Kohler Co.

National Labor Relations Board - Board Decisions

Jan 23, 1985

273 N.L.R.B. 1580 (N.L.R.B. 1985)

1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kohler Company and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, Local Union
833. Cases 30-CA-7372 and 30-CA-7644
23 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 16 April 1984 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Union filed exceptions and a supporting brief, and
the Respondent filed an answering brief, cross-ex-
ceptions, and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 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, Kohler
Company, Kohler, Wisconsin, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
1 In the absence of exceptions we adopt the Judge's conclusion that the
Respondent violated Sec 8(a)(1) of the Act by coercively interrogating
employees regarding their support for the bargaining positions taken by
the Union
We adopt the judge's conclusion that the Respondent violated Sec
8(a)(5) by unilaterally removing the stock clerk position from the bar-
gaining unit In so doing, we particularly rely on the Respondent's admis-
sion that it redefined the stock clerk Job description for the purpose of
removing that position from the bargaining unit, and we note that such
action is not a right granted the Respondent by the contractual manage-
ment-rights clause
While we adopt the Judge's finding that the Union waived its right to
bargain over the Respondent's decision to subcontract certain Janitorial
work which the unit employees previously had performed, we disavow
the Judge's discussion based principally on Westinghouse Electric Carp,
150 NLRB 1574 (1965), of the criteria for determining whether unilateral
subcontracting violates the Act See Otis Elevator Ca, 269 NLRB 891
(1984) (opinion by Chairman Dotson and Member Hunter and concurring
opinion by Member Dennis)
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge
Charges in these cases were filed on October 1, 1982,
April 1 and 11, 1983, and May 5, 1983, and complaints
issued on December 8, 1982, and May 12, 1983 The
cases were consolidated and heard before me at Sheboy-
gan, Wisconsin, on 5 days between September 12 and
December 8, 1983. Briefs were filed on behalf of the
General Counsel and Respondent on January 17, 1984
The cases involve allegations of threats to remove bar-
gaimng unit work from the plant, of threats to refuse to
process grievances, of issuing discriminatory oral and
written work warnings, of subcontracting unit work, and
of removing an employee from the bargaining unit, all in
violation of Section 8(a)(1) and (5) and Section 8(d) of
the National Labor Relations Act (the Act)
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed, I make the following
FINDINGS OF FACT
I JURISDICTION AND BACKGROUND
Kohler Company (Respondent), with principal busi-
ness facilities at Kohler, Wisconsin, and other facilities
elsewhere, including South Carolina and Texas, manufac-
tures and wholesales plumbing products, engines, and
generators It admits, and I find, that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
Local Union No 833, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW
(the Union) is a labor organization within the meaning of
Section 2(5) of th._: Act, representing the following unit
of Respondent's employees at Kohler, Wisconsin:
All production and maintenance employees, includ-
ing all planning and general clerical employees, all
production inspection employees, all maintenance
employees, all utilities engineering employees (all
operations at power house and gas utilities), all iron
foundry employees, all casting finishing employees,
all mill room employees, all enamel shop employ-
ees, all warehouse employees, all brass employees,
all pottery employees, all engine employees and all
generator employees; but excluding all supervisory
and administrative employees, all general office and
clerical employees, all draftsmen and engineers, all
employees in industrial engineering, all technicians
(engine development, generator development, qual-
ity assurance and inspection, pottery, iron foundry
lab, mill room and gas service), all doctors, nurses,
and clerical employees in Medical, all employees in
personnel, training, safety and recreation depart-
ments, all employees in chemical and physical lab-
oratories, research and development departments,
all production planners and schedulers, material
control clerks and timekeepers, all employees in real
estate division and landscape, all confidential em-
ployees, watchmen, gatemen, courtesy vehicle
driver, guards and supervisors as defined in the Act
The Union and Respondent have entered into succes-
sive collective-bargaining agreements over the years, the
pertinent agreement running from December 23, 1980,
through October 1, 1983
273 NLRB No, 195
KOHLER CO. 1581
IL ALLEGED UNFAIR LABOR PRACTICES
A. Threats to Remove Bargaining Unit Work
I. Facts
In December 1981, Respondent added to its Wisconsin
plant the new process of injection molding, on which
wage scales were not in effect. In January/February
1982, 1 Respondent sent the Union a wage proposal for
those positions of $4.50 per hour. This and other propos-
als were addressed at a grievance meeting on April 7.
Respondent's notes of that meeting state that Kenneth
Conger, Respondent's vice president for administration,
began the meeting with a statement, inter alia, that:
Business conditions are very bad. . .
Kohler Co. should freeze c-o-1, impose 10 per-
cent (wage) cut, etc. We're not doing this today but
we must try to avoid further problems.
The average Kohler factory employee earns over
$20,000/year (on a 40-hour week).
Spartanburg (South Carolina) and Brownwood
(Texas) rates considerably lower. When times are
tough, $20,000 is too much. It means that when Pot-
tery puts in a new product, we must look at advan-
tages of other locations.
We must now look at:. . .
(IV) Rates for new jobs—and for new businesses.
We must be competitive with Sheboygan and
Wisconsin.
This must be a joint effort—if we don't get relief,
the jobs won't be there.
We'll come back in 2-3 months, if business
doesn't improve, to inform you of further necessary
moves.
In the discussion following, Conger specifically stated:
When business improves, we'll face a tight labor
market. We'll have to decide where to produce
product. -
The meeting ended with a statement by management, re-
garding the new injection molding process, that:
We're debugging now, this is a new and different
operation. $6.50 rate will apply temporarily.
At another grievance meeting, held May 13, the sub-
ject of rates arose again. Respondent's notes of this meet-
ing indicate that its representatives made the following
statements:
I understand you won't negotiate any new pay
standards.
Let's keep the jobs here. $6.50 per hour is
$13,000 plus per year. There are many jobs in She-
boygan that don't pay more than $13,000-$15,000.
If you refuse to recognize our need to be com-
petitive, we'll have to tell 4th floor (Board of Di-
rectors) to forget it—move the jobs elsewhere.
All dates are m 1982 unless otherwise specified.
We're not talking about just four people. We're
talking about future—when maybe 200 people could
be involved.
Union President Lettre testified that Conger's statements
at that meeting were that Respondent was speaking
about not only injection molding. Conger testified that
he "would recommend to the Board for consideration
that injection molding be removed if the union and com-
pany could not agree to rates, and the new processes not
be put in Kohler, Wisconsin if some agreement could not
be worked out." (Emphasis added.)
The issue of rates was not settled. On August 2, the
Union initiated an action against Respondent in the local
Federal district court. Conger addressed a letter to an of-
fiCial of the International Union on August 25, in which
he reiterated, "The issue simply is whether jobs of this
type will be added in Wisconsin or whether they will
have to be assigned to areas where fair, but lower, pay
scales are now in existence. . . . Injection Molding cur-
rently involves only two employees and is never likely
to require a large number of workers, so the impact of
this particular operation is not of great significance. But
we are talking about a principle which potentially will
involve the location of hundreds of new jobs as we
expand into new products and new materials."
At the meeting held July 1 on a grievance regarding a
reduction in pay rate for casting in the pottery division,
Union Steward Klabechek and Local Union President
Lettre testified that Respondent's head of industrial engi-
neering, Del Miller, stated the problem involved the re-
duced pace of the workers and that, as Klabechek re-
ported, "if these people didn't want to increase their pay,
to make up the difference in the money they were losing,
that they could make the pottery cheaper down in South
Carolina and that the cull was less . . . there and if we
did not settle these rates, that it would be removed down
there."
Conger and Miller testified that no such comment was
made. Notes of the meeting made by Respondent do not
reflect such a conversation. Notes made by the Union
were not produced though, in lieu of issuing a requested
subpoena the Union's president was directed by me to
produce them if available. His testimony was that the
notes were not available. The individual who took the
notes for the Union was not produced as a witness.
The contract between Respondent and the Union has
no provisions directly limiting transfer of bargaining unit
work, whether of new and experimental work or of
work which had been done for a long period of time.
The management functions provision of article II in fact
provides in part:
It is agreed that the management of the Company
and its business and the direction of its working
forces is vested exclusively in the Company, and
that this includes, but is not limited to the follow-
ing: to direct and supervise the work of its employ-
ees; to hire, promote, transfer or lay off employees;
or demote, suspend, discipline or discharge employ-
. ees for cause; to plan, direct and control operations;
to determine the amount and quality of the work
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
needed, by whom it shall be performed and the loca-
tion where such work shall be performed; to introduce
new or improved methods or facilities, or to change
existing manufacturing practices, designs, methods
and facilities. . . . The Company's exercise of the
foregoing functions shall be limited only by the ex-
press provisions of this contract and the Company
has all the rights which it had at common law
except those expressly bargained away in this agree-
ment and except as limited by statute. This Article
shall be liberally construed. [Emphasis added ]
2. Discussion
The complaint alleges two threats to remove bargain-
ing unit work: one by Conger at the meeting of May 13
and one by Miller at the meeting of July 1 Without re-
solving the direct conflict of testimony as to what state-
ments were made or not made by Miller on July 1, let us
first examine Respondent's arguments, which I find pre-
vailing even if the statement were made as alleged.
Respondent argues that since the actions allegedly
threatened were themselves not illegal, the alleged utter-
ing of the threats could not themselves have been illegal.
On January 25, 1984, the Board on remand reversed its
prior holding in Milwaukee Spring Division, 265 NLRB
206 (1982), and held that an employer subject to the Act
is permitted to move operations from union to nonunion
plants in order to avoid higher union wages, unless a col-
lective-bargaining contract specifically prohibited such a
move, and providing the employer has satisfied any obli-
gation to bargain with the union regarding the move.
A change in location where specific work is to be
done and in the personnel doing it are subjects of manda-
tory bargaining and, ordinarily, under the precepts of
Milwaukee Spring II, supra, while management can uni-
laterally make these changes it must still bargain with the
union regarding them However, where there is a broad
management-rights clause in the existing bargaining
agreement, as exists here, the Union has already been
given its opportunity to bargain and has waived it. Since
the proposed changes do not themselves violate the Act,
the proposals themselves cannot constitute a violation.
Therefore, the proposals to move unit work to other
plants if acceptable wage rates could not be negotiated,
the Union having waived its right to bargain over such a
move, were not "threats in violation of the Act."
B. Subcontract Cleaning Service
1. Facts
Cleaning Respondent's facility was accomplished by
production sanitation personnel, who are members of the
bargaining unit, or by office janitorial personnel, who are
not. Respondent and the Union have not always been
consistent in applying this differentiation. In the early
1970s, production sanitation personnel cleaned all of
building 5N, including offices, while in 1975 newly con-
verted office space in the same building was cleaned by
office janitorial personnel as were areas of the plumbing
office and the employee safety, benefits and recreation
departments From 1975 to 1978 various changes took
place in cleaning offices at the generating plant and in
the service parts section, and no clear distinction arose as
to which group was assigned to clean restrooms utilized
by both production and office workers.
In 1981 Respondent began construction of a new dis-
tribution center (the DC) for warehousing, shipping, and
receiving operations which had been treated as part of
the production rather than the office work, the cleaning
of which would normally be done by unit members.
Shipping and warehouse production employees, and
brass department employees were tranferred to the DC
between March 1982 and April 1983
Cleaning of the DC was at first done by each individ-
ual working there, for himself, whether of production or
of office area. On a comparison of cleaning costs when
the work was done by bargaining unit personnel, by non-
unit personnel, or by outside contractor, Respondent
contracted the cleaning work in the DC to an outside
agency commencing September 8. That agency more or
less evenly divides its time between cleaning production
areas and office areas. At the time the outside agency
began its work a number of unit-member sanitation
workers were laid off, purportedly because of a "lack of
work."
The Respondent has contracted out work of the bar-
gaining unit in other instances dating from 1973. Such
subcontracts have related to work in the plumbing and
specialty products division, the pottery division, the sani-
tation division, and the engine division, and to window
cleaning
2. Discussion
An employer is obligated to bargain on the issue of
contracting out work done by members of the bargaining
unit. Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964). In
determining whether unilateral subcontracting violates
the Act, the Board examines the following five cntena:2
Whether it was motivated solely by economic condi-
tions; whether it "comported with the traditional meth-
ods" of Respondent's business operations; whether it sig-
nificantly vaned from past practice; whether the union
had opportunity to bargain on the changes at general ne-
gotiating meetings, and whether it had a demonstrable
adverse impact on bargaining unit employees. General
Motors Corp., 257 NLRB 820, 823 (1981), and cases cited
therein.
The facts stated above show that the Union, in negoti-
ating the current contract with its broad management-
rights provision, had an opportunity to bargain the issue.
It is also shown that the contracting out was based only
on an economic basis, and that though bargaining unit
employees were injured by Respondent's action there
was no union animus. Finally, there is a history of con-
tracting out certain suboperations and window cleaning
as a prior and traditional business practice. In the totality
of the evidence it is clear that Respondent retained the
right to contract out the janitorial work, and thus the
action did not constitute a violation of the Act.
2 Westinghouse Electric Corp, 150 NLRB 1574 (1965)
KOHLER CO. 1583
C Position Reclassification
1 Facts
Respondent employs more than 20 stock control clerks
(SCCs) throughout its operations, with differing func-
tions Cassie Stemper was the SCC in the maintenance
stores department, within the bargaining unit, until she
was discharged in December. When the position became
vacant, in the normal course of operations it was re-
viewed to determine retention and classification. The ini-
tial supervisor's evaluation, approved by his superior,
was that on the basis of work to be performed by the
employee the position should be retained but reclassified
out of the bargaining unit. This request for reclassifica-
tion, also reviewed by the personnel manager, the chief
of wage and salary administration, and the vice presi-
dents for technical services and for administration, re-
ceived final approval in January 1983, and an employee
then on layoff was hired to fill the position as a non-
member of the bargaining unit.
Respondent's basis for changing the position classifica-
tion ,wa§ that a continuing evolution in position require-
ments had taken it from a factory clerical post to one
which was "office administrative." Respondent had over
the years similarly reclassified positions so as to remove
them from the bargaining unit, with only few union
grievances being filed The Union, was aware that this
particular position was being reviewed, and after learn-
ing of the reclassification promptly protested by letter of
January 28, 1983. .
Stemper, the prior employee, testified that the position
had become more complex over the years, but only be-
cause of the introduction of computers to be operated in
accomplishing the same results that had always been
achieved. The only change in the position after she left
was the utilization of still another computer, the APPO
System, referring to accounts payable, purchase order, in
collating purchase orders with billings. That computer
had been available prior to Stemper's discharge, but was
not used as the function was performed through separate
and noncomputerized correspondence.
2 Discussion
As a refinement of the concept 'enunciated in Fibre-
board Corp., supra, that unilateral acts in derogation of
the bargaining agreement may constitute a violation of
the Act, the Board has held that "the reclassification of a
position from a bargaining unit job to a nonunit job is a
mandatory subject of collective bargaining if the reclassi-
fication has an impact on bargaining unit work." Fry
Foods, 241 NLRB 76, 88 (1979), enfd. 609 F 2d 267 (6th
Cir. 1979). The functions of the position involved did not
go through any great change prior to its reclassification.
In considering those criteria the Board applies to Fibre-
board situations, as per Westinghouse Electric Corp, supra,
we see that in this instance, though the employer's prac-
tice followed the history and tradition of its business op-
erations, and though the Union may be said to have con-
curred through acquiescence , to the broad management-
rights clause, not only was there an adverse impact on
bargaining unit employees but the employer made this
unilateral change with no discernible economic founda-
tion. Under the circumstances, the only cause for the
change must have been to remove the position from
union protection. On that basis, I find the unilateral re-
moval of this position from the bargaining unit to consti-
tute a violation of the Act.
D Threatened Refusal to Process Grievances
1. Facts
The collective-bargaining agreement between the par-
ties provides a five-step grievance procedure Generally
an employee complaint may be settled with his foreman
within 2 days, appeal from a foreman's decision may be
settled within 2 days by the departmental supervisor;
appeal from a departmental supervisor's decision may be
settled within 3 days by the divisional superintendent;
appeal from a divisional superintendent's decisiori may be
settled within '10 days by the company bargaining com-
mittee, and appeal from a decision by the company bar-
gaining committee can be taken to compulsory arbitra-
tion.
Between April 7 and July 1, grievance meetings
among the company bargaining committee and union
representatives covered a number of disputes, including
such matters as wage rates on the new injection molding
process and on the tank room casting rate, time off for
stewards to conduct investigations, and the transfer of
employees at lower wage rates to the new distribution
center. On August 2, the Union brought suit against Re-
spondent on some or all of these issues in the local Fed-
eral district court, and sometime prior thereto requested
the local county district attorney to bring criminal
charges for an alleged failure to pay union stewards ac-
cording to the contract.
In mid- to late-August 1983, Respondent's administra-
tive vice president Conger asked Union President Lettre
to meet with him in an attempt to settle some of these
matters Lettre testified that Conger said.
I would have to stop threatening him and his con-
stituents about NLRB charges and Federal Court.
He said if I go to the NLRB or Federal Court, he
will leave those grievances set on the side, he will
not settle any more and they will sit on the side like
he did to the (dispute over use of the) Osborn (ma-
chines) back in 1977.
Conger testified that in view of the union attempt to file
criminal charges and the institution of suit in the Federal
court, he "talked tough" at the meeting to the extent of
telling Lettre that grievance settlements would not be
achieved by coercive union efforts.
2. Discussion
As is immediately apparent, there is no way in which
Respondent could refuse to process grievances. If it re-
fused to take action within the prescribed short time
period the grievance would be moved by the Union to
the next step, and ultimately to mandatory arbitration.
Further, it should be noted that the alleged threat to
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refuse to process grievances if the Union went to the
Board and to the Federal court was supposedly made
after the August 2 filing in the district court. I credit the
testimony of Conger that on behalf of Respondent he did
no more than tell the Union that its activities were not
conducive to and would not help the peaceful settlement
of grievances and not that he threatened to refuse to
process the grievances on which the disputes were based.
E. Discipline of Employee Klabachek
1. Facts
In nonserious cases, there is a four-step disciplinary
process. An oral warning for a first violation is followed
by three written warnings, the last being designated a
final warmng, 3 and a violation thereafter is cause for dis-
charge. Warnings are not the subject of grievance and
arbitration, but a union letter of protest to any warning
will be kept in the personnel file. Discharge after final
warning can be grieved and arbitrated.
Richard Klabachek is a pottery caster and is also the
Union's chief steward in the pottery division. Though
there is no record of an oral warning, he was issued a
written warning for insubordination taking place January
30, 1982, at which time he allegedly was involved in a
dispute with his foreman, Mark Jelenk, and directed ob-
scenities and derogatory statements to Jelenk in the pres-
ence of other employees The Union filed a letter of pro-
test.
On Thursday, October 7, 1982, a routine inspection of
pottery castings by two supervisors revealed cracked
outlets, and further investigation showed that 6 of the 24
bowls cast by Klabachek in 1 day were defective. Jelenk
looked at the rejects and showed a portion to Klabachek,
who agreed that there was dust on the outlet areas. This
would interfere with a proper joint, and render the ware
useless. Klabachek denied responsibility for the defect
but Jelenk, having discussed it previously with the super-
visors, prepared and issued a written warning for high
losses and poor workmanship.
The following Monday, October 11, General Supervi-
sor Massari went to Klabachek's work area to discuss the
matter with him. Massari testified that during the con-
versation Klabachek raised his voice, and made state-
ments to the effect that his foreman "was lying again"
Klabachek testified that his statement had been that the
foreman had told him he had been ordered to issue the
warning by his supervisors, and that such was the basis
of the written warning "unless he's lying again." In any
event, Massari discontinued the discussion and had Kla-
bachek, with his shop steward, come to his office, where
Massan told Klabachek to consider himself given an oral
warning for insubordination. Massan and Klabachek also
discussed the issue of poor workmanship, and Massan,
believing there to be a question of the seriousness of the
loss, reduced the written warning to an oral one. How-
ever, that Friday, October 15, when the work reached
the dry finish department, it was discovered that of Kla-
, The written agreement between Respondent and the Union makes no
provision for an oral warning, and does not specify that a particular
number of wntten warnings Issue before a final warning
bachek's 24 pieces a total of 20, not 6, were defective
On that basis Massan had another meeting with Klaba-
chek and reinstated the written warning, though Klaba-
chek insisted that the fault lay not in the workmanship
but in the clay.
The same day, October 15, Klabachek complained
about the clay to Pottery Superintendent Wirth, who
promised to relay the complaints to Massa"' and to Wil-
ham Conroy, the slip-glaze supervisor, who had the re-
sponsibility of preparing proper clay. On Monday, Octo-
ber 18, Conroy went to Klabachek's work area to discuss
the matter. Heated words were exchanged by both, and
Conroy prepared a written warning for insubordination.
2. Discussion
Though no charge was filed as to the disciplining of
Klabachek, there is no restriction against including the
allegation in the complaint resulting from an investiga-
tion of other charges. However, there is in the record no
evidence of a nexus between Klabachek's union member-
ship, office, or duties, on the one hand, and, on the other
the warnings issued to him. There is here not even a
Wright Line' issue of requiring a preponderance of the
evidence that the employer would have instituted the
disciplinary action even absent some protected conduct
by the employee If there were such issues, however, I
would find that Respondent successfully carried the
shifted burden of proof, and showed that issuance of the
one warning for poor workmanship and the two warn-
ings for insubordination would have occurred whether
or not Klabachek had engaged in protected activities 5
F. Coercive Interrogation
1 Facts
Employees in the old distribution center were paid on
a piece rate. In early 1982 Respondent proposed that em-
ployees tranferred to the new distribution center in June
1983 6 be paid on an hourly wage rate. The Union
agreed, but negotiation continued as to the particular
rates, and as to the pay grades to be assigned. On March
15, Respondent prepared its final offer of grade classifi-
cations and offered it to the Union on March 29. There
remained, however, a dispute regarding the "slots," or
specific steps within a pay grade, to which individual
employees would be assigned. The union demand was
that all employees in the new distribution center be
placed, at the time of transfer and change in method of
compensation, in the top bracket of their respective pay
grade.
Respondent agreed only to review individual slot as-
signments, and on Friday, April 1, decided on a more
"liberal" assignment of slots. A typed copy was sent to
and received by the Union early Monday morning,
4 NLRB v Wright Line, 662 F 2d 899 (1st Cir 1981)
5 The General Counsel's allegation that Klabachek was being "set up"
for discharged has no support If there are further warnings and Klaba-
chek is discharged, the issue can be grieved and arbitrated See United
Technologies Corp, 268 NLRB 557 (1984)
8 All dates in this section are in 1983 unless otherwise indicated
KOHLER CO 1585
April 4. That afternoon the Union rejected the new offer
by phone
Respondent alleges that as a result of numerous em-
ployee complaints that they had been misinformed or un-
informed by the Union of Respondent's offers, it sched-
uled a series of seven meetings of distribution center em-
ployees, by job classification, starting Tuesday at 7 a.m ,
to explain their offers Respondent Representatives Le
Mahiew and Ahrens testified thai in each meeting em-
ployees were told that attendance was voluntary, that
they could have union representation if they desired, that
they could ask any questions, and what Respondent's
proposals were. They testified that union representation,
through Chief Steward Strochschoen, was present only
during the second, third, and possibly the fifth meeting,
while Strochschoen testified that he was present during
the second through sixth meeting. Respondent admits
that it polled the employees individually during the first
two meetings as to whether they would accept Respond-
ent's offer, but discontinued after Strochschoen's objec-
tion during the second meeting Strochschoen testified
that, with possibly one exception. they also polled em-
ployees in the third through sixth meeting. Respondent
claimed that no union representation was requested
during the first meeting, but a union employee testified
that he requested and had been denied union representa-
tion at that meeting Union members testified that they
had been threatened with the loss of two slots in grade if
they did not vote to accept Respondent's offer, but Re-
spondent's witnesses testified that employees were
merely provided with the information that if an agree-
ment was not entered into their pay would be according
to a prior offer, which was two slots less. Union employ-
ees also testified that Respondent threatened to "re-can-
vass the jobs" and fill them wn h other employees if
agreement was not reached, which Respondent's testimo-
ny denied.
2. Discussion
The admitted polling of individual employees during
the first and second meetings constituted an obvious situ-
ation reasonably tending to restrain or interfere with the
employees' right 7 to bargain collectively through repre-
sentatives of their own choosing It is thus of dubious
value to quantify the extent of interference with rights
guaranteed by Section 7 of the Act, in violation of Sec-
tion 8(a)(1) of the Act but, for the sake of settling credi-
bility issues, I find that Strochschoen attended all but
two of the meetings and that Respondent polled employ-
ees in the first meeting as well as in all but possibly one
of the meetings Strochschoen attended I was impressed
with Strochschoen's forthright testimony, I do not be-
lieve that if offered union representation only one group
of seven would request it. I also find that union represen-
tation was requested during the first meeting but reject-
ed, and that the employees were given the clear impres-
sion that unless they voted contrary to the position of
their authorized bargaining representative they would
forfeit two pay slots. As to recanvassing of positions,
however, the General Counsel was unable to present a
7 Florida Ambulance Service, 255 NLRB 286 fn 1 (1981)
preponderance of the evidence to prove that such a
threat was in fact made.
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) and Section
8(d) of the Act by unilaterally removing the position of
maintenance stores stock control clerk from the bargain-
ing unit, and by coercively interrogating employees as to
their support of positions taken by their bargaining repre-
sentative
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) and
Section 8(d) of the Act, 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.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed s
ORDER
The Respondent, Kohler Company, Kohler, Wiscon-
sin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Altering the composition of the bargaining unit by
reclassifying a position to remove it from the bargaining
unit while the incumbent continues to do bargaining unit
work, without first negotiating with the Union.
(b) Coercively interrogating employees as to their sup-
port of positions taken by their bargaining representative.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the purposes and policies of the Act
(a) Cease giving effect to the reclassification of the po-
sition of maintenance stores stock control clerk from the
bargaining unit unless and until Respondent has bar-
gained in good faith with the Union concerning the re-
classification.
(b) Post at its offices and places of business at Kohler,
Wisconsin, copies of the attached notice marked "Ap-
pendix." Copies of the notice, on forms provided by the
8 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
9 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 Na-
Continued
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 30, after being signed by
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
tonal Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT unilaterally remove positions from the
bargaining unit.
WE WILL NOT interrogate our employees under cir-
cumstances when such interrogation reasonably tends to
restrain or interfere with the employees' exercise of the
rights guaranteed them by Section 7 of 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.
KOHLER COMPANY