Graymont PA, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 30, 2014

06-CA-126251 (N.L.R.B. Dec. 30, 2014)

JD−74−14
Pleasant Gap and Bellefonte, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GRAYMONT PA, INC.,
and Case 6–CA–126251
LOCAL LODGE D92, UNITED CEMENT, LIME,
GYPSUM AND ALLIED WORKERS, A DIVISION
OF INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIPBUILDERS,
BLACKSMITHS, FORGERS AND HELPERS, AFL–CIO.
Counsel:
Dalia Belinkoff, Esq. (NLRB Region 6)
of Pittsburgh, Pennsylvania, for the General Counsel
Eugene A. Boyle Esq. (Neal, Gerber & Eisenberg LLP)
of Chicago, Illinois, for the Respondent
DECISION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves an employer that
changed its work rules during the term of the labor agreement it had entered into with the union
representing its employees. The General Counsel of the National Labor Relations Board (Board)
alleges that the employer had a duty to notify the union and provide an opportunity for collective
bargaining before making the changes and that it violated the National Labor Relations Act (Act)
by failing to do so. The General Counsel further alleges that the employer violated the Act by, in
response to a union information request, delaying telling the union for six months that it
possessed no information requested by the union regarding the employer’s decision to make
these changes.
The employer disputes that it violated the Act in any manner. It contends that the
unilateral implementation dispute should be deferred to arbitration pursuant to the parties’
contractual dispute resolution mechanism. Alternatively, it contends that it was not required to
bargain before implementing the changes for three independent reasons: because the changes
were not material, because the union waived the opportunity to bargain when the employer
announced its intent to make the changes, and, finally, because the union waived the right to
bargain based on the management-rights clause in the parties’ collective-bargaining agreement.
As discussed herein, I reject each of the employer’s contentions and find that by implementing
the unilateral changes the employer violated the Act, as alleged.
As to the delay in providing information, I reject the employer’s “derivative” argument that
it had no duty to provide information about the changes because it had no duty to bargain about
JD–74–14
2
the changes. However, as discussed herein, I am constrained to dismiss this allegation. The
information the employer delayed providing was notification that it had no information responsive
to the request. Under the rule announced in Raley’s Supermarkets, 349 NLRB 26 (2007), in
order for a violation to be found in such circumstances the complaint allegation must specifically
allege that the employer failed to provide or delayed in providing notification that it had no 5
information responsive to the union’s request. At least where the General Counsel is aware of
the situation prior to trial, a complaint allegation, such as that here, of a general refusal to provide
or delay in providing information, must be dismissed. This technical and unsatisfying rule is one I
must follow unless and until it is overruled by the Board.
10
STATEMENT OF THE CASE
On April 9, 2014, the Local Lodge D92, United Cement, Lime, Gypsum and Allied
Workers, a Division of International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, AFL–CIO (Union) filed an unfair labor practice charge alleging violations of 15
the Act by Graymont PA, Inc. (Graymont), docketed by Region 6 of the Board as Case 06–CA–
126251. The Union filed an amended charge in the case on June 20, 2014. Based on an
investigation into the charge, on June 27, 2014, the Board’s General Counsel, by the Acting
Regional Director for Region 6 of the Board, issued a complaint alleging that Graymont violated
the Act. Graymont filed an answer, and then an amended answer denying all alleged violations 20
of the Act.
A trial was conducted in this matter on September 16, 2014, in State College,
Pennsylvania.1
25
Counsel for the General Counsel and counsel for Graymont filed post-trial briefs in
support of their positions by October 21, 2014.2 On the entire record, I make the following
findings, conclusions of law, and recommendations.
JURISDICTION30
Graymont is and at all material times has been a corporation with offices and facilities in
Pleasant Gap and Bellefonte, Pennsylvania, where it is engaged in the mining and production of
lime and lime products. In conducting its operations during the 12-month period ending March
31, 2014, Graymont sold and shipped from these Pennsylvania facilities goods valued in excess 35
of $50,000 directly to points outside the Commonwealth of Pennsylvania. Graymont is and at all
material times has been an employer engaged in commerce within the meaning of Section 2(2),

1At the close of the hearing counsel for the General Counsel moved to amend the amended
charge filed June 20, 2014, to state as the basis of the charge modifications in policy since on or
about March 1, 2014, instead of, as stated in the amended charge (GC Exh. 1(c)), since on or
about March 31, 2014. Counsel for the Respondent stated that he did not object (Tr. 131). I
indicated a willingness to grant the amendment (Tr. 130) but never, in fact, did. I grant it now.
2On October 21, 2014, with the submission of her brief, counsel for the General Counsel
moved to amend the complaint—essentially to change the allegation that the Respondent refused
to provide the Union with requested information to an allegation that the Respondent
unreasonably delayed providing the same requested information. The Respondent did not file an
opposition to the motion to amend. I grant the amendment.
JD–74–14
3
(6), and (7) of the Act. The Union is and at all material times has been a labor organization within
the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.5
UNFAIR LABOR PRACTICES

Graymont mines limestone and produces lime products for industrial and environmental
application at approximately 19 facilities across the United States and Canada. It operates two 10
facilities—one in Pleasant Gap, Pennsylvania, and the other in Bellefonte, Pennsylvania—at
which approximately 150 employees work under a collective-bargaining agreement between
Graymont and the Union. The Union has represented employees in this bargaining unit for more
than 20 years (the current plant manager testified that he had been told that the Union had
represented employees at these facilities since the 1960s).15
The current collective-bargaining agreement was effective June 1, 2014, and will continue
in effect until at least May 31, 2017. The previous agreement was in effect from June 1, 2011, to
May 31, 2014 (the 2011 Agreement). Before that there were successive labor agreements in
2001 and 2006.320
The management-rights clause of the labor agreements
The 2001 collective-bargaining agreement contained a short management-rights clause
(Art. 1 para. 8) that stated:25
All of the usual and customary rights of management not specifically abridged or
modified by this Agreement shall remain in effect.
In the negotiations for the 2006 Agreement, Graymont proposed a longer management-30
rights clause. The resulting 2006 Agreement contained the following management-rights clause
at Art.1 para. 8 of the contract:
The Employer retains the sole and exclusive rights to manage; direct its
employees; to hire, to assign work, to transfer, to promote, to demote, to layoff, to 35
recall, to evaluate performance, to determine qualifications, to discipline and
discharge for just cause, to adopt and enforce rules and regulations and policies
and procedures; to set and establish standards of performance for employees; to
determine the number of employees, their duties and the hours and location of
their work; to establish, change, or abolish positions; to create and implement 40
training and development programs for employees; to implement drug and alcohol
testing rules and procedures that are consistent with applicable law; to create any
new processes; to make technological changes; to determine shifts; to install or
remove any equipment. The rights expressly reserved by this Article are merely

3The 2011 labor agreement contains the following provision, recognizing the Union as the
bargaining agent for the following unit of employees:
Employees in the Bellefonte Plant located on North Thomas Street and the
Pleasant Gap plant located on Airport Road . . . The term “employees” as used in
this Agreement will not include salaried foreman and office employees.
JD–74–14
4
illustrations of and are not inclusive of all of the rights retained by the Employer.
The rights expressly reserved by this Article are subject to the terms and
conditions of the Agreement, and to the extent there is a conflict the terms and
conditions of this Agreement shall prevail.
5
All of the usual and customary rights of management not specifically abridged or
modified by this Agreement shall remain exclusively vested in the Company.
Graymont’s office coordinator, Shawn Miller, who handles human resources’ duties and 10
was involved in negotiations for the 2006 Agreement, testified that there was significant
discussion on the clause in 2006 negotiations. During her testimony she reviewed (and the
Respondent offered into evidence) notes of an employer-maintained bargaining file from 2006,
which corroborated (and informed) her testimony. Miller testified that in the 2006 negotiations the
Union raised concerns about language in the Employer’s original proposal regarding the use of 15
outside contractors and about the Employer’s ability to change shifts from 8 to 12 hours and back.
According to Miller these items were removed by the Employer through the negotiating process.
Based on her demeanor and the corroborating force of the notes, I credit Miller’s testimony on
this score.4 Notably, neither the Union’s President Dan Ripka, Miller, nor any other witness or
evidence suggests that discipline or absenteeism and/or attendance were discussed in reference 20
or regard to the management-rights clause.5
The foregoing management-rights clause, which was included in the 2006 Agreement,
was retained unchanged in the successor 2011 Agreement, and the 2014 Agreement.
25
In June 2014, during negotiations for the 2014 Agreement, the Union proposed changes
to the language of the management-rights clause that included placing the work rules in the labor
agreement, and other proposed changes. None of these changes were adopted and the 2014
Agreement, which was effective June 1, 2014, retained the same management-rights provision as
was in the 2006 and 2011 Agreements. 30
The Work Rules and Absenteeism Policy
Until the change in work rules on March 1, 2014 (during the term of the 2011 Agreement),
that is the subject of the instant dispute, Graymont maintained the same work rules for over 20 35
years. The pre-March 1, 2014 work rules set forth three categories (Group A, B, and C) of
infractions with penalties established for each category. Penalties for successive violations of
Group A (which included the statement that “Continued tardiness will not be permitted”)
progressed from a first time warning to discharge upon the fourth violation within a year. Group B
violations begin with a two-day suspension for the first violation with discharge the prescribed 40
penalty for a third violation within a year. The more serious infractions listed in Group C

4The Union’s president, Dan Ripka, testified that in 2006 the Union accepted Graymont’s
proposal as proposed, although he also testified that he did not remember whether the Union
made proposals with regard to this clause or what discussion the parties had at the table. Ripka
was generally a good witness, and, I believe, an honest one, but in this instance he was
uncertain, did not have the same sharpness of memory as Miller on this issue, and had no notes
to review. Accordingly, I credit Miller as to this issue.

5Throughout this decision I refer to attendance and absenteeism policy interchangeably,
which is in accordance with the parties’ understanding. See Tr. 7.
JD–74–14
5
prescribed discharge for a first offense. For purposes of imposing progressive discipline,
violations of different classifications (for instance, single violation of Group A and a single
violation of Group B) were not combined.
The work rules also contained a Policy on Absenteeism that stated: 5
POLICY ON ABSENTEEISM
When an[ ] employee is habitually absent from his/her job, the Company
will notify the employee, in writing, with a copy to the Union that the employee’s 10
attendance is unsatisfactory and unacceptable.
If attendance does not immediately improve to the full satisfaction of the
Company, a strongly worded letter will be sent to the employee, with a copy to the
Union, telling the employee he is on probation and if attendance does not improve 15
immediately he is subject to discharge. At some point during this time period a
meeting will be held between the affected employee, Union committeeman and
Company Representative to impress upon the employee the seriousness of the
situation and to warn the employee that he/she will be discharged the first time
he/she is absent without good and sufficient reason within one year, or for 20
continued habitual absence for any reason.
Ripka testified that as early as 2003, the Union requested that a new absenteeism policy
be created that would provide more certainty and consistency about attendance expectations.
For her part, Miller recalled that the matter was raised at the Employer’ s initiative, but in any 25
event, she agreed that when Graymont talked to the Union it agreed “that we needed to do
something about it.”
The issue was discussed in “policy meetings”—meetings between the Union and
Graymont that could be requested by either party to discuss ongoing issues or concerns. 30
Typically, four to six people were present at the meetings for each side. After each policy
meeting, Graymont’s Miller would type up “minutes” of the meeting, which, more accurately, were
notes summarizing the discussions, and distribute copies to all meeting participants from both
management and the union side.
35
A new absenteeism policy was discussed in a policy meeting on May 29, 2003, but no
change was made to the absentee policy in 2003. The matter was raised again in 2004, and it
was discussed by the parties in October and December 2004, and in January 2005. The
Employer advanced new absenteeism proposals during these meetings. According to Miller,
“[W]e wanted to put a little more teeth into the absenteeism policy.” 40
On February 14, 2005, a new absenteeism policy was implemented. It stated:
The Company and the Union Committee have agreed to the following
terms:45
1. Six (6) incidents within a rolling year will warrant:
A. A letter from Shawn, which will include the date of the last incident
B. Management and the union will meet with the employee which
will be considered a Verbal warning and placed into the employee's file50
JD–74–14
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2. Seventh (7th) incident within a rolling year will warrant:
A. A Written Warning from Management which will be placed into the employee's
file
3. Eighth (8th incident within a rolling year will warrant:5
A. Two days off without pay which will be noted in the employee's file
4. Ninth (91h) incident within a rolling year will warrant:
A. One week off without pay which will be noted in the employee's file, plus
B. Last Chance Notice, which will cover the next 24 months10
Note: A doctor's excuse will be considered an excused absence.
The foregoing absenteeism policy, and work rules generally, remained in effect from 2005
until March 1, 2014. 15
At one point in late 2006, Graymont approached the Union with a proposal to change the
work rules and discipline to make them much stricter. The Union protested in letters sent to
Graymont that “these are mandatory subjects of bargaining” and demanded that Graymont
“suspend any plan[n]ed implementation of these new rules until after the union and the company 20
ha[ve] had the opportunity to bargain over them,” contending that “labor law forbids any
implementation of a new policy until the bargaining process is complete.” Ripka discussed the
matter with then Plant Superintendent Rich Fenush, who explained some problems the Employer
was having with employee conduct. Ripka suggested that the Employer’s issues could be
addressed and resolved by application of the current work rules. The new work rules were not 25
implemented.
The February 14, 2014 announcement of intent
to change the work rules and absenteeism policy
30
In February 2014, during the term of the 2011 Agreement, Miller informed the Union that
Graymont had scheduled a policy meeting for February 14.
At the meeting, Plant Manager Martin Turecky began by discussing safety issues and
then, according to Union President Ripka, “proceeded to tell us that they were changing the work 35
rules,” effective March 1. Miller passed out copies of new work rules, which included new rules
on absenteeism and tardiness. This was the first mention to the Union of Graymont’s interest in
and intent to change the work rules.
The new work rules distributed at this meeting incorporated policies on absenteeism and 40
tardiness at the conclusion of the work rules and read as follows:
Work Rules
The following is a set of work rules for the employees of Graymont (PA) Inc. This 45
set of work rules is in no way conclusive. For example, the Code of Business
Conduct and Ethics applies as well. In cases where infractions against the
Company or its employees are not specifically listed, common sense will apply.
50
JD–74–14
7
Group A
1. Carelessness or recklessness, including horseplay, is not permitted.
2. When an employee is absent, for any reason, he must call the report off phone
number assigned by his supervisor, prior to the start of his shift, stating the reason 5
why he must be absent and, if possible, when he will return.
3. Every accident must be reported to your supervisor before the end of the shift
upon which the accident occurs.
4. Employees must limit all lunch periods to the length of time specified.
5. No employee is permitted to leave the Company premises during working hours 10
without permission,
6. Poor work habits will not be permitted.
7. Failure to promote efficient operation of the plant or equipment will not be
permitted.
8. Infractions of Federal, state and general or specific departmental safety rules will 15
not be permitted.
9. Hard hats, safety glasses and safety shoes must be worn in the plant area at all
times.
10. Failure to follow instructions is not permitted.
11. Failure to cooperate with inspection or attempt to prevent inspection of tool boxes, 20
lockers, parcels or other containers on or within Company property.
12. Unauthorized use of Company phone will not be permitted.
The discipline progression will normally only be reset after an employee works
twelve (12) consecutive months free of any work rule violations. The following are 25
the penalties for infractions of Group A rules:
First – Written warning
Second – One (1) day off
Third – Two (2) days off30
Fourth – Discharge
NOTE: Group A and Group B violations will be combined in discipline
progression. Please reference the chart in this document.
35
Group B
1. Verbal abuse of customers, truck drivers, suppliers, or any other outsiders who
are conducting authorized business on Company property will not be 40
permitted.
2. Carelessness, recklessness or failure to follow instructions which results in
injuries to persons or damage to equipment or property will not be permitted.
3. Punching of time clock for any other person is not permitted.
4. Verbal abuse or harassment of other employees or any interference with 45
Company operations will not be permitted.
5. Sleeping on the job is not permitted.
6. Failure to follow proper lock-out/tag-out procedures.
JD–74–14
8
The discipline progression will normally only be reset after an employee works
twelve (12) consecutive months free of any work rule violations. The following are
the penalties for infractions of Group B rules:
First – Two (2) days off 5
Second – Four (4) days off
Third – Discharge
NOTE: Group A and Group B violations will be combined in discipline
progression. Please reference the chart in this document. 10
15
20
25
30
35
Group C40
1. Deliberate disobedience of supervisor's instructions, or any form of
insubordination will not be permitted.
2. Willful falsification on any Company record will not be permitted.
3. Intoxication on the job and/or use of or possession of alcoholic beverages or 45
illegal drug at work is prohibited. Possession includes having them in your
vehicle on Company property.
4. Fighting, disorderly conduct, or any form of physical violence on Company
premises is not permitted.
5. Stealing or deliberate damage to Company or employee's property is not50
permitted, and shall be prosecuted as prescribed by law.
First Second Third Fourth
A A A A Written Warning One Day Off Two Days Off Discharge
AAAB Written Warning One Day Off Two Days Off Discharge
AABA Written Warning One Day Off Four Days Off Discharge
AABB Written Warning One Day Off Four Days Off Discharge
ABAA Written Warning Two Days Off Four Days Off Discharge
ABAB Written Warning Two Days Off Four Days Off Discharge
ABBA Written Warning Two Days Off Four Days Off Discharge
ABBB Written Warning Two Days Off Four Days Off Discharge
BAAA Two Days Off Two Days Off Four Days Off Discharge
BAAB Two Days Off Two Days Off Four Days Off Discharge
BABA Two Days Off Two Days Off Four Days Off Discharge
BABB Two Days Off Two Days Off Four Days Off Discharge
BBAA Two Days Off Four Days Off Four Days Off Discharge
BBAB Two Days Off Four Days Off Four Days Off Discharge
BBBX Two Days Off Four Days Off Discharge
JD–74–14
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6. An employee must not absent himself/herself from work for more than three (3)
days without proper notice.
7. Possession of firearms, explosives or other weapons on Company property is
prohibited.
8. Threats or threatening behavior against Company property, or anyone on 5
Company property, or any Company employee, whether or not on Company
property, is prohibited. All threats will be assumed to have been made with
the intent to carry them out.
The following are the penalties for infractions of Group C rules:10
DISCHARGE
Policy on Absenteeism
When, all personal days are used, each employee will be allowed one (1)
unexcused absence. After that one (1) unexcused absence has been used, the 15
employee will be considered in violation of Group A–6 (Poor work habits will not be
permitted) with each proceeding unexcused absence.
NOTE: Supervisors will define the vacation scheduling policy for each department.
For example, the supervisors will define how many employees are permitted to be 20
on vacation for any given shift and/or day to ensure efficient operation of their
department.
Policy on Tardiness
If you are tardy more than three (3) times in any twelve (12) month period, each 25
proceeding occurrence will be considered a violation of Group A–6 ( (Poor work
habits will not be permitted).
In his testimony at the hearing, Turecky referred to this as a “proposal” and contended
that much of it was “clarification” of the old policy. However, he recognized that the Employer 30
was changing the absenteeism policy, by any definition.
The record does not contain a comprehensive summary of the changes, but some of the
major ones include:
35
including absenteeism within the definition of violations covered by Group A;
shortening the number of unexcused absences (after use of personal days) before
beginning progressive discipline from six to one;
40
the quantifying of the number of instances of tardiness necessary to begin
progressive discipline (a change from a penalizing of “continued tardiness”);
the change from violations of more than one year not counting towards
progressive discipline (i.e., old violations automatically “fell off” after one year), to a 45
system where older violations remained on the employees’ progressive discipline
record unless and until an employee worked one year without any violations at all;
the “pyramiding,” i.e., combining of Group A and B violations for purposes of
applying progressive discipline steps.50
JD–74–14
10
According to Graymont’s notes of the meeting, Turecky “highlighted some of the points
which were changed, such as the rolling 12 months, combining of A’s and B’s, Policy on
Absenteeism.” Turecky asked the Union if it had any comments. The parties took a break while
the Union caucused. When the Union returned its representatives said “[W]e had no comments
at this time about the changes.” Turecky said that the changes were going to be implemented 5
and Ripka told him that the Union would “file a grievance on the implementation.” Turecky said
that the Union “couldn’t file a grievance because [the work rules and absenteeism policy] were
not in the contract anywhere.” The Union responded that “we were filing a grievance at that time
anyway.” The meeting ended.
10
Later that day, Ripka and fellow union negotiating committee member Bill McElwain
approached Turecky at his office and told him “[T]hey would like to discuss the rules and they will
withdraw the grievance.” Ripka testified that he told Turecky, “[W]e wanted to talk about the work
rules.” Turecky “said that would be fine and we would have a meeting.”
15
The Union’s information request; the
Employer’s response, and the February 25 meeting
By letter from the union’s recording secretary to Turecky, dated February 17, the Union
presented Graymont with the following request for information:20
Dear Martin,
Enclosed is a request from the President of Local D92, and Chairman Ralph
Houser.25
This is a formal information request for any memos, data of any kind or any other
Information or Materials which the company relied upon for making the decision to
change the work rules, discipline policy, and why changes are being made to the
absenteeism policy.30
Please include any minutes of policy meeting[s] over the past five years in which
these topics were discussed, and any decisions, or agreement that were arrived
at, between the company, and the bargaining unit for Local D92 employees.
35
Your attention to this matter, as soon as you can would be greatly appreciated.
Please forward all copies of this information to President Dan Ripka, and Ralph
Houser, Committees Chairman.
The parties met February 25. At this meeting, Turecky began by handing the Union a 40
written response to the Union’s information request. The response, in the form of a letter from
Turecky to Union Committee Chairman Ralph Houser, stated:
This is in response to your February 19, 2014, information request regarding the
revised rules and policies.45
Under our collective-bargaining agreement, the Company retains the sole and
exclusive right to manage, which expressly includes the right ". . . to adopt and
enforce rules and regulations and policies and procedures. . . [.”] Therefore, the
Company has no obligation to bargain over any of the changes to which your 50
request refers. Since there is no obligation to bargain over the decision to adopt
JD–74–14
11
the policies to which you refer, there is, likewise, no obligation to furnish any
information regarding such decision. In any event, there is no obligation to provide
any information regarding internal management discussions leading to such a
decision.
5
Regarding your request for minutes of policy meetings, the Union already has
copies of all such minutes. In addition, if the Union contends that there is any
agreement between the Company and the Union that prevents or limits the
Company's right to adopt the changes in policies to which you refer, the Company
hereby formally requests that you furnish us with a copy of any such agreement.10
There was discussion about the Union’s information request, with Turecky essentially
reiterating what was stated in the Employer’s letter. According to Graymont’s notes of the
meeting, although Turecky told the Union that Graymont “had no obligation to bargain over any of
the changes made to the work rules” it was “willing to talk to the union and listen to their concerns 15
about any changes.” Union Representative Ralph Houser testified that Turecky “said he received
the . . . request of information from the Union regarding the work rules, and he said that referring
to the management rights that he didn’t have to give us any information and he had no obligation
to bargain over it.”
20
Turecky asked the Union for comments on the changes. The union representatives
objected to the new policies on a number of grounds: generally, the Union was concerned about
the lower number of absences that would lead to the commencement of a disciplinary
progression under the new rules. The Union also complained about the absenteeism policy being
added into the work rules as a Group A violation—the Union wanted the absenteeism policy kept 25
separate. The Union raised an issue with the fact that the under the new policy employees would
have to use personal holidays as part of the new absenteeism policy, and that three times tardy
was now a violation of Group A rules. The Union objected to Group A and B violations being
combined for purposes of progressive discipline (i.e., “pyramided”). The Union raised concern
with the change from the current rules, under which older discipline “fell off” after a calendar year, 30
to the new rules in which older discipline fell off only after there were no violations of any kind for
a one year period. The Union objected to the inclusion of the word “normally” as a modifier to the
policy’s statement that discipline would be “reset” after 12 months of no violations. The Union
objected to the work rule for insubordination, as it was concerned that an employee refusing to
undertake a task that he/she deemed unsafe would be found insubordinate. Finally, the Union 35
wanted clarification on what the rule meant by its prohibition of “unauthorized” use of the
company telephone.
More generally, the Union told the Graymont representatives that it wanted to keep the
current policy. However, the Union said it would entertain shortening the number of days of 40
absence permitted before discipline was initiated.
In response, and after a caucus, Graymont agreed to remove the word “normally” from the
rule’s statement that progressive discipline reset after 12 months of no violations. In response to
the Union’s concern about an employee being charged with insubordination if the refusal to obey 45
involved a safety issue, Graymont pledged not to apply the rule in that manner. This oral pledge
was satisfactory to the Union. Finally, Graymont removed from the rules the prohibition on
unauthorized use of the company telephone. Turecky told the Union that Graymont could not
agree to some of the other changes sought by the Union.
50
JD–74–14
12
The parties dispute the plan going forward at the end of the meeting. Union President
Ripka and testified that “Turecky said we would have another meeting before the
implementation.” Houser echoed this, somewhat less definitively, testifying that “Turecky told us
that we would probably have another meeting for the work rules before March 1st.” Turecky
testified that he believed he told the Union that “we’ll plan to go ahead with the implementation as 5
of March 1st.” Turecky testified that he did not recall saying that there would be another meeting
before March 1.6
On February 27, by email, the Union received the final version of the rules to be
implemented. The only changes from the original revisions provided to the Union on February 10
14, were the removal of the rule prohibiting unauthorized use of the phones, and the removal of
the word “normally” from the explanation following the listing of Group A and Group B violations,
which now stated: “The discipline progression will be reset after an employee works (12)
consecutive months free of any work rule violations.” (In the original version it stated that “The
progression will normally only be reset after an employee works (12) consecutive months free of 15
any work rule violations.”)
The March 1, 2014 implementation, and the August 2014 explanation by the
Employer that it had no information responsive to the Union’s information request
20
There was no follow-up meeting. The Employer did not arrange one. The Union did not
request one. The new revised rules were implemented March 1, 2014.
In August 2014, a Graymont representative, filling in for Turecky, told Ripka and Houser
that with regard to the Union’s February information request, “[T]here wasn’t any written 25
information that we asked for, that they just . . . met and changed the work rules and absenteeism
policy because they thought that there was a better way to run the business.”
On or about August 26, 2014, the Respondent filed an amended answer to the complaint
in this case. The only substantive difference in the amended answer was the Respondent’s 30
response to allegations relating to the refusal to provide information. It reiterated its answer but
added “affirmatively, that, other than the meeting minutes already in the Union’s possession,
Respondent has no information responsive to the Union’s request.” (GC Exh. 1(k) at ¶12.) This
affirmation that “the Respondent has no information responsive to the Union’s information
request” was reiterated in a newly added affirmative defense set forth in the list of affirmative 35
defenses appended to the Respondent’s amended answer (See GC Exh. 1(k) at the fourth
affirmative defense).
At the hearing, Turecky testified that Graymont did not rely on any data or documents in
deciding to make the work rule and absenteeism changes. According to Turecky, the decision to 40
make the changes emerged from internal discussions Graymont management had beginning in
November or December 2013. According to Turecky, the outlook for 2014 was that the plant
would be operating at full capacity and that anticipation, plus goals for a recently implemented
preventative maintenance management program, led management to the “common sense”
conclusion that with the “lenient” absenteeism policy in place Graymont could not achieve its 45
goals.

6I do not believe it necessary to resolve this dispute. It makes no difference to the outcome.
JD–74–14
13
Analysis
The General Counsel alleges that the Respondent violated Section 8(a)(5) of the Act by
unilaterally implementing changes to its disciplinary policy for work rules and to its absenteeism
policy without affording the Union an opportunity to collectively bargain with the Respondent.75
The General Counsel further alleges that the Respondent violated Section 8(a)(5) and (1)
of the Act by unreasonably delaying furnishing the Union with information requested February 17,
2014, regarding the memos, data, or other information or materials that the Respondent relied
upon in making the decision to change the disciplinary and absenteeism policies. Specifically, 10
the Respondent waited until August 2014, to inform the Union that it had no information
responsive to the Union’s request (other than information previously provided in the course of the
parties’ meetings over the years). The General Counsel alleges that this delay was unlawful.
Below, I consider, in turn, each of these allegations. However, before analyzing the 15
General Counsel’s claims, I consider the Respondent’s defense that, in accordance with Collyer
Insulated Wire, 192 NLRB 837 (1971), the Board should defer resolution of the alleged unilateral
change portion of this dispute to the parties’ contractual grievance-arbitration procedure.
I. Deferral20
The Respondent contends that the Board should defer the unilateral change portion of this
case—but not the information-request portion of this case—to the grievance-arbitration
procedures in the parties’ labor agreement. (R. Br. at 29.)
25
In Collyer Insulated Wire, supra, the Board set forth the standard for determining the
circumstances in which an unfair labor practice dispute should be resolved by the contractual
dispute-resolution mechanism contained in a union-employer collective-bargaining agreement.
The Board held that in certain circumstances, where a “dispute in its entirety arises from the
contract between the parties, and from the parties’ relationship under the contract, it ought to be 30
resolved in the manner which that contract prescribes.” Collyer, 197 NLRB at 839.
The instant dispute involves allegations that the Employer violated the Act by unilaterally
changing terms and conditions without bargaining, and allegations that it unlawfully delayed
responding to the Union’s information request about the changes. Without regard to whether the 35
instant dispute would be suitable for deferral if the issue concerned only the unilateral changes to
the discipline and absenteeism policy, “[t]he Board has long held that deferral is inappropriate in
8(a)(5) information request cases.” Chapin Hill at Red Bank, 360 NLRB No. 27, slip op. at 1 fn. 2
(2014) (and cases cited therein).
40
This ends the Respondent’s deferral defense, as “established Board policy also disfavors
bifurcation of proceedings that entail related contractual and statutory questions, in view of the
inefficiency and overlap that may occur from the consideration of certain issues by an arbitrator
and others by the Board.” Avery Dennison, 330 NLRB 389, 390 (1999).
45

7The General Counsel also alleges a derivative violation of Sec. 8(a)(1) of the Act. It is settled
that an employer's violation of Sec. 8(a)(5) of the Act is also a derivative violation of Sec. 8(a)(1)
of the Act. Tennessee Coach Co., 115 NLRB 677, 679 (1956), enf’d. 237 F.2d 907 (6th Cir.
1956). See ABF Freight System, 325 NLRB 546 fn. 3 (1998).
JD–74–14
14
While the Respondent (R. Br. at 29) “recognizes that the Board generally does not defer
information request cases to arbitration,” it points out, citing Clarkson Industries, 312 NLRB 349,
353 (1993), that there are instances where the Board has granted partial deferral—deferring to
one issue in a case while retaining for resolution another. But this exception to the Board’s “non-
bifurcation” policy requires, as the Board found in Clarkson Industries, that the “deferrable issues 5
are not in any way factually or legally interrelated with the [non-deferrable] issues.” Id.
Here, that is manifestly not the case. Indeed, the Respondent’s chief defense to the
information issue allegation is its claim—made to the Union on February 25, 2014, and in its brief
(R. Br. at 24)—that there was no duty to provide the Union information about its decisionmaking 10
with regard to the absenteeism and disciplinary policy because there was no duty to bargain over
these decisions. In other words, its defense to the information-request allegations is “derivative”
of its defense to the unilateral-change allegations. As the Respondent puts it (R. Br. at 24):
An employer’s duty to provide information is derivative of its duty to bargain under 15
Sections 8(a)(5) and 8(d) of the Act. Where a Union has waived its right to bargain
over a particular topic or change to a term or condition of employment, it no longer
is entitled to receive information for this purpose. . . . The Union unequivocally
waived its right to bargain over those particular subjects by agreeing to the
expanded management-rights clause in 2006. As such, the Union had no right to 20
information for that purpose. (Citations omitted.)
Thus, were the Board to defer the unilateral change issue but resolve the information
issue, it moots the prospect that the arbitrator and the Board would each be considering an
overlapping and related question. The Board might have to decide whether the management-25
rights clause constituted a waiver of the Respondent’s duty to bargain over the decision to
change the absenteeism and discipline policy, and thus, as the Respondent claimed, freed it from
its “derivative” duty to provide information to the Union on the subject. The arbitrator would be
deciding whether the management-rights clause created a contractual right by the Respondent to
make the change in absenteeism and discipline without bargaining. The risk of inconsistent 30
results and analysis would be pointed were the Board to defer the unilateral change issue.
On these grounds, I reject the Respondent’s contention that the Board should defer the
unilateral change allegations to the parties’ contractual dispute resolution mechanism.8
35
With regard to the Respondent’s deferral argument, I add one final observation. At trial
the Respondent introduced evidence showing that a December 2011 unilateral implementation on
maximum overtime hours, objected to by the Union, was upheld by an arbitrator who relied upon
the management-rights clause as privileging the Employer to make this change. Witness
testimony established that the Regional Office of the Board deferred to the arbitrator’s decision, 40
and on appeal the General Counsel’s office upheld this action. (Tr. 122.) I note that on brief,

8I note that the Board’s recent decision in Babcock & Wilcox Construction, Co., 361 NLRB No.
132, (2014), modified postarbitral deferral standards and, to some extent, prearbitral deferral
standards. Slip op. at 12–13. However, by its terms, the standards articulated in Babcock &
Wilcox do not apply to cases, such as this one, pending at the time of the issuance of the
decision in Babcock & Wilcox. Slip op. at 13–14. In any event, nothing in Babcock & Wilcox,
were it applied to the instant case, would render deferral appropriate.
JD–74–14
15
while the Respondent recites the facts regarding the overtime arbitration (R. Br. at 13–14), the
matter forms no part of its argument in support of deferral (or its right to unilaterally implement).9
II. The Unilateral Changes
5
The General Counsel alleges that the Respondent had a duty to notify and provide the
Union with an opportunity to collectively bargain before implementing changes to the work rule
disciplinary policies and absenteeism policy.
An employer violates Section 8(a)(5) of the Act if it makes a material unilateral change 10
during the course of a collective-bargaining relationship on matters that are a mandatory subject
of bargaining. "[F]or it is a circumvention of the duty to negotiate which frustrates the objectives of
§ 8(a)(5) much as does a flat refusal." NLRB v. Katz, 369 U.S. 736, 743 (1962). "Unilateral
action by an employer without prior discussion with the union does amount to a refusal to
negotiate about the affected conditions of employment under negotiation, and must of necessity 15
obstruct bargaining, contrary to the congressional policy." Katz, supra at 747. "'The vice involved
in [a unilateral change] is that the employer has changed the existing conditions of employment. It
is this change which is prohibited and which forms the basis of the unfair labor practice charge.'"
Daily News of Los Angeles, 315 NLRB 1236, 1237 (1994) (bracketing added) (quoting NLRB v.
Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970) (court's emphasis)), enf’d. 73 F.3d 406 (D.C. 20
Cir. 1996), cert. denied 519 U.S. 1090 (1997).
Here, there is no dispute, nor could there be, over the General Counsel’s allegation that
employee absenteeism and discipline are mandatory subjects of bargaining.10

9At the hearing, I refused to receive the Respondent’s proffer of documentary evidence
regarding the deferral decision, as I did not and do not believe the rejected documentary
evidence (or even the admitted testimony) relevant to the Respondent’s request for deferral in
this case. The reasons for my view include: (1) the overtime dispute raised a question of
postarbitration deferral, here we have an issue of prearbitration deferral inextricably linked with a
clearly nondeferrable issue; and (2) the General Counsel’s decisions to not issue complaints are
acts of prosecutorial discretion that carry no precedential weight for the Board, and, indeed, are
not even binding on the General Counsel in future cases. Steelworkers (Cequent Towing
Prods.), 357 NLRB No. 48, slip op. at 3 (2011) (rejecting respondent's assertion that it was
justified in maintaining a challenged rule "because the requirement was consistent with the . . .
guidelines issued by the NLRB General Counsel prior to his issuance of the complaint in this
case. . . . [T]he General Counsel's earlier exercise of prosecutorial discretion in declining to issue
complaint does not insulate the requirement from subsequent Board scrutiny upon the issuance
of complaint"); Machinists, Local Lodge 2777 (L-3 Communications), 355 NLRB 1062, 1066
(2010) (rejecting respondent's reliance on the General Counsel's "exercise of prosecutorial
discretion" in not previously issuing complaint).
10Peerless Publications, 283 NLRB 334, 335 (1987) (“rules or codes of conduct governing
employee behavior with constituent penalty provisions for breach necessarily fall well within the
definitional boundaries of "terms and conditions" of employment. . . . [W]e begin with the principle
that labor law presumes that a matter which affects the terms and conditions of employment will
be a subject of mandatory bargaining") (internal quotes omitted); Ciba-Geigy Pharmaceuticals,
264 NLRB 1013, 1016 (1982) (attendance rules are “unquestionably mandatory subjects of
bargaining”), enf’d. 722 F.2d 1120 (3d Cir. 1983); Dorsey Trailers, 327 NLRB 835, 853 fn. 26
(1999) (“An employer’s attendance policy has long been held to be a mandatory subject of
bargaining”), enf’d. in relevant part, 233 F.3d 831 (4th Cir. 2000).
JD–74–14
16
In addition, the Respondent does not assert that its pre-implementation meetings and
discussion with the Union satisfy its statutory duty to collectively bargain. The Respondent does
not advance any such argument, and it would fail if it did, as its meetings with the Union over this
issue were at all times conducted on the basis of the Respondent’s position that it “had no
obligation to bargain over any of the changes,” and with a pre-announced and unilaterally 5
determined intention to change the work rules March 1, notwithstanding any discussions. This is
antithetical to the most basic precepts of the statutory duty to bargain to impasse before
unilaterally implementing a change in a mandatory subject of bargaining. San Diego Cabinets,
183 NLRB 1014, 1020 (1970) (rejecting employer’s contention that because it informed union of
its willingness to meet and discuss matters it had not refused to bargain, where employer10
consistently maintained that it had no duty to bargain: “its professed willingness to discuss this
unlawful position does not excuse the violation”), enf’d. 453 F.2d 215 (9th Cir. 1971).
The Respondent’s defense to the unilateral change allegations is three-fold. First, in a
partial argument, the Respondent contends that the General Counsel has failed to prove that the 15
changes—other than changes to the absenteeism/attendance policy, as to which the Respondent
does not advance this argument—were “material, substantial and significant,” and thus, not
changes rising to significance requiring bargaining. Second, the Respondent argues that the
Union waived any right to bargain over the changes to the absenteeism and disciplinary policies
by not demanding bargaining when it learned of the Respondent’s intention to make the changes 20
in the work rules. Finally, the Respondent argues that the Union waived the right to bargain in a
different way: the Respondent contends that the management-rights clause in the parties’
collective-bargaining agreement privileges the Respondent’s right to make the unilateral changes
without the necessity of bargaining. I consider each argument below.
25
a. The materiality of the unilateral changes
to the work rules and disciplinary rules
As the Respondent correctly points out (R. Br. at 21), and the General Counsel agrees
(GC Br. at 14), for a unilateral change in mandatory subject of bargaining to be unlawful it must 30
be a “material, substantial and significant change.” Berkshire Nursing Home, LLC, 345 NLRB
220, 221 (2005) (finding that a “difference between a 1-minute walk and a 3 to 5-minute walk [for
employees] from the parking lot to the entrance is . . . a relatively minor inconvenience and not
“sufficiently significant difference to warrant imposing a bargaining obligation on the Respondent
before making this change”).35
As to the changes implemented to the absenteeism/attendance policy, the Respondent
stipulated (Tr. 6–7) and agrees on brief (R. Br. at 23 fn. 14) that the changes it made were
material and substantial.
40
However, it contends that the remaining changes to the discipline under the work rules
were not significant enough to trigger a duty to bargain. I do not accept this argument. Indeed,
given the patent significance of the changes it made to the work rules, it is a frivolous argument.
Self-evidently material changes, in addition to the admitted material changes to 45
absenteeism include the following:
--The rules for absenteeism are not only materially changed, but violations of the new
absenteeism rules are now incorporated into the progressive discipline scheme as a Group A
violation. In other words, not only are the changes to the absenteeism policy admitted by the 50
Respondent to be material, but those changes are incorporated and made a constituent part of
JD–74–14
17
the work rules, specifically Group A, and thus, one or two violations of the (new) absenteeism
rules can be combined with other violations to permit more serious disciplinary action than would
have been permitted for the same violations under the old policy.
--Tardiness has gone from a Group A violation that states that “Continued Tardiness will 5
not be permitted,” to a policy on tardiness incorporated into Group A that states that “If you are
tardy more than three (3) times in any twelve (12) month period, each proceeding occurrence will
be considered a violation of Group A–6 (Poor work habits will not be permitted).”
-- Under the old work rules, discipline that was more than a year old would not count 10
toward progressive discipline: the rule read, “The following penalties for infractions of Group A
rules [or Group B rules] will be imposed in one year’s time from the last violation.” Thus, for
purposes of progressive discipline, old violations “fell off” after one year. The new implemented
work rules changed this so that old violations do not “fall off” unless and until an employee works
one year without any violations at all. The new rule reads, “The progressive discipline will be 15
reset after an employee works twelve (12) consecutive months fee of any work rule violations.”
The materiality of this change to an employee who committed two Group A violations in
September, one in October, and one the following August would not be in doubt. Under the old
rule, the employee would start the next November with only one violation on his record for
purposes of progressive discipline, and for the next 12 months would face a one-day suspension 20
should he violate Group A again. However, under the old rule, from November through August of
the next year the employee would face discharge for a new violation of Group A.11
--The new policy provides that “Group A and Group B violations will be combined in
discipline progression” and adds a “matrix” to the rules to show how an employee who commits25
violations of both Group A and Group B violations during the year will be penalized. Under the
old policy, there is no indication that Group A and B violations were combined, and indeed, it
would not seem possible as each group had distinct discipline progressions. The matrix in the
new policy melds the two and this is a significant change that would result in a significant change
in circumstances under the old and the new policies for an employee with, for instance, two 30
Group A violations and two Group B violations.12

11The Respondent asserts (R. Br. at 22) that this revision “clarified” but did not change “the
period within which the progressive discipline steps will be applied (one year).” As a matter of
logic and the English language, that is not the case. Moreover, the argument is inconsistent with
the evidence, specifically the Respondent’s own notes of the February 14, 2014 policy meeting,
at which Turecky “explained why we need to change the Work Rules” [and h]e also highlighted
some of the points which were changed, such as the rolling 12 months.” (Emphasis added.) The
notes then state: “We explained that those currently in the progressive discipline system will be
notified of the changes individually.” (Emphasis added.) These are admissions, albeit
unnecessary ones, as anyone reading the rules can see there are significant changes from the
old rules.
12Again, the Respondent argues that this is not a change—but rather a “clarification.” Its
argument on this score is a particularly tortured. It claims that the General Counsel failed to
prove that this constituted a change—but, as stated above, there is no question that a reasonable
reading of the old rule set out a separate track of progressive discipline for Group A and Group B
violations. The new rules change this. Thus, the rule has changed in a significant way. And
indeed, in the Respondent’s own notes of the February 14, 2014 policy meeting, Turecky
“explained why we need to change the Work Rules” [and h]e also highlighted some of the points
which were changed, such as the . . . combining of A’s and B’s.” This is an admission.
JD–74–14
18
--Under the old rules, “Sleeping on the job” and “Failure to follow proper lock-out”
procedures were each a Group C violation, subjecting an employee to discharge for one offense.
Under the new rules these are Group B violations, which require three B violations for discharge.
While “favorable” (to the sleepy and careless) employee, the change puts other employees at 5
risk, and is, in any event, whether favorable or unfavorable, a material change in the disciplinary
policy.13
Finally, I note that the Respondent’s contention (R. Br. at 23–24) that it doesn’t matter
how the rules are written, because the rules state that “common sense will prevail” and because10
the Respondent has “discretion” under the rules, is an argument that has been rejected by the
Board:
There is no merit to the argument that employees were not held to a standard
because of the discretion and flexibility afforded supervisors in the imposition of 15
discipline for noncompliance. In the first place, whether or not discipline ever is
imposed does not in any way detract from the existence of the standard.
Employees who are told they are expected to produce at a certain clearly defined
rate thereby are subjected to a term and condition of employment of no less an
impact than any other instruction relating to their hours of work or quality of work. 20
That an employer may be lenient in requiring adherence to the rule results in the
creation of a flexible rule, but a rule nonetheless. Secondly, the Respondent in
fact has enforced the new rules, albeit on a selective basis. That very selectivity
itself, rather than nullifying the standard, serves to highlight its existence.
Exposing employees to a sword of Damocles depending upon a supervisor's 25
discretion and good judgment, or lack thereof, makes the weapon of discipline part
and parcel of the performance standard. Respondent's decision to make that
weapon an uncertain one has relationship only to the effectiveness of the rule and
not to its existence.
30
Tenneco Chemicals, 249 NLRB 1176, 1179–1180 (1980).
In similar vein, the Respondent’s claim that we cannot determine if or how the rule
changed until an arbitrator rules on whether it satisfies just cause is a specious claim. The
changes the Respondent made to the rules reflect material and significant changes from the old 35
rules, and notwithstanding a future arbitral ruling that effectively amends the rule, for now the
changes are in place. The rules are mandatory subjects. The rules are bargainable.
Each of the foregoing rule changes are significant and these are changes that, as written,
have a direct impact on employees’ reasonable understanding of their terms and conditions of 40
employment. On their face, and self-evidently, they are not “de minimis” or “immaterial” changes.

13I reject the Respondent’s contention that the change in disciplinary penalty for sleeping at
work or failing to observe certain safety procedures is a nonmaterial change because it lessens
rather than increases the penalty for these offenses. The argument misconceives the statutory
command. Goya Foods of Florida, 351 NLRB 94, 102 fn. 4 (2007) (“The fact that a unilateral
change may be favorable toward employees is of no consequence so long as it has an impact on
bargaining unit employees”).
JD–74–14
19
Absent acceptance of the waiver arguments advanced by the Respondent, to which I now
turn, the changes to the work rules are of the type that fall squarely within the ambit of the matters
as to which the Act contemplates and imposes a duty of collective bargaining.
5
b. Waiver based on the Union’s alleged refusal to request bargaining
The Respondent contends that the Union waived the right to bargain by failing to demand
bargaining when presented with the Respondent’s plan to implement the new work rules. This
argument is meritless. 10
The Union did make an effective demand to bargain. When the Union was presented for
the first time with news of the rule changes at the February 14 policy meeting, Ripka initially
announced that the Union was filing a grievance, but later that day approached Turecky and
retracted this and asked to meet to discuss the work rules. Thus, the same day that the work 15
rules were presented to the Union (after months of secret preparation by the Respondent), the
Union told the Respondent that it wanted to meet to discuss the work rules. This is a request for
bargaining. Armour & Co., 280 NLRB 824, 828 (1986) ("want to discuss your position" is a
request to bargain).
20
And the Union followed this up with a request for information about the Employer’s
decision to change the work rules, action consistent with an effort bargain, and then again, it
came to the February 25 meeting.
There was no waiver for failure to request bargaining. The obstacle to bargaining was not 25
that the Union waived bargaining through its conduct, but rather, that the Employer was refusing
to bargain.14
Given that the Union requested to bargain, there is no need to reach the General
Counsel’s argument that the Respondent presented the decision to implement work rule changes 30
March 1, as a fait accompli, a finding that would preclude a finding that the Union waived its right
to bargain because a “Union cannot be held to have waived bargaining by failing to pursue
negotiations over changes that were presented as a fait accompli.” Tesoro Refining & Marketing
Co., 360 NLRB No. 46, slip op. at 3 fn. 10 (2014) (“the Respondent repeatedly told the Union that
it did not have to bargain concerning the benefit changes, that it had the right to make those 35
changes unilaterally, and that the changes would be implemented on a date certain. In other
words, the Respondent presented the changes to the Union as a fait accompli”).

14The Union’s request to meet must be contrasted with the Employer’s actions. At the
February 14 meeting, Turecky made himself clear: he “proceeded to tell [the Union] that they
were changing the work rules” effective March 1. While willing to discuss the matter, the
Respondent’s meeting with the Union on February 25 was explicitly premised on the position that
“the Company has no obligation to bargain over any of the changes to which your request refers.”
It maintained the position that it had the “sole and exclusive right” to manage the work force,
which in its view included the right to adopt the rules it presented without bargaining. Contrary to
the claims of the Respondent, this is a refusal to bargain. San Diego Cabinets, supra at 1020. A
willingness to meet to talk, but only on a basis on which the Respondent declares itself free from
the strictures and obligations of statutory bargaining, constitutes a refusal to bargain.
JD–74–14
20
c. Waiver through the management-rights
provision of the collective-bargaining agreement
The Respondent’s chief defense is rooted in the contention that in the collective-
bargaining agreement the Union waived the right to bargain over the change in work rule 5
discipline and absenteeism policy. Graymont contends that the parties’ collective-bargaining
agreement—specifically, the management-rights clause, art. 1 Sec. 8—establishes the Union’s
waiver of the right to bargain over such changes. To this, the Respondent adds an argument that
the negotiation of the management-rights clause in 2006, as well as the Union’s effort to change it
in 2014 negotiations after the Employer’s unilateral actions, provides evidence that the clause10
constitutes a waiver of the Union’s right to bargain over the unilateral changes at issue here.
The outcome of this dispute is determined by the Board’s “clear and unmistakable waiver”
rule. The Board applies the “the clear and unmistakable waiver standard in determining whether
an employer has the right to make unilateral changes in unit employees’ terms and conditions of 15
employment during the life of the collective-bargaining agreement.” Provena St. Joseph Medical
Center, 350 NLRB 808, 810 (2007). Accord: Baptist Hospital of East Tennessee, 351 NLRB 71,
71–72 (2007) (applying clear and unmistakable waiver standard to find unilateral change lawful
based on contractual provision); Verizon North, Inc., 352 NLRB 1022 (2008) (applying “clear and
unmistakable waiver” standard to employer’s claim that contract language regarding Family and 20
Medical Leave Act was defense to 8(a)(5) unilateral change allegation).
Notably, the Respondent does not dispute that this is the correct rule to apply. (See R. Br.
at 15–17.)
25
Under this rule, waivers of statutory rights are not to be lightly inferred, but instead, must
be “clear and unmistakable.” Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). This
means, as the Supreme Court has explained, “we will not infer from a general contractual
provision that the parties intended to waive a statutorily protected right unless the undertaking is
‘explicitly stated.’" Metropolitan Edison, supra at 708. In the words of the Board: 30
To meet the “clear and unmistakable” standard, the contract language must be
specific, or it must be shown that the matter claimed to have been waived was fully
discussed by the parties and that the party alleged to have waived its rights
consciously yielded its interest in the matter.35
Allison Corp., 330 NLRB 1363, 1365 (2000).
Thus, in a unilateral-change case, a collectively-bargained provision may be deemed to
constitute a waiver by the union of the employer’s duty to bargain over the conduct, but only if the 40
contract’s text, or the parties’ practices and bargaining history “unequivocally and specifically
express their mutual intention to permit unilateral employer action with respect to a particular
employment term, notwithstanding the statutory duty to bargain that would otherwise apply.”
Provena, supra at 811. This is a standard that is purposely tilted in favor of requiring collective
bargaining: “The standard reflects the Board's policy choice, grounded in the Act, in favor of 45
collective bargaining concerning changes in working conditions that might precipitate labor
disputes.” Provena, supra at 811.
In conducting its analysis, the Board looks to the precise wording of the relevant contract
provisions in determining whether there has been a clear and unmistakable waiver. Id. Proof of 50
a contractual waiver is an affirmative defense and it is the Respondent’s burden to show that the
JD–74–14
21
contractual waiver is explicitly stated, clear and unmistakable. AlliedSignal Aerospace, 330
NLRB 1216, 1228 (2000), review denied, 253 F.3d 125 (2001); General Electric, 296 NLRB 844,
857 (1989), enf’d. w/o op. 915 F.2d 738 (D.C. Cir. 1990).
With this standard in mind, we turn to the language of the management-rights provision. 5
In support of its claim of waiver, the Respondent (R. Br. at 16) relies upon the portion of the
management-rights clause that states:
The Employer retains the sole and exclusive rights . . . to discipline and discharge
for just cause, to adopt and enforce rules and regulations and policies and 10
procedures; [and] to set and establish standards of performance for employees[.]
The question is whether this language supports the view that the parties specifically and
unequivocally expressed a mutual intention to permit unilateral employer action with respect to
the particular employment terms at issue here: changes to absenteeism, and changes to the level 15
of discipline and progressive discipline meted out for violation of company-imposed rules.
Given the standard, the answer is, quite clearly, no. There is no reference in the
management-rights clause to attendance, or absenteeism, or changing the standards or
progression for discipline. What is in the management-rights clause is a general right “to 20
discipline and discharge for cause” and a general right “to adopt and enforce rules and
regulations and policies and procedures.”
As the Board has explained with regard to a similar management right “to establish and
enforce shop rules,” this is a “general contractual provision similar to a broadly worded 25
management-rights clause, from which we will not infer clear and unmistakable waiver.”
California Offset Printers, 349 NLRB 732, 733 (2007) (reversing judge for relying on “general
authority” of employer under contract to “establish and enforce shop rules” to “discipline or
discharge for cause” and “to establish work schedules and make changes therein,” to find waiver
of right to bargain over establishment of rule requiring employees to be on call for sudden 30
schedule changes). Indeed, the Board has held that a general right to make rules or policies
does not waive the right to bargain over the specific subject of rules on attendance. Ciba-Geigy
Pharmaceuticals , 264 NLRB 1013, 1016 (1982) (employer’s authority under management-rights
clause to continue and change reasonable rules and regulations as it may deem necessary and
proper does not evidence “that the Union waived its right to bargain about absentee rules” as the 35
management-rights clause makes no reference to rules on absenteeism or tardiness).
As to the right to discipline and discharge, it is just that—it “allows the employer to function
in accordance with existing contractually agreed-upon procedures, not to change them.”
California Offset Printers, supra at 734. Indeed, the limitation in a contract, such as this one, of 40
the employer’s right to discipline “for cause” has been held by the Board as evidence contrary to
the waiver of bargaining on the subject. Windstream Corp., 355 NLRB 406 (2010), incorporating
352 NLRB 44, 50 (2008) (“If anything, such language shows the unions interest in the fairness of
the Respondent's application of discipline”).
45
Notably, I agree with the reasoning of the Board in Kennametal, Inc., 358 NLRB No. 68
(2012), a case cited by both the Respondent and the General Counsel, but which is non-
precedential in light of NLRB v. Noel Canning, __ U.S. __, 134 S.Ct. 2550 (2014). Although not
precedential, the reasoning of Kennametal is persuasive and I adopt it. In Kennametal, supra,
the collective-bargaining agreement explicitly gave the employer the right “to continue to make 50
reasonable provisions for the safety and health of its employees” as well as “establish”
JD–74–14
22
“reasonable safety and health rules.” The Board found that this constituted a waiver of the right
to bargain over safety rules. However, notwithstanding this waiver, the Board found that
discipline regarding safety rules had not been waived. In other words, a contractual waiver as to
safety rules, premised on the employer’s explicit and unambiguous right in the contract to make
safety rules, did not extend to the right to alter the progressive disciplinary rules for safety 5
violations as nothing “in the collective-bargaining agreement permits the Respondent to
unilaterally change the disciplinary consequences for employees engaging in [violation of safety
rule] conduct.” 358 NLRB No. 68, slip op. at 3.
The reasoning is instructive for our case. And it demonstrates that the instant case is 10
even less suitable for finding waiver than Kennametal. In Kennametal, the contract gave the
employer the specific and express right to establish rules regarding the specific employment term
at issue—in that case, safety rules. Still, even that specific predicate contractual right to establish
safety rules in Kennametal did not demonstrate waiver of the right to bargain over the
establishment or changing of discipline regarding the very safety rules that the employer was free 15
to establish unilaterally. In our case, there is also no explicit right in the contract for the employer
to make disciplinary rules or, even more to the point, to “unilaterally change the disciplinary
consequences for employees engaging in” any specific type of conduct. And indeed, in our case,
there is not even an explicit and specific predicate right to establish the employment terms at
issue (e.g., absenteeism, attendance, or progressive discipline). Accordingly, if no waiver of the 20
right to bargain about changing discipline for safety issues can be found in Kennametal, none
can be found here to change discipline based on a contract that provides neither for an explicit
right to make disciplinary rules, or even (unlike in Kennametal) for establishing the specific
employment terms at issue in the case.
25
The cases relied upon by the Respondent support the General Counsel’s case. The
Respondent relies upon United Technologies Corp., 287 NLRB 198 (1987), calling it “nearly
identical” to the instant case. However, it is not. The management-rights clause in that case
explicitly gave the employer “the right to make and apply rules and regulations for production,
discipline efficiency, and safety.” The management-rights clause in this case does not grant that 30
right (much less waive bargaining about) making and applying disciplinary rules. As stated
above, it is well settled that a general right “to discipline” does not constitute a waiver of the right
to bargain over the making or changing of disciplinary rules. In a related argument (R. Br. at 17),
the Respondent argues that in the management-rights clause
35
[t]he references to the Company’s exclusive right to “discipline and discharge for
just cause” and to “adopt and enforce rules and regulations and policies and
procedures” are contained within the same clause of the management-rights
provision, set off by semi-colons, which indicates that they are intended to be read
together.40
In fact, it is the semi-colons that separate the general right to make rules and the general right to
discipline and thereby demonstrate that these are separate enumerated management rights. By
contrast, the management-rights clause in United Technologies, supra, expressly provided for
“the right to make and apply rules and regulations for . . . discipline.” (Emphasis added). The 45
Respondent simply cannot fit this case within the pigeon hole marked United Technologies.
Provena Hospital also does not support the Respondent’s argument. In that case, the
Board agreed with the part of the employer’s argument that claimed that the union had waived the
right to bargain about a new attendance/tardiness procedure where the contract gave the 50
employer the right—along with the right to make rules of conduct and to discipline/discharge—to
JD–74–14
23
"change reporting practices and procedures and/or to introduce new or improved ones."
However, in this case there is no specific right in the management-rights clause to “change
reporting practices and procedures” or any other reference to attendance or tardiness. No such
specific right pertaining to attendance rules is provided for in the management-rights clause.15
5
At the same time, the parties’ bargaining history provides absolutely no support for the
Respondent’s waiver argument. The existing management-rights provision was introduced
during 2006 negotiations and it was far more detailed and extensive in its setting forth of
management rights than the predecessor clause. However, by no witness’ account was there
any discussion of discipline, absenteeism, or the right under the management-rights clause (or 10
under any clause) to change such rules. This precludes a finding that “the matter claimed to have
been waived was fully discussed by the parties and that the party alleged to have waived its
rights consciously yielded its interest in the matter.” Allison Corp., 330 NLRB 1363, 1365
(2000).16
15
Notably, with specific regard to the attendance/absenteeism policy, the bargaining history
is directly in opposition to the Respondent’s waiver claim. The absenteeism policy in effect
before the March 2014 implementation was not only the product of extensive bargaining between
the parties, but was enacted in 2005 based on an explicit written agreement between the Union
and the Respondent. The 2005 Absenteeism policy begins with the preface: “The Company and 20
the Union Committee have agreed to the following terms:”—This is the opposite of a history of
waiver of bargaining rights. Rather, the history is of the collective bargaining of issues related to
attendance rules and discipline for violation of them. And, consistent with this, in late 2006 when
Graymont approached the Union with a proposal to change the discipline for work rules to make
them stricter, the Union objected on grounds that labor law required bargaining before there could 25
be any change. The proposals were not implemented.
Finally, the Respondent advances the specious argument that the Union’s effort in June
2014 negotiations to negotiate changes to the management-rights clause evidences that the

15The Respondent also relies on Quebecor World Mt. Morris II, 353 NLRB 1 (2008), a two-
member Board case that was never adopted by the Board after New Process Steel, 560 U.S. 674
(2010). Thus, the case is of no precedential force. However, it too is easily distinguishable: the
Board Members found a waiver of the union’s right to bargain over implementation of a
“performance improvement procedure (PIP) procedure where the management right to discipline
was combined with a right on the employer’s part to “establish and apply reasonable standards of
performance and rules of conduct.” The Board Members found that this language authorized the
unilateral establishment and application of disciplinary procedures for work-performance issues,
which they found the PIP to be. But in the instant case, the unilateral changes involve
attendance, tardiness, and their place in and the progressive discipline scheme generally. The
contract’s language does not clearly and unmistakably endorse any unilateral right of action on
these subjects.
16The Respondent proposes (R. Br. at 18–19) to turn the “clear and unmistakable” standard
on its head when it argues that because during the 2006 negotiations the Union succeeded in
having the Employer remove certain express rights from the proposed management-rights clause
(i.e., the right to change shift duration and the right to hire subcontractors), this means that the
Union has waived the right to bargain over every other alleged management right—whether or
not discussed and whether or not explicitly and specifically stated. This is essentially the
reasoning of the judge that the Board rejected and reversed in California Offset Printers, supra.
JD–74–14
24
Respondent had the right to make the unilateral changes all along. In these negotiations,
occurring in the aftermath of the Respondent’s unilateral action, the Union (unsuccessfully)
proposed changing the management-rights clause to explicitly prohibit unilateral action with
regard to work rules.
5
The Respondent reasons: “These changes would be wholly unnecessary if, as the Union
and the General Counsel now contend, the Company did not possess the right to make such
changes in the first place.” But it is also the case that the Union’s proposed contract revisions
would have been wholly unnecessary if the Respondent had not relied upon the existing contract
language to make unlawful unilateral changes. 10
The Respondent’s argument assumes what it must prove. In other words, the
Respondent’s argument works only if you first assume that under the existing management-rights
clause the Union had no right to bargain about the unilateral changes undertaken by the
Respondent. But I have found that this is not the case. And in the context of unlawful unilateral 15
action by the Respondent, the Union’s subsequent effort to amend the management-rights clause
reasonably cannot be understood as an admission but, rather, as an effort to adapt to the
Respondent’s unremedied unlawful conduct.
A final note about the complaint: The complaint suggests that the Respondent’s violation 20
began on or about February 25, 2014, which is the date that the Respondent announced that it
was refusing to bargain about the changes in policy it planned to implement March 1, 2014.
However, on brief, counsel for the General Counsel contends that the violation was the unilateral
implementation, which occurred on March 1, 2014. I think the brief is right. Absent the
implementation, there was no statutory duty to bargain. These events occurred during the term of 25
an existing labor agreement. Had the Respondent not implemented changes to the attendance
and disciplinary policies, there was no separate duty to bargain over these issues at this time.
Had the Employer threatened but in the end not implemented changes to the policies (see, e.g.,
events in late 2006), there would have been no bargaining violation. The violation in this case
was the unilateral implementation without affording the Union an opportunity to collectively 30
bargain.
III. The delay in providing information
As referenced above, counsel for the General Counsel has moved to amend the 35
complaint to allege that the Respondent unlawfully delayed providing requested information to the
Union. The Respondent has not objected to the amendment, which I have granted, and which, in
any event, is not required under Board precedent with regard to such closely-related allegations.
Care Manor of Farmington, 318 NLRB 330 (1995).
40
In August 2014, the Respondent announced that it had nothing responsive to the Union’s
request (other than the policy meeting notes that the Union already had in its possession).
Before this, since the Union’s February 25, 2014 information request, the Respondent had
maintained a refusal to provide the Union information on grounds that, having no obligation to
bargain over the decision to implement changes to the absenteeism and disciplinary policies, it45
similarly had no obligation to furnish information regarding the decision.17

17The Respondent’s February 25, 2014 response to the Union also contained the independent
(but unexplained) claim that “in any event, there is no obligation to provide any information
regarding internal management discussions leading to such a discussion.” However, neither at
trial nor on brief does the Respondent advance this argument as a rationale for noncompliance.
JD–74–14
25
But for a complication I will arrive at shortly, all of this seems like a straightforward
violation of the Act.
An employer, on request must provide a union with information that is relevant to its 5
carrying out its statutory duties and responsibilities in representing employees. NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967); Dodger Theatricals, 347 NLRB 953, 867 (2006). The duty to
provide information includes information relevant to contract administration and negotiation.
Pulaski Construction Co., 345 NLRB 931, 935 (2005).
10
The duty to furnish information requires a reasonable good-faith effort to respond to the
request as promptly as circumstances allow. Good Life Beverage Co., 312 NLRB 1060, 1062 fn.
9 (1993). ”An unreasonable delay in furnishing such information is as much of a violation of
Section 8(a)(5) of the Act as a refusal to furnish the information at all.“ Valley Inventory Service, 15
295 NLRB 1163, 1166 (1989). “Absent evidence justifying an employer's delay in furnishing a
union with relevant information, such a delay will constitute a violation of Section 8(a)(5)
inasmuch ‘as the Union was entitled to the information at the time it made its initial request, [and]
it was Respondent's duty to furnish it as promptly as possible.’” Woodland Clinic, 331 NLRB 735,
737 (2000) (Board’s brackets), quoting, Pennco, Inc., 212 NLRB 677, 678 (1974).20
I have rejected the Respondent’s defense that it had no duty to bargain over the decision
to change the absenteeism and disciplinary policy. Its “derivative” defense—that it had no
obligation to provide information on these decisions because it had no obligation to bargain—is,
accordingly, also rejected as baseless. There is no reasonable grounds identifiable in the record 25
for the delay in telling the Union that it had no responsive information. The Respondent could
have determined, and likely did determine within days that it had no documents responsive to the
Union’s request. The Union was entitled to know this forthwith.18
There is, however, a problem. Somewhat remarkably, in my estimation, in Raley’s 30
Supermarkets & Drug Centers, 349 NLRB 26, 28 (2007), a Board majority held that the failure to
inform the union that requested information does not exist is not a violation that can be found
based on a complaint allegation that generally states that the respondent has unlawfully failed to
provide (or delayed in providing) requested information.
35
According to the Board in Raley’s, at least where the General Counsel is on notice before
trial that the respondent is claiming that the requested information does not exist, the General
Counsel must amend the complaint to reflect this, or face dismissal of the complaint.
40
___________________________
In addition, the Respondent took the position that as to Union’s request for minutes of policy
meetings, it did not need to provide such documents because the Union already had copies of
them. The General Counsel does not argue that the failure to provide the Union with (additional
copies) of policy meeting minutes forms a part of the violation.
18I note that the General Counsel does not claim that the Respondent, in fact, has documents
responsive to the Union’s request. In other words, the General Counsel accepts the
Respondent’s contention that the Respondent did not rely on any responsive information in
making the decisions at issue.
JD–74–14
26
In Raley’s, the complaint alleged that since a certain date, the employer had failed and
refused to provide the union with information allegedly in an investigator’s report. The Board
majority, in response to the arguments of their dissenting colleague, explained that
At no time, even after learning that such a report did not exist, did the General 5
Counsel amend the complaint to allege that the Respondent violated the Act by
failing to timely inform the Union that there were no such reports. Accordingly, we
do not find a violation on that basis.
Our colleague would construe the complaint to allege precisely the opposite of 10
what it does allege. As noted above, the complaint alleges that the Respondent
failed to furnish a document, viz., a copy of the investigator's report. The
complaint therefore implicitly alleges that the report exists and that the Respondent
refuses to furnish it. Further, we assume arguendo that the allegation can be
broadly construed to cover an untimely furnishing of the report or an incomplete 15
furnishing of the report. However, it is an unreasonable stretch to convert this
allegation into its opposite, i.e., that the report does not exist, and that the
Respondent failed to inform the Union of this fact. If the General Counsel wanted
to allege this as an alternative pleading, he could have done so. He did not. We
therefore decline to find a violation on this basis.20
349 NLRB at 28.
The unavoidable holding of Raley’s is that where the General Counsel learns prior to the
hearing that the Respondent is taking the position that it did not possess anything responsive to 25
the information request, the complaint must be amended to explicitly allege a refusal (or delay) in
conveying to the Union the fact of the lack of existence of responsive information.
The situation here is essentially indistinguishable from that in Raley’s. One might
entertain the argument that here, unlike in Raley’s, the complaint allegation did not refer to a 30
specific identifiable document that the Respondent had failed to provide. This might be said to
make less apposite the Board’s conclusion in Raley’s that the complaint “therefore implicitly
alleges that [the specific information] exists and that the Respondent refuses to furnish it.”
However, this is a thin and unsatisfying reed of a distinction.
35
Under the reasoning of Raley’s, at least where the facts are known to the General
Counsel before trial, the respondent’s unlawful failure to provide, or the delay in providing, the
news that information does not exist must be based on a complaint allegation specifically
asserting a failure to inform (or delay in informing) the union that the requested documents do not
exist. See Albertson’s, Inc., 351 NLRB 254, 255 (2007) (reversing judge’s finding of violation 40
because “[u]nder the standard set forth in Raley’s Supermarkets, the General Counsel must
specifically allege that the failure to inform the union that the requested documents do not exist
(or the delayed communication of that fact) was unlawful. The instant complaint, which does not
even mention the nonexistence of the documents, plainly fails to satisfy this pleading
requirement”) (citation omitted). 45
JD–74–14
27
While I may agree that the dissent in Raley’s has the better of the argument,19 the
reasoning of the Board’s decision in Raley’s must be followed until overruled. Waco, Inc., 273
NLRB 746, 749 fn. 14 (1984) ("We emphasize that it is a judge's duty to apply established Board
precedent which the Supreme Court has not reversed. It is for the Board, not the judge, to
determine whether that precedent should be varied.") (citation omitted). Here, the complaint 5
allegation, as amended, alleges only a delay in providing information—notwithstanding the
Respondent’s pretrial declaration that it had no information responsive to the Union’s request.
Accordingly, I find no violation as to the delay in providing information, as alleged.
CONCLUSIONS OF LAW 10
1. The Respondent Graymont PA, Inc., is an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Charging Party, Local Lodge D92, United Cement, Lime, Gypsum and Allied Workers, a 15
Division of International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers
and Helpers, AFL–CIO (Union) is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Union is the designated collective-bargaining representative of the following bargaining 20
unit of the Respondent’s employees:
Employees in the Bellefonte Plant located on North Thomas Street and the
Pleasant Gap plant located on Airport Road. . . . The term “employees” as used in
this Agreement will not include salaried foreman and office employees.25
4. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing
changes to its work rule disciplinary policies and absenteeism policies without affording the
Union an opportunity to collectively bargain.
30
5. The unfair labor practices committed by the Respondent affect commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
35
Having found that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist there from and to take certain affirmative action designed
to effectuate the policies of the Act.

19In Raley’s, the dissent explained:
[t]he notion that an employer's failure timely to indicate that it lacks requested
information is somehow distinguishable from a failure to provide available
information does a disservice to the Act. The purpose of the Act's requirement that
parties provide each other with relevant information is to maximize communication
between them and so minimize industrial strife. For this purpose, it is elementary
that parties must not only provide requested information, but also timely inform
each other when they have none to provide. The failure to do either is obviously a
violation of the duty to provide relevant information.
349 NLRB at 30 (original emphasis).
JD–74–14
28
Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally implementing changes to its work rule disciplinary and absenteeism policies without
affording the Union an opportunity to bargain, the Respondent shall be ordered, to rescind those
changes encompassed within the implementation and restore the status quo ante. The 5
Respondent shall be required to rescind all discipline issued based in any way upon the
unilaterally changed portions of the work rules or attendance policy and shall make any
employees adversely affected by the unlawful changes whole for any loss of earnings and other
benefits suffered as a result of the unlawful changes. The make-whole remedy shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest, as 10
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), and compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). In accordance with
Tortillas Dan Chavas, 361 NLRB No. 10 (2014), the Respondent shall compensate any
employees adversely affected by the unlawfully changed policies for the adverse tax
consequences, if any, of receiving lump sum backpay awards, and file a report with the Social 15
Security Administration allocating the backpay awards to the appropriate calendar quarters for
each employee.
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted at the Respondent's facilities wherever the notices 20
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. In the
event that, during the pendency of these proceedings the Respondent has gone out of business 25
or closed a facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since March 1, 2014. When the notice is issued to the Respondent, it
shall sign it or otherwise notify Region 6 of the Board what action it will take with respect to this
decision.30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended20
ORDER35
The Respondent, Graymont PA, Inc., Pleasant Gap, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:40
(a) Changing the terms of conditions of employment of its unit employees, including,
but not limited to, unilaterally implementing changes to its absenteeism and/or
work rules disciplinary policies without first notifying the Union and giving it an
opportunity to collectively bargain. 45

20If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
JD–74–14
29
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
5
(a) At the request of the Union, rescind the unilateral changes to the absenteeism and
work rules disciplinary policies and/or the enforcement of those changed policies,
and restore the status quo ante with regard to these changes.
(b) Rescind all discipline issued to employees based in any way upon the unilaterally 10
changed portions of the policies and make any employees adversely affected by
the unlawful changes whole for loss of earnings and other benefits suffered as a
result of the unlawfully imposed changes to policies, in the manner described in
the decision.
15
(c) Before implementing any changes in wages, hours, or other terms and conditions
of employment of unit employees, notify and, on request, collectively bargain with
the Union as the exclusive collective-bargaining representative of employees in the
following bargaining unit:
20
Employees in the Bellefonte Plant located on North Thomas Street
and the Pleasant Gap plant located on Airport Road. . . . The term
“employees” as used in this Agreement will not include salaried
foreman and office employees.
25
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including
an electronic copy of such records if stored in electronic form, necessary to 30
analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facilities in Pleasant Gap,
and Bellefonte, Pennsylvania copies of the attached notice marked "Appendix." 21
Copies of the notice, on forms provided by the Regional Director for Region 6, 35
after being signed by the Respondent's authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or 40
other electronic means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these 45

21If 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 National 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."
JD–74–14
30
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees employed by the
Respondent at any time since March 1, 2014.
(f) Within 21 days after service by the Region, file with the Regional Director for 5
Region 6 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the
Act not specifically found.10
Dated, Washington, D.C. December 30, 2014

15
___________________
David I. Goldman
U.S. Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT change the terms of conditions of your employment, including the absenteeism
and the work rules disciplinary policies, without first notifying the Union and giving it an
opportunity to collectively bargain.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
WE WILL rescind the unilateral changes we made to the absenteeism and work rules disciplinary
policies.
WE WILL rescind any discipline issued to employees based in any way upon the unilaterally
changed portions of the absenteeism and/or work rules disciplinary policies and make any
employees adversely affected by the unlawful changes whole for any loss of earnings and other
benefits suffered as a result of the unlawful unilateral changes.
WE WILL notify, and upon request collectively bargain with the Union before implementing any
changes in wages, hours, or other terms and conditions of your employment.
GRAYMONT PA, INC.
(Employer)
Dated By
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1000 Liberty Avenue, Federal Building, Room 904, Pittsburgh, PA 15222-4111
(412) 395-4400, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/06-CA-126251 or by using the QR code below.
Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th
Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (412) 395-6899.