Alamo Cement Co.

National Labor Relations Board - Board Decisions

Dec 9, 1985

277 N.L.R.B. 1031 (N.L.R.B. 1985)

ALAMO CEMENT CO.
Alamo Cement Company and United Cement, Lime,
Gypsum and Allied Workers International
Union and its Local 560, AFL-CIO-•CLC.
Cases 23-CA-9458 and 23-CA-9599
9 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 31 August 1984 Administrative Law Judge
Leonard M. Wagman issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 only to the extent consistent herewith
and to adopt the recommended Order as modified.
The judge found that the Respondent violated
Section 8(a)(5) and (1) on 26 June 1983 by chang-
ing the classification of Oscar Castillo from mix
chemist to assistant chief chemist. We do not
agree. 3
The Board has held that in order for a unilateral
change in a term or condition of employment to
constitute a violation of Section 8(a)(5), it must be
a material, substantial, and significant change.4 In
our opinion the change in Castillo's classification
did not meet that, standard.
Before the change, Castillo was classified as a
mix chemist; however, his actual duties were as a
physical tester in the laboratory. Even after the
change in his classification, Castillo has spent most
of his working time performing physical testing.
Except for sporadic substitution for Chief Chemist
Gonzales in Gonzales' absence, assistance to Gon-
zales with a monthly report, and a slight increase
in his hourly wage, none of Castillo's terms and
conditions of employment have changed. Thus, we
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 Because we agree with the judge that the enforcement of rule 8
against Lopez was unlawful, we find it unnecessary to pass on the judge's
conclusion in fit 5 of his decision that the General Counsel has failed to
show that union animus motivated the Respondent to discipline Lopez
3 We do agree with the judge that the changed classification did not
render Castillo a supervisor In so concluding, however, we find it un-
necessary to rely on Union 76 Auto Truck Plaza, 267 NLRB 754 (1983)
4 Weather Tee Corp., 238 NLRB 1535, 1536 (1978); Peerless Food Prod-
ucts, 236 NLRB 161 (1978); Rust Craft Broadcasting of New York, 225
NLRB 327 (1976)
1031
find that in the circumstances of this case, the
change in Castillo's classification does not consti-
tute a material , substantial , and significant change
in a term or condition , of employment and, there-
fore, is not a violation of Section 8(a)(5) and (1).5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Alamo Cement Company, San Antonio,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(d).
"(d) Unilaterally without notice to or consulta-
tion with the Union hiring new temporary employ-
ees at its Broadway operation, utilizing supervisors
to operate its crusher at its Broadway operation,
changing the bulk loader-weighmasters from
hourly paid to salaried status, changing the manner
in which overtime is paid to mechanics at its 1604
operation so that regular time is eliminated and
only straight time is used, implementing an across-
the-board pay increase whereby unit employees re-
ceive wage increases if their wage rates were at or
below the wage rates for the classiification of said
employees, or otherwise changing the wage rates,
hours, or other terms and conditions of employ-
ment of any bargaining unit employees, without
first notifying the Union and providing it with an
opportunity to bargain collectively with the Re-
spondent in good faith concerning such proposed
changes; provided that nothing herein shall require
Respondent to rescind any wage increases or pro-
motions which it has previously granted to all unit
employees."
2. Substitute the attached notice for that of the
administrative law judge.
o We also note that for some time in 1978-1979 Castillo was classified
as an assistant chief chemist.
Member Dennis would adopt the judge's finding of a violation, noting
particularly that the change in Castillo's classification occurred in the
context of numerous other unilateral changes in employee terms and con-
ditions of employment
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.
277 NLRB No. 108
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 maintain , give effect to, or en-
force any rule which prohibits employees from en-
gaging in solicitation among coemployees on our
plant premises during employees' nonworking time
or prohibits employees from distributing literature
on our plant premises on nonworktime and in non-
work areas.
WE WILL NOT suspend employees or otherwise
discriminate against them because of their union
membership, sympathies, or activities, or because
they choose to engage in protected concerted ac-
tivities for their mutual aid or protection.
WE WILL NOT refuse to recognize and bargain
collectively concerning rates of pay, wages, hours,
and other terms and conditions of employment
with United Cement, Lime, Gypsum and Allied
Workers International Union and its Local 560,
AFL-CIO-CLC as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT refuse to furnish the above-named
Union with relevant and necessary bargaining in-
formation concerning employees in the bargaining
unit described below, including but not limited to
the employees ' names, addresses, phone numbers,
wage classifications, and seniority.
WE WILL NOT unilaterally without notice to or
consultation with the above-named Union hire new
temporary employees at our Broadway operation,
utilize supervisors to operate the crusher at our
Broadway operation, change the method of paying
bulk loader-weighmasters from hourly rates to
salary, change the manner in which we pay the
overtime to our mechanics at our 1604 operation
whereby we eliminate regular time and utilize
straight time, grant across-the-board pay increases
to unit employees, or otherwise change the rates of
pay, wages, hours or other terms and conditions of
employment of any bargaining unit employees
without first notifying the Union and providing it
with an opportunity to bargain collectively with us
in good faith concerning such proposed changes;
provided, however, that we are not required to re-
scind any wage increases or promotions which we
have previously granted to the unit employees.
WE WILL NOT refuse to bargain in good faith
with the Union about the following changes and
their effects: the hiring of a new temporary em-
ployee on or about May 9, 1983, as a laborer at our
Broadway operation; our decision in June or July
1983 to resume operation of the crusher at our
Broadway operation, utilizing Supervisors Sergio
Zapata, Fred Contreras, and Sylvestre Ramirez;
our decision in July 1983 to change our bulk
loader-weighmasters at our Broadway operation
from hourly to salaried status, or our unilateral de-
cision in July 1983 to change the manner in which
overtime was paid to mechanics at our 1604 oper-
ation whereby we eliminated regular time and used
straight time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union as
the exclusive representative of all employees in the
appropriate unit described below with respect to
rates of pay, wages, hours, and terms and condi-
tions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement and on request furnish the Union with
relevant and necessary bargaining information con-
cerning the employees in the bargaining unit
below, including, but not limited to, the employees'
names, addresses, telephone numbers, wage classifi-
cations, and seniority. The bargaining unit is:
All production and maintenance employees in-
cluding all employees in the Quarry Depart-
ment, Shipping Department, Kiln Department,
Finishing Mill Department, Slurry Mill De-
partment, Power House Department, Plant
Office Department, Maintenance and Repair
Department, Electrical Department, Laborato-
ry Department, Oiler Subsection, as well as
plant clerical employees, leadmen, truckdrivers
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 us at
our San Antonio, Texas plant.
WE WILL make restitution, with interest, for any
loss of wages and benefits which the bargaining
unit employees may have suffered because of the
unilateral changes we have made in their condi-
tions of employment.
WE WILL make employee Alfonso Lopez whole
for any loss of wages he may have suffered as a
result of the 30-day suspension imposed on him on
3 September 1983, and WE WILL expunge from our
records and files any entry concerning his suspen-
sion.
ALAMO CEMENT CO.
WE WILL notify employee Alfonso Lopez, by
letter , that we have expunged from his employment
records any reference to the suspension we im-
posed on him on 3 September 1983, and not con-
sider that suspension as basis for any future person-
nel action against him.
WE WILL, on request of the Union, rescind or
bargain in good faith about each of the following
unilateral changes: (1) the hiring of a new tempo-
rary employee about 19 May 1983 , as a laborer at
our Broadway plant ; (2) the employment of Super-
visors Sergio Zapata , Fred Contreras , and Syl-
vestre Ramirez to operate a crusher at our Broad-
way operations ; (3) the changing of bulk loader-
weighmaster classification from hourly pay to
salary; (4) the change in the manner in which we
paid overtime to the mechanics at our 1604 oper-
ations , whereby regular time has been eliminated
and only straight time has been used.
ALAMO CEMENT COMPANY
Robert Levy, Esq.., for the General Counsel.
Michael Moore, Esq., and Robert S. Bambace, Esq. (Ful-
bright & Jaworski), of Houston, Texas, for the Re-
spondent.
Paul H Balliet, of Waxahachie, Texas, and Alfonso Lopez,
of San Antonio, Texas, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge.
Upon a charge filed by the Union, United Cement, Lime,
Gypsum and Allied Workers ]international Union and its
Local ,560, AFL-CIO-CLC, in Case 23-CA-9458, on
September 19, 1983, against the Alamo Cement Compa-
ny (formerly known as San Antonio Portland Cement
Company)," the Regional Director for Region 23 issued
a complaint on October 31, 1983, alleging that the Com-
pany violated Section 8(a)(5) and (1) of the National
Labor Relations Act (29 U.S.C. § 151 et seq.), by making
unilateral changes in the wages and conditions of em-
ployment of its production and maintenance employees
without bargaining collectively with the Union which
was the exclusive collective-bargaining representative of
those employees, by refusing the Union's request to bar-
gain about the unilateral changes and their effects, and
by refusing to furnish the Union with information alleged
to be necessary and relevant to the Union's ability to
perform its duties as the employees' exclusive collective-
bargaining representative. The complaint also alleged
that the Company violated Section 8(a)(1) and (3) of the
Act by maintaining an excessively broad prohibition
against solicitations and distribution and by suspending
employee Al Lopez2 for a period of 30 days because he
' The name of the Respondent appears as corrected at the hearing
2 The alleged discnminatee's full name on the record is Alfonso Lopez
1033
violated that rule or because he engaged in union activi-
ty.
At the hearing, without objection by the Company, I
granted the General Counsel's motion to consolidate fur-
ther allegations based on a charge which the Union filed
January 20, 1984, in Case 23-CA-9599, with the com-
plaint in Case 23-CA-9458. As amended at the hearing,
the consolidated complaint included three additional alle-
gations of unilateral action by the Company which alleg-
edly violated Section 8(a)(5) and (1) of the Act. In its
answer, as amended, the Company denied commission of
all the alleged unfair labor practices. On the entire
record, including my observation of the witnesses, and
after due consideration of the briefs filed by the General
Counsel and the Company, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a Texas corporation with its principal
office and place of business at San Antonio, Texas,
where it processes and manufactures cement. The Com-
pany annually purchases and receives at its San Antonio
plant products, goods, and materials valued in excess of
$50,000 directly from locations outside the State of
Texas. From the foregoing admitted commerce data, I
find that the Company is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The consolidated complaint alleges, the Company's an-
swers admit, and I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the Company violated Section 8(a)(5) and
(1) of the Act by making unilateral changes in wages,
hours, and other terms and conditions of employment
without affording the Union prior notice and an opportu-
nity to negotiate and bargain about those changes.
2. Whether the Company violated Section 8(a)(5) and
(1) of the Act by refusing to meet and bargain collective-
ly with the Union regarding the changes in wages, hours,
and other terms and conditions of employment and their
effects on bargaining unit employees.
3. Whether the Company by refusing to furnish the
names, addresses, telephone numbers, wage classifica-
tions, and seniority for employees in the certified bar-
gaining unit, violated Section 8(a)(5) and (1) of the Act.
4. Whether the Company violated Section 8(a)(1) of
the Act by maintaining the following prohibition:
Distributing literature or articles of any kind, in-
cluding circulation of petitions. (Any advertising
matter or propaganda or soliciting for any organiza-
tion will not be permitted.)
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Whether the Company violated Section 8(a)(3) and
(1) of the Act by suspending employee Alfonso Lopez
because he violated the above-quoted no-solicitation, no-
distribution rule or because he engaged in union activity.
B. The Alleged Violations of Section 8(a)(5) and (1) of
the Act
On March 5, 1979, the Board in San Antonio Portland
Cement Co., 240 NLRB 1168, 1170 (1979), found that the
Company had violated Section 8(a)(5) and (1) of the Act
since September 25, 1978, by refusing to bargain with the
International Union component of the Union, designated
as United Cement, Lime, Gypsum Workers International
Union, AFL-CIO-CLC, as the certified bargaining rep-
resentative of the following unit of its employees:
All production and maintenance employees, includ-
ing all employees in the Quarry Department, Ship-
ping Department, Kiln Department, Finishing Mill
Department, Slurry Mill Department, Powerhouse
Department, Plant Office Department, Maintenance
and Repair Department, Electrical Department,
Laboratory Department, Oiler Subsection, as well
as plant clerical employees, leadmen, truck drivers,
and mechanics, but excluding all other employees,
including office clerical employees, order clerks,
guards, watchmen, and supervisors as defined in the
Act, employed by [the Company ] at its San Anto-
nio, Texas plant.
In the same decision, the Board found that the Compa-
ny had also violated Section 8(a)(5) and (1) of the Act by
failing to furnish bargaining information requested by the
International Union. To remedy the Company's unlawful
refusal to bargain with the International Union for the
employees in the certified unit, the Board in San Antonio
Portland Cement Co., id., provided as follows:
In order to ensure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date [the Company] com-
mences to bargain in good faith with the [Interna-
tional] Union as the recognized bargaining repre-
sentative in the appropriate unit. [Citations omitted.]
The Board's Order was enforced in NLRB v. San Anto-
nio Portland Cement Co., 611 F.2d 1148 (5th Cir. 1980),
cert. denied 449 U.S. 844 (1980).
On May 21, 1980, Administrative Law Judge James T.
Barker issued a decision in Board Cases 23-CA-7182, et
al. (JD-(SF)-155-80), in which he found, inter alia, that
following the Board-held election on March 17, 1978, in
the unit described above, and during 1979, the Compa-
ny's predecessor made unilateral changes regarding
wages and conditions of employment without bargaining
collectively with the International Union, and thereby
violated Section 8(a)(5) and (1) of the Act. Judge Bark-
er's decision is currently under Board review.
On July 15, 1983, I issued a decision in Alamo Cement
Co., d/b/a San Antonio Portlant Cement Co., in Case 23-
CA-8880 (JD-279- 83). In that case, I found that the
Company had violated Section 8(a)(5) and (1) of the Act
by unlawfully refusing to recognize and bargain with the
International Union since July 27, 1981, and by making
unilateral changes in wages, hours, and conditions of em-
ployment of the employees represented by the Interna-
tional Union in the certified unit. This decision is cur-
rently under Board review.
On October 27, 1983, Administrative Law Judge Rich-
ard J. Linton issued a decision in Alamo Cement Co.,
Case 23-CA-9122, in which he found that the Company
had made additional unilateral changes in the hours and
conditions of employment of the bargaining unit employ-
ees without notice to or consultation with the Interna-
tional Union and thereby violated Section 8(a)(5) and (1)
of the Act. Judge Linton's decision is also under Board
review.
The parties have stipulated that on or about the dates
noted below, the Company engaged in the following uni-
lateral conduct, which I find affected the bargaining unit
employees, without prior notice to or consultation with
the Union, and without having afforded it any opportuni-
ty to negotiate and bargain: (a) About May 9, 1983, hired
a new employee as a temporary laborer at its Broadway
operations; (b) in June or July 1983, the exact date being
presently unknown to the Regional Director, resumed
operation of its crusher at its Broadway operations, uti-
lizing Supervisors Sergio Zapata, Fred Contreras, and
Sylvestre Ramirez, to operate said equipment; (c) com-
mencing in July 1983, the exact date being presently un-
known to the Regional Director, changed the compensa-
tion of bulk loader-weighmasters from hourly pay to
salary; (d) commencing in July 1983, the exact date being
presently unknown to the Regional Director, at its 1604
operations, changed the manner in which overtime was
paid to mechanics, whereby regular time was eliminated
and only straight time was used; (e) about October 4,
1983, at its Broadway operations, used its Supervisor En-
rique Zapata to operate a crane; (f) about June 26, 1983,
changed the classification of Oscar Castillo, from mix
chemist (doing physical testing) in the laboratory depart-
ment to assistant chief chemist in the laboratory depart-
ment; (g) in January 1984, granted an across-the-board
pay increase whereby employees received wage increases
if their wage rates were at or below the wage rate for
the classification of said employees; and (h) in January
1984, established a regular schedule whereby Supervisor
Enrique Zapata was to operate a crane 8 hours each
week. In addition to the foregoing stipulated facts, the
parties have also stipulated the following facts as alleged
in paragraphs 13, 14, 15, and 17, in the amended com-
plaint. They are as follows:
13. At all times material herein, and more specifi-
cally since on or about July 15, 1983, the Union, by
its agent Vice-President Paul H. Balhet, by corre-
spondence to [the Company's] supervisor and agent
William D. Hopper, protested the making of the
unilateral changes and modifications as to mandato-
ry and contractual terms of bargaining a described
above in paragraph 11 and requested that [the Com-
pany] contact the Union in order to arrange suitable
times and dates for the purposes of meeting, discuss-
ALAMO CEMENT CO.
ing and negotiating said unilateral changes and
modifications and their effects on bargaining unit
employees.
14. [The Company] has not acknowledged
and/or replied to the Union's request as set out
above in paragraph 13.
15. By letter dated August 1, 1983, the Union, by
its agent Vice-President Paul H. Balliet , requested
[the Company], by its supervisor and agent William
D. Hopper, to furnish the names, addresses, phone
numbers, wage classification and seniority for [the
unit employees] for the purpose of collective bar-
gaining.
17. [The Company] has not acknowledged
and/or replied to the Union's request as set out
above in paragraph 15.
The Company contended that it did not violate Sec-
tion 8(a)(5) and (1) of the Act by unilaterally promoting
Oscar Castillo to assistant chief chemist on the ground
that, by such change, Castillo became a supervisor there-
by excusing the Company from its bargaining obligation.
The General Counsel challenged this contention urging
that Castillo's position as assistant chief chemist did not
render him a supervisor within the meaning of Section
2(11) of the Act. If, as the Company urges, Assistant
Chief Chemist Castillo is a supervisor as defined in Sec-
tion 2(11) of the Act, the Company had no duty to bar-
gain with the Union about his promotion. See Gerber &
Hurley, Inc., 269 NLRB 856, 858 (1984).
As defined in Section 2(11) of the Act, the term "su-
pervisor" denotes:
[A]ny individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off;
recall, promote, discharge, assign, reward, or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
This section is to be read in the disjunctive; possession of
any one of the enumerated powers' establishes superviso-
ry status. Eastern Greyhound Lines v. NLRB, 337 F.2d
84, 87 (6th Cir. 1964). The burden of establishing Castil-
lo's supervisory status rested upon the Company. Com-
mercial Movers, 240 NLRB 288, 290 (1979).
Prior to his July 1983 promotion, Castillo was classi-
fied as a mix chemist; however, his actual work was as a
physical tester in the laboratory. Since his promotion,
Castillo has spent most of his working time performing
physical testing.
As assistant chief, Castillo aids his immediate supervi-
sor, Chief Chemist Willy Gonzales, in the preparation of
monthly laboratory reports and acts in Gonzales' place
when he is absent from the laboratory. During Gonzales'
2-week vacation in 1983, on two or three additional
weekends in 1983, and during Gonzales' occasional brief
absences of 1 or 2 hours' duration, Castillo has acted as
chief chemist of the laboratory. During such period, the
1035
laboratory employees looked to Castillo for advice on
their work and considered him to be their "boss."
There was no showing that Castillo, whether acting in
Gonzales' place or in his own right, has authority to
hire, discharge, discipline, promote, or to recommend
such personnel actions effectively. In Gonzales' absence,
Castillo has directed employee Alfonso Lopez, who is a
mix chemist, to run tests on cement. However, the
record did not show whether Castillo issued such direc-
tions using his own judgment, or whether he was acting
as a conduit for Willy Gonzales. On occasion, Castillo
uses his judgment when he notes deficiencies in the
cement in production and directs employees to take cor-
rective measures. During Gonzales' absence, Costillo re-
quired employees to work overtime. Also, during Gon-
zales' absence, employees have telephoned Castillo at
home during the latter's off-day hours for advice on lab-
oratory problems. In Gonzales' absence, Castillo regular-
ly signs pay authorization sheets for the laboratory
chemists. However, no employees have ever asked Cas-
tillo for time off, nor was there any showing that he has
authority to grant time off. -
Unlike Chief Chemist Gonzales, who is salaried, Cas-
tillo continues to be hourly paid as are the unit employ-
ees. Castillo's hourly pay rate is $10.05. Mix chemist Al-
fonso Lopez' hourly pay is $9.65 and the regular hourly
pay rate for mix chemists is $9.23.
Castillo has attended at least one supervisors' meeting,
However, there is no showing that he regularly attended
such gatherings.3
I find that the Company has not sustained its burden
of proving that Castillo is a supervisor within the mean-
ing of Section 2(11) of the Act. There is no showing that
Castillo has authority to hire, discharge, or otherwise im-
plement or effectively recommend any of the actions set
out in Section 2(11) of the Act. Although Castillo has as-
signed overtime to employees twice in the absence of
Chief Chemist Willie Gonzales, there was no showing
that Castillo had authority to do so when Gonzales was
present in the laboratory.
Since July 1983, when Castillo became assistant chief
chemist, Gonzales has been absent from the laboratory
on a 2-week vacation, two weekends, and for periods of
1 or 2 hours during the workday when he was pursuing
personal business. It was during these periods of Gon-
zales' absence that Castillo gave directions to laboratory
personnel and otherwise acted as chief chemist. Al-
though employees sought advice from Castillo and con-
sidered him to be a "boss," there was no showing that
Castillo was acting other than a more experienced opera-
tor giving assistance to less experienced operators. Final-
ly, I find from Castillo's testimony that since his promo-
3 I based my findings of fact regarding Oscar Castillo's status upon his
testimony and that of Alfonso Lopez. Personnel Manager Manuel Galin-
do's testimony conflicted with Castillo' s regarding the extent to which
the latter performs physical testing and as to the extent of his authority
when Chief Chemist Gonzales is present. I also noted that Galindo ap-
peared reluctant to give a candid response to the General Counsel's ques-
tions regarding Castillo's physical testing As Castillo and Lopez reflect-
ed greater familiarity with the laboratory's operation than Galindo, and
as they impressed me as being more candid witnesses, I have credited
their testimony rather than Galindo's on this issue
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion he continues to spend most of his working time as a
physical tester. Therefore, he continues to perform unit
work for more than half of his working time. I find
therefore that Castillo is not a supervisor within the
meaning of the Act and that he continues to be an em-
ployee in the collective-bargaining unit . Union 76 Auto
Truck Plaza, 267 NLRB 754, 755 (1983). Accordingly, I
fmd no merit in the Company's defense against the alle-
gation that about June 26, 1983, it unilaterally changed
Oscar Castillo's classification from mix tester to assistant
chief chemist in the laboratory department.
The Company urges dismissal of the two allegations
regarding the assignment of Supervisor Enrique Zapata
as a crane operator on the ground that these assignments
were not substantial, material changes in the terms and
conditions of employment of bargaining unit employees.
In support of this contention, the Company points to the
credited testimony of Personnel Manager Emanuel Ga-
lindo, that the Company has employed supervisors as
crane operators "for at least 30 years." I also note that
the Company and the Union have never executed any
agreement covering the employment of supervisors as
crane operators.
I find merit in the Company's contention. For where,
as here, no contractual provision prohibits such an as-
signment and the record shows that supervisors have
performed as crane operators previously, the assignment
of Supervisor Enrique Zapata to operate a crane did not
constitute a unilateral change. Tufts Bros., 235 NLRB
808, 809 (1978). Accordingly, I shall recommend dismis-
sal of those portions of the amended complaint which
allege that Supervisor Zapata 's assignment as a crane op-
erator violated Section 8(a)(5) and (1) of the Act.
In light of the prior fmdmgs and conclusions in San
Antonio Portland Cement Co., 240 NLRB 1168 (1979),
and those in Board Cases 23-CA-7182, et al. (JD-(SF)-
155-80), 23-CA-8880 (JD-279-83), and 23-CA-9122
(JD-(ATL)-94-83), and the stipulated facts, I find that,
except for the issues regarding Supervisor Enrique Zapa-
ta's assignments as a crane operator, the Company violat-
ed Section 8(a)(5) and (1) of the Act by its unilateral
conduct and its failure to respond to the Union's request
for negotiations and bargaining as set forth above.
In San Antonio Portland Cement Co., id. at. 1170-1171,
the International Union had requested the unit employees
names, classification, rates of pay, dates of hire, and
copies of their benefit programs. The Board held that the
requested information was relevant and necessary and
that the Company's refusal to furnish it to the Interna-
tional Union, as the recognized exclusive bargaining
agent , violated Section 8(a)(5) and (1) of the Act. In
light of the Board's holding, I find that the Company's
refusal to furnish the Union's requested information in
this case also violated Section 8(a)(5) and (1) of the Act.
C. The Alleged Violation of Section 8(a)(3) and (1) of
the Act
Since 1978, the Company has maintained a list of 21
work rules which include rule 8 which prohibits employ-
ees from:
Distributing literature or articles of any kind, in-
cluding circulation of petitions. (Any advertising
matter or propaganda or soliciting for any organiza-
tion will not be permitted.)
Between August 22, 1980, and July 10, 1981, when the
Union and the Company were engaged in collective-bar-
gaining negotiations , the Company proposed a table of
rules which included the following:
20. Solicitation for any cause during working
time is prohibited.
21. Distribution of literature in working areas is
prohibited.
The International Union refused to discuss the Compa-
ny's proposed new work rules . Instead , the International
Union agreed that the Company could continue to main-
tain the current work rules, which included rule 8
quoted above. In particular, I find from the testimony of
Vice President Paul Balliet that the International Union
specifically agreed that the Company could continue to
maintain rule 8, the prohibition against distribution and
solicitation.
In 1981 employee Julio Perez solicited employees' sig-
natures during working hours at the Company in support
of a petition to decertify the International Union. When
employee Alfonso Lopez became aware of Perez' activi-
ty, he informed Personnel Manager Galindo, who said
that he would investigate Lopez ' allegations.
According to Lopez, the following day, Galindo re-
ported that he had investigated the matter and Perez had
denied engaging in solicitation. However, I fmd from
credible testimony of Julio Perez, who appeared before
me as a witness in Case 23-CA-8880, that Galindo found
that Perez was engaging in solicitation. The record does
not establish that Galindo learned that Perez was solicit-
ing signatures during working hours on the Company's
premises.
Mix Chemist Alfonso Lopez has been a company em-
ployee for approximately 25 years. Since 1978, the Com-
pany has been aware that Lopez has been and is a union
activist. During negotiations in 1980 and 1981, he was a
member of the Union' s bargaining committee.
On September 3, 1983, the Company suspended Lopez
for 30 days on the grounds that he harassed a contrac-
tor's supervisor, violated work rule 8 by soliciting em-
ployee Isabel Jose Herrera on July 18, 1983, at approxi-
mately 1:30 p.m. in the plant parking lot during Lopez'
working hours, and that he had also violated work rule
15 by being away from his work station without excuse.4
* Herrera's testimony corroborated the Company 's version of the solic-
itation Lopez ' version disagreed as to the time of the incident I credited
Herrera.
Lopez testified that he solicited Herrera on behalf of the Union on July
18, 1983, before 7 am, Lopez' starting time However, his responses to
questions regarding where he was and what he was doing at 130 p m.
that day, the time at which Herrera places the solicitation, were evasive
Lopez testified that he was "probably running tests" and in response to a
question about what he was doing at 1.30 p m on July 18, 1983, he an-
swered in terms of his usual practice. In contrast , Herrera was responsive
and appeared to be giving his best recollection with self-assurance. I
therefore found Herrera to be the more reliable witness.
ALAMO CEMENT CO.
There was no showing that prior to Lopez' suspension,
any member of the Company 's management talked to
him about his union activity or threatened him with dis-
cipline because of his union activity.
The complaint alleges that the Company violated Sec-
tion 8(a)(1) of the Act by promulgating and maintaining
rule 8 , The complaint also alleges that the Company vio-
lated Section 8(a)(3) and ( I) by suspending Alfonso
Lopez because he violated rule 8 and because of his
union activity . At the hearing , and in his posthearing
brief, counsel for the General Counsel conceded that
under the Board's decision in Jefferson Chemical Co., 200
NLRB 992 (1972), I am barred from finding that the pro-
mulgation and maintenance of rule 8 constituted a viola-
tion of Section 8 (a)(l) of the Act The Company and the
General Counsel agree that under Jefferson Chemical,
where as here , the promulgation of rule 8 was known or
should have been known to the General Counsel through
his investigation of earlier unfair labor practices , includ-
ing the unfair labor practice charge which gave rise to
the complaint in San Antonio Portland Cement Co., supra,
the General Counsel may not thereafter challenge that
conduct in a subsequent complaint . Jefferson Chemical
Co., supra, id. at 994.
Assuming that the earlier cases did not afford the Gen-
eral Counsel the opportunity to learn of rule 8, a later
case did . For in Case 23-CA--8880, both the Internation-
al Union and the General Counsel became aware of the
Company's existing work rules , including rule 8. Indeed,
the parties have stipulated that in that proceeding, em-
ployee Julio Perez testified as to the enforcement of the
no-distribution aspect of rule 8. Yet, it was not until the
instant proceedings that the General Counsel contended
that its promulgation and maintenance were unlawful.
However, I can agree only with the Company's conten-
tion and the General Counsel 's concession that the au-
thority of Jefferson Chemical Co., supra, precludes me
from finding that the promulgation of rule 8 constituted
an independent violation of Section 8(a)(1) of the Act. I
also find that the 6 -month limitation contained in Section
10(b) of the Act bars a finding that the promulgation of
rule 8, in 1978, 5 years before the initial charge was filed
in these cases, violated the Act. Inland Shoe Mfg. Co.,
211 NLRB 843 fn. 3 (1974).
1 do not agree, however, that the holding of Jefferson
Chemical applies to the maintenance of rule 8 or its en-
forcement within the 6-month limitation period. First,
unlike the allegation barred under Jefferson Chemical, the
maintenance of rule 8 is a continuing course of conduct
which is occurring now, and its enforcement against
Lopez in September 1983 could not have been litigated
in the earlier proceedings involving the Company.
Further, were I to rule as the Company urges, I would
do violence to the policy involved in Section 7 of the
Act. For if I permitted the Company to maintain and en-
force rule 8, which I hereafter find to be invalid under
Board policy, I would be granting it a license to interfere
with, restrain , and coerce its employees in the exercise of
the right to engage in union activity which is protected
by Section 7 of the Act.
Turning to rule 8, I find it to be unlawfully broad
under the Board 's policies as enunciated in Stoddard-
1037
Quirk Mfg., 138 NLRB 615 (1962), and reaffirmed in Our
Way, Inc., 268 NLRB 394 (1983). Under that doctrine,
the Board has held that a broad no-solicitation rule ban-
ning such activity during nonworking time is presump-
tively invalid. Stoddard-Quirk Mfg., supra at 617. The
Board has also recognized special business circumstances
may permit a broad no-solicitation rule which includes
nonworking time. Id. 'fn . 4, pp. 617-618. In the instant
case, the Company has provided no evidence that its
production and maintenance operation require the abso-
lute ban on employee solicitation contained in rule 8.
The Board in Stoddard-Quirk also held that a rule pro-
hibiting distribution of literature by employees in non-
working areas is presumptively invalid. Id. at 621. Here
again the Company has not presented any evidence of
special circumstances warranting this broad prohibition.
Accordingly, I find that rule 8 is invalid.
I find no merit in the Company's contention that the
Union waived Alfonso Lopez ' Section 7 right to solicit
support for the Union from other employees. For the
Board has held that a union cannot effectively waive
rights of employees to engage in concerted or union ac-
tivity within the meaning of Section 7 of the Act.
Massey-Ferguson, Inc., 246 NLRB 1100, 1101 (1979).
Finally, the Company's contention that litigation of
Lopez' suspension was barred under Section 10(b) of the
Act is not supported by Board doctrine . For, the Board
has recognized that while the promulgation of an invalid
no-distribution , no-solicitation rule may be time-barred
by Section 10(b) of the Act, the allegations that such
rules have been enforced and maintained within the 6-
month period prior to the charge are not barred by Sec-
tion 10(b) of the Act. American Cast Iron Pipe Co., 234
NLRB 1126 fn. 1 (1978).
I find that by maintaining rule 8, which prohibits em-
ployee solicitation during nonworktime and prohibits em-
ployee distribution of literature during nonworktime in
nonwork areas, the Company is violating Section 8(a)(1)
of the Act. Duralee Fabrics, 246 NLRB 677, 679, 680
(1979). 1 further find that by enforcing rule 8 against em-
ployee Alfonso Lopez, by suspending him for 30 days,
the Company violated Section 8(a)(3) and (1) of the Act.
Duralee Fabrics, id. at 679.5
CONCLUSIONS OF LAW
1. Respondent Alamo Cement Company (formerly
known as San Antonio Portland Cement Company) is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union, United Cement, Lime, Gypsum and
Allied Workers International Union and its Local 560,
AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
8 I find it unnecessary to consider whether the Company also violated
Sec 8(a)(3) and (1) of the Act by disciplining Lopez because of his union
activity. However, if the Board disagrees with my finding that the en-
forcement of rule 8 against Lopez was unlawful, I further find that the
General Counsel has failed to show that union animus motivated the
Company's conduct and would recommend dismissal of the pertinent
complaint allegations
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, includ-
ing employees in the Quarry Department, Shipping
Department, Kiln Department, Finishing Mill De-
partment, Slurry Mill Department, Powerhouse De-
partment, 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,
including office clerical employees, order clerks,
guards, watchmen and supervisors as defined in the
Act, employed at its San Antonio, Texas plant.
4. Since September 8, 1978, United Cement, Lime,
Gypsum and Allied Workers International Union, AFL-
CIO-CLC has been and now is the certified and exclu-
sive representative of all employees in the aforesaid ap-
propriate unit for the purpose of collective bargaining
with respect to rates of pay, wages, hours, and other
terms and conditions of employment.
5. By unilaterally without notice to, or consultation
with, the Union, hiring a new employee as a temporary
laborer at its Broadway operations, resuming operation
of its crusher at its Broadway operations by utilizing Su-
pervisors Sergio Zapata, Fred Contreras, and Sylvestre
Ramirez to operate said equipment, changing the com-
pensation of bulk loader-weighmasters from hourly pay
to salary, changing the manner in which overtime was
paid to mechanics at its 1604 operations so that regular
time was eliminated and only straight time was used,
changing Oscar Castillo's classification from mix chemist
(doing physical testing) in the laboratory department to
assistant chief chemist in the laboratory department, and
implementing an across-the-board pay increase whereby
employees received wage increases if their wage rates
were at or below the wage rates for the classifications of
said employees, Respondent has failed and refused to
bargain collectively with the Union and has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. By refusing to meet with the Union for purposes of
discussing and negotiating the aforesaid unilateral
changes and modifications and their effects on bargaining
unit employees, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
7. By failing and refusing to furnish the Union with
relevant and necessary bargaining information concern-
ing employees in the above-described bargaining unit, in-
cluding, but not limited to, the employees' names, ad-
dresses, telephone numbers, wage classifications, and se-
niority, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
8. By'maintainmg and enforcing rule 8, a no-distribu-
tion and no-solicitation rule which prohibits its employ-
ees from distributing or soliciting anywhere on the Com-
pany's premises, the Company has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
9. By suspending employee Alfonso Lopez for 30 days
because he violated rule 8, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. Respondent has not otherwise engaged in conduct
violative of the Act as alleged in the amended consoli-
dated complaint.
THE REMEDY
Having found that Respondent has committed and is
committing certain unfair labor practices, I shall recom-
mend that it, be ordered to cease and desist from such
conduct and to take such affirmative actions as I find
necessary to remedy the effects of the unfair labor prac-
tices and to effectuate the policies of the Act. Thus, I
shall order that Respondent, upon the Union's request,
cease utilizing its supervisors including Sergio Zapata,
Fred Contreras, and Sylvestre Ramirez to operate the
crusher at its Broadway operation. I shall also recom-
mend that Respondent bargain with the Union upon re-
quest regarding the effect of the hiring of a new employ-
ee as a temporary laborer, about May 9, 1983, at Re-
spondent's Broadway operations. Further, I shall order
that Respondent, upon the Union's request, restore bulk
loader-weighmaster classification from hourly paid to sal-
aried status. I shall further recommend that upon the
Union's request, Respondent restore the manner in which
it paid overtime to the mechanics at its 1604 operation,
by restoring the use of regular time instead of straight
time . I shall also order that Respondent, at the Union's
request, meet for the purpose of discussing and negotiat-
ing the unilateral changes and modification as found
above in this decision and the effects of such changes
and modifications on the bargaining unit employees. In
addition, I shall order that Respondent furnish to the
Union the names, addresses, phone numbers, wage classi-
fications, and seniority of the employees in the bargain-
ing unit.
Since it is possible that Respondent's violations of Sec-
tion 8(a)(5) and (1) of the Act resulted in loss of earnings
to the bargaining unit employees, they are entitled to
compensation therefor, and effectuation of the policies of
the Act requires it. Therefore, I will recommend that
Respondent make whole any employee who lost wages
as a consequence of the Respondent's unilateral conduct,
to be computed as prescribed in Ogle Protection Service,
183 NLRB 682 (1970), plus interest to be determined in
accordance with the policy set forth in Florida Steel
Corp., 231 NLRB 651 (1977).
Having found that Respondent unlawfully suspended
employee Alfonso Lopez on September 3, 1983, for 30
days, I will require Respondent to make him whole for
any loss of earnings and other benefits he may have suf-
fered as a result of the unlawful suspension, such amount
to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as comput-
ALAMO CEMENT CO
ed in Florida Steel Corp., 231 NLRB 651 (1977).6 Finally.
I shall order Respondent to expunge from its records and
files any reference to the 30 -day suspension imposed on
Alfonso Lopez on September 3, 1983, and inform him by
letter that it has been done and that his unlawful suspen-
sion will not be used as a basis for future personnel
action against him.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Alamo Cement Company, San Anto-
nio, Texas, its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Maintaining , giving effect to, or enforcing any rule
which prohibits employees from soliciting at any time on
company property and prohibits distribution by employ-
ees in nonworking areas of the Company's property
during their nonworking time.
(b) Suspending , discharging, or otherwise discriminat-
ing against employees because of their union sympathies
or activities or because they selected the Union, United
Cement, Lime, Gypsum and Allied Workers Internation-
al Union and its Local 560, AFL-CIO-CLC, or any
other labor organization , as their collective -bargaining
representative.
(c) Refusing to recognize and bargain collectively in
good faith with United Cement Lime, Gypsum and
Allied Workers International Union and its Local 560,
AFL-CIO-CLC as the exclusive bargaining representa-
tive, concerning wages, hours, and conditions of employ-
ment of the employees in the following appropriate unit:
All production and maintenance employees includ-
ing all employees in the Quarry Department, Ship-
ping Department , Kiln Department , Finishing Mill
Department, Slurry 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
including office clerical employees , order clerks,
guards, watchmen and supervisors as defined in the
Act, employed by the Respondent at its San Anto-
nio, Texas plant.
(d) Unilaterally , without notice to or consultation with
the Union, hiring new temporary employees at its Broad-
way operation , utilizing supervisors to operate its crusher
at its Broadway operation , changing the bulk loader-
weighmasters from hourly paid to salaried status , chang-
ing the manner in which overtime is paid to mechanics
at its 1604 operation so that regular time is eliminated
6 See generally Isis Plumbing Co, 138 NLRB 716 (1962).
7 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec . 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1039
and only straight time is used, changing the classifica-
tions of employees in the above unit, from one employee
classification to another, implementing an across-the-
board pay increase whereby unit employees receive
wage increases' if their wage rates were at or below the
wage rates for the classification of said employees, or
otherwise changing the rates of wages, hours, or other
terms and conditions of employment of any bargaining
unit employee, without first notifying the Union and pro-
viding it with an opportunity to bargain collectively with
Respondent in good faith concerning such proposed
changes; providing that nothing herein shall require Re-
spondent to rescind any wage increases or promotions
which it has previously granted to the unit employees.
(e) Refusing to meet and bargain collectively with the
Union concerning the unilateral changes in the wages,
hours, and conditions of employment of employees in the
bargaining unit as found in this decision and regarding
the effect of such changes on the bargaining unit em-
ployees.
(f) Refusing to furnish relevant and necessary bargain-
ing information concerning employees in the above-de-
scribed appropriate unit, including but not limited to the
employees' names, addresses, telephone numbers, wage
classifications, and seniority.
(g) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request bargain with the Union as the exclusive
representative of all employees in the aforesaid appropri-
ate unit with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if an
agreement is reached , embody such understanding in a
signed agreement.
(b) On request, furnish to the Union all relevant and
necessary bargaining information concerning the employ-
ees in the aforesaid appropriate unit, including but not
limited to the employees ' names, addresses , phone num-
bers, wage classification , and seniority.
(c) Give notice to and bargain with the Union before
implementing any future changes in the wages , hours,
and working conditions of the unit employees in the
above-described appropriate unit.
(d) Make restitution to the employees in the above-de-
scribed appropriate unit, for any wages or other benefits
which may have been lost by virtue of the Company's
unilateral implementation of terms and conditions of em-
ployment, in the manner set forth in the portion of this
decision entitled "The Remedy."
(e) On request of the Union rescind or bargain in good
faith about each of the following unilateral changes and
their effects:
(1) The hiring of a new temporary employee on or
about May 19, 1983, as a laborer at its Broadway plant.
(2) The employment of supervisors Sergio Zapata,
Fred Contreras, and Sylvestre Ramirez to operate the
crusher at the Company's Broadway operation.
(3) The change of the bulk loader-weighmaster classifi-
cation from hourly to salaried status.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) The change in the manner in which overtime is
paid to the mechanics at its 1604 operations so that regu-
lar time is eliminated and only straight time is used.
(f) Make whole Alfonso Lopez for any loss of pay he
may have incurred by reason of the Company's discrimi-
nation against him, in the manner described above in the
remedy section of this decision.
(g) Expunge from its employment records and files
any entry concerning employee Alfonso Lopez' suspen-
sion of September 3, 1983, and present him with a letter
telling him that this suspension is expunged from the
record and will not be used as a basis for any future per-
sonnel action against him.
(h) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(i) Post at its Broadway and 1604 facilities copies of
the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for
Region 23, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(j) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the amended con-
solidated complaint be dismissed insofar as it alleges vio-
lations of the Act other than those found above.
8 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."