Warren Unilube, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 2012

358 N.L.R.B. 816 (N.L.R.B. 2012)

816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 92
Warren Unilube, Inc. and Teamsters, Local Union
No. 667. Case 26–CA–023910
July 31, 2012
DECISION AND ORDER
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On September 30, 2011, Administrative Law Judge
Robert A. Ringler issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Act-
ing General Counsel filed an answering brief, and the
Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.1
We agree with the judge, for the reasons stated in his
opinion, that the Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally changing its cell phone and
radio usage policy (the CR policy) for bargaining unit
employees. Contrary to the Respondent, we agree with
the judge that the new CR policy constituted a material,
substantial, and significant change from the policy that
was in effect just days before, when the Union prevailed
in a representation election.
The Respondent previously had no radio usage policy
at all. In addition, the new CR policy included an un-
precedented emphasis, at least for nonproduction em-
ployees, on the prospect of discipline for a violation. See
Success Village Apartments, Inc., 348 NLRB 579, 630
(2006), and cases cited therein (explaining that work
rules that can be grounds for discipline and thereby affect
employees’ continued employment are mandatory sub-
jects of bargaining); accord: Postal Service, 341 NLRB
684, 687 (2004).
The Respondent’s expansion of the limitation on when
employees could use cell phones also constituted a sig-

1 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
The Respondent argues that, because it is testing the Board’s certifi-
cation of the Union in the court of appeals, the notice to employees in
this case should not state that the Respondent will bargain with the
Union. We reject that argument for the following reasons. It is settled
that collateral litigation does not suspend the duty to bargain under Sec.
8(a)(5) of the Act. See Alta Vista Regional Hospital, 355 NLRB 265,
265 fn. 3 (2010), affirmed by 357 NLRB 326 (2011). Contrary to the
Respondent’s argument, moreover, our application of that legal princi-
ple here in no way contravenes the parties’ agreement not to litigate in
this proceeding the issues underlying the test-of-certification proceed-
ing.
nificant change. Under the old CR policy, the Respond-
ent prohibited nonproduction employees from using cell
phones only when operating company equipment, while
under the new policy the prohibition on cell phone usage
was extended to any time other than break and lunch
periods. The Respondent argues that the breaktime limi-
tation had been in place prior to the Union’s election
victory, pointing out that since 2003 its employee hand-
book has contained the following provision: “Personal
telephone calls should be held to a minimum and re-
ceived only during work breaks. However, the office
will forward all emergency phone calls directly to em-
ployees, so long as employees do not abuse such privi-
leges.” The Respondent also observes that, even though
the judge discredited testimony that the facility-wide rule
against cell phone use except at breaks and lunchtime
had been posted since 2007, forklift driver Annie Morris
(whose testimony the judge broadly credited) testified
that she remembered seeing a sign to that effect before
the election, and possibly as far back as 2007.2 The rec-
ord, however, establishes that the handbook policy and
posted signs did not reflect the reality in the facility.
According to the credited testimony of Morris and ware-
house employee Roshel Howard, the Respondent’s actual
practice before the election was to prohibit nonproduc-
tion employees from using cell phones only while they
were operating equipment.3 Thus, even if old CR policy
purported to limit cell phone use to breaktimes, the cred-
ited testimony establishes that the Respondent’s new CR
policy constituted an effort to more strictly enforce that
limitation, further supporting the judge’s finding. See
Vanguard Fire & Security Systems, 345 NLRB 1016,
1017 (2005) (finding the employer’s stricter enforcement
of a cell phone policy unlawful because “a change from
lax enforcement of a policy to more stringent enforce-
ment is a matter that must be bargained over”), enfd. 468
F.3d 952 (6th Cir. 2006).
The Respondent also argues that, as a practical matter,
the new CR policy did not materially affect even the
nonproduction employees, because employees continual-
ly operate equipment except during breaks and at
lunchtime. The record does not support that assertion.
Indeed, Morris credibly testified that, under the old CR
policy, when she needed to use her cell phone while on
duty, she would simply park the forklift before using the
cell phone, and that her supervisor had observed her do-

2 Morris also testified that she saw a sign prohibiting cell phone use
while operating equipment.
3 The judge found that Howard’s supervisor had repeatedly observed
Howard’s cell phone usage. Howard testified to only one such event
prior to the election. This misstatement by the judge does not affect our
decision.
WARREN UNILUBE, INC.

817
ing so without complaint. Since the new CR policy took
effect, Morris stated, if she needs to use her cell phone
while on worktime, she goes where she cannot be seen in
order to avoid detection, risking discipline. The differ-
ence between being able to have some control over when
to place personal calls, as under the old CR policy, and
having only a narrowly prescribed period, as under the
new CR policy, can be quite meaningful for employees,
and not just a matter of convenience. For example, em-
ployee Morris testified that under the old CR policy she
was able to maintain necessary phone contact with her
children while at work. In these circumstances, we find
that the new requirement that employees use cell phones
only during breaktimes or lunch periods was a material,
substantial, and significant change.4

4 Even if we agreed with the Respondent’s contention as to the cell
phone policy, we would still find that the Respondent violated Sec.
8(a)(5) by unilaterally implementing the no-radio rule and by empha-
sizing discipline for infractions of the new CR policy.
There is no merit to the Respondent’s assertion that it was privi-
leged to adopt the new CR policy because, although the Union had won
the election, it had not requested bargaining prior to the unilateral
change. Long ago, the Board adopted a trial examiner’s explicit rejec-
tion of that position: “It would also seem to be immaterial that when the
Respondents acted unilaterally . . . the Union itself had not yet request-
ed the Respondents to bargain. After the election the Respondents
knew that the Union had won the election and represented a majority of
their employees. They could act unilaterally thereafter only at their
peril.” Laney & Duke Storage Warehouse Co., 151 NLRB 248, 266–
267 (1965), enfd. in relevant part 369 F.2d 859 (5th Cir. 1966) That
principle is now settled law. See, e.g., Injected Rubber Products Corp.,
258 NLRB 687, 687 fn. 2 696–697 (1981); accord: Fugazy Continental
Corp. v. NLRB, 725 F.2d 1416, 1421 (D.C. Cir. 1984) (“The [u]nion’s
victory in a valid election, even where its results have been challenged
and are not yet certified, creates an obligation to bargain independent of
any request for bargaining.”). Wal-Mart Stores, Inc., 348 NLRB 274,
290 (2006), enfd. sub nom. Food & Commercial Workers v. NLRB, 519
F.3d 490 (D.C. Cir. 2008), cited by the Respondent, is not to the contra-
ry; there was no unilateral change allegation in that case.
Nor is there merit to Respondent’s contention that it would have
been unlawful for it to bargain with the Union over the new CR policy
because the “general duty clause” of the Occupational Safety and
Health Act, 29 U.S.C. §. 654(a)(1), requires it to maintain a workplace
free from serious hazards. The Respondent has failed to demonstrate
that the clause mandated the specific changes at issue here or that bar-
gaining about the new CR policy would be in contravention of a specif-
ic statutory mandate. As the judge observed, the existence of such
general provisions does not stand in the way of bargaining over the
specifics of their implementation. Cf. Alta Vista Regional Hospital,
355 NLRB 265, 272 (2010), affd. in 357 NLRB 326. Moreover, even
assuming the legitimacy of the Respondent’s reliance on the clause,
there were a number of preimplementation issues suitable for bargain-
ing. Thus, the case is unlike Eddy Potash, Inc., 331 NLRB 552 (2000),
cited by the Respondent, where the employer unlawfully insisted to
impasse that the union agree to a 12-hour shift provision in the face of
Federal law prohibiting shifts in excess of 8 hours. There, it was the
employer’s own proposal that was an illegal bargaining subject, not the
subject matter (hours of work). Id. at 559–560. This case is also unlike
Mike O’Connor Chevrolet, 209 NLRB 701 (1974), enf. denied on other
grounds 512 F.2d 684 (8th Cir. 1975), where the Board found that the
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Warren
Unilube, Inc., West Memphis, Arkansas, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by the Region, post at
its West Memphis, Arkansas facility copies of the at-
tached notice marked “Appendix.”14 Copies of the notice,
on forms provided by the Regional Director for Region
26, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-

employer did not violate Sec. 8(a)(5) by unilaterally imposing a re-
quirement that salesmen keep records of the hours they work, because
the employer was merely correcting an inadvertent failure to comply
with specific legal recordkeeping requirements. 209 NLRB at 704.
The Board did not suggest that bargaining over the record-keeping
requirement would have been unlawful. Rather, it found that the em-
ployer was not required to bargain under those circumstances. For the
reasons discussed in the judge’s decision, that is not the situation here.
Member Hayes expresses no opinion whether the implementation of
a no-radio usage policy or a broader cell phone usage prohibition
would, standing alone, constitute a material, substantial, and significant
change. He relies instead on precedent holding that the threat of disci-
pline for a breach of a unilaterally implemented policy may be suffi-
cient to establish such a change, thus triggering a preimplementation
bargaining obligation. E.g., Ferguson Enterprises., 349 NLRB 617,
618 (2007), and Postal Service, 341 NLRB 684, 687 (2004). However,
he disagrees with his colleagues to the extent they suggest that stricter
disciplinary enforcement of extant work rules would necessarily be a
substantial, material, and significant change requiring preimple-
mentation bargaining. See Fresno Bee, 337 NLRB 1161, 1186–
1187(2002, and cases cited there. Finally, Member Hayes notes his
view that in certain circumstances an employer’s need for immediate
compliance with the OSHA “general duty clause” should excuse it from
bargaining before taking unilateral action, but the Respondent has
failed to prove the existence of such circumstances in this case. Indeed,
the Respondent does not even claim an immediate need to change poli-
cies that had apparently been in effect for some while before the Un-
ion’s advent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

818
rent employees and former employees employed by the
Respondent at any time since November 16, 2010.”

William T. Hearne, Esq., for the Acting General Counsel.
Benjamin N. Thompson and Jennifer M. Miller, Esqs. (Wyrick,
Robbins, Yates & Ponton LLP), for the Respondent.
Frederick J. Lewis, Esq. (Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.), for the Respondent.
Samuel Morris, Esq. (Godwin, Morris, Laurenzi & Bloomfield,
P.C.), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A RINGLER, Administrative Law Judge. This case
was tried in Memphis, Tennessee, on July 11, 2011. The
charge in this proceeding was filed by the Teamsters, Local
Union No. 667 (the Union) on November 22, 2010.1 The Un-
ion represents a bargaining unit, which includes production,
maintenance, and warehouse employees (the unit), who are
employed by Warren Unilube, Inc. (the Respondent or Compa-
ny) at its West Memphis, Arkansas facility (the facility). On
February 28, 2011, a complaint issued alleging that the Compa-
ny violated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act) by unilaterally changing the unit’s cell
phone and radio usage policy (the CR Policy).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the parties’
briefs,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Company, an Arkansas corporation,
with an office and place of business at the facility, has manu-
factured petroleum products. Annually, it sells and ships goods
valued in excess of $50,000 directly from the facility to points
located outside of Arkansas. Accordingly, it admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. It further admits, and I
find, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company blends, produces, and packages petroleum
products. Its facility is an expansive and highly-automated
enterprise, which includes: a series of high volume oil and
chemical storage tanks; multiple warehouses; production,
blending, blow molding, and packaging operations; and an
office complex. The facility produces roughly 200 oil-based
products, including: 10W-30 motor oils; hydraulic, brake and
transmission fluids; and gear oils.
On November 5, Region 26 for the National Labor Relations
Board (the Board) conducted a representation election at the
facility, which resulted in the unit voting in favor of unioniza-

1 All dates herein are in 2010, unless otherwise stated.
2 The Union did not submit a posthearing brief.
tion.3 (GC Exh. 2.) Thereafter, the Company filed objections,
which were ultimately denied by the Board. As a result, on
March 16, 2011, the Board certified the Union as the unit’s
representative. (GC Exh. 3.) The Company, subsequently,
filed an appeal with the United States Court of Appeals, which
is presently pending.4
B. Preelection CR Policies
Before the election, the Company employed various CR pol-
icies.5 It continuously maintained a facilitywide CR policy, as
well as a stricter CR policy in its production department.
1. Facilitywide CR policy
On July 13, 2007, Dale Wells, president, disseminated the
Company’s first formulation of its facilitywide CR policy (the
original facilitywide CR policy), which stated:

Effective IMMEDIATELY, cell phones WILL NOT be used
while operating ANY type of company equipment. This in-
cludes Forklifts, Loading/unloading Trucks or Railcars, Oper-
ating production lines, etc.

(GC Exh. 5) (emphasis as in original). This policy, however,
failed to address whether cell phones could be used, while not
operating company equipment, or offer any guidance concern-
ing radio usage. Rusty Brown, plant manager, credibly testified
that this policy was posted and circulated.
2. Production department CR policy
Aaron Black, quality assurance manager, credibly testified
that, since approximately 2007, the production department,
which he oversaw, applied a more conservative CR policy,
which banned all cell phone usage (the production CR policy).
This policy was memorialized within a checklist for new pro-
duction employees, which succinctly stated, “[n]o cell phones
are allowed in the plant. . . .” (GC Exh. 9.) Black stated that he
reminded production employees about this policy at periodic
staff meetings,6 and that some production employees were dis-
ciplined for violating this policy. Between 2008 and 2009, for
instance, five production employees received discipline ranging
from warning letters to a 3-day suspension for cell phone-
related infractions. (GC Exhs. 11–18.) The production CR
policy was, however, silent concerning radio usage. The Com-
pany failed to present any evidence that nonproduction em-
ployees were ever disciplined under the more conservative
production CR policy.

3 There are approximately 135 employees in the unit.
4 The parties, however, stipulated that, by litigating the instant
charge, the Company “does not . . . waive any arguments . . . regarding
the validity of the Union’s certification.” (Jt. Exh. 1.)
5 The employee handbook, however, did not contain a CR policy or
discuss cell phone or radio usage, beyond stating that “[p]ersonal tele-
phone calls should be held to a minimum and received only during
work breaks.” (GC Exh. 8.)
6 His reminder, however, lifted the full ban on cell phones, and al-
lowed cell phone usage during breaks and lunch periods. (GC Exh.
10.) (“Cell phone use at any time other than breaks or lunch is prohibit-
ed.”)
WARREN UNILUBE, INC.

819
3. Enforcement of the Original CR Policy Outside
of the Production Department
Annie Morris, a unit forklift operator and long-term employ-
ee, testified that, although she observed a CR policy posted at
the facility before the election, she could not recall its exact
text. She attempted, however, to paraphrase her recollection of
the posted CR policy, and related that it solely banned cell
phone usage, while operating equipment. She added that, con-
sequently, she openly used her cell phone, and simply parked
her forklift before doing so. She noted that she observed other
employees openly using their cell phones during the workday,
and averred that she was unaware of any disciplinary conse-
quences. She recollected that, in July, James Mengarelli, her
supervisor, saw her using her cell phone during worktime, and
patiently waited, without comment, for her to finish her call.
She reported that, before the election, radios were commonly
played throughout the facility.
For several reasons, I fully credit Morris’ testimony. First,
regarding demeanor, she was a sincere and forthright witness,
who was consistently helpful. Second, although she enjoyed no
obvious stake in the proceeding, she candidly provided testi-
mony that was adverse to the Company’s interests, even though
she risked potential disapproval from the audience of manage-
ment agents and officials who attended the hearing. Her will-
ingness to fully cooperate, in spite of this substantial risk, reso-
nates heavily in favor of her credibility. Third, her testimony
was consistent with the documentary evidence, i.e., her oral
summary of the CR policy was analogous to the documented
original facilitywide CR policy. (See GC Exh. 5.)
Roshel Howard, a unit worker and long-term warehouse em-
ployee, testified that, before the election, she was never directly
told by supervision that the Company actually had a CR policy.
She acknowledged, however, that she knew that cell phones
could not be used, for example, while operating a forklift. She
stated that she consistently brought her cell phone to work, and
openly used it. She related that she shares an office with Su-
pervisor Mengarelli, and that he has repeatedly observed her
cell phone usage, without incident. She added that she was
unaware of any rule prohibiting radio usage, and routinely ob-
served employees playing radios at their workstations. For
essentially the same reasons described under Morris’ testimony,
I also fully credit Howard’s testimony.
C. Postelection CR Policy
Following the November 5 union election, the Company
amended the facilitywide CR policy (the amended facility-wide
CR policy). The Company unilaterally issued the amended
facilitywide CR policy, without notifying the Union, or other-
wise engaging in bargaining over this matter. This amendment
is the gravamen of the instant litigation. Specifically, on No-
vember 16, Gary Johanyak, vice president of operations, dis-
tributed, via email, the following memorandum:

All employees must be alert and capable of hearing a fellow
employee in need of assistance. With this in mind, the wear-
ing of any type of ear phones, ear buds or any other such de-
vice used for listening to radios, iphones, ipods, mp3 players,
cell phones, blue tooth devices, or any other device capable of
producing sound is not allowed. This . . . includes . . . radios
or . . . boom boxes. An exception will be made for radios in
an office where the sound is low enough that it cannot be
heard by . . . workers or by customers conducting business on
the telephone.

All the above impair the hearing and communication of one
employee with another in case of need or endangerment and
will be considered a violation of our safety rules and a viola-
tion of the employee handbook.

Also, the use of cell phones, iphones, blackberry, ipad or any
other communicative devices at the workplace except at des-
ignated break times and lunch is strictly prohibited. Commu-
nications regarding the operations of the plant primarily by
managers and supervisors are accepted.

In the case of emergencies, please let your people know they
should contact the guard for all emergencies . . . , the guard
will then notify the employee.

The above is effective immediately and violations will result
in disciplinary action. . . .

Please have a meeting with all your employees as soon as
possible and inform them of these rules and the consequences
. . . .

(GC Exh. 4) (emphasis as in original). Howard and Morris
credibly testified that, following the dissemination of the
amended facility-wide CR policy, employees ceased using cell
phones and radios at the facility.7
Brown and Johanyak testified that the amended facilitywide
CR policy was simply a reiteration of the CR policy that was in
place before the election, although they each failed to describe
exactly when the amended facilitywide CR policy supplanted
the original facilitywide CR policy. In support of their testimo-
ny, the Company offered a photograph, taken on July 10, 2011
(i.e., the day before the hearing), of a bulletin board posting,
which paraphrased the amended facilitywide CR policy, and
stated, “unauthorized use of cell phones is prohibited . . . [y]ou
may use your phones [only] at breaks and lunch in authorized
areas.” (R. Exhs. 5A–B.) Brown testified that similar notices
were continuously posted throughout the facility since roughly
2007. The Company, however, conspicuously failed to explain
why, beyond the photograph taken the day before the hearing, it
wholly neglected to offer any documentary evidence memorial-
izing its previous amendment of the facilitywide CR policy.
For several reasons, I do not credit Brown’s and Johanyak’s
testimonies that the November 16 email solely reiterated an
earlier CR policy, which became effective before the November
5 election.8 Moreover, I also do not credit Brown’s testimony
that the CR policy depicted by the photograph had been posted

7 They added that they continue to covertly use their cell phones.
8 Inasmuch as Black’s production department maintained a more
stringent CR policy than the remainder of the facility, it was difficult to
discern whether his testimony that a more stringent CR policy existed
at the facility was limited solely to his production department, or ad-
dressed the entire facility. To the extent that his testimony can be con-
strued to address the entire facility, I discredit such testimony for the
same reasons that are cited under Brown’s and Johanyak’s testimonies.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

820
at the facility since 2007. (See R. Exh. 5A–B.) First, because
the amended facilitywide CR policy was dramatically stricter
than the original facilitywide CR policy, I find it extremely
unlikely that this important policy change would not have been
contemporaneously documented. As noted, the Company
failed, without explanation, to offer any documentary evidence,
which memorialized its decision to amend the facilitywide CR
policy, and, instead, solely offered a photograph that was taken
a day before the hearing. It’s inexplicable that the Company
would fully document its implementation of the original facili-
tywide CR policy in 2007 (see GC Exhs. 5–6.) and yet wholly
fail to document its alleged preelection implementation of the
amended facilitywide CR policy. Simply put, the Company’s
failure to provide documentary evidence supporting this key
testimony renders such testimony incredible. Second, I find it
unlikely that the Company would have overridden and replaced
the less stringent original facilitywide CR policy within months
of its issuance. As noted, Brown and Johanyak testified that the
amended facilitywide CR policy became effective in 2007,
which was the same time that the original facility-wide CR
policy became effective. Third, I find that Brown’s and Johan-
yak’s testimonies on this point were deeply inconsistent with
Morris’ and Howard’s very credible testimonies that, before the
election, employees were permitted to openly use cell phones,
unless operating company equipment. Lastly, I discredit
Brown’s and Johanyak’s testimonies on the basis of their de-
meanors. Specifically, I found them each to be partial witness-
es, who appeared to advocate the Company’s legal position. I
find, as a result, that I cannot credit their testimony on these
issues, and, specifically, that the amended facilitywide CR poli-
cy was not issued before the election.
D. Union Bargaining Request
On November 23, the Union requested the Company to
commence collective bargaining regarding the unit’s wages,
hours, and other terms and conditions of employment. (R. Exh.
8.) To date, the Company has refused to bargain over any such
matters, including its CR policies.
E. CR Policy’s Rationale
Black and Brown credibly testified that the facility is highly-
automated, and potentially hazardous. They added that, in
order to remain safe, employees must maintain a level of
awareness, which is incompatible with cell phone or radio us-
age. They related that the Company’s amended facilitywide
CR policy addressed these important workplace safety issues.
They contended that the Company was required to address such
issues under the general duties clause of the Occupational Safe-
ty and Health Act (OSHA).
III. ANALYSIS
A. Legal Framework
In San Miguel Hospital Corp., 357 NLRB 326, 327 (2011),
the Board described an employer’s obligation to bargain with a
newly established union as follows:9

9 Given that the Company is challenging the certification and admits
a refusal to bargain, the violations found herein are contingent upon

Sections 8(a)(5) and (d) of the Act obligate an employer to
bargain with the representative of its employees in good faith
with respect to “wages, hours and other terms and conditions
of employment.” . . . . Section 8(a)(5) also obligates an em-
ployer to notify and consult with a union concerning changes
in terms and conditions of employment before imposing such
changes. . . . When a majority of the unit employees have se-
lected the union as their representative in a Board-conducted
election, the obligation to bargain, at least with respect to
changes in terms and conditions of employment, commences
. . . [on] the date of the election.

(Id.) (citations omitted, with emphasis. A bargaining obligation
similarly arises when an employer enforces an unchanged rule
in a more rigorous manner. See, e.g., Vanguard Fire & Supply
Co., 345 NLRB 1016 (2005) (changing from lax to stringent
enforcement).
In order to trigger a bargaining obligation, a unilateral
change must be material, substantial, and significant. Critten-
ton Hospital, 342 NLRB 686 (2004). A change will not, how-
ever, constitute an unlawful unilateral change, when it narrowly
addresses a newly arising condition encompassed by a preexist-
ing rule. See Goren Printing Co., 280 NLRB 1120 (1986)
(limited fine tuning of preexisting rules).
A unilateral change is similarly not unlawful, when the
change is mandated by Federal law.10 Exxon Shipping Co., 312
NLRB 566, 567–568 (1993); Murphy Oil USA, 286 NLRB
1039, 1042 (1987); Standard Candy Co., 147 NLRB 1070,
1073 (1964). The Board has held, however, that, if an employ-
er possesses discretion regarding how to implement a Federal
mandate, unilateral implementation of the mandate itself re-
mains unlawful because bargaining can still occur over the
discretionary component of the mandate. See, e.g., Hanes
Corp., 260 NLRB 557, 562–563 (1982) (failure to consult with
a union concerning an OSHA-mandated respirator program
violated the Act, where the type of respirator to be selected
remained discretionary); Dickerson-Chapman, Inc., 313 NLRB
907 (1994) (failure to consult with a union regarding the
OSHA-mandated designation of “competent persons” was un-
lawful, where the selection methodology remained discretion-
ary); Christopher Street Owners Corp., 294 NLRB 277, 281–
282 (1989).
B. Unilateral Implementation of the Amended
Facility-Wide CR Policy was Unlawful
The Company was obligated to bargain over changes to its
cell phone and radio rules. It is well established that such top-
ics are mandatory bargaining subjects. Vanguard Fire & Sup-
ply Co., supra (cell phones); Murphy Oil USA, Inc., supra (radi-
os). In addition, the unilateral change at issue herein was mate-

enforcement of the Board’s Order in Warren Unilube, Inc., 357 NLRB
44 (2011).
10 See also Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942)
(strike on ship at dock in violation of maritime law unlawful, notwith-
standing Act’s protections); U. S. Bulk Carriers v. Arguelles, 400 U.S.
351 (1971) (employer could not compel arbitration of seaman’s wage
claim pursuant to collective-bargaining agreement in light of provisions
of maritime law granting seamen right to bring action in court).
WARREN UNILUBE, INC.

821
rial, substantial, and significant. The amended facility-wide CR
policy changed the original facilitywide CR policy by, inter
alia: transitioning from previously permitting cell phone usage
in nonproduction departments,11 when not operating equipment,
to restricting all cell phone usage, outside of break or lunch
periods; moving from a previously unregulated setting to com-
mencing an almost complete ban on radios, ipods, mp3 players,
and related devices in all departments; and changing from an
environment of loose enforcement in nonproduction depart-
ments to expressly threatening “disciplinary action” for future
violations. Contrary to the Company’s assertions, these chang-
es were far reaching, and ran far afield of the mere fine tuning
of a constant policy.
The Company unilaterally changed the CR policy, after its
obligation to bargain with the Union had accrued. As stated, it
unilaterally promulgated the amended facilitywide CR policy
on November 16, even though its bargaining obligation accrued
on November 5, the election date. San Miguel Hospital Corp.,
supra. In spite of the Company’s assertions to the contrary, its
bargaining obligation did not subsequently commence with the
Union’s November 23 bargaining request. Id. I find, therefore,
that the Company’s unilateral implementation of the amended
facilitywide CR policy violated Section 8(a)(5).
C. Affirmative Defense
The Company contends that, even assuming arguendo that it
had a bargaining obligation regarding the CR policy, its unilat-
eral action remained lawful because it was mandated by OSHA
to revise its CR policy. It avers that this mandate absolved its
violation, if any, of the Act. In furtherance of its position, it
cites OSHA’s general duties clause, which provides as follows:

[Employers] shall furnish to . . . employees . . . a place of em-
ployment . . . free from recognized hazards that are causing or
are likely to cause death or serious physical harm . . . .

29 U.S.C. § 654(a)(1). It asserts that, because distracted em-
ployees could be harmed while using cell phones and radios at
its automated and hazardous facility, it was mandated under
OSHA to comprehensively ban such usage.
I find that this argument lacks merit, and that the Company’s
bargaining obligation was not eliminated under OSHA’s gen-
eral duties clause. Although the Company is clearly obligated
to minimize workplace hazards under OSHA, and took steps in
furtherance of this mandate when it limited cell phone and ra-
dio usage, it retained wideranging discretion regarding the ap-
propriate manner to address such issues. Such discretion was
well suited for the collective-bargaining process. Moreover,
the Company, minimally, had the flexibility to discuss with the
Union, prior to implementation, the following matters: the list
of prohibited items (i.e., cell phones, iphones, ipods, etc.); the
applicable facility locations (i.e., which departments required a
total ban and which did not); the affected positions (i.e., which
positions required a total ban and which did not);12 as well as

11 As noted, the production department already had a stricter prohibi-
tion against cell phone usage.
12 For example, such discussions could have, arguably, addressed
whether a unit office worker (i.e., Howard), who presumably encoun-
ters fewer workplace hazards, could have been safely regulated under
the interplay between shift and the ban (i.e., how, if at all, one’s
shift affected their coverage under the CR policy). The Com-
pany’s wideranging discretion to discuss these issues rendered
the CR policy well-suited suited for bargaining. See Hanes
Corp., supra.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is, and, at all material times was, the exclusive
bargaining representative for the following appropriate unit:

All full-time and regular part-time employees, including pro-
duction, plastics, blending, maintenance, warehouse, plant
clericals, quality inspectors and truck drivers employed at the
Company’s West Memphis, Arkansas facility, excluding all
office clerical employees, professional employees, quality
control employees, housekeeping employees, temporary em-
ployees, guards and supervisors as defined by the Act.

4. The Company violated Section 8(a)(5) and (1) of the Act
by unilaterally changing the CR policy applicable to the unit.
5. The unfair labor practice set forth above affects com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Company is required to, upon request by the Union, re-
scind the amended facilitywide CR policy that was promulgat-
ed on November 16, restore the status quo ante, and engage in
bargaining concerning these issues. Restoration of the status
quo ante shall also include expunging all reports, memoranda,
written warnings, and disciplinary records, if any, which were
connected to its promulgation and enforcement of the amended
facilitywide CR policy.
The Company is also ordered to distribute appropriate reme-
dial notices electronically via email, intranet, internet, or other
appropriate electronic means to unit employees at the facility,
in addition to the traditional physical posting of paper notices.
See J Picini Flooring, 356 NLRB 11 (2010).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended13
ORDER
The Respondent, Warren Unilube, Inc., West Memphis, Ar-
kansas, its officers, agents, successors, and assigns, shall
1. Cease and desist from

to a less stringent CR policy than a forklift operator (i.e., Morris), who
encounters additional workplace hazards.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

822
(a) Implementing new CR policies without bargaining with
the Union. The appropriate bargaining unit is:

All full-time and regular part-time employees, including pro-
duction, plastics, blending, maintenance, warehouse, plant
clericals, quality inspectors and truck drivers employed at the
Company’s West Memphis, Arkansas facility, excluding all
office clerical employees, professional employees, quality
control employees, housekeeping employees, temporary em-
ployees, guards and supervisors as defined by the Act.

(b) Refusing to bargain with the Union regarding CR poli-
cies.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request by the Union, rescind the amended facili-
tywide CR policy, and restore the former CR policy that was in
existence immediately before Respondent unilaterally eliminat-
ed this policy.
(b) Upon request by the Union, bargain in good faith regard-
ing the CR policy applicable to the unit, and, if any agreement
is reached, embody their understanding in a signed agreement.
(c) Within 14 days after service by the Region, physically
post at the West Memphis facility, and electronically distribute
via email, intranet, internet, or other electronic means to its unit
employees, who were employed by the Company at its West
Memphis facility at any time since November 16, 2010, copies
of the attached notice marked “Appendix.”14 Copies of the
notice, on forms provided by the Regional Director for Region
26, after being signed by the Respondent’s authorized repre-
sentative, shall be physically posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since November 16,
2010.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

14 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
on a form provided by the Region attesting to the steps that 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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT do anything that interferes with these rights.
Specifically,
WE WILL NOT refuse to bargain with the Union, as the exclu-
sive bargaining representative of the employees in the follow-
ing appropriate unit:

All full-time and regular part-time employees, including pro-
duction, plastics, blending, maintenance, warehouse, plant
clericals, quality inspectors and truck drivers employed at the
Company’s West Memphis, Arkansas facility, excluding all
office clerical employees, professional employees, quality
control employees, housekeeping employees, temporary em-
ployees, guards and supervisors as defined by the Act.

WE WILL NOT refuse to bargain with the Union regarding the
usage of cell phones, radios, boom boxes, and other portable
listening devices at the facility, or create policies restricting
such usage, without first bargaining with the Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL, upon request by the Union, rescind the changes we
made to our cell phone, radio and portable listing device policy,
and reinstate the policy that was in effect immediately before
we unilaterally changed our cell phone, radio, and portable
listing device policy.
WE WILL, upon request by the Union, bargain in good faith
with it over changes to our cell phone, radio, and portable list-
ing device usage policies at the facility.

WARREN UNILUBE, INC.