Missouri Portland Cement Co.

MISSOURI PORTLAND CEMENT CO 1043 Missouri Portland Cement Company and Local 438, United Cement, Lime, Gypsum and Allied Workers International Union, Division of Inter national Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO-CLC Case 14-CA-17812 December 9 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 22 1987 a three member panel of the National Labor Relations Board issued a Decision and Order in the above entitled proceeding' in which it inter alia ordered the Respondent to meet with Local 438 United Cement Lime Gypsum and Allied Workers International Union Division of International Brotherhood of Boiler makers, Iron Ship Builders Blacksmiths Forgers & Helpers AFL-CIO-CLC s (Union or Charging Party) designated representatives to the Grievance and the Joint Safety and Health Committees and post notices at its Joppa and Cave in Rock facile ties Thereafter on September 3 1987 a three member panel of the Board issued an Order deny ing the Respondent s motion to rescind or modify the Board Order 2 Subsequently the Respondent refused to comply with the Board s Order and filed its second motion to rescind or modify the Board Order with a memorandum in support on July 12, 1988 On August 1 1988 the Charging Party filed its opposition to the Respondents motion and on August 4 1988 the Respondent filed its reply to the Charging Party s opposition Also on August 4, 1988 the General Counsel filed her response to the Respondents motion Finally on August 9, 1988, the Charging Party filed its response to the Re spondent s reply to the Charging Party s opposition to the Respondent s motion The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Respondent states that changed circum stances make the Board s Order inappropriate The Respondent specifies the following changes that H K Porter, Inc the owner of the Respondent sold the Respondent to MPC Holdings, Inc on Decem 1 284 NLRB 432 2 In opposition to the Respondents first motion to rescind or modify the Board s Order the Charging Party asserted that the motion was un timely under Sec 102 48(d) of the Boards Rules We note that the Charging Party has not raised this objection in its opposition to the Re spondent s second motion and in any event the modification of our original Order is within our authority as stated in Sec 102 49 of the Board s Rules ber 27 1985 3 that its Joppa and Cave in Rock fa cilities were closed on March 31 1986 and that all employees were terminated that the Joppa facility reopened in April 1987 with a new work force that is not represented by the Union 4 and that the Cave in Rock facility was leased to a third party The Respondent further states that no complaints have issued alleging unfair labor practices resulting from its actions 5 Although the Charging Party opposes the Re spondent s motion the Charging Party does not dispute that the Respondent terminated the unit employees and that subsequently the Joppa facility resumed operation with employees unrepresented by the Union Further no complaint has been issued by the General Counsel alleging unfair labor practices arising from the Respondents closing of the Joppa and Cave in Rock facilities its termina tion of the employees then employed at those fa cilities and its reopening of the Joppa facility with newly hired employees notwithstanding that charges were filed by the Charging Party relating to those actions Those charges were dismissed b} the Region and the General Counsel subsequently denied the Charging Party s appeal Consequently there is no basis for us to find the Respondents ac tions to be unlawful That being so we note that as a result of those actions the bargaining unit rep resented by the Charging Party no longer exists and the Charging Party does not represent the Re spondent s current Joppa employees In light of the dissolution of the bargaining unit and the subsequent hiring of unrepresented employ ees we find that some modification of the remedial requirements of the Order is warranted Paragraphs 2(b) and (c) of the Order essentially require the Re spondent to bargain with the Charging Party by al lowing the latter s designated health and safety rep resentatives to conduct future safety tours of the facility and attend future health and safety commit tee meetings These provisions however presup pose the continued existence of the bargaining unit and the continued representative status of the Union as to current employees Neither of these conditions now exists because of the changes that 2 The Charging Party acknowledges that this change in ownership of the Respondent took place but argues that it does not affect our Order against the Respondent We agree It is not the change in ownership that is the reason for the modification of the Order instead the changes cited infra are the cause of our modifying the Order 4 The Charging Party does not specifically dispute this statement it merely contends that it continues to represent the employees for the pur pose of processing grievances that the Respondent had refused to proc ess We agree with the Charging Party s contention See infra 5 The Charging Party does not dispute this statement We also note that although the General Counsel opposes the Respondents motion she does not dispute the Respondents statements describing the changes it states took place 291 NLRB No 146 1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have occurred For us to insist on compliance with these affirmative bargaining order provisions therefore would require the Respondent to bargain with a labor organization that its newly hired Joppa employees have not chosen to represent them about matters relating solely to those em ployees working conditions Considering the changed circumstances we find that it does not of fectuate the policies of the Act to continue to re quire the Respondent to bargain on request with the Charging Party s representatives for health and safety by giving them access to tour the Joppa fa cility and to attend safety and health meetings to be held in connection with the unrepresented em ployees now employed there As we found in the underlying case however, the Respondent had unlawfully refused to meet with its employees representatives Additionally we have a responsibility to vindicate the public s interest in discouraging and prohibiting unfair labor practices Accordingly we shall modify our Order by deleting specific reference to the Union and in stead order the Respondent to meet over health and safety matters and schedule health and safety meetings with any labor organization that a mason ty of its current employees designates as their rep resentative 6 The relief requested by the Respondent from the Order s provisions to meet on request with the Charging Party s grievance representatives is not appropriate, however With regard to those prove sions the Charging Party had grievances pending at the time the Respondent took the actions that led to the bargaining unit s dissolution These gnevances deal solely with the former bargaining unit s members Thus the changed circumstances noted above do not affect the grievances and the Charging Party continues to represent the former bargaining unit employees in the processing of those grievances Accordingly it effectuates the purposes of the Act to continue to require the Re spondent to meet on request with the Union s des ignated represenatives for the processing of these gnevances The Respondent also states that it should not have to post notices at either the Joppa or Cave in Rock facility because of the changed circum stances We agree with the Respondent that it need not post notices at the Cave in Rock facility The Respondent has closed that facility and currently leases it to an unrelated third party 7 Given this re 8 The cease and-desist provisions dealing with health and safety mat ters will also reflect this change The Charging Party acknowledges a change in control over the Cave in Rock quarry but states that the Respondent sold the quarry In either event, the result is the same striction on the Respondents access and control over the facility we will not require it to post no tices at Cave in Rock There is no such limitation on the Respondents control over or access to its Joppa facility however so the posting requirement for that facility stands Additionally as a result of the disruption in the bargaining unit and to assure that all the former bargaining unit employees (i e those who worked at both the Joppa and Cave in Rock facilities) are notified of our decision we will require the Respondent to mail notices to them Further we will require the Respondent to furnish additional signed copies of the notices to the Re gional Director for voluntary posting by the Union Accordingly we deny the Respondents motion to rescind our Order of June 22 1987 grant in part its alternative motion to modify that Order and issue the Order set forth below in lieu of the one previously entered in this proceeding ORDER The National Labor Relations Board orders that the Respondent Missouri Portland Cement Compa ny Joppa Illinois its officers agents successors and assigns shall 1 Cease and desist from (a) Interfering with its employees Section 7 rights in violation of Section 8(a)(1) of the Act by refusing to meet with Local 438 United Cement Lime Gypsum and Allied Workers International Union Division of International Brotherhood of Boilermakers Iron Ship Builders Blacksmiths Forgers & Helpers AFL-CIO-CLC s designated representatives for processing grievances based on the implemented terms of its final offer limiting the class of persons from which the Union can select its grievance representatives (b) Interfering with its employees Section 7 rights in violation of Section 8(a)(1) of the Act by refusing to meet with the designated representa tives to the Joint Safety and Health Committee of any labor organization designated by a majority of its employees in an appropriate unit as their collec tive bargaining representative based on the imple mented terms of its final offer limiting the class of persons from which any such labor organization can select its Joint Safety and Health Committee representatives (c) Interfering with its employees Section 7 rights in violation of Section 8(a)(1) of the Act by holding safety meetings without adequate advance notice to any labor organization designated by a majority of its employees in an appropriate unit as their collective bargaining representative and/or using company appointed employee representatives MISSOURI PORTLAND CEMENT CO 1045 in place of officially designated representatives of any such labor organization (d) 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 meet with the Union s designated representatives for processing grievances (b) On request meet with the representatives to any contractually established Joint Safety and Health Committee selected by any labor organiza tion designated by a majority of its employees in an appropriate unit as their collective bargaining rep resentative (c) Schedule safety meetings of the above com mittee only following adequate notice to and con sultation with any labor organization designated by a majority of its employees in an appropriate unit as their collective bargaining representative and participate in such meetings only with properly designated representatives of any such labor orga nization (d) Post at its Joppa facility near Joppa Illinois copies of the attached notice marked Appendix 8 Copies of the notice on forms provided by the Re gional Director for Region 14 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately 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 (e) Mail a copy of the attached notice to all em ployees employed by the Respondent at its Joppa and Cave in Rock facilities at the time of its unfair labor practices Such notice shall be mailed to the last known address of each employee Copies of the notice on forms provided by the Regional Di rector for Region 14 after being signed by the Re spondent s authorized representative shall be mailed immediately upon receipt by the Respond ent as directed above (f) Deliver to the Regional Director for Region 14 signed copies of the attached notice sufficient in number for posting by the Union the Union being willing at all locations where notices to its mem bers are customarily posted 8 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 all 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 (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 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 meet with Local 438 United Cement Lime Gypsum and Allied Work ers International Union Division of International Brotherhood of Boilermakers Iron Ship Builders Blacksmiths Forgers & Helpers AFL-CIO-CLC s designated representative for processing grievances based on the implemented terms of our final offer limiting the class of persons from which the Union can select its grievance representatives WE WILL NOT refuse to meet with the designated representatives to the Joint Safety and Health Committee of any labor organization designated by a majority of our employees in an appropriate bar gaining unit as their collective bargaining repre sentative based on the implemented terms of our final offer limiting the class of persons from which any such labor organization can select its Joint Safety and Health Committee representatives WE WILL NOT conduct safety meetings without adequate advance notice to or consultation with any labor organization designated by a majority of our employees in an appropriate bargaining unit as their collective bargaining representative nor will we participate in such meetings with company ap pointed representatives in place of a committee of ficially designated by any such labor organization 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 meet with the Union s des ignated representatives for processing grievances 1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL on request meet with the represents tives to any contractually established Joint Safety and Health Committee selected by any labor orga nization designated by a majority of our employees in an appropriate bargaining unit as their collec tive bargaining representative WE WILL schedule safety meetings of the above committee only following adequate notice to and consultation with any labor organization designated by a majority of our employees in an appropriate bargaining unit as their collective bargaining repre sentative and participate in such meetings only with properly designated representatives of any such labor organization MISSOURI PORTLAND CEMENT COM PANY