Huber Specialty Hydrates, LLC

National Labor Relations Board - Board Decisions

Feb 25, 2020

369 N.L.R.B. 32 (N.L.R.B. 2020)

369 NLRB No. 32
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Huber Specialty Hydrates, LLC and United Steel
Workers, Local 4880 and Brandon Harmon.
Cases 15–CA–168733, 15–CA–177324, and 15–
CA–179549
February 25, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On January 29, 2018, Administrative Law Judge Chris-
tine E. Dibble issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent filed
a reply.1
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
Facts
Since at least 1973, the Respondent and its predecessors
have maintained a collective-bargaining relationship with
United Steel Workers Local 4880 (Union) at a plant in
Bauxite, Arkansas. The most recent collective-bargaining
agreement between the Respondent and the Union took ef-
fect on March 1, 2015, and is scheduled to expire on
March 1, 2020. The management-rights clause in that
agreement grants the Respondent the right to adopt rea-
sonable rules and policies. In relevant part, it provides as
follows:
Except as may be limited by provisions of this Agree-
ment, the operation of the plant, and the direction of the
working forces, including the rights to hire, lay off, sus-
pend, dismiss and discharge any employee for proper
and just cause and to assign employees to tasks as
needed are vested exclusively with the Company. This

1 There are no exceptions to the judge’s recommended dismissal of
the complaint allegations that the Respondent violated Sec. 8(a)(3) and
(1) by issuing written discipline to employee Brandon Harmon and Sec.
8(a)(1) by prohibiting him from discussing grievances.
On November 6, 2019, the General Counsel filed a motion to remand
this case to the administrative law judge for renewed consideration in
light of MV Transportation, Inc., 368 NLRB No. 66 (2019), which
changed the Board’s legal standard for determining whether contractual
language permits employer conduct alleged to constitute an unlawful
unilateral change. On November 22, 2019, the Respondent filed a re-
sponse indicating that it did not object to the General Counsel’s motion
to remand. The Charging Parties did not file a response to the General
Counsel’s motion. The record in this long-pending case is fully
includes the right to adopt reasonable rules and policies
subject to at least seven (7) days’ notice prior to imple-
mentation of such rule or policy to provide the Union
with the opportunity for input during that time and sub-
ject to the Union’s right to promptly grieve the reasona-
bleness of any such rule or policy.
(Emphasis added.)2
The Respondent maintains the Bauxite plant’s attend-
ance policy in a document separate from the collective-
bargaining agreement. The attendance policy in effect
from August 10, 2012, until February 2016 set forth the
following schedule of progressive discipline for attend-
ance-related “occurrences” accumulated over a rolling 12-
month period:
5 occurrences verbal warning
6 occurrences written warning
8 occurrences 1-day unpaid suspension
10 occurrences 3-day unpaid suspension
12 occurrences discharge
Each full-day absence constituted an “occurrence,” and
each tardy arrival or early departure counted as one-half
of an “occurrence.” The attendance policy also included
a call-off procedure that required employees to provide
their immediate supervisor as much advance notice as pos-
sible prior to an absence or tardy arrival. Violations of the
call-off procedure over a rolling 12-month period were
also subject to progressive discipline, as follows:
1 no-call written warning
2 no-calls 1-day unpaid suspension
3 no-calls 3-day unpaid suspension
4 no-calls discharge
The attendance policy also provided that “[e]mployees ab-
sent for four (4) consecutive work days without notification
to their immediate [s]upervisor will be considered to have
voluntarily terminated their employment with [the Respond-
ent].”3
developed, the relevant facts are not in dispute, and a supplemental deci-
sion by the judge would not substantially aid our consideration of the
issues. Accordingly, we deny the General Counsel’s motion.
2 Our quotation from the parties’ agreement corrects minor typo-
graphical errors in the judge’s decision.
3 During contract negotiations in early 2015, the Union proposed that
the attendance policy no longer be contained in a separate document but
instead be incorporated into the collective-bargaining agreement. The
Union’s stated purpose was to prevent the Respondent from unilaterally
changing the policy. The Union also proposed that employees tardy for
less than an hour be charged with one-fourth of an “occurrence” rather
than one-half. The Respondent opposed these proposals, and the Union
withdrew them.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In late 2015, the Respondent decided to revise its at-
tendance policy. At a joint labor-management meeting on
December 17, 2015, the Respondent gave union represent-
atives a draft copy of the revised policy. Among the
changes to the existing policy were a reduction in the num-
ber of occurrences that would warrant discharge from 12
to eight, deletion of a progressive discipline step (3-day
suspension) for violations of the call-off procedure, addi-
tion of a charged occurrence for failing to work previously
accepted overtime, and addition of a requirement that em-
ployees furnish a doctor’s note upon returning to work
from an absence of 3 or more days due to illness.
The parties agreed that the Union would be given time
to consult with the bargaining unit before providing input
about these changes. The Union did not contact the Re-
spondent during the last 2 weeks of December 2015. On
January 4, 2016, Human Resources Manager Jessica Ro-
wan emailed Union President Albany Bailey to inquire
whether the Union had any questions or issues regarding
the changes. Bailey replied that the Union had “a few con-
cerns and suggestions” that it would “bargain[] and/or
grieve[].” Subsequently, however, Bailey demanded that
the Respondent cease and desist from implementing the
changes “until after those items have been appropriately
bargained.”
Bailey and Rowan met on January 13. Bailey acknowl-
edged that the management-rights clause authorized the
Respondent to implement policy changes.4 He observed,
however, that the changes had to be reasonable, and he
took the position that they were subject to bargaining as
well as the grievance process. Later that day, Rowan sent
Bailey an email reminding him that the Respondent had
notified the Union of the changes it planned to make to the
attendance policy in accordance with the management-
rights clause. Rowan also noted that the Union had not
offered any specific input on the changes within the con-
tractual 7-day period. Nevertheless, Rowan said the Re-
spondent would postpone implementing the revised policy
until February 1 and would accept “any [Union] input
prior to that date.”
Bailey promptly answered with an email in which he
insisted that the Respondent bargain about the changes be-
fore implementing them. Following a telephone conver-
sation between the two, Rowan replied that the manage-
ment-rights clause was a “clear and unmistakable waiver”

During those same negotiations, the Union agreed to the Respondent’s
proposal to delete what was then the last sentence of the management-
rights clause, which stated that “[t]he Company will continue to apply
the existing Employee Policy Book.”
4 The judge found that Bailey made this acknowledgment at the Jan-
uary 13, 2016 meeting, and no party excepts to that finding, nor does any
party argue that an ability to “adopt” rules as set forth in the parties’
of the Union’s right to bargain over the policy changes.
Rowan also said that the management-rights clause pro-
vided a “specific process” for adopting policy changes.
Rowan stated that the Respondent would allow the Union
another week to offer input or concerns, after which em-
ployees would be informed of the changes, which would
take effect on February 1.
On January 14, Bailey reiterated the Union’s view that
the Respondent must bargain before implementing the
changes to the attendance policy, and he informed Rowan
that a representative from the International would be avail-
able for bargaining on January 28. Also, on January 14,
the Union filed a grievance regarding the planned changes,
in which it requested a ban on implementation until the
Union and the Respondent reached an “explicit agree-
ment.”
The attendance-policy revisions were further discussed
at joint labor-management meetings on January 20 and 28.
At the latter meeting, the Union expressed several con-
cerns, including over the elimination of a progressive-dis-
cipline step from the rule governing failures to call off and
the reduction of the number of occurrences warranting dis-
charge from 12 to eight. The Union suggested that the
discharge threshold be set at 10 occurrences and that all
employees start under the new rules with a clean slate of
zero occurrences.
Following the January 28 meeting, the Respondent in-
creased the number of occurrences warranting discharge
from eight to nine. It also modified the attendance policy
to include a one-time removal of three and one-half occur-
rences from each employee’s record, thus ensuring that
employees started under the new policy with fewer than
nine occurrences. On January 29, all bargaining-unit em-
ployees received a copy of the new attendance policy. On
February 1, the changes took effect.
Discussion
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by changing the attendance pol-
icy without first bargaining with the Union to agreement
or impasse. She acknowledged that under the collective-
bargaining agreement, the Respondent had the right to
adopt reasonable rules and policies on 7 days’ notice, sub-
ject to the Union’s right to grieve the reasonableness of
any such rule or policy. But applying the “clear and un-
mistakable waiver” standard reaffirmed in Provena St.
agreement is distinguishable from an ability to modify existing rules.
The record shows that an agent of the Union made the same acknowl-
edgment at the December 17, 2015 meeting. Tr. at 38, 64–65. Prior to
the events at issue here, the Respondent—without objection from the Un-
ion—had unilaterally revised its cell phone, shoe, and tobacco policies,
in each instance giving the Union 7 days’ notice as required under the
parties’ agreement.
HUBER SPECIALTY HYDRATES, LLC 3
Joseph Medical Center, 350 NLRB 808 (2007), the judge
found that the language of the parties’ agreement did not
waive the Union’s right to bargain over the changes at is-
sue because it did not specifically reference attendance.5
Excepting, the Respondent contends that its changes to the
attendance policy were lawful because the management-
rights clause of the parties’ collective-bargaining agree-
ment vests in the Respondent the right to adopt reasonable
rules and policies subject to certain conditions, with which
the Respondent undisputedly complied. We find merit in
the Respondent’s exceptions on two grounds.
First, the disputed unilateral changes were lawful be-
cause they were covered by the parties’ contract. After the
judge issued her decision, the Board overruled Provena
and replaced the “clear and unmistakable waiver” stand-
ard with the “contract coverage” standard. See MV Trans-
portation, Inc., 368 NLRB No. 66 (2019). The Board de-
cided to apply contract coverage retroactively in all pend-
ing cases. Id., slip op. at 2. Accordingly, we do so here.
“Under contract coverage, the Board will examine the
plain language of the collective-bargaining agreement to
determine whether the action taken by an employer was
within the compass or scope of contractual language
granting the employer the right to act unilaterally.” Id.
Cognizant of the fact that “‘a collective bargaining agree-
ment establishes principles to govern a myriad of fact pat-
terns,’” the Board stated that it “will not require that the
agreement specifically mention, refer to or address the em-
ployer decision at issue.” Id., slip op. at 11 (quoting NLRB
v. Postal Service, 8 F.3d 832, 838 (D.C. Cir. 1993)).
“Where contract language covers the act in question, the
agreement will have authorized the employer to make the
disputed change unilaterally, and the employer will not
have violated Section 8(a)(5).” Id. “For example,” the
Board stated, “if an agreement contains a provision that
broadly grants the employer the right to implement new
rules and policies and to revise existing ones, the employer
would not violate Section 8(a)(5) and (1) by unilaterally
implementing new attendance . . . rules . . . .” Id., slip op.
at 2. That is precisely the situation presented in this case.
The Respondent’s changes to the attendance policy
were clearly covered by the management-rights clause in
the parties’ agreement. The plain wording of that provi-
sion gave the Respondent the right to adopt “reasonable
rules and policies,” subject to the Union’s rights to a 7-day
“input” period prior to implementation and to challenge
the reasonableness of the changes through the contractual
grievance-arbitration procedure. The Respondent com-
plied with its obligations under the negotiated procedure.

5 The judge also rejected the Respondent’s argument, based on the
facts summarized above in footnotes 3 and 4, that bargaining history and
Indeed, it gave the Union considerably more than the re-
quired 7 days’ notice. The changes the Respondent made
to its attendance policy were plainly within the compass
or scope of contractual management-rights language
granting the Respondent the right to act unilaterally. Ac-
cordingly, the Respondent did not violate Section 8(a)(5).
The contrary result reached by the judge illustrates one
of the reasons why we abandoned the “clear and unmis-
takable waiver” standard in favor of contract coverage.
The judge found that because management-rights lan-
guage granting the Respondent the “right to adopt reason-
able rules and policies” did not mention attendance, it was
insufficiently specific to clearly and unmistakably waive
the Union’s right to bargain over changes to the attendance
policy. This result confirms our observation that applying
the clear and unmistakable waiver standard “typically
ends with the Board impermissibly ‘abrogat[ing] a lawful
agreement merely because one of the bargaining parties is
unhappy with a term of the contract and would prefer to
negotiate a better arrangement.’” MV Transportation, su-
pra, 368 NLRB No. 66, slip op. at 6 (quoting Postal Ser-
vice, supra, 8 F.3d at 836). Contract coverage, in contrast,
holds the parties to the deal they have struck. Here, the
terms of that deal included a right held by the Respondent
to adopt reasonable rules and policies, subject to certain
conditions. The Respondent honored those conditions,
and it was entitled to exercise its right.
Second, even if the contract coverage test were not ap-
plied to this case, Board precedent would still support dis-
missal of the complaint. In a case that predated MV Trans-
portation, the Board found that an employer lawfully im-
plemented a change to an existing policy when it complied
with the terms of a negotiated procedure for making such
a change. See Howard Industries, Inc., 365 NLRB No. 4
(2016). In Howard Industries, the parties’ collective-bar-
gaining agreement contained the following provision:
[I]f the Company wishes to change an existing policy,
create a new policy, or modify job performance stand-
ards that affect the bargaining unit, advance written no-
tice will be provided to the Union via email. If the Union
wishes to negotiate over the changes, it will notify the
Company in writing within ten (10) calendar days of re-
ceipt of the notification. If the Union does not serve
written notification of a desire to negotiate over the pol-
icy or policy change, the Company may implement the
change and the Union waives any arbitration or other le-
gal remedies concerning the creation or modification of
the policy.
past practice further supported a finding of clear and unmistakable
waiver.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
If timely notification of a desire to bargain is provided
by the Union, negotiations shall commence within (10)
calendar days and be completed no later than seven (7)
calendar days after the first negotiating session unless
both parties agree to extend the deadline for negotia-
tions. If the parties fail to reach agreement by the end of
the time period set above, the Company may implement
the new policy or policy change. If the Company exer-
cises its right to implement the new policy or policy
change, the Union will have the right to grieve the rea-
sonableness of the policy under the grievance procedure.
365 NLRB No. 4, slip op. at 2 (emphasis in original). The
employer in Howard Industries notified the union of its plan
to change its policy of giving hams to unit employees during
the Christmas season. The union did not request bargaining
within the contractual 10-day period, and the employer im-
plemented the policy change.
Dismissing the unilateral-change allegation, the judge,
whose decision was adopted by the Board, explained that
“Board precedent would normally require an analysis of
issues such as whether the employer made a unilateral
change regarding a mandatory subject of bargaining, and
if so, whether the union clearly and unmistakably waived
its right to bargain.” Id. at 4. However, the judge ex-
plained, the circumstances in Howard Industries were
“different” because “the parties created and agreed to a
specific procedure” for changing existing policies, which
the employer followed. Id. The employer gave the union
the required written notice of the proposed policy change,
and by failing to request bargaining within the agreed-to
window period, the union waived “any . . . legal remedies
concerning the creation or modification of the policy.” Id.
at 4–5. Accordingly, the employer did not violate Section
8(a)(5).
Here, as in Howard Industries, the parties negotiated
and agreed on a procedure for creating or changing em-
ployment policies, which included notice by the employer,
a period for union input (here) or bargaining (Howard In-
dustries), the employer’s right to implement the policy un-
der stated conditions, and the union’s right to grieve the
reasonableness of the implemented policy. By giving the
Union timely notice of the change and allowing it to pro-
vide input, the Respondent complied with the terms of the
negotiated procedure. Accordingly, the Respondent did
not violate Section 8(a)(5) by unilaterally changing its pol-
icy.
The judge distinguished Howard Industries on the basis
that the contract language in that case was more specific.
We disagree. In both cases, the contract set forth a proce-
dure for changing an existing policy but did not refer to
the specific term or condition of employment at issue
(attendance in this case, holiday gifts in Howard Indus-
tries). The fact that the procedure here is set forth in a
management-rights clause rather than a provision dealing
exclusively with the procedure for changing employment
policies, as in Howard Industries, is irrelevant to a deter-
mination of the parties’ respective rights. The judge also
erred in distinguishing Howard Industries on the ground
that “here, unlike . . . in Howard Industries, Respondent
. . . acknowledged that the attendance policy was not part
of the CBA.” In Howard Industries, the policy regarding
holiday gifts also was not contained in the parties’ collec-
tive-bargaining agreement; like here, it was separate from
the agreement. 365 NLRB No. 4, slip op. at 2. In any
event, the management-rights clause here does not re-
motely suggest that it is inapplicable to employment poli-
cies existing outside of the collective-bargaining agree-
ment’s four corners.
Indeed, the management-rights clause here, which used
the term “input,” more strongly supports a waiver finding
than the provision in Howard Industries, which used “ne-
gotiate” and “negotiations.” As the Board observed in MV
Transportation, use of the term “input” (as opposed to
“negotiate” or “bargain”) suggests that the parties did not
intend to require that the employer engage in statutory bar-
gaining before implementing a rule or policy revision.
368 NLRB No. 66, slip op. at 19 fn. 50; cf. Omaha World-
Herald, 357 NLRB 1870, 1871 (2011) (use of “discuss”
and “explain” instead of “bargain over” established
waiver of statutory bargaining rights); Ingham Regional
Medical Center, 342 NLRB 1259, 1262 (2004) (use of
“discuss” rather than “bargain” indicated waiver of bar-
gaining rights).
In sum, on either or both of the grounds discussed
above, the Respondent did not violate Section 8(a)(5) and
(1) when it unilaterally changed its attendance policy, and
we will dismiss the complaint.
ORDER
The General Counsel’s motion to remand is denied, and
the complaint is dismissed.
Dated, Washington, D.C. February 25, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
HUBER SPECIALTY HYDRATES, LLC 5
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Jacqueline Rau, Esq., for the General Counsel.
Charles P. Roberts, III, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case
was tried in Little Rock, Arkansas, on April 6 and 7, 2017. The
United Steel Workers, Local 4880 (the Union) filed the charge
in case 15–CA–168733 on February 1, 2016, and an amended
charge on February 11.1 The Regional Director for Region 15 of
the National Labor Relations Board (NLRB/the Board) issued
the complaint and notice of hearing on May 31. Brandon Har-
mon (Harmon) filed charges in cases 15–CA–177324 and 15–
CA–179549 on June 1 and July 6, respectively. The Regional
Director for Region 15 of the NLRB issued the order consolidat-
ing the complaint, and the consolidated complaint and notice of
hearing on September 29. Huber Specialty Hydrates, LLC (Re-
spondent or Company) filed a timely answer to complaint 15–
CA–168733 and a timely answer to the consolidated complaint
on June 13 and October 13, respectively, denying all material
allegations in the complaint and asserting several affirmative de-
fenses.2
The consolidated complaint alleges that Respondent violated
the National Labor Relations Act (NLRA/the Act) when (1) on
about May 31, Respondent, by Production Manager Jason Smith
(Smith), prohibited employees from discussing grievances with
other employees; (2) about June 1, Respondent issued discipline
to its employee Harmon to discourage employees from engaging
in concerted activities; and (3) since about December 17, Re-
spondent has failed and refused to bargain collectively with the
Union regarding changes to the attendance policy. (GC Exh.
1(m).)3
On the entire record, including my observations of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a limited liability company with an office and
place of business in Bauxite, Arkansas, manufactures and

1 All dates are in 2016, unless otherwise indicated.
2 On May 8, 2017, the parties filed a joint motion to supplement the
formal papers. The motion noted that counsel for the General Counsel
inadvertently omitted from its formal papers Respondent’s answers to
the complaint and consolidated complaint. Consequently, the joint mo-
tion is granted and Respondent’s answers are admitted into evidence and
incorporated herein by reference as General Counsel’s exhibits 1(s) and
1(t).
3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “Jt. Exh.” for joint exhibit; “GC Exh.” for General Counsel’s
engages in the nonretail sale of alumina trihydrate (ATH). An-
nually, Respondent in conducting its operations, purchased and
received goods valued in excess of $50,000 directly from points
located outside the State of Arkansas. Respondent admits, and I
find, that at all material times it has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
At all material times the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operation
Alcoa Corporation (Alcoa), since at least 1973, manned and
refined bauxite at the facility at issue in this case. Eventually,
Alcoa switched from being a bauxite refinery to a specialty alu-
mina producer. In 2004 Alcoa sold its specialty chemical busi-
ness to Almatis, Incorporated (Almatis) because it was strug-
gling to remain financially viable. Subsequently, Almatis de-
cided to exit the specialty aluminas business and sold that portion
of its business to Respondent in April 2010. Almatis, however,
continued to own and operate a separate part of the facility.
Respondent produces a material used in the paper and wiring
industries; and employs about 60 employees in the plant at issue,
with 44 to 50 individuals working as bargaining unit hourly em-
ployees. The hourly employees work as baggers, operators, and
craft personnel (electrical and mechanical). Baggers are respon-
sible for taking in the “dry product” and putting it into 2000-
pound super sacks, 50-pound bags or a variation of both. It is
essentially an entry-level position with a promotion potential to
an operator position. Operators are more experienced and paid
a higher wage than baggers because they are more highly skilled.
Both baggers and operators have three levels: entry, mid-level,
and top.4 Progression within each level is based on length of
service and skill. Respondent operates four shifts with many
hourly employees working a 12-hour shift. However, operators
in training worked an 8-hour shift.
Respondent’s management structure consists of a plant man-
ager to oversee the entire plant, a process engineer who super-
vises the front end of the plant, mechanical engineer who super-
vises the craft employees, three supervisors to oversee the back
end of the plant, one supervisor to oversee the front end of the
plant, and an operations manager.
During the period at issue the following individual served in
management roles for Respondent: Travas Parker (Travas), op-
erations manager; Craig Parker (Craig), lead supervisor back end
operations; Jason Smith (Smith), production manager, back end
operations; Alex Hewell (Hewell), back end production supervi-
sor; Roger Wright (Wright, production planner; Brad Martin
exhibit; “R. Exh.” for Respondent’s exhibit; “GC Br.” for the General
Counsel’s brief; and “R Br.” for Respondent’s brief. Specific citations
to the transcript, exhibits, and briefs are included where appropriate to
aid in review, and are not necessarily exhaustive or exclusive.
4 While the record does not contain a complete description of the op-
erator duties, there was undisputed testimony that top operators are re-
sponsible for “[s]pray dryer, flash dryer operations, Pannevis filters, and
slurry mixing and loading” and “B milling.” (Tr. 24.)
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Martin), accounting manager; and Jessica Rowan (Rowan), hu-
man resources manager.
B. Collective-Bargaining Agreement and the
Attendance Policy
At all material times Respondent has recognized the Union as
the exclusive collective-bargaining representative of the follow-
ing bargaining unit:
Hourly production and maintenance workers employed by the
Company in its Bauxite, Arkansas, Plant.
(GC Exh. 1(m); Jt. Exh. 1). Since 2009, Albany Bailey (Bailey)
has been the president of the local union representing Respond-
ent’s hourly employees. The bargaining unit had been a single
unit under Almatis’ ownership. However, with the sale of part
of the company to Respondent, the bargaining unit became two
bargaining units. Consequently, Respondent and the Union ne-
gotiated a separate collective bargaining agreement for the em-
ployees acquired by Respondent. The Union and Respondent
have entered into successive collective-bargaining agreements
(“CBA”), the most recent of which is effective from March 1,
2015, to March 1, 2020. This CBA closely mirrors the contract
in place prior to Almatis’ sale to Respondent.
The attendance policy that was effective August 10, 2012 to
February 2016 addressed disciplinary action to be taken based
on a specific number of “occurrences” (absences/tardys an em-
ployee accumulates over a rolling 12-month period).5 Each full-
day absence would incur an occurrence; and tardys or leaving
work early counted as a one-half occurrence. Five occurrences
resulted in a verbal warning. An employee received a written
warning after six occurrences, eight occurrences incurred a 1-
day unpaid suspension, a 3-day unpaid suspension was meted out
after 10 occurrences, and an employee was discharged for accu-
mulating 12 occurrences. The attendance policy also set forth the
“call off procedure” employees must follow to provide advance
notice prior to “incurring an absence or arriving to work tardy”
and the schedule of progressive discipline for failure to adhere to
the call off procedure. (Jt. Exh. 2.) Violation of the call off pro-
cedure over a rolling 12-month period resulted in discipline or
discharge in accordance with the following schedule: one no call
employee issued a written warning; two no calls employee issued
a 1-day unpaid suspension; three no calls employee issues a 3-
day unpaid suspension; and four no calls resulted in discharge.
Moreover, “[e]mployees absent for four (4) consecutive work-
days without notification to their immediate [s]upervisor will be
considered to have voluntarily terminated their employment with
[Respondent].” Id.
Under Almatis’ ownership, management and labor negotiated
for the attendance policy to be separate from the CBA. This
agreement to maintain the attendance policy separate from the
CBA continued even after Almatis sold a portion of the Com-
pany to Respondent. During the 2015 negotiations for the

5 The attendance policy that was in effect when Respondent pur-
chased a portion of Almatis was essentially the same as the attendance
policy in place in February 2016, except for a few minor adjustments.
6 The current CBA contains the same language as the prior contract
except the last sentence in the management clause of the prior CBA is
omitted.
current CBA, the Union proposed changes to the attendance pol-
icy. It proposed to: (1) allow for an employee who was tardy for
less than an hour to be charged for a one-fourth occurrence; and
(2) include the attendance policy as part of the CBA. Respond-
ent balked at those changes, so the Union withdrew the pro-
posals. In the course of negotiations, Respondent proposed the
deletion of the last two sentences of the management-rights
clause under article IV of the CBA. It states in relevant part,
Except as may be limited by provisions of this Agreement, the
operation of the plant, and the direction of the working forces,
including the rights to lay off, suspend, dismiss and discharge
any employee for proper and just cause and to assign employ-
ees to tasks as needed are vested exclusively with the Com-
pany. This includes the right to adopt reasonable rules and pol-
icies subject to at least seven (7) days’ notice prior to implanta-
tion of such rule or policy to provide the Union with the oppor-
tunity for input during that time and subject to the Union’s right
to promptly grieve the reasonableness of any such rule or pol-
icy. However, as the parties have a joint interest in and obliga-
tion for workplace safety, drug and alcohol testing will be per-
formed pursuant to the agreed upon policy. The Company will
offer employees a last chance agreement in lieu of termination
on one occasion unless the employee was in fact impaired on
the job. The Company will continue to apply the existing Em-
ployee Policy Book.
(R. Exh. 5.)6 The Union agreed to the deletion of the last sen-
tence but refused to accede to the elimination of the preceding
sentence. The CBA also gives Respondent the right to “adopt
and modify from time to time shift starting and ending times,
starting and quitting times for individual employees, meal and
break periods.” (R. Exh. 5, p. 18.)
C. Respondent’s December 17 Proposed Modification of
Attendance Policy
On December 17, 2015, a monthly labor-management central
committee meeting7 was held to address outstanding workplace
issues. In attendance were: Bailey, Local Union Vice President
Michael Brian Christian (Christian), Union Representative Os-
car Murdock (Murdock), Rowan, Plant Manager Frank Viguerie
(Viguerie), Travas, and Smith. During the meeting, Rowan an-
nounced that Respondent was going to modify the attendance
policy and provided the attendees with a draft copy of the new
policy. Rowan discussed key proposed changes to the policy and
informed the Union that Respondent intended to implement it
effective January 1, 2016. The proposed changes included (1) a
new call off procedure requiring employees to personally notify
their supervisor or manager if they will be absent or tardy; (2)
employees who fail appear for work over a period of three con-
secutive workdays without notification will be considered to
have voluntarily terminated their employment instead of after
four consecutive work days as stated under the prior policy; (3)
7 Company management and union representatives have regularly
scheduled monthly meeting to discuss and attempt to resolve workplace
issues.
HUBER SPECIALTY HYDRATES, LLC 7
inclusion of the provision on “extenuating circumstances” as it
pertains to voluntary termination because an employee failed to
appear for work over a period of 3 consecutive days without no-
tifying management; (4) the number of occurrences over a roll-
ing 12-month period that will result in discharge is reduced from
12 to 8;8 (5) modifying the disciplinary schedule for no call/no
show by eliminating the written warning step and discharging an
employee after three no call/no show; (6) authorized manage-
ment the discretion to discharge an employee even if they had
not accumulated nine points in a rolling year; (7) failure to work
overtime once accepted would result in an occurrence (under the
prior policy employee allowed to change mind with an hour of
advance notice); and (8) upon return to work from an absence of
3 or more days due to illness, the employee must furnish a return
to work statement from a doctor. The union, however, voiced
concerns with the changes, specifically: (1) elimination of the 3-
day suspension level; (2) reduction in the number of occurrences
required for each step of discipline; (3) change in the call off
procedure; and (4) inclusion of the provision on “extenuating cir-
cumstances.” The union representatives informed Rowan that
they would not agree to the new attendance policy without first
speaking with the bargaining unit members. The parties agreed
that the union would have time to consult with its membership
before providing Respondent with further input about the attend-
ance policy changes.
D. Continued Discussions About and Implementation of the
Revised Attendance Policy
Respondent did not implement the new attendance policy on
January 1. Instead, on January 4, Rowan emailed Bailey writing,
We haven’t heard anything from the union regarding the at-
tendance policy. Do you all have any questions/issues (besides
the adjustment on current occurrences to the new policy)?
(Jt. Exh. 6(a)). On January 5, Bailey responded that the Union
had some concerns and suggestions and planned to “have them
appropriately bargained and/or grieved if necessary.” Id. On the
same day, Bailey followed up his response with an email to Ro-
wan, Travas, and Smith with a demand that Respondent cease
from unilaterally implementing the new attendance policy until
after it had been appropriately bargained. Bailey ended the email
with a request that Respondent contact the Union’s staff repre-
sentative to schedule a date for discussion of the matter. (Jt. Exh.
6(b).)
On January 13, Bailey and Rowan had a brief in-person dis-
cussion about the new proposed attendance policy. Bailey also
met with Travas and Rowan that same day in Travas’ office to
discuss Bailey’s email demanding to bargain over the proposed
changes to the attendance policy; and for management to listen
to any input the Union wanted to provide. In the meeting Bailey
acknowledged that the management-rights clause gave Respond-
ent authority to implement policy changes, but argued the
changes had to be “reasonable” and were still subject to bargain-
ing and the grievance process. After meeting with him, on Jan-
uary 13, Rowan emailed Bailey and reminded him that

8 The number of occurrences resulting in a discharge was ultimately
reduced to nine.
Respondent had given the Union an opportunity, beyond what
was required by the CBA, to respond to the proposed new at-
tendance policy but had not received any specific input from the
Union. She also notified him that the new attendance policy
would be implemented effective February 1, but Respondent
would be “glad” to consider any input the Union provided prior
to that date. (Jt. Exh. 6(b).) Within an hour of receiving Rowan’s
email, Bailey responded to her noting that in the December 17,
2015 central committee meeting, the Union had communicated
several specific issues and concerns it had with the new attend-
ance policy. Moreover, Bailey reiterated that the matter had to
be bargained over and if Respondent refused the Union would
take “appropriate action.” Id.
On January 14, Rowan emailed Bailey that the CBA’s man-
agement-rights clause, “is a clear and unmistakable waiver of the
Company’s obligation to bargain over adopting policies.” She
continued by informing Bailey that although the CBA does not
require it, Respondent would provide the Union with an addi-
tional week to submit input after which the policy would become
effective February 1. Approximately an hour later, Bailey
emailed Rowan a response. In his email, Bailey refuted Re-
spondent’s view that the Union had waived its right to bargain
over the changes to the attendance policy. Moreover, he argued
that article XXIV of the CBA protected the Union’s right to bar-
gain over the issue. Again, Bailey demanded that Respondent
“cease any unilateral change and desist from implementation un-
til bargaining has reached completion.” (Jt. 6(b).) On January
14, the Union filed a grievance charging that Respondent’s
change to the attendance policy violated the CBA. Respondent
did not respond to the grievance.
E. January 20 Central Committee Meeting
On January 20, another central committee meeting was held.
In attendance were: Rowan, Bailey, Viguerie, Travas, Brad Mar-
tin, Christian, and Murdock. Although the new attendance pol-
icy was not on the agenda, Rowan informed the Union that its
input on the subject had been considered and the proposed at-
tendance policy that was shown to the union at the December 17,
2015, meeting had been revised in consideration of the Union’s
suggestions and Respondent’s own internal deliberations. Ex-
cept for telling the Union that the number of occurrences leading
to discharge had been increased from eight to nine, Rowan did
not share with the Union the other revisions that were made to
the attendance policy.
F. January 28 Meeting Between Respondent and the Union
On January 28, the Union and Respondent held a third-step
grievance hearing to address a grievance unrelated to the attend-
ance policy issue. Representing the Union in the grievance hear-
ing was: Bailey, Christian, and Michael Martin (Martin), a union
staff representative. Rowan and Travas represented Respondent.
At some point in the grievance hearing, Martin asked Rowan if
Respondent was prepared to bargain over the new attendance
policy. Rowan responded no. Martin told her that if Respondent
continued to refuse to bargain over the issue, the Union would
have to file a complaint with the NLRB. Rowan did not respond.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the conclusion of grievance hearing, Rowan and Baily went
into Bailey’s office where she showed him the draft copy of the
revised attendance policy. Bailey expressed dissatisfaction with
several points in the draft policy. He did notice, however, that
Bailey had made some changes to the draft to accommodate
complaints the Union had voiced at earlier meetings on the topic.
Rowan made notes on the revised attendance policy in response
to Bailey’s concerns and issues identified by management. (R.
Exh. 12.) Bailey left the meeting with the understanding that
Respondent still intended to implement the new attendance pol-
icy February 1, despite the union’s concerns. On January 29,
Rowan issued a memorandum to the hourly employees notifying
them that the attached attendance policy would be implemented
effective February 1. (Jt. Exh. 8.)
G. Brandon Harmon Issued Discipline
1. Harmon’s employment history
Harmon, a top operator, was initially hired in September 2013
to work for Respondent as a bagger. In February, he was pro-
moted to an entry-level operator position. As a production em-
ployee, Harmon would normally work a 12-hour shift. During
the relevant time period, however, Harmon was an entry-level
operator and still in training. Consequently, he worked an 8-hour
shift from 7 a.m. to 3 p.m.
2. Events of May 31
On the morning of May 31, Craig learned of two situations
that would negatively impact the plant’s production that day.
The first was that one of the robotic machines was inoperable
which would require employees to stack the pallets manually.
Second, the packing area in building 435 was short-staffed which
posed a potential safety concern. Consequently, between 8 and
8:15 a.m., Craig went to Kyley Peterson (Peterson), an operator,
and instructed him to go to building 435 to help Benji Crawford
(Crawford) stack pallets until the robotic situation was resolved.
He noticed that Peterson had already stacked 10 50-pound bags,
with enough bags stenciled complete about four pallets of work.
After speaking with Peterson, Craig went to the control room.
Harmon, Ricky Jackson (Jackson), Chris Skinner (Skinner),
Robbie (last name unknown), and Jake Gardner (Gardner) were
in the room.9 Craig told Harmon that he was reassigning him
from his operations duties to bagging (or emptying) the jet mill
for the remainder of the day. Harmon did not protest, but rather
immediately went to the jet mill. He prepared, filled, and loaded
bags onto the pallet until his first 15-minute break at 9 a.m.
At 9 a.m., Harmon went to the break room where he encoun-
tered Justin Lane (Lane) and Ryan Moore (Moore). Harmon,
admittedly annoyed at having to bag, complained to Lane and
Moore about being reassigned to bag the jet mill for the day. He
told Lane that the highest bagger on the overtime list should have
been offered the work instead of reassigning him to the task.

9 Jackson and Garner were top operators; and Skinner was Harmon’s
direct supervisor. While Craig testified that Robbie (last name unknown)
was in the room, Harmon did not mention him. There was, however, no
evidence disputing Craig’s testimony on this point.
10 Generally, employees are placed on the overtime list according to
seniority and job classification. (Tr. 27–28, 131–132.)
Moreover, Harmon encouraged them to file a grievance over be-
ing denied the opportunity to work overtime.10 While in the
break room, Harmon checked the overtime list and learned that
Charles (Kirtley) was the highest bagger on the list. At about
9:10 a.m., Harmon left the break room to return to the jet mill.
However, he made a brief detour to the 450 break room to get
another drink. Harmon arrived back at the jet mill about 9:17 or
9:20 a.m.
Harmon worked until approximately 10 a.m., when he again
took another break to go to the bathroom and get a drink of water
from the control room. While in the control room with Garner
and Jackson, Skinner entered and stated: “We need to shut down
the number one spray dryer to get ready to transition to a differ-
ent product.” (Tr. 150.) Although Harmon acknowledged that
Skinner’s instruction was not directed specifically at him, he de-
cided to interpret it as including him. Consequently, instead of
allowing Jackson to assist Garnder, Harmon volunteered to help
with the task. While Gardner began preparing the dryer for shut-
down, Harmon returned to the jet mill. About 10:30 a.m., Craig
stopped by the jet mill and asked Harmon how it was going. Har-
mon mentioned that the machine was bagging a little slow.
Harmon left the jet mill at 11 a.m. to help Gardner finish shut-
ting down the spray dryer, which took about 45 minutes. There-
after, Harmon returned to the jet mill and, except for his 30-mi-
nute lunchbreak at 1 p.m., bagged until the end of his shift. How-
ever, he did telephone Smith shortly after he finished shutting
down the spray dryer to complain about being assigned to bag
the jet mill. Harmon told Smith that he was an operator and be-
lieved that by assigning him to bag, management was unfairly
taking away an overtime opportunity from baggers. Smith,
through a series of rhetorical questions, told Harmon to continue
the bagging duties because he was qualified to bag and continued
to be paid at an operator’s level. Nonetheless, Harmon continued
to complain so Smith told him that he would speak with him
when he returned from lunch.
As Smith was returning to the plant from lunch, he had a tele-
phone conversation with Craig about Harmon being disgruntled
with being on the bagging station. Craig had also received calls
from people telling him that Harmon called them in an attempt
to get them to “file a grievance on missing overtime.” (Tr. 245.)
Smith told him that he was going to speak with Harmon about
the situation. When he got into the building, Smith encountered
Harmon coming out of the 450 control room.11 Harmon repeated
his gripe about being assigned to bagging and that he was “steal-
ing” overtime from other baggers. Smith again told him that he
had not been downgraded; continued to get an operator’s pay;
was qualified to run the machine so it was unnecessary to call
someone from the overtime list to bag. Harmon responded that
he disagreed, at which point Smith told him, “Hey, Brandon, you
know, I need you on the spout, putting the bag on the spout. I
don’t need you on your phone calling me and other people trying
11 It is undisputed that Harmon and Smith had a discussion about
Harmon’s displeasure with being assigned to bag the jet mill. However,
there is a dispute over what time the conversation occurred. Harmon
claimed they spoke about 9:10 a.m. as he was leaving the break room.
Smith places the conversation about noon, immediately after he returned
from his lunchbreak. I credit Smith’s testimony on this point because it
was more detailed and consistent with the overall evidence.
HUBER SPECIALTY HYDRATES, LLC 9
to get them to file grievances and stuff.” (Tr. 244.) The conver-
sation ended with Smith telling Harmon, “I need [you] to [put]
bags on the spout.” (Tr. 244.) They departed and Harmon re-
turned to the jet mill. Towards the end of Harmon’s shift, he
made two telephone calls to baggers encouraging them to file a
grievance over being denied the opportunity to work overtime.
Although Harmon was able to complete 30 bags, the jet mill was
not empty by the end of his shift.
H. Harmon’s Conversation with Kirtley
On June 1, Harmon returned to his regular operator duties.
While on his first work break at about 9 a.m., Harmon spoke with
Kirtley in the break room and told him that the previous day he
had to perform bagger duties. He complained to Kirtley that de-
spite Kirtley being the first bagger on the overtime list, he was
not given the overtime opportunity because management reas-
signed Harmon to perform bagger duties. Kirtley responded that
he was going to file a grievance because he was denied the over-
time opportunity. The Union filed a grievance on behalf of
Kirtley alleging that Respondent violated the CBA because it as-
signed an operator to perform a bagger function instead of utiliz-
ing the bagger overtime list. Respondent denied the grievance at
the second-step grievance process. In total, the Union made four
verbal demands to bargain and three written requests to bargain
over the Respondent’s unilateral changes to the attendance pol-
icy. Respondent refused by insisting it was not obligated to bar-
gain over the position because of the management-rights clause.
However, Respondent considered and allowed some limited in-
put from the Union regarding Respondent’s changes to the at-
tendance policy.
I. Harmon Issued Discipline on June 1
On June 1, Craig arrived for work at approximately 6:30 a.m.
for a managers’ meeting. During the meeting, his supervisor
asked for an updated on completed tasks from the previous day.
Craig, however, could not give him an accurate accounting be-
cause he could not locate Harmon’s May 31 productivity report.
He later confronted Harmon about his missing paperwork. Har-
mon told Craig that he did not complete the report because there
were not any forms available. He responded that Harmon could
print a form off of the computer. He waited while Harmon
printed, completed, and gave him the form.
After speaking with Harmon and getting his productivity re-
port, Craig took steps to independently assess the amount of
work that had been completed the previous day. He counted the
pallets in the warehouse. Next, Craig spoke with Fitzgerald Wil-
liams (Williams), the bagger on the nightshift, about the amount
of work he had performed on May 31. Williams had only com-
pleted one pallet because his supervisor reassigned him to other
duties. He also did not experience any problems with the bag-
ging machine. He spoke with the “guy” bagging on the jet mill
May 30 who also reported that he had not experienced any

12 In his brief, counsel for Respondent contends that Craig reviewed
the jet mill productivity reports for May 29–31. The General Counsel
disputes this point. Significantly, Craig attested that he did not review
the May 29 report when contemplating issuing Harmon discipline.
Moreover, Craig testified that he spoke with the baggers whose produc-
tivity is reflected in the reports at R. Exhs. 9, 10, 11 but does not
problems with the machine. Likewise, Craig confirmed the bag-
gers production for the period May 29–31 by speaking with them
and reviewing the productivity report Harmon submitted for
May 31. Moreover, the jet mill productivity reports for the pe-
riod May 29–31 confirm Craig’s testimony about the baggers’
output for this period.12 (R. Exhs. 9, 10, 11.)
On May 31, Craig met with Travas and Smith about Harmon’s
productivity. They determined that Harmon should be issued
discipline for failing to fully perform his duties and also failing
to complete his productivity report in a timely manner. Craig
and Smith consulted with Rowan on the proposed discipline be-
cause she had to review and approve all discipline issued to em-
ployees. Rowan agreed with the proposal to issue Harmon a
written discipline. On June 1, Harmon was issued a written
warning. (Jt. Exh. 11.) On the same date, Christian filed a griev-
ance on behalf of Harmon because he was issued the discipline.
Respondent denied the grievance.
III. DISCUSSION AND ANALYSIS
A. Respondent’s Unilateral Change to the Attendance Policy
The General Counsel alleges that Respondent violated Section
8(a)(1) and (5) of the Act when, since about December 17, 2015,
Respondent failed and refused to bargain with the Union regard-
ing changes to the attendance policy. The General Counsel ar-
gues that the changes to the attendance policy were mandatory
subjects of bargaining; Respondent’s changes to the attendance
policy were material, substantial and significant; and the Union
did not waive its right to bargain over the changes to the attend-
ance policy.
Respondent denies that its action violates the Act. Instead,
Respondent counters that the waiver standard is inapplicable in
this case and the Board should adopt the “contract coverage”
analysis; and assuming arguendo that the waiver standard is ap-
plicable, the Union waived its right to bargain over the attend-
ance policy changes.
An employer may not change the terms and conditions of em-
ployment of represented employees without providing their rep-
resentative with prior notice and an opportunity to bargain over
such changes. See NLRB v. Katz, 369 U.S. 736, 747 (1962).
“Under the unilateral change doctrine, an employer’s duty to bar-
gain under the Act includes the obligation to refrain from chang-
ing its employees’ terms and conditions of employment without
first bargaining to impasse with the employees’ collective-bar-
gaining representative concerning the contemplated changes.”
Lawrence Livermore National Security, LLC, 357 NLRB 203,
205 (2011). The duty to bargain, however, only arises if the
changes are “material, substantial and significant.” Alamo Ce-
ment Co., 281 NLRB 737, 738 (1986); Flambeau Airmold Corp.,
334 NLRB 165, 171 (2001). The General Counsel bears the bur-
den of establishing this element of the prima facie case. North
Star Steel Co., 347 NLRB 1364, 1367 (2006). In order to find
explicitly testify that he reviewed the reports as part of his research into
Harmon’s work activities. (Tr. 228–232.) Based on a review of the tes-
timony Respondent cites (Tr. 13, 226–229.) to support its position and
the aforementioned discussion, I find that the only productivity report
Craig viewed as part of his investigation was the May 31 report that Har-
mon gave him.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that an employer made unilateral changes to an employee benefit
in violation of the Act, it must be shown that (1) material changes
were made to the employees’ terms and conditions of employ-
ment; (2) the changes involved mandatory subjects of bargain-
ing; (3) the employer failed to notify the union of the proposed
changes; and (4) the union did not have an opportunity to bargain
with respect to the changes. San Juan Teachers Assn., 355 NLRB
172, 175 (2010). Alamo Cement Co., 281 NLRB 737, 738
(1986); Flambeau Airmold Corp., 334 NLRB 165, 171 (2001);
Garden Grove Hospital & Medical Center, 357 NLRB 653, 653
fn. 4, 657 (2011).
The good-faith standard is used by the courts and the Board to
determine if the parties have met their obligation to bargain un-
der the Act. The Board takes a case-by-case approach in as-
sessing whether parties have met, conferred, and negotiated in
good faith. National Licorice Co. v. NLRB, 309 U.S. 350 (1940)
(the Court adopted the “good faith” standard for an employer’s
conduct); St. George Warehouse, Inc., 349 NLRB 870 (2007)
(the Board reviews the totality of the employer’s conduct in de-
ciding if the employer has satisfied its obligation to confer in
good faith).
An employer to a contractual agreement may unilaterally take
certain actions that result in changes to the terms and conditions
of employment if there has been a “clear and unmistakable”
waiver of the Union’s right to bargain over the changes. Pavil-
ions at Forrestal, 353 NLRB 540 (2008) (impasse irrelevant
where employer unilaterally implemented new health insurance
plan without providing union information, notice and oppor-
tunity to bargain concerning new plan); Laurel Bay Health &
Rehabilitation Center, 353 NLRB 232 (2008) (employer prema-
turely declared impasse and unilaterally implemented changes in
health insurance and other benefits where union requested and
employer agreed to schedule subsequent bargaining session, un-
ion indicated willingness to “look at other plans,” and union
stated that it would prepare counterproposal). The “clear and
unmistakable” standard requires that the contract language is
specific, or it must be shown that the subject alleged to have been
waived was fully discussed by the parties and the party alleged
to have waived its rights did so explicitly and with the full intent
to release its interest in the matter. Allison Corp., 330 NLRB
1363, 1365 (2000); Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983).
Based on the record of evidence, I find that Respondent uni-
laterally changed its attendance policy without providing the Un-
ion with an opportunity to bargain.
In Axelson, Inc., 234 NLRB 414, 415 (1978), the Board de-
fined mandatory subjects of bargaining as,13
those comprised in the phrase “wages, hours, and other terms
and conditions of employment” as set forth in Section 8(d) of
the Act. While the language is broad, parameters have been es-
tablished, although not quantified. The touchstone is whether
or not the proposed clause sets a term or condition of employ-
ment or regulates the relation between the employer and its em-
ployees.

13 Operating Engineers Local 12 (Association General Contractors
of America, Inc.), 187 NLRB 430, 432 (1970).
The Board has consistently held that attendance rules and issues
related to attendance are mandatory subjects of bargaining. Ciba-
Geigy Pharmaceuticals, 264 NLRB 1013, 1016 (1982) (attend-
ance rules and policies are “unquestionably mandatory subjects
of bargaining”), enfd. 772 F.2d 1120 (3d Cir. 1983); Dorsey
Trailers, 327 NLRB 835, 853 fn. 26 (1999) (“An employer’s at-
tendance policy has long been held to be a mandatory subject of
bargaining”), enfd. in relevant part 233 F.3d 831 (4th Cir. 2000);
Graymont PA, Inc., 364 NLRB No. 37 (2016) (employer’s ab-
senteeism policy is a mandatory subject of bargaining). Conse-
quently, I find, and Respondent admits that the unilateral change
to its attendance policy is a mandatory subject of bargaining.
(GC Exhs. 1(m), 1(s), 1(t).) I also find, and Respondent does not
dispute, that the unilateral change to Respondent’s attendance
policy and the implementation of the revised attendance policy
are material, substantial, and significant. See, Murphy Diesel
Co., 184 NLRB 757, 763 (1970), enfd. 454 F.2d 303 (7th Cir.
1971) (employer’s establishment of discipline based on specified
number of absences where none previously existed was a signif-
icant change); Tenneco Chemicals, 249 NLRB 1176, 1179–1180
(1980) (exposing employees to possible discipline based on a su-
pervisor’s discretionary application of a work rule is material,
substantial and significant).
Next, I turn to the question of whether the Union waived its
right to bargain over the unilateral changes to the attendance pol-
icy. Respondent advances several arguments: (1) based on the
facts of the case, the correct analysis to use for this issue is the
“contract coverage” analysis applied by the D.C. Circuit, First
Circuit, and Seventh Circuit; (2) the correct analysis is whether
Respondent satisfied the procedural conditions in the CBA; and
(3) even under the “waiver” standard, the evidence shows the
union waived its right to bargain over changes to the attendance
policy. The General Counsel contends that Respondent’s bar-
gaining obligation was not waived by the CBA; and the union
has not engaged in any conduct that waived its right to bargain
over the changes to attendance policy.
In its posthearing brief, “Respondent contends that the time
has come for the Board to adopt the “contract coverage” analysis
in cases where an employer defends based on an assertion that it
possessed a contractual right to take the action it took.” (R. Br.
21.) I reject Respondent’s argument on this point. The Board
has declined to follow the D.C. Circuit, First Circuit, and Sev-
enth Circuit in substituting the “contract coverage” analysis for
the “clear and unmistakable waiver” standard. The General
Counsel correctly notes that the Supreme Court has affirmed the
“clear and unmistakable waiver” standard, and it continues to be
current Board law. NLRB v. C & C Plywood, 385 U.S. 421
(1967); Provena St. Joseph Medical Center, 350 NLRB 808
(2007). Consequently, I am required to follow Board precedent
where neither the Board, nor the Supreme Court has reversed.
Pathmark Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004); Waco,
Inc., 273 NLRB 746, 749 fn.14 (1984).
Second, Respondent asserts that because the CBA contains a
specific bargaining procedure to follow when an employer in-
tends to take unilateral action, the clear and unmistakable waiver
HUBER SPECIALTY HYDRATES, LLC 11
standard is inapplicable. Instead, Respondent insists that “the
issue becomes one of whether the employer satisfied the proce-
dural conditions set forth in the contract.” (R. Br. 18.) In ad-
vancing its argument, Respondent cites Howard Industries, 365
NLRB No. 4 (2016), and Ingham Regional Medical Center, 342
NLRB 1259 (2004).
In Howard Industries, the employer, over a 9-year period, had
a policy providing for the distribution of hams and/or turkeys
during the Thanksgiving and Christmas holidays to all full-time
employees, even employees out on medical leave or workers’
compensation. The employer subsequently changed the policy
and exempted certain employees from receiving the Thanksgiv-
ing turkeys and Christmas hams. The parties’ CBA established
a procedure for the employer to follow when it wanted to change
an existing policy, create a new policy, or modify job perfor-
mance standards. Consequently, when the union made a demand
that the employer bargain over the unilateral change in holiday
meat distribution, the employer explained that because it fol-
lowed the procedure set forth in the CBA, it was not required to
bargain. The administrative law judge declined to analyze
whether there was a unilateral change about a mandatory subject
of bargaining and if there was a clear and unmistakable waiver
of the right to bargain. The administrative law judge, instead,
found that the determinative factor was whether the employer’s
action was protected by the CBA. Ultimately, the judge ruled
the employer’s action did not violate the Act, and the Board
adopted the judge’s decision.
In Ingham, the employer unilaterally assigned bargaining unit
work to its subcontractor. The employer declined to accede to
the union’s demand to bargain over the issue. Instead, the em-
ployer argued that the parties’ CBA reserved exclusively to Re-
spondent the decision to subcontract bargaining unit work. The
Board adopted the administrative law judge’s finding that, under
the clear and unmistakable waiver standard, the union had
waived its right to bargain over the issue.
Based on a review of the evidence and case law, I reject Re-
spondent’s argument and find that the clear and unmistakable
waiver standard is applicable in this case. Likewise, I find that
Respondent’s reliance on Howard Industries and Ingham is mis-
placed. In fact, Ingham stands in stark contrast to Respondent’s
position. The administrative law judge specifically analyzed the
case under the standard that a party’s bargaining obligation is
only waived by contractual language if the language is a “clear
and unmistakable waiver.” Ingham at 1017. Moreover, the
Board adopted the administrative law judge’s finding and also
noted, “[N]o party has excepted to the judge’s finding that the
“clear and unmistakable” waiver analysis is applicable in this
case.” Ingham at fn. 1.
Howard Industries is inapposite because the employer relied
on language in a specific provision in the CBA that dealt with
policy changes to support its position that its unilateral change
of a company policy was not a violation of the Act. The judge,
in dismissing the complaint, likewise determined that looking at
the specific provision of the CBA was appropriate because it spe-
cifically addressed the procedure to follow for changing an ex-
isting policy, creating a new policy or modifying job perfor-
mance standards. In the matter at hand the management-rights
clause is the focus of the issue and not a specific provision of the
CBA which addresses attendance issues. Further, unlike the
facts in Howard Industries, Respondent in this case acknowl-
edged that the attendance policy was not part of the CBA. Alt-
hough the union, during contract negotiations in 2015, sought to
include the attendance policy as part of the CBA, Respondent
refused. Consequently, unlike the facts in Howard Industries, I
find that the management-rights clause is not determinative of
whether this case should be analyzed under the “clear and un-
mistakable waiver” standard or analyzed based on whether Re-
spondent fully complied with the procedure set forth in the CBA
for implementing the revised attendance policy.
According to Respondent, even assuming arguendo that the
“clear and unmistakable waiver” standard is appropriate, the
facts establish that the union waived its right to bargain over the
issue because: (1) a combination of language in the CBA and the
management-rights clause gave Respondent the right to act uni-
laterally with respect to the attendance policy; and (2) the par-
ties’ bargaining history further confirms the Union’s waiver.
Respondent references the Board’s decision in Provena to
support its case. In Provena, the employer unilaterally imple-
mented a staff incentive policy and a new attendance and tardi-
ness policy. The Board rejected the contract coverage standard
and reaffirmed that it would continue to apply the “clear and un-
mistakable” waiver standard. In so doing, the Board determined
that the union did not waive its right to bargain over the imple-
mentation of the staff incentive policy because (1) the parties’
CBA did not include an express provision on incentive pay; and
(2) there was no evidence that the parties’ bargaining history
showed that the matter was fully discussed or that the union in-
tentionally surrendered its right to bargain over the topic. How-
ever, with respect to the attendance and tardiness policy, the
Board found that, read together, several parts of the CBA’s man-
agement rights clause explicitly authorized the employer to act
unilaterally.
Respondent argues that in the matter at hand, the combination
of provisions in the CBA is at least as compelling as those in
Provena. Specifically, Respondent points to the following lan-
guage in the CBA: (1) Respondent is authorized to “adopt and
modify from time to time shift starting and ending times, starting
and quitting times for individual employees, and meal and break
periods”; (2) Respondent is given the right “to adopt reasonable
rules and policies”; (3) Respondent is authorized “to suspend,
dismiss and discharge any employee for proper and just cause”;
and (4) Respondent must give the Union seven days advance no-
tice and an opportunity for input prior to a rule or policy modifi-
cation. (Jt. Exh. 1, pp. 3, 4, 16.) The General Counsel argues that
Respondent’s reliance on Provena is misplaced because the
management- rights clause at issue lacks the specificity of the
Provena clause. I agree.
In Provena, the Board noted that when “a “management-
rights” clause is the source of an asserted waiver, it is normally
scrutinized by the Board to ascertain whether it affords specific
justification for unilateral action.” at 811. The Board, therefore,
held that Respondent had a right to implement the new discipli-
nary policy on attendance and tardiness without first bargaining
with the Union because the management-rights clause, agreed to
by the Union, specifically provided that the employer had the
right to “change reporting practices and procedures and/or to
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
introduce new or improved ones,” to make and enforce rules of
conduct,” and “to suspend, discipline, and discharge employ-
ees.” Provena at 815. Consequently, the Board found that by
agreeing to this combination of provisions the Union had waived
its right to bargain over the new the policy and its implementa-
tion. Unlike Provena,14 here, the management-rights clause fails
to specifically reference attendance. Instead it merely notes that
Respondent has the “right to adopt reasonable rules and poli-
cies.” (Jt. Exh. 1.) The Board had held that this language is in-
sufficient to meet the “clear and unmistakable waiver” standard.
See Dorsey Trailers, Inc., at 836. Moreover, Respondent’s at-
tempt to combine provisions of the management rights clause
with language from different sections of the CBA to support its
argument that the Union waived its right to bargain over the issue
is disingenuous since Respondent admitted that its refusal to bar-
gain was based solely on the management-rights clause. (Jt. Exh.
6(b).) Based on the evidence and Board law, I find that the facts
in this case dictates a different result than that in Provena be-
cause, for the reasons previously addressed, the language in the
management rights clause at issue is far too vague and general to
support a finding that by agreeing to the clause the Union had
clearly and unmistakably waived its right to bargain over attend-
ance issues.
Next, I turn to whether the parties’ bargaining history estab-
lishes that the Union waived its right to bargain over attendance
issues. “Waiver of a statutory right may be evidenced by bar-
gaining history, but the Board requires the matter at issue to have
been fully discussed and consciously explored during negotia-
tions and the union to have consciously yielded or clearly and
unmistakably waived its interest in the matter.” Provena at 822;
Rockwell International Corp., 260 NLRB 1346, 1347 (1982). In
support of its argument that the Union’s past actions are proof of
the Union’s relinquishment of its right to bargain over the attend-
ance policy, Respondent notes: (1) it unilaterally, and without
objection from the Union, modified the cell phone policy, a shoe
policy and a tobacco (spittle) policy by first giving the union
seven days advance notice to provide input prior to its imple-
mentation; (2) in the 2015 contract negotiations, the Union at-
tempted to incorporate the attendance policy into the CBA; and
(3) the Union agreed to the deletion of language from article
4.01. The General Counsel and the Union counter: (1) it allowed
Respondent to implement changes, without bargaining, to the
cell phone, shoe, and tobacco policies because they were the
types of “reasonable” changes allowed under the management
rights clause; (2) “in contract bargaining, when the attendance
policy was discussed, the Union always asserted that it had the
right to bargain over the attendance policy”;15 and (3) the Union
agreed to the deletion of a sentence in management rights clause
because Respondent assured the Union that it did not foresee any
changes to any policies. Moreover, the General Counsel sum-
marily dismisses Respondent’s defense stating, “[T]he Union
has not engaged in any other conduct that waived its right to bar-
gain over the attendance policy. Even in contract bargaining,
when the attendance policy was discussed, the Union always

14 The management-rights clause in Provena specifically references
attendance by setting forth the language “change reporting practices and
procedures and/or to introduce new or improved ones.” at 815.
asserted that it had the right to bargain over the attendance pol-
icy.” (GC Br. 24.)
I find that the bargaining history of the parties does not estab-
lish that the Union waived its right to bargain over the new at-
tendance policy. The Board has consistently held that prior ac-
ceptance of an employer’s unilateral actions on a specific issue
generally does not, without more, establish that the union waived
its right to bargain over future action by the employer in that
matter. Ciba-Geigy Pharmaceuticals at 1017 (union’s acquies-
cence in employer’s past unilateral changes in other plant rules
does not constitute waiver by union of right to bargain about em-
ployer’s implementation of new plant rule); Murphy Diesel Co.,
supra (the union’s prior acceptance of the employer’s unilateral
promulgation of written work rules on, among other subjects,
lateness and absenteeism did not constitute a relinquishment of
the union’s right to bargain about the employer’s subsequent uni-
lateral promulgation of substantially modified, stricter rules con-
cerning lateness and absenteeism.); NLRB v. Miller Brewing Co.,
408 F.2d 12, 15 (9th Cir. 1969) (a right previously waived is not
necessarily lost forever).
Moreover, the Union’s agreement to withdraw, during the
2015 contract negotiations, its demand to have the attendance
policy incorporated into the CBA; and its agreement to delete the
last sentence of the management-rights clause in the prior con-
tract are likewise insufficient to prove that the parties’ bargaining
history shows that the union waived its right to bargain over the
new attendance policy. The attendance policy was a carry-over
from the prior contract bargained for between Almatis and the
Union. There is no evidence that at the time Respondent pur-
chased Almatis, the union “consciously yielded or clearly and
unmistakably waived its interest” in regard to bargaining about
the attendance policy. Further, there was undisputed testimony
that Respondent, although it refused to agree to the Union’s de-
mand to incorporate the attendance issue into the CBA and the
Union agreed to delete the last sentence of the management
rights clause, gave the union assurance that it foresaw no changes
to the policies in the employee policy book, which included the
attendance policy.
Based on the evidence, I find that the evidence is insufficient
to find that the Union explicitly waived its rights with the full
intent to release its interest in the matter. Accordingly, I find that
Respondent violated Section 8(a)(1) and (5) of the Act when it
unilaterally changed the attendance policy without first bargain-
ing over the changes with the Union.
B. Alleged Prohibition on Employees from
Discussing Grievances
The complaint alleges, in part, that on about May 31, Re-
spondent unlawfully prohibited employees from discussing
grievances with other employees. The General Counsel argues
that Smith’s mere utterances to Harmon are a violation of the Act
because it “directly prohibited Harmon from engaging in his Sec-
tion 7 rights.” (R. Br. 26.) Respondent counters that considered
in context, “any reasonable person would understand that Smith
15 GC Br. 24.
HUBER SPECIALTY HYDRATES, LLC 13
was not prohibiting Harmon from filing grievances. He was pro-
hibiting him from doing anything that would distract from the
job to which he was assigned.” (R. Br. 27.)
I find that, considering the totality of the circumstances, Smith
was not precluding Harmon from exercising his Section 7 rights.
It is undisputed that Harmon was upset and irritated about being
assigned to bag on the jet mill for 1 day on May 31. The evidence
established that Harmon spent a good part of his morning com-
plaining about his temporary job assignment. He groused about
his reassignment to several employees and encouraged a couple
of baggers to file grievances over the issue. Harmon first com-
plained about bagging to a bagger, Lane, while he was on his
morning break at 9 a.m. in the 435 break room. He also told
Lane that he had reviewed the overtime list and felt the highest
bagger on the list should file a grievance over being denied that
opportunity to work overtime. As Harmon headed back to the
jet mill from his break, he made a detour and went to control
room 450 to get a drink. While in the control room, he relayed
to Garner and Jackson his displeasure about being assigned to
bagging. During Smith’s lunchbreak, Harmon also called him to
state that he was unhappy with his assignment on the bagging
station and should be performing operator duties or training. He
told Smith that he felt that by being assigned to bag, he was tak-
ing an overtime opportunity from a bagger. After short ex-
change, Smith told him to go back to bagging; and he would talk
with Harmon again when Smith returned from lunch.
After he returned from lunch, Smith sought out Harmon to
continue their discussion about Harmon’s disgruntlement with
being assigned to bag. Shortly before speaking with Harmon
again, Smith received a telephone call from Craig who informed
him that people were telling him that Harmon called them in an
attempt to get them to “file a grievance on missing overtime.”
(Tr. 245.) Smith told him that he was going to speak with Har-
mon about the situation. When Smith encountered him, Harmon
repeated his gripe about being assigned to bagging and that he
was “stealing” overtime from other baggers. Smith again told
Harmon that because he continued to get an operator’s pay and
was qualified to run the machine, it was unnecessary to call
someone from the overtime list to bag. Harmon responded that
he disagreed, at which point Smith told him, “Hey, Brandon, you
know, I need you on the spout, putting the bag on the spout. I
don’t need you on your phone calling me and other people trying
to get them to file grievances and stuff.” (Tr. 244.) The conver-
sation ended with Smith telling Harmon, “I need [you] to [put]
bags on the spout.” (Tr. 244.) Towards the end of Harmon’s
shift, he made two telephone calls to baggers encouraging them
to file a grievance over being denied the opportunity to work
overtime; and a call to another bagger the following day encour-
aging him to file a grievance.
The General Counsel would have one believe that the mere
utterance of the sentences is a violation of the Act. However, the
context within which the words were spoken is relevant and sig-
nificant. Prior to his conversation with Smith, Harmon had made
it clear to other employees that he was upset and irritated at being
assigned to the jet mill. Smith, prior to telling him to stay off the
phone and focus on emptying the jet mill, was also aware of Har-
mon’s complaints about being reassigned to the bagging station
in the jet mill. Harmon also spent time performing other
activities when he should have been putting the bag on the spout
to ensure the product bin was emptied by the end of his shift. He
spent at least 45 minutes away from his assigned duties shutting
down the spray dryer, although not specifically instructed to per-
form the task; he took an extra morning break getting a drink and
obviously loitering in the break room long enough to be present
when Skinner came in to make general remarks about shutting
down the spray dryer; and took worktime to call Smith to com-
plain about his assignment, and call a couple of employees to
encourage them to file grievances because instead of calling
them for overtime Respondent assigned him to perform bagging.
It is against this backdrop that Smith told Harmon to focus on
completing his job instead of wasting time urging people to file
grievances because he was upset about having to work the bag-
ging station. Any reasonable person, including Harmon, would
recognize that Smith was simply pointing to a “factual reference
to what Harmon was doing in place of his job.” He was not try-
ing to restrain or preclude him from filing a grievance but rather
attempting to get Harmon to focus on performing his assigned
tasks. Moreover, the evidence is clear that Harmon was not and
did not feel constrained in the exercise of his Section 7 rights as
a result of Harmon’s utterances. The evidence shows that after
Smith told him to focus on his work instead of trying to encour-
age baggers to file grievance, Harmon continued to telephone
baggers and solicit them to file grievance. He continued to ex-
ercise his Section 7 right the next day when he called Kirtley and
told him that he should file a grievance because Respondent re-
fused to give him the opportunity to work overtime on May 31.
These are the actions of an employee who felt uninhibited by
management in his quest to exercise his Section 7 rights. I find
that there is absolutely no evidence that Smith was explicitly or
implicitly trying to preclude Harmon from filing or discussing
grievances during his breaks or at other non-work periods. See
United States Postal Service, 350 NLRB 441, 441–442 (2007)
(no right to discuss, solicit, and file grievances during worktime).
Viewed through the lens of reason and the law, I find that nei-
ther Harmon, nor any reasonable person would perceive Smith’s
statements as restraining or prohibiting them from exercising
their Section 7 rights. Consequently, I find that Respondent did
not violate the Act, and recommend that paragraphs 5 and 6 of
the complaint be dismissed
C. Harmon Disciplined on June 1
The General Counsel argues that Harmon engaged in pro-
tected concerted activity when (1) on May 31, Harmon com-
plained about his work assignment to Lane and told him over-
time should have been offered to a bagger instead of assigning
the work to him; and (2) on June 1, Harmon told Kirtley that he
should file a grievance because but for Respondent assigning
him to bagging, Kirtley probably would have been entitled to
overtime. Consequently, the General Counsel contends that Re-
spondent’s discipline of Harmon constituted a violation of the
Act.
Respondent insists that Harmon was disciplined for legitimate
reasons. Moreover, Respondent argues: (1) Harmon’s actions
were not protected activity; (2) evening assuming that Harmon’s
actions were protected, there is no evidence of animus; and (3)
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other employees have also been disciplined for poor perfor-
mance.
The Board applies the Wright Line16 analysis to 8(a)(1) dis-
crimination cases and 8(a) (1) concerted activity cases that in-
volve disputes about an employer’s motivation for taking an ad-
verse employment action against employees. Sabo, Inc. d/b/a
Hoodview Vending Co., 362 NLRB 690 (2015); Saigon Gourmet
Restaurant, Inc., 353 NLRB 1063, 1065 (2009). The burden is
on the General Counsel to initially establish that a substantial or
motivating factor in the employer’s decision to take adverse em-
ployment action against an employee was the employee’s union
or other protected activity. Under the Wright Line framework,
as developed by the Board, the elements required for the General
Counsel to show that protected activity was a motivating factor
in an employer’s adverse action are union or protected activity,
employer’s knowledge of that activity, and union animus on the
part of the employer. Adams & Associates, Inc., 363 NLRB No.
193, slip op. at 6 (2016); Libertyville Toyota, 360 NLRB 1298,
1301 (2014); enfd. 801 F.3d 767 (7th Cir. 2015). Once the Gen-
eral Counsel has met its initial showing that the protected con-
duct was a motivating or substantial reason in employer’s deci-
sion to take the adverse action, the employer has the burden of
production by presenting evidence the action would have oc-
curred even absent the protected concerted activity. The General
Counsel may offer proof that the employer’s articulated reason
is false or pretextual. Ultimately, the General Counsel retains
the ultimate burden of proving discrimination. Wright Line, id.
However, where “the evidence establishes that the reasons given
for the Respondent’s action are pretextual—that is, either false
or not in fact relied upon—the Respondent fails by definition to
show that it would have taken the same action for those reasons,
absent the protected conduct, and thus there is no need to perform
the second part of the Wright Line analysis.” Golden State Foods
Corp., 340 NLRB 382, 385 (2003) (citing Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982)).
Under the Wright Line framework, in order to sustain its initial
burden of proof, the General Counsel must first prove that Har-
mon engaged in a concerted protected activity which was a mo-
tivating factor in Respondent’s decision to issue the written
warning. The General Counsel argues that Harmon’s discus-
sions on May 31 and June 1 were protected concerted activity
because the discussions were an assertion of rights grounded in
the CBA and involved a quintessential union activity, filing a
grievance. Respondent counters that “soliciting other employees
during working time to file grievances is not protected activity.”
(R. Br. 28.)
Based on the evidence, I find that Harmon’s discussions con-
stitute concerted protected activity. The Board has consistently
held that individual action taken to implement a CBA is pro-
tected concerted activity. See, e.g., Bunney Bros. Construction
Co., 139 NLRB 1516, 1519 (1962) (an employee’s attempts to
enforce an existing CBA is “but an extension of the concerted
activity giving rise to that agreement” and thus is protected con-
certed activity); NLRB v. City Disposal Systems, Inc., 465 U.S.

16 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert denied 455 U.S. 989 (1982).
822, 840 (1984) (employee’s genuine and reasonable belief
about a collectively bargained for right is protected concerted ac-
tivity regardless of whether the belief was accurate); Omni Com-
mercial Lighting, Inc., 364 NLRB No. 54 (2016) (individual em-
ployee who invokes a right she genuinely and reasonably be-
lieves is grounded in the collective-bargaining agreement en-
gages in protected concerted activity). Likewise, it has been well
established that discussions among employees about grievances
is a protected activity. Moreover, Respondent admits that Har-
mon’s discussions about filing grievances occurred only “par-
tially” during his working time; and adds “it is not necessary to
determine precisely when his grievance solicitation activities oc-
curred” because Respondent had a legitimate reason for disci-
plining Harmon. (R. Br. 28.)
Second, it is undisputed that prior to issuing him the written
warning, Smith, Craig and Parker, were aware of Harmon’s at-
tempts to persuade other employees to file a grievance because
Respondent refused to call overtime. Lastly, I turn to the ques-
tion of whether the General Counsel has shown that there was
union animus on the part of Respondent.
The General Counsel argues that there are several factors
which establish union animus: (1) Craig’s admission that his
conversation with Smith about Harmon’s protected conduct in-
fluenced his decision to discipline Harmon; and (2) the close tim-
ing of Harmon’s protected conduct to his discipline. The Gen-
eral Counsel also contends that Respondent conducted a perfunc-
tory investigation into Harmon’s action which is evidence of dis-
criminatory animus. Respondent disagrees and insists that noth-
ing in Smith’s, Craig’s, Travas’ or Rowan’s history of interact-
ing with employees’ who had threatened grievance actions
would support a finding of union animus. According to Re-
spondent, Smith’s sole concern was Harmon’s willful refusal to
focus on his assigned task, i.e., he needed to have “a bag on a
spout.” Moreover, Respondent denies that the timing of the dis-
cipline is indicative of animus toward any protected activity; and
insists its investigation into Harmon’s actions was deliberative
and thorough.
I find the General Counsel’s arguments unpersuasive. Coun-
sel for the General Counsel cites to the transcript to support her
argument that Craig admitted that his conversation with Smith
about Harmon’s protected activity influenced his decision to dis-
cipline Harmon. (GC Br. 29; Tr. 249.) However, a reading of
the testimony on the page cited by counsel for the General Coun-
sel does not support her version. On cross-examination, Craig
simply confirms that (1) he contributed in the decision to disci-
pline Harmon; (2) he made his decision after discussing with
Travas and Craig on “what had happened the day before”; and
(3) he told Travas and Craig about the conversation he had with
Harmon on May 31. (Tr. 249.) It is not clear that Craig was ad-
mitting he decided to discipline Harmon because he tried to en-
courage other employees to file grievances. His testimony was
vague on exactly what he was referring to when testifying “what
had happened the day before.” It is just as likely that he could
have been referring to the fact that he made his decision about
disciplining Harmon after discussing with Travas and Craig that
HUBER SPECIALTY HYDRATES, LLC 15
“the day before” Harmon repeatedly tried to avoid performing
his assigned task.
I also reject the General Counsel’s argument that the timing
of Harmon’s discipline is evidence of discriminatory animus.
Counsel for the General Counsel notes, “Harmon discussed fil-
ing grievances with bagger Kirtley around 9 am on June 1, 2016.
Within hours, Respondent issued a written warning to Harmon.”
(GC Br. 29.) I find, however, that this statement leaves out other
relevant facts which support a finding that Respondent’s inves-
tigation and subsequent discipline were taken without discrimi-
natory animus. During the daily 6:30 a.m. manager’s meeting
on June 1, Craig was asked by his manager about the status of
the work performed on May 31. He could not give a complete
and accurate response because Harmon had failed to complete
and submit his daily productivity report. Consequently, Craig
took action to determine the prior day’s productions by: (1) get-
ting Harmon to complete his productivity report for May 31: (2)
counting the pallets that had been completed the previous day;
(3) speaking with the night shift employee about problems he
might have experienced bagging on May 31; and (4) asking em-
ployees who worked the jet mill on May 29 and 30 if they had
experienced a problem with the machine being slow. Based on
the results of his investigation, Craig spoke with Travas and
Smith about Harmon’s May 31 performance and decided to issue
the discipline. They then consulted with the human resources
manager to ensure it was properly issued. Harmon was disci-
plined quickly because it did not take long for an investigation
to reveal that because of his disgruntlement at having to bag,
Harmon intentionally failed to perform his job assignment as di-
rected.
Likewise, I find unpersuasive the General Counsel’s argument
that Respondent conducted a perfunctory investigation into Har-
mon’s performance of May 31. According to the General Coun-
sel, Craig’s failure to monitor the jet mill area or monitor Har-
mon’s performance for the rest of the day; and failure to compare
Harmon’s production level to the productivity reports proves that
there was not a meaningful investigation into Harmon’s perfor-
mance on May 31. Craig’s supposed failure to monitor the jet
mill area and Harmon’s performance on May 31 is irrelevant to
whether Respondent performed a thorough investigation to sup-
port its issuance of written discipline to Harmon. Regarding the
thoroughness of the investigation, Craig provided undisputed
testimony that during the manager’s morning meeting, they dis-
cussed the work that was completed the previous day and night.
The General Counsel’s argument notwithstanding, it is shown
that at minimal, Craig reviewed the productivity reports for May
31 so that in the manager meetings he could account for the work
that had been completed and the reasons why certain tasks may
not have been completed. Craig also personally counted the
completed work product from the prior evening; and spoke with
other workers assigned to the jet mill to assess if there had been
ongoing issues with the machine’s operation. Based on the evi-
dence, I find that Craig took reasonable steps to determine
whether Harmon had sufficient time and resources to perform his
job or simply failed to complete his work because he was wasting
time.
The General Counsel also argues that because other employ-
ees have participated in the same conduct as Harmon without
punishment this significantly underscores Respondent’s discrim-
inatory motive. Pointing to employees Glen Alan Bailey (Bai-
ley) and Mike Halpain (Halpain), the General Counsel contends
that this is an example of Harmon being treated more harshly
than similarly situated employees. However, Bailey is not simi-
larly situated to Harmon because Craig was not involved in the
events surrounding the decision to discipline Bailey. Craig only
signed the discipline because the supervisor involved in initiat-
ing and authorizing the action was unavailable. Likewise, Craig
did not issue Halpain discipline and there is no evidence that
Craig was involved in the decision to discipline him. (GC Exh.
24.) There are several instances when employees failed to com-
plete assignments as instructed but, unlike Harmon, were only
issued verbal warnings. David Duke (Duke) was given a verbal
warning for failing to complete an assigned task over 2 consec-
utive days. Randall Lambert (Lambert) and Pam Lunsford
(Lunsford) were issued verbal warnings for consistently failing
to complete the bottom operator reporting duties. Similar to Har-
mon, Lane and Kirtley were given a verbal and written warning,
respectively, for failing to empty the jet mill as assigned. Garner
and Jackson were issued a coaching because they did not start
the feed pump as directed. I find, however, that each of these
instances differs in key respects. Duke’s task did not involve
Craig or the completion of a task which directly affected the de-
livery of a product to a customer. Likewise, Lambert’s and
Lunsford’s infractions, failing to complete a report, did not rise
to the level of severity as Harmon’s failure to complete a pro-
duction task; and the decision to issue the disciplines was made
by Ronnie Tanner (Tanner). Kirtley, like Harmon, was issued a
written warning for failing to empty the jet mill. Lane, however,
received a verbal warning for the same offense. Neither Kirtley
nor Lane was disciplined by Craig for the infractions. Rather
Alex Huell (Huell) was the supervisor responsible for taking dis-
ciplinary action against them. Unlike Harmon, Garner’s infrac-
tion was the result of him mistakenly using the wrong filter cloth
on one of the machines. There was no evidence that Garner took
the action with malicious intent. Rather it was a genuine mistake
to which he admitted and took full responsibility. The circum-
stances surrounding Harmon’s action, however, strongly indi-
cate that he deliberately chose to ignore the instructions that he
was given because he did not want to work on the jet mill.
Accordingly, I find that the General Counsel has failed to es-
tablish its prima facie case; and Respondent’s issuance of the
written warning to Harmon does not violate Section 8(a)(1) and
(3) of the Act. I recommend, therefore, that paragraph 6 of the
complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent, Huber Specialty Hydrates, LLC, Bauxite, Ar-
kansas, is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The United Steel Workers, Local 4880 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (5) of the Act
by failing and refusing to bargain collectively with the Union re-
garding changes to the attendance policy.
4. The above violation is an unfair labor practice that affects
commerce within the meaning of Section 2(6) and (7) of the Act.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. Respondent has not violated the Act except as set forth
above.
REMEDY
Having found that Respondent has engaged an unfair labor
practice, I shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of
the Act.
Respondent, having discriminatorily made changes to the at-
tendance policy must rescind any and all unilateral changes to
the attendance policy, and rescind any discipline issued in ac-
cordance with the policy change. Respondent must also bargain
on request with the Union about the attendance policy. If em-
ployees have been disciplined as a result of the changed attend-
ance policy, Respondent must make them whole for any loss of
earnings and other benefits they suffered as a result of the dis-
crimination against them from the date of the discrimination to
the date remedy is effectuated. Reimbursement of lost earnings
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as provided in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). Respond-
ent shall file a report with the Social Security Administration al-
locating backpay, if applicable, to the appropriate calendar quar-
ters. Respondent shall also compensate the employees for the
adverse tax consequences, if any, of receiving one or more lump-
sum backpay awards covering periods longer than 1 year, Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
Respondent, Huber Specialty Hydrates, LLC, Bauxite, Arkan-
sas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) modifying an existing collective-bargaining agreement
without allowing the United Steel Workers, Local 4880 an op-
portunity to bargain over changes to the attendance policy.
(b) refusing to bargain in good faith with the Union over
changes to the attendance policy.
2. Take the following affirmative action necessary to effectu-
ate the purposes and policies of the Act.
(a) Within 14 days from the date of the Board’s Order, rescind
any and all changes to the attendance policy; and rescind any
discipline issued in accordance with the policy change. Within 3
days thereafter, notify the employees in writing that this has been
completed.
(b) Within 14 days from the date of the Board’s Order, bar-
gain in good faith with the Union over changes to the attendance
policy.
(c) Make the employees whole for any loss of earnings and
other benefits they suffered as a result of the discrimination

17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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 purposes.
against them, in the manner set forth in the remedy section of the
decision.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Bauxite, Arkansas, copies of the attached notice
marked “Appendix.”18 Copies of the notice, on forms provided
by the Regional Director for Region 15, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employees and
members are customarily posted. In addition to physical posting
of paper notices, the 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 communi-
cates with its employees by such means. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not al-
tered, 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 Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since De-
cember 17, 2015.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated: Washington, D.C., January 29, 2018
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 alter terms of the collective-bargaining agree-
ment that we have with the Union without consent of or without
bargaining with the Union.
WE WILL NOT unilaterally change employees’ terms and con-
ditions of employment, including attendance policies, without
notice to and without bargaining with the Union.
18 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 National
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.”
HUBER SPECIALTY HYDRATES, LLC 17
WE WILL NOT in any like or related manner refuse to bargain
collectively and in good faith with the United Steel Workers, Lo-
cal 4880.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed to
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
rescind any and all changes to your terms and conditions of em-
ployment that we made without the consent of or bargaining with
the United Steel Workers, Local 4880.
WE WILL, make whole, with interest, any employee for loss of
earnings and other benefits suffered as a result of the discrimina-
tion against them.
WE WILL, upon request, bargain collectively and in good faith
with the United Steel Workers, Local 4880.
HUBER SPECIALTY HYDRATES, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/15-CA-168733 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.