Gifford-Hill Co.

840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Riverside Cement Company, a Gifford-Hill Company and United Cement, Lime, Gypsum and Allied International Union, Division of the Interna- tional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO. Case 31-CA-14416 September 29, 1989 DECISION AND ORDER merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The parties stipulated, and we find, that the Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On November 3, 1988, the Regional Director for Region 31 issued an eighth amended complaint and notice of reset hearing, alleging that the Respond- ent violated Section 8(a)(3) and (1) of the Act. The complaint alleges that the Respondent violated the Act on or about July 11, 1984, by announcing, pro- mulgating, and maintaining a rule that any employ- ees who did not bring to work certain personal tools would not be permitted to work. The com- plaint further alleges that on or about July 12, 1984, and continuing for approximately 1 month, the Respondent refused to allow a number of its employees to work because of their failure to comply with this rule. On February 28, 1989, the Respondent and the General Counsel filed a motion to transfer proceed- ings to the Board and a stipulation of facts.' On April 11, 1989, the Board accepted the stipulation and transferred the proceedings. Thereafter, the General Counsel and the Respondent filed briefs with the Board. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record, as stipulated to by the parties , and the briefs of the parties and makes the following findings and con- clusions. 1. THE BUSINESS OF THE EMPLOYER At all times material, Riverside Cement Compa- ny, a Gifford-Hill Company, has been engaged in the manufacture of portland cement in Oro Grande, California. Annually, in the normal course of its business operations, the Respondent sells and ships goods or services valued in excess of $50,000 directly to customers located outside the State of California. The parties stipulated, and we find, that Riverside Cement Company, a Gifford-Hill Com- pany, is and has been at all times, an employer en- gaged in commerce and in business affecting com- ' Although the stipulation was not executed by the Union, the General Counsel attached a letter from the Union that states that the Union had no objections to the stipulation. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Stipulated Facts The Union and the Respondent were parties to a collective-bargaining agreement effective from May 1, 1981, through April 30, 1984. At all times material, the parties were engaged in collective bargaining for an agreement to succeed this con- tract. Impasse in bargaining was reached on June 20, 1984,2 and the Respondent lawfully implement- ed its final offer. Included in the Respondent's final offer were several articles from the recently ex- pired collective-bargaining agreement, in particular, article 27(a)3 and article 32(a) and (c).4 Article 27(a) provides that maintenance employ- ees are required to furnish "hand tools," but that certain specified tools are exempted from the defi- nition of hand tools. Despite the fact that employ- ees were exempted in the contract from having to provide certain tools, some maintenance employees did, for a substantial period of time prior to July 12, elect to bring their own "personal tools"5 to 2 All dates are in 1984 unless otherwise noted 9 Art. 27(a) of the contract reads, in pertinent part The Employer shall furnish all tools and equipment for its employees, except to maintenance employees , in which case these employees shall furnish their own hand tools "Hand tools" as used herein shall not include socket sets, wrenches more than twelve (12) inches long, and all other specialized tools incident to the work of the mechanical , maintenance and skilled trades. 4 Art 32(a) and (c) of the contract read Subsection (a) This Agreement , Pension Agreement , Insurance Agreement and Supplemental Unemployment Benefit Agreement contain all the obligations of, and restrictions imposed upon each of the parties during the respective terms. It is the intent of the parties by these Agreements to have settled all issues between them and all collective bargaining obligations for the terms of these Agreements (as defined therein), and that no change shall be made in any Agree- ment prior to the expiration thereof, except by mutual written con- sent and/or as provided in the "term" clauses of these aforemen- tioned Agreements. Subsection (c). It is agreed that this Agreement contains all of the limitations upon the employer -employee relations which have been agreed upon by the Union and the Employer No other or further restrictions or limitations shall be imposed by the Union upon any employee or employees with reference to his employment , except with the consent of the Employer 5 As used here , the term "personal tools" refers to tools that are re- quired by the terms of art 27(c) to be provided by the Respondent, but have been historically provided by some maintenance employees . It does not refer to the hand tools that maintenance employees are required to provide under the terms of art 27(c). 296 NLRB No. 104 RIVERSIDE CEMENT CO. work with them. As a bargaining tactic, the Union notified the Respondent on July 5 that its members intended to cease bringing to work these personal tools. The Respondent then distributed a memoran- dum to its supervisors dated July 10 stating that: Tools which have been provided by the em- ployees as a matter of past practice will be re- quired as a condition to work . An employee who refuses to provide his historically normal complement of tools is to be instructed that we have no work available . No tools, no work. Go home! Don't come back without your tools. Be sure to point out that this action is not disciplinary in nature. Please warn employees on Wednesday, the 11th, and instruct them that starting with their next scheduled shift this action will be taken. Thirty-three maintenance employees failed to bring their personal tools to work for varying lengths of time between July 12 and August 14, and were not permitted to work by the Respondent. B. The Contentions of the Parties The General Counsel asserts that the Respondent violated the Act by promulgating the above-men- tioned rule requiring that employees furnish the tools they had historically provided for themselves and by retaliating against employees who failed to comply. The General Counsel argues that because the supplying of personal tools was voluntary, and because the employees' concerted refusal to pro- vide these personal tools was a protected activity endorsed by the Union, the Respondent's retalia- tion was violative of Section 8(a)(3) and (1) of the Act. Contrary to the Respondent, the General Counsel maintains that despite the fact that many employees had previously provided some of their own tools for work, the contract states unambig- uously that these tools would be provided by the Respondent, and thus the employees' furnishing of these tools constituted a gift to the Respondent and did not establish a term and condition of employ- ment that the employees ' actions later changed. The Respondent asserts that the Union attempted to unilaterally change the longstanding custom and practice whereby the maintenance employees sup- plied their own tools, and that its response was merely a rejection of the Union 's unlawful actions. The Respondent further argues that its actions were justified as a legal response to an illegal work slowdown or partial strike and as a legal lockout in support of the Company's bargaining position. IV. ANALYSIS AND CONCLUSIONS 841 After careful consideration of the parties' posi- tions, we conclude that the Respondent violated Section 8(a)(3) and ( 1) by promulgating, for dis- criminatory reasons, a work rule requiring that em- ployees provide their own sets of personal tools in order to work, and by withholding work from em- ployees who did not follow this rule. It is well set- tled that a practice not included in a written con- tract can become an implied term and condition of employment by mutual consent of the parties. Once an implied term is established, a unilateral change in that term by either an employer or a union is un- lawful.6 In the present case, however, the employ- ees' furnishing of personal tools was a voluntary act that did not establish an implied term and con- dition of employment. The voluntary nature of the employees' actions in providing certain personal tools is evident from the discretion afforded employees . If providing cer- tain personal tools had become an implied term of employment, employees would have been required to provide them . Here, only some of the employees chose to provide sets of personal tools. Further, no action was taken against employees who chose not to provide any personal tools. Where an action is voluntary , the concerted re- fusal by employees to perform that action is a pro- tected concerted activity and does not constitute an unlawful partial strike.? In Dow Chemical, the Board explained that the vice of a partial strike is the employees' attempt to "establish and impose upon the employer their own chosen conditions of employment."8 Where, as here, the action employ- ees refrain from engaging in is within the employ- ees' discretion, they cannot be said to be imposing their own terms on the Employer. Finally, we find that the Respondent's withhold- ing of work from employees was not a lawful lock- out. Lockouts are generally permissible in anticipa- tion of a strike or in support of an employer's le- gitimate bargaining position . 9 The Respondent's re- 6 See Frontier Homes Corp, 153 NLRB 1070, 1072-1073 (1965), enfd. in pertinent part 371 F.2d 974 (8th Cir. 1967) (employer's unilateral change in past practice of layoff by seniority unlawful), Sacramento Union, 258 NLRB 1074 ( 1981) (employer's unilateral change in past practice of job assignments and seniority rights unlawful ), Chemical Workers Local 29 (Morton-Norwich Products), 228 NLRB 1101 (1977) (union's unilateral at- tempt to change past practice by insisting on recording grievance meet- ings unlawful). ' Paperworkers Local 5 (International Paper), 294 NLRB 1168 ( 1989), Imperia Foods, 287 NLRB 1200, 1204 (1988); Dow Chemical Co., 152 NLRB 1150, 1152 (1965) ' Id. at 1152, quoting Honolulu Rapid Transit, 110 NLRB 1806, 1810 (1954) 9 See generally American Ship Bldg. Y. NLRB, 380 U S 300 (1965). 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fusal to allow the employees in the present case to work without their personal tools was neither. The Respondent's denial of work was limited to only those employees who engaged in action they were entitled to take under the contract and the Re- spondent's recently implemented final offer. The employees who took this action were not engaged in a refusal to work or a strike of any kind . Rather, they were at all times willing and available to work- under the terms of the contract and the recently implemented final offer. Further, the Respondent did not engage in this action in order to support a legitimate bargaining position . The Respondent's actions were taken in response to the employees' decision through the Union to invoke the terms of the implemented proposal. As such , the Respond- ent engaged in retaliation for the protected con- certed activity engaged in by the employees.1 ° Ac- cordingly, we find that the Respondent violated Section 8(a)(3) and (1) of the Act. Ii CONCLUSION OF LAW By promulgating a discriminatory work rule and by discriminatorily withholding work from em- ployees in retaliation for their refusal to comply with this rule, the Company engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist and to take certain affirmative actions designed to effectuate the policies of the Act. Having found that the Respondent unlawfully promulgated and maintained a discriminatory work rule in retaliation for employees' protected concert- ed activity, the Respondent shall be required to cease and desist from enforcing and maintaining the rule and shall be required to rescind the rule. Having found that the Respondent unlawfully withheld work from the following employees in re- taliation for the employees' protected concerted ac- 10 Moreover, the Respondent 's "no tools, no work" policy was con- trary to what we have found the relevant condition of employment to be, namely, the right of employees to choose whether to furnish personal tools. I I The Respondent also raises the fact that it repeatedly requested that the employees "work now, grieve later," if they were unhappy with the Respondent's work rule rather than taking matters into their own hands and refusing to bring their personal tools to work . As the Board recog- nized in PaperworAers Local 5 (International Paper), 294 NLRB 1168 (1989), although public policy favors the private resolution of such mat- ters through arbitration, this principle is not absolute. Here, similar to the situation in International Paper, employees' practice of providing the tools was voluntary, the withholding of the tools was an exercise of the em- ployees' Sec 7 rights, and the exercise of those rights might have proved fruitless if not carried out in a timely manner Accordingly, we find that in these circumstances, the employees were not subject to the "work now, grieve later" policy. tivity, the Respondent shall be required to make them whole for any loss of earnings or other bene- fits they may have suffered by reason of the dis- crimination against them, with interest to be com- puted in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987): Jerry Axley Edward K. Ballinger Duane L. Breton David Carrizosa Rick P. Chatten Stephen L. Cox David W. Deakin James R. Dick Paul Y. Espinosa John L. Eubanks Michael N. Flint Kenneth P. Galford Fred Griego Gordon P. Hatton Bill W. Hill Lewis C. Hill Morley M. Jarrett George Lanning Dennis L. Mann Charles E. McCollum James C. McKay Robert R. McLaughlin David A. Moltz David E. Olson Otto E. Olson Albert Padilla C. Wayne Roach Carlos Roo Dan Sisk Charles H. Smith Jerry L. Webb Mitchell E. Whaley John C. Wills ORDER The National Labor Relations Board orders that the Respondent, Riverside Cement Company, a Gifford-Hill Company, Oro Grande, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating and maintaining discriminatory work rules in retaliation for employees' protected concerted activity. (b) Withholding work from employees in retalia- tion for their protected concerted activities. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their Section 7 rights. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the discriminatory work rule promul- gated in retaliation for employees' protected con- certed activity. (b) Make the following employees whole for any loss of earnings or other benefits they may have suffered by reason of the discrimination against them in the manner described above in the remedy section: Jerry Axley George Lanning Edward K. Ballinger Dennis L. Mann Duane L. Breton Charles E. McCollum David Carrizosa James C. McKay RIVERSIDE CEMENT CO. Rick P. Chatten Stephen L. Cox David W. Deakin James R. Dick Paul Y. Espinosa John L. Eubanks Michael N. Flint Kenneth P. Galford Fred Griego Gordon P. Harton Bill W. Hill Lewis C. Hill Morley M. Jarrett Robert R. McLaughlin David A. Moltz David E. Olson Otto E. Olson Albert Padilla C. Wayne Roach Carlos Roo Dan Sisk Charles H. Smith Jerry L. Webb Mitchell E. Whaley John C. Wills (c) 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, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Oro Grande, California facility copies of the attached notice marked "Appen- dix."12 Copies of the notice, on forms provided by the Regional Director for Region 31, 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. is 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 843 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. WE WILL NOT promulgate and maintain discrimi- natory work rules in retaliation for your protected concerted activity. WE WILL NOT withhold work from employees in retaliation for their protected concerted activities. 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 rescind the discriminatory work rule promulgated in retaliation for your protected con- certed activity. WE WILL make the following employees whole for any loss of earnings or other benefits they may have suffered by reason of the discrimination against them: Jerry Axley Edward K. Ballinger Duane L. Breton David Carrizosa Rick P. Chatten Stephen L. Cox David W. Deakin James R. Dick Paul Y. Espinosa John L. Eubanks Michael N. Flint Kenneth P. Galford Fred Griego Gordon P. Harton Bill W. Hill Lewis C. Hill Morley M. Jarrett George Lanning Dennis L. Mann Charles E. McCollum James C. McKay Robert R. McLaughlin David A. Moltz David E. Olson Otto E. Olson Albert Padilla C. Wayne Roach Carlos Roo Dan Sisk Charles H. Smith Jerry L. Webb Mitchell E. Whaley John C. Wills RIVERSIDE CEMENT COMPANY, A GIFFORD-HILL COMPANY