Alamo Cement Co.

National Labor Relations Board - Board Decisions

Nov 12, 1985

277 N.L.R.B. 333 (N.L.R.B. 1985)

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