Land O' Lakes, Inc.

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 umt2 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