Gifford-Hill Co.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 840 (N.L.R.B. 1989)

840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Riverside Cement Company , a Gifford-Hill Company
and United Cement, Lime, Gypsum and Allied
International Union, Division of the Interna-
tional Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO. Case 31-CA-14416
September 29, 1989
DECISION AND ORDER
merce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION
The parties stipulated , and we find, that the
Union is, and at all times material has been , a labor
organization within the meaning of Section 2(5) of
the Act.
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 3, 1988 , the Regional Director for
Region 31 issued an eighth amended complaint and
notice of reset hearing, alleging that the Respond-
ent violated Section 8 (a)(3) and (1) of the Act. The
complaint alleges that the Respondent violated the
Act on or about July 11, 1984, by announcing, pro-
mulgating , and maintaining a rule that any employ-
ees who did not bring to work certain personal
tools would not be permitted to work. The com-
plaint further alleges that on or about July 12,
1984, and continuing for approximately 1 month,
the Respondent refused to allow a number of its
employees to work because of their failure to
comply with this rule.
On February 28, 1989, the Respondent and the
General Counsel filed a motion to transfer proceed-
ings to the Board and a stipulation of facts.' On
April 11, 1989 , the Board accepted the stipulation
and transferred the proceedings. Thereafter, the
General Counsel and the Respondent filed briefs
with the Board.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record, as
stipulated to by the parties , and the briefs of the
parties and makes the following findings and con-
clusions.
1. THE BUSINESS OF THE EMPLOYER
At all times material , Riverside Cement Compa-
ny, a Gifford-Hill Company, has been engaged in
the manufacture of portland cement in Oro
Grande, California. Annually, in the normal course
of its business operations , the Respondent sells and
ships goods or services valued in excess of $50,000
directly to customers located outside the State of
California. The parties stipulated, and we find, that
Riverside Cement Company, a Gifford-Hill Com-
pany, is and has been at all times , an employer en-
gaged in commerce and in business affecting com-
' Although the stipulation was not executed by the Union, the General
Counsel attached a letter from the Union that states that the Union had
no objections to the stipulation.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Stipulated Facts
The Union and the Respondent were parties to a
collective-bargaining agreement effective from
May 1, 1981, through April 30, 1984. At all times
material , the parties were engaged in collective
bargaining for an agreement to succeed this con-
tract . Impasse in bargaining was reached on June
20, 1984,2 and the Respondent lawfully implement-
ed its final offer . Included in the Respondent's final
offer were several articles from the recently ex-
pired collective-bargaining agreement , in particular,
article 27(a)3 and article 32(a) and (c).4
Article 27(a) provides that maintenance employ-
ees are required to furnish "hand tools," but that
certain specified tools are exempted from the defi-
nition of hand tools. Despite the fact that employ-
ees were exempted in the contract from having to
provide certain tools, some maintenance employees
did, for a substantial period of time prior to July
12, elect to bring their own "personal tools"5 to
2 All dates are in 1984 unless otherwise noted
9 Art . 27(a) of the contract reads, in pertinent part The Employer shall
furnish all tools and equipment for its employees , except to maintenance
employees , in which case these employees shall furnish their own hand
tools "Hand tools" as used herein shall not include socket sets,
wrenches more than twelve ( 12) inches long, and all other specialized
tools incident to the work of the mechanical , maintenance and skilled
trades.
4 Art 32(a) and (c) of the contract read
Subsection (a) This Agreement , Pension Agreement , Insurance
Agreement and Supplemental Unemployment Benefit Agreement
contain all the obligations of, and restrictions imposed upon each of
the parties during the respective terms. It is the intent of the parties
by these Agreements to have settled all issues between them and all
collective bargaining obligations for the terms of these Agreements
(as defined therein), and that no change shall be made in any Agree-
ment prior to the expiration thereof , except by mutual written con-
sent and/or as provided in the "term" clauses of these aforemen-
tioned Agreements.
Subsection (c). It is agreed that this Agreement contains all of the
limitations upon the employer -employee relations which have been
agreed upon by the Union and the Employer No other or further
restrictions or limitations shall be imposed by the Union upon any
employee or employees with reference to his employment , except
with the consent of the Employer
5 As used here , the term "personal tools" refers to tools that are re-
quired by the terms of art 27 (c) to be provided by the Respondent, but
have been historically provided by some maintenance employees . It does
not refer to the hand tools that maintenance employees are required to
provide under the terms of art 27(c).
296 NLRB No. 104
RIVERSIDE CEMENT CO.
work with them . As a bargaining tactic, the Union
notified the Respondent on July 5 that its members
intended to cease bringing to work these personal
tools . The Respondent then distributed a memoran-
dum to its supervisors dated July 10 stating that:
Tools which have been provided by the em-
ployees as a matter of past practice will be re-
quired as a condition to work . An employee
who refuses to provide his historically normal
complement of tools is to be instructed that we
have no work available . No tools, no work.
Go home ! Don't come back without your
tools . Be sure to point out that this action is
not disciplinary in nature.
Please warn employees on Wednesday, the
11th, and instruct them that starting with their
next scheduled shift this action will be taken.
Thirty-three maintenance employees failed to bring
their personal tools to work for varying lengths of
time between July 12 and August 14, and were not
permitted to work by the Respondent.
B. The Contentions of the Parties
The General Counsel asserts that the Respondent
violated the Act by promulgating the above-men-
tioned rule requiring that employees furnish the
tools they had historically provided for themselves
and by retaliating against employees who failed to
comply . The General Counsel argues that because
the supplying of personal tools was voluntary, and
because the employees' concerted refusal to pro-
vide these personal tools was a protected activity
endorsed by the Union, the Respondent's retalia-
tion was violative of Section 8(a)(3) and (1) of the
Act. Contrary to the Respondent , the General
Counsel maintains that despite the fact that many
employees had previously provided some of their
own tools for work, the contract states unambig-
uously that these tools would be provided by the
Respondent , and thus the employees ' furnishing of
these tools constituted a gift to the Respondent and
did not establish a term and condition of employ-
ment that the employees ' actions later changed.
The Respondent asserts that the Union attempted
to unilaterally change the longstanding custom and
practice whereby the maintenance employees sup-
plied their own tools, and that its response was
merely a rejection of the Union 's unlawful actions.
The Respondent further argues that its actions
were justified as a legal response to an illegal work
slowdown or partial strike and as a legal lockout in
support of the Company 's bargaining position.
IV. ANALYSIS AND CONCLUSIONS
841
After careful consideration of the parties' posi-
tions, we conclude that the Respondent violated
Section 8(a)(3) and ( 1) by promulgating , for dis-
criminatory reasons, a work rule requiring that em-
ployees provide their own sets of personal tools in
order to work, and by withholding work from em-
ployees who did not follow this rule. It is well set-
tled that a practice not included in a written con-
tract can become an implied term and condition of
employment by mutual consent of the parties. Once
an implied term is established , a unilateral change
in that term by either an employer or a union is un-
lawful .6 In the present case , however , the employ-
ees' furnishing of personal tools was a voluntary
act that did not establish an implied term and con-
dition of employment.
The voluntary nature of the employees ' actions
in providing certain personal tools is evident from
the discretion afforded employees . If providing cer-
tain personal tools had become an implied term of
employment , employees would have been required
to provide them . Here , only some of the employees
chose to provide sets of personal tools . Further, no
action was taken against employees who chose not
to provide any personal tools.
Where an action is voluntary , the concerted re-
fusal by employees to perform that action is a pro-
tected concerted activity and does not constitute an
unlawful partial strike.? In Dow Chemical, the
Board explained that the vice of a partial strike is
the employees' attempt to "establish and impose
upon the employer their own chosen conditions of
employment."8 Where , as here, the action employ-
ees refrain from engaging in is within the employ-
ees' discretion, they cannot be said to be imposing
their own terms on the Employer.
Finally, we find that the Respondent 's withhold-
ing of work from employees was not a lawful lock-
out. Lockouts are generally permissible in anticipa-
tion of a strike or in support of an employer's le-
gitimate bargaining position . 9 The Respondent's re-
6 See Frontier Homes Corp, 153 NLRB 1070, 1072-1073 (1965), enfd. in
pertinent part 371 F.2d 974 (8th Cir. 1967) (employer's unilateral change
in past practice of layoff by seniority unlawful ), Sacramento Union, 258
NLRB 1074 ( 1981) (employer's unilateral change in past practice of job
assignments and seniority rights unlawful ), Chemical Workers Local 29
(Morton-Norwich Products), 228 NLRB 1101 (1977) (union's unilateral at-
tempt to change past practice by insisting on recording grievance meet-
ings unlawful).
' Paperworkers Local 5 (International Paper), 294 NLRB 1168 ( 1989),
Imperia Foods, 287 NLRB 1200, 1204 (1988); Dow Chemical Co., 152
NLRB 1150, 1152 (1965)
' Id. at 1152, quoting Honolulu Rapid Transit, 110 NLRB 1806, 1810
(1954)
9 See generally American Ship Bldg. Y. NLRB, 380 U S 300 (1965).
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fusal to allow the employees in the present case to
work without their personal tools was neither. The
Respondent 's denial of work was limited to only
those employees who engaged in action they were
entitled to take under the contract and the Re-
spondent's recently implemented final offer. The
employees who took this action were not engaged
in a refusal to work or a strike of any kind . Rather,
they were at all times willing and available to work-
under the terms of the contract and the recently
implemented final offer. Further, the Respondent
did not engage in this action in order to support a
legitimate bargaining position . The Respondent's
actions were taken in response to the employees'
decision through the Union to invoke the terms of
the implemented proposal. As such , the Respond-
ent engaged in retaliation for the protected con-
certed activity engaged in by the employees.1 ° Ac-
cordingly , we find that the Respondent violated
Section 8(a)(3) and (1) of the Act. Ii
CONCLUSION OF LAW
By promulgating a discriminatory work rule and
by discriminatorily withholding work from em-
ployees in retaliation for their refusal to comply
with this rule, the Company engaged in unfair
labor practices within the meaning of Section
8(a)(3) and ( 1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in unfair labor practices, we shall order it to cease
and desist and to take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully
promulgated and maintained a discriminatory work
rule in retaliation for employees' protected concert-
ed activity, the Respondent shall be required to
cease and desist from enforcing and maintaining
the rule and shall be required to rescind the rule.
Having found that the Respondent unlawfully
withheld work from the following employees in re-
taliation for the employees' protected concerted ac-
10 Moreover , the Respondent 's "no tools, no work " policy was con-
trary to what we have found the relevant condition of employment to be,
namely , the right of employees to choose whether to furnish personal
tools.
I I The Respondent also raises the fact that it repeatedly requested that
the employees "work now, grieve later ," if they were unhappy with the
Respondent's work rule rather than taking matters into their own hands
and refusing to bring their personal tools to work . As the Board recog-
nized in PaperworAers Local 5 (International Paper), 294 NLRB 1168
(1989), although public policy favors the private resolution of such mat-
ters through arbitration , this principle is not absolute . Here, similar to the
situation in International Paper, employees ' practice of providing the tools
was voluntary , the withholding of the tools was an exercise of the em-
ployees' Sec 7 rights, and the exercise of those rights might have proved
fruitless if not carried out in a timely manner Accordingly, we find that
in these circumstances, the employees were not subject to the "work
now, grieve later" policy.
tivity, the Respondent shall be required to make
them whole for any loss of earnings or other bene-
fits they may have suffered by reason of the dis-
crimination against them , with interest to be com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987):
Jerry Axley
Edward K.
Ballinger
Duane L. Breton
David Carrizosa
Rick P. Chatten
Stephen L. Cox
David W. Deakin
James R. Dick
Paul Y. Espinosa
John L. Eubanks
Michael N. Flint
Kenneth P. Galford
Fred Griego
Gordon P . Hatton
Bill W. Hill
Lewis C. Hill
Morley M. Jarrett
George Lanning
Dennis L. Mann
Charles E. McCollum
James C. McKay
Robert R. McLaughlin
David A. Moltz
David E. Olson
Otto E. Olson
Albert Padilla
C. Wayne Roach
Carlos Roo
Dan Sisk
Charles H. Smith
Jerry L. Webb
Mitchell E. Whaley
John C. Wills
ORDER
The National Labor Relations Board orders that
the Respondent , Riverside Cement Company, a
Gifford-Hill Company, Oro Grande, California, its
officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining discriminatory
work rules in retaliation for employees' protected
concerted activity.
(b) Withholding work from employees in retalia-
tion for their protected concerted activities.
(c) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of their Section 7 rights.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the discriminatory work rule promul-
gated in retaliation for employees ' protected con-
certed activity.
(b) Make the following employees whole for any
loss of earnings or other benefits they may have
suffered by reason of the discrimination against
them in the manner described above in the remedy
section:
Jerry Axley George Lanning
Edward K.
Ballinger Dennis L. Mann
Duane L. Breton Charles E. McCollum
David Carrizosa James C. McKay
RIVERSIDE CEMENT CO.
Rick P. Chatten
Stephen L. Cox
David W. Deakin
James R. Dick
Paul Y. Espinosa
John L. Eubanks
Michael N. Flint
Kenneth P. Galford
Fred Griego
Gordon P. Harton
Bill W. Hill
Lewis C. Hill
Morley M. Jarrett
Robert R. McLaughlin
David A. Moltz
David E. Olson
Otto E. Olson
Albert Padilla
C. Wayne Roach
Carlos Roo
Dan Sisk
Charles H. Smith
Jerry L. Webb
Mitchell E. Whaley
John C. Wills
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Oro Grande, California facility
copies of the attached notice marked "Appen-
dix."12 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including 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.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
is 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
843
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.
WE WILL NOT promulgate and maintain discrimi-
natory work rules in retaliation for your protected
concerted activity.
WE WILL NOT withhold work from employees in
retaliation for their protected concerted activities.
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 rescind the discriminatory work rule
promulgated in retaliation for your protected con-
certed activity.
WE WILL make the following employees whole
for any loss of earnings or other benefits they may
have suffered by reason of the discrimination
against them:
Jerry Axley
Edward K.
Ballinger
Duane L. Breton
David Carrizosa
Rick P. Chatten
Stephen L. Cox
David W. Deakin
James R. Dick
Paul Y. Espinosa
John L. Eubanks
Michael N. Flint
Kenneth P. Galford
Fred Griego
Gordon P. Harton
Bill W. Hill
Lewis C. Hill
Morley M. Jarrett
George Lanning
Dennis L. Mann
Charles E. McCollum
James C. McKay
Robert R. McLaughlin
David A. Moltz
David E. Olson
Otto E. Olson
Albert Padilla
C. Wayne Roach
Carlos Roo
Dan Sisk
Charles H. Smith
Jerry L. Webb
Mitchell E. Whaley
John C. Wills
RIVERSIDE CEMENT COMPANY, A
GIFFORD-HILL COMPANY