Alamo Cement Co.

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alamo Cement Company and United Cement, Lime, Gypsum and Allied Workers International Union and its Local 560 , AFL-CIO-CLC. Case 23-CA-9866 25 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN Upon a charge filed by the Union 15 October 1984, the General Counsel of the National Labor Relations Board issued a complaint 9 November 1984 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act by implementing group insurance benefit changes. On 31 January 1985 all parties filed a stipulation of facts and a motion to transfer the proceeding to the Board for decision without a hearing before an administrative law judge or issuance of a judge's decision. On 12 November 1985 the Board ap- proved the stipulation and granted the motion. The parties waived the filing of briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. After consideration of the stipulation and the entire record in this case, the Board makes the fol- lowing findings. I. JURISDICTION The Respondent is a Texas corporation with its principal office and place of business in San Anto- nio, Texas, where it is engaged in processing and manufacturing cement. During calendar year 1984, a representative period, the Respondent purchased and received products, goods, and materials valued in excess of $50,000 directly from sources outside the State of Texas. We find that the Respondent is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Cement, Lime, Gypsum, and Allied Workers International Union and its Local 560, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Issue The issue presented is whether the Respondent violated Section 8(a)(5) and (1) of the Act by uni- laterally implementing group health care insurance benefit changes without bargaining with the Union. B. Facts On 8 September 1978 the Board certified the Union as the exclusive collective-bargaining repre- sentative of the Respondent's employees in the fol- lowing unit: All production and maintenance employees, in- cluding all employees in the Quarry Depart- ment, Shipping Department, Kiln Department, Finishing Mill Department, Slurry Mill De- partment, Powerhouse Department, Plant Office Department, Maintenance and Repair Department, Electrical Department, Laborato- ry Department, and Oiler Subsection, as well as plant clerical employees, leadmen, truck- drivers, and mechanics, excluding all other employees, office clerical employees, order clerks, guards, watchmen, and supervisors as defined in the Act, employed at its San Anto- nio, Texas plant. On 5 March 1979 the Board found that the Re- spondent had refused to recognize and bargain with the Union since 25 September 1978.1 The Fifth Circuit Court of Appeals enforced the Board's decision 15 Feburary 1980.2 Thereafter, the Respondent continued to refuse to recognize and bargain with the Union. In four decisions dated 12 November 19853 and one decision dated 9 De- cember 1985,' the Board found that the Respond- ent's continued refusal to recognize and bargain with the Union was unlawful and again ordered it to bargain. On 1 June 1984 the Respondent implemented group health care insurance benefit changes. The Respondent did not contact the Union or have any discussion about the changes prior to implementa- tion on 1 June 1984. By letter dated 5 October 1984 the Union re- quested that the Respondent contact the Union to arrange suitable times for bargaining about the changes made in the insurance plan. Respondent did not acknowledge or reply to the Union's re- quest. C. Contentions of the Parties The General Counsel contends that health care insurance benefits are a mandatory subject of bar- gaining; that the Respondent had a continuing obli- gation to bargain with the Union at the time of the unilateral changes; that the Respondent did not afford the Union a reasonable opportunity to bar- 1 240 NLRB 1168 (1979) 2 NLRB v San Antonio Portland Cement, 611 F 2d 1148 (5th Cir 1980) 3 277 NLRB 309 (1985), 277 NLRB 320 (1985), 277 NLRB 333 (1985), 277 NLRB 338 (1985) 4 277 NLRB 1031 (1983) 279 NLRB No. 63 ALAMO CEMENT CO. 463 gain about the insurance benefit changes; and that by such conduct the Respondent violated Section 8(a)(5) and (1) of the Act. The Respondent denies that it has an obligation to bargain or that it has violated the Act. within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. D. Discussion of Law and Conclusions It is well settled that an employer violates Sec- tion 8(a)(5) and (1) of the Act by unilaterally changing terms and conditions of employment without first providing the collective-bargaining representative of its employees with a meaningful opportunity to bargain about the changes.5 Because the Union has been properly certified since 8 Sep- tember 1978, the Respondent was under a duty to bargain with the Union in June 1984 when the Re- spondent altered the insurance plan. We find that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing the terms of the employee group health care plan.6 CONCLUSIONS OF LAW 1. The Respondent, Alamo Cement Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Cement, Lime, Gypsum and Allied Workers International Union and its Local 560, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including all employees in the Quarry Department, Shipping Department, Kiln Department, Finishing Mill Department, Slurry Mill Department, Power- house Department, Plant Office Department, Main- tenance and Repair Department, Electrical Depart- ment, Laboratory Department, and Oiler Subsec- tion, as well as plant clerical employees, leadmen, truckdrivers, and mechanics, excluding all other employees, office clerical employees, order clerks, guards, watchmen, and supervisors as defined in the Act, employed at its San Antonio, Texas plant constitute a unit appropriate for the purpose of col- lective-bargaining within the meaning of Section 9(b) of the Act. 4. The Union is now, and at all times material has been the unit employees' exclusive collective- bargaining representative within the meaning of Section 9(b) of the Act. 5. By unilaterally implementing changes in its employee group health care benefits on 1 June 1984 without bargaining with the Union, the Re- spondent has engaged in an unfair labor practice S NLRB v Katz, 369 U S 736, 741-743, 747 (1962) 6 Employee medical insurance is a mandatory subject of bargaining Rose Arbor Manor, 242 NLRB 795, 798 (1979) THE REMEDY Having found that the Respondent has engaged in an unfair labor practice, we shall order it to cease and desist therefrom and to take certain af- firmative action designed to effectuate the policies of the Act. We shall order that, if the Union re- quests, the Respondent restore the employees health care benefits to the status quo ante so far as is possible. We shall further order the Respondent to make whole all its unit employees for losses or expenses they suffered as a result of the Respond- ent's unilateral change as prescribed in Ogle Protec- tion Service, 183 NLRB 682 (1970), plus interest as computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, Alamo Cement Company, San Antonio, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Union by unilat- erally implementing changes in its employee group health care insurance coverage. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain collectively in good faith with the Union as the employees' exclusive collec- tive-bargaining representative concerning the em- ployee group health care plan and any changes in the coverage. (b) If the Union requests, revoke any unilateral changes made to the employee group health care insurance on I June 1984 and restore the coverage as it existed before the unilateral change, until such time as the Respondent negotiates with the Union in good faith to agreement or to impasse. (c) Make whole all employees who suffered monetary losses as a result of the Respondent's uni- lateral change, with interest, as provided in the remedy section. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its San Antonio, Texas place of busi- ness copies of the attached notice marked "Appen- dix."7 Copies of the notice, on forms provided by the Regional Director for Region 23, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 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 Respondent has taken to comply. ' 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 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 bargain collectively with the Union, United Cement, Lime, Gypsum, and Allied Workers International Union and its Local 560, AFL-CIO-CLC, as the representative of our employees in the following appropriate bargaining unit, by unilaterally implementing changes in em- ployee group health insurance coverage: All production and maintenance employees, in- cluding all employees in the Quarry Depart- ment, Shipping Department, Kiln Department, Finishing Mill Department, Slurry Mill De- partment, Powerhouse Department, Plant Office Department, Maintenance and Repair Department, Electrical Department, Laborato- ry Department, and Oiler Subsection, as well as plant clerical employees, leadmen, truck- drivers, and mechanics excluding all other em- ployees, office clerical employees, order clerks, guards, watchmen, and supervisors as defined in the Act employed at its San Anto- nio, Texas plant. 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 Act. WE WILL, on request, bargain with the Union concerning the employee group health care plan and any changes in the coverage. WE WILL, on request, revoke any unilateral changes made to the employee group health care insurance on 1 June 1984 and restore the coverage as it existed before the unilateral change, until such time as we negotiate with the Union in good faith to agreement or to impasse. WE WILL make whole all employees who suf- fered monetary losses as a result of our unilateral change, with interest. ALAMO CEMENT COMPANY