Kohler Co.

National Labor Relations Board - Board Decisions

Feb 26, 1951

93 N.L.R.B. 398 (N.L.R.B. 1951)

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The appropriate unit :
The parties in Case No. 1.4-RM-43 stipulated and we find that all
truck drivers employed by the Employer at its establishments at St.
Louis and Clayton, Missouri , and Scott Air Base, Illinois , excluding
all other employees , clerical and office employees , guards, professional.
employees , and supervisors as defined by the Act constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
Order
IT IS HEREBY ORDERED that the petition of the Employer in Case No:.
14-RM-42 be, and it hereby is, dismissed.
[Text of Direction of Election omitted from publication in this
volume.1
KOHLER COMPANY and INTERNATIONAL UNION, UNITED AITrOMOBILE,.
AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS Or AMERICA,
UAW-CIO, PETITIONER. Case No. 13-RC-1516. February 26,.
1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National,
Labor Relations Act, a hearing was held before Herman J. DeKoven,,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-meln-
ber panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. Kohler Workers Association, herein called the Intervenor, con-
tends that an existing contract between it and the Employer is a bar
to this proceeding. The present contract was executed on August
31, 1950. The prior contract, executed on October 5, 1948, expired on
December 31, 1949. There was no written collective bargaining
agreement between the Employer and the Intervenor between Decem-
ber 31, 1949, and August 31, 1950. 1 The Petitioner made its request
' The Employer and the Intervenor were in the process of negotiating the present contract
during that interval.
93 NLRB No. 69.
KOHLER COMPANY 399
for recognition on August 24, 1950, and filed the petition herein on.
August 25, 1950.
The Intervenor argues that the circumstance that there was bar
gaining between the parties and negotiations for a new contract dur-
ing the interval between the expired contract and the new one, itself;
constitutes a bar. We do not agree. As the new contract was not
executed until after the filing of the petition herein, we find that it
is not a bar to this proceeding. 2
We find that a question affecting commerce exists concerning the,
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. All parties agree that the following employees should be includ-
ed in the bargaining unit : All employees described in the October.
23, 1950, Supplement "B" of the present contract between the Ein-
ployer and the Intervenor, 3 and all employees described in Supple-
ment "F," 4 including employees doing experimental work in the
development department. They also agree that the gatemen, em-_
ployees in the employment department, doctors, dentists, nurses,
engineers, employees in the chemical and physical laboratory, em-
ployees classified as confidential secretaries, professional employees,,
and supervisors should be excluded from the unit. The parties are
in disagreement as to the inclusion of the following employees : Shop.
office stenographers, watchmen, clerks in the medical department,
draftsmen and technicians referred to in said Supplement "B"; the
general office and clerical employees referred to in the October 23,,
1950, Supplement "D"; and the American Club employees referred
to in Supplement "E" of the contract. The Petitioner contends that
these employees should be excluded from the unit, the Intervenor-
urges that they should be included, and the Employer generally takes-
the position that these employees should be permitted to determine
for themselves as to whether or not they should be included in the unit..
Prior Bargaining History
In 1934 the Board conducted an election among the Employer's
employees in which the Intervenor participated. While both the
production and maintenance and office and clerical employees voted,
the ballots of the office and clerical employees were impounded and
not counted. Thereafter the Employer was ordered, by a Board
decision, to recognize the Intervenor as the exclusive representative
8 New England Container Company, 91 NLRB 1430; The Basic Lumber Products Division
of the New York Coal Company, 92 NLRB 874; Engineering Metal Products Corporation,
92 NLRB 823.
3 Supplement "B" embodies , in the main , the Employer ' s production and maintenance
employees.
4 Supplement "F" covers the gardening department employees.
N
-400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-of the production and maintenance employees. The Employer, how-
ever, voluntarily recognized the Intervenor as the exclusive bargain-
ing representative for both groups of employees, and has bargained
with the Intervenor for them as a single bargaining unit since March
1935.5
On March 8 and March 9, 1950, a single union-shop authorization
election was conducted under the auspices of the Board among both
production and maintenance employees and general office and clerical
employees. On March 17, 1950, the Board issued- a certificate of re-
sults showing that a majority of the employees eligible to vote voted
in favor of the proposition.
The Intervenor and the Employer argue that the history of col-
lective bargaining should be determinative of the unit problem now
-before the Board. While the history of collective bargaining is a
factor to which the Board gives consideration in the determination of
what constitutes an appropriate unit, neither it nor a union-authori-
_zation election held pursuant to a consent agreement, are binding on
i he Board in the determination of the appropriate unit.5
Disputed Categories
Watchmen.-There are seven employees classified as watchmen.
The Employer and the Intervenor do not believe that these employees
fall within the Act's definition of a guard, and should therefore be
included in the unit. While the Petitioner would prefer to have
I hem included in the unit, it takes no position as to whether or not they
are guards within the meaning of the Act.
The watchmen's duties consist of checking for damage to the sprin-
kler system, checking for fires, frozen pipes, and for open doors and
windows, and punching clocks located throughout the plant. They
are authorized to stop any violation of company rules which creates
an immediate hazard to company property or the safety of persons
on the Employer's premises. If no immediate hazard is involved,
their authority is limited to reporting any violation of such rules to
the Employer's guards.? Unlike the guards, they are not armed, uni-
formed, or deputized. Their foreman, who is responsible to the per-
sonnel department, also supervises the guards.8
5 Between March 1935 and December 1938, there were oral agreements covering all of
these employees Since December 1938, there have been a series of written contracts
between the Employer and the Intervenor covering all of these employees in a single unit.
5 Avondale Dairy Co., et at , 92 NLRB 89, Memphis Cold Storage Warehouse Com-
pany, 91 NLRB 1404, The Budd Company, Red Lion Plant, 91 NLRB No 105, Interna-
tional Harvester Company, West Pullman Works, 90 NLRB No 240.
'+ The parties agree to the exclusion of guards, also known as gatemen There are
approximately 17 guards, whose duties are to protect the plant from outside intruders
.and to act on the watchmen's reports on inside interference. The guards are stationed at
,particular posts and do not make any rounds.
8 The foreman of the watchmen and guards does not supervise any factory employees.
KOHLER COMPANY 401
Under all these circumstances, we find that the watchmen are guards
within the meaning of Section 9 (b) of the Act, and shall exclude
them from the unit.'
Shop ofte stenographers.-There are about two or three senior
and two or three junior shop office stenographers who the Petitioner
contends should be excluded from the unit. These employees do
stenographic and clerical work for, and are answerable to, the divi-
sional superintendents of the production and maintenance departments
and the plant- manager. They work in the offices of these superin-
tendents and the plant manager, which are located in the production
and maintenance buildings. They do not take dictation concerning,
nor do they have access to, any labor relations matters or documents.
They are on an hourly basis of pay, and their take-home pay is
substantially equal to the average of the production and maintenance
employees 10 Their working hours are the same as those of pro-
duction and maintenance employees on the day shift, and they punch
the same time clock as do these factory employees. Their vacation
and seniority rights and all other terms and conditions of employ-
ment are the same as those of the production and maintenance em-
ployees. Some of the shop office stenographers have been recruited
from among the factory employees.
We find that the shop office stenographers are plant clericals, such as
the Board has customarily included in production and maintenance
units."' Accordingly, we shall include them in the unit.
General office and clerical employees.-There are approximately
250 of these employees who work in a separate building from the
production and maintenance employees. They consist of clerks, sec-
retaries, stenographers, typists, telephone operators, keypunch or
tabulating machine operators, receptionist, bookkeeping machine op-
erators, calculating machine or comptometer operators, janitors, and
elevator operators. The Employer's personnel department, does the
hiring for both the factory and general office employees .12
Except for the elevator operators, who are paid on an hourly basis,
they are all salaried employees. Their pay periods are different from
those of the factory employees. They are on the office payroll, while
the production and maintenance employees are on the factory payroll.
They do not punch a time clock as do the factory employees. The
sick leave and vacation benefits are different for the two groups, but
B The Firestone Tire and Rubber Company, 92 NLRB 1376; Locke Incorporated, 92
NLRB 864; Southland Manufacturing Company, 91 NLRB No. 38.
10 Most of the production and maintenance employees are, however, on an incentive pay
system.
11 Recht-Froelich Chevrolet Company, 92 NLRB No 228; Electrical Reactance Corpora-
tion, 92 NLRB 1256; Waterous Company, 92 NLRB 76; Telechron, Inc, 90 NLRB 931;
United Screw & Bolt Corporation, 89 NLRB 953.
12 There is no segregation of personnel in the personnel department for the two groups.
943732-51--27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insurance and pension benefits, and the bonus plan are substantially
the same . There are occasional transfers between the two groups.
Some general office employees frequently visit the production
departments for the purpose of obtaining information.
While there is a single committee which has participated in con-
tract negotiations on behalf of the Intervenor for both groups of
employees , the general office and clerical employees and the factory
employees have separate representation on that committee. The
same is true with respect to the processing of grievances.
We do not find any compelling argument in this case to depart
from the Board's customary practice of excluding office clericals from
a production and maintenance unit 13 We shall therefore exclude
these employees from the proposed unit.
Clerks in the medical department.-There are three clerks who
work in a separate building housing the personnel and medical de-
partments . They work under the supervision of the medical director,
who is responsible to the personnel director . The medical depart-
ment's function is to care for the employees ' general health , to take
care of accidents , and make reports to the industrial commission on
any accidents . This department services both factory and general
office employees.
The principal duty of the clerks is to prepare all medical reports
after obtaining the necessary information from the doctors and den-
tists. They make longhand entries on medical records 14 They also
assist the nurses with first-aid work . They need no special training
for their work. They work the same number of hours as do the
factory employees, and their hours are staggered to accommodate
the factory employees . They do not punch a time clork. While their
lunch and recess period more nearly resemble those of the factory
employees , their seniority and vacation rights are more like those
of the general office employees . There is no interchange between
these clerks and the production and maintenance employees or the
general office employees.
Upon the basis of the foregoing facts, it appears that the duties and
employment interests of the clerks in the medical department are
more closely allied with those of the general office and clerical em-
ployees than to those of the production and maintenance employees.
Acordingly, we shall exclude them from the unit.
Draftsmen and technicians.-There are 2 engineering departments,
one located in the building which houses the general office employees,
is See The Procter & Gamble Manufacturing Co, 92 NLRB No. 130 and The Budd Com-
pany, Red Lion Plant, 91 NLRB No 103, where the Board excluded office clericals from
production and maintenance units notwithstanding a history of collective bargaining to the
coati ary.
l4 If any reports must be typed, the clerks ordinarily send them, or in special cases, take
them over themselves to the general office to be typed.
KOHLER COMPANY 403
hereinafter called Engineering A, and the other located in another
building which is separated from certain of the factory buildings by
a fire wall, hereinafter called Engineering B. Engineering A has
approximately 30 engineers, 10 technicians, and 20 draftsmen, and
Engineering B has approximately 8 engineers, 6 technicians, and 6
draftsmen is
The principal function of Engineering A is that of preparing
specifications for work in the factory, laying out work for renovating
foundries, laying out production lines, and drawing up plans for
new buildings or the remodeling of old ones. It prepares the blue-
prints and supervises the work involved. It is also consulted on
serious machine breakdowns in the production departments. The
principalfunction of Engineering B is to take care of the engineering
requirements-of that portion of the Employer's operations in which
engines and electric plants are manufactured,- while Engineering A.
takes care of the engineering requirements of all the Employer's
other production departments.
The principal function of the draftsmen in Engineering A is to
lay out on the board the sketches of particular items prepared by
the engineers. Where complex items are involved, the engineer will
assist the draftsmen in laying it out. The draftsmen gradually as-
sume the functions of the engineers, and depending on their experience
and ability, ultimately acquire the engineer's classification. Some-
times the engineer has the draftsmen check on the dimensions of a
particular item on the plant floor before laying it out. The principal
function of the technicians in Engineering A is to make blueprints
of the matters laid out on the board by the draftsmen. This is done
by a mechanical process of blueprinting on a blueprint machine. The
technicians also run a photostat machine, and file copies of the sketches
and blueprints in the engineering office. The technicians also do
whatever blueprinting and photostating are required by the general
office employees. There is no special skill involved in operating the
blueprint or photostat machines.
The functions of the draftsmen of Engineering B are basically the
same as those of the draftsmen in Engineering A. Engineering B
has two groups of technicians. The first group, consisting of one or
two technicians, performs the same type of work as the technicians
in Engineering A 17 The second group of five or six technicians per-
16 All parties agree to the exclusion of the engineers in both departments as professional'
employees.
"Engineering B designs new electric plants and the necessary equipment to produce
them.
'T The Engineering B technicians do their blueprinting and photostating in the Engi-
neering A building, since the only machines the Employer has are located there.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forms tests on new models and on development work. The nature of
the tests is determined by the engineers , and the technicians merely
follow detailed instructions and report their results to the engineers.
The technicians do not exercise any independent judgment in making
these tests . Most of the testing work is performed in the same area
where the Engineering B engineers and draftsmen do their work.
Some of the testing, however , is done on the plant floor where the
engines and electric plants are manufactured . Most of the testing
technicians have an engineering background and were recruited from
the outside , although some were recruited from the factory. While
no particular type of academic or engineering education or degree is
required , they must have some mechanical or engineering background.
There is no apprenticeship program for the testing technicians. No
degree or academic training is required for the draftsmen in the two
engineering departments , but training in an architect 's office in lay-out
work is normally required . Some employees , however , with no such
experience are trained to become draftsmen.
The technicians and draftsmen in each of the two engineering
departments are answerable to the chief engineer in their respective
departments, who in turn is responsible to the plant manager. All
are salaried employees , and their salaries are approximately 20 per-
cent under the average salary of the engineers . All draftsmen and
technicians in both departments are on the factory payroll. Their
hours are the same as those of the general office employees and they
usually work only on the day shift, while factory 'employees-.work
more than one shift. They do not punch time clocks as do the factory
employees. Other terms and conditions of employment are the same
as those of the general office and clerical employees. ,
The general office representatives of the Intervenor 's grievance
committee have represented the technicians and draftsmen in Engi-
neering A on grievances , while the factory employees ' representatives
on the grievance committee have represented the Engineering B tech-
nicians and draftsmen.
On the basis of the foregoing facts, we are of the opinion that the
draftsmen and technicians have no substantial community of interest
with the production and maintenance employees involved herein. In
accord with our usual practice in such cases we shall exclude them
from the unit."'
American Club employees .-The American Club is owned and op-
erated by the Employer as one of the departments of the Company.
There are approximately 35 employees in the department , consisting
is S. B. Whistler and Sons, Inc , 92 NLRB No 197; F. TV Lynch Company , 92 NLRB
867 , Southern Desk Company , 92 NLRB No 137; The Ohio Steel Foundry Company,
92 NLRB 683.
KOHLER COMPANY 405
of cooks, chefs, assistant chefs, kitchen assistants, waitresses, chamber-
maids, and office clerks. The American Club is a rooming and board-
ing house located in a separate building approximately one-half block
from the closest building in which any other employees work. In the
main, it serves the Employer's employees.19 The majority of em-
ployees rooming and boarding at the club are factory employees. The
employees pay prescribed fees which are treated as separate trans-
actions and are not deducted from their pay checks. They may, how-
ever, buy meal books at the club and authorize the cost of the books
to be deducted from their pay checks.
The American Club prepares lunches for the factory employees on
the day and night shifts. Factory employees deliver the food from
the club building to the factory buildings on wagons, and the food is
then distributed by approximately 3 or 4 American Club employees
and from 15 to 20 factory employees. About one-half to 1 hour a
day is spent by the particular factory employees engaging in that
work. While doing that work, factory employees remain on the fac-
tory payroll and are paid their regular factory rate, but do not get
incentive pay for that time. While assisting in the food delivery and
distribution, they are under the supervision of the American Club
employee in charge. Normally, certain factory employees are desig-
nated to engage in that work. The American Club does not deliver
or distribute food at the general office building. Office employees,
however, may and do eat meals at the club. Factory employees some-
times eat at the club, but do so less frequently than do the office em-
ployees. There is no other company cafeteria. The club is the only
hotel, restaurant, and tavern in the village of Kohler, Wisconsin.
The American Club employees are under the supervision of a man-
ager who is answerable to the American Club committee consisting of
the Employer's personnel manager, treasurer, and purchasing agent.
The- committee reports to the Employer's executives. The American
Club employees are recruited from the outside, and only in a few
instances have they transferred from the factory. They are hourly
paid, and their take-home pay is approximately equal to that of the
common laborers in the factory. They are on a separate payroll, and
work about 4 hours a week more than do the factory employees. Their
seniority, vacation rights, and other privileges and benefits are the
same as the factory employees.
The Board has included cafeteria employees in units of production
and maintenance employees on the ground that their interests are not
so dissimilar as to preclude their proper representation in a single
11 Occasionally there are transient guests when accommodations are available. There are
also one or two village school teachers who live at the club building.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit.20 We are of the opinion that the interests of the American Club
employees are sufficiently related to those of the Employer's produc-
tion and maintenance employees to permit their inclusion in the unit.
We find that all production and maintenance employees at the
Employer's Kohler, Wisconsin, plant, including shop office stenogra-
phers, American Club employees, all employees described in the Octo-
ber 23, 1950, Supplement "B" of the present contract between the
Employer and the Intervenor, and all employees described in Sup-
plement "F" of the contract, including employees doing experimental
work in the development department, but excluding general office and
clerical employees, draftsmen, technicians, clerks in the medical de-
partment, employees in the employment department, doctors, dentists,
nurses, engineers, employees in the chemical and physical laboratory,
confidential employees, watchmen, guards, and supervisors, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section (9) (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
20 Taunton Pearl Works , 89 NLRB 1382 ; Wm P McDonald Corporattion , 83 NLRB 427;
S. S. Pierce Co., 82 NLRB 1260; Wilson and Co, Inc ., 80 NLRB 1466.
SUB GRADE ENGINEERING COMPANY and CLIFFORD E. COLLINS
INTERNATIONAL UNION OF OPERATING ENGINEERS, HOISTING AND
PORTABLE LOCAL No. 101 OF GREATER KANSAS CITY AND VICINITY,
AFL, and CLIFFORD E. COLLINS
SUB GRADE ENGINEERING COMPANY and ERVIN R. STEWART
INTERNATIONAL UNION OF OPERATING ENGINEERS, HOISTING AND
PORTABLE LOCAL No. 101 OF GREATER KANSAS CITY AND VICINITY,
AFL, and ERVIN R. STEWART. Cases Nos. 17-CA-2034, 17-CB-10,
17-CA-235, and 17-CB-11. February 27, 1951
Decision and Order
On July 25, 1950, Trial Examiner Charles W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report, and supporting briefs.
The Respondents' requests for oral argument are hereby denied, as
93 NLRB No. 45.