Land O' Lakes, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1990

299 N.L.R.B. 982 (N.L.R.B. 1990)

982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Land 0' Lakes, Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, Local 70.
Cases 8-CA-20612 and 8-CA-20743
September 27, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 10, 1989, Administrative Law Judge
John H West issued the attached decision The Re-
spondent filed exceptions and a supporting brief
and the General Counsel filed an answering brief
to the Respondent's exceptions
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, findmgs, 1 and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Land 0'
Lakes, Inc , Kent, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order
'In adopting the judge's determination that the Union did not waive
its right to bargain about the reclassification of the maintenance purchas-
ing mechanic position, we rely particularly on Respondent Representa-
tive William Huron's testimony Huron testified that he was not "propos-
ing" at the October 28, 1987 bargaining session that the position became
a salaried management position but, rather, that he was only "thinking"
about It or "considering" It We thus find Union Respresentative Roger
Bemardez' comment of "your decision," or any version of it, was not a
response to any specific Respondent proposal and under these circum-
stances is far too ambiguous to constitute a waiver of the Union's right to
bargain over the reclassification of bargaining unit work We find It un-
likely that the Union Intended to relinquish the right to bargain about
what traditionally had been a bargaining unit position with such a cava-
lier statement and with virtually no discussion of the issue, and thus we
find that the Respondent, reasonably, could not construe it that way
This finding is buttressed by the Union's actions at the next scheduled
bargaining session where Bemardez immediately took issue with the Re-
spondent's actions concerning the maintenance purchasing mechanic posi-
tion We thus agree with the judge's finding that there was no waiver in
this case
Rufus L Warr, Esq , for the General Counsel
Edward B Miller, Esq (Pope, Ballard, Shepard & Fowle),
of Chicago, Illinois, and Rita Page Reus, Esq , of
Arden Hills, Minnesota, for the Respondent
Roger Bernardez, of Cleveland, Ohio, for the Charging
Party
DECISION
STATEMENT OF THE CASE
JOHN H WEST, Administrative Law Judge Upon
charges filed in 1987 and 1988 by the International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, Local 70 (the Umon),'
a complaint was issued on July 27, 1988, and, as amend-
ed, it alleges that Land O'Lakes, Inc violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act
(the Act), collectively, by (a) unlawfully discriminating
against its employee William Billock by unilaterally re-
moving the job to which Billock was assigned from the
Involved bargaining umt 2 and changing the job from an
hourly rated job to a salaried supervisory position on
November 12, 1987, (b) unlawfully discriminating against
Billock by transferring him to the second shift on Febru-
ary 8, 1988, and (c) unilaterally removing the classifica-
tion of maintenance purchasing mechanic/maintenance
storeroom attendant from the umt and unilaterally
changing it to a salaried supervisory position on Novem-
ber 12, 1987, without bargaining with the Union Re-
spondent denies that it violated the Act asserting that the
classification change was fully negotiated, the collective-
bargaining agreement reached between Respondent and
the Union did not include the said classification, and the
establishment of a supervisory or managenal position is
not a mandatory subject of bargaining
A hearing was held in Cleveland, Ohio, on March 7
and 8, 1989 On the entire record in this case, including
my observation of the demeanor of the witnesses and
consideration of the briefs filed by General Counsel and
the Respondent, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a Minnesota corporation with an office
and place of business in Kent, Ohio, is engaged in the
processing, nonretail sale, and distribution of agricultural
consumer products The complaint alleges, the Respond-
ent admits, and I find that at all times material Respond-
ent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and
that the Union has been a labor organization within the
meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
After the Union was certified in July 1987, It began
negotiations with Respondent for a first contract At the
1 The charge in Case 8-CA-20612 was filed December 11, 1987, and It
was amended on January 28, February 18, and July 21, 1988 The charge
in Case 8-CA-20743 was filed on February 16, 1988, and it was amended
on July 21, 1988
a The unit is described as follows
All production, distribution, maintenance and laboratory employees
employed by the employer at its Kent, Ohio facility, excluding all
temporary employees, all office clencal employees and professional
employees, guards and supervisors as defined in the Act
299 NLRB No 151
LAND 0' LAKES 983
third bargaining session, 3 which was held on October 28,
1987, the Union proposed that the maintenance purchas-
ing mechanic position be listed in the contract at the
class 5 pay rate Roger Bernardez, an International rep-
resentative with the Union who was negotiating the in-
volved contract, explained that the job was not in the
employee handbook (R Exh 2), since it was created
after the handbook was printed and it was performed by
a bargaining unit employee classified as a class 5 mechan-
ic Bemardez testified that he told Respondent's repre-
sentatives who were present that the position should go
in the contract as a class 5 rate because that was the rate
Respondent was paymg, 4 that Huron stated that Re-
spondent was looking at reevaluating the entire area and
Respondent might make the whole area salaried, 4 that
he, Bernardez, then said that any changes would have to
be negotiated and discussed at the bargaining table, and
that Huron then agreed to discuss it with the union rep-
resentatives 6
Willows testified that the maintenance storeroom posi-
tion was first discussed in negotiations on October 28
when Bemardez cited the fact that the Union's original
proposal was to make this position a separate classifica-
tion, that Huron then stated that Respondent was consid-
ering making this position a salaried position, that Ber-
nardez said "Well, if that's your call", and that the re-
mainder of the discussion on this subject at that session
was a request to consider BiHock for the position Wil-
low's notes of the session were received in evidence as
Respondent's Exhibit 5 and this matter is treated on page
5 thereof
Huron testified that at the October 28 meeting Bemar-
dez requested that the storeroom position be included
and that he, Huron, said that the Company was consider-
ing changing that job to a management salaried position,
that Bernardez said "that's your call", that at that time
Heaton said, "Well, we hope you'll consider Mr
lock" and Bernardez said, "We hope you would consider
3 At the first session, held on October 6, 1987, the Union gave its writ-
ten noneconomic proposals to the Respondent and It was agreed that Re-
spondent's employee handbook would stay in effect until a contract was
signed, that all the bargaining would take place at the table and the par-
ties would not go back to the memberslup with everything that was
going on, and that until there was a total agreement there would be no
agreement
* Respondent was represented at the negotiating sessions by Bill
Huron, who is its director of industrial relations, Frank Kumck, who was
the corporate manager of industrial relations, Richard Willows, who is
the Kent plant manager, and Dennis Parks, who is the distnbution man-
ager at Kent In addition to Bernardez, the Union was represented by the
following of Respondent's employees Ed Heaton, Terry McConville,
and Joe Raimen Respondent's employee Matthew Shuck replaced
McConville at the December 1, 1987 session
Bernardez testified that prior to this Respondent had not made any
oral or written proposal to the Union regarding this position
6 Bernardez testified that the only reason this matter came up during
this session was that Huron at the beginning of the session said he could
not evaluate the Union's noneconomic proposals until the Union laid out
its economic proposals and including the Involved position in the con-
tract as a class 5 position was one of the economic proposals Heaton tes-
tified that Bernardez said that any change in the storeroom position
would have to be discussed, that he did not think that the Company re-
sponded, that 2 or 3 minutes after Huron said that the Company was con-
sidenng making the storeroom position a management position, he,
Heaton, sarcastically said that if they were going to make the change, he
hoped that they would consider the incumbent, &Hock, and that he
thought Bernardez affirmed this comment
the incumbent", and that he did not state that the Com-
pany was proposing to make the involved position a sala-
ried management position but rather he said that the
Company was thinking about it or considering
Kunick, whose principal function during the negotia-
tions was to take notes, testified that when Huron said
that the Company was evaluating the storeroom position
and might make it a salaried job, Bernardez replied, ac-
cording to Kunick's notes (R Exh 29), by saying "your
decision", that Heaton then requested that the Company
consider Billock for the position and Bemardez con-
firmed this request, and that Bernardez did not say any-
thing to the effect that this matter would have to be dis-
cussed
Willows testified that he and George Eplmg, the main-
tenance manager, subsequently decided to change the po-
sition to a salaried position:7 that he had to get approval
from Respondent's vice president of manufacturing for
budget reasons to add the salaried position, and that the
main reasons the Respondent wanted to make the change
was that it wanted the person in the storeroom to be able
to have management and supervisory authority to not
only help to implement changes for the better in the op-
eration of the storeroom but also to implement tighter
controls over the inventory
On November 12, 1987, Respondent posted the posi-
tion as a salaried position thereby taking it out of the
bargaining unit Bemardez did not get in touch with
anyone at Respondent when he found out about the post-
ing and the fact that bargaining unit employees were bid-
ding on the job Rather, he waited until the next bargain-
ing session to address the issue Nothing transpired be-
tween the Union and the Respondent regarding this posi-
tion between October 28 and November 12, 1987
Billock, who was hired as a maintenance mechanic in
1982 at Respondent's Kent facility and who was assigned
to start a storeroom at the plant, set up a computerized
inventory system in 1984 8 When the job he held was
posted by the Respondent as a salaried position he bid on
it 9 Subsequently, he was interviewed for the position by
7 Epling testified that he recommended there be some changes made in
the storeroom position "to relieve some of the responsibility from
[his] job and make someone totally responsible for the storage depart-
ment "
As maintenance purchasing mechanic, Billock maintained the store-
room area, made sure that all of the parts were there in a timely manner,
took parts out of the plant to be machined, picked parts up, maintained
the inventory at proper levels (Willows estimated that the dollar value of
Respondent's Inventory of parts is approximately $600,003 and that Re-
spondent spends in the neighborhood of $400,000 a year on parts ), or-
dered parts writing up the requisition (in situations where the Respondent
had a contract with the supplier), called the supplier, had the part
shipped, received it, logged It in, and put It in stock or made sure the
mechanic received it On purchase orders, Bdlock called corporate and
got a purchase order number which he in turn would give to the vendor
Epling signed on both the requisitions and purchase orders and Willows
also signed the paperwork At the time of the election, this position was
in the bargaining unit and Bdlock's name was included on the list of
those eligible to vote in the election
9 Bdlock voted in the June 23, 1987 election which, as indicated above,
the Union won In 1986 he attempted to have the Teamsters organize Re-
spondent's Kent plant Regarding the instant drive, Billock's union activi-
ty consisted of attending union meetings and saying "bullshit" dunng an
employee meeting held by the Respondent which was conducted by
Continued
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his supervisor, Eplmg, and Willows BiHock testified that
Eplmg told him that he would not have any help be-
cause Eplmg believed that one person could do the job
and that if he did not take the job, he would stay on
days and the person in the maintenance department with
the least seniority would be bumped, that Epling said ba-
sically the job would stay the same, that Eplmg said that
he, &Bock, might be used to fill in for vacations as a su-
pervisor, that Willows also told him that if he did not
take the job, he would be staying on days and the
youngest man would be "moved back", and that when
he asked Willows if the job posting had anything to do
with "wanting me out of the storeroom," Willows said
that what happened in the past is in the past and this "is
not a means to try to end up firing you"
Willows testified that during his interview with Bil-
lock he told him that if he did not take the position( Re-
spondent would be following the handbook as closely as
possible, and that he did not tell Billock that he would
be placed on days
Eplmg testified that during his interview with Billock,
he told Billock that the job would require more than 40
hours a week and possibly 45 hours a week, that he dm-
, cussed the involved supervisory responsibilities to some
extent with him, and that he had the same discussion
with the other applicants for the position
The job was offered to Billock" but he turned it
down because he did not belive that the pay was high
enough Subsequently the position was taken by Jerry
Haupt 11 Billock trained Haupt for about 6 weeks 12
Dunng the training period Billock heard that he was
going to be put on second shift He asked Eplmg about
this and, according to Billock's testimony, Eplmg said
I don't agree with it, but it's coming from the front
office, they're saying its for legal reasons, you got
to go to second shift It ain't right, but I got to do
what I'm told
Eplmg testified that he discussed the abolishment
clause in the employee handbook, Respondent's Exhibit
2, with Billock, and that he told Billock that he would
be as fair as possible but that the ultimate decision had to
lows The meeting ended with Billock's utterance and his request to ask a
question Hillock testified that he made the utterance because Willows
was talking about how much he cared about the people, and in light of
past expenence Mock believed that Willows was "lying through his
teeth" and really "didn't give a damn about the people" Subsequently,
&Hock apologized to Willows for the utterance Willows testified that he
did not know of any union activity on the part of Billock, that Billock's
utterance "sort of pissed Dim] off', and that the utterance had no
Impact whatsoever on his decision to change the storeroom to a salaried
position
1 ° Willows testified that he concurred with Eplmg that Mock be of-
fered the position
ii At the time Haupt was a laboratory technician, which was an
hourly bargaining unit position Willows testified that on the day of the
aforementioned election he observed Haupt wearing a UAW ballcap
which he, Willows, assumed meant that Haupt may have been in favor of
the Union Haupt testified that he attended most of the union meetings
during the organizing campaign and that on the day of the election he
did wear a union cap in the plant
12 Hillock testified that Haupt was basically doing most of the work
which he, }Mock, did when he held the position, except that Haupt did
not send as much out to machine shops, and that when Haupt is on vaca-
tion Dan Gibson, a bargaining unit employee, does the job
be made by corporate when they clarified the job abol-
ishment clause
At the December 1, 1987 bargaining session, Bemar-
dez stated that he believed that Respondent was in viola-
tion of its duty to bargain, that the job had been certified
by the National Labor Relations Board (Board) as part
of the bargaining unit, and that the only way the job
could be removed was through negotiations Bemardez
testified that Huron replied that Respondent had a right
to post the job as a salaried position, 13 and that he, Ber-
nardez, told Huron that if that was his position, Re-
spondent was headed for an unfair labor practice charge
Huron testified that at the December 1 meeting Ber-
nardez said that he was not happy with what happened
to Billock and the company representatives had
misinter`reted what he said at the prior meting and he,
Bemardez did not agree with what the Company was
doing, that he, Huron, told Bemardez that he had said it
was the Company's call at the October 28 meting, and
that Bernardez said that he did not agree and that he was
going to file a charge with the Board On cross-examina-
tion, Huron testified that the ground rule about no agree-
ment would be reached or no provision wold be imple-
mented until all items had been agreed to, ratified and
the contract signed was never changed, that during the
bargaining after December 1 there was a lot of discus-
sion about whether or not the storeroom position would
be included in the umt and he and Bemardez always
maintained their respective positions, and that the Com-
pany "gave up every classification Em question] except
the store room" On redirect, Huron testified that he
posted the storeroom position because he considered that
position to be specifically outside the scope of the bar-
gammg—he considered it to have been a decision that
management had the total right to make—and that Ber-
nardez , in light of his statement that it was the Compa-
ny's call, agreed, and that he never told Bemardez that
the subject of the storeroom classification being included
or not included in the agreement was not bargamable
and m fact he, Huron, offered to trade the janitors for
the toolroom
Bemardez told Respondent's representatives at the
January 5, 1988 bargaining session" that he filed a
charge with the Board on December 11, 1987, and that
as long as the Respondent maintained its position that it
did not have to bargain on that issue, then the Union's
position was that the Board would settle the dispute
During the January 14, 1988 bargaining session Huron
stated that there would be no agreement unless the
Union withdrew the above-described charge
At the January 15 bargaining session Respondent gave
the Union its best and fmal offer with the first demand
being that the Union withdraw the above-described
charge The union rejected that proposal
Subsequently, Bemardez had a telephone conversation
with Huron in which he, Bemardez, indicated that Re-
spondent was looking at another charge by demanding
12 Willows testified that during the negotiations he never heard Huron
tell the union representatives that he would not bargain about the store-
room position
14 There was also a bargaining session on December 2, 1987
LAND 0' LAKES 985
that the Union withdraw the charge Huron then sent the
Union a letter dated January 18, 1988, indicating that the
negotiations would not be held up because the Union
would not withdraw the charge
Willows sponsored a document dated January 21,
1988, titled Land O'Lakes, Inc Position Title Mainte-
nance Central Storeroom Coord , Respondent's Exhibit
1 The document describes the involved job including
"Serves as a relief Maintenance Supervisor as assigned"
Huron, at the February 2, 1988 bargaining session,
gave the Union another proposal mdicatmg that Re-
spondent had withdrawn its demand that the Umon
withdraw the aforementioned charge Bemardez testified
that Huron still argued that it was solely up to Respond-
ent whether the job could be made a salaned position
and Respondent would not bargain with the Umon over
that issue, and that he, Bemardez, told Huron that the
dispute would be settled by the Board
On February 8, 1988, &Hock was transferred to the
second shift as a maintenance mechanic He asked Eplmg
why he was being sent to the second shift when he was
the most senior maintenance person Eplmg, according to
Billock's testimony, told him that he was going on the
second shift to fill an opening and "that was the legal
rendering from corporate that that's where I should be
placed because of the so called opening" &Hock testi-
fied that an employee was laid off 1 month or 6 weeks
before that and assertedly he was filling the opening
After speaking to Eplmg, &flock read that portion of the
employee handbook which indicates as follows
JOB DISCONTINUANCE
In the event your present job is abolished, senior-
ity, qualifications, and job availability will deter-
mine your assignment Depending upon the circum-
stances, you may be moved to any open job If no
job is open, you will be required to take the job of
the least senior employee in the department In all
cases, you will receive the rate of the job to which
you are assigned 15
Willows testified that &Hock displaced Bill Andrei,
who was the least senior employee in the maintenance
department Andrei worked on the second shift
According to the testimony of Bemardez, at the Feb-
ruary 26, 1988 session Respondent and the Union
reached a tentative agreement, with the Union still main-
taining its position that the above-described dispute
would be settled by the Board 16 Bemardez testified that
he signed the contract even though it did not include the
involved position because the Union still had the charge
pending
Regarding alleged improvements which flowed from
the change, Willows testified that while the computer-
15 The position to which he was transferred pays the same hourly rate
as he received while working in the storeroom
" Dunng negotiations Respondent proposed removing the custodian's
job from the bargaining unit That position, however, remained a bargain-
ing unit job and was Included in the contract as such Respondent also
proposed to delete from the unit certain other classifications such as ap-
prentices and the laboratory technologist trainee but they were Included
in the Involved collective-bargaining agreement The maintenance pur-
chasing mechanic's job was not included in the contract
•
ized mventory control system was less than 50-percent
effective and operational before this change, now it is ba-
sically 90-to 100-percent operational, that now there is
more accurate control of the inventory so that Respond-
ent knows what it has, and that he believed that "[t]he
actual supervision of the area has much improved
because now [Respondent has] a person in place
[who] is able to direct any activities that goes on in
that department in terms of pulling parts out, ordering
parts, dealing with vendors and prices and so forth"
Eplmg testified that Haupt has complete authority to
make any changes necessary in the department, and to
do the purchasing in the department up to $1000, that he
stamps the purchase orders involving under $1000 but
that he does not scrutinize a purchase order under $1000
as much as he did with &flock, that he could not say
what the dollar figure was with &Hock, that Haupt su-
pervises hourly employee Dan Gibson when he acts as a
parts runner, that Gibson fills m when Haupt is on vaca-
tion, that Haupt is on a roster for weekend fill-in supervi-
sors, that when Haupt does that supervision, he directs
both production and maintenance people, and that
Haupt, unlike Billock, has total responsibility to select
suppliers
Haupt testified that if the incoming part costs more
than $800 he speaks to Eplmg about the order, that nor-
mally he leaves the purchase requisitions on Eplmg's
desk every evening and if Eplmg is not there the next
day, he, Haupt, signs them, that when he took the job he
was told that there was $600,000 worth of inventory,
that he also handles the lawn service contract, which
was a responsibility &Hock did not have and which pre-
viously was handled by Eplmg, and that he has never
told a person who fills in for him that he, the temporary
replacement, has the authority to make the choice among
suppliers or that he has the authority to deal with outside
contractors with respect to the building and grounds but
that such person, if Haupt is gone for an extended period
of time, does "enter m the maintenance transactions
[a]nd if there's anything that needs orders, he will do the
ordering"
Gregory Richardson, Respondent's plant accounting
manager at Kent, sponsored two exhibits, Respondent's
42 and 43, which showed, respectively, that &Rock
earned a total of $25,916 ($24,285 for regular hours and
$1630 for overtime) for 1987 and a total of $25,991
($24,283 for regular hours and $1707 for overtime hours)
for 1988, and that Haupt had total earnings of $27,888
($27,152 for straight time and $735 for overtime earned
before he took the salaried position) for 1988
B Contentions
General Counsel, on brief, contends that Heaton's
comment that Respondent should consider &flock for
the position did not mean that the Union agreed that Re-
spondent was free to unilaterally remove the job from
the bargaining unit and that the Union did not even want
to bargain about it, that the Respondent did not make a
proposal, but rather for the first time in the negotiations
and in response to a proposal of the Union, said only that
it was considering a change, that Respondent never pre-
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sented any proposal either written or verbal to actually
make the change, that it makes no sense from a bargain-
ing standpoint for the Union to agree that this change
could be made unilaterally by Respondent and such an
assertion is clearly contradicted by the testimony of Ber-
nardez and Heaton, that even if the testimony of the Re-
spondent's witnesses that Bemardez said either "That's
your call" or "That's your decision" is credited, these
words in and of themselves are ambiguous and must be
given a reasonable interpretation in view of the sur-
rounding circumstances, that such words would merely
have been an acknowledgement that Respondent could
lawfully evaluate the situation and decide on what it
wanted to propose to the Union, that, on the other hand,
it is not reasonable to assert that these words, if they
were spoken, were intended to give the Respondent the
blanket right, unilaterally, and without negotiating with
the Union, to remove the maintenance purchasing me-
chanic position from the bargaining unit without receiv-
ing anything in return, that Respondent violated Section
8(a)(5) of the Act not only because it failed to notify the
Union that it had reached a decision and was willing to
bargain regarding the decision but the removal of the job
from the unit prior to the conclusion of the negotiations
was contrary to the agreed-upon guidelines that there
would be no agreement until there was a total agree-
ment, that no other proposal of either party, and no
other item tentatively agreed upon by the parties, was
implemented until after the parties had concluded negoti-
ations and had executed the collective-bargaining agree-
ment, that the evidence presented at the hearing herein,
even that presented by the Respondent, is contrary to its
incredible assertion that subsequent to December 1, 1987,
Respondent was willing to bargain about the removal of
the maintenance purchasing mechanic from the bargain-
ing unit, that it was evident to Respondent that &Hock
supported the Union, that because of Billock's sentiments
as well as because of Respondent's employees actions m
selecting the Union as their bargaining representative,
Respondent retaliated by removing the job in question
from the bargaining unit, and that inasmuch as Billock's
conditions of employment were changed by Respond-
ent's decision and ultimate removal of the job from the
bargaining unit, the Respondent discriminated against
Hock in violation of Section 8(a)(3) and (1) of the Act
Respondent, on brief, argues that &Rock was not dis-
criminated against because of union or concerted activity
since the evidence will not support a finding that Re-
spondent had any knowledge of union or concerted ac-
tivity by &Hock, he is not shown in this record to have
engaged in union or concerted activity, there is no evi-
dence of antiunion animus against either &Hock person-
ally or the UAW, there was no unfair discriminatory or
retaliatory conduct toward BiBock since he was offered
more salary and a better position, and his eventual trans-
fer was simply the application of a standard policy for
placing an employee whose position is discontinued and
he suffered no loss of status or earnings, that the mainte-
nance central storeroom coordinator position is both
managerial and supervisory in that the job description
clearly identifies managerial and supervisory responsibil-
ities and the testimony as to actual performance of the
incumbent makes clear that the job is both managerial
and supervisory in that (a) the purpose of creating the
position was to vest greater responsibility in the position
and that purpose has been fulfilled, (b) the new position
is managerial within the Board's interpretation of that
term, and (c) the new position is supervisory within the
Board's interpretation of Section 2(11) of the Act and
any similarities between the position of maintenance cen-
tral storeroom coordinator and the former position of
purchasing mechanic have no legal significance as to the
managerial or supervisory status of the new position, that
the Union had no right to demand bargaining on wheth-
er Respondent could create a new supervisory and mana-
gerial position since management has the right under the
law to create managerial and supervisory jobs, that Re-
spondent fulfilled such bargaining duties as it may have
had with respect to the effects of the decision on the bar-
gaining unit in that (a) the law no longer mandates bar-
gaining about a decision to transfer work outside the bar-
gaining unit unless the decision turns on labor costs, (b)
in any event, Respondent did not violate its bargaining
obligations insofar as those obligations required bargain-
ing over the performance of bargaining unit work by a
manager and supervisor since the Union waived any
right to bargain about the new position, there was no
Union request to bargain over the only possible bargama-
ble issue, namely, the extent of bargaining unit work
which might be performed by the holder of the new po-
sition, and to the extent there was any bargaining, it re-
sulted in either agreement or impasse, either of which
permitted the Respondent to move forward with its
plans, that on every theory Respondent must be found
innocent of any 8(a)(5) violation, and that no remedial
action is required in any event since there has been no
loss of pay or status by Billock
C Analysis
Taking the last of the above-described complaint alle-
gations first, in my opinion Respondent, in unilaterally
removing the classification of maintenance purchasing
mechanic/maintenance storeroom attendant from the unit
and changing it to a salaried position on November 12,
1987, without bargammg with the Union, unlawfully uni-
laterally assigned bargaining unit work to a supervisor
As I noted at page 1032 m Cincinnati Enquirer, 279
NLRB 1023 (1986), "the Board in Fry Foods, 241 NLRB
76 (1979), affirmed the conclusions of an administrative
law judge that 'the reclassification of a position from a
bargaining unit job to a nonumt job is a mandatory sub-
ject of collective bargaining if the reclassification has an
impact on bargaining unit work' and '[h]ere the impact is
quite clear because the new supervisor continued to
do [u]nit work " In the instant proceeding, the new
supervisor continued to do unit work and the involved
removal of work from the unit resulted in lock dis-
placing an employee with less seniority In my opinion,
the involved change had an impact on bargaining unit
work and it was a mandatory subject of bargaining
Respondent contends that the Union waived any nght
to bargain about the involved change No matter who is
credited, the evidence about the significance of what was
LAND 0' LAKES 987
said at the October 28, 1987 meeting, after Huron indi-
cated that Respondent was considering changing the job
to a management position, is ambiguous In my opinion,
at the October 28, 1987 session the Union did not waive
its right to bargain about this matter And, none of what
did or did not subsequently occur resulted in a waiver
As noted above, Respondent, in the alternative, argues
that to the extent there was any bargaining, it resulted in
either agreement or impasse permitting Respondent to
move forward with its plans There was no real bargain-
ing on this issue There was no agreement on this issue
And, there was no impasse on this issue Respondent, as
alleged, violated Section 8(a)(1) and (5) of the Act by
unilaterally assigning bargaining unit work, which had
previously been done by the maintenance purchasing
mechanic/maintenance storeroom attendant, to a supervi-
sor without bargaining with the Union
The complaint also alleges that Respondent unlawfully
discriminated against BiHock by (a) making the above-de-
scribed change and (b) subsequently transferring him to
the second shift Regarding the former, since Respondent
offered &Hock the position it is difficult to understand
how it unlawfully discriminated against him as an indi-
vidual unless it is shown that Respondent wanted to
place BiHock in a management position and then let him
go in retaliation for his union activity or his concerted
protected activity or both (assuming that Respondent
knew of either which, in my opimon, was not demon-
strated), BiBock knew, and, therefore, he had no real
choice Such a showing was not made Also, it was not
shown that Billock's transfer failed to follow the Compa-
ny's policy as set forth in the employee handbook In this
regard, there has been no showing that Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act
and discriminated with respect to the hire or tenure or
terms or conditions of employment of its employees,
thereby discouraging membership in a labor organization
Respondent has not violated Section 8(a)(1) and (3) of
the Act
Since Billock's transfer was the result of Respondent's
unlawful unilateral change, it will be recommended that
it also be rescinded The parties should be placed in the
position they were m before Respondent engaged m its
unlawful conduct And Billock should be put in the posi-
tion he occupied before Respondent engaged in its un-
lawful conduct
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The following employees of Respondent, hereinafter
called the unit, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act
All production, distribution, maintenance and labo-
ratory employees employed by the employer at its
Kent, Ohio facility, excluding all employees, guards
and supervisors as defined in the Act
4 On July 1, 1987, the Union was certified as the ex-
clusive collective-bargaining representative of the unit
5 At all times since July 1, 1987, the Union by virtue
of Section 9(a) of the Act, has been, and is, the exclusive
representative of the unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment
6 By unilaterally assigning bargaining unit work
which had previously been done by the maintenance pur-
chasing mechanic/maintenance storeroom attendant, to a
supervisor on or about November 12, 1987, without af-
fording the Union an opportunity to negotiate and bar-
gain, Respondent violated Section 8(a)(5) and (1) of the
Act
7 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that Re-
spondent cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally assigning bargaining
unit work which had previously been done by the main-
tenance purchasing mechanic/maintenance storeroom at-
tendant to a supervisor without bargaining with the
Union, it will be recommended that Respondent rescind
the unilateral change and, henceforth, bargain with the
Union concerning any contemplated changes in the
wages, hours, working conditions, and other terms and
conditions of employment of bargaining unit employees
Since William Billock's transfer was a result of the un-
lawful unilateral change, it will be recommended that the
transfer should be rescinded and that BiHock be put on
the first shift in the job he held when Respondent acted
unlawfully, namely, the maintenance purchasing
mechanic/maintenance storeroom attendant position
Also, Respondent will be ordered to make William
lock and any other involved employee whole for any
loss of earnings they may have suffered, including mter-
est as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987) 17
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
17 Under New Horizons, Interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 USC §6621
18 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
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Land O'Lakes, Inc , Kent, Ohio, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively with the Union, as
the exclusive representative of the employees in the bar-
gaining unit, by unilaterally assigning bargaining unit
work which had previously been done by the mainte-
nance purchasing mechanic/maintenance storeroom at-
tendant to a supervisor, without bargaining with the
Union
(b) 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) Rescind the unilateral change made with respect to
the maintenance purchasing mechanic/maintenance
storeroom attendant's position
(b) Rescind the transfer of William Billock and put
him back on the first shift in the position he held when
Respondent acted unlawfully, namely, the maintenance
purchasing mechanic/maintenance storeroom attendant's
position
(c) Make whole, with interest, William Billock and any
other employee for any lost wages which they may have
suffered as a result of the above-described unlawful uni-
lateral change, in the manner set forth in the section of
the decision remedy
(d) On request, meet and bargain collectively with the
Union, as the exclusive bargaining representative of the
employees in the unit, .concerning any contemplated
changes in the rates of pay, wages, hours of employment,
and other terms and conditions of employment and, if an
understanding is reached, embody such understandmg
a signed agreement
(e) 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 all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(f) Post at its Kent, Ohio facility copies of the attached
notice marked "Appendix " 9 Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous including all places where notices to em-
ployees are customarily posted Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by other material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply
19 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"
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 refuse to bargain with International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, Local 70 (Union) as the
exclusive bargaining representative of the employees in
the bargaining unit set forth below by unilaterally assign-
ing bargaining unit work, which had previously been
done by the maintenance purchasing mechanic/main-
tenance storeroom attendant to a supervisor, without
bargaining with the Union The appropnate unit is
All production, distribution, maintenance and labo-
ratory employees employed by the employer at its
Kent, Ohio facility, excluding all temporary em-
ployees, all office clerical employees and profession-
al employees, guards and supervisors as defined in
the Act
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
WE WILL rescind the unilateral changes made with re-
spect to the maintenance purchasing mechanic/main-
tenance storeroom attendant position, which changes
were made without bargaining with the Union
WE WILL rescind William Billock's transfer to the
second shift and we will place him back in the mainte-
nance purchasing mechanic/maintenance storeroom at-
tendant's position on the first shift
WE WILL make whole, with interest, William Billock
and any other Involved employee for any lost wages
they may have suffered as a result of the above-described
unlawful unilateral changes we made
WE WILL, on request, meet and bargain with the
Union, as the exclusive bargaining representative of the
employees in the unit, concerning rates of pay, wages,
hours of employment, and other terms and conditions of
employment and any contemplated changes therein and,
if an understanding is reached, embody such understand-
mg in a signed agreement
LAND O'LAKES, INC