BHP Coal New Mexico

National Labor Relations Board - Board Decisions

Jun 10, 2004

341 N.L.R.B. 1316 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1316
BHP (USA) Inc. d/b/a BHP Coal New Mexico and
International Union of Operating Engineers,
Local 953, AFL–CIO. Cases 28–CA–17103 and
28–CA–17364
June 10, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 12, 2002, Administrative Law Judge James L.
Rose issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
filed an answering brief and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this decision, and to
adopt the recommended Order as modified and set forth
in full below.
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) by unilaterally implementing
changes to its attendance policy.2 The judge also found
that the Respondent violated Section 8(a)(5) by discharg-
ing Truby Werito pursuant to the unlawfully imple-
mented policy. We disagree and find that the General
Counsel failed to meet his burden of showing by a pre-
ponderance of the evidence that the discharge was pursu-
ant to the amended attendance policy.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The Respondent excepted to the judge’s finding on the basis, inter
alia, that the Union waived its right to bargain by virtue of the man-
agement rights clause contained in the parties’ collective-bargaining
agreement, which reads: “The Company reserves all rights and powers
of management except as specifically modified in this agreement or any
supplementary Agreement which may hereafter be made.” The judge
applied the Board’s “clear and unmistakable” waiver standard and
found that this broad management-rights clause did not constitute a
waiver of the Union’s right to bargain over changes to attendance rules.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Johnson-
Bateman Co., 295 NLRB 180 (1989). The Respondent argues that the
judge erred in applying this standard and that the Board should apply
the “contract coverage” analysis announced by the D.C. Circuit in
NLRB v. Postal Service, 8 F.3d 832 (D.C. Cir. 1993). In that case, the
court found appropriate a “contract coverage” analysis, rather than a
clear and unmistakable analysis, where the contract covers the issue in
dispute. Chairman Battista and Member Schaumber find that the result
in this case would be the same under either standard.
It is uncontested that for many years the Respondent
maintained a rule prohibiting unexcused tardiness and
disciplined employees for this offense. Specifically, the
Respondent’s longstanding “General Rules of Conduct”
provided for disciplinary action, including possible ter-
mination, for various types of misconduct. Included was
a rule that prohibited “unexcused/unreported absences or
tardiness (See Attendance Policy).” While the rule itself
referred to unexcused tardiness, the 1995 version of the
referenced attendance policy accompanying the general
rules did not refer to tardiness as distinct from absentee-
ism. The Respondent’s human resources manager,
James Mik, testified that the Respondent treated tardiness
the same as absenteeism under the attendance policy.
However, there had been inconsistent enforcement of the
attendance policy by supervisors for tardiness infrac-
tions. This inconsistency led to an arbitration award (the
Sloan award of 1999) that was adverse to the Respon-
dent. Therefore, in order to ensure consistent enforce-
ment, the Respondent revised the 1995 attendance policy
in November 2000 by setting forth a specific disciplinary
scheme for unexcused tardiness. The Respondent pro-
vided the amended policy to the Union on February 13,
2001,3 and according to Mik, implemented the policy
sometime thereafter when the Respondent had completed
disseminating the policy to its work force.
Prior to his termination on February 13, Werito had
been tardy on September 17, 2000, December 10, 2000,
and January 26, 2001. He then had an unexcused ab-
sence on January 27 for which the Respondent suspended
him. Due to his poor attendance record, the Respondent
issued Werito a final warning letter dated January 29,
advising him that a further unexcused absence or tardy
would result in termination. Despite this final warning,
Werito was tardy yet again on February 9. As a result,
the Respondent treated him as out of service and termi-
nated his employment on February 13.
As argued by the Respondent, Werito’s termination
was preordained by the January 29 final warning letter.
There is no contention in this case that the final warning
letter was issued pursuant to the amended policy or was
unlawful in any way. Indeed Mik provided unrefuted
testimony that the Respondent did not implement its
amended policy until sometime after February 13. Thus,
the final warning letter was issued weeks before the Re-
spondent implemented its amended policy. Moreover,
the final warning letter contained a notice of suspension,
which is not an enumerated disciplinary action in the
amended policy. This is additional strong evidence that
the Respondent did not issue the final warning pursuant
3 All dates hereinafter are 2001 unless otherwise indicated.
341 NLRB No. 149
BHP COAL NEW MEXICO 1317
to the amended policy. Furthermore, there is no record
evidence that the Respondent has failed to discharge an
employee where that employee committed a further of-
fense following the receipt of a final warning. By dis-
charging Werito, the Respondent merely followed
through on its final warning levied weeks before its im-
plementation of the amended policy.4
Because we find that the General Counsel has failed to
establish that the Respondent discharged Werito under
the amended policy, unlike our dissenting colleague, we
find it unnecessary to decide under what other policy, if
any at all, the Respondent’s disciplinary action was
taken. As noted above, the Respondent suspended
Werito and issued him a final warning for tardiness.
Then, when Werito was again tardy, the Respondent dis-
charged him pursuant to that final warning. Since neither
the 1995 attendance policy nor the new amended policy
provides for either a suspension or a final warning, the
Respondent was applying neither policy when it dis-
charged Werito. Accordingly, we find that the General
Counsel failed to prove that the Respondent discharged
Werito pursuant to the amended policy and we, therefore,
dismiss the allegation that Werito’s discharge violated
Section 8(a)(5).
Our dissenting colleague, in finding that the Respon-
dent applied the amended policy in discharging Werito,
principally relies on an inference drawn from two facts:
(1) that Werito’s tardiness record would not have trig-
gered discharge under the Respondent’s 1995 attendance
policy; and (2) that Werito’s tardiness record would have
triggered discharge under the Respondent’s amended
policy. He infers from these facts that the Respondent
must have been applying the amended policy when the
Respondent discharged Werito. We disagree. In making
this contention, the dissent assumes that there were only
two regimens, viz. the 1995 attendance policy and the
amended policy. In truth, there was a substantial period
(covering the Werito conduct and his discharge) when
the 1995 attendance policy was not consistently enforced
against tardiness violations and the amended policy had
not come into existence.
Our colleague notes that the new policy was sent for
printing in November 2000. However, he concedes that
the new policy was not disseminated to the Union and to
the employees until February 13, 2001. In our view, it

4 The Respondent did not call Michael Baca, Werito’s supervisor, as
a witness. The judge drew the adverse inference that, if called, Baca
would have testified that the amended policy was a factor in the dis-
charge decision. We find it unnecessary to decide whether the adverse
inference was warranted. Assuming arguendo that it was, the evidence
would still be insufficient to establish that the discharge was based on
the amended attendance policy.
was both reasonable and equitable to treat that policy as
not being in effect until February 13. Accordingly,
Werito was subject to the practice in effect prior to Feb-
ruary 13. As discussed above, and as found by the arbi-
trator, that practice was not in strict conformity with the
1995 policy. It was that practice to which Werito was
subjected.
Our colleague also contends that Werito’s discharge
would have been overturned at arbitration as contrary to
the Sloan arbitration award unless the Respondent was
applying its amended policy when it discharged Werito
and that therefore the Respondent must have been apply-
ing its amended policy when it discharged Werito. We
disagree with this reasoning. In this regard, we note that
the tardiness that gave rise to the Werito discharge oc-
curred on February 9. This was before the Respondent
announced its amended policy on February 13. Thus, the
Respondent could not have applied the amended policy.
Further, it does not necessarily follow that such a dis-
charge would meet the same arbitral fate as the Sloan
case. Arbitrators have considerable discretion to fashion
equitable awards. Indeed, in the Sloan case, the award
was reinstatement and no back pay. It is sheer specula-
tion to say that another arbitrator would reach the same
result in Werito’s case. Moreover, contrary to our col-
league’s suggestion, it does not follow that application of
the amended policy would have insulated Werito’s dis-
charge from arbitral challenge. If the Respondent had
applied the amended policy, it would have been dis-
charging Werito under a policy that was not known to
Werito at the time of his discharge-triggering tardiness
and the discharge would accordingly have been vulner-
able to an ex post facto challenge at arbitration.
ORDER
The National Labor Relations Board orders that the
Respondent, BHP (USA) Inc., d/b/a BHP Coal New
Mexico, Farmington, New Mexico, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the International Union of
Operating Engineers, Local 953, AFL–CIO, as the duly
designated representative of its employees in the appro-
priate bargaining unit by making unilateral changes to its
General Rules of Conduct.
(b) 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 deemed nec-
essary to effectuate the policies of the Act.
(a) Upon the request of the Union, rescind the unilat-
eral changes found herein.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1318
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All production and maintenance employees of the Na-
vajo, San Juan and La Plata mines and other Company
coal mining operations in the Four Corners Region, but
excluding office clerical employees, guards and super-
visors as defined in the Act.
(c) Within 14 days after service by the Region, post at
its facilities in the “Four Corners Region” copies of the
attached notice marked “Appendix.”5 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 28, after being signed by the Respondent’s author-
ized representative, shall be posted 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed its facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 13, 2001.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER WALSH, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(5) by unilaterally implementing
changes to its 1995 attendance policy.1 I would also
affirm, however, the judge’s finding that the Respondent
violated Section 8(a)(5) by discharging Truby Werito for
excessive tardiness on February 13, 2001,2 pursuant to
its unlawfully implemented attendance policy dated No-
vember 2000. The record fully supports this finding.

5 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 I find that the judge correctly applied the clear and unmistakable
waiver analysis under Board precedent in rejecting the Respondent’s
argument that the Union waived its right to bargain over the attendance
policy by virtue of the management rights clause contained in the par-
ties’ collective-bargaining agreement.
2 All dates hereinafter are 2001 unless otherwise indicated.
The Respondent excepts to the judge’s finding on the
basis that it discharged Werito pursuant to its 1995 atten-
dance policy rather than the amended November 2000
policy. This argument does not withstand scrutiny.
The record reveals the following undisputed facts. Be-
fore the Respondent revised its 1995 attendance policy in
November 2000, the policy did not reference tardiness as
distinct from absenteeism. The Respondent argues that
despite this fact, it treated unexcused tardiness the same
as unexcused absenteeism under the 1995 attendance
policy, even though the policy defined absenteeism as
“not show[ing] up for an assigned shift.” The 1995 at-
tendance policy called for termination on having three
unexcused absences during a 6-month period. Thus, un-
der the Respondent’s interpretation of the 1995 atten-
dance policy, an employee would be subject to termina-
tion if he had three unexcused tardiness reports during a
6-month period.
Significantly, however, in 1999 an arbitrator found that
the Respondent did not have just cause for terminating
employee Todd Sloan for excessive tardiness because
neither the language of the Respondent’s 1995 atten-
dance policy nor its past practice supported the termina-
tion. The arbitrator found that because the Respondent
had inconsistently disciplined employees for excessive
unexcused tardiness in the past, and the 1995 attendance
policy did not explicitly reference tardiness, the Respon-
dent did not have a clearly promulgated and enforced
tardiness policy. Accordingly, the arbitrator found that
the Respondent did not have a contractual basis to dis-
charge Sloan for excessive unexcused tardiness.
The Respondent admits that, as a direct result of this
arbitration decision, it revised the 1995 attendance policy
in order to set forth a clear disciplinary formula for unex-
cused tardiness and thereby help to ensure consistent
discipline by supervisors. The Respondent finalized the
revisions and sent the General Rules of Conduct booklet
containing the amended policy to be printed in Novem-
ber 2000. James Mik, the Respondent’s human resources
manager, testified that even though the printing was
completed by the end of December 2000, the Respondent
did not communicate the amended policy to the Union at
that time because the Respondent was engaged in con-
tract negotiations with the Union and did not want to
“roll out” the amended policy until the negotiations had
concluded.
For the first time, the attendance policy included ter-
mination as possible discipline for excessive unexcused
tardiness or combinations of unexcused absences and
tardiness. Instead of treating an unexcused tardiness
report the same as an unexcused absence, the amended
policy treats three unexcused tardiness reports within 6

BHP COAL NEW MEXICO 1319
months the same as one unexcused absence and treats
each subsequent tardiness report the same as an unex-
cused absence. As under the 1995 attendance policy, the
third unexcused absence calls for termination. Thus,
under the amended policy, having four unexcused tardi-
ness reports and one unexcused absence within a 6-
month period would lead to termination. Werito’s atten-
dance record exactly matched this requirement for termi-
nation. The Respondent decided to discharge Werito on
February 13, the same day that it disseminated the
amended policy to the Union and “rolled out” the policy
to its employees.3
On this record, the Respondent’s explanation that it
decided to discharge Werito on February 13 under its old
1995 policy does not hold muster. If the Respondent had
been following its purported practice under its 1995 at-
tendance policy of treating unexcused tardiness reports
the same as unexcused absences, Werito would have
been discharged after his third unexcused tardiness report
on January 26. Perhaps most significantly, by arguing
that it discharged Werito under the 1995 policy, the Re-
spondent is necessarily arguing that it disregarded the
Sloan arbitration ruling that the 1995 policy did not pro-
vide a contractual basis to discharge an employee for
excessive tardiness. At the same time, the Respondent
admits that the Sloan arbitration ruling drove the Re-
spondent to change its attendance policy. The Respon-
dent cannot have it both ways. It defies logic that the
Respondent discharged Werito under the 1995 policy,
when it admits that it amended this policy to provide a
clear contractual basis for discharge for excessive tardi-
ness and that it disseminated the amended policy to its
employees and the Union on the same day that it decided
to discharge Werito. The Respondent would not waste
its time applying the old 1995 policy only to have the
discharge set aside by an arbitrator.
In sum, the record shows that: (1) the 1995 attendance
policy did not reference tardiness, much less provide for
discipline or termination for excessive unexcused tardi-
ness; (2) after an arbitrator ruled that neither this policy
nor the Respondent’s practice supported the Respon-
dent’s termination of an employee for excessive tardi-
ness, the Respondent revised the policy in November
2000 to provide a clear disciplinary scheme for unex-
cused tardiness; (3) Werito’s attendance record was a

3 I also agree with the judge’s adverse inference finding relating to
the Respondent’s failure to call Werito’s supervisor, Michael Baca, as a
witness. The Respondent called Mik, who had no involvement in the
decision to terminate Werito, as its only witness. Under these circum-
stances, the judge properly drew an adverse inference that Baca would
have acknowledged that the amended policy was a factor in his deci-
sion to terminate Werito.
perfect match to that required by the amended policy for
termination; and (4) the Respondent discharged Werito
on February 13, the same day that it disseminated the
amended policy to the Union and its work force. Under
these circumstances, I agree with the judge that Mik’s
testimony that the concurrent timing of Werito’s dis-
charge and the dissemination of the amended policy was
a mere “coincidence” is unpersuasive.4 These compel-
ling facts more than support the judge’s finding that the
General Counsel met his burden of establishing by a pre-
ponderance of the evidence that the amended policy was
a factor in Werito’s discharge. Thus, I would adopt the
judge’s finding that the Respondent’s unlawfully imple-
mented attendance policy was a factor in Werito’s dis-
charge, and therefore the discharge violates Section
8(a)(5). See Great Western Produce, Inc., 299 NLRB
1004, 1005 (1990).
In reversing the judge’s finding that the amended pol-
icy was a factor in Werito’s discharge, my colleagues
rely on the fact that the tardiness violation which gave
rise to Werito’s discharge occurred on February 9. They
further find that “the amended policy had not come into
existence” at the time of Werito’s discharge. However, it
is uncontested that the Respondent finalized the amended
policy and sent it to print in November 2000 and that it
disseminated the amended policy to the Union and its
employees on February 13. Thus, the amended policy
was conveniently in place on the same day that the Re-
spondent made its decision to discharge Werito, who had
been held out of service by the Respondent until that
date.
My colleagues further rely on the fact that the Respon-
dent issued a final warning letter to Werito on January
29. They characterize the fact that Werito’s final warn-
ing letter contained an order of suspension as “strong
evidence” that the final warning and suspension were not
issued pursuant to the amended policy. However, this
observation means little given that there is no allegation
that Werito’s final warning and suspension were issued
pursuant to the amended policy. The sole issue presented
is whether the amended policy played a role in the Re-
spondent’s termination of Werito on February 13. Fur-
thermore, as explained above, the amended policy was
finalized by management and sent to print in November
2000. The Respondent admittedly delayed disseminating
the amended policy until February 13 only because it
wanted to conceal it from the Union during contract ne-
gotiations. Thus, when the Respondent issued the final
warning letter and suspension on January 29, it knew that
4 Similarly, I find Mik’s self-serving testimony that the policy was
not actually implemented until some unknown date after February 13 to
be unpersuasive.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
it would shortly have its finalized policy in place. As
noted above, I agree with the judge that the Respondent’s
argument—that it was a mere coincidence that it decided
to disseminate the amended policy and to discharge
Werito on the same day—is wholly unpersuasive.
Strangely, at the same time that my colleagues reject
the judge’s finding that the amended policy was a factor
in Werito’s discharge, they also reject the Respondent’s
own defense that it discharged Werito pursuant to its
1995 policy. My colleagues initially find it “unnecessary
to decide under what other policy, if any at all, the Re-
spondent’s disciplinary action was taken.” Nevertheless,
they go on to expressly find that “[s]ince neither the 1995
attendance policy nor the new amended policy provides
for either a suspension or a final warning, the Respondent
was applying neither policy when it discharged Werito.”
(Emphasis added.) My colleagues then assert that there
were not “only two regimens, viz. the 1995 attendance
policy and the amended policy.” The only explanation
they provide for this obscure reference to a third “regi-
men” is that “there was a substantial period (covering the
Werito conduct and his discharge) when the 1995 atten-
dance policy was not consistently enforced against tardi-
ness violations and the amended policy had not come
into existence.” Thus, my colleagues seem to find, sua
sponte, that the Respondent’s inconsistent enforcement
of its 1995 policy constituted a separate “regimen” which
was in place at the time of Werito’s discharge.
The Respondent did not argue or produce any evidence
that a separate, third “regimen” existed. Despite my col-
leagues’ transparent attempt to convert the Respondent’s
inconsistent enforcement of its 1995 attendance policy
into a separate “regimen,” it is uncontested that the only
policy that was in place before the amended policy was
finalized in November 2000 and “rolled out” on February
13 was the 1995 policy. The Respondent’s inconsistent
enforcement of that policy does not equate to a separate,
independent “regimen” (whatever my colleagues may
mean by that undefined term).
Moreover, as explained above, it was that very same
inconsistent enforcement of the 1995 policy that led the
Sloan arbitrator to find that neither the Respondent’s
policy nor its past practice supported the termination of
an employee for excessive tardiness. The arbitrator set
aside the Sloan discharge due to the absence of a clearly
promulgated and enforced tardiness policy. My col-
leagues do not go so far as to posit the existence of a
clearly promulgated and enforced tardiness policy, and in
fact concede, as they must, that the Respondent promul-
gated its amended policy in response to the Sloan arbitra-
tor’s ruling. Again, it is far more reasonable to assume
that the Respondent applied its amended policy, and that
it would not waste its time and effort applying its former,
inconsistently enforced policy, which would undoubtedly
result in Werito’s discharge being set aside by an arbitra-
tor.
As explained above, the record facts provide more than
ample support for the judge’s finding that the General
Counsel met his burden of proving by a preponderance
of the evidence that the amended policy was a factor in
the Respondent’s decision to discharge Werito for exces-
sive tardiness. My colleagues’ finding to the contrary
defies logic as well as the Respondent’s own explanation
for the discharge.
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 Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT refuse to bargain with the Union as the
duly designated representative of our employees by uni-
laterally changing and implementing changes in the Gen-
eral Rules of Conduct.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, upon request of the Union, rescind all uni-
lateral changes to the attendance policy associated with
the November 2000 General Rules of Conduct.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:

All production and maintenance employees of the Na-
vajo, San Juan and La Plata mines and other Company
coal mining operations in the Four Corners Region, but
excluding office clerical employees, guards and super-
visors as defined in the Act.

BHP COAL NEW MEXICO 1321
BHP (USA) INC. D/B/A BHP COAL NEW
MEXICO
Joel C. Schochet, Esq., for the General Counsel.
Raymond M. Deeny and Patrick R. Scully, Esqs., of Denver,
Colorado, for the Respondent.
John L. Hollis, Esq., of Albuquerque, New Mexico, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Farmington, New Mexico, on April 2, 2002,
on the General Counsel’s consolidated complaint alleging that
the Respondent unilaterally implemented a change in terms and
conditions of employment, thus, violating Section 8(a)(5) of the
National Labor Relations Act. It is also alleged that the Re-
spondent unlawfully discharged employee Truby Werito pursu-
ant to the unilateral change and therefore in violation of Section
8(a)(5).
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends the change in its
General Rules of Conduct was not a mandatory subject of bar-
gaining, that Werito was not discharged pursuant to the change,
that the Union waived any right it may have had to bargain
about the change, that this matter is barred by collateral estop-
pel, that it has been deferred to arbitration, and that in any
event, Section 10(b) bars a remedial order.1
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow-
ing findings of fact, conclusions of law, and recommended
order.
I. JURISDICTION
The Respondent is a Delaware corporation with operations
and facilities near Farmington, New Mexico, and is engaged in
mining coal. In connection with its business, the Respondent
annually purchases and receives goods, products, and materials
valued in excess of $50,000 directly from points outside the
State of New Mexico. I therefore conclude that the Respondent
is an employer engaged in interstate commerce within the
meaning of Sections 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, International Union of Operating Engi-
neers, Local 953, AFL–CIO (the Union) is admitted to be, and I
find is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For many years, the Union and the Respondent have had a
bargaining relationship covering a unit of production and main-

1 The Respondent further contends that Local 953 is not a proper
party to the Complaint. However, the Respondent did not offer facts to
support this assertion or suggest how, if true, it should affect the out-
come of this proceeding.
tenance employees at the Respondent’s mines located in the
“Four Corners Region.” Their most recent collective-
bargaining agreement is effective from February 1, 2001,
through January 31, 2004.
In addition to the collective-bargaining agreements, since at
least 1977 the Respondent has maintained written “General
Rules of Conduct” which have been amended from time to
time. Although the Respondent contends that the Union never
has requested bargaining over these rules during contract nego-
tiations, on March 1, 1993, the Union did request discussion
about the then new rules. And the parties have negotiated cer-
tain aspects of the rules—specifically the details of implement-
ing the “drug and alcohol policy.”
As a matter of practice, according to the testimony of Human
Resources Manager James Mik, when management determines
to change the General Rules of Conduct, the amended rules are
put in booklet form and then given to the Union and “rolled
out” to the employees.
The earliest rules in evidence are dated December 1, 1992.
In that incarnation, and all subsequent ones, including the most
recent dated November 2000, is: “Violation of these rules will
be cause for disciplinary action, including possible termination.
. . . 16. Unexcused/ unreported absences or tardiness is prohib-
ited (see attendance policy.).” In each booklet, following the
16 listed rules is the attendance policy which defines absences,
how to report absences and progressive discipline for unex-
cused absences.
Until the November 2000 rules, tardiness was not referred to
in the attendance policy following the 16 general rules, al-
though rule 16 in all previous drafts did prohibit unex-
cused/unreported tardiness. And over the years many employ-
ees had been disciplined for excessive tardiness, including one
discharge, which was reduced to a suspension without pay fol-
lowing an arbitration hearing.
In the November 2000 booklet, the rule on absences and tar-
diness is numbered 17. And in the following attendance policy,
tardiness is specifically dealt with. The November 2000 rules
state that three unexcused tardies within 6 months will equal
one absence as will each subsequent tardy.
According to Mik, as a result of the 1999 Todd Sloan arbitra-
tion, the rules were amended to insure more consistency among
supervisors in giving discipline for tardiness. Sloan had been
discharged for excessive tardiness, and the arbitrator found that
the Respondent had always taken the position that unexcused
absences and unexcused tardiness carried the same penalty;
however, he also found that this position “is not supported by
the language of the Policy, or past practice.” And he found that
discipline for tardiness had been inconsistently enforced. He
ordered Sloan reinstated, but without backpay.
Mik also testified that the new rules were not effective until
sometime after February 13, 2001, even though the booklet had
been dated November 2000 and distributed to supervisors be-
fore the end of the year. He testified the new rules were given
to the Union on February 13, and then were in the process of
being “rolled out” to employees. He contends the new rules
were not effective until after this process had been completed.
According to the company documents, between September
17, 2000, and January 27, 2001, Werito had three unexcused

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1322
tardies and one unexcused absence. Thus he was suspended
and given a warning letter by Baca on January 31, which stated,
among other things, that another unexcused absence or tardy
would result in his termination. On February 9, Werito was
again late for a “roll-out meeting” held prior to his regular shift.
He was held out of service and on February 13 discharged.
According to Mik, when Werito was discharged “[i]t would
have been under the October 1995 rules—the one preceding
these.” It was, he said, a mere coincidence that the Respondent
notified the Union of the change in the rules on the same day it
discharged Werito. However Mik’s involvement, if any, in
Werito’s discharge was as a staff person. The supervisor who
actually terminated Werito was safety and assistant mainte-
nance superintendent, Michael Baca, and Baca was not called
as a witness.2 Since Baca was a member of management, and
the individual who actually discharged Werito, I infer that he
would have acknowledged that the new rules were a factor in
his decision.
B. Analysis and Concluding Finding
The General Counsel alleges that the amended rules of No-
vember 2000 changed terms and conditions of employment and
as they were implemented unilaterally, the Respondent thereby
violated Section 8(a)(5) of the Act. Further, since Werito was
discharged based on the tardiness formula set forth in the
amended rules, this was also violative Section 8(a)(5).
1. The unilateral change
There is no question that the Respondent drafted and adopted
the new rules without bargaining with the Union. There is also
no question that the rules define certain terms and conditions of
employment and therefore as a general principle would be a
mandatory subject of bargaining. Nevertheless, the Respondent
argues that there has never been bargaining over the General
Rules of Conduct and that any disagreements are handled
through the grievance and arbitration process.
Apparently the Respondent argues that the Union’s conduct
over the years in not demanding that the Respondent bargain
about the rules of conduct during negotiations amounts to a
waiver. I disagree. Notwithstanding that the Union may not
have demanded negotiation in the past over the rules, such does
not immunize the Respondent from bargaining about proposed
changes it may want to make. Waiver of bargaining rights
must be clear and unmistakable. Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708 fn. 12 (1983); Mt. Sinai Hospital, 331
NLRB 895 (2000). There is no evidence here of a clear and
unmistakable waiver by the Union of its right to bargain over a
matter which could reasonably affect the employment status of
its members.
The Board has repeatedly rejected the waiver argument
where a change in terms and conditions of employment has
been presented as a fait accompli, notwithstanding that the
bargaining representative had not requested bargaining over
previous changes. Roll & Hold Warehouse & Distribution

2 As counsel for the Respondent correctly note, failure to call a wit-
ness presumed to be favorably disposed to a party justifies an adverse
inference on facts which that witness is likely to have knowledge. Dino
& Sons Realty Corp., 330 NLRB 680 (2000).
Corp., 325 NLRB 41 (1997); Johnson-Bateman Co., 295
NLRB 180 (1989), citing NLRB v. Miller Brewing Co., 408
F.2d 12, 15 (9th Cir. 1969): “[I]t is not true that a right once
waived under the Act is lost forever. . . . Each time the bar-
gainable incident occurs—each time new rules are issued—
(the) Union has the election of requesting negotiations or not.
An opportunity once rejected does not result in a permanent
‘close out.’”
As the Board said in Bath Iron Works Corp., 302 NLRB 898,
901 (1991), “The mere fact that a union has previously acqui-
esced in an employer’s unilateral implementation of plant rules
does not mean, however, that the employer is free thereafter to
implement different . . . rules or significant and material
changes in existing plant rules without giving the union notice
and an opportunity to bargain.”
Thus the issue, I think, is whether there was a substantive
change in the rules adopted in November 2000. I conclude there
was. Unquestionably unexcused tardiness had always been
prohibited under the rules and many employees had been disci-
plined for unexcused tardiness. However, as Mik testified, the
discipline of employees for unexcused tardiness was inconsis-
tent. Therefore the Respondent sought to define in unambigu-
ous terms the progression of discipline for such tardiness.
In brief, the amended rules state that “three unexcused tardi-
ness reports within a six month period will equal one unex-
cused absence and each additional unexcused tardy will be
considered an unexcused absence.” Further, combinations of
unexcused absences and tardiness would result in disciplinary
action, including termination. As before, the third unexcused
absence would mean termination. Under the amended rules,
combining absences with tardiness, one unexcused absence and
four unexcused tardiness reports would mean termination.
I conclude that by defining the levels of discipline, including
discharge, for specific combinations of unexcused absences and
tardiness where none had existed was a substantive change in
terms and conditions of employment and therefore a mandatory
subject of bargaining. By unilaterally implementing the No-
vember 2000 rules the Respondent violated Section 8(a)(5) of
the Act.
2. The discharge of Truby Werito
As counsel for the Union acknowledges, the most difficult
issue in this matter is the discharge of Truby Werito. For start-
ers, Werito had a poor attendance/tardiness record. Within the
6-month period prior to his discharge, Werito had three unex-
cused tardies (September 17 and December 10, 2000, and Janu-
ary 26, 2001) and one unexcused absence (January 27, 2001),
for which he received written warnings and suspensions. He
had been warned that another incident of tardiness would result
in his discharge. On February 9 he was late again. He was
held out of service and discharged on February 13.
Though the Respondent had in past rules prohibited unex-
cused tardiness, and Werito had been warned about the conse-
quences of additional tardiness, the issue here is whether his
discharge resulted from the unlawful change in the “General
Rules of Conduct.” Where a company unlawfully implements
changes in working rules, it thereby undercuts the union’s bar-
gaining authority. It follows that discipline based on such

BHP COAL NEW MEXICO 1323
changes likewise undercuts the union’s authority. Therefore,
the Board has ruled, “If the Respondent’s unlawfully imposed
rules or policies were a factor in the discipline or discharge,
then the discipline or discharge violates Section 8(a)(5).”
Great Western Produce, 299 NLRB 1004, 1005 (1990). How-
ever, where the new rules are not a factor in the discipline or
discharge, then irrespective of the unlawful change, there has
been no violation of Section 8(a)(5). Brimar Corp., 334 NLRB
1035 (2001).
Although Mik testified that Werito was discharged pursuant
to the 1995 rules, his opinion is not persuasive. It was Baca,
not Mik, who discharged Werito and Baca did not testify. As
noted above, I infer that if called as a witness, Baca would not
have persuasively supported Mik. I infer that Baca would have
acknowledged that the new tardiness formula was a factor in
his decision.
From this adverse inference and the documentary evidence I
conclude that in fact Werito was discharged pursuant to appli-
cation of the new rules, which Baca and all other supervisors
had (according to Mik) prior to January 2001.
While Werito might have been terminated under the old
rules, and the Respondent may well have had cause to do so, it
is more likely than not that the absent the new formula Werito
would have not have been discharged. I conclude that the new
rules led Baca to discharge Werito for what amounted to a
fourth unexcused tardy along with one unexcused absence. I
therefore conclude that application of the new rules was a fac-
tor in Werito’s discharge and therefore the Respondent violated
Section 8(a)(5).
3. The Respondent’s other defenses
The Respondent argues that the arbitrator in the Sloan matter
implicitly concluded that discharge for tardiness is just cause,
notwithstanding that he also ruled that the rule requiring regular
on time attendance was not equitably enforced. The Respon-
dent thus argues that since the correctness of the rule proscrib-
ing tardiness has been litigated, and the Union was a party to
that litigation, this action is barred by collateral estoppel.
While this doctrine might in some cases apply to proceedings
before the Board, I conclude this is not one of them. The issue
here concerns the unilateral change in terms and conditions of
employment—a matter which was not before the arbitrator.
The Respondent alleged, but did not offer evidence or argue
on brief, that this matter should be dismissed because “[t]he
claims in the Complaint have been deferred to the griev-
ance/arbitration procedure contained in the Agreement.” I re-
ject this contention.
The Regional Director did initially decline to issue a com-
plaint in Case 28–CA–17103 deferring the Union’s allegation
of unlawful unilateral changes in the General Rules of Conduct
to the parties’ collective-bargaining agreement. However, as
the grievance procedure unfolded, it became clear that the Re-
spondent was not in fact willing to arbitrate the issue of
whether it lawfully implemented changes in the rules. As
counsel stated in his August 2, 2001 letter, “we fully intend to
arbitrate the rule, but only as to its reasonableness and not as
applied to any individual disciplinary matter.” The reasonable-
ness of a change in conditions of employment, however, is
irrelevant to the issue of whether that change was unlawfully
implemented. Since the Respondent has refused to arbitrate the
basic issues in this matter, its claim of deferral cannot be sus-
tained.
Citing NLRB v. Dynatron/Bondo Corp., 176 F.3d 1310 (11th
Cir. 1999), the Respondent contends that Section 10(b) bars this
proceeding because its rule treating tardiness as an offense
justifying discipline was known to the Union more than 6
months prior to the charge here being filed. I find Dyna-
tron/Bondo inapposite on the facts. There the new rule prohib-
ited employees from being 15 minutes late to their workstations
as distinct from being 15 minutes late to clock in. The court
found that the company began issuing discipline to employees
for being late to their workstations more than 6 months prior to
the charge.
Here, there is no question that the Respondent had always
disciplined employees for being tardy. The rule change was in
the formula for treating tardiness as absenteeism. Though the
rule change existed in booklet form from sometime in Novem-
ber 2000, there is no evidence that the Union knew of the pro-
posed changes until notified on February 13, which was within
the 10(b) period.
Nor, as asserted by the Respondent, was the Union notified
about the proposed rule change during the 2000 negotiations.
Indeed, the Respondent has repeatedly taken the position that it
would not negotiate changes in the rules of conduct (though it
in fact did with regard to the drugs and alcohol policy). I there-
fore reject the 10(b) defense.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I conclude that it should be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act, including offering
reinstatement to Truby Werito to his former job, or if that job
no longer exists, to a substantially equivalent position of em-
ployment and make him whole for any loss of earnings and
other benefits in accordance with the provisions, F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
Although Section 10(c) proscribes any order by the Board
which would require reinstatement or backpay where an indi-
vidual is in fact discharged for cause, whether there was such
cause here is open to question. Werito had a poor atten-
dance/tardiness record, nevertheless his discharge was based on
application of the new rules. I cannot conclude that the Re-
spondent established that he would have been discharged ab-
sent the new rules. Accordingly, I conclude that a reinstate-
ment and backpay order is permissible.
[Recommended Order omitted from publication.]