Alamo Cement Co.

ALAMO CEMENT CO. 333 Alamo Cement Company and United Cement, Lime, Gypsum and Allied Workers International Union and its Local 560, AFL-CIO-CLC. Case 23-CA-9279 12 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 31 October 1983 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Alamo Cement Company, San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. various unilateral changes in working conditions, includ- ing laying off and transferring employees. 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 I. 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 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. II. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that United Cement, Lime, Gypsum and 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 herein was filed jointly by the Inter- national Union and Local 560, and although I find, based on Respondent's admission, that Local 560 is also a labor organization, as is the International, I shall distinguish between the two. When reference is made to the "Union" herein, it shall mean only the International Union. Guadalupe Ruiz, Esq., for the General Counsel. Robert S. Bambace and R. Michael Moore, Esgs. (Tub bright & Jaworski), of Houston, Texas, for the Re- spondent. Paul H. Balliet, Vice President, 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 22-23, 1983, pursuant to the June 9, 1983 complaint issued by the General Counsel of the National Labor Re- lations Board through the Acting Regional Director of Region 23 of the Board. The complaint is based on a charge filed April 25, 1983, by United Cement, Lime, Gypsum and Allied Workers International Union and its Local 560, AFL-CIO-CLC (the Charging Party) against Alamo Cement Company (Respondent or Alamo Cement).' In the complaint the General Counsel alleges that Re- spondent violated Section 8(a)(5) of the Act by making r All dates are for 1982 unless otherwise indicated. Respondent's name is shown as corrected at the hearing (Tr 6). This case was heard on cal- endar call immediately following the closing of the hearing in a related case involving the same parties, Case 23-CA-9122 My decision in that case is numbered JD-(ATL)-94-83. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On July 15, 1983, Administrative Law Judge Leonard M. Wagman issued his decision in Case 23-CA-8880, in- volving the same parties as those here, in which he found that Respondent violated Section 8(a)(5) of the Act by withdrawing recognition from the Union, on July 27, 1981, and by making various unilateral changes. JD- 279-83. Respondent has filed exceptions to Judge Wag- man's decision.2 The parties stipulated here that the decision in this case will be controlled by the ultimate decision in Judge Wagman's case (Tr. 7). In short, this case merely picks up some unilateral changes occurring since the hearing before Judge Wagman.3 Of the eight allegations here, only three were litigated. The parties stipulated that the events in the other allegations did occur without notice and bargaining with the Union, and that the outcome of such refusal to bargain will be governed by the final de- cision in Judge Wagman's case. The three remaining alle- gations were litigated and will be discussed. ' Judge Wagman also summarized the litigation history between the parties in which Respondent's initial bargaining obligation was estab- lished. I shall not repeat that here. a The hearing before Judge Wagman took place on several dates during September-October 1982. 277 NLRB No. 35 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Stipulated Conduct The parties stipulated that the facts alleged in com- plaint paragraphs 11(a), (b), (c), (e), and (f) did in fact occur without notification to or bargaining with the Union, and that the lawfulness of such unilateral conduct will be contingent on a final decision in the case litigated before Judge Wagman, Case 23-CA-8880 (Tr. 6-7). Complaint paragraph 11 alleges that Respondent, through Plant Superintendent S. D. Sorola, Personnel Manager Manuel P . Galindo, and Chief Chemist Henry Delgado, engaged in the following acts and conduct: (a) On or about October 20, 1982, by its supervi- sor and agent S. D. Sorola, at its Broadway oper- ations added duties to the crane operators position. (b) On or about November 11, 1982, by its super- visor and agent Manuel P. Galindo, at its Broadway operations laid off mill operator trainees. (c) On or about November 12, 1982, by its super- visor and agent Henry Delgado, at its 1604 oper- ations laid off mix chemists. (e) On or about December 3, 1982, by its supervi- sor and agent Manuel P . Galindo, at its Broadway operation laid off mill operator trainees. (f) On or about December 17, 1982, by its super- visor and agent Manuel P. Galindo, at its 1604 oper- ation laid off utilitymen and mechanics. Based on the stipulation, I find that the facts occurred as alleged, that Respondent took such action unilaterally, and that such unilateral conduct violates Section 8(a)(5) and (1) of the Act. On economic layoffs, for example, the Board recently reiterated its established rule in Eltra Corp., 263 NLRB No. 106, slip op. at 5 (Aug. 31, 1982) (not published in Board volumes): While an employer may properly decide that an economic layoff is required, once such a decision is made the employer must nevertheless notify the union and, upon request, bargain with it concerning the layoff.5 5 Clements Wire & Manufacturing Company, Inc., 257 NLRB 1058 (1981). In light of the foregoing, I shall make provisions in the recommended Order to cover the foregoing unlawful conduct. C. The Litigated Allegations 1. Introduction The General Counsel called one witness for each of the three litigated allegations, paragraphs 11(d), (g), and (j). Respondent called no witnesses and presented no evi- dence. It argues that the General Counsel's evidence fails to show any changes in fact, and that any changes estab- lished by the evidence were not the material and substan- tial changes which require bargaining with the exclusive bargaining agent. 2. Transfer to mix chemist Complaint paragraph 11(d) alleges that on or about November 12, 1982, Respondent, by Chief Chemist Henry Delgado, "at its 1604 operations transferred a chemical analyst to the position of mix chemist, a lower grade classification." Mix chemist Larry Garcia testified that prior to No- vember 12, 1982, he worked alongside of chemical ana- lyst Eufimio Canchola. On November 12, Garcia was temporarily switched to the second shift where he re- placed Ron Wagner, another mix chemist, who apparent- ly ceased working at the company. It appears that after November 12 Canchola worked the second shift. The factual question seems to be to what extent Can- chola replaced Wagner in the performance of the duties of a mix chemist. Garcia testified that thereafter he and Canchola relieved each other, and that Canchola was the only one coming onto the next shift to perform mix chemist duties. During the 2 to 3 months preceding the hearing some overlapping of the shifts occurred (Tr. 17). On a maximum of four occasions during that time, each lasting a maximum of 2 hours, Garcia observed Canchola performing the duties of a mix chemist. Garcia conceded that he does not know what Canchola did the other 6 hours of the shift even on the days Garcia had observed him for 2 hours. I find the evidence, which is unrebutted, sufficient to establish that Canchola, a chemical analyst,4 began per- forming the duties of a mix chemist on November 12, 1982, and that he thereafter performed such duties for a substantial portion of his time. There is no evidence that Canchola's job classificaiton or pay rate was changed when he switched to perform- ing mix chemist duties. The General Counsel does not describe in what way Canchola's reassignment was a change from past practice or whether, even assuming it is a departure from past practice , it is a material and sub- stantial change from past practice . Counsel for the Gen- eral Counsel cites no cases in support of his position. Ac- cordingly, I find that Respondent's reassignment of Can- chola does not constitute a unilateral change in violation of Section 8(a)(5) and (1) of the Act. Clements Wire & Mfg. Co., 257 NLRB 1058, 1059 (1981); Rust Craft Broadcasting of New York, 225 NLRB 327 (1976). 3. Transfer to utilityman Complaint paragraph 11(g) alleges that on or about December 17, 1982, Respondent, by Personnel Manager Manuel P. Galindo, "at its 1604 operations transferred an employee in Mechanics A classification to the position of utilityman, a lower grade classification." Called by the General Counsel, Class A Mechanic Homer Zuniga testified that around mid-December 1982 Plant Manager John Broneck called him and Roy Arcos into his office (Tr. 36). On this occasion Broneck in- formed them that business was slow, that there were going to be some layoffs , and because Zuniga and Arcos had the least seniority in the maintenance group, he was ' Garcia testified that a chemical analyst is a higher paid classification than that of a mix chemist (Tr 20). ALAMO CEMENT CO assigning them to work as utilitymen although they would retain their mechanic classification and pay rate (Tr. 36, 39). As a mechanic, Zuniga welded, changed bearings, fixed fans, and performed other mechanical tasks. After being assigned to do the work of a utilityman, Zuniga worked under different supervision and performed work of a general maintenance nature as part of the job of as- sisting the control room operator. The General Counsel neither cites any supporting cases nor explains how this assignment, with no change in pay or job classification, during a period of economic slowdown, operates as a material and substantial change. I therefore shall dismiss this allegation. Clements Wire, id.; Rust Craft, id. 4. Additional duties imposed Complaint paragraph 11(j) alleges that about Decem- ber 22, 1982, Respondent, by Plant Superintendent S. D. Sorola, "at its Broadway operations, added duties to the front-end loader position." Antonio Martinez is the sole witness who testified in support of this allegation. His rambling and disordered testimony is rather confusing. The gist of the evidence here seems to be that in about mid-November 1982 Plant Superintendent Sorola assigned Martinez the task of loading clinker on a Euclid truck, driving the truck to the clinker house, dumping the clinker, driving the truck back to the quarry, and repeating as necessary. This was in addition to his usual work of operating a front-end loader where he also pushes clinker and other trash with the front-end loader. Neither his rate of pay nor his clas- sification has changed.5 Notwithstanding the disorganized nature of the evi- dence of this allegation, it appears clear that Martinez, who operates a front-end loader, was given a substantial addition to his work assignment in November 1982. The impact of this apparently permanent change would have a far more substantial effect than, for example, a 1-day layoff. On economic changes as substantial as this, Re- spondent should have notified the Union and bargained with it concerning this decision and its effects. Clements Wire & Mfg. Co., supra; Bay Diner, 250 NLRB 187, 192 (1980) (unilaterally assigning additional tables to waitress found to be unlawful). 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 and Gypsum Workers, International Union, AFL-CIO-CLC is a labor organiza- tion within the meaning of Section 2(5) of the Act. (b) Local 560, United Cement, Lime, and Gypsum Workers International Union, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 5 It is unclear just what classfication Martinez has, but he is paid the rate of a front-end loader operator (Tr 51). 335 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 Interna- tional Union has been the certified and exclusive repre- sentative of the employees in the aforementioned unit for purposes of collective bargaining with respect 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, laying off employees and changing various aspects of working conditions, Re- spondent has failed and refused to bargain collectively with the International Union, and is engaging in unfair labor practices within the' meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid conduct constitutes unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did not violate the Act by transferring chemical analyst Eufimio to perform the work of a mix chemist, or by assigning mechanics Homer Zuniga and Roy Arcos to perform the work of utilitymen. 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 will be necessary to remedy the effects thereof and to effectuate the policies of the Act. I shall recommend that Respondent make whole, with interest, those employees laid offs by paying to them their normal wages from the date of their layoffs until the earliest of the following conditions are met: (1) mutual agreement is reached; (2) good-faith bargaining results in a bona fide impasse; (3) the failure of the Union to commence negotiations within 5 days of the receipt of Respondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bar- gain in good faith. Gulf States Manufacturers, 261 NLRB 852, 853 (1982). Although the circuit court denied en- 6 As the pleaded and stipulated facts reflect, layoffs occurred about November 11 and 12, and December 3 and 17, 1982. Neither the number of employees laid off, nor their names , was established in this hearing Therefore, such facts will have to be ascertained at the compliance stage 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forcement of the backpay aspect of Gulf States, it did so because the employer there introduced "considerable evi- dence" showing that its economic condition would have required the layoffs even if there had been bargaining. 704 F.2d 1390, 1399, 1401 (5th Cir. 1983). There is no such evidence here. Finally, the General Counsel does not contend that the unilaterally laid off employees must be offered full and immediate reinstatement in order to restore the status quo ante. Backpay shall be based on the earnings which the em- ployees normally would have received during the appli- cable period, less any net interim earnings , and shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon comput- ed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed' 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 exclusive 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 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, laying off employees, and adding material and substantial duties to the work of employees operating cranes or front-end loaders. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act. r 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 (a) On request by the above-named 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 said agreement to writing and sign it. (b) In the manner set forth in the remedy section of this decision, make whole all employees unilaterally laid off about November 11 and 12, and December 3 and 17, 1982, for any loss of pay they may have suffered as a re- sults of Respondent's unlawful conduct. (c) On request of the International Union , rescind the additional material and substantial duties unilaterally as- signed on or about October 20 and December 22, 1982, respectively, to employees performing the work of oper- ating cranes and front-endloaders. (d) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Broadway and 1604 facilities copies of the attached notice marked "Appendix."8 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. (f) 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 ORDERED that complaint paragraphs 11(d) and (g) are hereby dismissed. S If this order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice ALAMO CEMENT CO. 337 To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to recognize and bargain collec- tively in good faith concerning rates of pay, wages, hours and other terms and conditions of employment with United Cement, Lime, and Gypsum Workers Inter- national Union, AFL-CIO-CLC as the exclusive repre- sentative of our employees in the unit described above. WE WILL NOT unilaterally, without notice to or con- sultation with the above-named International Union, lay you off or add material and substantial duties to the work of employees operating cranes or front-end loaders. WE WILL NOT refuse to bargain in good faith with the Union, on request, about our decision, and its effects, to lay off employees about November 11 and 12, and De- cember 3 and 17, 1982. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain in good faith with the Union, respecting rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, as the exclusive representative of the employees in the unit described below, and if an understanding is reached, embody such understanding in a signed agreement: 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, Oil 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, on request of the International Union, re- scind the additional material and substantial duties we unilaterally assigned , about October 20, and December 22, 1982, respectively, to employees performing the work of operating cranes and front-end loaders. WE WILL make whole all those employees we unilater- ally and unlawfully laid off about November 11 and 12 and December 3 and 17, 1982, with interest. ALAMO CEMENT COMPANY