San Antonio Portland Cement Co.

National Labor Relations Board - Board Decisions

Nov 12, 1985

277 N.L.R.B. 309 (N.L.R.B. 1985)

SAN ANTONIO PORTLAND CEMENT CO. 309
Alamo Cement Company d/b/a San Antonio Port-
land Cement Company and United Cement,
Lime and Gypsum Workers International
Union, AFL-CIO. Case 23-CA-8880
12 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 15 July 1983 Administrative Law Judge
Leonard M. Wagman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed briefs in support of the administrative
law judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
AMENDED REMEDY
The judge found that the initial certification year
should be construed to begin on the date the Re-
spondent commences to bargain in good faith. We
find no basis for a complete renewal of the certifi-,
cation year and requiring the Respondent to bar-
gain for another full year. Contrary to the Re-
spondent's contention, however, a 3-1/2-week ex-
tension of the certification year would be inad-
equate for the parties to engage in meaningful bar-
gaining. Thus, we shall require that the Respondent
bargain for a reasonable time, under all the circum-
stances, after all unfair labor practices have been
remedied, including those in Cases 23-CA-7182, et
al., 23-CA-9122, 23-CA-9279, and 23-CA-9866.
See Eastern Maine Medical Center, 253 NLRB 224,
248 fn. 32 (1980); Federal Pacific Electric Co., 215
NLRB 861 (1974).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Alamo
Cement Company, d/b/a San Antonio Portland
Cement Company, San Antonio, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Sexton, Jr., Esq. (Fulbright & Jaworkki), of San Anto-
nio, Texas, for the Respondent.
Stephen B. Rubin, Esq. (Ashner, Goodstein, Pavalon,
Gittler, Greenfield & Segall, Ltd.), of Chicago, Illinois,
for the Charging Union.
DECISION
STATEMENT OF THE CASE
LEONARD M . WAGMAN , Administrative Law Judge.
On a charge filed by United Cement, Lime and Gypsum
Workers International Union , AFL-CIO (the Union) on
April 12, 1982 , the Regional Director for Region 23
issued a complaint dated June 4, 1982 , which was there-
after amended on August 5, 1982, and again at the hear-
ing. The amended complaint alleges that the Company,
Alamo Cement Company, d/b/a San Antonio Portland
Cement Company, had violated Section 8(a)(1) and (5) of
the National Labor Relations Act, by making changes in
the wages, hours, and conditions of employment of its
production and maintenance employees without bargain-
ing collectively with the Union , which was the exclusive
collective -bargaining representative of those employees.
In its answer , as amended , the Company denied commis-
sion of all the alleged unfair labor practices.
On the entire record , including my observation of the
witnesses , and after due consideration of the briefs filed
by the General Counsel , the Union , and the Company,
respectively , I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a Texas corporation with its principal
office and place of business at San Antonio, Texas,
where it processes and manufactures cement. The Com-
pany annually purchases and receives at its San Antonio,
Texas plant products, goods, and materials valued in
excess of $50,000 directly from locations outside the
State of Texas. From the foregoing admitted commerce
data, I find that the Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
In its answer to the complaint, the Company denied
that the Union was a labor organization within the mean-
ing of Section 2(5) of the Act. However, in its answer,
the Company admitted that the Union had been certified
by the Board as the exclusive collective-bargaining rep-
resentative of the Company's production and mainte-
nance employees. I also take judicial notice of the
Board's findings in San Antonio Portland Cement Co., 240
NLRB 1168, 1169 (1979),1 that the Union "is a labor or-
ganization within the meaning of Section 2(5) of the
Act" and I adopt that finding in the instant case.
Guadalupe Ruiz, Esq., for the General Counsel.
Robert S. Bambace, Esq., and R. Michael Moore, Esq.
(Fulbright & Jaworski), of Houston, Texas, and Paul E.
i I find from the stipulation of the parties in the instant case that the
Company, Alamo Cement Company, d/b/a San Antonio Portland
Cement Company, is a successor to San Antonio Portland Cement Com-
pany
277 NLRB No. 33
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
(1) Whether the Company on or after July 27, 1981,
had an obligation to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of its production and maintenance employees. (2)
Whether the Company violated Section 8 (a)(5) and (1) of
the Act by making unilateral changes in wages, hours,
and other terms and conditions of employment without
giving the Union prior notice and an opportunity to ne-
gotiate and bargain about those changes.
B. The Union 's Status as the Exclusive Collective-
Bargaining Representative of the Company's
Production and Maintenance Employees
1. The facts
On September 8, 1978, the Board certified the Union
as the exclusive collective-bargaining representative of a
unit of the Company's employees described as follows:
All production and maintenance employees, includ-
ing all employees in the Quarry Department, Ship-
ping Department , Kiln Department , Finishing Mill
Department, Slurry Mill Department, Powerhouse
Department , Plant Office Department, Maintenance
and Repair Department, Electrical Department,
Laboratory Department, Oiler Subsection, as well
as plant clerical employees, leadmen, truck drivers,
and mechanics , but excluding all other employees,
including office clerical employees, order clerks,
guards, watchmen, and supervisors as defined in the
Act, employed by the Respondent at its San Anto-
nio, Texas plant.
However, the Company refused to honor the certifica-
tion.
On March 5, 1979, the Board in San Antonio Portland
Cement Co., supra, 240 NLRB at 1170, found that the
Company had violated Section 8(a)(5) and (1) of the Act
since September 25, 1978, by refusing to bargain with the
Union for the employees in the unit described above, and
by failing to furnish bargaining information requested by
the Union. To remedy the Company's unfair labor prac-
tices, the Board provided as follows (ibid.):
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date [Company] com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit.
The Board's Order was enforced in NLRB v. San Anto-
nio Portland Cement Co., 611 F.2d 1148 (5th Cir. 1980),
cert. denied 449 U.S. 844 (1980).
On May 21, 1980, Administrative Law Judge James T.
Barker issued a decision in Board Cases 23-CA-7182, et
al. (JD-(SF)- 155-80), in which he found , inter alia, that
following the Board-held election on March 17, 1978, in
the unit described above, and during 1979, the Compa-
ny's predecessor made unilateral changes regarding
wages and conditions of employment without bargaining
collectively with the Union and thereby violated Section
8(a)(5) and (1) of the Act. Judge Barker 's decision is cur-
rently under Board review.
By letter of August 4, 1980, the Union requested that
the Company meet with it to begin bargaining on the
morning of August 22, 1980, at the office of Company
Vice President William Hopper. On August 6, 1980, the
Union's vice president, Paul H. Balliet, and Company
Counsel Robert S. Bambace agreed that the first bargain-
ing meeting would take place at the local office of the
Federal Mediation and Conciliation Service. Thereafter,
by letter of August 11, 1980, Bambace agreed that the
initial bargaining session would occur on the morning of
August 22, 1980.
As agreed , the parties had their first bargaining session
on the morning of August 22, 1980. Thereafter, the
Union and the Company had a number of bargaining ses-
sions. The last face-to-face bargaining session between
the parties occurred on July 10, 1981. The negotiations
did not result in a collective -bargaining agreement.
On July 23, 1981, Company employee Julio R. Perez
Jr. filed a decertification petition in Case 23-RD-491,
challenging the Union's status as bargaining representa-
tive of the Company's employees. On learning that the
decertification petition had been filed, the Company sus-
pended negotiations with the Union which had been
scheduled for July 28 and 29, 1981. However, when ad-
vised by an official of the Board 's Regional Office that
the petition was untimely filed, the Company and the
Union agreed to reschedule their negotiations for August
6 and 7. Thereafter, the Board's Regional Office advised
Perez that his petition was untimely - and advised him to
withdraw it. On July 30, 1981, employee Perez withdrew
the petition in Case 23-RD-491.
Pursuant to advice he received on July 30, from a
member of the Regional Office staff, employee Perez
waited until August 5, 1981, to file his second decertifi-
cation petition in Case 23-RD-492. That same day, a
copy of this petition reached the Company. Immediately,
the Company telephoned a member of the Regional staff
in San Antonio and received assurance that the second
petition had been timely filed. On receiving this advice,
the Company canceled the bargaining sessions scheduled
for August 6 and 7, 1981. The Company has since de-
clined to negotiate further with the Union.
Thereafter, on August 24, 1981, the Company chal-
lenged the Union 's representative status by filing a peti-
tion in Case 23-RM-389. The Company filed its petition
in light of signatures of 70 employees , supporting the de-
certification petitions . The 70 signatures constituted a
majority of the 131-employee unit.
On October 19, 1981 , the Regional Director for
Region 23 dismissed the petition in Cases 23-RD-492
and 23-RM-389 on the ground that they "were filed
during the certification year and are, therefore, untimely
filed ." In his dismissal letter, the Regional Director
noted that on each occasion after learning of Perez' de-
SAN ANTONIO PORTLAND CEMENT CO.
certification petition, the Company had declined to bar-
gain further with the Union. Accordingly, the Regional
Director advised the Company that "any period during
which the [Company] declined to bargain with the
Union" would not be included in computing the certifi-
cation year.
2. Analysis and conclusions
Under settled principle, the Union's majority status
was irrebuttably presumed for a period of 1 year follow-
ing its certification by the Board, on September 8, 1978,
as the exclusive collective-bargaining representative of
the Company's production and maintenance employees.
Ray Brooks v. NLRB, 348 U.S. 96, 104 (1954); NLRB v.
Gulfmont Hotel Co., 362 F.2d 588, 589 (5th Cir. 1966).
The Board, in remedying the Company's unlawful refus-'
al to honor that certification, delayed the start of the cer-
tification year until "the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit." San
Antonio Portland Cement Co., supra, 240 NLRB at 1170.
As the Company and the Union held their first bar-
gaining session on August 22, 1980, I find that date
marked the commencement of the certification year.
Groendyke Transport, 205 NLRB 244 (1973). In sum, in
agreement with the Regional Director, I find that neither
the petition in Case 23-RD-492 nor that in Case 23-
RM-389 raised any valid question concerning representa-
tion among the Company's production and maintenance
employees. I find therefore, that on and after July 27,
1981, the Company continued to have a bargaining obli-
gation toward the Union regarding the unit employees in
the unit described above. Assuming that the two peti-
tions might otherwise have raised questions concerning
the Union's representative status, I would find that the
Company's unremedied unfair labor practices as found
by Judge Barker in San Antonio Portland Cement Co.,
Cases 23-CA-7182, et al., supra, precluded the Company
from lawfully questioning the Union's majority status.
Olson Bodies, 206 NLRB 779, 780 (1973).
The Union urged a finding that the Company violated
Section 8(a)(5) and (1) of the Act by unlawfully refusing
to recognize and bargain with the Union since July 27,
1981. The complaint does not allege that the withdrawal
of recognition and the refusal to bargain were violative
of Section 8(a)(5) and (1) of the Act. However, the Com-
pany's conduct in these regards was fully litigated and,
accordingly, I find that this conduct was violative of
Section 8(a)(5) and (1) of the Act.
C. Unilateral Changes
1. The facts
The complaint alleges, and the Company by its answer
admits, that in the latter part of September 1981 the
Company began hiring new employees for its new San
Antonio plant located at Farm Road 1604. However, I
find from the uncontradicted testimony of the Compa-
ny's personnel manager, Manuel Galindo, that the Com-
pany began hiring new employees for the 1604 plant in
April 1981, and that approximately six employees were
hired between April and September 1981. 1 also find
311
from information provided by the Company that it hired
16 additional employees for the 1604 plant between Sep-
tember 9, 1981, and August 31, 1982.
By letter of May 21, the Company notified the Union
of its intention to hire new employees at the new 1604
location for positions which could not be filled by cur-
rent bargaining unit employees. However, during the ne-
gotiations which began on August 22, 1980, and ended
on July 10, 1981, the Company never offered to bargain
with the Union regarding the decision to hire additional
new employees for the 1604 plant.
According to the pleadings, beginning on or about Oc-
tober 19, 1981, the Company "commenced the practice
of requiring employees at its Broadway operation to
work overtime." However, the credited testimony shows
otherwise.
In 1980, the Union proposed a voluntary overtime
contract provision. Specifically, the Union's proposal
was that if an employee had a reasonable excuse, the
Company would be prohibited from disciplining or dis-
charging the employee for refusing overtime. During ne-
gotiations on November 18, 1980, Company Counsel
Robert S. Bambace advised the Union's bargaining repre-
sentative, Paul H. Balliet, that the Company "required
overtime and had required overtime for some time." In
his testimony, Balliet admitted that Bambace advised him
that the Company "would not agree to a situation where
overtime could be turned down and we could not disci-
pline employees, because that wouldn't be in accordance
with our past practice."
The uncontradicted testimony of Personnel Manager
Manuel Galindo shows that, for at least the last 33 years,
the Company has had 'a mandatory overtime policy.
However, during that period, the Company has not had
occasion to discipline any employee for refusing an over-
time assignment. According to Galindo, no employee has
ever refused an overtime assignment. I also find from his
testimony that, on occasion, the Company excused em-
ployees from overtime work because of the sickness of
an employee or a member of the employee's family.
The pleadings agree that on or about October 19,
1981, the Company began transferring bargaining unit
employees from its Broadway plant to its 1604 plant.
However, I find from the testimony of Personnel Manag-
er Galindo that in the latter part of 1977, during the con-
struction of the 1604 plant, the Company transferred
some 8 to 10 employees, including a driller and driller
operator, a heavy equipment operator, a mason, a labor-
er, a demolition man, and a carpenter to the 1604 plant.
These employees worked on-site preparation and testing
of the subterranean resources prior to construction.
During their employment at the 1604 plant, the trans-
ferred employees reported there on a daily basis. At least
two of the original employees are currently employed at
1604. Ramiro Sotelo Sr. and Trinidad Nova have been
stationed there since 1977. Both individuals are driller
operators capable of operating other equipment such as a
bulldozer or a front-end loader. The Company currently
employs both Sotelo and Nova, at the 1604 plant in pro-
duction work. Production activity at the 1604 plant com-
menced in the autumn of 1981.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also find from the testimony of the Union's bargain-
ing representative, Paul H. Balliet, that during the nego-
tiations beginning October 2, 1980, and again on Novem-
ber 18, December 19, 1980, and on January 9, 1981, the
Union and the Company discussed the contemplated
opening of the 1604 plant. In October, the Company
agreed that the 1604 employees would be included in the
collective-bargaining unit. In subsequent discussions,
Company Counsel Bambace advised Balliet that none of
the employees at the Broadway plant would suffer termi-
nation because of the opening of the new plant, and that
the Company intended to transfer employees from
Broadway to the 1604 plant. In April 1981, during nego-
tiations, Union Representative Don Billups asked Com-
pany Counsel Bambace if he knew how many employees
would be affected by the opening of the plant at 1604.
Bambace replied that the Company "didn't know." How-
ever, when Bambace assured Billups that unit employees
from Broadway would be utilized at the 1604 plant, Bil-
lups requested a letter to that effect.
The Company's letter of May 21, 1981, to the Union
stated: "It is anticipated at this time that most of the non-
supervisory personnel required to operate and maintain
[the 1604 plant] will be obtained from current bargaining
unit employees at the Company's Broadway facility cur-
rently in operation." After this letter, the Union received
no word of the contemplated transfers. Nevertheless, the
Company from September 28, 1981, through August 14,
1982, transferred 51 unit employees from its Broadway
plant to its 1604 plant. At no time did the Company
identify the classifications from which people would be
transferred from the Broadway plant to the 1604 plant.
Nor was there any additional discussion regarding the
effect of the transfers of employees from Broadway to
1604.
On July 6, 1982, the Union requested that the Compa-
ny bargain regarding the effects of the transfer of unit
employees from the Company's Broadway plant to its
1604 plant. Thereafter, on or about July 13, 1982, and
continuing to the present, the Company has refused, and
continues to refuse, the Union's request.
On or about May 29, 1981, while the parties were still
engaged in negotiations, the Company instituted a writ-
ten 4-week call-out schedule without announcement to,
or opportunity for bargaining by, the Union. There had
been no requirement previously that a designated em-
ployee be on-call. Instead, the Company had an informal
call-out system. When the Company required a particular
skill for an emergency, a supervisor would telephone a
suitable employee and request that he come to the plant.
However, if he was not at home, the supervisor would
call another person. There was no formal schedule and
the Company never disciplined anyone for not being at
home when called.2
I find from the testimony of Union Representatives
Don Billups and Paul Balliet that although call-out and
call-out pay were discussed during negotiations, the com-
pany representatives never said they would require a
standby call-out system. During discussions, the compa-
2 These findings are based on the uncontradicted testimony of employ-
ee Teodoro De Leon and Personnel Manager Manuel Galindo,
ny representatives said they expected that employees
would come when they were called out, and that there
might be disciplinary action to enforce the system.
The Company admitted that around mid-November
1981, without notice to the Union, it changed the start-
ing time of the first-shift employees at the 1604 plant,
from 7 a.m. to 6 a.m., at the request of a group of em-
ployees, whose spokesman was John Hernandez, a
member of the Union's negotiating committee. It is un-
contradicted however, that the parties had initialed a
provision on May 21, 1981, providing for a starting time
of 7 a.m. or 8 a.m. for the first shift. I find from Balliet's
testimony that the Union was never- told of the change
to a 6 a.m. starting time. The Company implemented this
change after it had withdrawn recognition from, and
ceased bargaining with, the Union.
When bargaining began, the Company had rules con-
cerning safety, meal breaks, personal cleanup, and rest
periods. During negotiations in October, November, and
December 1980, the parties discussed work rules. The
Union took the position that no additional work rules
could be implemented without their approval. No agree-
ment was reached on work rules. On November 12,
1981, the Company, unilaterally, promulgated the follow-
ing rules for the 1604 plant:
1. Each and every employee is responsible for his
assigned work area.
2. Contact the Central Control Room if you must
leave your assigned work area for any reason.
3. Make sure you do not leave your assigned area
on completion of your shift, unless relieved by on-
coming shift personnel.
4. No radios, except internal plant communica-
tion are allowed in the Central Control Room or
your assigned work areas.
5. Your breaks and lunch period will be coordi-
nated by the Central Control Room, and may be
limited to one employee at a time. (30 minute maxi-
mum on lunch period).
6. Until further notice, no one shall be in the
Central Control Room except for the operator and
management personnel.
THESE RULES WILL BE FOLLOWED BY
ALL PERSONNEL INVOLVED IN ORDER
TO PERFORM EFFECTIVELY AND EFFI-
CIENTLY. VIOLATIONS TO [sic] THESE
RULES COULD LEAD TO SERIOUS DISCI-
PLINARY ACTION.
Personnel Manager Galindo first testified that the elec-
tric shop oiler position was abolished in March 1977. He
cast serious doubt on this assertion, however, when he
went on to testify under cross-examination about em-
ployees who had worked in that position until "sometime
during the latter part of 81." The Company's records
also show that the electric shop oiler position existed
through 1981. Accordingly, I did not credit Galindo's
testimony that the Company abolished the position in
1977. Instead, I accept his later testimony on cross-exam-
ination.
SAN ANTONIO PORTLAND CEMENT CO.
The Company's record showing its classifications in
1981 included an electric shop oiler, a safety utility man,
weigh master, and an electronics technician. The weigh-
master's function was previously performed by the bulk
truckloaders on a rotating basis. About 25 percent of the
bulk truckloaders' time was spent weighing. The trans-
ferring of the weighmaster function did not cause the
elimination of any unit employees.
At the end of 1981, without notice to the Union, the
Company eliminated the classifications of electric shop
oiler, safety utility man, weigh master and electronics
technician at the Broadway plant and added the classifi-
cations of storeroom clerk, clinker loadout operator
trainee, bulk truck loader or clinker loader, and utility
man at the 1604 plant, and a lead cooler repairman and
an oil well cement tester at the Broadway plant. On or
about January 22, 1982, after the elimination of the elec-
tric shop oiler position, the Company assigned the elec-
tric shop oiler's duties and functions to cement mill oper-
ators. -'
On December 18 and 19, 1980, the parties discussed
and agreed on a schedule of wage increases which the
Company proposed to put inl o effect on January 1, 1981.
However, on January 2, 1982, without notice to or con-
sultation with the Union, the Company granted an
across-the-board wage increase to unit employees effec-
tive as of January 1, 1982. The Company's past practice
had been to grant general wage increases to its employ-
ees on January 1, each year.
The Company admitted changing the pay of its 1604
control room operators from an hourly rate to a monthly
salary. The credited testimony of both union representa-
tives showed that no discussions were held concerning
removing control room operators from the bargaining
unit or changing their wages from hourly to salary.
Prior to January 1982, the Company employed front-
end loaders at the quarry department at the Broadway
plant. The Company admitted that, in January 1982, it
began subcontracting front-end loader work from the
Broadway plant. The Company never informed the
Union that it planned to subcontract this work.
Before January 11, 1982, the Company had a practice
of hiring employees for a 90-day probationary period. If
the employee performed satisfactorily during that period,
he or she became a permanent full-time employee. In
January 1982, the Company began hiring some employ-
ees on a temporary basis. I find from the credited testi-
mony of Manuel P. Galindo that Raymond Duran was
among an undisclosed number of employees hired as
temporary since January 11, 1982. Galindo told Duran
that his tenure would be only for a few weeks or
months. Duran remained classified as a temporary em-
ployee until July 7, 1982, when he was laid off.
On April 14, 1982, the Company posted a working
schedule for its Broadway plant mechanics, effective
April 17, 1982. I find from Personnel Manager Galindo's
testimony that prior to April 14, 1982, the Company had,
as a matter of practice, promulgated such schedule ver-
bally.
3 This finding is based on the testimony of Alfonso Lopez and the cor-
roborating testimony of Oscar Perez.
313
On July 2, 1982, the Company laid off 18 employees at
its Broadway plant Five days later, it laid off five addi-
tional employees at its 1604 plant. In both cases, the
Company did not notify or consult with the Union.4
2. Analysis and conclusions
a. Controlling principles
Sections 8(a)(5) and 8(d) of the Act established the
Company's obligation to bargain with the representative
of its employees in good faith with respect to "wages,
hours, and other terms and conditions of employment."
NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958).
Accord: Fibreboard Corp. v. NLRB, 379 U.S. 203, 209-
210 (1964). This obligation also required the Company to
refrain from imposing new and different working condi-
tions without first giving the Union an opportunity to
bargain about them. NLRB v. Katz, 369 U.S. 736, 741,
742-743 (1962); A. H. Belo Corp. v. NLRB, 411 F.2d 959,
970 (5th Cir. 1969), cert. denied 396 U.S. 1007 (1970). As
unilateral changes affecting wages or other conditions of
employment will "rarely be justified by any reason of
substance ," they require no demonstration of an employ-
er's lack of good faith to be held a violation of Section
8(a)(5) of the Act. 369 U.S. at 743, 747. An employer
must give prior notice to the employees' representative
of any managerial decision which may have an effect on
employment conditions so that the union may have a rea-
sonable opportunity to evaluate the proposal and present
a counterproposal before the change takes place. E.g., M
& M Contractors, 262 NLRB 1472 (1982). Notice of a fait
accompli is not timely notice. NLRB v. A. H. Belo Corp.,
supra, 411 F.2d at 970; Ladies Garment Workers
(McLaughlin Mfg. Corp.) v. NLRB, 463 F.2d 907, 919
(D.C. Cir. 1972). The employer's obligation to bargain
arises when the contemplated changes in the employer's
rules or practices are material, substantial , and signifi-
cant , and affect the unit employees' tenure or their terms
and conditions of employment. Peerless Food Products,
236 NLRB 161 (1978); Murphy Diesel Co., 184 NLRB
757, 763 (1970).
b. The alleged unilateral changes
Turning to the issues raised before me, I find no merit
in four of the allegations of unilateral change. The Com-
pany's mandatory overtime policy was not changed after
the Union's achievement of majority status. Indeed, the
record shows that it had existed for over 30 years prior
to that event. I therefore find that the Company's imple-
mentation of that policy on and after October 16, 1981,
did not violate Section 8(a)(5) and (1) of the Act as al-
leged. Accordingly, I shall recommend dismissal of that
allegation.
4 The list of laid-off employees provided by the Company and re-
ceived in evidence at the hearing recited that the Company laid off Luis
Castillo on July 19, 1982, at the Broadway plant and Steven San Miguel
at the 1604 plant on July 30, 1982 There were no allegations regarding
layoffs on those two dates Nor was there any testimony or other evi-
dence introduced regarding these two layoffs Accordingly, I have made
neither findings nor conclusions as to Castillo 's or San Miguel 's layoffs
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor did the Company's decision to post written work
schedules for unit employees on and after April 14, 1982,
entitle the Union to notice and an opportunity to bar-
gain. Prior to that date, the Company 's practice was to
orally promulgate work schedules to unit employees.
This change from oral to written format did not alter the
employees ' working schedule or any other condition of
employment . As this change was not substantial, I find
that the Company did not thereby violate Section 8(a)(5)
and (1) of the Act. Rust Craft Broadcasting of New York,
225 NLRB 327 (1976). I shall therefore recommend the
dismissal of this allegation.
The Board has refused to find a violation of Section
8(a)(5) and (1) of the Act where an employer 's unilateral
subcontracting of bargaining unit work resulted in no
significant harm to the unit employees . Westinghouse
Electric Corp., 153 NLRB 443, 446 (1965). In the instant
case, there was no showing of harm to the unit employ-
ees' wages or other working conditions as a result of the
unilateral subcontracting of front-end loader work at the
Broadway plant. Therefore, I find that this unilateral
change did not violate Section 8(a)(5) and (1) of the Act
and I shall recommend dismissal of the allegation that it
did.
I find no support for the contention that the hiring of
temporary employees without consulting with the Union
violated Section 8(a)(5) of the Act. There was no show-
ing that the Company, by hiring temporary employees,
had abandoned its policy of affording new employees a
90-day probationary period before offering them full-time
employment. Instead, the record makes plain that the
Company resorted to hiring temporary employees as an
expedient to maintain production until a contemplated
layoff. Accordingly, I find that the allegation growing
out of this conduct is unsupported by the evidence and
shall recommend its dismissal.
The Company admitted unilaterally hiring new em-
ployees at 1604 and transferring employees from the
Broadway plant to the 1604 plant. The Company con-
tended that these unilateral actions were lawful because
it had given the Union adequate prior notice. I disagree.
Beyond question the Union was entitled to notice of
the Company's contemplated transfer of unit employees,
and the hiring of new employees into the unit sufficiently
in advance to permit the Union to consider its bargaining
options. M & M Building Contractors, supra. Here, the
Company did not provide such notice with respect to the
transfers and new hires at 1604 . Its letter of May 21,
1981, did not say when the Company planned to begin
these personnel actions. Nor did the Company otherwise
indicate that an immediate bargaining request was neces-
sary. In any event, when the Company withdrew recog-
nition on July 27, 1981, it precluded the Union from bar-
gaining about the transfers and new hires at 1604, all of
which the Company accomplished unilaterally, thereaf-
ter.
The isolated and limited number of transfers which the
Company effected in 1977 were not sufficient to establish
a practice which might excuse the Company from bar-
gaining about the more significant number of transfers of
unit employees in 1981 and 1982, when the Union was
the representative of its employees. Nor did the hiring of
new employees in April 1981, without notice to the
Union, excuse the Company from bargaining about the
subsequent hiring at 1604, as it effected the transfer of
unit employees from Broadway to 1604.
Contrary to the Company's position, I find, therefore,
that it failed to give the Union adequate notice and op-
portunity to bargain regarding the hiring of new employ-
ees at 1604 and the transferring of unit employees from
Broadway to 1604. By these unilateral actions, the Com-
pany violated Section 8(a)(5) and (1) of the Act.
I also reject the Company's contention that its repeat-
ed assurances to the Union during negotiations in 1981,
that no harm would befall bargaining unit employees due
to the transfers to 1604, constituted bargaining. Further,
on and since July 13, 1982, the Company has refused to
bargain with the Union concerning the effects of the
transfer of unit employees from the Broadway facility to
the 1604 plant. By this refusal, the Company violated
and continues to violate Section 8 (a)(5) and ( 1) of the
Act.
The Company sought to excuse its failure to consult
the Union about the change in the first shift's starting
time at 1604, on the ground that it made the change
solely at the request of unit employees, whose spokesman
was employee John Hernandez, a member of the Union's
bargaining committee . However, the Act required the
Company to bargain about that matter solely with its
employees' "statutory representative and no other person
or group." Spriggs Distributing Co., 219 NLRB 1046,
1049 (1975). By thus dealing with Hernandez, rather than
with the Union, the Company again violated Section
8(a)(5) and (1) of the Act.
Nor did I find any merit in the Company' s contention
that it was free to change the starting time at 1604 from
7 a.m. to 6 a.m. under an agreed contract provision al-
lowing it to change work schedules if employees were
given 48 hours' notice or in emergencies. There was no
showing that either of those conditions existed at the
time the Company made these changes. Moreover, as the
contract containing those conditions had not been exe-
cuted, the provision in question was not in effect.
Also lacking in merit was the Company's contention
that its across-the-board wage increase to the unit em-
ployees, granted on January 2, 1982, did not violate Sec-
tion 8(a)(5) and (1) of the Act because it was an annual
increase. Such unilateral actions violate Section 8(a)(5)
and (1) of the Act even when taken pursuant to an estab-
lished company policy "if they are taken without afford-
ing the representative an opportunity to bargain." Allis-
Chalmers Corp., 237 NLRB 290, 291 (1978), enfd. in per-
tinent part 601 F.2d 870, 875-876 (5th Cir. 1979). I find,
accordingly, that by unilaterally granting across-the-
board wage increases to unit employees on January 2,
1982, the Company violated Section 8(a)(5) and (1) of
the Act.
The Company offered economic necessity as an excuse
for its failure to bargain with the Union regarding the
layoffs of July 2 and 7, 1982. However, the fact that the
Company's layoff may have been economically motivat-
ed did not justify those unilateral actions. For "while an
employer may properly decide that an economic layoff is
SAN ANTONIO PORTLAND CEMENT CO.
required, once such a decision is made, the employer
must nevertheless notify the union and upon request, bar=
gain with it concerning the layoff." C & D Battery Divi-
sion, 263 NLRB No. 106 (1983) (not published in Board
volumes). Here, I find the Company did not comply
with that requirement, and thus violated Section 8(a)(5)
and (1) of the Act.
The Company conceded that it unilaterally changed its
control room operators' pay status from hourly to sala-
ried in January 1982. However, the Company contends
that it had no duty to bargain with the Union about
these changes because the control room operators were
supervisors and thus outside the bargaining unit. I have
rejected this contention.
Assuming the validity of the proffered defense, it was
up to the Company to show that the control room opera-
tors were supervisors within the meaning of Section
2(11) of the Act.5 However, aside from the assertion that
the control room operators are supervisors, the Company
has not provided any evidence that they enjoyed any of
the statutory indicia of supervisor authority. I find that
the control room operators were not supervisors at the
time the Company changed their pay status. I further
find that by unilaterally changing the control room oper-
ators' pay status, the Company violated Section 8(a)(5)
and (1) of the Act.
Contrary to the Company's position, I find that the
promulgation of call-out schedules was a sufficient alter-
ation of a condition of employment to warrant collective
bargaining. Prior to the Company's publication of a call-
out schedule, on May 29, 1981, the Company's random
selection of off-duty employees for call-out imposed no
burden upon any specific person to remain at home,
available for work. After that date, the 4-week call-out
schedule implied that the designated on-call employees
had to be at home and available according to a schedule.
I find that the Company's action in unilaterally promul-
gating the call-out list violated Section 8(a)(5) and (1) of
the Act.
Similarly, the Company violated Section 8(a)(5) and
(1) of the Act when it unilaterally promulgated work
rules at the 1604 plant on November 12, 1981. Contrary
to the Company's assertion, these rules were not a re-
statement of existing rules. Indeed, prior to this dispensa-
tion, there had been no work rules at 1604. Here again,
the Company neglected its obligation to deal with its em-
ployees' exclusive bargaining agent before imposing sub-
stantial changes in their conditions of employment.
The Company argued that it had no duty to bargain
about the electric shop oiler position's termination in
1981, because the position had been abolished in 1977.
The record does not support the Company' s assertion.
The Company's records and testimony showed that posi-
tion to have existed and been manned through 1981. It
was not until 1982 that the Company records ceased
showing that job classification. By unilaterally eliminat-
ing this unit classification in December 1981, the Compa-
ny violated Section 8(a)(5) and (1) of the Act.
The facts further established that following the elimi-
nation of the electric shop oiler position, the Company
5 Commercial Movers, 240 NLRB 288, 290 (1979)
315
assigned its duties to cement mill operators and helpers.
Similarly, this unilateral change violated Section 8(a)(5)
and (1) of the Act.
Finally, I find that the Company violated Section
8(a)(5) and (1) of the Act, by unilaterally eliminating the
safety utility man, electronics technician, and weighmas-
ter classifications, and adding the lead cooler repairman
and oil well cement tester at Broadway, and by adding
the classifications of storeroom clerk, bulk truck loader
or clinker loader, clinker loadout operator, and utility
man at 1604. These were all changes having to do with
terms and conditions of employment requiring the giving
of notice to and bargaining with the Union. The Compa-
ny did neither and therefore violated Section 8(a)(5) and
(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Alamo Cement Company d/b/a San
Antonio Portland Cement Company is an employer en-
gaged in commerce within the meaning of Sect ion 2(2),
(6), and (7) of the Act.
2. United Cement, Lime and Gypsum Workers, Inter-
national Union, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, includ-
ing all employees in the Quarry Department, Ship-
ping Department, Kiln Department, Finishing Mill
Department, Slurry Mill Department, Powerhouse
Department, Plant Office Department, Maintenance
and Repair Department, Electrical Department,
Laboratory Department, Oiler Subsection as well as
plant clerical employees, leadmen, truck drivers and
mechanics, but excluding all other employees, in-
cluding office clerical employees., order clerks,
guards, watchmen and supervisors as defined in the
Act, employed by the Respondent at its San Anto-
nio, Texas plant.
4. Since September 8, 1979, the above-named Union
has been the exclusive representative of the employees in
the aforementioned unit for purposes of collective bar-
gaining with respect to rates of pay, wages, hours of em-
ployment and other terms and conditions of employment.
5. By unilaterally, without notice to, or consultation
with, the above-named Union, hiring 16 new employees
for the 1604 plant, between September 9, 1981, and
August 31, 1982, and transferring unit employees from its
Broadway plant to the 1604 plant, implementing a new
emergency call-out system, changing the starting time
for employees at the 1604 plant, implementing new work
rules at the 1604 plant, eliminating the electric shop oiler
position at the Broadway plant, implementing an across-
the-board wage increase to all employees at its Broad-
way and 1604 plants, changing pay rates and pay periods
for control room operators, changing existing unit classi-
fications by eliminating and adding different classification
at its Broadway and 1604 plants, implementing new oiler
duties for cement mill operators and helpers, and laying
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off employees; Respondent has failed and refused to bar-
gain collectively with the Union, and has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. By refusing to bargain with the above-named Union
regarding the effects of its transfer of unit employees
from its Broadway plant to its 1604 plant, including the
effects of the new hires which occurred from September
9, 1981, to August 31, 1982, Respondent violated Section
8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8. Respondent has not otherwise engaged in conduct
violative of the Act, as alleged in the complaint as
amended.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist from such conduct and to take
such affirmative action as I find necessary to remedy the
effects of the unfair labor practices and to effectuate the
policies of the Act. Thus, I shall order that the Respond-
ent, upon the Union's request, retransfer the unit employ-
ees who were unilaterally transferred to the 1604 plant
from the Broadway plant, and further that the Respond-
ent bargain with the Union upon request regarding the
effects of the unilateral transfers, and the effects of the
new hires, which occurred from September 9, 1981, to
August 31, 1982, upon unit employees. I shall also order
that the Respondent, at the Union's request, restore the
daily starting time of the first shift at the 1604 plant to 7
a.m. and that Respondent cease and desist from bargain-
ing directly with employees and thereby bypassing their
collective-bargaining representative.
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by changing the control room opera-
tors at the 1604 plant from an hourly rate to a monthly
salary, I shall recommend that if the Union requests, Re-
spondent shall restore the control room operators to
their status quo ante, by paying them at their former
hourly rates, and shall make them whole for any loss of
earnings they may have incurred because of this unilater-
al change, which losses shall be computed in the manner
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest thereon computed in the manner set forth
in Florida Steel Corp., 231 NLRB 651 (1977). See gener-
ally Isis Plumbing Co., 138 NLRB 716 (1962).
Having found that Respondent unilaterally eliminated
and added work classifications in the bargaining unit in
violation of Section 8(a)(5) and (1) of the Act, I shall
recommend that at the Union's request, Respondent be
required to restore the unit's classifications to their status
quo ante. I shall also recommend that, at the Union's re-
quest, the oiler duties which Respondent unilaterally as-
signed to its cement mill operators and helpers, in viola-
tion of Section 8(a)(5) and (1) of the Act, be restored to
the electric oiler.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally promulgating
six work rules for bargaining unit employees at the 1604
plant, and by posting a written emergency call-out
schedule, I shall recommend that, on the Union's request,
the Respondent be required to rescind the six work rules,
and the emergency call-out schedule.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally laying off em-
ployees, I shall recommend,that Respondent make whole
those employees laid off, by paying to them their normal
wages from the date of the layoff until the earliest of the
following conditions are met: (1) mutual agreement is
reached; (2) good-faith bargaining results in a bona fide
impasse; (3) the failure of the Union to commence nego-
tiations within 5 days of the receipt of Respondent's
notice of its desire to bargain with the Union; or (4) the
subsequent failure of the Union to bargain in good faiths
Backpay shall be based on the earnings which the em-
ployees normally would have received during the appli-
cable period, less any net interim earnings, and shall be
computed in the manner set forth in F. W. Woolworth
Co., supra, with interest thereon computed in the manner
set forth in Florida Steel Corp., supra. See generally Isis
Plumbing Co., supra.
I shall also recommend that Respondent preserve and,
on request, make available to the Board or its agents, for
examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and
reports, and all other records necessary to analyze and
determine the amounts of backpay due under the terms
of this recommended remedy.
Having found that Respondent has failed and refused
to bargain collectively in good faith with the Union as
the exclusive representative of the employees in the ap-
propriate unit, I will further recommend that Respondent
be ordered to bargain collectively, on request, with the
Union as the exclusive representative of the employees in
the appropriate unit, and, if an understanding is reached,
to embody such understanding in a signed agreement.
In order to ensure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining representative for the period provided by law,
it shall be construed that the initial year of certification
begin on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit.?
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Alamo Cement Company d/b/a San
Antonio Portland Cement Company, San Antonio,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
6 See Gulf States Mfg, 261 NLRB 1060 (1982).
9 See Mar-Jac Poultry Co., 136 NLRB 785 (1962)
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
SAN ANTONIO PORTLAND CEMENT CO.
(a) Refusing to recognize and bargain collectively in
good faith with United Cement Lime and Gypsum
Workers, International Union, AFL-CIO as the exclu-
sive bargaining representative, concerning wages, hours,
and conditions of employment of the employees in the
following appropriate unit:
All production and maintenance employees, includ-
ing all employees in the Quarry Department, Ship-
ping Department, Kiln Department, Finishing Mill
Department, Slurry Milli Department, Powerhouse
Department, Plant Office Department , Maintenance
and Repair Department, Electrical Department,
Laboratory Department, Oiler Subsection as well as
plant clerical employees, leadmen, truck drivers and
mechanics, but excluding all other employees, in-
cluding office clerical employees, order clerks,
guards, watchmen and supervisors as defined in the
Act, employed by the Respondent at its San Anto-
nio, Texas plant.
(b) Unilaterally, without notice to, or consultation
with the Union, transferring unit employees from the
Broadway plant to the 1604 plant, changing the starting
time of the first shift at the 1604 plant, changing the pay
and pay periods of control room operators, eliminating
the electric shop oiler, safety utility man, electronics
technician, and weighmaster at Broadway or any other
unit classifications, adding storeroom clerk, clinker loa-
dout operator trainee, utilityman, bulk truck loader or
clinker loader, at the 1604 plant, and oil well cement
tester, and lead cooler repairman at the Broadway plant,
or any other unit classification, assigning electric shop
oiler duties to cement mill operators and helpers, pro-
mulgating new work rules at the 1604 plant, posting new
written emergency call-out schedules and laying off unit
employees, or otherwise changing the rates of pay,
wages, hours, or other terms and conditions of employ-
ment of any bargaining unit employee without first noti-
fying the Union, and providing it with an opportunity to
bargain collectively with the Respondent in good faith
concerning such proposed changes; provided that noth-
ing herein shall require Respondent to rescind any wage
increases which it has previously granted to the unit em-
ployees.
(c) Dealing directly with employees in the unit de-
scribed above with respect to their rates of pay, wages,
hours, or other terms and conditions of employment.
(d) Refusing to bargain concerning the effects of the
transfer of unit employees from the Broadway plant to
the 1604 plant with respect to their wages, hours, and
conditions of employment, including the effect of the
new hires at the 1604 plant, which occurred from Sep-
tember 9, 1981, to August 31, 1982.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act.
(a) On request by the above-named Union, bargain col-
lectively with the Union in good faith regarding rates of
pay, hours of employment, and other terms and condi-
317
bons of employment. for the employees in the appropri-
ate unit, and, if an agreement is reached, reduce the
agreement to writing and sign it.
(b) Make whole these employees named below who
were laid off on July 2 or July 7, 1982, for any loss of
pay they may have suffered as a result of its unlawful
conduct, in the manner set forth in "The Remedy" sec-
tion of this decision.
Ramiro Sotelo, Jr.
Hipoleto Valdez
Alfredo Estrada
Celement Cobarruvias
David Orozco
Michael McKee
Santiago Ramoz
Geronimo Mendez, Jr.
Jaime Zuniga
Benito Canales
James W. Bell
Nemesio Gomez
Mark DeLuna
Candelario Cervantes
John Coronado
Rudy A. Jimenez, Jr.
Brian P. Johnston
Jeffery White
Ramiro Hernandez
Donald Uesolick
Randy Cowan
Benny Torres
Orlanda Sanchez
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) On request of the above-named Union, bargain col-
lectively with the Union in good faith regarding the ef-
fects of the transfer of work and of unit employees from
the Broadway plant to the 1604 plant, and the effect of
the new hires which occurred from September 9, 1981,
to August 31, 1982.
(e) On request of the above-named Union, rescind each
of the following unilateral changes:
(1) The transfers of unit employees from the Broad-
way plant to the 1604 plant.
(2) The change in the starting time of the first shift at
the 1604 plant from 7 a.m. to 6 a.m.
(3) The changes in the pay and pay periods of control
room operators from an hourly rate to a monthly salary.
(4) The elimination of electric shop oiler, safety utility-
man, electronics technician, and weighmaster classifica-
tions.
(5) The addition of the storeroom clerk, clinker loa-
dout operator-trainee, at 1604, lead cooler repairman,
utility man, and oil well cement tester, and bulk truck
loader or clinker (1604) loader.
(6) The assignment of electric shop oiler duties to
cement mill operators and helpers.
(7) The six work rules promulgated at the 1 604 plant
on November 12, 1981.
(8) The posting of new written emergency call-out
schedules.
(f) Post at its Broadway and 1604 facilities copies of
the attached notice marked ",Appendix."'9 Copies of the
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of The Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for
Region 23 , after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act other
than those found above.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain collec-
tively in good faith concerning rates of pay, wages,
hours, and other terms and conditions of employment
with United Cement, Lime and Gypsum Workers Inter-
national Union, AFL-CIO as the exclusive representa-
tive of the employees in the following unit:
All production and maintenance employees, includ-
ing all employees in the Quarry Department, Ship-
ping Department, Kiln Department, Finishing Mill
Department, Slurry Mill Department, Powerhouse
Department, Plant Office Department, Maintenance
and Repair Department, Electrical Department,
Laboratory Department, Oiler Subsection as well as
plant clerical employees, leadmen, truck drivers and
mechanics, but excluding all other employees, in-
cluding office clerical employees, order clerks,
guards, watchmen and supervisors as defined in the
Act, employed by us at our San Antonio, Texas
plant.
WE WILL NOT, unilaterally without notice to or con-
sultation with the above-named Union, transfer unit em-
ployees from our Broadway plant to our 1604 plant,
change the starting time of the first shift at the 1604
plant, change the pay and pay periods of control room
operators, eliminate the electric shop oiler, safety utility
man, electronics technician and weighmaster at the
Broadway plant, or any other unit classification, add
storeroom clerk, linker loadout operator trainee, utility
man, bulk truck loader, or clinker loader at the 1604
plant, and oil well cement tester and lead cooler repair-
man at the Broadway plant, or any other unit classifica-
tions, assign electric shop oiler duties to cement mill op-
erators and helpers, promulgate new work rules at the
1604 plant, post new written emergency call-out sched-
ules, lay off unit employees, or otherwise change the
rates of pay, wages, hours, or other terms and conditions
of employment of any bargaining unit employees without
first notifying the Union, and providing it with an oppor-
tunity to bargain collectively with us in good faith con-
cerning such proposed changes, provided however, that
we are not required to rescind any wage increases which
we have previously granted to the unit employees.
WE WILL NOT deal directly with employees in the unit
described above with respect to their rates of pay,
wages, hours, or other terms and conditions of employ-
ment.
WE WILL NOT refuse to bargain in good faith with the
above-named Union about the decision and effects of
transferring work and employees from Broadway to the
1604 plant, including the effect of the new hires at the
1604 plant which occurred from September 9, 1981, to
August 31, 1982.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.
WE WILL, on request of the above-named Union, re-
scind each of the following unilateral changes:
(1) The transfer of unit employees from the
Broadway plant to the 1604 plant.
(2) The change in the starting time of the first
shift at the 1604 plant from 7 a.m. to 6 a.m.
(3) The changes in the pay and pay periods of
the 1604 control room operators from an hourly
rate to a monthly salary.
(4) The elimination of electric shop oiler, safety
utility man, electronics technician and weigh master
classifications at the Broadway plant.
(5) The addition of the storeroom clerk, clinker
loadout operator trainee and bulk truck loader or
clinker loader classifications at the 1604 plant, and
the lead cooler repairman, utilityman and oil well
cement tester at the Broadway plant.
(6) The assignment of electric shop oiler duties to
cement mill operators and helpers.
(7) The six work rules promulgated at the 1604
plant on November 12, 1981.
(8) The posting of written emergency call-out
schedules.
WE WILL make whole the control room operators at
our 1604 plant for any loss of pay they may have suf-
fered because we unilaterally changed them from an
hourly wage rate to a monthly salary, with interest.
WE WILL, on request of the above-named Union, bar-
gain collectively in good faith with it about the decision
and effects of transferring employees from our Broadway
plant to the 1604 plant, and the effect of the new hires at
the 1604 plant which occurred from September 9, 1981,
to August 31, 1982.
WE WILL, on request of the above-named Union, bar-
gain collectively in good faith with it about wages,
hours, and working conditions of our employees in the
appropriate unit, and if an agreement is reached, reduce
the agreement in writing and sign it.
WE WILL make whole the following employees whom
we unilaterally laid off on July 2 or July 7, 1982:
Ramiro Sotelo, Jr. Nemesio Gomez
Hipoleto Valdez
Alfredo Estrada
Celement Cobarruvias
David Orozco
Michael McKee
Santiago Ramoz
Geronimo Mendez, Jr.
SAN ANTONIO PORTLAND CEMENT CO.
Mark DeLuna
Candelario Cervantes
John Coronado
Rudy A. Jimenez, Jr.
Brian P. Johnston
Jeffery White
Ramiro Hernandez
Jaime Zuniga
Benito Canales
James W. Bell
Donald Uesolick
Randy Cowan
Benny Torres
Orlanda Sanchez
ALAMO CEMENT COMPANY D/B/A SAN
ANTONIO PORTLAND CEMENT COMPANY
319