San Antonio Portland Cement Co.

National Labor Relations Board - Board Decisions

Nov 12, 1985

277 N.L.R.B. 338 (N.L.R.B. 1985)

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Antonio Portland Cement Company and United
Cement, Lime & Gypsum Workers International
Union, AFL-CIO. Cases 23-CA-7182, 23-CA-
7281, 23-CA-7360, 23-CA-7415, and 23-CA-
7648
12 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 21 May 1980 Administrative Law Judge
James T. Barker issued the attached decision. The
General Counsel , the Charging Party, and the Re-
spondent filed exceptions and supporting briefs,
and the Charging Party filed an answering brief to
the Respondent 's exceptions.
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 only to the extent consistent with this
Decision and Order.
1. We agree with the judge that, during the 8
months following the election held on 17 March
1978, the Respondent violated Section 8(a)(5) and
(1) of the Act by instituting the following changes
affecting unit employees , without notice to or bar-
gaining with the Union : transferring order room
employees to the scale house and assigning to them
the "weighmaster" function, thereby changing the
duties of the bulkloaders and causing the assign-
ment of bulkloaders Ramon Gomez and Mario
DeLeon to lower paying classifications; eliminating
certain powerhouse job classifications, resulting in
the transfer of Danny Castillo, Fred Contreras,
John Hernandez , and George McKee to lower
paying classifications ; eliminating the swing shift in
the powerhouse ; eliminating the oiler 's job in the
truck maintenance shop ; and reclassifying assistant
bricklayer Francisco Torres to a lower paying po-
sition . During that period , on 8 September 1978,
the Board certified the Union as collective-bargain-
ing representative . It is well settled that, absent
compelling economic considerations , unilateral
changes in terms or conditions of employment
pending determination of objections and challenges
are made at an employer's peril . See Mike O'Con-
nor Chevrolet, 209 NLRB 701, 703 (1974). We also
agree with the judge that the Respondent further
violated Section 8(a)(5) and (1) in 1979 by unilater-
ally changing the medical and health benefits of-
fered to employees and granting a general wage in-
crease.' The Respondent has shown no compelling
economic considerations to justify its unilateral
acts.
2. Although we likewise agree with the judge
that the Respondent violated Section 8 (a)(5) and
(1) by refusing to bargain with the Union over its
forced retirement of J. J. Garcia, we emphasize
that the violation we find is not a "unilateral
change" like the violations set forth above . Rather,
we find a refusal to bargain , on the Union's re-
quest, over a mandatory subject of bargaining.
3. The Charging Party excepts to the judge's
failure to find that the Respondent 's "policy" of
permitting only employee witnesses rather than a
union representative, consistent with its refusal to
recognize the Union , violated Section 8(a)(1). Such
a violation was neither alleged in the complaint nor
urged during the hearing . In these circumstances,
the matter has not been fully litigated and we,
therefore , find no merit in this exception.
For the same reason , we find merit in the Re-
spondent 's exception to the judge's conclusion that
the Respondent 's unilateral act of requiring em-
ployees to sign copies of the work rules on 10 May
1978 violated Section 8 (a)(5) and (1). The violation
was not alleged in the complaint , the complaint
was not amended at the hearing , and the General
Counsel 's memorandum to the judge sought no
such finding. See Belcher Towing Co., 265 NLRB
1258, 1271 (1982); Chandler Motors, 236 NLRB
1565 (1978).
4. The judge found that the Respondent had not
violated Section 8(a)(1) by depriving four employ-
ees of their right to union representation at discipli-
nary interviews under NLRB v. J. Weingarten, 420
U.S. 251 ( 1975). We agree as to three of the em-
ployees, but find a violation with respect to Rich-
ard Gomez.
Thus, with respect to Mario Aranda and Pedro
Estrada, the record fails to show that either re-
quested representation . The Supeme Court's Wein-
garten decision is premised on the employee's
having made such a request. Moreover , we agree
with the judge that neither interview was investiga-
tory; both were conducted in order to inform the
employees of predetermined discipline . See Baton
Rouge Water Works, 246 NLRB 995 (1979).
We likewise agree that the purpose of Plant
Manager Dimick 's interview with Jesus Contreras
was to announce the discipline to be imposed.
After reading to Contreras the disciplinary report,
which stated that Contreras would be suspended
' We have included in our Order a provision inadvertently omitted by
the judge requiring the Respondent , if requested by the Union, to restore
the health and medical benefits in effect before the unilateral change
277 NLRB No. 36
SAN ANTONIO PORTLAND CEMENT CO.
for 3 weeks, Dimick asked whether Contreras had
any excuse for not calling in to notify the Compa-
ny that he would remain away from work. We
conclude that in asking this question, Dimick was
seeking to initiate a dialogue to make sure that
Contreras understood the reasons for the discipline
and was not seeking further evidence in support of
its action. See Texaco, Inc., 246 NLRB 1021, 1022
(1979). Accordingly, the Company did not violate
Section 8(a)(1) by not permitting Contreras' chosen
representative, Alfonso Lopez, to speak at the
interview.
The Company did violate the Act, however, by
silencing Lopez at Gomez' interview. Gomez was
interviewed because he dozed off on the job. At
his first interview, Personnel Manager Manuel Ga-
lindo asked Gomez why he had slept, and Gomez
responded that he had been feeling ill recently, and
had seen a doctor and was taking prescribed medi-
cine. Gomez gave Galindo a copy of his prescrip-
tion. Upon attempting to elicit from Gomez the
fact that he had not had a day off in 2 weeks,
Lopez was cut off by Dimick who said that Lopez
was present merely as a witness and was not sup-
posed to speak. Two days after this meeting, com-
pany managers again summoned Gomez and in-
formed him that he would be suspended for 4 days.
The fact that Gomez was using medication at the
time he fell asleep was reported on the disciplinary
report and appears to have been a mitigating cir-
cumstance.
In these circumstances, we disagree with the
judge that the first interview was for the purpose
of announcing predetermined discipline. Rather, we
find that the interview was clearly investigatory
and Gomez had a right under Weingarten to be
represented at that meeting. By silencing Lopez,
company managers denied Gomez that right and
thereby violated Section 8 (a)(1) of the Act.
THE REMEDY
We shall order the Respondent to remedy its
unilateral changes by bargaining with the Union
over the changes and by paying backpay to those
employees who were reclassified to lower paying
positions or who otherwise suffered financial loss
as a result of the Respondent 's unilateral actions.2
The Respondent's backpay liability, plus interest, 3
2 Although we agree with the judge that the Respondent did not vio-
late Sec. 8(a)(3) or (4) by "constructively" discharging bulkloader Mario
DeLeon, we find the record is clear that DeLeon's resignation was the
direct result of the Respondent 's unlawful action in unilaterally transfer-
ring him to a lower paying and more onerous job . We therefore do not
adopt the judge's recommended tolling of the Respondent's backpay obli-
gation as of the date of DeLeon's resignation
3 See Isis Plumbing Co, 138 NLRB 716 (1962), Florida Steel Corp, 231
NLRB 651 (1977).
339
shall run from the date of the changes until the ear-
liest of the following conditions is met: ( 1) mutual
agreement is reached with the Union relating to
subjects about which the Respondent is required to
bargain; (2) good-faith bargaining results in a bona
fide impasse; (3) the failure of the Union to com-
mence negotiations within 5 days of the receipt of
the Respondent's notice of its desire to bargain
with the Union; or (4) the subsequent failure of the
Union to bargain in good faith.
By ordering backpay, we seek to compensate the
employees for the losses they suffered as a result of
the Respondent's unlawful acts, to restore the
status quo that existed before the Respondent ig-
nored its statutory obligation to bargain, and to re-
store to the Union a measure of economic: strength
so that meaningful bargaining may occur. While it
is not certain that good-faith bargaining would
have resulted in actions different from those unilat-
erally taken by the Respondent, the uncertainty
must be taxed against the wrongdoer rather than
against the innocent employees.4
On the other hand, we shall not order the Re-
spondent to reinstate the employees to their former
classifications, to reinstate the swing shift in the
powerhouse, or to reassign the weighmaster func-
tion back to the bulkloaders. In the circumstances
of this case, we believe that such an order would
cause unnecessary disruption of the Respondent's
operations and that the other aspects of our order
fully remedy the unfair labor practices.
Finally, we agree with the Charging Party that
the judge failed to recommend complete relief with
respect to the Respondent's refusal to bargain over
Garcia's forced retirement. Accordingly, we shall
order the Respondent, in addition to bargaining
with the Union over Garcia's retirement, to pay
Garcia at the rate he received when last in the Re-
spondent's employ from 5 days after the date of
this Decision and Order until the occurrence of the
earliest of the following conditions: (1) the date the
Respondent bargains to agreement with the Union
with respect to Garcia's retirement; (2) a bona fide
impasse in bargaining; (3) the failure of the Union
4 See generally Leeds & Northrup Co v. NLRB, 391 F 2d 874, 880 (3d
Cir 1968 ), which also involved unilateral employer conduct in violation
of Sec. 8(a)(5) and ( 1), where the court recognized that the Board is ef-
fectuating the policies and purposes of the Act by resolving the doubt
against the party found to have violated the Act As the court pointed
out "Retroactive enforcement must always contain in it some element of
hardship on the employer , but a failure to grant back pay imposes at least
an equal hardship on the employees "
Moreover , the Supreme Court has recognized that the Board is entitled
to use a backpay remedy to restore, as nearly as possible, the status quo
ante, to deter unfair labor practices , to prevent a respondent from gaining
an advantage from his unfair labor practices , and to protect employees
from economic loss during the inevitable delays inherent in the adminis-
trative process. NLRB v J H. Rutter-Rex Mfg. Co, 396 U S 258 (1969)
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to request bargaining within 5 days of this Decision
and Order, or to commence negotiations within 5
days of the Respondent's notice of its desire to bar-
gain with the Union; or (4) the subsequent failure
of the Union to bargain in good faith; provided,
however, that in no event shall this sum be less
than Garcia would have earned for a 2-week
period at his normal wage rate when last employed
by the Respondent. See Transmarine Navigation
Corp., 170 NLRB 389 (1968).
AMENDED CONCLUSIONS OF LAW
1. Delete from paragraph 4: "By requiring unit
employees to sign copies of the work rules which
had been in effect."
2. Insert the following as paragraph 5, and re-
number subsequent paragraphs accordingly.
"5. By instructing the union representative of
employee Richard Gomez to remain silent during
an investigatory interview which Gomez was re-
quired to attend , the Respondent unlawfully de-
prived Gomez of counsel and assistance during the
interview , thereby violating Section 8(a)(1) of the
Act.
ORDER
The National Labor Relations Board orders that
the Respondent, San Antonio Portland Cement
Company, San Antonio, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Depriving any employee of his right to union
representation at an investigatory interview which
the employee reasonably believes might result in
disciplinary action, and requiring such representa-
tive to remain silent during the interview.
(b) Refusing to bargain collectively with United
Cement, Lime & Gypsum Workers International
Union, AFL-CIO as the exclusive bargaining rep-
resentative of the employees in the appropriate
unit:
All production and maintenance employees, in-
cluding all the employees in the Quarry De-
partment, Shipping Department, Kiln Depart-
ment, Finishing Mill Department, Slurry Mill
Department, Powerhouse Department, Plant
Office Department, Maintenance and Repair
Department, Electrical Department, Laborato-
ry Department, Oiler Subsection as well as the
plant clerical employees, leadmen , truckdriv-
ers, and mechanics, but excluding all other em-
ployees, including office clerical employees,
order clerks, guards, watchmen, and supervi-
sors as defined in the Act, employed by Re-
spondent at its San Antonio, Texas plant.
(c) Unilaterally reassigning or reclassifying em-
ployees, eliminating job positions or classifications,
eliminating shifts, and granting wage increases and
improved benefits.
(d) Refusing to bargain with the Union concern-
ing the forced retirement of Jose Juan Garcia.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) In the manner and to the extent defined in
the section of this Decision and Order entitled
"The Remedy," make Mario DeLeon, Ramon
Gomez, Danny Castillo, Fred Contreras, John Her-
nandez, George McKee, Jesus Contreras, and
Francisco Torres whole for any loss of pay which
they may have incurred as a result of their reclassi-
fication, reassignment , and/or elimination of job
category, as the case may be.
(b) To the extent that employees employed on
the swing shift in the powerhouse may have in-
curred a loss of pay as a result of the elimination of
the swing shift in December 1978, the Respondent
shall make those employees whole for such loss of
pay, plus interest, in the manner and to the extent
ordered in the section of this Decision and Order
entitled "The Remedy."
(c) Pay Jose Juan Garcia his normal wages for
the period set forth in the section of this Decision
and Order entitled "The Remedy."
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this De-
cision and Order.
(e) On request, bargain in good faith with the
Union as the exclusive collective-bargaining repre-
sentative of all employees in the aforesaid appropri-
ate bargaining unit with respect to the retirement
of Jose Juan Garcia, the -transfer of the order
room, and the elimination of the swing shift in the
powerhouse.
(f) On request of the Union, restore the medical
and health benefits which were in effect -before 1
May 1979.
(g) Post at its San Antonio, Texas plant copies of
the attached notice marked "Appendix."5 Copies
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the 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 "
SAN ANTONIO PORTLAND CEMENT CO.
of the notice, on forms provided by the Regional
Director for Region 23, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that, we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT refuse to recognize and bargain
with United Cement, Lime & Gypsum Workers
International Union, AFL-CIO as the exclusive
representative of our employees in the following
unit:
All production and maintenance employees, in-
cluding employees in the Quarry Department,
Shipping Department, Kiln Department, Fin-
ishing Mill Department, Slurry Mill Depart-
ment, Powerhouse Department, Plant Office
Department, Maintenance and Repair Depart-
ment, Electrical Department, Laboratory De-
partment, Oiler Subsection as well as the plant
clerical employees, leadmen, truckdrivers and
mechanics, but excluding all other employees,
including office clerical employees, order
clerks, guards, watchmen, and supervisors as
defined in the Act, employed by Respondent
at its San Antonio, Texas plant.
341
WE WILL NOT refuse to bargain with the Union
by unilaterally reassigning or changing the job clas-
sifications of employees in the unit described
above; eliminating job positions and/or classifica-
tions in the powerhouse; eliminating the swing
shifts in the powerhouse; eliminating the position of
oiler in the maintenance shop and assigning preven-
tive maintenance duties formerly performed by the
oiler in the maintenance shop to maintenance me-
chanics; eliminating the job classification of assist-
ant bricklayer and reassigning Francisco Torres,
who was employed in that position.
WE WILL NOT refuse to bargain collectively with
the Union concerning the retirement of Jose Juan
Garcia.
WE WILL NOT refuse to bargain collectively with
the Union by bypassing the Union and unilaterally
modifying the wages and the medical and health
benefits of employees.
WE WILL NOT deprive any employee of his right
to union representation at an investigatory inter-
view which the employee reasonably believes may
result in disciplinary action and WE WILL NOT re-
quire the union representative or witness to remain
silent throughout the interview.
WE WILL make whole the following employees
for any loss of earnings they may have suffered as
a result of our unilateral actions as well as employ-
ees who were employed on the swing shift in the
powerhouse in December 1978 and who suffered
loss of pay as a result of our unilateral elimination
of the swing shift in the powerhouse in December
1978:
Mario DeLeon John Hernandez
Ramon Gomez George McKee
Danny Castillo Jesus Contreras
Fred Contreras Francisco Torres
SAN ANTONIO PORTLAND CEMENT
COMPANY
Theodore Arter, Esq ., for the General Counsel.
Fulbright & J'aworski, by Brian S. Greig, Esq ., and Jeff
Kuhn, Esq., of Houston , Texas, for the Respondent.
Edwin Benn, Esq. (Asher, Goodstein , Pavalon, Gittler,
Greenfield & Segall), of Chicago „ Illinois, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge. This
case was heard before me on September 24, 25, and 26,
1979, pursuant to separate complaints and notices of
hearing duly issued by the Regional Director for Region
23 of the National Labor Relations Board and an order
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consolidating cases issued on September 13, 1979, by the
Regional Director. The proceedings were commenced
pursuant to charges and amended charges filed by
United Cement, Lime & Gypsum Workers International
Union, AFL-CIO (the Union). In their composite the
complaints allege violations of Section 8(a)(1), (3), (4),
and (5) of the National Labor Relations Act (the Act).'
During the course of the hearing, the parties were pro-
vided full opportunity to make opening statements, to ex-
amine and cross-examine witnesses, to introduce relevant
evidence, and to file briefs with me. The parties timely
filed briefs.2
On the entire record in this case, my observation of
the demeanor of the witnesses, and the briefs of the par-
ties, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has been a
corporation duly organized under the laws of the State
of Texas, and has maintained its principal office and
place of business in San Antonio , Texas, where it is en-
gaged in the processing and manufacturing of cement.
During the calendar year immediately preceding the
issuance of the separate complaints herein , Respondent
purchased and received goods and materials valued in
excess of $50,000 directly from points and places outside
the State of Texas.
On these facts , which are not in dispute , I find that
Respondent is, and has been at all material times, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, at all times material
herein , the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNLAWFUL CONDUCT
A. Pertinent Facts
1. Background facts
At all times material herein, the following named indi-
viduals occupied the position set forth opposite their re-
spective name:
R. B. Jackson-vice president
William Hopper-vice president
William Dimick-plant manager
Sylvester Sorola-assistant plant manager
Manuel Calindo-personnel manager
i Respondent concedes service and receipt of the various charges and
amended charges , and no legitimate 10(b) issue exists herein
2 On December 5, 1979, a reply brief filed by counsel for Respondent
was received, together with a request for leave to file same and for its
receipt. Thereafter, on December 10, 1979, counsel for the Charging
Party filed a motion to strike Respondent's reply brief The brief has been
received and considered and the motion of the Charging Party is denied,
for I discern no prejudice evolving from my discretionary decision to re-
ceive the reply brief.
The supervisory status of these individuals is conceded.
At pertinent times on and after April 23, 1978, Mario
DeLeon has been president of the Union, and at all rele-
vant times on and after September 14, 1978, Alfonso
Lopez has been chairman of the Union's negotiating and
grievance committee.
An organizing campaign commenced in December
1977 among Respondent's employees at the San Antonio
plant. Thereafter, pursuant to a Stipulation for Certifica-
tion Upon Consent Election in Case 23-RC-4611, an
election was held on March 17, 1978, under the supervi-
sion of the Regional Director in the following described
unit of Respondent's employees:
All production and maintenance employees, in-
cluding all employees in the Quarry Department,
Shipping Department, Kiln Department, Finishing
Mill Department, Slurry Mill Department, Power-
house Department, Plant Office Department, Main-
tenance and Repair Department, Electrical Depart-
ment, Laboratory Department, Oiler Subsection as
well as plant clerical employees, leadmen, truck-
drivers and mechanics, but excluding all other em-
ployees, including office clerical employees, order
clerks, guards, watchmen and supervisors as defined
in the Act, employed by Respondent at its San An-
tonio, Texas plant.
The tally of ballots disclosed 98 votes for and 72 against
the Union, leaving determinative 39 challenged ballots,
including 1 void ballot. Thereafter, on March 24, Re-
spondent filed timely objections to conduct affecting the
results of the election, alleging, in substance, that super-
visory employees assisted the Union by engaging in or-
ganizational activities. Subsequently, on May 24 and 25 a
hearing on objections and challenges was held before a
duly designated hearing officer, at which time Respond-
ent and the Union were afforded the opportunity to
present witnesses and/or other evidence. About July 13,
the hearing officer issued his report to the Board, recom-
mending that Respondent's objections be overruled, the
results of the election be upheld, and the Board certify
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit. On
September 8, 1978, the Board issued its Decision and
Certification of Representative which adopted the hear-
ing officer's findings and recommendations, and certified
the Union. Then, on October 3, the Union filed a charge
alleging violations of Section 8(a)(5) and (1) of the Act.
A complaint was issued by the Regional Director on Oc-
tober 13, alleging violations of Section 8(a)(5) and (1) of
the Act, arising, inter alia, from Respondent's refusal to
recognize and bargain collectively with the Union as the
exclusive collective-bargaining representative of the em-
ployees. In due course, on March 5, 1979, the Board
issued a decision and order finding, in pertinent part, that
since about September 25, 1978, and thereafter, Respond-
ent had refused to bargain collectively with the Union.
(240 NLRB 1168.) On February 15, 1980, on application
of the Board, the Fifth Circuit Court of Appeals en-
forced the Board's decision. NLRB v. Antonio-Portland
SAN ANTONIO PORTLAND CEMENT CO.
Cement Co., 611 F.2d 1148 (5th Cir. 1980); petition for
rehearing denied April 8, 1980.
2. The alleged unlawful conduct
a. The unilateral action
(1) Modification of past practice-disciplinary
procedures
Manuel Galindo became personnel manager and safety
coordinator on November 1, 1976, following a long
period of service in another capacity with Respondent.
Changes discernible to employees were accomplished
during Galindo's first year as personnel manager.3 Ga-
lindo entered his new assignment convinced of the neces-
sity of improving the recordkeeping system utilized for
disciplinary purposes. In January 1977, Galindo posted a
list of 19 rules which had been formulated in 1972 and
nominally applied thereafter. Posted also in this time
frame was a written notice enunciating and outlining a
progressive disciplinary procedure providing for:
1st violation-warning or 1 week's suspension with-
out pay, according to circumstances.
2nd violation-2 weeks' suspension without pay.
3rd violation-termination of employment.
Later, in December 1977, Galindo formulated two addi-
tional work rules which he combined with the existing
rules to form a set of 21 rules which he posted on the
bulletin board near the timeclock on December 15, 1977.
The first of the two new rules dealt with criminal activi-
ty affecting company property or resulting in absence
from work, and the second provided as follows:
21. Unless there are extenuating circumstances, ab-
sence without advance notice, or quitting without
advance notice is cause for immediate discharge and
no employee will be rehired under these circum-
stances.
Galindo did not distribute the new set of work rules to
the existing complement of employees following their
posting in mid-December, but he directed that thereafter
each new employee should ibe given a copy of the work
rules upon entering employment.4
On February 1, 1978, William Hopper assumed the po-
sition of plant manager. Soon thereafter he and Galindo
conferred in a series of meetings concerning plant disci-
pline as well as related recordkeeping and documentation
procedures. Following these meetings, changes were ef-
fectuated. Pursuant to a decision reached at the meeting,
employees counseled for any reason would receive a
copy of the documents pertinent to the counseling ses-
sion. Employees became aware of writeups in circum-
3 Francisco Torres so testified
° The testimony of Manuel Galindo, Alfonso Lopez, and documentary
evidence of record establishes the foregoing Lopez lacked certitude as to
when he first saw the list of 21 work rules, but he testified with assurance
that he observed the letter announcing a new, three-step policy of disci-
pline posted on the plant bulletin board together with a list of work rules
in December 1977 or January 1978 I find, based on Galindo's testimony,
that the list which Lopez observed was the revised list of 21 work rules
343
stances in which previously no writeup had been present-
ed to them. Discipline became more firm. Company
policy requiring employees to call in when absent was
clarified, employees were required under the clarified
call-in rule to notify the Company of their intention to
be absent from work, and 10 absences were defined as
sufficient to justify an informal notice that the "danger
zone" had been reached.5 The existing; three-step policy
of levying discipline was surplanted with a policy lodg-
ing with management and supervision the discretion to
tailor the severity of discipline to the "'seriousness of the
offense." Under this policy each breach of discipline was
examined separately, and management was given the dis-
cretion of terminating an employee f'or a first offense
deemed sufficiently flagrant or serious to warrant such
action. Galindo became aware that employees either did
not know the work rules or were protesting that they
had not been informed of them.
On May 10, 1978, each employee then comprising the
work complement was presented with a set of the 21
work rules and requested to sign it thus signifying re-
ceipt and awareness of the rules. This was accomplished
on a payday in coordination with the distribution of pay-
checks, and was the first time these rules had been indi-
vidually presented to the existing unit of employees. This
method of distribution was decided upon as a record-
keeping device to furnish proof to management of em-
ployees' knowledge of the existence of the rules.6
At all relevant times, it has been Respondent's practice
to record disciplinary actions taken against employees on
a form appropriate for that purpose, and the completed
form has been maintained in Respondent's personnel
records. A form entitled "Record of Reprimand and Dis-
ciplinary Action" was in use when Galindo became per-
sonnel manager, and he continued to use this form which
made no provision for the entry of employee responses,
contentions, or positions in answering charges by the
Company of an asserted breach of work rules. In Febru-
ary 1978, Galindo received from a supplier a pad of
forms entitled "Employee Warning Record," which con-
tained space for employee responses. After conferring
with Hopper in February, Galindo used these new forms
in some personnel action and ordered a supply of them.
Prior to March 17, the date of the representation elec-
tion, the new form had been utilized in some personnel
actions but the older form was also used in others. The
supply of new forms was received in April, after the
election. A supply of interplant communication forms,
known as speed letters, was also received in April but
these forms had been widely used since 1976.7
5 A memorandum clarifying this earlier revised policy was distributed
in November 1978
6 The credited testimony of Manuel Galindo and documentary evi-
dence or record supports the foregoing. The record otherwise clearly es-
tablishes the facts surrounding the presentation of the work rules to em-
ployees on May 10
7 The credited testimony of Manuel Galindo and documentary evi-
dence of record supports the foregoing findings I have carefully evaluat-
ed the testimony of witnesses called by the General Counsel, particularly
the testimony of Albert Seguin and Alfonso Lopez, which is either di-
rectly or inferentially inconsistent with these findings I reject that testi-
mony. I do so on the conviction that Galindo testified credibly with re-
Continued
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) The transfer of order room employees
In the latter part of 1977 or in early 1978, Robert Tie-
deman , Respondent 's traffic manager , with supervisory
responsibility over the order room employees , was in-
formed by Vice President Jackson that a decision had
been reached to move the order room from its existing
location in the office area to a new location in the scale
area of the plant . Jackson informed Tiedeman that the
move would take place in approximately 6 months and
that its purpose was to facilitate the efficient movement
of traffic and to improve communications and relations
with customers . The move had been a topic of conversa-
tion in the plant for a period of time prior to late 1977. It
was necessary for the Company to build a new facility
and the move was not accomplished until about July 3,
1978, at which time Respondent transferred its order
room employees from the main office facilities erected in
its production and maintenance area. The workplace of
the transferred employees in the new facility was in the
scale house where trucks were weighed . Upon the trans-
fer of the order clerks to the scale-house area, the task of
weighing trucks was transferred from six employees in
the bulk loading department to the order clerks. The
transfer of the order room employees and the realign-
ment of work assignments was accomplished without no-
tification to or consultation with the Union."
(3) The elimination of jobs and classifications
(a) Bulkloader assignments
Prior to July 3, 1978, a group of six unit employees
performed bulkloading duties. These included Mario
DeLeon, J. J. Garcia, Ramon Gomez, Lupe Sanchez,
Albert Seguin, and Jesse Rodriguez. On July 3, William
Hopper, Respondent's vice president, informed DeLeon
that his services in the scale room would no longer be
needed. As a consequence, DeLeon was reclassified from
bulkloader to laborer, suffering an hourly loss in wages
approximating $1.50. Similarly, Ramon Gomez was as-
signed to a job in the storeroom. As found, after July 3
the bulkloaders ceased performing the weighing func-
tions and their assignment related solely to the loading of
trucks.9
(b) Powerhouse assignments
About July 15, 1978, Respondent eliminated job posi-
tions and/or classifications in its powerhouse facility
spect to the time and method of obtaining the new employee warning
record forms, and documents in evidence support the use of that form
prior to the election The testimony of Seguin with respect to the receipt
of a supply of forms, including the employee warning record form and
the speed letter form, is based on speculation, deduction, and inference
which I conclude lacks merit. The testimony of Lopez with respect to
the utilization of the employee warning record was based on recollection
and is refuted by documentary evidence of record
B The foregoing is based on admissions contained in Respondent's
answer to the consolidated complaint and the credited testimony of
Robert Tiedeman, Betty Aramendia, and Randy Brust . I have also con-
sidered the testimony of Mario DeLeon, but credit it only to the extent it
is consistent with the above findings. I have also evaluated the testimony
of Albert Seguin, Jesse Rodriguez, and Jose Juan Garcia.
6 The credited testimony of Mario DeLeon, Albert Seguin, and
Manuel Galindo establishes the foregoing
which resulted in the displacement and/or changes in
work assignments in the bargaining unit. Danny Castillo,
Fred Contreras, John Hernandez, and George McKee
were transferred from their powerhouse assignments to
lower paying jobs elsewhere in Respondent's oper-
ation.10
Subsequently, in December 1978, Respondent eliminat-
ed the swing shift in the powerhouse. The swing shift
procedure of assigning work to powerhouse employees,
which had been in effect for several years prior to De-
cember 1978, allowed powerhouse employees to sched-
ule days off during normal workweeks. Subsequent to
December 1978, powerhouse employees worked 7 days
per week. Respondent effectuated these changes without
notification to, or consultation with, the Union.
Prior to the Board election on March 15, 1978, the
swing shift in the powerhouse had periodically been
changed and swing shifts in the electric and mechanical
repair departments had been eliminated. Respondent con-
tends that it had no obligation to notify or bargain col-
lectively with the Union over the elimination of jobs in
the powerhouse because the Union had been improperly
certified. Respondent further contends that the swing
shift in the powerhouse was eliminated prior to the elec-
tion and that its elimination was fully consistent with
past practice concerning that department and other de-
partments similarly situated.I I
(c) The C mechanic position-Fred Contreras
Fred Contreras entered Respondent's employ in
August 1972. His initial classification was that of laborer,
assigned to no specific department. In March 1974 he
was assigned to the powerhouse where he served first as
an engine wiper then as a C mechanic, to which job he
was promoted in January 1978. His designation as a C
mechanic came during his probationary period as an em-
ployee in that job classification. His hourly compensation
was at the rate of $5.79. On July 15, 1978, Contreras was
informed by Galindo that the Company was cutting
down on personnel in the powerhouse and Contreras did
not have sufficient seniority to remain . Contreras was re-
assigned as a laborer , and his hourly compensation was
reduced to $4.89 per hour. Following his reassignment,
Contreras also worked on an as needed basis as a cement
mill helper. He did not return to the C mechanic classifi-
cation.12
(d) The maintenance technicians
Prior to September 27, 1978, Jesus Contreras was em-
ployed in the truck maintenance shop as an oiler, per-
forming preventive maintenance work. Robert Guerra
and Jesse Rodriguez were employed in the truck mainte-
nance shop as mechanics. Contreras was responsible for
performing maintenance work on front-end loaders, small
10 George McKee worked only 1 day outside the powerhouse, but his
job classification in the powerhouse was changed. He received a lower
hourly rate as a result
11 The foregoing is based on admissions contained in Respondent's
answer and a consideration of the testimony of George McKee and
Manuel Galindo.
12 The credited testimony of Fred Contreras establishes the foregoing.
SAN ANTONIO PORTLAND CEMENT CO.
pay loaders, dump trucks, pickup trucks, and other vehi-
cles. Prior to September 27, neither Guerra nor Rodri-
guez performed these preventive maintenance duties.
About August 23, Contreras was instructed by Galindo
to obtain medical releases both from his personal physi-
cian and the company doctor clearing him for general
duty and releasing him from any medical limitations
which may have pertained as a result of a back injury
which Contreras sustained in 1976. An employee change
of status form was issued by Galindo in connection with
this directive. Contreras was in layoff status until late
September when he received medical clearance to return
to duty. On September 27 Contreras was informed by
Galindo that the oiler's job in the truck maintenance
shop had been eliminated and Contreras was given a
choice of two different positions. He considered the al
ternatives for a short period of time and during that
period experienced a decrease in hourly pay. Contreras
decided to accept assignment as a kiln operator- helper.
The new assignment constituted a reclassification and a
change in the location within the plant where Contreras
performed his work duties. The kiln helper's position of-
fered a greater opportunity for job advancement than
had the oiler position. After Contreras left his oiler posi-
tion, the preventive maintenance duties which he had
performed were performed by Guerra and Rodriguez.
They protested these added duty requirements to Plant
Manager William Dimick. Respondent did not notify the
Union of the contemplated changes in the duties of Con-
treras, Guerra, or Rodriguez and did not bargain collec-
tively with the Union concerning these changes.13
(e) Elimination of assistant bricklayer classification
and reassignment of Torres
Francisco Torres was employed as an assistant brick-
layer in the kiln for a period of approximately 2 years
prior to November 25, 1978. On November 25, Torres
was informed personally and by letter that his job classi-
fication was being changed from assistant bricklayer to
laborer effective immediately . This change was effectuat-
ed on the first workday following November 25, and the
hourly pay of Torres was reduced from $6.41 to $4.89.
This change was effectuated without notification to or
collective bargaining with the Union.14
13 The foregoing is based on the credited testimony of Jesus Contreras,
Manuel Galindo, Robert Guerra, Jesse Rodriguez, and William Dimick
14 The foregoing is based on the credited testimony of Francisco
Torres and documentary evidence of record. I have considered the con-
tents of the pretrial affidavit of Torres in light of his testimony as he ap-
peared as a witness before me, and I conclude, contrary to Respondent,
that Torres was not a supervisor within the meaning of Sec 2(11) of the
Act during the period of time when he served as assistant bricklayer His
credited testimony of record convinces me that, contrary to the facial im-
plications of his pretrial affidavit, Torres' direction of the small group of
bricklayers and helpers with whom he worked was routine in nature, and
he possessed no authority to hire or to otherwise affect employee status,
or to effectively recommend such action Any role which Torres may
have played in this latter regard was invariably subject to the independ-
ent judgment of his superiors, and it appears that any authority which
Torres possessed to arrange overtime work was accomplished within
well-defined, established, and circumscribed limitations controlled by
Torres' managers
345
(4) The general wage increase and improved
medical and health benefits
On January 1, 1979, Respondent granted a general
wage increase to employees in the bargaining unit, and
on May 1, 1979, notified bargaining unit employees that
it had effectuated an improvement in medical benefits
available under Respondent's health insurance program.
Respondent took these actions without notification to or
collective bargaining with the Union.'-'
(5) The retirement of Garcia
Jose Juan Garcia entered Respondent's employ in Oc-
tober 1953 He worked initially in the mechanic shop as
.a welder and mechanic's helper mainlaining the machin-
ery in the cement plant. In November 1971 he sustained
a back injury which necessitated disc surgery. He was
absent from work for a period of 1 year. When he re-
turned in November 1972, Garcia was assigned to the
shipping department where he served as a bulkloader
and scale operator, which assignment was physically less
demanding on Garcia than his former one. At pertinent
times, Garcia worked with five or six other employees in
performing the bulk loading and scale duties which en-
tailed many physical tasks and some bending of the back.
One of his fellow employees lodged a complaint con-
cerning Garcia's inability to assist in expeditiously re-
moving cement spills, an essential element of the overall
tasks of the bulkloaders. This complaint came to the at-
tention of Manuel Galindo. This led Galindo to review
Garcia's personnel 'file.
On January 26, 1979, Galindo called Garcia into his
office and instructed him to obtain an appointment with
the company physician to obtain an "up-to-date report"
on his back condition. Garcia worked on January 26. He
saw the company physician on Monday, January 29, at
which time an infected cyst was detected on Garcia's
back, and he was scheduled for surgery the following
Thursday. He entered the hospital on Thursday after-
noon to have the cyst removed, and he was discharged
from the hospital on February 4. Thereafter, on Febru-
ary 23, Garcia was examined by Dr. Huey, a physician,
pursuant to an appointment arranged by Respondent.
Garcia remained off duty pending the results of this
medical examination. 16
After keeping his medical appointment with Dr. Huey
on February 23, Garcia contacted Galindo and asked
permission to return to work. Galindo instructed him to
remain away from work until he obtained the results of
the medical examination. Garcia kept in telephonic con-
tact with the Company but received no clearance to
is The consolidated complaint alleges and Respondent's answer admits
these actions Galindo testified that in the past 5 years general wage in-
creases have been granted to employees on January 1
15 In the period between February 4 and 16, Garcia was on vacation,
and with the tacit approval of Stanley Smith, Respondent's vice presi-
dent, Garcia proceeded with his vacation plans, although the Company
had scheduled a medical appointment for him during his vacation period.
When Garcia returned from vacation on February 16, he found a written
notification advising him that another medical appointment had been
scheduled for him on February 19 Garcia was instructed by Galindo to
remain away from work pending the outcome of this appointment
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to work. During March, Galindo told Garcia that
he had reached the conclusion that Garcia should stay at
home until his back condition had improved. Dr. Huey
had informed Garcia that he was not to bend over fre-
quently or to lift more than 30 pounds Garcia told Ga-
lindo that the doctor had informed him his back condi-
tion was not going to improve. Galindo responded that
the Company could not "accept" Garcia the way he
was. Garcia considered himself as physically able at that
point in time to perform his job duties as he had been at
any time during his tenure . Galindo suggested the possi-
bility of disability retirement , but he did not demand that
Garcia pursue that option.
On April 4, 1979, Garcia received a copy of a written
communication dispatched by Galindo to Plant Manager
Dimick. The document was a minute of a conversation
between Garcia and Galindo which transpired on March
30. The content of the minute was as follows:
I had a brief conversation with employee Garcia
at 1:15 P.M. today during which I informed him
that we had studied the report that Dr. Dicky Huey
had submitted to us on his recent back examination.
I explained to Mr. Garcia that in view of I) The
fact that Dr. Huey says that the work restriction of
not lifting any thing in excess of thirty pounds, and
no frequent bending remains unchanged and 2) the
contention by management that to put him to work
under this restriction would be extremely hazardous
to the point where he could very possibly reinsure
himself. I told him that we just don't have any
work that he could perform under this condition.
I then suggested to him that perhaps he could
apply for workmen's compensation insurance bene-
fits and he answered that he had already settled
with the insurance carrier on this injury a long time
ago.
He said that the only other alternative that he
had would be to apply for benefits from the Texas
Employment Commission but that he was pretty
sure that he could not qualify as long as he re-
mained on the Company payroll. He asked me if he
was being terminated at this time , and I said no.
I told him that maybe he should check with the
Social Security administration for medical disability
retirement using Dr. Huey's report as reference. He
said that he was going to do this and I told him to
keep us informed if we could be of any assistance in
this area.
In accordance with the limitations imposed by Ga-
lindo, Garcia remained in an off-duty status. Respondent
neither reclassified Garcia nor terminated his employ-
ment. He did not qualify for unemployment compensa-
tion. He received no wage income. He continued to
insist that he was physically able to return to his former
duties.
In early May, Garcia , having expressed some doubt to
Galindo as to whether he would qualify for disability re-
tirement , underwent a physical examination by Dr. King-
man, his personal physician . Dr. Kingman advised Re-
spondent that Garcia was limited in his capacity to per-
form work requiring lifting, twisting, bending, or exten-
sive walking. Thereafter, Garcia applied for disability re-
tirement, using the physician's medical statement as sup-
port for his application. The application was completed
in late June and made retroactive to June 1, 1979.
Garcia credibly testified that he did not desire to retire
because he would experience a loss in wages of $6.35 per
hour and receive retirement benefits of only $134.40 per
month. He testified also that, based on his description of
his job duties, both Dr. Kingman and Dr. Huey had told
him that they did not see why he could not continue in
his job as bulkloader. Garcia did not endeavor to consult
with the Union concerning his retirement discussions
with Respondent, nor did he request the Union to inter-
vene on his behalf. He contacted the Union only after he
had accepted retirement. On July 31 a representative of
the Union dispatched a letter to William Hopper, Re-
spondent's president, contending that Garcia had been
forced into retirement and protesting the action of the
Company in this regard. The letter expressed the desire
of the Union to meet with Respondent for the purpose of
discussing "the action taken against this [Garcia] employ-
ee." On August 3 Hopper responded by requesting the
Union to contact the Company's legal counsel. Thereaf-
ter, on August 15, the Union, through counsel, dis-
patched to Respondent's attorneys copies of the ex-
change of correspondence which had transpired between
the Union and Hopper. He requested a meeting on the
subject of Garcia's retirement. The Union received no
response to this correspondence.
Respondent did not consult or bargain collectively
with the Union concerning any aspect or phase of Gar-
cia's retirement. Since approximately 1960 Respondent
has maintained a retirement program containing a pen-
sion feature, and Garcia was not the first employee to
retire under this program.' 7
b. Alleged violations of Section 8(a)(3) and (4) of the
Act
(1) Mario DeLeon
Mario DeLeon entered Respondent's employ in June
1964 and became a bulk loader in early 1975. During the
organizing campaign which had preceded the March
1978 representation election, DeLeon had served on the
Union's organizing committee , had worn a union button,
and had solicited employees to sign authorization cards.
In April 1978 DeLeon was elected president of the
Union. On May 24 and 25, 1978, a hearing on objections
and challenges arising in connection with Case 23-RC-
4611 was held at the Board's resident office in San Anto-
nio, and DeLeon attended as did Hopper, Galindo, and
other supervisory personnel of Respondent. Other rank-
and-file employees attended the hearing. During the
course of the hearing, DeLeon sat in the front row near
the counsel table and on one occasion during the pro-
17 The foregoing is based on a composite of the credited testimony of
Jose Juan Garcia , Manuel Galindo, and documentary evidence of record
I have also considered a stipulation of the parties and the testimony of
Albert Seguin and Don Bilhps in finding these facts
SAN ANTONIO PORTLAND CEMENT CO.
ceeding he was called briefly to the counsel table for
consultation.
On July 3, 1978, DeLeon was called to Galindo's
office, and he met first with Galindo and then Hopper
joined them. During the course of the meeting , Hopper
told DeLeon that as the Company was streamlining the
operation of the shipping department only four of six
present order room employees would be retained in the
reorganized order room. Hopper informed DeLeon that
because he had the least seniority in his group, he would
not be needed as a bulkloader. Hopper told DeLeon,
however, that he would be retained in the labor force at
the plant. Of the six bulkloaders with whom DeLeon
had worked prior to July 3, DeLeon had the least senior-
ity plantwide. Ramon Gomez, who had greater
plantwide seniority, but who had served in the bulk-
loader classification less time than had DeLeon, was also
reclassified from his bulkloader position to a storeroom
keeper. In reassigning employees to available job open-
ings within the plant, Respondent had a policy of ac-
cording preference in the selection of available positions
to the reassigned employees with the greatest amount of
plantwide seniority. i $
DeLeon's transfer to the labor classification was made
effective July 3. He was assigned to work in close prox-
imity to mills 1 and 2 in the vicinity of the oil room, and
DeLeon found the working conditions "dusty, hot,
noisy" and he was not content with his new duties, con-
sisting primarily of clearing up spilled cement through
use of a broom, shovel, and front-end loader. DeLeon
performed these work tasks during the workday on July
3. July 4 was a holiday, and on July 5 DeLeon reported
for work and was assigned to work in the vicinity of a
kiln, which was spewing clinkers. It was DeLeon's work
task to shovel the clinkers into a wheelbarrow and trans-
port them from the kiln area to a pit where they were
dumped. He performed these work tasks with another la-
borer, Domingo Paz. Other employees in the labor clas-
sification performed these work tasks at various times, as
needed. In an emergency, employees from other depart-
ments and in other job classifications were assigned to
shovel clinkers.
DeLeon's hourly pay as a bulkloader had been $6.39
per hour, and his hourly compensation as a laborer was
$4.84.
On the morning of July 6, DeLeon contacted Galindo
by telephone and informed him that he was taking that
day and the next day off for the purpose of job inter-
views and that during the weekend he would prepare
and mail a written resignation.
By letter dated July 9, DeLeon submitted his resigna-
tion wherein, in substance, he characterized his demotion
as unjustified in light of his long period of service with
the Company; attributing his demotion to his own efforts
in "trying to bring the union into this plant"; describing
himself as "appalled" by the "unbearable" heat and "ter-
rible" dust and "loud" noise present in the area of the
plant in which he was required to work ; and asserting
is Two of the four order room employees who absorbed the scale or
weighing functions performed by the bulkloaders prior to the realignment
of the order room duties had less seniority than DeLeon.
347
his unwillingness "to pay in this manner" for his "beliefs
and convictions." DeLeon did not work, in the employ of
the Company after July 5, and he credibly testified that
the reduction in pay which he experienced in being re-
classified as a laborer was a reason for his resignation.
He testified , in this regard , that he could not sustain his
family on the reduced income resulting from this reclas-
sification.
DeLeon credibly testified that at no time during the
course of his employment did Galindo or any other su-
pervisor mention his involvement in union activities. He
also testified that other employees in the plant wore
union buttons and that the Company willingly permitted
him to honor the subpoena requiring him to be present at
the Board hearing on objections which transpired after
the election. DeLeon also testified that the duties which
he had performed as a bulkloader were "more or less a
physical job."'9
(2) Fred and Jesus Contreras
The hearing in the instant proceeding was initially
scheduled to commence on February 27, 1979. Fred
Contreras and Jesus Contreras were subpoened by the
General Counsel to appear as witnesses at the hearing on
February 27. On February 26, Fred Contreras informed
Galindo of the subpoena and at Galindo's request
showed the subpoena to Galindo . Contreras was told
that an effort would be made to find a replacement for
him for February 27. Similarly, on February 26, Jesus
Contreras informed supervision that he had been subpoe-
naed to appear at the unfair labor practice hearing on
February 27, and he secured permission to be absent
from work on that day. Alfonso Lopez was also subpoe-
naed to appear at the February 27 hearing.
By telegraphic order dispatched on February 26, the
February 27 hearing was postponed. Respondent was ad-
vised of the postponement, and Fred and Jesus Contreras
learned on February 26 of the postponement. They made
no effort to contact the Company but reported for their
normal 'shifts on the morning of February 27. Galindo
met both Fred Contreras and Jesus Contreras and in-
structed them to return home because he had secured a
replacement for each of them for that day. Both Fred
and Jesus Contreras remained off duty on February 27
and received no compensation for that workday. Galindo
credibly testified that he refused to permit Fred or Jesus
Contreras to work because the replacement personnel he
had secured had made a commitment to the Company to
report to work on February 27, had reported for duty,
and the Company had the responsibility to compensate
them accordingly. No replacement had been obtained for
Alfonso Lopez and he was permitted to work.20
19 The foregoing is based on a composite of the credited testimony of
Mario DeLeon, Manuel Galindo, and documentary evidence of record I
have also considered the testimony of John Hernandez in connection
with the role of seniority in the reclassification and reassignment of em-
ployees to vacancies within the plant
20 The General Counsel and counsel for the Charging Party contend
that the record contains an admission on Galindo 's part that he had re-
fused to permit Jesus Contreras to work on February 27 because he had
received a subpoena to appear at the Board hearing It is their view that
Continued
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The disciplinary interviews
(1) Mario Aranda
Mario Aranda was initially employed by Respondent
in February 1972 and in 1973 was classified as an oiler,
in which capacity he worked on and before September
28, 1978, when he was terminated. Aranda's duties as an
oiler required him to oil and grease machinery and
moving parts in various areas of the plant. Aranda was
assigned to the third shift which operated between 11
p.m. and 7 a.m.
On Monday, September 25, 1978, upon reporting to
work, Aranda found that a motor in one of the mills was
overheating and smoking. Aranda reported this to the
mechanic and the foreman, and the mechanic told
Aranda to keep putting oil on the motor. Aranda com-
plied, and the engine continued to operate during the
balance of the shift. The following day Aranda reported
to work, and his timecard had been removed from the
time rack. Aranda was instructed to go home and to
report to Galindo the following day, Wednesday, Sep-
tember 27. He reported at the appointed time and waited
in Galindo's presence in Galindo's office for Dimick to
arrive. Dimick arrived in due course, and he informed
Aranda that they were meeting because Aranda had
failed in his duty to keep the bearing in a piece of mill
machinery well lubricated resulting in damage to the ma-
chinery. Dimtck then proceeded to read the entry con-
tained under the heading "company remarks" on an em-
ployee warning record which had been prepared for use
in the meeting. Aranda stated that he was having diffi-
culty comprehending Dimick's statements and requested
that he be given assistance in interpretation because he
had difficulty with the English language. Galindo stated
that he was available to translate for Aranda. Galindo
then read in Spanish the company remarks entries con-
tained on the warning record, pausing periodically to
make certain Aranda understood. When he had complet-
ed reading the entry, Galindo pointed to the employee
remarks section of the warning record form and told
Aranda that this section was reserved for his comments.
Aranda responded in Spanish, and his remarks were
translated into English and entered on the warning
notice as, "I did my job as I thought I ought to. I put
some oil and I had some witnesses too." As Aranda
made this statement , he made a hand gesture to outside
the building, adding that Henry Zapata and Conda Mar-
tinez could verify his statement and he would like them
to be permitted to come in . Galindo declined , stating
that they did not need any other participants. Galindo
then read to Aranda the entries which had been made on
the employee warning record under the heading,
"Action To Be Taken." In substance, the entry informed
Aranda that the Company's investigation had disclosed
that the piece of equipment in question had been satisfac-
torily lubricated during the two shifts which had pro-
this asserted admission carries over to allegedly reveal the true and accu-
rate reason why Galindo refused to permit both Fred and Jesus Con-
treras to work The record context of this alleged concession serves to
eradicate much of the force of this contention , leaving it only facially
cogent
ceeded Aranda's on September 25 and that Aranda was
being terminated effective immediately. Aranda refused
to sign the warning notice and after a brief delay to
permit Aranda's supervisor to report to the office for the
purpose of signing the warning notice the meeting was
terminated . Aranda has not served in Respondent's
employ since September 27.21
(2) Pedro Estrada
Pedro Estrada was employed by Respondent in Sep-
tember 1978. He worked initially as a laborer and later as
a kiln helper, in which capacity he was employed at the
time of his termination in December 1978.
On the morning of December 16, Estrada reported to
work 20 minutes late. His immediate supervisor Sylvester
Sorola asked him the reason for his tardiness. Estrada
claimed that he had overslept because he had taken his
child to a medical clinic the previous night. This was a
false explanation , and Respondent had reason to suspect
this. Later in the shift Estrada was told by Galindo to go
home and report back on Monday, December 18, at 10,
a.m. Estrada did as instructed . In the meantime , an inves-
tigation undertaken by Respondent revealed that Estrada
had given a false excuse for being late on December 16.
Estrada reported to Galindo on the morning of De-
cember 18. He met Galindo and accompanied him to Di-
mick's office , some 15 or 20 feet away. While enroute to
Dimick 's office, Estrada said nothing. Galindo and Es-
trada entered Dimick's office together but Dimick was
not there. Galindo left to find Dimick, and the meeting
commenced when Dimick and Galindo returned.
At the outset of the meeting, Galindo asked Estrada
why he had lied to Sorola about his tardiness on Decem-
ber 16. In substance, Estrada conceded that he had lied
to Sorola and had, in fact, overslept on the morning of
December 16. He stated , in effect, that his false explana-
tion to Sorola had been influenced by the fact that Es-
trada was taking medication for high blood pressure. The
entry made in the employee remarks section of the em-
21 The foregoing is based on a composite of the credited testimony of
Mario Aranda, Manuel Galindo , William Dimick, and documentary evi-
dence of record . I credit the testimony of each witness only to the extent
that it is consistent with the above findings . Aranda bad a manifest lack
of proficiency in the use and understanding of the English language, and
his recollection was less than acute , although he impressed use as a wit-
ness who endeavored during the course of his testimony before me to ac-
curately and truthfully recount the salient events pertinent to his Septem-
ber 27 interview , as he presently recalled them I am convinced upon a
careful evaluation of this testimony and that of Galindo and Dimick that
contrary to the testimony of Aranda, Aranda made no specific request
that he be permitted to have Alfonso Lopez present to assist him during
the course of the meeting I am convinced that he was mistaken in this
regard, and I do not credit his testimony. However, I credit Aranda's tes-
timony that he identified two individuals as witnesses to his asserted
proper performance of duty on September 25 and requested their partici-
pation in the meeting On the other hand, I am unable to credit the testi-
mony of Galindo to the effect that he offered to permit Aranda to bring
one employee witness into the meeting to provide information concerning
Aranda's performance of duty on September 25, but that Aranda declined
this request I find this testimony implausible in light of both Aranda's
own affirmative testimony with respect to this matter and his reference in
the employee remarks section of his warning notice to the existence of
witnesses . I am convinced that if such an offer had, in fact, been made
Aranda would have availed himself of it
SAN ANTONIO PORTLAND CEMENT CO.
ployee warning record issued as a result of the Decem-
ber 18 meeting contained the following:
Mr. Estrada stated that he had lied to Sorola. He
had had little sleep the previous night . He has been
working while taking medication for high blood
pressure.
At the end of the counseling meeting , Galindo told Es-
trada that he was terminated . Estrada received a copy of
the employee warning notice the following afternoon at
the plant.22
(3) Richard Gomez
Richard Gomez commenced his employment in Octo-
ber 1974. He worked initially as a laborer and was em-
ployed as an oiler in January 1979 when he was suspend-
ed for 4 days for sleeping while on duty.
In this regard , at approximately 10:45 a.m . on January
17, 1979, the plant superintendent , R. A. Canchola,
found Gomez sleeping in the plant while on duty.
Gomez was sent home by Galindo with instructions to
report to the plant the following day to discuss the
matter. Gomez reported to Galindo 's office at the ap-
pointed time. While conversing with Galindo in Galin-
do's office , he asked if he could have union representa-
tion, and Galindo responded that Gomez would have to
ask Dimick when they arrived in Dimick 's office. Ga-
lindo and Gomez went together to Dimick 's office, and
Galindo informed Dimick that Gomez would like to
have union representation . Dimick asked Gomez if he
wanted union representation and if he desired to have
any one in particular represent him. Gomez answered
that he would like to have Allfonso Lopez represent him.
He was informed that an attempt would be made to
locate Lopez , and Dimick delayed opening the meeting
until Lopez arrived . In due course Lopez came to Di-
mick's office , and Galindo thereupon stated that the
meeting would begin and it would be tape recorded. Ga-
lindo then asked Gomez to explain why he had been
sleeping on the job . Gomez responded and this evoked a
series of questions from Galindo. In the course of this ex-
change, Lopez interjected a question which Gomez an-
swered . Then, as Galindo inquired further into the
events surrounding the sleeping incident, Lopez endeav-
ored to ask questions relating to Gomez ' normal work
routine and his work performance on the day in ques-
tion . Galindo instructed Dimick to tell Lopez he was
present merely as a witness and that he was not supposed
to speak. Dimick did as instructed and Lopez complied.
22 The foregoing is based on a composite of the credited testimony of
Pedro Estrada, Manuel Galindo , William Dimlck , and documentary evi-
dence of record In finding that Estrada made no remarks to Galindo
while they walked to Dimick's office , I reject Estrada 's testimony that he
requested permission to have Alfonso Lopez present at the meeting to be
held in Dimick 's office . I have carefully evaluated Estrada's testimony on
direct and cross-examination and the content of his pretrial affidavit His
testimony as he appeared as a witness at the hearing before me was not
convincing . There are variations between his pretrial affidavit and his
witness stand testimony , and he appeared to have difficulty in recalling
salient events On the other hand, Galindo and Dlmick testified convinc-
ingly that Estrada made no request for representation at any time on De-
cember 18
349
He made no further utterances during the course of the
meeting.
As a result of the deliberations, and in light of rule 19,
Gomez was suspended for 4 days.23
(4) Jesus Contreras
Jesus Contreras was injured on the job on January 15,
1979, and he did not work the 2 days following . On Jan-
uary 17 he informed Galindo that he would require med-
ical attention and had made a medical appointment for
the following day. Thereafter for a period of several
days he had daily medical appointments, and between
January 18 and 27 Contreras kept in close telephonic
contact with Galindo . He was scheduled for duty on
January 28-30, but did not contact Galindo until the
afternoon of January 30.
On January 31, Contreras was requested by Galindo to
go to Dimick 's office . Dimick, Galindo, and Sorola were
present, and Adon Gomez , his supervisor , was also in at-
tendance . Dimick told Contreras that he had broken
company rules by failing to call in on January 28 and 29.
Contreras asked if the meeting was being held for the
purpose of taking disciplinary action against him. Dimlck
responded that this was the principal purpose of the
meeting . Contreras then asked for union representation,
and Dimick granted his request , inquiring if Contreras
desired to have anyone in particular present. Contreras
asked that Alfonso Lopez be brought to the meeting, and
the discussion was interrupted to permit Lopez to report
to the office . During this interval , in reponse to Con-
treras' inquiry as to which of the company rules he had
broken , Dimick had Galindo obtain a copy of the work
rules, and Galindo handed these to Contreras . No dia-
logue ensued until Lopez entered the meeting.
When Lopez entered Dimick 's office, he inquired
whether he was present in his capacity as a union repre-
sentative or as a witness . Dimick responded that the
Company did not recognize any union and that he had
never been informed that the employees had a union at
the plant. He told Lopez that he could not say anything.
The meeting progressed with Contreras fully explicating
his explanation for not having called in on the days in
question . Contreras was given a 3-week suspension for
violating rule 11 of the company work rules.24
B. Conclusions
1. Modification of personnel practices
I find that the General Counsel failed to establish by
the preponderance of the credible evidence that Re-
spondent violated Section 8(a)(5) of the Act by modify-
ing its past practice of levying discipline or reporting tar-
diness and absenteeism.
The evidence establishes that in December 1977 the
first stirrings of union organizational activity transpired
2 3 The foregoing is based on a composite of the credited testimony of
Richard Gomez , Manuel Galindo, William Dimick, and documentary evi-
dence of record.
24 THe foregoing is based on a composite of the credited testimony of
Jesus Contreras , William Dimlck , Manuel Galindo, Alfonso Lopez, and
documentary evidence of record.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Respondent's San Antonio plant. The evidence further
establishes that in the same month the year-long effort of
Manuel Galindo to improve the disciplinary and person-
nel recordkeeping procedures of the Company achieved
initial fruition with the formulation and posting of a re-
vised set of 21 work rules. Then, in February 1978, from
William Hopper, the newly appointed plant manager,
Galindo received clearance to accomplish changes dis-
cerned by Galindo as necessary to the operation and ad-
ministration of an efficient and effective disciplinary
policy. The record reveals, and I find, that the basic atti-
tudinal motivation for these changes had resided with
Galindo prior to any organizing effort at the plant, and I
find the evidence insufficient to suggest that the emer-
gence of the Union was a motivating consideration either
in the timing or substantive nature of the changes adopt-
ed. Thus, the record establishes that changes clearly dis-
cernible to employees were accomplished in the person-
nel filled by Galindo in the first year of his tenure as per-
sonnel manager. Moreover, Galindo entered upon his
duties with full awareness of the need for "a profession-
alized recordkeeping system" which Galindo described
as "non-existent" in 1976 when he embarked upon his
duties as personnel manager. In sum, the changes which
Galindo accomplished in the weeks preceding the March
17 election resulted, I find, from the clearance given his
initiatives by new plant manager William Hopper and
not from the dictates of any antiunion policy The
changes that were wrought had conceptual origins ante-
cedent to the Union's organizing efforts and the policy
decisions of management authorizing and directing these
changes were made prior to the March 17 election in
which the Union was selected as the bargaining repre-
sentative of unit employees. See generally Mike O'Con-
nor Chevrolet, 209 NLRB 701, 703 (1974); cf. Anchortank,
Inc., 239 NLRB 430 (1978).
With specific reference to the constituent elements of
the General Counsel's proof, I conclude and find that the
record evidence establishes that in December 1977 the
revised set of 21 work rules was adopted and posted on
the plant bulletin board. I reach this conclusion based on
the credited testimony of Galindo. Contrary to the thrust
of the testimony of employee witnesses called by the
General Counsel, I find that, as Galindo credibly testi-
fied, these posted rules did not receive widespread atten-
tion and notoriety on the part of the employee comple-
ment. In carrying out his functions as personnel manager,
I find, Galindo recognized this fact and invoked a proce-
dure which would assure him, as a manager, that the em-
ployees had each received personal service, as it were, of
the revised work rules, and not merely constructive
notice of a type arising from the posting of the revised
set of rules on the company bulletin board. Thus, I find,
contrary to the General Counsel, that the May 10 distri-
bution of the work rules to the unit employees constitut-
ed neither initial issuance nor publication of the revised
work rules. I conclude and find that this issuance and
publication had transpired in December 1977, prior to
the designation of the Union as the bargaining represent-
ative of unit employees, and no violation of Section
8(a)(5) of the Act arose from the adoption or issuance of
these rules. A violation of Section 8(a)(5), albeit techni-
cal in nature, arose from the unilateral act of requiring
employees to sign copies of the work rules on May 10.
Central Cartage, Inc., 236 NLRB 1232, 1259 (1978).
I further conclude and find from the credible evidence
of record that the "new" employee warning record form
was adopted and utilized prior to the March 17 election,
and the record proof of a continued use of the predeces-
sor form for an interim period after the election is not
sufficient, in my view, to negate the convincing evidence
both of adoption and use of the new employee record
form prior to the time the Union became the bargaining
representative of unit employees and thereby gained the
right to be consulted. I conclude, as urged by Respond-
ent, that considerations relating to the supply and avail-
ability of the new form dictated the combination use of
the old and new form for a short period after the elec-
tion. Cf. Central Cartage, Inc., supra.
Nor does the evidence preponderate in favor of a find-
ing that the procedures in reporting tardiness or absen-
teeism were modified prior to the March 17 designation
of the Union as the collective-bargaining representative
of Respondent's employees. I find from the record evi-
dence that the policy with respect to both tardiness and
calling in to report intended absences remained constant
at all times relevant to this proceeding. Although, subse-
quent to the March 17 election, a memorandum was
issued clarifying the call-in procedure, this did not serve
as a substantive amendment to the call-in procedure,
which had been in effect prior to the election, and no
violation of Section 8(a)(5) of the Act resulted. See Ken-
dall College, 228 NLRB 1083 fn. 3 (1977).
Finally, I find no merit in the General Counsel's-con-
tention that Section 8(a)(5) and (3) of the Act were vio-
lated by virtue of Respondent's asserted action of impos-
ing a more stringent form of discipline after the election.
In sum, I conclude that operative decisions to invest
management and supervision with a higher degree of
control and discretion in assessing and maintaining disci-
pline were reached prior to the election and were the
direct and culminating effect of an effort on Galindo's
part, spanning many months, to bring structure and
credibility to the disciplinary process. Thus, I find that
the policy of lodging discretion with management and
supervision to tailor discipline to the severity of the con-
duct was formulated and adopted as a policy prior to
March 17. Also adopted in the preelection period was
the policy of more open communication whereby em-
ployees receiving counseling were given copies of docu-
ments pertinent to the work rule violation about which
they were being counseled. In keeping with the adoption
and posting in December 1977 of the revised list of 21
work rules, more warning notices were issued. These
considerations, in their composite, portray a more "firm"
form and policy of discipline, but it was a management
policy concerning which, prior to March 17, Respondent
had no obligation to bargain, and there is no warrant for
concluding that antiunion, discriminatory considerations
motivated the adoption of these policies prior to the
election.
Moreover, I discern no violations of Section 8(a)(3)
and (5) of the Act subsequent to March 17. Having
SAN ANTONIO PORTLAND CEMENT CO.
adopted and implemented disciplinary policies prior to
the election which were within the permissible scope and
purview of Respondent's management prerogatives, Re-
spondent was under no obligation to abandon these poli-
cies, or to consult with the Union over their application.
Cf. Amoco Chemical Corp., 211 NLRB 618 (1974). Nu-
merical differences in the number of disciplinary actions
taken flow normally from a "firmed up" policy but do
not necessarily denote discriminatory motivation; and the
General Counsel's evidence disclosing assessment of dis-
cipline against Pedro Estrada on December 18, 1978, and
Jesus Contreras' on January 31, 1979, more stringent than
had been assessed a year earlier against Alfonzo Lopez is
entirely consistent with a policy of firm discipline unre-
lated to antiunion hostility. Notably, the General Counsel
does not allege that the discipline meted out to Estrada
and Contreras was itself discriminatorily motivated and
independently violative of Section 8(a)(3) of the Act.
Similarly, the impressions of Alfonzo Lopez and Fuentes
that discipline became more retributive following the
election than was the case prior thereto are premised pri-
marily on impressions of questionable foundation. More-
over, documentary evidence of record reveals that prior
to any organizing effort by the Union, employees who
were detected sleeping during duty hours were disci-
plined, and this serves to refute their testimony concern-
ing disparate, postelection treatment of employees found
sleeping on the job. In the total circumstances, I find that
evidence brought forth by Respondent in refutation of
this facet of the General Counsel's case of more stringent
discipline after the election preponderates, and no basis
arises for drawing an adverse inference from a decision
on Respondent's part not to marshall and introduce sta-
tistical evidence from its personnel records. Accordingly,
I find no violation of Section 8(a)(3) or (5) arising from
either the adoption or implementation of revised discipli-
nary policies and practices.
2. The bulkloader assignments-the order room
transfer
On the other hand, I find Respondent violated Section
8(a)(5) as a result of its unilateral actions affecting em-
ployees in the bulk loader classification. The record evi-
dence establishes that all decisions relevant to the trans-
fer of order room employees to a new facility in the vi-
cinity of the scales were reached prior to the March 17
election, and only the physical relocation of the order
room clerks remained. I find, however, that the actual
reassignment process which affected the classification
and salaries of unit employees was not accomplished
until on and after July 3, 1978, a time when the Union
commanded the status as the majority collective-bargain-
ing representative. As it is clear from the record evi-
dence that unit employees DeLeon and Ramon Gomez
were adversely affected in their job classification as a
result of this action, and as it is well established that a
substantive change in job classification of unit employees
is a mandatory subject of bargaining, I conclude that Re-
spondent violated Section 8(a)(5) of the Act by a failing
to notify the Union of the contemplated changes in the
assignment of bulkloaders and the consequential reclassi-
fication of DeLeon and Gomez. See Latin Watch Case
351
Co,;'-156 NLRB 203, 208 (1965); Greater New Orleans Ar-
tificial Kidney Center, 233 NLRB 1467, 1468 (1977).
Nothing in the statute required Respondent to bargain
with the Union regarding its decision reached prior to
March 17 to reorganize and relocate the order room, and
nothing in the mandate that it consult and bargain con-
cerning that decision as it affected DeLeon and Gomez
should be construed as trenching upon Respondent's
right to have effectuated the change. See, e.g., Interna-
tional Harvester Co., 236 NLRB 712, 713 (1978); Holiday
Inn of Benton, 237 NLRB 1042, 1043 (1979).
3. Elimination of other jobs and classifications
The same principles controlled the elimination of jobs
in the powerhouse, the elimination of the swing shift in
the powerhouse, the transfer of Fred Contreras from his
assignment as a C mechanic in the powerhouse, the
elimination of the oiler's job in the truck maintenance
shop, and the reassignment of Francisco Torres from his
position as assistant bricklayer in the kiln to that of la-
borer. It is clear from the record that, each of these ac-
tions, which resulted either in the reassignment of unit
personnel or in substantive modification of their work as-
signments, was taken after the designation of the Union
and without notification to or consultation with the
Union. It is of no significance that sound management
considerations may have guided Respondent in the effec-
tuation of these changes. General Electric Corp., 177
NLRB 401, 405 (1969). Neither is it significant that Fred
Contreras was serving in his probationary period when
he was reassigned. He was told by Galindo that the
reason for his transfer was the cutback in personnel in
the powerhouse, and his transfer was effectuated on the
basis of a lack of seniority in the position. It is clear from
the record that, with respect to Contreras, as with other
reassignments here under scrutiny, his change of duty as-
signments and responsibility came as a consequence of
unilateral actions taken by Respondent. Under well-es-
tablished precedent, an employer is not free to make uni-
lateral changes in working conditions of employees in
the unit during the pendency of postelection challenges,
and the Union had the right after obtaining a numerical
majority in the election, and while objections were pend-
ing, to be consulted concerning the possible effects of
these actions. See Allis-Chalmers Corp., 234 NLRB 350,
354 (1978); Everbrite Electric Signs, 222 NLRB 679, 685
(1976); Kendall College, 228 NLRB 1083, 1085-1086
(1977). General Electric Corp., supra. Moreover, Re-
spondent was under the legal obligation to honor the
Board's resultant certification until and unless that certifi-
cation became invalidated by a reviewing' court. See,
e.g., NLRB v. W. R. Grace, 571 F.2d 279 (5th Cir. 1978).
Dixon Distributing Co., 211 NLRB 241, 244 (1974).
4. The general wage increase and improved medical
and health benefits
Respondent concedes that it granted wage increases to
unit employees on January 1, 1979, and effectuated im-
provements in health benefits of unit employees on May
1, 1979, without consulting with the Union or offering to
bargain collectively concerning these matters. It is Re-
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's contention that these actions were permissible
because the Union had not been properly certified by the
Board . This constitutes no defense , and in any event the
Board 's action in certifying the Union has been sustained
on appeal . NLRB v. San Antonio-Portland Cement Co.,
611 F.2d 1148 (5th Cir. 1980); Laney & Duke Terminal
Warehouse Co., 151 NLRB 248, 266-267 (1965), enfd. in
pertinent part 369 F.2d 859, 868-869 (5th Cir. 1966);
Chatham Mfg. Co., 172 NLRB 1948 ( 1968).
5. The retirement of Garcia
I find merit in the General Counsel's contention that
Respondent violated Section 8(a)(5) of the Act by failing,
on request, to bargain with the Union concerning the re-
tirement of Jose Juan Garcia. In so concluding, I reject
Respondent's assertion that Garcia retired voluntarily, in-
voking his option to accept the benefits of a retirement
plan established and operative prior to the designation of
the Union. The facts of record establish that Garcia re-
sisted retirement and acquiesced only as a result of Re-
spondent's maneuvers which foreclosed any viable
option and visited untenable economic hardship on him.
Deprived of income and prohibited from returning to
work in Respondent's employ, Garcia retired. His retire-
ment was forced and was not voluntary. This consider-
ation brings the instant matter within the ambit of NLRB
v. Katz, 369 U.S. 737, 742, 747-748 (1962); Master Slack
Corp., 230 NLRB 1054 (1977); and Guerdon Industries,
199 NLRB 937, 939, 941 (1972); cf. A-V Corp., 209
NLRB 451, 452 (1974); NLRB v. Allis-Chalmers Corp.,
601 F.2d 1870 (5th Cir. 1979), enfg. in pertinent part 234
NLRB 350 (1978). Employer actions affecting the layoff
or termination of employees involve "wages, hours, and
terms and conditions of employment" within the mean-
ing of Section 8(d) of the Act. Master Slack, supra. With-
out assessing the precise parameters of the right of a ma-
jority representative to be consulted concerning the con-
templated layoff or termination of unit employees, the
right of consultation would seem clearly to attach to a
termination, as here, accomplished, albeit lawfully,
through the imposition of sanctions and economic per-
suasion , and under the aegis and coloration of retirement
benefits deriving from and available under an existing re-
tirement plan. While no substantive changes in the retire-
ment plan, as such, were involved in the termination of
Garcia and in the extension of retirement benefits to him,
Garcia's medical history; the conflicting opinions as to
his physical capacity to continue in his job; the ambigu-
ities which surrounded his precise status of employment
prior to his retirement; the economic suasion which ulti-
mately resulted in his retirement; and, indeed, when
viewed through the eyes of Garcia, a layman, the nu-
ances and technicalities of the retirement program itself,
all combined to bring Garcia's case fully within the con-
templation of Section 8(d) of the Act and to invite, if not
mandate, the ameliorating and elucidating influences of
the collective-bargaining process. See Guerdon Industries,
supra; Master Slack Corp., supra. In the face of the
Union's status as the majority representative of Respond-
ent's employees, including Garcia, and despite its legal
obligation to treat with the Union with respect to bar-
gainable issues during the pendency of the challenges to
the election, Respondent bypassed the Union and forced
Garcia to retire. This conduct was unilateral with the
meaning of NLRB v. Katz and violated Section 8(a)(5) of
the Act. For his part, in his dealings with Respondent,
Garcia did not attempt to obtain the interposition of the
Union, and brought the Union into the picture only after
he had signed his retirement documents. The record sug-
gests that the Union made its demand on Respondent
soon after being requested by Garcia to intervene, and
circumstances prior to that foreclose the conclusion that
the Union had actual or constructive knowledge of Gar-
cia's plight. A waiver of bargaining rights will not be
lightly inferred. See Bonded Draying Service, 220 NLRB
1015 (1975). I find no waiver of the right of the Union to
have been consulted. I conclude and find that Respond-
ent's failure to bargain concerning the forced retirement
of Garcia, in the circumstances a mandatory subject of
bargaining, constituted a violation of Section 8(a)(5) of
the Act.
6. The alleged constructive discharge of DeLeon
On the other hand, I find no violation of Section
8(a)(3) or (4) of the Act resulting from the resignation of
Mario DeLeon. I find insufficient evidence to warrant
the conclusion that DeLeon was removed from his job
as a bulkloader and reassigned to a laborer position as
retribution for his activities on behalf of the Union or be-
cause he appeared at the representation proceeding and
assisted the Union in the presentation of its case. The
impact of Respondent's unilateral action in realigning the
duties of bulkloaders, generally, as a result of the transfer
of order room employees and the augmentation of their
duties to include weighmaster functions, with the conse-
quential 'elimination of two bulkloader positions, includ-
ing that of DeLeon, has been separately considered.
Beyond this, however, I discern no substantial basis for
attributing to Respondent a discriminatory motive, acti-
vated to accomplish the punishment or forced resigna-
tion of a union adherent. DeLeon's reassignment to a la-
borer position was accomplished in accordance with rea-
sonable seniority considerations and practices, the labor-
er classification to which DeLeon was assigned was the
classification open to DeLeon, given his seniority
status,25 and he was assigned duties normally performed
by laborers and essential to the operation of the plant.
Moreover, while DeLeon was prominent in union activi-
ties, many employees were similarly prominent. Several
employees had attended the Board hearing and DeLeon's
participation at that hearing was fleeting, and was nei-
ther prominent nor especially noteworthy. Further, the
reorganization of the order room/bulkloader duties had
been long contemplated, and there is no evidence to sug-
gest that the selection process which resulted in the
transfer of DeLeon, as well as Gomez, was in some
manner invidious or rigged to accomplish retribution
against DeLeon. That DeLeon found the duties of his
new assignment onerous, unpleasant, distasteful, or unac-
ze No contention is made here that DeLeon had supenor rights to
those of Ramon Gomez, a bulkloader, who was also reassigned out of the
bulkloader classification as a result of the realignment of the order room
clerk duties.
SAN ANTONIO PORTLAND CEMENT CO.
ceptable does not, in the total circumstance, serve- to
supply the unlawful motive essential to the General
Counsel's case, or to establish a constructive discharge. I
shall recommend dismissal of this element of the consoli-
dated complaint.
7. Fred and Jesus Contreras
Nor did Respondent violate Section 8(a)(4) of the Act
by refusing to permit Fred Contreras and Jesus Con-
treras to work on February 27, 1979. Both Fred and
Jesus Contreras had been subpoenaed to appear at the
trial in the instant proceeding, initially scheduled to com-
mence on February 27. They informed their respective
supervisors and received permission to be absent from
work on February 27 for the purpose of honoring their
subpoenaes. Replacements were obtained, but the hearing
was canceled on February 26. Neither Fred Contreras
nor Jesus Contreras took the initiative in informing Re-
spondent that they would report for duty on February
27, and Respondent undertook no initiative to cancel the
replacements or in contacting either Fred or Jesus Con-
treras to learn of their intentions. Respondent refused to
permit either Fred or Jesus Contreras to work when
they reported for duty in a timely fashion on February
27. In defense of this action, Respondent asserted that ar-
rangements had been made for replacements, and the
Company had an obligation to honor these arrangements
with the replacements. From the totality of these consid-
erations, I am unable to detect the presence of recrimina-
tion resulting from the subpoena process, as that process
applied to either Fred or Jesus Contreras. Respondent's
decision, in the circumstances, was not so unreasonable
as to imply the presence of an unlawful motive. See
Martin Theatres of Georgia, 169 NLRB 108, 110 (1968);
Liberty Sportswear, 183 NLRB 1236 (1970). There is some
justification for the assumption that Respondent suspect-
ed that with the cancellation of the hearing, the employ-
ees would report to work since the reason for their ex-
cused absence had been removed. On the other hand,
neither employee took steps to confirm his intention to
be present for work, and absenteeism was not an uncom-
mon phenomenon in the plant. A pari-delicto may have
resulted from this episode, but no violation of Section
8(a)(5) of the Act was perpetrated. See Motz Poultry Co.,
244 NLRB 573 (1979); Liberty Sportswear, supra.
8. The disciplinary interviews
I find no violation of Section 8(a)(1) of the Act arising
from the disciplinary interviews conducted with Mario
Aranda, Pedro Estrada, Richard Gomez, and Jesus Con-
treras. 1 reach this conclusion upon an application of the
Board's pronouncement in Baton Rouge Water Works,
246 NLRB 995 (1979), interpreted in light of the Board's
subsequent application of the Baton Rouge declaration in
Texaco, Inc., 246 NLRB 1021 (1979), and Texaco, Inc.,
247 NLRB 688 (1980). In Baton Rouge, the Board held
that an employee has no Section 7 right to union repre-
sentation at a meeting with his or her employer con-
veiied solely for informing the employee of, and acting
upon, a previously made disciplinary decision. However,
in Baton Rouge, the Board also cautioned that, where an
353
employer engages in conduct which goes beyond that re-
quired to inform an employee of a previously made disci-
plinary decision, the full panoply of protection accorded
employees under the decision in NLRB v. J. Weingarten,
420 U.S. 251 (1975), may be applicable. Subsequently, in
the first cited Texaco decision, the Board observed that
in each case wherein a disciplinary interview is under
scrutiny, the pivotal question is whether, on the one
hand, an employer, in summoning an employee to appear
before management, is concerned solely with the admin-
istration of discipline or, on the other hand, seeks addi-
tionally to obtain facts, evidence, or an admission in
supprt of the disciplinary action taken. In Texaco, the
Board concluded that there was no warrant in the record
for finding that, in conducting the interviews there perti-
nent, Respondent had gone beyond the parameters estab-
lished in Baton Rouge so as to justify the protection ac-
corded employees by Weingarten. In so concluding, the
Board noted that prior to the meetings in question, the
employer had decided to take specific disciplinary action
against the employees; the employer intended to and did
treat both the written notice of disciplinary action there
dispensed and the meetings there conducted during
which the written notices were tendered as integral parts
of the disciplinary process; that the evidence demonstrat-
ed that no defense offered by the employees who were
summoned to the aforesaid meetings , or by any repre-
sentative speaking on their behalf, would have deterred
the employer from its disciplinary decisions; that the
record did not demonstrate that the employer needed or
desired to obtain admissions of misconduct from the em
ployees being disciplined; and that although the employ-
ees were offered an opportunity to explain or defend
themselves , this offer was not designed to obtain infor-
mation to support the employer's disciplinary action, but,
rather, constituted an essential part of the communication
process during which an effort was made by the compa-
ny to determine whether the employees understood the
reasons for disciplinary action, their concurrence there-
with aside. Later, in Texaco, Inc., supra, the Board found
that the employer had not violated Section 8(a)(1) of the
Act by denying an employee's request for union repre-
sentation at his disciplinary interview, concluding that
the record therein clearly revealed that the employer
had reached a final decision to discipline the employee
prior to the meeting at which the employee was in-
formed of his discipline ; that the employer had reached
that decision based on the facts and evidence which it
had obtained prior to the meeting; and that the record
established that the sole purpose of the meeting was to
inform the employee of his discipline.
In the case at bar, the record establishes that Respond-
ent had decided on the disciplinary action to be taken
prior to convening the meetings here pertinent, and that
Respondent intended the employee warning record and
the meetings at which they were presented as interrelat-
ed, integral parts of the disciplinary process. Similarly,
the record fully establishes that no defense which may
have been offered by the four employees during the
course of their separate interviews, or by any representa-
tives speaking on their behalf, would have deterred Re-
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent from its disciplinary decision. Moreover, the
opportunity which was accorded each of the four em-
ployees to make entries on the employee warning record
setting forth their response or explanation was merely
part of the communication process during which an
effort was made by Respondent to determine whether
the employees understood the reasons for their discipli-
nary action. On the record before me, there is no basis
for concluding that employee dissent or challenge to the
intended disciplinary action would have been availing,
and, clearly, it was not. To the extent that, during the
separate meetings, the employees, or in the case of Rich-
ard Gomez , his chosen representative , made some verbal
contribution to the meeting, this did not serve to convert
the meeting into an interview in which the Weingarten
protections applied. See Pacific Telephone Co., 246
NLRB 1007 (1979). Moreover, in the circumstances of
this case, it is of no significance that during the inter-
views conducted with Contreras and Gomez, Union
Representative Alfonzo Lopez, who was permitted to
attend, was subjected to limitations on his right to par-
ticipate in the dialogue of the meeting. Cf. Anchortank,
Inc., 239 NLRB 430 (1978).
On these findings of fact and conclusions of law and
on the entire record, I issue the following
CONCLUSIONS OF LAW
1. San Antonio Portland Cement Company is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. United Cement, Lime & Gypsum Workers Interna-
tional Union, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. At all times on and after March 17, 1978, the Union
was the exclusive collective-bargaining representative of
Respondent's employees in the following described unit
appropriate for the purposes of collective bargaining:
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, truckdrivers 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 Respondent at its San Antonio,
Texas plant, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. By requiring unit employees to sign copies of the
work rules which had been in effect; by implementing its
lawful decision to transfer and assign weighing functions
to order clerks in a manner which caused the displace-
ment of employees in the bulkloader classification (Mario
DeLeon and Ramon Gomez); by eliminating job posi-
tions and/or classifications in its powerhouse facility
which resulted in the displacement and changes in work
assignments of Danny Castillo, Fred Contreras, John
Hernandez, and George McKee; by eliminating the
swing shift in the powerhouse; by reassigning Fred Con-
treras from his position in the powerhouse to a laborer's
position; by eliminating the position of oiler in the main-
tenance shop and thereafter effectuating a change in the
job classification of Jesus Contreras, and assigning the
preventative maintenance duties previously performed by
Contreras to Robert Guerra and Jesse Rodriguez; by re-
classifying Francisco Torres from his job as assistant
bricklayer in the kiln to a laborer's position; and by
granting a general wage increase and improved medical
and health benefits to employees, all of which actions in-
volved and affected employees in the above-described
appropriate collective-bargaining unit, and were under-
taken without notification to or bargaining with the
Union, Respondent violated Section 8(a)(5) and (1) of the
Act.
5. By failing and refusing at all times on and after July
31, 1979, to bargain collectively with the Union concern-
ing the retirement of Jose Juan Garcia, Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. Respondent engaged in no other conduct violative
of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
Having found that Respondent failed to notify and
bargain collectively with the Union concerning the re-
classification and assignment of Mario DeLeon and
Ramon Gomez; the elimination of job positions and/or
classifications in its powerhouse facility; the reassignment
and reclassification of Fred Contreras; the elimination of
the classification of oiler in the maintenance shop and the
reassignment of the oiler's preventative duties to mainte-
nance shop personnel Robert Guerra and Jesse Rodri-
guez; and the elimination of the position of assistant
bricklayer and reclassification and reassignment of Fran-
cisco Torres, I shall order that if Ramon Gomez, Danny
Castillo, Fred Contreras, John Hernandez, George
McKee, Jesus Contreras, and Francisco Torres are at the
time of this Order employees of Respondent, Respond-
ent, on request from the Union, reinstate each to his
former or substantially equivalent position of employ-
ment from which he was reclassified and transferred
after March 17, 1978, as specifically found herein. I shall
further order that Respondent make each of these indi-
viduals whole for any loss in pay which he may have
suffered as a result of his transfer and reclassification.
Having found that Respondent transferred Mario
DeLeon from his bulkloader position on July 3, 1978,
and reclassified him as a laborer, and having further
found that on July 9, 1978, DeLeon voluntarily resigned
his position of employment. I shall recommend that Re-
spondent make DeLeon whole for any loss of pay he
SAN ANTONIO PORTLAND CEMENT CO. 355
may have suffered between July 3 and 9 as a result of his
reassignment. Although DeLeon's resignation was nei-
ther constructively nor discriminatorily caused by Re-
spondent, within the meaning of Section 8(a)(3) of the
Act, the evidence establishes that the character and loca-
tion of the work to which he was assigned after his re-
classification on July 3 influenced DeLeon in his decision
to resign his employment, and as his reclassification was
accomplished without the requisite consultation and col-
lective bargaining with the Union, and set in motion the
events which gave rise to DeLeon's resignation, in order
best to restore the status quo ante, I shall order Respond-
ent to offer Mario DeLeon reinstatement to his former
position of bulkloader, or a substantially equivalent posi-
tion of employment.
Backpay which is due under the terms of this Order
arising as a result of Respondent's unilateral action in re-
classifying and reassigning unit employees without con-
sulting and bargaining collectively with the Union shall
be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), together with interest
thereon in accordance with the policy of the Board set
forth in Florida Steel Corp.,, 231 NLRB 651 (1977).26
26 See generally Isis Plumbing Co, 138 NLRB 716 (1962).
This backpay obligation on the part of Respondent shall
continue until Respondent meets and bargains collective-
ly in good faith with the Union concerning the unilateral
changes aforesaid. See Anchortank Inc., 239 NLRB 430
(1978). The General Counsel's request that interest on
backpay be computed at an annual rate of 9 percent is
not adopted, for the interest rate question is a policy de-
termination for the Board.
I shall not order the swing shift in the powerhouse be
restored, but to the extent employees employed in that
shift in December 1978 incurred a loss of pay as a result
of this unilateral action of Respondent, I shall order that
they be made whole by application of the usual backpay
formula.
Having further found that Respondent unilaterally
granted wage increases to and improved the medical and
health benefits of employees employed in the unit repre-
sented by the Union, and having ordered Respondent to
cease and desist prospectively from such practice, I shall
order restoration of the status quo with respect to these
wages and benefits conditioned on the affirmative desires
of the affected employees as expressed through their bar-
gaining agent . See Herman Sausage Co., 122 NLRB 168
(1958), enfd. 275 F.2d 229 (5th Cir. 1960).
[Recommended Order omitted from publication.]