Alamo Cement Co.

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alamo Cement Company and United Cement, Lime, Gypsum & Allied Workers International Union and its Local 560, AFL-CIO-CLC. Case 23- CA-9122 12 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 27 October 1983 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent and the General Counsel filed excep- tions and supporting briefs. 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, findings, and conclusions' and to adopt the recommended Order as modified. We agree with the judge's finding that the Re- spondent unlawfully made certain unilateral changes in working conditions, and that the control room operators are not supervisors. We also agree with this refusal to find that the Respondent threat- ened employees or unlawfully discharged John Hernandez. We do not agree, however, with his finding that the Respondent attempted to bypass the Union and deal directly with bargaining unit employees. Around 31 August 1982 the Respondent in- formed the control room operators that they would be designated supervisors. Several control room operators expressed concern that as supervisors they could not remain in the bargaining unit, and their concern was brought to the attention of the Respondent's president, William Hopper. In Octo- ber 1982 Hopper called control room operator John Hernandez and told him that Hopper had heard that Hernandez wanted to be part of the bar- gaining unit. Hernandez responded that as far as he was concerned he was part of the bargaining unit. Hopper said Hernandez was wrong. Hernandez i The parties stipulated that, assuming the Board finds in San Antonio Portland Cement Co., 277 NLRB 309 (1985), that the Respondent had a duty to bargain with the Union, the Respondent violated the Act by uni- laterally designating the control room operators as supervisors The judge found this conduct violated Sec. 8(a)(5) and (1) of the Act In view of the Board's decision in 277 NLRB 309 (1985), and the parties' stipula- tion, Member Dennis concurs in the judge's finding of an 8(a)(5) viola- tion We agree with the judge's finding that the Respondent did not violate Sec. 8(a)(3) of the Act by discharging John Hernandez. Assuming that the General Counsel established a prima facie case of discrimination under the Board's decision in Wright Line, '251 NLRB 1083 (1980), we find that the Respondent established that it would have discharged Her- nandez even in the absence of his protected conduct. said the matter had been discussed with the Re- spondent's attorney during the negotiations and that Hernandez wished to speak with the attorney further. Hopper stated that the Company had made Hernandez a supervisor when it put him on salary and placed him in charge of a $60 million plant after investing a large amount of money to train him and others to handle the control room. Hopper again stated that Hernandez was wrong and also said that if Hernandez wanted to be part of the bar- gaining unit, "I can accommodate you tomorrow." Around 30 September 1982 Hopper came to the control room and spoke with control room opera- tor Edmundo Zuniga. Hopper asked Zuniga whether he really wanted to be in the bargaining unit. Zuniga replied, "Why not?" Hopper respond- ed that Zuniga earned good money and had a good job in the control room. Hopper added that he could fix it where Zuniga could do something else if he wanted to. Zuniga said that would be "fine." The General Counsel alleged that Hopper's state- ments were threats, either to transfer employees to a lower paying classification or to discharge them. The judge found the remarks were too ambiguous to constitute threats, and we agree with that find- ing. We do not agree with his further finding, how- ever, that the remarks constituted an attempt to bypass the Union and deal directly with the em- ployees. In our view these conversations are not attempts to bargain directly with the employees. Hopper made no promise to change specific terms and con- ditions of employment, and nothing occurred which could be called negotiation. Hopper heard the employees' complaints and, while he indicated he could accommodate their desires to remain in the bargaining unit, neither the Respondent nor the employees ever followed up on the conversations. Under all the circumstances, we find that Hopper's remarks are too vague to constitute an attempt to deal directly with members of the bargaining unit.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Alamo Cement Company, San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Delete paragraph 1(c) and reletter the subse- quent paragraph. 2. Substitute the attached notice for that of the administrative law judge. 2 Leland Stanford Jr University, 240 NLRB 1138, 1144 (1979). 277 NLRB No. 34 ALAMO CEMENT CO. 321 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa-, tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to recognize and bargain collectively in good faith concerning rates of pay, wages, hours, and other terms and conditions of employment with United Cement, Lime and Gypsum Workers International Union , AFL-CIO- CLC, as the exclusive representative of the em- ployees in the following unit: All production , and maintenance employees, in- cluding all employees in the Quarry Depart- mient, Shipping Department, Kiln Department, Finishing Mill Department, Slurry Mill De- partment, Powerhouse Department, Plant Office Department, Maintenance and Repair Department, Electrical Department , Labortory Department, Oiler Subsection as well as plant clerical employees, leadmen, truck drivers, and mechanics, but excluding all other employees, including office clerical employees, order clerks, guards, watchmen, and supervisors as defined in the Act employed by us at our San Antonio, Texas plant. WE WILL NOT unilaterally, without notice to or consultation with the above-named Union, transfer and reclassify you, change the titles of bargaining unit classifications, implement new shifts and hourly schedules, assign new duties to you, transfer certain duties between job classifications in the bar- gaining unit, or otherwise change the rates of pay, hours, or other terms and conditions of employ- ment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the National Labor Relations Act. WE WILL, on request of the Union , rescind each of the following unilateral changes which we made without first consulting and bargaining with the Union: (1) Transferring, on 28 June 1982, an em- ployee from the quarry department to our 1604 plant, reclassifying such employee from a crutch operator to that of utility trainee, and assigning him to work in the plant rather than the quarry. (2) Changing, on 31 August 11982, the title of control room operator to control room super- visor. (3) Implementing, in September 1982, a new daily second shift, 11 a.m. to 7:30 p.m., and a new rotating shift for front -end loader opera- tors in the quarry department at our 1604 plant. (4) Assigning, in September 1982, new duties to front-end loaders in the quarry department at our 1604 facility. (5) Posting and implementing, on or about 6 September 1982, new hourly work and shift schedules for the mix chemists in the laborato- ry department at our 1604 operation. (6) Changing, on or about 23 October 1982, the shifts and hourly work schedules of the mix chemists at our Broadway plant. (7) Transferring, on or about 28 October 1982, certain duties from the mix chemists to the mill operators. WE WILL, on request from the Union, bargain collectively in good faith with the Union about wages, hours, and working conditions of our em- ployees in the appropriate unit and , if an agreement is reached, reduce said agreement to writing and sign it. ALAMO CEMENT COMPANY Guadalupe Ruiz, Esq., for the General Counsel. Robert S. Bambace, Esq., and R. Michael Moore, Esq. (Fulbright & Jaworski), Houston, Texas, for the Re- spondent. Paul H. Balliet, Vice President, Waxahachie, Texas, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This case was tried before me in San Antonio, Texas, on June 21-22, 1983, pursuant to the January 10, 1983 complaint issued by the General Counsel of the National Labor Re- 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lations Board through the Regional Director for Region 23 of the Board.' The complaint is based on a charge filed November 4, 1982, by United Cement, Lime, Gypsum & Allied Work- ers International Union and its Local 560, AFL-CIO- CLC (Charging Party) against Alamo Cement Company (Respondent or Alamo Cement Company).2 In the complaint the General Counsel alleges that Re- spondent violated Section 8(a)(1) of the Act by certain remarks made in September-October 1982, Section 8(a)(3) and (1) of the Act by discharging John Hernan- dez on October 26, 1982, and Section 8(a)(5) and (1) of the Act by making various unilateral changes in working conditions. By its answer Respondent admits certain factual mat- ters but denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Alamo Cement Company, a Texas corporation with its principal office and place of business in San Antonio, Texas, manufactures cement. During 1982 Respondent purchased and received goods and materials valued in excess of $50,000 directly from points and places located outside the State of Texas. Respondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. Il. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that United Cement, Lime, Gypsum & Allied Workers International Union and its Local 560, AFL-CIO-CLC is a labor organiza- tion within the meaning of Section 2(5) of the Act. Al- though the charge was filed jointly by the International Union and Local 560, and although I find, based on Re- spondent's admission, that Local 560 is also a labor orga- nization, as is the International, I shall distinguish be- tween the two. When reference is made to the "Union," it shall mean only the International Union. III. PROCEDURAL MATTERS Early in the hearing Respondent filed a motion that I disqualify myself on two grounds (R. Exh. 1). First, for several years I served on the staff of NLRB Region 23 in Houston, Texas, during which time I "acted in an adver- sarial role against R. S. Bambace and many other attor- neys of Fulbright & Jaworski." Moreover, during that service I had a "working and supervisory relationship with attorneys and other personnel" of Region 23. The adversarial role refers to my service as counsel for the General Counsel in various cases in the 1960s and 1970s 1 Immediately after the close of this hearing, a second proceeding in- volving the same parties was opened on calendar call in Case 23-CA- 9279 My decision in that case is numbered JD-(ATL)-95-83. 2 All dates are for 1982 unless otherwise indicated Respondent's name is shown as amended at the hearing (Tr. 240) when R. S. Bambace or other attorneys of the Fulbright & Jaworski firm were opposing counsel. At the begin- ning of January 1978 I began serving as a supervising at- torney until mid-April 1980, when I became an adminis- trative law judge with the Social Security Administra- tion. In mid-July 1980 I was appointed an adminstrative law judge with the NLRB. Second, during the time I was a supervising attorney with Region 23, an attorney in the group supervised by me acted as the hearing officer in Case 23-RC-4611 on May 24-25, 1978,3 concerning objections and challenged ballots involving Respondent and the Union. Because of these grounds, it is alleged that I will be unable to dis- charge my duties in a fair, unbiased, and impartial manner. At trial I denied the motion (Tr. 15), and I reaffirm that ruling here. Respecting the first ground, the Board has held that former service as counsel for the General Counsel, at least in the absence of affirmative evidence indicating a personal bias, does not disqualify an adminis- trative law judge from presiding over a case. Heads & Threads Co., 261 NLRB 800 fn. 1 (1982). Respondent makes no contention that I have a personal bias.4 On the second point, I noted that my complete lack of familiarity with any of the facts of the objections and challenges matter was no doubt the result of the proce- dure in which hearing officers in such cases function in- dependent of their usual supervision and submit their re- ports directly to the Board (Tr. 12, 15).5 There being no cause to recuse myself, I declined to do so. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The litigation history of the parties appears in the deci- sions, reported and pending. I take official notice of the following: San Antonio Portland Cement Co., 240 NLRB 1168 (1979), enfd. 611 F.2d 1148 (5th Cir. 1980), cert. denied 449 U.S. 844 (1980); the May 21, 1980 decision JD-(SF)-155-80, of Administrative Law Judge James T. Baker in San Antonio Portland Cement Co., Cases 23- CA-7182, et al., 277 NLRB 338 (1985), and the July 15, 1983 decision, JD-279-83, of Administrative Law Judge Leonard M. Wagman in San Antonio Portland Cement Co., Case 23-CA-8880, 277 NLRB 309 (1985).6 Judges Barker and Wagman have summarized the liti- gation history, and I shall not repeat it all here. A few highlights are in order, however. Following the Union's victory in the Board-conducted election of March 17, 1978, and a May 24-25, 1978 hearing on employer objec- a Although Respondent's counsel recalled the dates as being May 24- 26 (Tr. 12), the litigation history, as described below in the background section, discloses only the two dates shown. 4 Indeed, Attorney Bambace assured that he was not questioning my professional integrity (Tr. 11-12) 5 A copy of the hearing officer's report was not submitted or offered in evidence in the instant proceeding According to the litigation history, described below in the background section, such report issued on July 13, 1978-nearly 5 years before the instant hearing B I administratively note that the hearing before Judge Wagnian was conducted for several dates beginning September 1, 1982, and closing Oc- tober 5, 1982 ALAMO CEMENT CO. tions plus challenged ballots, the Board , on September 8, 1978, certified the Union as the exclusive bargaining -rep= resentative of Respondent's employees in the following unit: All production and maintenance employees, includ- ing all employees in the Quarry Department, Ship- ping Department, Kiln Department, Finishing Mill Department, Slurry Mill Department, Powerhouse Department, Plant Office Department , Maintenance and Repair Department, Electrical Department, Laboratory Department , Oiler Subsection , as well as plant clerical employees, leadmen, truck drivers, and mechanics, but excluding all other employees, including office clerical employees, order clerks, guards, watchmen, and supervisors as defined in the Act, employed by the Respondent at its San Anto- nio, Texas plant. Respondent refused to honor the certification, charges were filed, a complaint issued , and on March 5 , 1979, the Board issued its Decision and Order, reported at 240 NLRB 1168, finding, in pertinent part, that Respondent had violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union since September 25, 1978. Appeals, as noted , were unsuccessful. Numerous uni- lateral changes, made by Respondent while the first case was pending, were found unlawful by Judge Barker. Following the Supreme Court's denial of Respondent's petition for certiorari, the parties met on August 22, 1980, for the first bargaining session. Judge Wagman found that the parties thereafter met a number of times with the last face-to-face session occurring July 10, 1981. The negotiations did not result in a collective-bargaining agreement. In late July 1981 employee Julio R. Perez Jr. filed a decertification petition . Because of a question regarding timeliness, Perez withdrew the petition and later, on August 5, 1981, filed another decertification petition in Case 23-RD-492. That same day, as found by Judge Wagman, a copy of the petition in Case 23-RD-492 reached Respondent. As it had, done on the filing of the first petition, Respondent suspended negotiations on re- ceiving a copy of the petition of August 5, 1981, and it has since declined to negotiate further with the Union. On August 24, 1981, Respondent filed a petition in Case 23--RM--389. On October 19, 1981, the Regional Director for Region 23 dismissed the petitions in Cases 23-RD- 492 and 23-RM-389 on the ground, as found by Judge Wagman, that they "were filed during the certification year and are, therefore, untimely filed." In his decision, Judge Wagman agreed with the Regional Director, and he found that Respondent had violated Section 8(a)(5) of the Act by withdrawing recognition from the Union and refusing to bargain with it since July 27, 1981. He further found that certain unilateral changes Respondent had made violated Section 8(a)(5) of the Act. He ordered Re- spondent to cease and desist from its unlawful action, and to take certain affirmative action, including, if re- quested by the Union, to meet and bargain with that labor organization. 323 B. The Unilateral Changes Complaint paragraph 11 alleges that, Respondent im- plemented seven enumerated unilateral changes. This conduct, alleged to violate Section 8(a)(5) of the Act, is described in paragraph 11 to be: (a) On or about June 28, 1982, by its supervisor and agent Manuel P. Galindo, transferred an em- ployee from the Quarry Department to its 1604 op- erations, reclassified him from a crutch operator to that of utility trainee and assigned him to work in the plant instead of the quarry. (b) On or about August 31, 1982, by its supervi- sor and agent Cesare Monzeglio , at a meeting of its employees in Respondent 's conference room, in- formed the control room operators that he (Mon- zeglio) had changed them from control room opera- tors to control room "supervisors." (c) In or about September 1982, the exact date being presently unknown to the Regional Director, by its supervisor and agent Eddie Garcia, imple- mented a new daily second shift, 11:00 a.m. to 7:30 p.m., and a new "rotating" shift for front-end loader operators in the Quarry Department at its 1604 op- erations. (d) In or about September 1982, the exact date being presently unknown to the Regional Director, by its supervisor and agent Eddie Garcia, assigned duties not previously performed by them to the front-end loader operators in the Quarry Depart- ment at its 1604 operations. (e) At the Laboratory Department of its 1604 op- erations, on or about September 6, 1982, by its su- pervisor and agent Henry Delgado, posted and im- plemented new hourly work and shift schedules for its mix chemist employees. (f) On or about October 23, 1982, by its supervi- sor and agent William Gonzales, changed the shifts of its mix chemist employees at its Broadway oper- ations. (g) By written memorandum of it s supervisor and agent William Gonzales, on or about October 28, 1982, directed to the mill operators at its Broadway operations, transferred certain duties previously per- formed by the mix chemist to the mill operators. The parties stipulated that the conduct did occur as al- leged in complaint paragraph 11, that such actions were taken without notifying the Union or affording it an op- portunity to bargain over such matters, and that the le- gality of such conduct would hinge on the final outcome of Case 23-CA-8880 pending before Judge Wagnnan (Tr. 8-9). Three weeks later Judge Wagman's decision issued in which he found, inter alia, that Respondent has at all times relevant been under a duty to recognize and bar- gain with the Union. In accordance with established custom, I shall presume that Judge Wagman's findings and conclusions will be adopted by the Board. Consequently, I find that Re- spondent, by its stipulated conduct, violated Section 8(a)(5) of the Act as alleged in complaint paragraph 11. 1 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall order Respondent to cease and desist from making unilateral changes and to take certain affirmative action. I have not overlooked the fact that subsections (d) and (g) do not describe the "duties" assigned and transferred. We may recall that not every unilateral change violates the Act, for it is only those which are material, substan- tial, and significant. Clements Wire & Mfg. Co., 257 NLRB 1058 (1981); Rust Craft Broadcasting, 225 NLRB 327 (1976).7 Turning on a light switch could be classified as a duty, but would an assignment of that work, even if a unilateral change, constitute a refusal to bargain? Surely the circumstances would have to be exceptional to justify a refusal to bargain for such a limited duty. What can be said of the undescribed "duties" here. Re- spondent raised no objection to the inclusion of these al- legations in the stipulation. Under all the circumstances, it seems reasonable to infer that the parties intended their stipulation here to rest on the implied ground that the "duties" assigned and transferred were significant enough that Respondent's unilateral action could, by mutual agreement, be found unlawful if a final decision in Case 23-CA-8880 (heard by Judge Wagman) resulted in a finding that Respondent has been under a continuing duty to recognize and bargain with the Union. That nec- essarily means an implied basis of the stipulation that the unilateral changes regarding the "duties" were material, substantial, and significant. I so find. Complaint paragraph 15 alleges that the Union, by several letters sent to President William D . Hopper in October-November 1982, protested the unilateral changes and requested bargaining on the matters. Para- graph 16 alleges that Respondent did not acknowledge or, reply to the Union's bargaining requests, and that such failure constitutes a violation of Section 8(a)(5) of the Act. In its answer , Respondent denied both allega- tions. No evidence or stipulation was offered on the sub- ject. Accordingly, I shall dismiss complaint paragraph 16. Such dismissal will have no effect on 'the affirmative action Respondent shall be ordered to undertake in reme- dying the violations found. C. The Supervisor Issue Respondent manufactures and processes various types of cement . It operates two facilities, one known as the Broadway facility, and the other known as the 1604 plant. The former is the old facility, and the latter is the new plant. The 1604 plant is a sophisticated and extreme- ly modern production facility. Production at the new fa- cility is controlled by a centralized control room from which at least 95 percent of the entire plant is monitored (Tr. 31, 266). Operated at all times through changing shifts, the control room is staffed by one person. Prior to August 31, 1982, such person was classified as control room operator. On August 31, as we have seen from the unilateral change described in complaint paragraph 11(b), Respondent, through Production Manager Cesare Mon- zeglio, changed the operators' title to that of control room supervisor. 7 The other changes appear to fall clearly within the proscription of NLRB v. Katz, 369 U S. 736 (1962). Respondent contends here that the control room su- pervisors are, statutory supervisors . The General Counsel contends that they are statutory employees . The issue is relevant here because the General Counsel alleges in complaint paragraph 12 that certain statements made to these individuals in September -October 1982 by Monzeg- lio and William D. Hopper, Respondent's president, con- stitute violations of Section 8(a)(1) of the Act. The Gen- eral Counsel further alleges, in complaint paragraph 13 (in conjunction with conclusionary paragraphs 17 and 19), that Respondent violated Section 8(a)(3) of the Act by discharging John Hernandez , one of the control room supervisors, on October 26, 1982. Of course, if the control room supervisors are supervi- sors within the meaning of Section 2(11) of the Act, then the 8(a)(1) and (3) allegations would have to be dis- missed, for there is no contention here that any excep- tion, recognized or theorized , would apply in this case." Under well-established precedent of Board decisions, the party contending that an employee is a statutory supervi- sor carries the affirmative burden of pleading the issue, presenting evidence on the matter, and establishing such to be the fact. Ahrens Aircraft, 259 NLRB 839, 842 (1981); Williamsport Plumbing Co., 253 NLRB 883 fn. 2 (1980); Tucson Gas Co., 241 NLRB 181 (1979); A-1 Bus Lines, 232 NLRB 665, 667 (1977). In the case before Judge Wagman the parties litigated another unilateral change involving the control room personnel . This was an allegation that Respondent's uni- laterally changing the pay of control room operators from an hourly rate to a monthly salary, effective Janu- ary 1, 1982, violated Section 8(a)(5) of the Act. On this subject Judge Wagman wrote (at 315): The Company conceded that it unilaterally changed its control room operators' pay status from hourly to salaried in January 1982. However, the Company contends that it had no duty to bargain with the Union about these changes because the control room operators were supervisors and thus outside the bargaining unit. I have rejected this con- tention. Assuming the validity of the proffered defense, it was up to the Company to show that the control room operators were supervisors within the mean- ing of Section 2(11) of the Act.5 However, aside from the assertion that the control room operators are supervisors, the Company had not provided any evidence that they enjoyed any of the statutory in- dicia of supervisors at the time the Company changed their pay status. I further find that by uni- laterally changing the control room operators' pay status, the Company violated Section 8(a)(5) and (1) of the Act. 5 Commercial Movers, Inc., 240 NLRB 288, 290 (1979) s At p. 21 of its brief, Respondent makes a passing reference to the control room personnel having been elevated to "managerial" status be- cause of their importance in the overall operation. Respondent does not otherwise pose, contend, or brief the question of whether the control room supervisors are "managerial" employees and therefore excluded from statutory protection. Nor was the issue raised at the hearing I shall not address it here. ALAMO CEMENT CO. Respondent did present some evidence before me:cpn- cerning the duties of the control room personnel. How- ever, John Hernandez credibly testified that he told Monzeglio on September 18, 1982, that the duties of the control room supervisors have always been the same (Tr. 65, 147). There is no evidence here to the contrary. Indeed, Personnel Manager Manuel P. Galindo testified that when Production Manager Cesare Monzeglio spoke to the operators in September 1982, he did not vest them with any new authority, but merely reminded them of the responsibilities and authority they had possessed "all along." (Tr. 321.) Even the change of title from operator to supervisor occurred in advance of the hearing being opened before Judge Wagman, and certainly well before the close of the hearing over a month later. Accordingly, I find the issue to be foreclosed under the res judicata principle. It is clear that this matter was at issue before Judge Wagman. Respondent makes no contention that the de- scribed duties were assigned to the control room opera- tors after their title was changed. And it is well estab- lished that the mere title of "`supervisor," standing alone, does not convert an employee into a statutory supervi- sor. Moreover, evidence of the title change, as noted, could have been presented before Judge Wagman. With one exception, all of the material evidence on the super- visory issue was available and could have been litigated by the same parties on the very same supervisory issue heard by Judge Wagman.9 I therefore find that Respond- ent is precluded from raising the issue before me by rely- ing on evidence predating the hearing before Judge Wagman. In any event, the evidence showing that the control room operators function as experienced technical employees giving routine direction or dispatches to em- ployees, themselves otherwise directly responsible to statutory supervisors, is insufficient to establish that the operators are supervisors within the meaning of Section 2(11) of the Act. I so find. As 1[ have found that Respondent violated the Act by unilaterally changing the titles of the control room oper- ators on August 31, 1982,10 and in view of my finding that the control room operators are employees rather than statutory supervisors, I shall refer to them in this decision as operators, or control room operators, rather than by the title Respondent had unlawfully assigned them. D. The Alleged Threats 1. Introduction Complaint paragraph 12 contains three allegations. The first covers a statement made by Production Manag- er Cesare Monzeglio to the control room operators in s The sole exception lies in the fact that in October 1982 operators Rene Chavera and Raymond Sandoval trained newly appointed opera- tors-trainees Rene Gomez and Abel Elarrera, respectively (Tr 131). As the record reflects, such training was nothing more than the training an experienced person gives to a beginner In no way does it constitute an indicmm of Sec 2(11) authority in the circumstances of this case 10 I shall order Respondent to rescind the title change and on request bargain with the Union on the matter 325 September 1982,_.and the other two pertain to remarks President William D. Hopper made in September and October 1982. To support the allegations, the General Counsel called control room operators John Hernandez, Raymond Sandoval, and Edmundo Zuniga. As a witness, Monzeglio was not asked about the alle- gation pertaining to him, and Hopper did not testify. Re- spondent did call Personnel Manager Manuel P. Galindo who gave testimony bearing indirectly on the allegations. 2. Monzeglio's comments Complaint paragraph 12(a), in a lengthy allegation, as- serts that, on an unknown date in September 1982, Mon- zeglio, over the protest of John Hernandez and other control room operators that there was no change in their duties and salaries, told these employees that by chang- ing them to control room supervisors he had made them higher than the foremen and at a managerial status. On August 30, 1982, Monzeglio, as per his custom, posted an announcement directing the control room op- erators to attend a meeting the following day. Hernandez noticed, however, that the posted announcement (not in evidence) referred to them as control room supervisors rather than operators (Tr. 57). Toward the end of the meeting the following day, August 31, ' Hernandez in- quired why their titles had been changed (Tr. 57, 145). Monzeglio answered that he had decided to make the change because they had more responsibilities than before. The subject was not debated further at this meet- ing. The next meeting Monzeglio held with the operators was about September 18, 1982.11 After some discussion by the attendees of plant matters, Hernandez again asked Monzeglio why their titles had been changed to supervi- sor. Monzeglio replied that he felt they had a lot more responsibilities, that they were his replacements when he was away, and that they were more important to him than the plant foremen. Hernandez said that if that was so they should be earning more money than the foreman. Monzeglio said he was working on that. Hernandez ex- pressed the opinion that he had no more responsibilities then that when the plant opened (Tr. 65, 147). Around that point operator Raymond Sandoval expressed strong opposition to the change, and operators FAmundo Zuniga and Rene Chavera also expressed themselves (Tr. 66, 146). Hernandez and Sandoval expressed the fear that the title of supervisor would render them ineligible to vote in NLRB elections (Tr. 66, Hernandez), and would conflict with their participation in the Union and they wanted to continue to be represented by the Union (Tr. 186, Sandoval). Monzeglio raised his arm and stated that he knew nothing about unions, that they would have to talk to Personnel Manager Galindo about the unions or getting their title changed (Tr. 66-67, 186). Citing Fetzer Broadcasting Co., 277 NLRB 1377 (1977), the General Counsel, at page 11 of the brief, argues that 11 The topical minutes of the August 31 meeting reflect that the next meeting was tentatively set for "September 18-20" (G .C Exh. 4); Her- nandez testified that it occurred in late September (Tr 63) Operator Ed- mundo R. Zuniga testified that it took place on September 18, 1982 (Tr. 224). 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monzeglio's September remarks constitute a violation of Section 8(a)(1) and (5) of the Act in that it was an effort to undermine the Union. There is no pleading that the remarks violate Section 8(a)(5), the matter was not liti- gated on that basis, and I reject the request for a fording on it. As for the 8(a)(1) allegation, I find that Monzeg- lio's announcement was not coercive. I therefore shall dismiss complaint paragraph 12(a). 3. Hopper's conversations a. With Edmundo R. Zuniga Complaint paragraph 12(b), in conjunction with para- graph 18, alleges that Respondent violated Section 8(a)(1) of the Act on or about September 30, 1982, when President William D. Hooper "informed a control room, operator that, if the employee objected to being a con- trol room `supervisor' and wanted to remain or be in the bargaining unit described above in paragraph 8, he [Hopper] would `fix it' for him." Personnel Manager Manuel P. Galindo testified that Monzeglio reported to him "he was having some prob- lems" with the operators over the change of their title to supervisor because they were concerned that as supervi- sors they could not participate in the bargaining unit (Tr. 315). A couple of days later Galindo reported the matter to President William D. Hopper (Tr. 320). When Hopper asked Galindo if he had spoken to the operators, Galindo recommended that Hopper personally discuss the matter with them. Hopper said that he would talk to the opera- tors the next time he went to the plant, and if they wanted to remain in the bargaining unit, "I can possibly do something for them." (Tr. 316, 322.) A short time later Galindo asked Hopper if he had talked to the operators and the president replied that he had, although he did not specify how many (Tr. 316, 323). As described to Galindo, Hopper stated that some wanted to think about it, others were happy where they were, and some wanted to remain in the bargaining unit. Galindo testified that he did not recall that Hopper men- tioned any names for the categories of answers (Tr. 323). Hopper, according to Galindo, told -the personnel manager that if any operator, during an absence by Hopper, approached Galindo with a request to remain in the bargaining unit, that Galindo had Hopper's authori- zation to grant the request (Tr. 316, 323). Control room operator Edmundo R. Zuniga testified that on September 30, 1982, President Hopper came and spoke with him in the control room. After greeting Zuniga, Hopper asked whether he really wanted to be in the bargaining unit. Zuniga replied, "Why not?" Hopper responded that Zuniga earned good money and had a good job in the control room. Perhaps sensing that Zuniga was determined, Hopper added that he could fix it where Zuniga could do something else if he wanted to. Zuniga said that would be "fine." At that point the con- versation ended because Zuniga had to go outside to attend to a problem which arose. They never spoke on the subject again (Tr. 226, 232-234). b. With John Hernandez Complaint paragraph 12(c) alleges that on or about October 22, 1982, President Hopper "informed employee John Hernandez that, irrespective of what Respondent's counsel, Attorney Robert S. Bambace, may have told Hernandez during bargaining negotiations , Hernandez was not in the bargaining unit described above . . . but that, if Hernandez wanted to remain or be in the bargain- ing unit, he [Hopper] `could accommodate him tomor- row. Hernandez testified that on October 1, 1982, he re- ceived a call from Hopper. 112 On duty in the control room at the time of Hopper's call, Hernandez credibly testified that Hopper stated he was surprised that Her- -nandez had told Monzeglio that he wanted to be part of the bargaining unit. Hernandez responded that as far as he was concerned he was part of the bargaining unit. Hopper said Hernandez was wrong. Hernandez said the matter had been discussed with Attorney Bambace, one of Respondent's counsel, during the negotiations, and that he wanted to talk with Bambace. Hopper stated that Alamo Cement had made him a supervisor when it put him on salary and placed him in charge of a $60 million plant after investing a large amount of money to train him and others to handle the control room .'3 He again said that Hernandez was wrong, but if Hernandez wanted to be part of the bargaining unit, "I can accom- modate you tomorrow." Hernandez replied that before he made a decision he wanted to talk to Attorney Bam- bace. Responding that Hernandez could talk to anyone he wanted to, Hopper terminated the call. Hernandez called the Union's lawyer and never spoke thereafter to Bambace or Hopper on the subject (Tr. 68-69, 147-148). c. Conclusions At pages 7 and 11 of his brief, the General Counsel refers to Hopper's remarks as threats. Presumably the General Counsel contends the "I can fix it" and "I can accommodate you tomorrow" statements to Zuniga and Hernandez were either (1) threats to grant their request and move them to another job classification, one prob- ably earning less pay than their $2000 monthly salary, within the bargaining unit, or (2) threats to discharge them in retaliation for their protected opposition to the will of their employer. Indeed, the General Counsel argues that Respondent made good on its threat when it fired Hernandez later in October. The second theory relies on remarks which, in context, can be interpreted in different ways. I find the statements too ambiguous to be threats of discharge. The first of the possible threat theories, that of a trans- fer, is a plausible and reasonable interpretation to be given to Hopper's remarks. But are they threats? Re- spondent argues that they do not amount to such. If 12 Hernandez knew the specific date because immediately after the call he made some brief notes recording it (Tr. 69). Over Respondent's objec- tion, the notes were received merely for corroboration purposes (G.C. Exh 7) is The subject of the training is discussed later when the matter of Hernandez' discharge is treated ALAMO CEMENT CO. Hopper intended them as threats to transfer, he, did not follow through by transferring either Zuniga or Hernan- dez. I note that there is an absence of evidence disclosing that all other bargaining unit positions paid less than the control room operator position. Hernandez testified that he was surprised by Hopper's call; that he was not expecting such a call (Tr. 68). No doubt Zuniga likewise was surprised at receiving a visit, without advance notice, from Respondent's president. The significance of the surprise factor is that it gives an insight into the true nature of the call/visit. Hopper's offer to transfer, or reassignment, while not a threat, was an unlawful bypassing of the Union in an at- tempt to deal directly with members of the bargaining unit. Such conduct constitutes a violation of Section 8(a)(1) of the Act, and I so find.14 I shall order Re- spondent to cease and desist from similar conduct in the future. E. John Hernandez Fired on October 26, 1982 1. Background Hired by Respondent on December 22, 1975, as a gen- eral laborer, John Hernandez had done quite well. He progressed upwards through four or five positions, in- cluding slurry pumper and mix chemist, until reaching the very important position of control room operator with the substantial salary of $2000 a month. Hernandez was one of 10 employees Production Man- ager Cesare Monzeglio selected for a 4-month training program in Europe to learn how to operate the control room of Respondent's new 1604 plant which would uti- lize the dry process of manufacturing cement. That train- ing, done in Italy and Switzerland (Tr. 29, Hernandez), cost Respondent approximately $65,000 per trainee (Tr. 267, Monzeglio). Half the trainees went at one time, and half at another.' e Monzeglio himself is from Italy. Emigrating in 1979 from Italy direct to employment with Respondent in San Antonio, Texas (Tr. 296), Monzeglio became production manager in August 1980 (Tr. 264). Although Monzeglio converses well enough in English, at times he is unable to express his thoughts in this new language adequately (Tr. 304). Becoming active in the Union in 1978, Hernandez has held several union positions, including those of recording secretary of Local 560 and member of the bargaining committee (Tr. 52, 136). He has openly worn a union emblem, on his hardhat most of the time since 1978 (Tr. 138). Monzeglio candidly admitted that he was well aware of Hernandez' active union affiliation when he se- lected Hernandez to train in Europe (Tr. 278-279). The record reflects that operators Raymond Sandoval and Edmundo Zuniga were open supporters of the Union. On May 4, 1981, Hernandez went to Europe for his training of 3-4 months (Tr. 142). While he was there, with all expenses paid, of course, his pay for 48 hours at straight time rates (i.e., with 8 hours at time and one- 14 It is not alleged as also being a violation of Sec 8(a)(5) 15 It appears that most of the trainees became formen rather than con- trol room operators. 327 half) -was- sent direct, to his family who remained in San Antonio. After returning to San Antonio, Hernandez and the others began their "hands-on" training. In Europe they were not permitted to touch the dials and buttons (Tr. 50). Needless to say, the procedure of operating the con- trol room are quite complex and technical. On January 1, 1982, Respondent promoted the trainees from hourly paid mix chemists to salaried control room operators (G.C. Exh. 2, 5).16 As noted earlier„ Judge Wagman found the unilateral change from hourly to salary pay status to be unlawful. 2. Incidents leading to Hernandez' discharge a. Explosion on March 26, 1982 Three incidents led to Hernandez' discharge. To begin with, we need to understand that Respondent's 1604 plant utilizes heat in a kiln to produce "clinkers." The clinkers are hard, black, marble-sized nuggets (Tr. 46). The clinkers are thereafter transported to the mill, gypsum and other items added, and ground into the fin- ished powder.'' The heat is supplied by separate proce- dures. One technique used a solid fuel of coal and coke, and the other utilizes natural gas (Tr. 45). They can even be used in combination (Tr. 49). Carbon monoxide, CO, apparently is given off during the combustion process. It seems that if the fueling/combustion process is not done properly, an excess of CO can accumulate. Monzeglio testified that CO can be very explosive (Tr. 268). The first incident occurred March 26, 1982. The kiln became very unstable. Hernandez remained after his shift ended to help operator Raymond Sandoval in an attempt to stabilize the kiln and correct the problem (Tr. 97). Hernandez testified that he gave the foreman an all clear to start the booster air heater from outside the control room (Tr. 98). Three to four seconds later the precipita- tor exploded.'s No one was hurt, and there was no gen- eral fire. But the explosion caused a shutdown of the plant for 2 months (Tr. 153-154), and, as Monzeglio tes- tified, damages of $3.2 million to the physical plant alone (Tr. 269). As might be expected, several investigations took place. Besides the interviews Plant Manager Chuck Broneck conducted, the manufacturers of the plant equipment investigated, and the insurance company vi- deotaped the employees, including Hernandez, in a reen- actment of the procedures they followed, all in an effort to locate the cause and, obviously, to avoid a repeat ex- perience. 16 Four were so promoted: Rene R. Chavera, John Hernandez, Ray- mond J. Sandoval, and Edmundo R. Zuniga. Apparently these four were the only ones of those sent to Europe who became control room opera- tors. In October 1982 two of this group helped in training two other em- ployees, Abel Barrera and Rene Gomez , to become operators (Tr. 131, 212-213) 17 The first clinker was produced November 1, 1981 (Tr. 31), G.C. Exh. 3, last page. 18 The precipitator is a large box-like building , shown on a color pam- phlet of the plant (G.C. Exh. 3, Tr. 39), through which gas flows as part of a process separating the powder from heavier material (Tr. 38). 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No one was disciplined over the explosion. Monzeglio testified that at first he was unsure of who was responsi- ble, and because everyone was still learning, he felt that everyone needed another chance (Tr. 270, 283). Never- theless, Hernandez concedes that a week or so later Monzeglio told him, he had overfueled the kiln (Tr. 100, 154). Monzeglio testified that, based on the investigation, the most likely cause was the booster air heater igniting an excess of CO gas which had accumulated in the gas train (Tr. 285). An excess of CO accumulated as a result of the kiln being overfueled (Tr. 286). It is clear that Monzeglio himself attributed the cause to operator mis- take. That mistake, in Monzeglio's opinion, was Hernan- dez' attempt to start up the roller mill without having the kiln stabilized and, at the same time, igniting the booster air heater in the presence of CO (Tr. 268, 290). b. Melting on May 22, 1982 The second incident occurred May 22, 1982, when Hernandez admittedly overfueled the kiln (Tr. 106). As Hernandez described the incident, the material liquified under the intense heat and fell through the cooler grate like "lava" onto the drag chain which slides underneath and which is the device that pulls the material through the kiln (Tr. 107). Hernandez called Monzeglio, who came to the plant, inspected the mess, and told Hernan- dez that he had overfueled the system. Hernandez testi- fied that he did not disagree with that assessment (Tr. 109). Monzeglio testified that again overfueling was the problem and that he so informed Hernandez (Tr. 270- 272). This time the damage to the equipment, including the drag chain, was a "mere" $52,000 (Tr. 271-294). It appears that the drag chain could have been saved had Foreman Gregory Fuentes immediately obeyed Monzeglio's order to unload it and, for that failure to obey, Fuentes received a written warning while no disci- pline was issued to Hernandez by Plant Manager Bron- eck (Tr. 295). Nevertheless, Monzeglio credibly testified that Hernandez' negligence caused the superheated mate- rial to fall onto the drag chain in the first place, and for this Monzeglio strongly, but unsuccessfully, recommend- ed to Broneck that Hernandez be disciplined (Tr. 295). Whatever reasoning Broneck had for rejecting Monzeg- iio's recommendation is not given in the record. c. Cold kiln of October 22, 1982 During his evening shift on October 22, 1982, Hernan- dez experienced difficulty with the coal flow to the kiln. In such a situation, standard procedure requires that the operator switch the fuel from coal to gas. There is a spe- cific procedure to follow in accomplishing the switch (Tr. 274; G.C. Exh. 9). The testimony on this event is both lengthy and technical. Because of the credibility resolution I make based on demeanor, I find it unneces- sary to describe this incident in detail. For our purposes it is sufficient to know that in switching from coal to gas the flame went out and Hernandez could not restart it. The kiln became "cold." I" Monzeglio, called by Hernan- 's "Cold" here is a relative term since the temperature nevertheless was 1200 degrees Fahrenheit when the minimum should have been around 2000 degrees (Tr. 276, G.C Exh. 8). dez, came to the plant and within 45 minutes had the flame started. Monzeglio testified that on his arrival at the 1604 plant he checked the valves outside, found them working properly, and then went through the normal procedure in restarting the flame. The operators are not permitted to manually adjust the valves outside the control room. They are restricted to operating the dials and buttons inside which control the valves. The standard procedure calls for the initial switch po- sition to be in what is designated as Run 1. That position is nothing more than a pilot light, and for that reason the pressure will not build sufficiently high to fire the kiln. Any flame started at this point cannot be sustained. When the gas pressure reaches about 70 pounds per square inch, p.s.i., the operator is to switch to Run 2 where gas under high pressure will flow. A flame started in Run 1, therefore, will survive only if Run 2 is switched on with at least 70 p.s.i. (Tr. 274, 311, 332). It is Hernandez' position that he was unable to build up even the minimum pressure needed, for when he tried to turn the switch on Run 2 it would not kick in. There is no dispute that when Monzeglio arrived he went outside and checked the valves. The General Counsel argues that Monzeglio apparently adjusted a valve, and through such adjustment the pressure built up sufficiently to hold Run 2 open when the switch was thrown to that position. He relies on certain testimony of Monzeglio that on his second trip outside he closed the valves "to build pressure." (Tr. 331, 332.) It was after that point that Monzeglio succeeded in switching to Run 2 and in refiring the kiln. Monzeglio testified that after correcting the problem he left without discussing the matter with Hernandez be- cause he had not found anything malfunctioning and he himself had simply followed the standard procedure (Tr. 301, 307). Hernandez made the following entry in the logbook (G.C. Exh. 11): "Lost gas pressure (went to 40); could not open Run 2." Pointing to that entry, Monzeg- lio testified that by so declaring, Hernandez had "signed his mistake." (Tr. 309.) He explained that his comment meant that the log entry shows that Hernandez evidently opened the dial controlling the gas pressure while the switch was still in Run 1 (Tr. 308, 334). This will result, Monzeglio explained, in a loss of gas pressure. Instead, the vent, or dial, is to be opened after the operator switches to Run 2 (Tr. 308, 311, 335). The testimony goes back and forth on the technical steps followed. Hernandez testified about the matter on rebuttal. When Respondent announced it had no surre- buttal, I called Monzeglio to the stand because I wanted him to respond to the points Hernandez made on rebut- tal. This led to several rounds of examination of Monzeg- lio by the parties. Through it all, Monzeglio responded promptly, candidly, and with apparent sincerity. He was a very credible witness. At the same time I should note that Hernandez was a generally credible witness. It may well be that with the inferences which could be drawn, the General Counsel established a prima facie case. However, I need not re- solve that question in view of the findings I make below ALAMO CEMENT CO. regarding Respondent' s motive. In leaving the night of October 22 at this point, I am aware that it is not icleatly established that Monzeglio's explanation is the correct analysis of how Hernandez erred in losing pressure, or even of exactly what Monzeglio did (particularly regard- ing building pressure) to restart the kiln. The fact re- mains that the issue of motive is resolved on the basis of demeanor-Monzeglio's. d. Hernandezfired October 26, 1982 At the end of his shift on October 26, 1982, Hernandez was fired. He had been directed to Plant Manager Bron- eck's office by Monzeglio. There, in the presence of Broneck, Monzeglio, and Personnel Manager Manuel P. Galindo, Broneck began reading from a disciplinary form (G.C. Exh. 8). In brief, Hernandez was discharged. After he finished reading the document , Broneck asked Her- nandez whether he had anything to say (Tr. 75). Hernan- dez replied that regardless of what he said it was clear that he was terminated because everything was pretyped. Broneck said he was sorry, that he liked Hernandez as a person, and he wished Hernandez well. Hernandez, ex- pecting no more than a discussion of the October 22 inci- dent, was shocked (Tr. 75). Monzeglio and Galindo said nothing during the interview . Hernandez wrote a few re- marks on the two-page termination notice, refused to sign the block reciting that he had read the "warning," and the interview ended. The termination form is signed by Broneck and Galindo. Broneck did not testify and Galindo was not asked about the interview or the termi- nation , Monzeglio testified that remarks in the termina- tion notice largely track language he used in a memoran- dum (no copy in evidence) which he sent on October 23 to Broneck strongly recommending that Hernandez be discharged (Tr. 278, 299-300, 302, 306). This time Bron- eck followed Monzeglio 's recommendation. The termination notice is lengthy. The initial narrative paragraph under "Company Remarks" briefly describes the problem which developed and asserts that Hernandez used the wrong procedure to correct it.20 Because the space for that block is limited, the narrative continues onto a second page. Back on the first page , the block for "Company Remarks" is followed by some indecipherable markings under a block asking if there had been prior warnings. This is followed by a block for remarks of the employee. Hernandez wrote: "In my conversation with Mr. Broneck, he stated I did not follow the correct pro- cedure in switching to gas . How does he know?" These remarks also continue onto the second page where Her- nandez observes that none of this would have occurred if the equipment had not malfunctioned to begin with. Her- nandez expressed the belief that management was just wiping its hands clean by the termination , but that simi- lar incidents would happen again in the future, as in the past, until Broneck and Monzeglio started doing their jobs of getting the malfunctioning equipment repaired. The next block sets forth the action to be taken. Broneck/Galindo wrote: 20 The form contains vanous blocls for dates, checkmarks, and the like 329 It ,goes without saying that this Company had ab- sorbed heavy` financial losses due to the irresponsi- ble action of this employee. We will not take a chance on having a repetition of such negligence, therefore, after careful consideration we have decid- ed to terminate employee Hernandez's employment with Alamo Cement Company effective immediate- ly. - In the continuation of Respondent's narrative on the second page, the remarks include a reference to the March and May incidents. Thus: In the meantime-Hernandez-did not cut off the flow of raw material to the kiln and if he did it was too late. When Mr. Monzeglio arrived at about 9:30 p.m., he found that 1) the kiln was cold (about 1200 deg. F) when in a normal situation of this type he would expect the temperature to be a minimum of 2000 deg. F. 2) The kiln had a depth of about two feet of raw material the whole length of the kiln and running into the cooler . 3) The Kiln appeared to have been down at least 3 to 4 hours . Mr. Mon- zeglio asked employee Hernandez why he could not re-light the On. He answered that the controls were not responding . When Mr. Monzeglio checked the system he found everything all right, except that employee Hernandez was not following proper procedures. At this point, Mr. Monzeglio proceeded to light the kiln without any problems . As a result of employee Hernandez's irresponsible action, the Company suffered losses of production of about 600 tons of clinker at a cost of about $20,000.00. In con- clusion, Mr. Hernandez didn't have any problem with the equipment. His problem was that he could not react properly in this situation. This is not the first time that he has been in this type [word indeci- pherable in exhibit, but apparently "of."] predica- ment. On March 26, 1982, there was a major precip- itator failure during his shift. We did not discipline him because we felt that he was not familiar enough with the equipment at the time and we continued his training . Ori May 22, 1982, we had a major damage occur to the cooler grates, again on his shift. Again we took the same position as above. At this point employee Hernandez has been working in the Control Room for about one year. We feel that this is enough time for him to at least realize that he should cut off the raw feed when hie stops the kiln. It seems that he does not understand the importance of following established procedures when trying to correct a problem in his equipment . We have been unable to develop confidence in his ability to oper- ate our equipment in a safe and efficient manner, de- spite about 9 months of rigid training under the di- rection of fully qualified personnel for the equip- ment manufacturer. If we continue to let Mr. Her- nandez operate -our equipment, he could very well wind up hurting or possibly killing a fellow employ- ee. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Over Respondent's objections about relevance a copy of the December 7, 1982 decision of the appeal tribunal of the Texas Employment Commission (TEC) was re- ceived in evidence on the basis that while the Board holds such documents admissible, it does not accord them controlling weight. Not only is a different statute involved, but in the tribunal's decision here Alamo Ce- ment's burden of rebutting the prima facie case is de- scribed as a duty to produce "conclusive" evidence. The tribunal reversed a lower determination against Hernan- dez, The findings and conclusions are as follows: FINDINGS OF FACT: Before filing an initial claim for unemployment insurance benefits, the claimant last worked for the named employer from December 22, 1975 until October 26, 1982 as con- trol room supervisor on a full-time , rotating shift basis, earning an ending salary of $24,000 per year. The claimant was discharged from this position. The claimant was working the second shift (2:00 p.m. until 10 p.m.) on October 22, 1982. At about 7:45 p.m., the claimant discovered that the solid fuel flow into the kiln had stopped . Procedures for con- verting from coal to natural gas were printed on the control board. The claimant put these procedures into effect in an effort to keep the kiln operative until the problem with the coal feed could be identi- fied and corrected. For some reason, the procedure was not effective and the kiln cooled. The claimant atempted to re-light the kiln but the gas flow was unsufficient to maintain a flame. The company had had problems with this switching procedure since the installation of the sophisticated equipment which performs major production operations. Other control room supervisors have experienced difficul- ties with regard to this conversation procedure. The claimant was discharged for failure to implement correct procedures in dealing with the problem. CONCLUSIONS: See Section 5(b) of the Act on the attached form. The claimant's sworn testimony indicated that the claimant followed correct procedures when he discovered the solid fuel flow problem . The em- ployer did not produce conclusive evidence that the claimant's actions were incorrect or that the claim- ant was willfully negligent in his handling of the sit- uation. Under these circumstances, the Tribunal must find that the claimant's discharge was not for misconduct under the law. Therefore , no disqualifi- cation under Section 5(b) is in order. Accordingly, the determination dated November 5, 1982, will be reversed. See Section 7(c)(2)(A) of the Act on the attached form. Since the claimant's separation was not under disqualifying circumstances, there will be a charge- back to the employer's account as a result of this claim. Because we are concerned here with ascertaining Re- spondent's motive, the tribunal's decision has more back- ground interest than relevance to our decision process. It is now appropriate to turn to a discussion of motive. 3. Conclusion regarding Hernandez' discharge As indicated earlier, I view this case as being resolved on determining whether Monzeglio was a credible wit- ness. I found him to be a very believable witness, testify- ing with openness and apparent sincerity through many rounds of examination about each incident and also con- cerning his motive. On closing the hearing, I suggested that the General Counsel should address the question of what the impact would be if I credited Monzeglio (Tr. 337-338). In short, it seemed to me that possibly an argument could be made that, even if Monzeglio were credited, the other facts would nevertheless demonstrate the unlawfulness of Her- nandez' discharge. Although the General Counsel re- viewed the technical aspects and argued that Hernandez did nothing wrong the night of October 22, my request- ed point was not specifically addressed. 21 Monzeglio persuasively testified that the procedures Hernandez followed on October 22, 1982, revealed the same faulty pattern which he followed on March 26, re- sulting in the precipitator explosion, and on May 22, re- sulting in a material meltdown. Although Monzegho had some difficulty in expressing the error in succinct Eng- lish, it is clear that he believed Hernandez' fault to lie in an inability to master the skill required to manage the di- verse aspects of the operator's job. Hernandez' pattern was marked by continuing mistakes in fueling and in lighting the gas (Tr. 276, 300-302). In Monzeglio's opin- ion, Hernandez labored under the handicap of excessive self-confidence, his work was marked by negligence, and he possessed a bad attitude (Tr. 304). Monzeglio did not explain what he meant by a bad attitude . 22 Monzeglio concluded that they were lucky on October 22, for no one was injured and no major damage occurred (Tr. 282). But in writing his report the next day , it became clear to Monzeglio, in light of the pattern of Hernandez' prob- lems, that Hernandez' presence in the control room con- stituted an unreasonable safety risk. Indeed , Monzeglio feared that Hernandez eventually would cause another explosion and kill someone through his mistakes. He therefore strongly recommended that Hernandez would be terminated rather than warned (Tr. 278, 303). 23 In re- 21 Respondent never formally blamed the March 26 explosion on Her- nandez, and never reprimanded him for the melting incident on May 22 Arguing from these facts, the General Counsel contends that Respondent revealed its unlawful motive by citing and relying on these two incidents as makeweights in discharging him when a common problem developed on October 22 for which he wound up needing assistance 2 2 In an appropriate context, "bad attitude" can be a code name for union or other protected activities There is no evidence here that Mon- zegho had that in mind rather than some other work trait Hernandez dis- played on the job 22 Even if some question remains about the technical steps, both Her- nandez and Monzegho followed the night of October 22, 1982, it really becomes irrelevant . This is so because even if Monzeglio was mistaken about Hernandez, such a mistake is not unlawful It is clear that Monzeg- ho associated Hernandez with incompetence. Thus, whenever there was a major problem, Monzeglio found the name of John Hernandez deeply in- volved (Tr 303, 305) Rightly or wrongly , and even if it falls short of being accurate, Monzeglio formed the opinion that Hernandez simply could not do the job It cannot be said that Respondent proved that to be a fact here But that is not the appropriate inquiry The test is whether Monzeglio's opinion, even if wrong, was based on union animus I find that it was not ALAMO CEMENT CO. sponse to Respondent's question, Monzeglio specifically denied that Hernandez ' union activities played any part in his recommendation (Tr. 278). After calling Monzeg- lio as a witness myself, I also asked him that question. He promptly and persuasively answered (Tr. 336): No, Your Honor, because in Italy also the foremen all belong to the union. And I was in my time belong to the Union in Italy. I don't have any prob- lem about union at all. So I credit Monzeglio. It is conceivable, and could therefore be argued, that the unlawful motive lay with Respondent's higher management, Plant Manager Bron- eck and President Hopper. As it was Respondent, osten- sibly through Broneck , and not Monzeglio, who made the actual decision to discharge, a violation could be shown without regard to Monzeglio's motive.24 Al- though a few points can be cited in support of such a theory, the evidence generally falls far short of establish- ing such to be the case. That leads to the conclusion that as Respondent adopted Monzeglio's recommendation, Monzeglio's motive becomes that of Respondent. As I have found nothing unlawful in Monzeglio's motive, it therefore follows that Respondent was not un- lawfully motivated in discharging John Hernandez on October 26, 1982. 1 so find, and I shall dismiss complaint paragraphs 17 and 19 which allege the discharge to have been unlawfully motivated. CONCLUSIONS OF LAW 1. Respondent Alamo Cement Company is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. (a) United Cement, Lime & Gypsum Workers Inter- national Union, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. . (b) United Cement, Lime & Gypsum International Union and its Local 560, AFL-CIO-CLC is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, includ- ing all employees in the Quarry Department, Ship- ping Department, Kiln Department, Finishing Mill Department, Slurry Mill Department, Powerhouse Department, Plant Office Department, Maintenance and Repair Department, Electrical Department, Laboratory Department, Oiler Subsection as well as plant clerical employees, leadmen, truck drivers, and mechanics, but excluding all other employees, including office clerical employees, order clerks, guards, watchmen, and supervisors as defined in the Act, employed by the Respondent at its San Anto- nio, Texas plant. 4. Since September 8, 1978, the above-named Union, by virtue of Section 9(a) of the Act, has been the exclu- 24 Neither Broneck nor Hopper testified. 331 sive representative of the employees in the aforemen- tioned unit for purposes of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By unilaterally, without notice to or consultation with the International Union, transferring and reclassify- ing employees, changing the title of control room opera- tors to control room supervisors, implementing new shifts and hourly schedules, assigning new duties to cer- tain employees, and transferring certain duties between employee classifications, Respondent has failed and re- fused to bargain collectively with the Union, and has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By President William D. Hopper's remarks to em- ployees on September 30 and October 1, 1982, Respond- ent bypassed the Union and attempted to deal directly with employees in violation of Section 8(a)(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. 8. Respondent has not violated the Act as otherwise alleged, and did not violate the Act by discharging John Hernandez on October 26, 1982. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that it be or- dered to cease and desist from such conduct and to take such affirmative action as I find necessary to remedy the effects of the unfair labor practices and to effectuate the policies of the Act. The General Counsel does not con- tend that a broad order is warranted in this case. On the basis of the foregoing findings of facts, conclu- sions of law, and the entire record , I issue the following recommended25 ORDER The Respondent, Alamo Cement Company, San Anto- nio, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain collectively in good faith with United Cement, Lime and Gypsum Workers International Union, AFL-CIO-CLC as the ex- clusive bargaining representative concerning wages, hours, and conditions of employment of the employees in the following appropriate unit: All production and maintenance employees, includ- ing all employees in the Quarry Department, Ship- ping Department, Kiln Department, Finishing Mill Department, Slurry Mill Department, Powerhouse Department, Plant Office Department, Maintenance and Repair Department, Electrical Department, Laboratory Department, Oiler Subsection as well as 25 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. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant clerical employees, leadmen, truck drivers, and mechanics, but excluding all other employees, including office clerical employees, order clerks, guards, watchmen, and supervisors as defined in the Act, employed by the Respondent at its San Anto- nio, Texas plant. (b) Unilaterally, without notice to or consultation with the Union, transferring and reclassifying employees, changing the titles of bargaining unit classifications, im- plementing new shifts and hourly schedules , assigning new duties to bargaining unit personnel, and transferring certain duties between unit classifications or otherwise changing the rates of pay, wages, hours, or other terms and conditions of employment of any bargaining unit em- ployee without first notifying the Union and providing it with an opportunity to bargain collectively with Re- spondent concerning such proposed changes. (c) Bypassing the Union in an attempt to deal directly with bargaining unit employees respecting their rates of pay, wages, hours of work, or other terms and condi- tions of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act. (a) On request by the International Union, bargain col- lectively with the Union in good faith regarding rates of pay, hours of employment, and other terms and condi- tions of employment for the employees in the appropri- ate unit and, if an agreement is reached, reduce the agreement to writing and sign it. (b) On request of the Union, rescind each of the fol- lowing unilateral changes: (1) Transferring on June 28, 1982 an employee from the quarry department to Respondent's 1604 plant, reclassifying such employee from a crutch operator to that of utility trainee, and assigning him to work in the plant rather than the quarry. (2) Changing on August 31, 1982, the title of con- trol room operator to control room supervisor. (3) Implementing in September 1982 a new daily second shift, 11 a.m. to 7:30 p.m., and a new rotat- ing shift for front-end loader operators in the quarry department at Respondent's 1604 plant. (4) Assigning, in September 1982 new duties to front-end loaders in the quarry department at its 1604 facility. (5) Posting and implementing, about September 6, 1982, new hourly work and shift schedules for the mix chemists in the laboratory department at Re- spondent's 1604 operation. (6) Changing about October 23, 1982, the shifts and hourly work schedules of its mix chemists at Respondent's Broadway plant. (7) Transferring about October 28, 1982, certain duties from the mix chemists to the mill operators. (c) Post at its Broadway and 1604 facilities copies of the attached notice marked "Appendix."26 Copies of the notice, on forms provided by the Regional Director for Region 23, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that complaint para- graphs 12(a), 16, 17, and 19 are dismissed. 26 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."