Columbia Portland Cement Co.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 410 (N.L.R.B. 1989)

410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Columbia Portland Cement Company and Donald E.
Fisher and United Cement, Lime, Gypsum and
Allied Workers ' International Union, Local No.
24, AFL-CIO affiliated with Cement, Lime,
Gypsum and Allied Workers Division , Interna-
tional Brotherhood of Boilermakers, Iron Ship-
builders , Blacksmiths , Forgers & Helpers,
AFL-CIO and Paul H . Slack and Marvin L.
Baker Jr. and Robert L. Barrett and Robert
Wartenbe. Cases 8-CA-18063-3, 8-CA-18117,
8-CA-18343-1, 8-CA-18207-1, 8-CA-18220-
1, 8-CA-18221, and 8-CA-18283
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 24, 1988, Administrative Law
Judge Peter E. Donnelly issued the attached deci-
sion . The General Counsel and Respondent filed
exceptions and supporting briefs.
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 briefs and has
decided to affirm the judge 's rulings , findings, I and
conclusions and to adopt the recommended Order
as modified.
In agreeing with the judge that the Respondent
violated Section 8(a)(5) of the Act by insisting that
grievances filed during the hiatus between contract
expiration and the Respondent's implementation of
its proposal be processed in accordance with the
' The General Counsel and the Respondent have excepted to some of
the judge 's credibility findings The Board 's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance 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
The General Counsel has excepted to the judge 's finding that the stoke
misconduct of Bradford Jordan was sufficiently serious to warrant his
discharge , contending , inter alma, that the Respondent extended an offer
of reinstatement to Jordan after two of the incidents of misconduct had
occurred We note that subsequent to the offer of reinstatement a third
coercive incident took place, which furnished a sufficient basis for Jor-
dan's discharge even if the earlier misconduct had been condoned by the
Respondent.
Member Cracraft relies on all three incidents of strike misconduct in
affirming the judge 's finding that the Respondent terminated Jordan
Thus, even if the Respondent was willing to reinstate Jordan after he had
engaged in two incidents of misconduct during the strike, there is no evi-
dence that suggests the Respondent condoned these acts of misconduct
Furthermore, when Jordan once more became involved in a strike-related
altercation , the Respondent was justified in considering the previous inci-
dents in making its decision to terminate Jordan.
We correct the following errors in the judge's decision in sec
III,A ,7,a,2, he referred to Michael Cnst as "Michael Christ", and in sec
III,A ,9, he stated that the strike had been called for 4 p . m rather than 4
a in and cited the date Larry Ousky arrived at the plant and production
was resumed as March 8 rather than May 8
grievance procedure contained in the implemented
proposal, we note that our decision in Indiana &
Michigan Electric Co., 284 NLRB 53 (1987), does
not prohibit all unilateral changes to the grievance
procedure of an expired collective -bargaining
agreement . Thus, the Board stated in Indiana &
Michigan Electric:
[I]n holding , as we do, that neither party can
unilaterally abandon their grievance proce-
dures . . . [w]e merely insist that changes in
that dispute resolution system be made only
after the parties concerned have agreed to
them or otherwise adequately bargained over
the matter . [Emphasis in original , id. at 55.]
It is clear that when a valid impasse has been
reached, the parties have "adequately bargained
over the matter ." Taft Broadcasting Co., 163 NLRB
475 (1967). Therefore , consistent with the Board's
holding in Indiana & Michigan Electric , an employ-
er may unilaterally change the grievance procedure
of an expired contract through the lawful imple-
mentation of a proposal after reaching a valid im-
passe .2 The grievance procedure of the expired
contract , however, remains in effect until a new
employer proposal is lawfully implemented. Ac-
cordingly , grievances filed before the date of im-
plementation , such as those involved here, in effect
invoke the procedure in the expired agreement and
are filed with the expectation that they will be
processed under that procedure . Although this ex-
pectation may be annulled by mutual agreement,
when a grievance is filed prior to the unilateral im-
plementation of a new grievance procedure the
reasonable expectations of the parties and the goal
of orderly and clear resolution of industrial dis-
putes are best met by requiring the application of
the procedure in effect when the grievance is filed.
Therefore , we agree with the judge 's conclusion
that the Respondent's insistence on the application
of the new grievance procedure to previously filed
grievances violated the Act.3
2 The Respondent 's bargaining to impasse over a new grievance proce-
dure would not, however , privilege its interference in the Union 's selec-
tion of its grievance representatives . Mrssoun Portland Cement Co., 284
NLRB 432 fn 13 (1987) With respect to the Respondent 's refusal to
meet with a retiree acting as an employee grievance representative, there
is no showing through the contract language in light of the collective-
bargaining history that the Union clearly and unmistakably waived the
employees ' right to select their grievance representatives
8 We note that , as found by the judge , under Indiana & Michigan Elec-
tric the parties would not be required to process these grievances to arbi-
tration In accordance with his concurring and dissenting opinion in Indi-
ana & Michigan Electric, Member Johansen would find that the Respond-
ent is further obligated to arbitrate these grievances because they in-
volved specific provisions of the expired contract and therefore "arse
under" the expired contract within the meaning of Nolde Bras v Bakery
Workers Local 358, 430 U S 243 (1977).
Continued
294 NLRB No. 29
COLUMBIA PORTLAND CEMENT CO 411
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Columbia Portland Cement Company,
Zanesville, Ohio, its officers, agents, successors,
and assigns , shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(d).
"(d) Refusing to bargain collectively within the
meaning of the Act with United Cement, Lime,
Gypsum, and Allied Workers' International Union,
Local No. 24, AFL-CIO affiliated with Cement,
Lime, Gypsum and Allied Workers Division, Inter-
national Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers & Helpers, AFL-
CIO, as the exclusive bargaining representative of
its employees in the appropriate unit by: refusing to
process and arbritrate grievances filed prior to Sep-
tember 5, 1984, under the terms of the expired con-
tract; refusing to process grievances filed between
September 5, and October 28, 1984, under the
terms of the expired contract; insisting that griev-
ances filed between September 5, and October 28,
1984, be processed under the grievance procedures
of the implemented contract proposal of October
28, 1984."
2. Substitute the following for paragraph 2(e).
"(e) Process, on request, through the grievance
and arbitration procedures of the expired 1981-
1984 contract those grievances arising prior to the
expiration of the 1981-1984 contract and filed in
accordance with the grievance procedure con-
tained in that contract."
3. Substitute the attached notice for that of the
administrative law judge.
As there are no exceptions to the judge's finding that the layoff griev-
ances did not apse under the expired collective-bargaining agreement and
were therefore not subject to a duty to arbitrate, Member Cracraft finds
it unnecessary to pass on whether she would find the layoff grievances to
be arbitrable
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.
WE WILL NOT conduct investigatory interviews
of employees after having denied their requests for
union representation.
WE WILL NOT threaten employees with suspen-
sion for refusing to participate in investigatory
interviews after having denied their requests for
union representation.
WE WILL NOT suspend, discharge, or otherwise
discriminate against any employee for refusing to
participate in investigatory interviews after having
denied their request for union representation.
WE WILL NOT refuse to bargain in good faith
with United Cement, Lime, Gypsum and Allied
Workers' International Union, Local No. 24, AFL-
CIO affiliated with Cement, Lime, Gypsum and
Allied Workers Division, International Brother-
hood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers & Helpers, AFL-CIO, as the ex-
clusive bargaining representative of our employees
in the appropriate unit by: refusing to process and
arbitrate grievances filed prior to September 5,
1984, under the terms of the expired contract; re-
fusing to process grievances filed between Septem-
ber 5, and October 28, 1984, under the terms of the
expired contract; insisting that grievances filed be-
tween September 5, and October 28, 1984, be proc-
essed under the grievance procedures of the imple-
mented contract proposal of October 28, 1984.
WE WILL NOT refuse to bargain in good faith
with United Cement, Lime, Gypsum and Allied
Workers' International Union, Local No. 24, AFL-
CIO affiliated with Cement, Lime, Gypsum and
Allied Workers Division, International Brother-
hood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers & Helpers, AFL-CIO, as the ex-
clusive bargaining representative of our employees
in the appropriate unit by: establishing a policy that
only active employees can participate in the filing
and processing of grievances; refusing to allow re-
tired Union Grievance Committeeman Boyd
Folden to participate in the filing and processing of
grievance.
WE WILL NOT discharge, suspend, or fail to rein-
state any employee for participating in a strike or
engaging in any other union or concerted activity
protected by Section 7 of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the rights under Section 7 of the Act.
WE WILL make whole employees Robert Barrett,
Robert Wartenbe, Russell Barrett, James Dalrym-
ple, Terry Frame, Jimmy Hughes, Mark Jellison,
Keith Luzadder, Homer Searls, Gene Swingle,
George Williams, Michael Corbett, Paul Fisher,
Larry Jarvis, Larry Tyo, Joseph Stoneburner, and
Michael Fisher to the extent that this has not been
accomplished, for any loss of pay they may have
suffered by reason of the discrimination against
them found here, plus interest.
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Russell Barrett, James Dal-
rymple, Jimmy Hughes, Mark Jellison, Homer
Searls, Gene Swingle, George Williams, Michael
Corbett, Paul Fisher, Larry Jarvis, Larry Tyo, Joe
Stoneburner, and Michael Fisher immediate and
full reinstatement to their former positions or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or other rights and privileges.
WE WILL, on application for reinstatement on
behalf of employees who participated in the unfair
labor practice strike that began on June 18, 1985,
who have not already been reinstated, offer full
and immediate reinstatement to all such employees
or, if those positions no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing
if necessary any persons hired as replacements after
June 18, 1985.
WE WILL remove from our files any references
to suspensions or discharges of the above-named
employees, and notify them in writing that this has
been done and that evidence of these unlawful sus-
pensions and discharges will not be used as a basis
for future personnel action against them.
WE WILL process, on request, through the griev-
ance and arbitration procedures of the expired
1981-1984 contract, those grievances arising prior
to the expiration of the 1981-1984 contract and
filed in accordance with the grievance procedure
contained in that contract.
WE WILL process, on request, through the griev-
ance procedure of the expired 1981-1984 contract,
those grievances arising during the hiatus between
the expiration of the 1981-1984 contract (Septem-
ber 5, 1984) and the implementation of our contract
proposal (October 28, 1984).
WE WILL recognize and bargain with Boyd
Folden as a representative of the Union in filing
and processing grievances.
WE WILL rescind any rule or policy stating that
only active employees will be recognized as union
represenatives in the processing of grievances.
COLUMBIA PORTLAND CEMENT COMPANY
Steven Wilson, Esq., for the General Counsel.
John C. Ross, Esq., of Canton, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
PETER E . DONNELLY, Administrative Law Judge. The
charge in Case 8-CA-18207- 1 was filed by Paul H.
Slack, an individual , on 18 April 1985 . The charge in
Case 8-CA- 18220-1 was filed by Marvin L . Baker Jr.,
an individual , on 26 April 1985. The charge in Case 8-
CA-18221 was filed by Robert L. Barrett , an individual,
on 26 April 1985 . The charge in Case 8-CA-18283 was
filed by Robert Wartenbe , an individual , on 17 May
1985. A consolidated complaint and notice of hearing
issued on 31 May 1985 on the above -captioned charges
against Columbia Portland Cement Company (Respond-
ent or Employer). The charge in Case 8-CA- 18063-3
was filed by Donald E . Fisher , an individual, on 7
March 1985 . The charge in Case 8-CA- 18117 was filed
by United Cement , Lime, Gypsum and Allied Workers'
International Union , Local No. 24, AFL-CIO affiliated
with Cement , Lime, Gypsum and Allied Workers Divi-
sion , International Brotherhood of Boilermakers, Iron
Shipbuilders , Blacksmiths , Forgers & Helpers, AFL-CIO
(the Union or the Charging Party) on 8 March 1985. An
amended order consolidating cases, amended consolidat-
ed complaint , and notice of consolidated heanng on the
above cases issued against Respondent on 21 June 1985.
The charge in Case 8-CA- 18343-1 was filed by the
Union on 19 June 1985 . An amended order consolidating
cases, second amended consolidated complaint and
notice of consolidated hearing issued on 20 November
1986 on all of the above-captioned cases consolidating
them for hearing . A hearing was held before the adminis-
trative law judge in Cambridge, Ohio, and Zanesville,
Ohio, on 23 , 24, 25 , and 26 February; and 23 and 24
March 1987 , respectively . Briefs have been timely filed
by the General Counsel and Respondent which have
been duly considered.'
FINDINGS OF FACT2
I. EMPLOYER'S BUSINESS
Employer is a Delaware corporation with an office
and place of business in Zanesville, Ohio, where it is en-
gaged in the operation of a cementmaking plant. Annual-
ly, Employer in the course and conduct of its business
operations purchases and receives at its Zanesville, Ohio
facility products, goods, and materials valued in excess of
$50,000 directly from outside the State of Ohio. The
complaint alleges, the answer admits, and I find that the
Employer is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
i On request of the General Counsel, since no evidence was adduced
thereon at the heanng, the allegation that Respondent unlawfully denied
plant access to Union Representative Kenny Pack is hereby dismissed In
addition, while par 12 of the complaint alleges unlawful interrogation of
Russell Barrett on 18 June, the record is wholly insufficient to support
this allegation and it is dismissed
2 There is conflicting testimony regarding some allegations of the com-
plaint In resolving these conflicts, I have taken into consideration the ap-
parent interests of the witnesses In addition, I have considered the inher-
ent probabilities, the probabilities in light of other events, corroboration
or lack of it, and consistencies or inconsistencies within the testimony of
each witness and between the testimony of each and that of other wit-
nesses with similar apparent interests In evaluating the testimony of wit-
nesses , I rely specifically on their demeanor and have made my findings
accordingly While apart from considerations of demeanor, I have taken
into account the above-noted credibility considerations, my failure to
detail each of these is not to be deemed a failure on my part to have fully
considered it Walker's, 159 NLRB 1159, 1161 (1966)
COLUMBIA PORTLAND CEMENT CO 413
H. LABOR ORGANIZATION
The complaint alleges, the Respondent at the hearing
stipulated, and accordingly I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
Respondent operates a quarry and concrete production
facility in the Zanesville, Ohio area. For many years and
pursuant to several contracts, employees of both the
mining and production operations have been represented
by the Union. The most recent contract was a 3-year
contract with an expiration date of 1 May 1984. By writ-
ten agreement of the parties, the expiration date was ex-
tended to 20 August 1984 with provision that either
party could thereafter terminate the agreement on 168
hours (7 days) notice given by either party On 28
August, Respondent was sold by its owner, Ashland
Technology, Inc., to Frank V. Carlow and Michael P.
Carlow, and by letter dated 29 August 1984, Michael P.
Carlow gave the requisite notice of termination to be ef-
fective midnight, 5 September 1984. The letter read:
This letter is to provide notice that effective mid-
night September 5, 1984 the 1981-1984 Collective
Bargaining Agreement, as extended between the
Columbia Portland Cement Company and the
United Cement, Lime, Gypsum, AFL-CIO, Local
24, will expire.
As the new owners of the Columbia Portland
Cement Company, we are not bound by the collec-
tive bargaining proposal setforth [sic] by the previ-
ous owners. We therefore request to meet with you
on September 4, 1984 at 10.00 A.M., at a site to be
determined, to discuss our proposals as to terms and
conditions of employment for employees at the
cement plant located in East Fultonham, Ohio.
Subsequently, the 'parties met and negotiated but did
not reach any agreements. On 28 October 1984, a valid
impasse was reached in negotiations and the Respondent
put into effect its last contract proposal. On 8 May
1985,3 the employees went on strike. Pursuant to an un-
conditional offer to return to work, most of the employ-
ees were offered reinstatement and returned to work on
12 June. However, Respondent refused to reinstate and
terminated some 19 employees for various acts of mis-
conduct which are treated herein. On 18 June, the em-
ployees again struck the Respondent and that strike con-
tinues to date.
S All dates refer to 1985 unless otherwise indicated
2. Allegations involving employees' right to union
representation during investigatory interviews4
a. Donald Fisher
On the morning of 26 February, Donald Fisher and
Michael Fisher5 worked together on a job. Later on the
same day, both were summoned to a meeting in the
office of Jerry Henkel, maintenance supervisor. Respond-
ent was represented by Henkel; Bill Thomas, mainte-
nance supervisor; and Carl Hardin, shift foreman. Ac-
cording to Donald Fisher, Henkel told them that both
had been observed loafing on the job that morning. Both
responded that if this was going to be about discipline
they wanted to have a union representative during the
interview. Henkel told them that they did not need union
representation, that they were there to discuss it. There-
after, Donald Fisher gave his account of the events con-
cerning the job he and Michael had worked on that
morning. Apparently not persuaded, Henkel advised him
that a letter was going to be placed in his file for deliber-
ate loafing, whereupon both he and Michael Fisher left
the meeting. On the following day, Hardin delivered to
Donald Fisher a letter of reprimand. Donald Fisher's
version is substantially corroborated by Michael Fisher.
None of the company representatives in attendance testi-
fied concerning this incident, and I conclude that the un-
rebutted testimony of Donald Fisher and Michael Fisher
is credible.
It is clear as a matter of Board and court precedent
that employees are entitled to union representation at
interviews where the employee entertains a reasonable
belief that the interview may result in disciplinary action
against him. NLRB v. J. Weingarten, 420 U.S. 251 (1975).
Respondent correctly observes that Weingarten does not
apply to circumstances where the decision to impose dis-
cipline has previously been reached and the meeting with
the employees is simply to announce or to advise the em-
ployee of that decision. Baton Rouge Water Works Co.,
246 NLRB 995 (1979). However, Respondent errs in at-
tempting to apply Baton Rouge to the facts of this case.
In the instant case, as soon as Fisher became aware that
the interview would deal with his "loafing" on the job,
he requested union representation. He was denied union
representation and the interview continued with Fisher
giving his account of the incident He was issued a letter
of reprimand the following day. It does not appear that
any final or binding decision to discipline had been made
prior to the interview and after Fisher requested union
representation, it was unlawful for Respondent to contin-
ue the interview. Nor am I persuaded that the presence
of Michael Fisher satisfied the Weingarten requirement
for union representation. Michael Fisher was union vice
president and Donald Fisher was union president. How-
ever, Michael Fisher was not at the interview in his ca-
pacity as a union representative. He was there, along
4 I note that Respondent offered no witnesses to refute the accounts
offered by the General Counsel's witnesses as to any of these allegations
and I accept as credible the versions of these accounts offered by the
General Counsel' s witnesses
5 At this time Donald Fisher and Michael Fisher were president and
vice president, respectively, of the Union, as well as employees
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with Donald Fisher, as an employee charged with mis-
conduct. Because he also happened to be the union vice
president does not satisfy the Weingarten requirement for
representation. Only a union representative appearing in
that capacity and with that status will suffice. In summa-
ry, I conclude that by denying Donald Fisher union rep-
resentation and continuing the interview, Respondent has
violated Section 8(a)(1) of the Act.
b. Marvin Baker Jr.
On 18 March 1985, Hardin approached Marvin Baker,
a maintenance mechanic, and Donald Fisher, telling
them that Henkel wanted to see them in his office and
told them it concerned their presence in the raw mill
control office as an "illegal visitation." Later in the day
while Hardin and Baker were walking to Henkel's office,
Baker asked Hardin for union representation at the meet-
ing and was told that it would not be needed. Once in
Henkel's office, Henkel explained what he wanted to dis-
cuss and Baker again requested union representation.
Henkel also responded that it would not be needed and it
was not a disciplinary meeting. Thereafter, Henkel read
Baker the work rules pertaining to illegal visitation and
work stoppages. Baker explained that the purpose of his
visit to the raw mill control office was to pick up some
gloves that he had left to dry in an oven there on the
previous Friday. Henkel told him that he and Hardin
would review the circumstances and let him know later
if there would be disciplinary action. However, no disci-
plinary action was taken. Baker's testimony once again is
unrebutted since Respondent called no witnesses to testi-
fy concerning this incident.
As noted above, Weingarten applies only to those
interviews wherein the employee has a reasonable belief
that disciplinary action could result Respondent con-
tends that Baker had no such reasonable belief. I do not
agree. On inquiry, Baker was advised that the interview
concerned a violation of plant rules, notably an "illegal
visitation," whereupon Baker requested union representa-
tion. The interview continued and Baker was told that a
disciplinary decision would be made later although no
discipline was ever imposed In my opinion, it is clear,
even assuming that Henkel said that the meeting was not
disciplinary, that Baker had a reasonable belief that disci-
plinary action could result from the interview and Re-
spondent's denial of union representation and continuing
the interview violated Section 8(a)(1) of the Act.
c. Paul Slack, Robert Barrett, and Robert Wartenbe
Slack:-In the spring of 1985, Respondent experienced
an outbreak of vandalism. In an effort to determine who
was responsible for it, Respondent hired investigators to
interview certain employees. On 12 April, Stack was
called to the office of Plant Engineer John Gilliland,
where he was asked to meet with one of the investiga-
tors. Slack asked for a union representative to be present
at the interview and was told by Raymond Houk, pro-
duction superintendent, that he could not have a union
representative present; that he was only entitled to a
union representative during a grievance procedure. Gilli-
land then told Slack that his instructions were that if
Slack refused to be interviewed he would be suspended.
Houk left and returned some 40 minutes later with Frank
DeNardo, investigator. Slack reiterated to DeNardo that
he did not want an interview without union representa-
tion present. DeNardo told Slack that he would not
force him to take the interview and that he might as well
go back to work, and Slack returned to work.
On 18 April, Slack was once again called into Gilli-
land's office, this time by Charles Kuhn, operations man-
ager. DeNardo and another investigator were there.
Slack was again asked to have an interview with the in-
vestigator. Slack asked for union representation at the
interview which was denied by Kuhn. One of the inves-
tigators told Slack that he would be on immediate indefi-
nite suspension if he refused the interview. Slack asked
for time to speak to his attorney. Kuhn responded, "If
you're guilty, maybe the best thing for you to do is talk
to your lawyer." At this point Slack turned away from
Kuhn with whom he had personal differences and told
DeNardo that he would agree to a one-on-one interview
with him Slack explained that he decided to do this
partly because of the threat of suspension and also be-
cause of a personality conflict between himself and Kuhn
which caused him to want to get it over with and speak
to the investigator. Kuhn and the other investigator left.
DeNardo explained that he was investigating sabotage,
including conveyor belt cuttings. Slack denied any re-
sponsibility or that he knew anyone was responsible and
the interview ended.
Respondent contends that Slack waived his Weingarten
rights by voluntarily submitting to the interview. I do
not agree. There can be no doubt that Slack had a rea-
sonable belief that disciplinary action could result from
the interview since he had been warned twice on 12 and
18 April, that this failure to submit to the investigative
interview would result in his suspension. A careful
review of the testimony persuades me that while Slack
did agree to the interview, his agreement was obtained
under duress of his threatened suspension and certainly
did not constitute an unequivocal waiver of his Weingar-
ten right, despite his desire to "get it over with." In these
circumstances, I conclude that Respondent violated the
Act by denying Slack the requested union representation
and threatening him with suspension for refusing to par-
ticipate in the interview and by conducting the interview
after rejecting Slack's request.
Barrett:-On 19 April, Barrett, a heavy equipment op-
erator, was called to Gilliland's office where he was met
by two investigators who asked him if he knew why he
was there. Barrett responded that he had heard rumors
they were investigating "a belt cutting and painting and
stuff on the walls." One investigator left and the other,
whom Barrett could not identify, asked a few prelimi-
nary questions at which point Barrett requested the pres-
ence of a union representative. The investigator told him
that the Union was not involved and called in the other
investigator who left and returned in about 5 minutes
with Barrett's supervisor, Allen Rutledge, and Kuhn
who asked what the problem was. Barrett responded that
he wanted a union representative present during the
questioning. Kuhn told him that the Union was not in-
COLUMBIA PORTLAND CEMENT CO
volved and that he had no right to have a union repre-
sentative present . At this point Kuhn told Barrett that he
was suspended immediately . Barrett asked for it in writ-
ing and Kuhn told him that he would receive it. Barrett
was allowed to return to work on 24 April . By letter
dated 26 April , Barrett was advised , in a letter from
Kuhn:
This letter is to officially inform you of the rea-
sons for your two and one half day suspension,
April 19 , (noon) through April 21, 1985.
Recent destructive acts of belt cutting done on
plant property prompted management to hire an in-
vestigator to handle the matter . The destruction re-
sults in big dollar losses due to loss of production
time. Your refusal to talk with the investigator di-
rectly resulted in your suspension In the future we
hope that your cooperation will be voluntary when
destructive acts are being investigated.
Future refusal to cooperate under the above
stated circumstances will result in a stricter discipli-
nary action up to and including dismissal. This
letter is meant to be constructive and not punitive
in nature.
Respondent does not seriously contend that Barrett's
Weingarten rights were not violated , describing it as a
"harmless foul" and noting that Respondent reinstated
Barrett and offered him backpay for what Respondent
conceded in brief was an "erroneous " suspension, as re-
flected in his letter of suspension . Nonetheless , Respond-
ent's denial of representation and suspension violated the
Act and must be remedied.
Wartenbe • 6-On 18 April , Wartenbe , a finish mill oper-
ator , was called to Gilliland 's office where he met an in-
vestigator The investigator said he would like to ask
some questions about things going on at the plant. War-
tenbe was aware that other employees had been ques-
tioned about sabotage at the plant and he told the inves-
tigator that he wanted a union representative present
during the questioning . The investigator said he could
not and Wartenbe told him the meeting was over and
started to leave. The investigator warned him there
could be repercussions and Wartenbe testified that he
said , "Don't tell me that shit and if he could do it, do it"
and left . About 45 minutes thereafter , Wartenbe was "in-
definitely laid off' by Production Supervisor Raymond
Houk . By letter dated 26 April from Kuhn , Wartenbe
was advised:
This letter is to officially inform you of the rea-
sons for your indefinite suspension which was
issued and began on April 18, 1985.
Recent destructive acts of belt cutting done on
plant property prompted management to hire an in-
vestigator to handle the matter . The destruction re-
sults in big dollar losses due to loss of production
time. Your refusal to talk with the investigator di-
rectly resulted in your suspension . In the future we
6 By agreement of the parties , two affidavits submitted by Wartenbe
were received into evidence in lieu of Wartenbe 's testimony
415
hope that your cooperation will be voluntary when
destructive acts are being investigated.
Mr. Raymond Houk has tried to reach you on
several occasions , the last of which was April 24,
1985 to discuss the disciplinary action . Please call
Mr Houk to schedule a meeting for this purpose on
Monday, April 29, 1985.
Future refusal to cooperate under the above
stated circumstances will result in a stricter discipli-
nary action up to and including dismissal. This
letter is meant to be constructive and not punitive
in nature.
On 26 April , Wartenbe telephoned Gilliland who told
him that he was to report at 8 a . m. on 30 April to be
interviewed by Kuhn and after that to begin work. War-
tenbe told Gilliland that he would not talk to anyone
without union representation and Gilliland told him that
if you refuse to talk to Kuhn without union representa-
tion he would be regarded as having quit his job
On 30 April , Wartenbe reported to Kuhn 's office at 8
a.m. After some discussion about job duties, Kuhn raised
the subject of belt cutting, making the observation that a
lot of belts had been cut in the middle lately . Wartenbe
asked for union representation . Kuhn refused the request
and told Wartenbe that he was obligated to answer his
questions . Kuhn told Wartenbe that he could be forced
to answer the questions . Wartenbe responded with some
profanity , saying that Kuhn was "full of shit ." Wartenbe
left the office . Kuhn followed him, saying that he was
discharged and that "nobody swears at me." By letter
dated 1 May 1985, Kuhn advised Wartenbe:
This letter is to officially inform you that you are
on indefinite suspension as of April 30, 1985.
Your refusal to talk with me about the belt cut-
ting problems at the plant and the use of abusive
language are the reasons you are on indefinite sus-
pension . Since this is the second time you have re-
fused to cooperate in this investigation , a review of
your work record will be made and appropriate
action will be taken.
You will be notified within five days of your
future relationship with Columbia Portland Cement
Company.
Subsequently Wartenbe was terminated by letter from
Kuhn reading:'
This letter is to officially inform you of your ter-
mination of employment with Columbia Portland
Cement Company , Inc. effective May 5, 1985.
This action was taken after reviewing your past
work record with Columbia Portland. Your refusal
to cooperate with the Company investigation into
destructive acts which had occurred as well as your
unsatisfactory performance in past work and absen-
tee records were contributing factors.
7 The parties stipulated that the letter bears a date of 26 April, which
was a typographical error and that the letter was actually sent to War-
tenbe on 6 May
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By letter dated 8 July, Respondent advised that War- 3. Refusal to process grievances
tenbe that,
On May 6, 1985, the undersigned advised you
that you were being terminated from employment
with Columbia Portland Cement Company due to
your past unsatisfactory work record with Colum-
bia Portland Cement Company.
On May 18, 1985, Columbia Portland Cement
Company received a notice from the NLRB that
you had filed a unfair labor practice charge with
Region 8 of the NLRB alleging that you were fired
for refusing to participate in an interview without a
union representative present.
The purpose of this letter is to advise you that if
the NLRB rules in your favor in Case #8-CA-
18283 and orders your reinstatement with Columbia
Portland Cement Company, that the Company will
refuse to reinstate you due to your assault of em-
ployee Jim Jackson on July 3, 1985 and that the as-
sault is grounds for your termination from employ-
ment with Columbia Portland Cement Company.
Jackson did not testify and the only evidence to support
the allegation is an unsigned "General Case Report"
form containing an account of the incident, presumably
related by Jackson to a Lieutenant C. T. Kelly. It is not
signed or confirmed by Jackson, and neither Jackson nor
Kelly nor anyone else testified concerning this incident.
It does not appear that Wartenbe was ever charged in
this matter.
It is clear from the undisputed facts and Respondent's
own correspondence, noted above, that Wartenbe was
discharged for refusing to participate in the interview.
As noted above, an employee has a right to union repre-
sentation during an employer interview which the em-
ployee reasonably believes may result in disciplinary
action. This violation is clear. However, Respondent
takes the position that even if the original discharge was
unlawful under Weingarten, the subsequent discharge on
8 July was lawful since Respondent had an honest belief
that the assault did in fact occur and it was not shown
by the General Counsel not to have occurred. I do not
agree. Jackson did not testify and the police report is
simply hearsay description of the incident, not affirmed
by Jackson. Nor does the report even describe any "as-
sault" on Jackson, only the striking of his car. The
report describes the complaint only as an "attempted as-
sault ." Moreover, the record does not even disclose
whether or not Kuhn was in possession of or even aware
of the police report at the time that he discharged War-
tenbe on 8 July.
However, since it appears that Wartenbe was convict-
ed of murder in the death of a truckdriver in a strike-
related incident occurring on 2 August, I conclude, in
agreement with the General Counsel, that he is disquali-
fied from reinstatement and that any backpay liability is
tolled as of that date.
a. Precontract expiration grievances
As noted above, Respondent and the Union were par-
ties to a contract and an extension thereto terminated by
Respondent effective midnight on 5 September 1984. The
business had been sold on 28 August 1984. The sale was
a stock purchase only with no change in the operation.
At the time of the sale there were pending numerous
grievances filed in 1984, and some dated back to 1983
and 1982. After the purchase, negotiations were conduct-
ed between Respondent and the Union with a view
toward reaching agreement on a new contract. During
bargaining sessions on 4 and 5 September, the Union re-
quested that all grievances pending at the time of the sale
be processed. The Respondent, while not denying any of
its responsibility to process the grievances, deflected the
request by saying that they should pursue the negotia-
tions. Essentially, Respondent did not respond to the re-
quest The Union made the same request at other bar-
gaining sessions in September and October and Respond-
ent continued to put them off. It is undisputed that in
December 1984 or January 1985 the Respondent decided
that it was not obligated to process any of the prepur-
chase grievances, taking the position that they were "too
old" and that "there wasn't a good-faith effort to go
forth with them."
It is clear, and Respondent concedes, that a successor
employer in a simple stock purchase situation, with no
substantial change in the Company's operation, has an
obligation to reorganize contractual commitments and
process grievances pending at the time of the sale under
the terms of the predecessor's contract Armitage Lamp,
260 NLRB 951 fn. 1 (1982).
So clearly there exists an obligation, as noted above,
on the part of the Respondent to process all of the griev-
ances filed prior to the expiration of the extended con-
tract which expired at midnight on 5 September.
Nonetheless, Respondent contends that the age of the
grievances and lack of diligence by the Union in pursu-
ing the grievances with the prior owners somehow privi-
leges Respondent to reject these grievances under theo-
ries of waiver, estoppel, or latches. The facts do not sup-
port this position. The record is inconclusive as to why
the grievances had not been more expeditiously proc-
essed prior to the change in ownership. However, it is
clear that demands for their processing were made as
soon as the sale was made and demands thereafter were
clear and frequent and categorically rejected, first by
evasion and later by a fully articulated refusal. Despite
the age of the grievances and prior delays in processing,
Respondent was nonetheless obliged to honor and proc-
ess them.
Respondent also argues that it was privileged to reject
the pending prepurchase grievances under the terms of
article XIX, section III, of the prior contract which
states in pertinent part, "All grievances which have not
been settled under the 1981 Agreement expiring April
30, 1984, must be presented for settlement within fifteen
(15) days after expiration of the Agreement." This argu-
ment must fail. First it is clear that the pending griev-
COLUMBIA PORTLAND CEMENT CO. 417
ances were "presented for settlement" by request of the
Union as early as 4 September, within a few days after
the purchase and while the extended contract was still in
effect. Thus it is clear that even under Respondent's in-
terpretation, the grievances were "presented for settle-
ment" within 15 days after the expiration of the extended
contract at midnight on 5 September 1984.
Second, under any reasonable interpretation, the above
contract language must be read to provide that griev-
ances arising under the old contract had to be filed
within 15 days after the expiration of that contract. To
hold otherwise would mean that all pending grievances
in whatever stage of processing, but not "settled" would
have to be submitted anew within 15 days after the con-
tract's expiration.8 The parties could not have intended
such a result.
Accordingly, I conclude that by refusing to process
grievances pending when the contract expired, Respond-
ent is refusing to bargain with the Union in violation of
Section 8(a)(5) of the Act.
b. Postcontract/preimplementation grievances
Certain grievances were filed by the Union during the
period between the expiration of the contract on 5 Sep-
tember 1984 and the time when a valid impasse in bar-
gaining was reached and Respondent lawfully, but with-
out union approval, implemented its proposed contract
on 28 October 1984. These grievances related to layoffs
of individual employees allegedly in violation of article
VIII of the expired contract.9
Some meetings were held after the implementation in
late 1984 and early 1985 with a view towards processing
those grievances. However, Respondent insisted that
those postcontract/preimplementation hiatus grievances
be processed under the grievance and arbitration provi-
sions of the implemented contract. The Union did not
agree, taking the position that the grievance and arbitra-
tion procedures of the old contract should be utilized.
None of these grievances have been resolved.
The General Counsel contends that Respondent violat-
ed Section 8(a)(5) of the Act by refusing to process these
hiatus grievances under the grievance and arbitration
provisions of the expired contract and by insisting on
processing these grievances under the procedures of its
lawfully implemented proposal.
In Indiana & Michigan Electric Co., 284 NLRB 53
(1987), the Board, in an effort to clarify the impact of the
Supreme Court decision in Nolde Bros. v. Bakery Workers
Local 358, 430 U.S. 243 (1977), decided, inter alia, that
under Nolde an employer was under no contractual obli-
gation to arbitrate hiatus grievances unless the dispute
"concerns contract rights capable of accruing or vesting
8 Respondent's assertion that this matter should be heard under Sec
301(a) of the LMRA is not well taken Clearly, cases involving a succes-
sor employer's duty to process grievances arising under a predecessor's
contract fall within the provisions of Sec 8(a)(5) of the National Labor
Relations Act
e As alleged in par 16(A) of the complaint, and admitted, "Between
September 4, 1984, and October 22, 1984, the Union presented approxi-
mately thirty (30) grievances to Respondent, said grievances setting forth
alleged violations of Article VIII of the expired collective bargaining
agreement, described in Paragraph 13(B), which relates to layoff proce-
dures."
to some degree during the life of the contract and ripen-
ing or remaining enforceable after the contract expires. i o
On the facts of Indiana & Michigan, supra at 61, the
Board therein concluded:
We have examined the pertinent contract provisions
and conclude that the rights invoked in each griev-
ance do not "arise under" the expired contracts
within the meaning of Nolde. All of the nine griev-
ances were triggered by events or conduct that oc-
curred after the expiration of the contracts. None of
the rights invoked were worked for or accumulated
over time, and there is no other indication that the
parties contemplated that such rights could ripen or
remain enforceable even after the contracts expired.
On the facts of the instant case, it is clear that the
layoff grievances do not concern any contract rights "ca-
pable of accruing or vesting to some degree during the
life of the contract and ripening or remaining enforceable
after the contract expires." All the grievances were pre-
cipated by layoffs occurring after the contract expired
and did not involve rights capable of accruing or vesting
during the life of the contract so as to be enforceable
after its expiration.
There remains the issue, did Respondent violate Sec-
tion 8(a)(5) by insisting that the grievances be processed
under the grievance and arbitration provisions of the im-
plemented contract? I think that it did. Under Indiana &
Michigan, Respondent was obligated to discuss and
confer with the Union concerning the hiatus layoff griev-
ances since the Union was the legal collective- bargaining
representative of the Respondent's employees at that
time. It could not, however, insist that a procedure or
format be utilized which had been unilaterally, albeit le-
gally imposed, and to which the Union had never
agreed. Accordingly, I conclude that by insisting that
grievances be processed under the provisions of the im-
plemented proposal. Respondent has violated Section
8(a)(5) of the Act.
4. Respondent's establishment and enforcement of a
policy which interfered with employees in the
selection of their representatives
Boyd Folden was an employee of the Respondent until
he retired on 1 September 1984. At that time Folden was
also chairman of the Union's grievance committee. It is
undisputed that Folden presented grievances on behalf of
employees even after his retirement and even attended a
grievance meeting on 10 October 1984, all without ob-
jection from the Company. However, on 13 December,
on a visit to the plant for a grievance meeting, he was
advised by Roman that henceforth only active employees
would be permitted to process grievances. Donald
Fisher, who was also present for the grievance meeting,
protested that it was the Union's right to select its own
1s In Indiana & Michigan, the grievances concerned postcontract expi-
ration suspensions, overtime, asssignments, working conditions, compen-
sation, reporting date for transfer, route assignments, oral warning, and
the acquisition and use by a supervisor of an employee's telephone
number
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representative. Roman replied that while the Union
could select whomever it wanted, the Respondent would
recognize whomever it wanted and would recognize
only active employees in the processing of grievances.
Roman offered no explanation for this change.
Again, on 24 January, Folden was denied admission to
a grievance meeting for the reason that he was not an
active employee. Likewise, Folden was denied access to
the plant for a grievance meeting on 19 June, the day
following the second strike.
Respondent did raise in negotiations its desire to
"streamline" the grievance procedure because it felt that
the old grievance procedure was too cumbersome and
time-consuming. As Roman testified, "With the twenty-
or with the thirty-six people retired, to tie up a whole
afternoon with eight people plus a number of manage-
ment personnel was very cumbersome." However, nei-
ther the old nor the newly implemented contract con-
tains in the grievance procedures any provision restrict-
ing representation in grievance processing to active em-
ployees, and this matter was never discussed during ne-
gotiations.
Section 7 of the National Labor Relations Act gives to
employees the right, inter alia, "to bargain collectively
through representatives of their own choosing." This
right has been applied to the selection of employee rep-
resentation in the grievance process, as well as collec-
tive-bargaining procedures. In Native Textiles, 246 NLRB
228, 229 (1979), the Board concluded that an employer's
"refusal on and after March 22, 1978, to meet and bar-
gain with Florence Fontaine [a recently discharged em-
ployee,] as the Union's designated representative for
processing grievances was violative of Section 8(a)(5)
and (1) of the Act " There are no substantial distinctions
to be drawn which warrants a different result in the in-
stant case.
Respondent attempts to show that changes in the
grievance procedure found in the implemented contract
were desirable and necessary, but this begs the question.
The only issue is whether or not Respondent could deny
to a nonactive, i.e., retired, employee the right to repre-
sent employees in the grievance procedure. In my opin-
ion, they may not, and to do so clearly interferes with
the right guaranteed to employees to select their own
representatives to conduct such matters. See also Arizona
Portland Cement Co., 281 NLRB 304 (1986).
Respondent also appears to argue that Folden's pres-
ence would pose problems with Federal law regarding
nonemployees at its plant, citing some undefined provi-
sions of the Mine Safety and Health Act limiting nonem-
ployee access to production areas. Respondent does not,
however, set out what sections, if any, prohibit Folden's
presence. I am not satisfied, based on the evidence ad-
duced by Respondent at the hearing, that the Mine
Safety and Health Act would preclude Folden from vis-
iting parts of the plant suitable for grievance meetings.
Even if an escort to and from certain production areas
were necessary, it would not be excessively burdensome,
particularly since Respondent could conduct grievance
meetings in unrestricted areas such as the plant office
freely accessible to Folden with no safety considerations.
In short, I conclude that by establishing, maintaining,
and enforcing a policy which denied to employees the
right to select a representative of their own choosing to
represent them in the grievance process, Respondent has
violated Section 8(a)(5) and (1) of the Act.
5. Respondent's discontinuance of the issuance of
work gloves
For some years prior to the sale of Respondent on 28
August 1984, it had been the practice of Respondent to
furnish work gloves for its employees. This practice con-
tinued after the sale and became a part of the contract
proposal lawfully implemented by Respondent on 28 Oc-
tober. The pertinent provision of that contract reads:
ARTICLE XII
SAFETY GEAR
The Company will provide all employees with a
hardhat, goggles and gloves, respirator, ear plugs,
welder's helmets and tools for the performance of
any job. Company reserves the right to revoke the
issuance of gloves to the employees upon a determi-
nation by the Company of an abuse of the privilege
by an employee.
It is undisputed that in mid-February 1985, Respond-
ent discontinued this practice and that it did so without
notice to or consultation with the Union. Respondent
took this action because, after a study had been done, it
concluded that employees had been abusing the privi-
lege
As noted above, article XII reserves to the Company
the right to revoke the issuance of gloves to employees
"upon a determination by the Company of an abuse of
the privilege by an employee." A literal meaning of this
article suggests that Respondent could revoke issuance of
work gloves to all employees on a determination that a
single employee abused the privilege. Respondent's study
apparently disclosed more widespread abuse which
would, "a fortiori," allow Respondent to discontinue is-
suance of work gloves. Moreover, the lawfully imple-
mented contract describes the provision of work gloves
as a "privilege," implying a certain degree of discretion
in the matter In short, I conclude that Respondent was
justified, under the provisions of article XII to discontin-
ue issuing work gloves to employees.
6. The first strike
In February 1984, prior to the expiration of the con-
tract on 1 May 1984, a vote was taken among the mem-
bership of the Union authorizing a strike in the event
that negotiations for a new contract were not successful.
Thereafter, as noted above, a series of events occurred,
including a change in ownership and after negotiating to
impasse the implementation of Respondent's proposed
contract on October 28. In April 1985, two union meet-
ings were held at which the membership discussed taking
strike action against the Respondent because of certain
activity engaged in by Respondent which the Union re-
garded as unlawful. As Donald Fisher and Michael
COLUMBIA PORTLAND CEMENT CO.
Fisher testified, at these meetings , the Union protested
Respondent's denial of union representation to employees
being interviewed by management, the refusal to recog-
nize Folden as a union representative; the refusal by Re-
spondent to process grievances; and the Respondent's re-
fusal to furnish work gloves to employees. The member-
ship also complained about certain unsafe working condi-
tions. At the close of the last meeting, a strike vote was
taken among the membership resulting in a unanimous
vote to strike. On 8 May, the Union struck.
It is clear that when a strike is caused or prolonged by
the unfair labor practices of an employer, that strike is an
unfair labor practice strike. NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333 (1938). In my opinion that
precedent is directly applicable. I have concluded that
most of the complaints raised by the membership at the
meeting where the decision to strike was reached, con-
cerned conduct by the Respondent which, in my opin-
ion, constituted unfair labor practices. Accordingly, it is
clear that Respondent was engaged in unfair labor prac-
tices. What remains to determine is whether or not there
was any causal relationship between these unfair labor
practices and the strike. The circumstances of this case,
especially an examination of the prestrike union meet-
ings, disclose that it was the unlawful action of Respond-
ent which precipitated the strike. While it may be true
that other matters of concern to the membership, such as
safety or working conditions, were discussed and may
have contributed to the decision, it is apparent that the
compelling and predominant motivation for the strike
action was the unfair labor practices being committed by
Respondent. This is sufficient to make out an unfair labor
practice strike. Crown Cork de Puerto Rico, 273 NLRB
243 (1984)."i
7. Discharges of strikers
After the strike began on 8 May, the Union made an
unconditional offer on behalf of the strikers to return to
work on 31 May. Most of the striking employees were
returned to work on 12 June, however, some 19 strikers
were discharged in early June for misconduct and were
not returned to work. Generally, the misconduct fell into
three categories: first, discharges for misconduct at or
away from the picket line; second, discharges for de-
struction of equipment at the time of the strike; and
third, discharges for failure to take reasonable precau-
tions at the time of the walkout to protect Respondent's
facility and equipment from damage.
8. Discharges for misconduct at or away from the
picket line
Bradford Jordan.-Jerry Henkel, maintenance superin-
tendent at the plant, testified that he left work for home
at about 7 p.m. on 4 June driving his motorcycle. On his
i i Respondent argues that the strike was unprotected since when the
strikers struck, they failed to take reasonable precautions against damage
to equipment which could and did occur This is beside the point The
matter being addressed at this point is whether or not Respondent's
unfair labor practices caused the strike These are separate and distinct
issues If, as Respondent contends, the manner in which it is accom-
plished renders the strike unprotected, this involves the question of strik-
ers' right to reinstatement, rather than the cause or nature of the strike
419
way, some 10 miles from the plant, a car driven by
Jordan pulled up beside his motorcycle and, while trav-
eling at about 55 miles per hour, began to ease into
Henkel, forcing him closer to the median strip. Henkel
testified that the car was so close he could touch it.
After about one-half mile, and in order to escape, Henkel
"cranked it up all the way to the top" and pulled away
from the car. Henkel reported this incident to Charles
Kuhn. Jordan denied that this incident ever occurred.
However, having carefully evaluated all the testimony, I
conclude that Henkel's account should be credited.
A second incident involved Donald Lincicome, a
truckdriver. During the strike he hauled bulk cement
from the plant to various customers. On 31 May, as he
left the plant with a load of cement, a car driven by a
man Lincicome later identified as Jordan, pulled out in
front of him and slowed down, forcing Lincicome to
quickly brake the truck. Jordan stayed in front of Linci-
come until Lincicome reached his destination. Lincicome
reported this incident to security guards on the picket
line, and to the sheriff's office. Jordan denies this inci-
dent ever happened, but having reviewed the record, I
am satisfied that it happened as described by Lincicome.
In another incident, on about 10 June, Lincicome was
driving his truck out the main gate. Jordan was on the
picket line. Lincicome testified that as he drove through
he recognized and "snarled" at Jordan, while Jordan tes-
tified that Lincicome threatened him, shaking his fist and
saying that he was going to "kill my black ass." Thereaf-
ter, Jordan drove after Lincicome, passed him and then
pulled off the side of the road. When Lincicome came
upon Jordan, he was standing at the side of the road mo-
tioning Lincicome to come to the side of the road.
Jordan had his hand on a sheathed knife. Jordan testified
that he did this because he wanted to see what Linci-
come's "problem was." Lincicome drove toward Jordan,
forcing him to jump onto the beam on the side of the
road. Lincicome testified that he did this because he
wanted to get Jordan to leave him alone. Thereafter,
Jordan followed Lincicome again for about a mile and
left. At this point Lincicome stopped and made a tele-
phone report of the incident to the security guards at the
plant.
In Clear Pine Mouldings, 268 NLRB 1044 (1984), the
Board held that picket line misconduct is sufficient to
justify a refusal to reinstate if that misconduct, under all
the circumstances, reasonably tends to coerce or intimi-
date other employees. In the case of Jordan, I have con-
cluded that he did participate in the incidents described
above. Having so determined, I further conclude that
such action was intimidating and constituted sufficient
misconduct so as to disqualify him under the Clear Pine
Mouldings standard . See also GSM, Inc., 284 NLRB 174
(1987).
Carey Emory:-In the early evening of 31 May, a
group of strike replacements being housed by Respond-
ent at a Quality Inn in Zanesville, Ohio, were in the pool
area grilling food for dinner when one of them heard a
hissing noise in the adjacent parking lot. Michael Christ
and David Dean, among others, jumped over a fence and
went into the parking lot. They observed two men flee-
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing from two company vehicles, a van and a car, the
tires of which had been punctured. They gave chase.
The two individuals jumped into a green and white Ford
Bronco and took off. Dean was unable to identify the
men. However, Christ testified that he saw the driver.
Later, at the picket line, he saw the Ford Bronco and its
driver was identified to him as Emory. While Emory, for
his part, denies having been at the Quality Inn at the
time in issue, I am persuaded that the identification was
sufficient and, that while the evidence is circumstantial,
to the extent that he was not observed actually slashing
tires, he was responsible at least in part for the damage
done to the Respondent's vehicles. Nothing else would
account for his precipitous and contemporaneous flight
from the site of the damage. I further conclude that this
misconduct was sufficiently egregious and intimidating as
to justify Respondent's refusal to reinstate him under the
criteria set out in by the Board in Clear Pine Mouldings,
supra.
In any event, the evidence makes it clear that Re-
spondent did have an honest belief, based on the evi-
dence available to it, that Emory did engage in this mis-
conduct. Having established such an "honest" belief, it is
incumbent upon the General Counsel to show that the
misconduct did not occur. General Telephone Co., 251
NLRB 737 (1980); Desert Inn Country Club, 275 NLRB
790 (1985). Despite Emory's denial that he was ever at
the Quality Inn during the strike, I am persuaded that
the credible testimony supports the conclusion that he
was, and further, that Christ's account is essentially cor-
rect. Accordingly, I conclude that the General Counsel
has failed to sustain its burden of showing that the mis-
conduct did not occur In these circumstances, I shall
recommend dismissal of this allegation.
Tommy Tipton:-Kevin Kanavel, a security guard at
the main gate of Respondent's plant, testified that on 17
May at about 12:10 p.m., a man he identified as Tommy
Tipton, driving an orange and black pickup truck regis-
tered to Tommy Tipton, came through the main gate
and spun around, dumping about 2 gallons of broken
glass in the driveway. It then sped away out of the en-
trance, spilling more glass as he went Tipton testified
that he could not recall such an incident.
In another incident, Wayne Hartong, a truckdriver,
testified that on about 28 May, he drove out of the plant
at about 6:45 a.m. with a load of cement. As he drove
down the highway at about 30 miles per hour, he ob-
served about four pickets, including Tipton, on the side
of the road. As he passed them, he observed a man, pre-
viously identified to him by security guards as Tipton, in
a side view mirror throwing a handful of nails backhand
under the rear wheels of the trailer. The tires were not
damaged. Hartong reported this incident to security
guards at the plant on his return that afternoon. Tipton
denied any involvement in this incident, claiming that he
did not leave his house on 28 May until 10:30 or 11 a.m.
Although Tipton's wife's testimony supports Tipton's
version, I am convinced, after a careful evaluation of the
testimony, that Hartong's version is correct and that
Tipton did throw nails under the trailer as it passed.
Respondent cites other misconduct by Tipton to sup-
port his discharge, however, the evidence is insufficient
to support Respondent's contentions as to those inci-
dents. However, based on Tipton's misconduct in con-
nection with the two incidents described above, I con-
clude that sufficient justification existed for his discharge,
and that this allegation should be dismissed.
8. Discharges for damage to equipment
Among those discharged by Respondent during the
strike were Keith Luzadder, mobile equipment mechanic;
Terry Frame, driller/blaster; Jim Hughes, heavy equip-
ment operator; Mark Jellison, heavy equipment operator;
Russell Barrett , greaser ; James Dalrymple , mine mainte-
nance repairman ; Homer Searls , general maintenance re-
pairman; Gene Swingle, mobile equipment mechanic; and
George Williams, heavy equipment operator. Respondent
contends that all of these nine individuals were dis-
charged because of damage to various pieces of equip-
ment.
The evidence discloses that after the time that the
strike began at about 5 a.m. on 8 May, management offi-
cials began an inspection of the premises and equipment
which disclosed that there had been substantial damage
to several pieces of equipment, such as trucks, loaders, a
drill, and a forklift . In some cases metal pins had been
inserted into the engines to cause malfunctions. In other
instances, acid was found in the fuel, causing damage to
the engines. Respondent was unable to produce any evi-
dence showing that any of these individual employees
were responsible for any damage to any particular piece
of equipment. Nonetheless, all nine of the above-named
individuals were discharged on account of that damage.
All denied having damaged any equipment. Respondent
takes the position that they were all responsible for the
damage since the damaged equipment was within their
control because they were the last persons to have
worked on or with the equipment.
In this regard Roman was asked, "Is it not the compa-
ny's position that all of these men were fired because
they were either working on, or working in the area of
equipment which was later found to be damaged?"
Roman responded "That was their area of responsibil-
ity." Later, as to the basis for his discharge recommenda-
tions on these individuals, Roman testified, "Primarily
because they were in charge or had responsibility for
that equipment, the night of the strike or the morning of
the strike." Respondent concedes that it had no informa-
tion to associate any of these individuals with any specif-
ic act of destruction. Harold Roberts, mine superintend-
ent, testified that he recommended to Kuhn and Larry
Ousky, vice president of operations for Carlow Group
Company, parent corporation of Respondent, the termi-
nation of these individuals because of damage to the
equipment. He testified "On the damage to the equip-
ment. The fact that they were the last people to run it,
and that was the people that were responsible for it."
Harold Miller testified that he felt that since the ma-
chines were running on the second shift because the
mine was in production, he felt that it was more likely
that the damage had been done on the third shift where
there was no production, only maintenance work being
done on the third shift. However, Miller could not asso-
COLUMBIA PORTLAND CEMENT CO.
ciate any individual with any specific damage. Miller tes-
tified "At that time I felt like they [third shift] were re-
sponsible. I could not tell you which one."
Clearly, had any of the discharged employees been
linked in an evidentiary fashion to the destruction which
took place, Respondent could make a compelling argu-
ment to support its position. However, any conclusion
that a specific individual committed any specific act of
destruction is bottomed on an insupportable leap of
logic. The fact that damage has occurred to equipment
operated or worked on by third-shift employees does not
support a general conclusion or even an "honest belief'
that any third-shift employee was responsible for any
damage. A general pattern of misconduct will not sup-
port a specific conclusion of guilt. This is tantamount to
concluding that simply working on the third shift, with-
out more, justifies discharge because of the destruction
of equipment that occurred on that shift. I do not agree.
In short, there is no evidentiary basis to support any
"honest belief' by Respondent that any of these individ-
uals were responsible for the destruction of any piece of
Respondent's equipment. As the Board held in General
Telephone Co., supra at 739, an honest belief "requires
some specificity in the record, linking particular employ-
ees to particular allegations of misconduct." To hold that
Respondent held an "honest belief' that these individuals
damaged equipment would put the General Counsel in
the position of having to show that they did not damage
the equipment. As the Board notes in General Telephone
Co., this would be an impossible burden since Respond-
ent "failed to identify the alleged misconduct of each
employee,"
It is also worthy of note that three of these employees,
Frame, Hughes, and Williams, of the nine who were dis-
charged, were second-shift employees who testified with-
out rebuttal that they were not even aware that a strike
had been called when they left the plant at the end of
their shifts In these circumstances, it is even more diffi-
cult to assign responsibility to them, even in a general
sense, for the destruction of any equipment, and points
up the indiscriminate or wholesale assignment of guilt for
specific acts of destruction. Accordingly, I conclude that
these nine discharges violate Section 8(a)(3) of the
Act.12
10. Discharges for striking without taking
reasonable precautions to prevent damage to plant
This allegation involves the discharges of plant em-
ployees engaged in the processing of the raw material, as
distinguished from the mining operation , specifically, Mi-
chael Corbett , Paul Fisher , Michael Fisher , Larry Tyo,
Larry Jarvis , and Joseph Stoneburner.13
12 By letter dated 19 June, the day after the strike began, Respondent,
apparently reconsidering the discharges of Luzadder and Frame, advised
them that their discharges were being withdrawn and that instead, they
were being issued 5-day suspensions with Luzadder to report for work on
19 June and Frame on 20 June The reason assigned in both letters for
the suspensions was "inability to perform your job properly " Clearly this
was a hastily contrived subterfuge, totally unsupported by the record,
and I conclude that their supensions had the same unlawful objective as
their discharges and violate Sec 8(a)(1) of the Act
" The allegation as to Wayne Dixon, the kiln burner, was settled at
the hearing and is not in issue
421
Donald Fisher, union president, decided when the
strike would be called. It was his decision that the strike
should commence at 5 a.m. on 8 May and he so advised
a few employees. Most, however, were not aware that a
strike was to take place until they were told shortly
before it happened at about 5 a.m. on 8 May.
Paul Fisher, a trustee of the Union and the brother of
Donald Fisher, was told by Donald Fisher a couple of
hours prior to his starting time at 11 p.m. on 7 May that
the strike would commence at 4 a.m. on 8 May. Donald
Fisher also told him to advise the foreman on that shift,
Carl Hardin, about the strike. At about 3:55 a.m., Paul
Fisher called Hardin and asked him to come to the con-
trol center. When Hardin arrived at about 4:15, Paul
Fisher, along with Michael Fisher, union vice president,
told him that a strike had been called for 4 a.m. and
asked him if he wanted the equipment shut down or left
running. Hardin asked him to shut down, and the opera-
tors of the various machinery used in the production
process went about shutting down their equipment.
While the strike had been called for 4 p.m., Paul Fisher
testified that it did not begin until Hardin had been ad-
vised and consulted. With respect to the kiln, Wayne
Dixon, kiln operator, explained to Hardin as he shut
down the kiln that the kiln had to be turned occasionally
to prevent warpage and Hardin said that he under-
stood.14 Hardin instructed Larry Jarvis, extra kiln opera-
tor, to turn on the auxiliary diesel motor so as to run the
kiln slower but to turn it periodically to avoid warpage
from a quick cooling off. Paul Fisher testified that at
about 4:45 a.m. "I asked Carl Hardin if' he was satisfied
with the shutdown, at which time he stated that he was.
We asked him if he had any more information or any-
thing he needed, and he said he needed-he had every-
thing he needed, and we asked him if it was okay for us
to leave the plant." When Hardin replied affirmatively,
Paul Fisher and Dixon left the plant together. It is undis-
puted that in order to prevent warpage, the kiln could
not cool too quickly and that unlike the other machinery
which could be shut down without any substantial imme-
diate damage, the kiln needed supervision during the
cooling off period. Despite the argument made by Re-
spondent that damage could have come to other equip-
ment, the evidence adduced by Respondent does not es-
tablish that any production equipment other than the kiln
was damaged.
Larry Ousky testified that he arrived at the plant at
about 10 a.m. on 8 March and that the kiln was shut
down and no further damage was being done. According
to Ousky, damage was done to the kiln by not maintain-
ing a flow of feed (slurry) into the kiln and leaving the
drafts to the kiln open. The kiln remained operable but
damage from warpage causes the kiln to lose brick every
6 or 7 weeks. After consultation with the kiln supervisor,
Ray Dunlop, a decision was made to resume production.
This was done at about 3:30 or 4 p.m. on 8 March and
by late in the day on 9 March, full production had been
resumed.
14 Hardin did not testify at the hearing
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent contends that in the circumstances of this
case it was entitled to reasonable notice of the Union's
intent to strike in order to avoid damage to its equip-
ment . The General Counsel, on the other hand, argues
that adequate advance notice was provided; reasonable
precautions taken; and that any damage to the kiln was
the fault of the Respondent. The general proposition was
set out by the Board in Marshall Car Wheel Co., 107
NLRB 314 (1953), where the Board said:
In cases involving supervisory and plant-protec-
tion employees, the Board has recognized the valid-
ity of the general principle that the right of certain
classes of employees to engage in concerted activity
is limited by the duty to take reasonable precautions
to protect the employer's physical plant from such
imminent damage as forseeably would result from
their sudden cessation of work. We are of the opin-
ion that this duty extends as well to ordinary rank-
and-file employees whose work tasks are such as to
involve responsibility for the property which might
be damaged. Employees who strike in breach of
such obligation engage in unprotected activity for
which they may be discharged or subjected to other
forms of discipline affecting their employment con-
ditions.1 s
In my opinion, the circumstances of the instant case do
not call for the application of this precedent. Let us ex-
amine the circumstances. Prior to the walkout, Hardin
was told that a strike had been called and he was asked
whether he wanted to continue the operation or shut
down. While it is true that shutting down was the only
viable option, it also appears that the operators of the
equipment took appropriate steps to shut down the
equipment. The kiln was the only piece of equipment
damaged. Even with respect to the kiln, it appears that
steps were taken to minimize the possibility of damage to
it. Those responsible for the kiln did not leave until they
had asked for and received approval from Hardin. This
suggests that Hardin was satisfied that adequate steps had
been taken to prevent damage to the kiln. There was no
"sudden cessation of work." Had Hardin asked for more
to be done to ensure that the kiln not be damaged, it is
likely that the employees would have stayed until that
had been accomplished. Hardin was the only supervisor
working on this shift, and was inexperienced in the oper-
ation of the kiln. This may have made it more difficult
for him to cope with a full shutdown of the kiln. How-
ever, this lack of experienced supervision was not the re-
sponsibility or the fault of the Union. They were not
obliged to withhold strike action until the Respondent
provided adequate and experienced supervision. In my
opinion, the damage done to the kiln was more a failure
on the part of Respondent to exercise diligence in re-
sponding to the strike than any fault on the part of the
Union in failing to take reasonable precautions.
Most strikes involve an interruption, disruption, incon-
venience, and economic loss to an employer. These are
the forseeable and lawful consequences of strike activity.
In this case, the notice was adequate; the precautions
were reasonable; and the shutdown was orderly. In these
circumstances, I conclude that the discharges of the
above-named employees were unlawful in violation of
Section 8(a)(3) of the Act.
11. Deferral issue
Respondent contends that the discharges in issue have
been waived by the Union because it "ignored" a
Dubo16 referral letter dated 31 October 1985 regarding
Case 8-CA-18343-1 from the Regional Director. I do
not agree. In circumstances where, as here, the parties
have no contract, there is no basis for a deferral, and
Dubo is not really applicable. The grievance arbitration
provision alluded to was part of Respondent's lawful uni-
laterally imposed conditions of employment, but have
never been agreed on between the Union and Respond-
ent. Arizona Portland Cement Co., 281 NLRB 304 (1986).
12. The second strike
The orginal strike ended when Respondent's offer to
return to work was accepted at a meeting of the union
membership in early June attended by some 40 to 50
members. Donald Fisher testified that he recommended
that they return and had legal counsel to that effect. The
employees returned to work on 12 June. The member-
ship was aware at the time that it accepted Respondent's
offer that certain employees had been discharged and
would not be allowed to return. However, after some
debate at the meeting, they decided to accept Respond-
ent's offer and return to work.
On 17 June, another union meeting was held at which
there was a discussion of the Respondent's unfair labor
practices, including those found herein to be unfair labor
practices, particularly those employees discharged during
the strike. The union members present complained that
nothing had been done to resolve any of the matters
since they had returned to work, and they voted 55 to 1
to strike again , and did so on 18 June. There was also
some discussion at this meeting about the suspension of
five employees on 12 June. t 7 However, according to
Donald Fisher, this was not a major topic of discussion.
International Representative August Clavier attended the
17 June meeting and supported a proposal to call a
second strike.
The General Counsel contends that the second strike
was caused by Respondent's failure to remedy the unfair
labor practices, including the unlawful discharge of strik-
ers. Respondent argues that once having accepted Re-
spondent's offer of reinstatement and returning to work,
the Union waived its right to strike, and could not there-
after claim unfair labor practice strike status for a second
strike protesting the same unfair labor practices.
Clearly the discharges of striking employees were con-
tinuing unfair labor practices, and I have concluded that
these discharges, with the exception of Jordan, Emory,
15 See also Harsco Corp, 256 NLRB 863 (1981), where the principle is
discussed and rejected in circumstances where an employer argued that
machinery should have been left running when the walkout began.
1 a Dubo Mfg Corp., 142 NLRB 431 (1963)
1T An unfair labor practice charge was filed but later dismissed as to
those discharges
COLUMBIA PORTLAND CEMENT CO
and Tipton, were unlawful. In addition, I have found
unfair labor practices as to various other misconduct, all
of which is set out above. None of these violations have
been remedied by Respondent and were not remedied at
the time of the second strike 17 June. In these circum-
stances, I am satisfied that the second strike, like the
first, was motivated by the Respondent's continuing
unfair labor practices, rather than the discharges of 12
June. The 12 June discharges, while discussed at the 17
June union meeting , were not motivating considerations
in the Union's decision to strike. Nor can I construe the
decision to return to work as a waiver of the employees'
right to strike, and it was an unfair labor practice strike,
despite the fact that the Union was aware when it re-
turned to work that the dischargees were not returning.
New unfair labor practices were not necessary in order
to constitute the second strike an unfair labor practice
strike. In short, in circumstances where there exists out-
standing , continuing, unremedied unfair labor practices,
the Union could reconsider its decision to return to work
and strike again.
IV. EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent as set forth in section
III above, in connection with Respondent's operations
described in section I above, have a close and intimate
relationship to trade, traffic and commerce among the
several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices, I shall recommend
that they cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act. Having concluded that Respondent unlawfully
discharged Russell Barrett, James Dalrymple, Jimmy
Hughes, Mark Jellison, Homer Searls, Gene Swingle,
George Williams, Michael Corbett, Michael Fisher, Paul
Fisher, Larry Jarvis, Joseph Stoneburner, and Larry
Tyo, to the extent that this has not been accomplished,
Respondent shall be ordered to offer them full and im-
mediate reinstatement to their former positions of em-
ployment or, if those positions no longer exist, to sub-
stantially equivalent employment, without prejudice to
their seniority or other rights and privileges, and back-
pay, with interest, from the date of their discharges.
Abilities & Goodwill, 241 NLRB 27 (1979); Gulf Envelope
Co., 256 NLRB 320 (1981).
As to Wartenbe, as noted above, reinstatement is not
ordered, however, backpay shall run from 18 April 1985,
the time of his unlawful suspension and discharge, until 2
August 1985, the date of the homicide for which he was
later convicted, and which event I have concluded tolls
the Respondent's reinstatement and backpay obligations.
As to Luzadder and Frame, whose discharges were re-
duced to 5-day suspensions, I conclude that when they
failed to report to work on 19 and 20 June 1985, respec-
tively, they reacquired unfair labor practice striker
423
status. As to them, Respondent's backpay obligation will
run from the time of their unlawful discharges to their
reporting dates after the suspensions. Thereafter, like the
other unfair labor practice strikers, their reinstatement
would be contingent on an application to return to work.
In addition, the employees who participated in the
strike caused by the Respondent's unfair labor practices,
shall, on their application for reinstatement, be reinstated
to their former positions or, if such positions no longer
exist, to substantially equivalent positions without impair-
ment to their seniority and other rights and privileges,
dismissing , if necessary, any persons hired as replace-
ments on or after 18 June 1985. If, after such dismissals,
there are insufficient positions remaining for all the strik-
ing employees who desire reinstatement, the available
positions shall be distributed among them without dis-
crimination because of their union membership or activi-
ties or participation in the strike, in accordance with se-
niority or other nondiscriminatory practices as have been
applied in the past by the Respondent in the conduct of
its business at its plant in Zanesville, Ohio. Those strik-
ers, if any, for whom no employment is immediately
available after such distribution, shall be placed on a
preferential hiring list with priority determined among
them by seniority or other nondiscriminatory practices
and thereafter, in accordance with such system, they
shall be offered reinstatement as positions become avail-
able and before other persons are hired for such positions
of work. The striking employees shall be made whole for
any loss of earnings they may have suffered, or may
suffer, by reason of the Respondent's refusal, if any, to
reinstate them by payment to each of them a sum of
money equal to that which he or she would have earned
during the period from 5 days after the date on which he
or she applied, or shall apply, for reinstatement, to the
date of the Respondent's offer of reinstatement, should
there be any, absent a lawful justification for the Re-
spondent's failure to make such an offer.
All backpay and reimbursement provided herein, with
interest, shall be computed in the manner prescribed in
New Horizons for the Retarded,1' and F. W. Woolworth
Co., 90 NLRB 289 (1950).
CONCLUSIONS OF LAW
1. The Respondent, Columbia Portland Cement Com-
pany, 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, Local No. 24, AFL-CIO affiliated
with Cement, Lime, Gypsum and Allied Workers Divi-
sion, International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO
is a labor organization within the meaning of Section
2(5) of the Act
18 In accordance with the Board's decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after I January 1987 shall
be computed at the "short-term Federal rate" for the underpayment of
taxes as set out in the 1987 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. At all times material , the following described unit
has been an appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees em-
ployed at the Respondent's Zanesville, Ohio facility,
excluding all office clerical employees and profes-
sional employees, guards and supervisors as defined
in the Act.
4. At all times material, the Union has been, and is
now, the exclusive representative of the employees in the
above-described bargaining unit for the purposes of col-
lective bargaining within the meaning of Section 9(a) of
the Act.
5. The Respondent and Union were parties to a collec-
tive-bargaining agreement from 1 May 1981 to 1 May
1984, extended to 5 September 1984 when it was lawful-
ly terminated by Respondent.
6. On 28 October 1984, after impasse in negotiations,
Respondent lawfully and unilaterally implemented its
contract proposals.
7. By conducting investigatory interviews of employ-
ees Donald Fisher, Marvin Baker, and Paul Slack after
having denied their request for union representation, Re-
spondent violated Section 8(a)(l) of the Act.
8. By threatening employee Paul Slack with suspension
for refusing to participate in an investigatory interview
after having denied his request for union representation,
Respondent violated Section 8(a)(1) of the Act.
9. By threatening to force employee Robert Wartenbe
to participate in an investigatory interview after having
denied his request for union representation, Respondent
violated Section 8(a)(1) of the Act.
10. By threatening employee Robert Wartenbe with
reprisals for refusing to participate in an investigatory
interview after having denied his request for union repre-
sentation, Respondent violated Section 8(a)(1) of the Act.
11. By suspending employee Robert L. Barrett, and
suspending and discharging employee Robert Wartenbe
for refusing to participate in an investigatory interview
after having denied their request for union representa-
tion, Respondent violated Section 8(a)(3) of the Act.
12. By refusing to process grievances filed prior to 5
September 1984, under the terms of the collective-bar-
gaining agreement in effect from 1 May until 5 Septem-
ber 1984, Respondent has violated Section 8(a)(5) of the
Act.
13. By refusing to process grievances filed between 5
September and 28 October 1984 under the terms of the
collective-bargaining agreement in effect from 1 May to
5 September 1984, Respondent has violated Section
8(a)(5) of the Act.
14. The Respondent did not violate the Act by refus-
ing to arbitrate grievances filed between 5 September
and 28 October 1984 under the terms of the collective-
bargaining agreement in effect from 1 May 1981 to 5
September 1984.
15. By insisting that grievances filed between 5 Sep-
tember and 28 October 1984 be processed under the
grievance procedures of the implemented contract pro-
posal of 28 October 1984, Respondent has violated Sec-
tion 8(a)(5) of the Act.
16. By establishing a policy that only active employees
could participate in the filing and processing of griev-
ances, Respondent has violated Section 8(a)(1) and (5) of
the Act.
17. By refusing to allow the retired grievance commit-
tee chairman, Boyd Folden, to participate in the filing
and processing of grievances, Respondent has violated
Section 8(a)(1) and (5) of the Act.
18. The Respondent did not violate the Act by discon-
tinuing the issuance of work gloves to employees.
19. The strike of 8 May 1985 was an unfair labor prac-
tice strike.
20. The strike of 18 June 1985 was an unfair labor
practice strike.
21. By discharging or suspending employees Terry
Frame, Keith Luzadder, Russell Barrett, James Dalrym-
ple, Jimmy Hughes, Mark Jellison, Homer Searls, Gene
Swingle, George Williams, Michael Corbett, Michael
Fisher, Paul Fisher, Larry Jarvis, Joseph Stoneburner,
and Larry Tyo for having participated in the strike
which began on 8 May 1985, Respondent has violated
Section 8(a)(3) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edis
ORDER20
The Respondent, Columbia Portland Cement Compa-
ny, Zanesville, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Conducting investigatory interviews of employees
after having denied their requests for union representa-
tion.
(b) Threatening employees with suspension for refus-
ing to participate in investigatory interviews after having
denied their requests for union representation.
(c) Suspending, discharging, or otherwise discriminat-
ing against any employee for refusing to participate in in-
vestigatory interviews after having denied their request
for union representation.
(d) Refusing to bargain collectively within the mean-
ing of the Act with United Cement, Lime, Gypsum and
Allied Workers' International Union, Local No. 24,
AFL-CIO affiliated with Cement, Lime, Gypsum and
Allied Workers Division, International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers &
Helpers, AFL-CIO as the exclusive bargaining repre-
sentative of its employees in the appropriate unit by: re-
fusing to process grievances filed prior to 5 September
1984 under the terms of the expired contract; refusing to
19 If no exceptions are filed as provided by Sec 10246 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
20 In the absence of circumstances indicating the propriety of a visita-
tonal clause as a part of the proposed remedial Order herein, the General
Counsel's request therefore is denied
COLUMBIA PORTLAND CEMENT CO.
process grievances filed between 5 September and 28
October 1984 under the terms of the expired contract; in-
sisting that grievances filed between 5 September and 28
October 1984 be processed under the grievance proce-
dures of the implemented contract proposal of 28 Octo-
ber 1984.
(e) Refusing to bargain collectively within the meaning
of the Act with United Cement, Lime, Gypsum and
Allied Workers' International Union, Local No. 24,
AFL-CIO affiliated with Cement, Lime, Gypsum and
Allied Workers Division, International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers &
Helpers, AFL-CIO by: establishing a policy that only
active employees could participate in the filing and proc-
essing of grievances; refusing to allow retired Union
grievance committeeman Boyd Folden to participate in
the filing and processing of grievances.
(f) Discharging, suspending, or failing to reinstate any
employee for participation in a strike or engaging in any
other union or concerted activities protected by Section
7 of the Act.
(g) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
under Section 7 of the Act.21
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole employees Robert Barrett, Robert
Wartenbe, Russell Barrett, James Dalrymple, Terry
Frame, Jimmy Hughes, Mark Jellison, Keith Luzadder,
Homer Searls, Gene Swingle, George Williams, Michael
Corbett, Paul Fisher, Larry Jarvis, Larry Tyo, Joseph
Stoneburner, and Michael Fisher to the extent this has
not been accomplished, for any loss of pay they may
have suffered by reason of the discrimination against
them found herein, to be computed in conformity with
the remedy section of this decision.
(b) Offer to Russell Barrett, James Dalrymple, Jim
Hughes, Mark Jellison, Homer Searls, Gene Swingle,
George Williams, Michael Corbett, Paul Fisher, Larry
Jarvis, Larry Tyo, Joe Stoneburner, and Michael Fisher
immediate and full reinstatement to their former positions
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges.
(c) On application for reinstatement on behalf of em-
ployees who participated in the unfair labor practice
strike which began on 18 June 1985 and who have not
already been reinstated, offer full and immediate rein-
statement to all such employees or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
dismissing if necessary any persons hired as replacements
on or after 18 June 1985. If, after such dismissals, suffi-
21 Hickmott Foods, 242 NLRB 1357 (1979)
425
cient jobs -are not available for these employees, they
shall be placed on a preferential hiring list in accordance
with their seniority or nondiscriminatory practices uti-
lized by the Respondent, and they shall be offered em-
ployment before any other persons are hired. These em-
ployees shall be made whole for any loss of earnings, if
any there be, they may have suffered or may suffer by
reason of Respondent's refusal and failure to reinstate, all
of which is to be done in the manner set forth in the
remedy section of this decision.
(d) Remove from its files any references to the suspen-
sions or discharges of any of the above-named employ-
ees, and notify them in writing that this has been done
and that evidence of these unlawful suspensions and dis-
charges will not be used as a basis for future personnel
action against them.
(e) Process, on request, through the grievances and ar-
bitration procedures of the expired 1981-1984 contract
those grievances arising under that contract.
(f) Process, on request, through the grievance proce-
dure of the expired 1981-1984 contract, those grievances
arising during the hiatus between the expiration of the
extended 1981-1984 contract (5 Sept. 1984) and the im-
plementation of Respondent's contract proposal (28 Oct.
1984).
(g) Recognize and bargain with Boyd Folden as a rep-
resentative of the Union in the filing and processing of
grievances.
(h) Rescind any rule or policy stating that only active
employees will be recognized as union representatives in
the processing of grievances.
(i) Preserve and, on request, make available to the
Board or its agents for examination and copying all pay-
roll records, social security records, and reports, and all
other records necessary to analyze the amounts of back-
pay due herein.
0) Post at its Zanesville, Ohio plant, copies of the at-
tached notice marked "Appendix."22 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive 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.
(k) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
22 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 "