Alamo Cement Co.

National Labor Relations Board - Board Decisions

Apr 25, 1986

279 N.L.R.B. 462 (N.L.R.B. 1986)

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