Alwin Mfg. Co.

564 314 NLRB No. 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Exceptions were filed only in regard to the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally imposing minimum production standards and by disciplining employees who failed to meet those standards. 1 As the deferral defense is no longer being raised by the Respond- ent, deferral is not warranted. NCR Corp., 271 NLRB 1212, 1213 fn. 7 (1984). Alwin Manufacturing Company, Inc. and United Steelworkers of America, AFL–CIO. Case 30– CA–11899 July 28, 1994 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND DEVANEY On April 27, 1994, Administrative Law Judge Rich- ard A. Scully issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions1 and brief and has de- cided to affirm the judge’s rulings, findings, and con- clusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Alwin Manufacturing Company, Inc., Green Bay, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Gerald McKinney, Esq., for the General Counsel. Donald F. Woodcock, Esq., of Cleveland, Ohio, and Ronald T. Pfeifer, Esq., of Green Bay, Wisconsin, for the Re- spondent. Donald Schmitt, of Manitowoc, Wisconsin, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD A. SCULLY, Administrative Law Judge. On a charge filed by United Steelworkers of America, AFL–CIO (the Union) on October 8, 1992, and an amended charge filed on October 26, 1992, the Regional Director for Region 30, of the National Labor Relations Board (the Board), issued a complaint on October 30, 1992, alleging that Alwin Manufacturing Company, Inc. (the Respondent) committed certain violations of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The Respondent filed a timely answer denying that it had committed any violation of the Act. A hearing was held in Green Bay, Wisconsin, beginning on January 19, 1993, at which all parties were given a full opportunity to participate, to examine and cross-examine wit- nesses, and to present other evidence and argument. In its an- swer to the complaint in this matter, the Respondent raised the defense that the collective-bargaining agreement con- tained a grievance-arbitration procedure, that the alleged vio- lations were the subjects of grievances filed by the Union, and that there should be deferral to the parties’ agreed-upon method of resolving disputes under existing Board policies. The Respondent made no formal motion to defer at or prior to commencement of the hearing. Due to a schedule conflict, the hearing was adjourned at the end of the second day, to be resumed on February 1, 1993. In the interim, counsel for the General Counsel filed a motion to dismiss the complaint and defer these matters to the parties’ contractual grievance- arbitration procedure. The Respondent opposed the motion. In an order dated January 28, 1993, I found that deferral was appropriate under the criteria established by the Board in Collyer Insulated Wire, 192 NLRB 837 (1971), and United Technologies Corp., 268 NLRB 557 (1984), and dismissed the complaint subject to reinstatement should, inter alia, the disputes not be resolved or submitted to arbitration with rea- sonable promptness. The Respondent filed a request for re- view of the order with the Board and also submitted a letter from its counsel in which it withdrew its deferral defense and stated that it had determined that it would not promptly sub- mit these matters to arbitration. This was followed by a mo- tion by the General Counsel to reinstate the complaint, re- open the record, and conclude the hearing, which was grant- ed in an order dated February 25, 1993. The Board returned the Respondent’s request for review to it as moot and the hearing was resumed and concluded on March 29, 1993.1 Briefs submitted on behalf of the General Counsel and the Respondent have been given due consideration. On the entire record and from my observation of the demeanor of the wit- nesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT At all times material, the Respondent was a corporation with an office and place of business in Green Bay, Wis- consin, engaged in the manufacture and nonretail sale of paper towel dispensers and related products. During the cal- endar year ended December 31, 1991, the Respondent sold and shipped from its Green Bay facility goods valued in ex- cess of $50,000 directly to points outside the State of Wis- consin. The Respondent admits, and I find, that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that at all times mate- rial the Union was a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Vacation Issue Since the early 1960s, the Union has been the excusive collective-bargaining representative of the Respondent’s em- ployees in a unit consisting of: 565 ALWIN MFG. CO. 2 All dates are in 1992 unless otherwise indicated. 3 Tilly’s language concerned (a) vacation requests by less senior employees with plans for vacation during July and August involving financial commitments and (b) excluding requests for vacation in- volving union activity from any limitation. All production and maintenance employees of the em- ployer at the employer’s plant in the greater Green Bay area, Green Bay, Wisconsin, exclusive of office, cler- ical employees, guards, professional, and supervisors as defined in the Act. Since that time, the parties have been signatories to a series of collective-bargaining agreements, the most recent of which covers the period from March 1, 1991, through March 1, 1994. The complaint alleges that the Respondent failed to con- tinue in effect the terms of the collective-bargaining agree- ment by unilaterally abandoning the vacation scheduling pro- visions contained therein and by issuing a new procedure which involved permitting the taking of vacation at the Re- spondent’s option and without regard to seniority. The perti- nent sections of the agreement state: VII. VACATIONS . . . . 6. An employee, providing the efficiency of the plant is not impaired, shall be entitled to select his vacation in order of seniority, provided, however, that with ref- erence to the third, fourth, fifth, and sixth weeks of va- cation, the third, fourth, fifth, and sixth weeks shall be taken at a time mutually agreeable between the em- ployee and management. 7. Employees may take vacation by the day if so de- sired, provided the Company is so notified within two (2) hours of the start of the employees shift. The evidence establishes that the language of paragraph 6 of article VII has been the same at least as far back as the con- tract which took effect on March 1, 1985. This was also true of paragraph 7, except that prior to the agreement which took effect on March 1, 1991, employees could take vacation by the day, provided the Company was notified on or before the vacation day, instead of within 2 hours of the start of the shift. Donald Schmitt is a staff representative for the Union and has had responsibility for contract negotiations and adminstration with respect to the employees in the bargaining unit at the Respondent’s plant since about 1978. Schmitt tes- tified that prior to 1991 employees could take a day of vaca- tion by calling in at anytime prior to the end of their shift on that day. During the contract negotiations that year, the company’s spokesman complained that employees were abusing vacation by the day by not calling in until near the end of the shift and that the Company had to know early in the day who would be at work in order to plan production. The Company submitted a proposal which would have re- vised paragraph 7 to read: 7. Employees may take vacation by the day at a mu- tually agreed upon date providing they request the va- cation day at least one day in advance of the requested date. The Union rejected this proposal and offered its own, which resulted in the parties agreeing to the above-quoted language providing that an employee taking vacation by the day had to call in within 2 hours of the start of the shift. Schmitt tes- tified that before 1991 the practice had always been that any employee could take an available day of vacation simply by calling in and requesting it before the end of his shift on that day, that the Company’s permission was not needed, and that it could not deny the request. The only change in this prac- tice after 1991 was that the time for requesting the vacation day was limited to within 2 hours of the start of the shift on that day. At no time had there been a limit on the number of employees who could take vacation by the day on a given day. During a regularly scheduled monthly grievance meeting on June 22, 1992,2 the Respondent’s director of manufac- turing, Glenn Thiede, told the Union’s committee that the Company had a problem with vacations and that it needed to be able to control the number of people taking vacation at the same time. There was some discussion about this which included concern about how limiting the number of employees who could be off might impact on those who had made vacation plans involving financial commitments. Com- mittee member John Tilly testified that, after speaking with Schmitt, he put in writing what he thought would be accept- able, presented it to Thiede the following day, and told him that any change in vacation policy would have to incorporate such language3 and be approved by a vote of the member- ship. The company representatives asked to meet with the committee on June 25 and presented them with a memo- randum from Thiede to employees which stated: Each week we will post the number of employees that may be granted time off for vacation on any given day from each department which will not impair plant efficiency. Vacation requests received more than three weeks before the anticipated vacation will be granted on a first come first serve basis according to the current pub- lished vacation schedule. Any requests for vacation inside the three week noti- fication period, will be granted as specified in the con- tract for any remaining openings. Vacations will be granted until the vacation schedule is filled. Once filled, no written requests or call-ins will be accepted. After reviewing the memorandum, the committee members said they could not go along with it. On the following day, June 26, another meeting was held and the committee was shown another memorandum, dated June 25, which provided: Each week we will post the number of employees that may be granted time off for vacation on any given day from each department which will not impair plant efficiency. Vacation requests received more than three weeks before the anticipated vacation, provided a financial commitment has been made to purchase airline tickets or hold a cottage, etc., will be granted on a first come first serve basis according to the current published va- cation schedule. Any requests for vacation inside the 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Also unlike those cases there is also no readily available forum for resolving the parties’ conflicting contractual claims given that the Respondent has declined to proceed to arbitration on these issues and has requested a resolution by the Board. three week notification period, will be granted as speci- fied in the contract for any remaining openings. Vacations will be granted until the vacation schedule is filled. Once filled, no written requests or call-ins for vacation will be accepted. Local Union President Charles Peters, who was present, testified that the committee read the memorandum and in- formed the company representatives that they could not agree to it. This memorandum was posted at the plant and the pol- icy and procedures stated there were put into effect with the Company, thereafter, posting a series of memos indicating the maximum number of employees who could be granted vacation time off each week in each department. The effect of the policy stated in the memorandum was to limit the number of employees who could take vacation on a given day. It also effectively abrogated the provision in section 6 of the contract that employees were entitled to se- lect vacation in order of seniority since, if a less senior em- ployee requested vacation 3 weeks in advance and met the financial commitment requirement of the new policy, that employee would be entitled to the vacation rather than a more senior employee who requested vacation after the vaca- tion scheduled was filled. It also meant that, if a depart- ment’s vacation schedule was filled, a less senior employee in another department where the schedule had openings could take vacation while a more senior employee in the first department could not. Counsel for the General Counsel contends that the Re- spondent has violated Section 8(a)(5) and (1) of the Act by unilaterally abandoning the provisions of the collective-bar- gaining agreement concerning taking vacation by the day and selection of vacation according to seniority. The Respondent contends that this is simply a matter of differing interpreta- tions of the contract by it and the Union and that the Board should not undertake to determine which interpretation is correct. It also contends that there has been no unilateral change because its actions involve a reasonable interpretation of the contract and did not cause the unit employees to suffer any significant detriment inasmuch as all employees continue to receive all the vacation days they are entitled to under the contract. Analysis and Conclusions There appears to be no real dispute but that the Respond- ent’s actions concerning vacation policy were taken as a re- sult of what it perceived to be a need to control the sched- uling of vacation to assure that a work force adequate to meet its production requirements would be on the job every day. Thiede gave credible testimony that on the previous Good Friday so many employees took a day of their vacation that he had to shut down an assembly line and the paint line because he did not have enough people on the job. There also appears to be no question but that the Union never agreed to any change in the contract. Although the evidence shows that the Respondent attempted to get the Union to concur in its new policy concerning taking vacation, at no time did the Union ever agree to it. However, as noted above, the Respondent’s position is not that the Union agreed to a change, but that there was no unilateral change because its actions were based on a reasonable interpretation of the language of the contract. Unlike the cases relied on by the Respondent in its brief, the present case does not involve choosing between two equally plausible interpretations of the subject contract provi- sions before there can be a determination that a change has been made.4 The provisions in question are of long standing, there is a significant history of past practice under those pro- visions, and they have been the subject of negotiations be- tween the parties as recently as 1991. The evidence estab- lishes that there had never been any limit placed on the num- ber of employees who could take vacation by the day under article VII, paragraph 7, before June 25. While Thiede testi- fied that this lack of limitation made it impossible to assure that he would have an adequate work force, the evidence shows the same issue had been raised by the Respondent during the 1991 contract negotiations. Then, according to the credible testimony of Schmitt, the Respondent’s representa- tive stated that the Company had to know who was going to be at work in order to plan production and it made a pro- posal to change paragraph 7 to limit employees’ taking of vacation by the day to a mutually agreed-upon date. That proposal, which would have given the Respondent a say in when and if vacation by the day could be taken, was rejected by the Union. In June 1992, the Respondent again attempted to get the Union to agree to a modification of the contract provisions concerning vacation and again was unsuccessful. I find that the evidence establishes that the Respondent made unilateral changes in the unit employees’ working conditions, effective June 25, by limiting the number who could take va- cation on any given day and by implementing a procedure for selecting vacation whereby employees were no longer as- sured of being able to select vacation in order of seniority. In both instances, the Respondent’s actions changed the ex- isting vacation policy and effected a unilateral, midterm change in the provisions of the collective-bargaining agree- ment in violation of Sections 8(d) and 8(a)(5) and (1) of the Act. See NLRB v. Katz, 369 U.S. 736 (1962); Papercraft Corp., 212 NLRB 240, 241 (1974). B. The Temporary Employees’ Wages Issue The complaint alleges that on and after August 31 the Re- spondent violated Sections 8(d) and 8(a)(5) and (1) by failing to pay certain unit employees the wage rate specified in the collective-bargaining agreement during the first 30 days that they performed work for it. The credible testimony of Thiede establishes that during August and September one of the Company’s principal cus- tomers, Scott Paper Company, increased its orders and re- quested that deliveries be moved up. As a result, production demands increased during those months to the point that there was a temporary need for additional production em- ployees. Thiede informed the Company’s director of human resources and labor relations, Gordon Church, of the problem and Church undertook to provide workers to meet this bubble in the production schedule. Church testified that he was able to hire four college stu- dents and six former company employees on a temporary basis. When he was unable to get enough workers to meet 567 ALWIN MFG. CO. 5 On November 11, the Respondent sent the Union a memorandum referring to the temporary employees it had put on its payroll after 30 days on the job. It stated that union dues and initiation fees had erroneously been collected from them during their first 30 days of employment and that they would be reimbursed. the demand, he contacted Personnel Connection, a temporary agency, and contracted with it to provide the necessary help. When it became apparent that some of these workers would be needed longer than the 30 days originally anticipated, he arranged with the agency to hire some of their workers as employees of the Respondent, after paying it a fee for the right to do so. Those Personnel Connection workers that were hired as company employees after 30 days on the job were paid the 30-day rate provided in the collective-bar- gaining agreement, they were covered by the health and life insurance provisions on the date they went on the Company’s payroll or within a week of that date, and immediately upon going on the payroll the Company began deducting union dues and remitting them to the Union.5 There was a total of 79 Personnel Connection workers who worked for the Re- spondent; 19 were subsequently hired by it and 14 are still employed. Church testified that during the time that the Per- sonnel Connection workers were on the job no regular com- pany employees were on layoff and that all were fully em- ployed and were working a reasonable amount of overtime. He testified that the Union was informed of the plan to con- tract for the temporary workers and, later, that some of those workers would be put on the Company’s payroll and paid ac- cording to the contract, but there is no evidence that the Union ever agreed to this. The Respondent paid Personnel Connection $10.50 per hour for each temporary worker and the workers were paid $7.50 per hour. When the Union learned that these workers were being paid less than the $10.10-per-hour starting rate specified in the collective-bar- gaining agreement, it filed a grievance. The evidence establishes that in 1987, when the Respond- ent had previously proposed to hire some college students to work on a temporary basis during the summer at a wage rate lower than that specified in the contract, the Union objected and that ever since when students have been hired for sum- mer work they have been paid according to the contract and have joined the Union after 30 days on the job. Analysis and Conclusions Counsel for the General Counsel contends that the tem- porary employees were members of the bargaining unit and entitled to be paid according to the collective-bargaining agreement’s wage rate provisions during their first 30 days on the job. He argues that they were performing bargaining unit work during this period and that by its actions in paying them the 30-day wage rate, providing them with insurance coverage, and deducting union dues from their wages begin- ning on their 31st day of work for it, the Respondent treated them as its own employees from the start. There is no allega- tion in the complaint that the Respondent violated the collec- tive-bargaining agreement or the Act by contracting with Personnel Connection for temporary help. I find that the evidence fails to establish that the temporary workers were employees of the Respondent during the first 30 days that they performed work for it and, thus, entitled to be compensated in accordance with the collective-bar- gaining agreement. On the contrary, the evidence fails to es- tablish that they were employees of anyone other than Per- sonnel Connection with whom the Respondent had con- tracted for their services and by whom their wages were paid. The General Counsel has cited no authority for the proposition that because the Respondent paid the relatively few temporaries it subsequently hired at the 30-day wage rate and made them immediately eligible for insurance benefits instead of waiting 30 days after their hire, this relates back and makes all the temporaries, employees of the Respondent. From all that appears, Personnel Connection, which is not a party to this proceeding, had no relationship with the Union and was under no obligation to pay its employees in accord- ance with the collective-bargaining agreement between the Respondent and the Union. I shall recommend that this alle- gation be dismissed. C. The Minimum Production Standards Issue Schmitt’s uncontradicted testimony establishes that during contract negotiations in 1985, the Respondent’s spokesman stated that the Company was experiencing problems with low productivity by some employees and submitted a proposal for consideration by the Union, which read as follows: The Company and the Union recognize as essential to their mutual welfare the maintenance of a fair com- petitive position based on efficient methods. Both agree to cooperate in suggesting, installing and practicing methods conducive to maximum productivity for all employes consistent with the safety and health of the employe. Any employe setting or maintaining produc- tion limits on work or suggesting that others do so shall be considered to be in violation of this agreement. The Union submitted a counterproposal and the parties agreed to a memorandum of understanding on March 7, 1985, which has remained in effect to the present, and states: Recognizing that the welfare of it’s members and the opportunities to earn a living depend upon the success and prosperity of the Company, the Union hereby pledges itself and all its members, the employees of the Company, that they will perform their work effectively and efficiently to the best of their ability, consistent with the safety and health of the employee. Any em- ployee attempting to control or limit production or sug- gesting that others do so, shall be in violation of this agreement. This memorandum of understanding is at the heart of the issue concerning production standards. Thiede testified that when he began working for the Re- spondent in March he spent 3 weeks on the shop floor to ob- serve and become acclimated to the company’s products and methods of operations. After observing poor productivity, employees taking excessive breaks, walking the aisles, and sitting at their work stations with their feet up and their arms folded, he concluded that the employees’ work effort was de- plorable and something had to be done to get control of the business. He began a study to determine what was an attain- able level of production on various jobs which included videotaping certain jobs. He used the information he obtained to arrive at a reasonable expectation of what level of produc- 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Evidence introduced by the Respondent shows that employees Delmarcelle, Mahlik, Basinski, Plog, and Pallock received similar warnings, a suspension, and were ultimately discharged and that em- ployees named Hudson, Strebiow, Mier, and Dekeyser received warnings and were suspended. Other evidence shows employees Pe- terson, Tenor, and Belleau received warnings. tion could be obtained on an hourly basis. He also made use of input from a sheltered workshop and a consulting firm in making his computations and determinations as to what rea- sonable production levels on various production line func- tions. According to Thiede, the resulting minimum produc- tion standards was his means of defining for the employees what a fair day’s work for a fair day’s pay is. On September 21, at a regularly scheduled grievance meet- ing, Thiede informed the union committee that, beginning on September 22, certain jobs would have minimum production requirements and that employees who did not perform to the expected level would be subject to disciplinary action. On September 22, Thiede informed the employees on four types of jobs (drive roller, lever, linkage, and lever knob) what the minimum production requirements per hour for their func- tions were, that they would have that day to get acclimated to them, and that if they did not meet them beginning the following day, they were subject to discipline. On September 23, employee Peter Filipiak, a drive roller assembler, failed to meet the 180-units-per-hour minimum assigned to that job and was given a verbal warning. On September 24, Filipiak failed to meet the minimum standard and was given a written warning. On September 28, he failed again and was given a 3-day suspension. When he returned to work on October 2, he failed to meet the minimum standard and was terminated. Other employees who failed to meet the minimum standards assigned to their jobs were subjected to similar disciplinary action.6 The complaint alleges that the minimum production stand- ards, enforceable by disciplinary action, instituted by the Re- spondent, were mandatory subjects of bargaining and that they were instituted without first giving the Union notice and the opportunity to bargain over them in violation of Sections 8(d) and 8(a)(5) and (1). The Respondent contends that this issue also involves only a dispute over contract interpretation that the Board should not address and that the implementa- tion of these standards was consistent with and in accordance with the 1985 memorandum of understanding between the Respondent and the Union. Analysis and Conclusions As in the case of the change in vacation policy, it appears that the Respondent has done by unilateral action something that it was previously unsuccessful in doing through negotia- tions with the Union. In 1985, it attempted to remedy con- cerns about low productivity by making a proposal which would have authorized installing and practicing methods con- ducive to maximum productivity for all employees. The Union rejected that proposal and the parties eventually agreed to the memorandum of understanding in which the Union and employees pledged that they will perform their work effectively and efficiently to the best of their ability. At no time before or since the memorandum of under- standing were there in place any clearly articulated or precise numerical standards of minimum expected production output which employees were required to meet or be subject to dis- ciplinary action. That is what the Respondent presented to the Union on September 22. These minimum production standards were not merely a refinement or more vigorous en- forcement of existing standards, but represented a radical de- parture from past practice. The Respondent’s action is similar to that taken by the employer in Tenneco Chemicals, 249 NLRB 1176 (1980). There, concern over low productivity led the employer to institute precise measures for deter- mining the adequacy of employees’ performance on five spe- cific tasks and exposed those who failed to attain the pre- scribed minimums to disciplinary action. The Board found the institution of these minimum production standards to be a mandatory subject of bargaining and that unilateral imple- mentation by the employer violated Section 8(a)(5) and (1). There is no evidence that the Union was given notice or the opportunity to bargain over these minimum production standards or waived its rights to bargain over them. The Re- spondent apparently contends that the fact that in 1991 it at- tempted to discipline two of the same employees, who were terminated in 1992, for low productivity without the Union filing unfair labor practice charges is proof that it was acting pursuant to the memorandum of understanding and the impo- sition of the new minimum production standards was a simi- lar means of assuring that employees did not withhold rea- sonable work effort. The evidence shows that the Union filed grievances over the disciplinary warnings given to employees Filipiak and Basinski for low production and withholding work effort because the production of each was allegedly less than the average of other employees performing the same work and in one’s case less than his own previous produc- tion. The Company denied the grievances and they were to be taken to arbitration, but on the day before the scheduled arbitration hearing the Company agreed to withdraw the warnings. The Respondent also points to the fact that at a grievance meeting in July, Thiede raised concerns about pro- ductivity by telling Schmitt that there were employees who were not giving a fair day’s work for a fair day’s pay and Schmitt responded that if certain people were not performing Thiede should deal with it, but should do so in the right way. Neither of these incidents proves that the Union agreed with the Respondent’s claim that it could set precise numerical minimum production rates or that it waived its rights to bar- gain over their imposition. There is a substantial difference between attempting to discipline an employee for low pro- duction based on the production of other similarly situated employees or his own previous production and imposing pre- cise minimum hourly production rates which have been uni- laterally determined by the employer and which all employ- ees must meet or be subject to disciplinary action. There is nothing to suggest that by telling Thiede he should deal with productivity problems the right way, Schmitt was telling him that the Union was amenable to the imposition of minimum production standards. It is clear that when the Respondent informed the Union on September 22 that new minimum production standards with specific numerical hourly minimums for four of the jobs would go into effect the next day, it was a fait accompli about which there was no opportunity to bargain. By unilat- erally imposing these minimum production standards, it vio- lated Section 8(a)(5) and (1) of the Act. Tenneco Chemicals, 569 ALWIN MFG. CO. 7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended 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. supra; Kal-Equip Co., 237 NLRB 1234 (1978); Alfred M. Lewis, Inc., 229 NLRB 757 (1977). Finally, the Respondent contends that even if the produc- tion standards were unlawfully instituted, no relief from the Board is appropriate because the employees involved would have been disciplined anyway for their deliberate refusal to exert a reasonable work effort. It contends that the testimony of Thiede establishes that he observed the disciplined em- ployees deliberately withholding work effort, warned them and gave them an opportunity to improve their productivity, and took disciplinary action only after their failure to do so. It further contends that there is no evidence that its actions in disciplining these employees were not justified. The Re- spondent’s argument is directed to the appropriate remedy rather than to the issue of whether a unilateral change in working conditions has occurred. Regardless of the discipli- nary action taken by the Respondent based on the new min- imum production standards, the fact remains that the unilat- eral imposition of those standards violated the Act. As for the individuals who were disciplined as a result, I find that the general testimony of Thiede as to his observations fol- lowing their imposition is insufficient to establish that any employee would have been given the same discipline even in the absence of the new minimum standards. There is noth- ing in the record to establish that the disciplinary action taken against any of the employees following the imposition of the minimum production standards was based on Thiede’s observations or that they were given any consideration. On the contrary, the Company’s documents in the record memo- rializing the disciplinary actions taken uniformly refer to the fact that the actions were solely based on the various em- ployees’ failure to meet the minimum production requirement on the jobs to which they were assigned. Consequently, I find there is no basis on which to conclude that the same ac- tion would have been taken against any of the employees even if the minimum production standards had not been insti- tuted. CONCLUSIONS OF LAW 1. The Respondent, Alwin Manufacturing Company, Inc., 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 meaning of Section 2(5) of the Act. 3. The Union is the exclusive collective-bargaining rep- resentative of employees in the following appropriate unit: All production and maintenance employees of the em- ployer at the employer’s plant in the greater Green Bay area, Green Bay Wisconsin, exclusive of office, clerical employees, guards, professional, and supervisors as de- fined in the Act. The Respondent refused to bargain in violation of Section 8(a)(5) and (1) and Section 8(d) of the Act by making unilat- eral midterm changes in the vacation provisions of the col- lective-bargaining agreement. 5. The Respondent refused to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act by instituting minimum pro- duction standards for certain jobs performed by bargaining unit employees without prior notice to and bargaining with the Union and by taking disciplinary action against unit em- ployees for their failure to work in accordance with these unilaterally instituted minimum production standards. 6. The above unfair labor practices were unfair labor prac- tices affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 7. The Respondent did not engage in any unfair labor practices alleged in the complaint which are not specifically found. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act by unilaterally making midterm changes in the vacation provisions of the collective-bar- gaining agreement and by unilaterally instituting minimum production standards for certain bargaining unit jobs, I shall recommend that it be ordered to restore the status quo ante by rescinding the changes in vacation policy and by with- drawing the minimum production standards, and by rescind- ing all disciplinary actions resulting from the employees’ failure to meet the unlawfully instituted minimum production standards, offering all employees discharged and/or sus- pended as a result of such disciplinary action immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and by making whole those employees who were so discharged or suspended for any loss of earnings or benefits suffered as a result, plus interest. Backpay shall be computed as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended7 ORDER The Respondent, Alwin Manufacturing Company, Inc., Green Bay, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Making unilateral midterm changes in the provisions of the collective-bargaining agreement. (b) Unilaterally instituting and thereafter enforcing, by dis- ciplinary action, minimum production standards for jobs of bargaining unit employees without prior notice to and bar- gaining with the Union. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 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 National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ (a) Rescind and withdraw the unilateral changes in the va- cation provisions of the collective-bargaining agreement put into effect on or about June 1992. (b) Rescind and withdraw the minimum production stand- ards unilaterally instituted on or about September 22, 1992. (c) Expunge from its records all references to disciplinary warnings, suspensions, or discharges of unit employees im- posed for failure to meet the minimum production standards, notify all affected employees in writing that this is being done, and that they will not be used against them in any way. (d) Offer to all employees, who were suspended and/or discharged as a result of failure to meet the minimum pro- duction standards, immediate and full reinstatement to their former positions or, if those positions no longer exist, to sub- stantially equivalent positions without prejudice to their se- niority or other rights and privileges, and make them whole for any loss of wages or benefits suffered as a result, plus interest. Backpay and interest shall be computed in the man- ner described in the remedy section of this decision. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) On request, bargain with the Union concerning all pro- posed changes in terms and conditions of employment of the employees in the appropriate unit. (g) Post at its facility at Green Bay, Wisconsin, copies of the attached notice marked Appendix.8 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT make unilateral midterm changes in the pro- visions of the collective-bargaining agreement. WE WILL NOT unilaterally institute minimum production standards for jobs performed by employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL rescind and withdraw unilateral midterm changes made to the vacation provisions of the collective-bargaining agreement and the unilaterally instituted minimum production standards for jobs performed by employees in the bargaining unit. WE WILL notify and, on request, bargain with the Union concerning any proposed changes in the terms and conditions of employment of employees in the bargaining unit. WE WILL offer all employees, who were suspended and/or discharged for failure to meet the minimum production standards, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, plus interest. WE WILL notify employees in writing that we have re- moved from our files all references to any warnings, suspen- sions, or discharges resulting from failure to meet the min- imum production standards and that they will not be used against them in any way. ALWIN MANUFACTURING COMPANY, INC.