, no further back pay is owed to
them at this time. Accordingly, I issue the following recommended5
ORDER
The Compliance Specification is dismissed, to the extent it seeks back pay for the period
after March 10, 2008.
Dated, Washington, D.C., August 26, 2009.
____________________
Michael A. Marcionese
Administrative Law Judge

3 There is no dispute that, pursuant to the settlement agreement, the Respondent recalled
only 103 unit employees. The Respondent’s contention that the number of available jobs had
been substantially reduced during the strike because of economic conditions was not disputed.
4 I have made the following corrections to the transcript:
Page 74, ln. 15-16: “offer agreeing statement” should be “offer of reinstatement”
Page 77, ln. 1 “implementing a” should read “equivalent”
Page 77, ln. 19 delete “to tell to”
Page 80, ln. 4 “disputing” should read “claiming”
Page 80, ln. 8 “their” should read ‘then”
Page 85, ln. 5 “a” should read “as”
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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Appendix
BENCH DECISION
I will start out by saying this was really one of the more difficult cases I’ve ever had to
confront. On the surface it may seem pretty simple and straightforward. Certainly there is not a
lot of evidence or facts in dispute. But it does raise some pretty significant issues in my mind at
least. And I have thought about it a lot both before coming here today as well as throughout the
course of the hearing this morning and listening to your arguments.
And so I’m prepared to make a Bench Decision, realizing that whatever decision I make
here probably won’t end here. Whoever is unsatisfied with my decision will probably take this to
the Board and this might be very well a case that the Board might want to consider the
implications of the decision. So pursuant to Section 102.35 A-10, which is the provision that
allows for the rendering of Bench Decisions, I will -- I am now prepared to issue my Decision in
this case.
Now this case is being heard here today pursuant to a Compliance Specification and
Notice of Hearing, which issued on May 29th, 2009 and was amended this morning. And then
subsequently the Respondent did file its Answer denying portions of the Compliance
Specification and raising certain issues, some of which have been abandoned as exhibited by
the stipulation that the parties have entered into today as Joint Exhibit 1.
So the issue remaining to be decided in this case is whether the Respondent has
complied with the Board’s Order and as enforced by the Court of Appeals. And in particular that
portion of the Order requiring that the Respondent reinstate and make whole Charging Party’s
discriminatees, Mr. Brewer and Mr. Skinner.
On June 3rd, 2008, Judge Carson found in the underlying proceeding that the
Respondent had violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate
striking employees upon their unconditional offers to return to work.
And that Decision involved three individuals who had each filed their own unfair labor
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practice charge: Mr. Brewer, Mr. Skinner, and Mr. Clifton, who is not -- whose status is not in
dispute in this case. And all of them had attempted to return to work before the strike ended.
The issue there was whether or not they had made an unconditional offer to return to work.
Judge Carson found that they had and that Respondent violated the Act by not taking them
back to work at that time and then on various dates when each were found to have made their
offer.
Now as a remedy for this unfair labor practice, Judge Carson ordered that the
Respondent offer reinstatement to Brewer and Skinner, acknowledging that Mr. Clifton had
already been reinstated, and make all three of the discriminatees whole for any loss of earnings
and benefits. And there is no dispute that Mr. Clifton has already been made whole and there is
no issue with respect to compliance with that portion of the Order.
Now according to Judge Carson back pay was to run in the case of Brewer and Skinner
from the date each was unlawfully denied reinstatement to the date of a proper offer of
reinstatement. No exceptions were filed. And the Board so adopted the judge’s Decision and
issued its Order July 18th, 2008. And on October 22nd, 2008, the Eighth Circuit Court of
Appeals enforced the Order by consent of the parties.
The General Counsel and Respondent having disagreed as to reinstatement and back
pay, the Spec issued and we find ourselves here today. And as I indicated previously, the facts
are pretty much undisputed in this case.
Now in one of the facts in particular that’s not in dispute and is what causes, I think, why
we’re here in the first place is that, as of the date of the judge’s Decision, the Respondent; the
Union, which is not here today, the UAW; and the General Counsel had already entered into a
Settlement Agreement in March of 2008 in another unfair labor practice case which apparently
was part of this case before the settlement, alleging multiple violations of the Act. And that
provided for reinstatement of 103 of the strikers as far as anyone, I guess, who had not worked
during the term of the strike, whether they be strikers or crossovers or lock down employees,
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however you wanted to classify them, and a preferential recall system for all of the other
employees. And I think the list attached to the Settlement Agreement contains about 240 some
odd names.
And there is no dispute that all three -- Mr. Clifton, Mr. Brewer, and Mr. Skinner -- their
names do appear on that list. And as I’ve already noted, Mr. Clifton was reinstated as one of
the 103 pursuant to that Settlement Agreement. And the other two, Mr. Brewer and Mr. Skinner,
are on the list under the preferential recall provisions of that Settlement Agreement.
Now also it’s clear that in the Settlement Agreement itself the parties specifically
reserved General Counsel’s right to prosecute these particular charges that we’re dealing with
compliance now. And it specifically said that nothing in the agreement will limit the back pay or
reinstatement rights of the Charging Parties in those cases, meaning these cases. And so
everybody obviously knew that was there when they signed it and they recognized it and agreed
to it.
Now today I did hear testimony from Mr. Stone, the Plant Manager at the Kohler Plant
here in Searcy, as to the steps the Respondent took to comply with the Settlement Agreement,
namely recalling the 103 individuals from that list by first by order of department seniority and
then about a year later after that practice had been challenged by the Union through the
grievance and arbitration procedure in order of Plant seniority. And there’s no dispute that
under either Plant or department seniority that neither Brewer nor Skinner would have been
among the first 103 individuals that were recalled on March 10th.
There’s also no dispute that no additional employees on the recall list have been
recalled since March 10th, 2008. And in fact, according to Mr. Stone, through attrition there are
now only 74 employees remaining in the Plant, including as far as I know, Mr. Clifton is still
working there.
Now the first issue as raised by the Compliance Specification and as outlined in the
parties’ arguments is whether or not the Respondent has complied with the Order requiring it --
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and that’s Paragraph 2-A of Judge Carson’s Order -- to offer Brewer and Skinner full
reinstatement to their former jobs or if those jobs no longer exist, to substantially equivalent
positions.
Now Respondent takes the position that it did comply with this portion of the Order by
sending Mr. Brewer and Mr. Skinner a copy of the Notice that was part of the Settlement
Agreement in the other parts of this case on March 31st, which references the recall of the 103
employees and the preferential recall rights for everyone else, including the names of Mr.
Brewer and Mr. Skinner.
Now General Counsel takes the position that that is not an effective offer of
reinstatement. And there’s no dispute. The parties have stipulated that there were no other
communications between Respondent and either Mr. Brewer or Mr. Skinner after Judge
Carson’s Order other than the one letter informing them that any reference to the failure to recall
has been expunged from their record.
As General Counsel has pointed out, the Board has consistently held that a
reinstatement offer to a discriminatee must be specific, unequivocal, and unconditional in order
to toll back pay. And it is the Respondent’s burden to establish that such an offer was made.
And General Counsel cites ADSCO Manufacturing Corporation. That’s A-D-S-C-O. And the
case cite is 322 NLRB 217 at Page 218, a 1996 case. And there, I’m sure, have been many
cases subsequent to that.
Now I find that in agreement with the General Counsel that Respondent has not met its
burden here. The March 31st Notice, which was not specifically addressed to Brewer or
Skinner that was sent before their case had even been heard nor any violation found, does not
satisfy the requirement of a specific unconditional or unequivocal offer of reinstatement.
Now Respondent could have sent a letter with the Notice specifically advising Mr.
Brewer and Mr. Skinner of their specific rights and pointing at to the preferential recall list as
governing their reinstatement in the event after the upcoming hearing that Respondent had
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been found to violate the Act. But there is not evidence that any such communication took
place.
Respondent could also have sent a letter after Judge Carson’s Order issued or after the
Board adopted that Order or even after the Court of Appeals issued its judgment by consent of
the parties specifically stating, “That to the extent we are required to reinstate you, please be
advised,” and then explaining what Respondent’s position was with respect to their
reinstatement rights. But there’s no evidence that any such communication was made to them.
I, therefore, agree with the General Counsel that Respondent has not satisfied its burden
of proof that an offer of reinstatement was made, regardless of how you define the word
reinstatement.
Now under a normal Reinstatement Order, back pay would normally continue to run until
such time as a valid, effective offer of reinstatement is made. But this case presents at least in
my view some unique circumstances which lead me to find that back pay is not due for the
period after March 10th of 2009, regardless of whether or not an effective offer of reinstatement
was made.
Now Respondent has not only denied that it failed to offer reinstatement to the
discriminatees, but it has essentially argued in its Answer and here today that any back pay
would have been tolled as of March 10th because the Respondents could not have been
reinstated to their former positions or a substantially equivalent position because such positions
did not exist based on the seniority that they held at the time of the unfair labor practice.
Now the Board’s policy with respect to remedial orders has always been to restore the
status quo ante to the extent possible. And essentially what that means is to place the
discriminatees in the position that they would have been in but for the unfair labor practice.
Now here in this case had Respondent not violated the Act, Mr. Brewer and Mr. Skinner
would have been reinstated upon their offers to return to work on or about -- I think one was
February 14th, 2007 and the other was on or about February 23rd, 2007. And they would have
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continued to work until March 8th, 2008, over a year, when they would have been laid off along
with the other replacement employees and crossover employees who were terminated at that
time pursuant to the Settlement Agreement.
Which, you know, no one is claiming that the Settlement Agreement is unlawful or in
violation of the Act or in any way nefarious. And then they would have been reinstated
subsequent to that, if at all, based on their first department wide and then Plant wide seniority.
Now as we all know, Mr. Clifton, because he had sufficient seniority, he was in fact
reinstated and made whole at that time. With respect to Mr. Brewer and Skinner, since there’s
no dispute that they did not have sufficient department or Plant wide seniority to be reinstated
on March 10th, they were made whole through March 10th, but their reinstatement rights after
that, had there been no ULP, would have been like everyone else, the majority of people in the
Bargaining Unit, who would have remained on a preferential recall list until such time as a job
opening arose.
To award back pay and require immediate reinstatement now as proposed by the
General Counsel would amount to a grant of super seniority to these employees based on their
having abandoned the strike before it came to an end. This is contrary to the policy of the
Board that’s articulated by the Board and the court in the George Banta Company, Incorporated
and by the Supreme Court in the Erie Resistor court cited by the Respondent.
Now I agree with the General Counsel that back pay and reinstatement rights in NLRB
proceedings are not private rights but vindication of public policy. But at the same time the
Board and the courts have consistently held that the Board’s orders are purely remedial, not
punitive. To require the Respondent to reinstate Mr. Brewer and Mr. Skinner now, displacing if
necessary a more senior employee, and to make them whole for back pay since March 10th
would not only be punitive, but it would be contrary to the policy under the Act against penalizing
employees who exercise their statutory right to strike.
Now while General Counsel says in her closing argument that they are not seeking
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super seniority for Mr. Brewer and Skinner, the practical effect of what she is requesting would
be to give them more seniority rights than other employees who did not abandon the Union
simply because they exercised their right to abandon the strike and return to work. Their
continued presence in the Plant would have an adverse impact on the seniority rights of other
employees who remain out of the Plant on the list awaiting recall.
Now my decision here, I believe, is consistent with Judge Carson’s Order, which
adopted by the Board and enforced by the court, because it recognizes that, while Respondent
did not make a valid offer of reinstatement, there was in fact no position available to reinstate
them to at the time of the Order. Similar to many other cases where by the time the Board
issues its Order reinstatement is unavailable because of intervening circumstances, whether
they be economic or otherwise such as Plant closure or lack of work.
Similarly my decision, I believe, is consistent with the Settlement Agreement because
while the Settlement Agreement specifically stated that nothing in the agreement would limit the
back pay or reinstatement rights of the Charging Party in those cases, meaning these cases,
their back pay and reinstatement rights have not been limited by my Recommended Order in
this case. They still have a right to be reinstated, the same right that they would have had to be
reinstated had Respondent never committed the unfair labor practice in the first place which is
in accordance with their Plant wide seniority.
Now of course, under my findings and conclusions today, both Mr. Brewer and Mr.
Skinner retain their rights to reinstatement in accordance with their Plant wide seniority until
either a job opens, they abandon their reinstatement rights, or the Plant should close.
In conclusion, having found that Respondent did not comply with that portion of the
Order that required that an offer of reinstatement be made, I shall recommend that Respondent
be directed to specifically extend to the Charging Parties the offer of reinstatement as
envisioned by the Settlement Agreement with respect to what their rights are for preferential
recall. But I will not recommend that any additional back pay be paid to the two disciminatees.
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All right, with that that concludes my decision in this case.
Pursuant to the Board’s Rules and Regulations, upon receipt of the transcript, I will issue
a formal written Order, which adopts the portions of the transcript pages that contain my Bench
Decision. At that point all parties have a right to file exceptions with the Board in Washington.
And I’ll refer you to the Statement of Procedures and the Board’s Rules and Regulations with
respect to the procedure to follow in filing your exception.
All right, if there is -- and nothing further, then the hearing is closed. Thank you all very
much.