Alamo Cement Co.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 737 (N.L.R.B. 1986)

ALAMO CEMENT CO.
Alamo Cement Company and United Cement, Lime,
Gypsum and Allied Workers International
Union and its Local 560, AFL-CIO-CLC.
Cases 23-CA-9937 and 23-CA-10023
30 September 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
Upon a charge filed by the Union 21 January
1985 and 23 April 1985 the General Counsel of the
National Labor Relations Board issued complaints
5 March 1985 and 13 May 1985 against the Compa-
ny, the Respondent, alleging that it has violated
Section 8 (a)(5) and (1 ) of the National Labor Rela-
tions Act by unilaterally implementing a wage in-
crease and by refusing to bargain about an increase
in the uniform rental fee and Estevan Sanchez' dis-
charge.
On 23 September 1985 all parties filed a stipula-
tion of facts and a motion to transfer the proceed-
ing to the Board for decision without a hearing
before an administrative law judge or issuance of a
judge 's decision . On 14 February 1986 the Board
approved the stipulation and granted the motion.
The General Counsel and the Respondent filed
briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
After consideration of the stipulation, the briefs,
and the entire record in this case, the Board makes
the following findings.
1. JURISDICTION
The Respondent is a Texas corporation with its
principal office and place of business in San Anto-
nio, Texas , where it is engaged in processing and
manufacturing cement . During the past calendar
year, a representative period , the Respondent pur-
chased and received products , goods, and materials
valued in excess of $50,000 directly from sources
outside the State of Texas . We find that the Re-
spondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The United Cement, Lime, Gypsum and Allied
Workers International Union and its Local 560,
AFL-CIO-CLC is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
737
A. Issue
The issue presented is whether the Respondent
violated Section 8(a)(5) and (1) of the Act by uni-
laterally implementing a wage increase and by re-
fusing to bargain about an increase in the uniform
rental fee and the discharge of Estevan Sanchez.
B. Facts
On 8 September 1978 the Board certified the
Union as the exclusive collective-bargaining repre-
sentative of the Respondent 's employees in the fol-
lowing unit:
All production and maintenance employees, in-
cluding all employees in the Quarry Depart-
ment , Shipping Department, Kiln Department,
Finishing Mill Department , Slurry Mill De-
partment, Powerhouse Department , Electrical
Department, Laboratory Department and
Oiler Subsection, as well as plant clerical em-
ployees, leadmen, truckdrivers and mechanics,
excluding all other employees , office clericals,
order clerks, guards , watchmen and supervi-
sors as defined in the Act, employed at its San
Antonio, Texas plant.
On 5 March 1979 the Board found that the Re-
spondent had unlawfully refused to recognize and
bargain with the Union since 25 September 1978.1
The Fifth Circuit Court of Appeals enforced the
Board's decision 15 February 1980.2 Thereafter,
the Respondent continued to refuse to recognize
and bargain with the Union. In four decisions dated
12 November 19853 and one decision dated 9 De-
cember 1985,4 the Board found that the Respond-
ent's continued refusal to recognize and bargain
with the Union was unlawful and again ordered it
to bargain.
About 19 December 1984 the Respondent an-
nounced, and on 1 January 1985 implemented, a
wage increase for the employees in the unit.
About 23 December 1984 the Respondent posted
a memorandum received from Guess Uniform &
Towel Supply Co., a Division of Guess Services,
Inc., which announced that the fee charged by
Guess for uniform rental service would increase by
25 cents. The Respondent does not require all of its
97 bargaining unit employees to wear uniforms on
the job. The Respondent pays the entire uniform
fee, including any increases , for the employees that
' San Antonio Portland Cement, 240 NLRB 1168 (1979).
' NLRB v. San Antonio Portland Cement, 611 F.2d 1148 (5th Cit. 1980),
cert. denied 449 U.S. 844 (1980).
8 277 NLRB 309, 320, 333, 338.
4 277 NLRB 1031.
281 NLRB No. 110
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent requires to wear uniforms. Only
the 35 employees who elect to wear uniforms even
though not required to do so by the Respondent
must pay the uniform fee . About 23 February 1985
the 25-cent increase in uniform rental fee was im-
plemented by Guess Uniform & Towel Supply Co.
About 31 October 1984 the Respondent dis-
charged employee Estevan Sanchez . By corre-
spondence dated about 30 November and 17 De-
cember 1984 and 2 January 1985 the Union re-
quested that the Respondent contact it in order to
arrange suitable times and dates for discussing and
negotiating about Sanchez ' termination and the an-
nouncement and implementation of the alleged uni-
lateral changes . The Respondent did not acknowl-
edge or reply to the Union' s requests and has not
contacted the Union or had any discussion with it
concerning these matters.
C. Contentions of the Parties
The General Counsel contends that wages, dis-
charges , and uniform rental fees are mandatory
subjects of bargaining ; that the Respondent at all
times material had a continuing obligation to bar-
gain with the Union; that the Respondent did not
afford the Union a reasonable opportunity to bar-
gain concerning these subjects; and that by such
conduct the Respondent violated Section 8(a)(5)
and (1) of the Act. The Respondent denies that it
has an obligation to bargain or that it has violated
the Act. Concerning the increase in the uniform
rental fee , the Respondent contends there is no evi-
dence that the Respondent has control over or sub-
sidizes those fees or contracts with Guess Uniform
& Towel Supply Co. to supply uniforms to its em-
ployees who are not required to wear uniforms.
D. Discussion of Law and Conclusions
It is well settled that an employer violates Sec-
tion 8(a)(5) and (1 ) of the Act by unilaterally
changing terms and conditions of employment
without first providing the collective-bargaining
representative of its employees with a meaningful
opportunity to bargain about the changes . 5 Since
the Union has been properly certified since 8 Sep-
tember 1978, the Respondent was under a duty to
bargain with the Union at all material times. We
find that the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally granting a wage
increase and refusing to bargain about the dis-
charge of Estevan Sanchez.
We find that the Respondent did not violate Sec-
tion 8(a)(5) and (1 ) of the Act regarding the in-
creased uniform rental fee . For the purpose of our
5 NLRB v. Katz, 369 U .S. 736, 741-743, 747 ( 1962).
analysis, we shall assume arguendo that the matter
is a mandatory subject of bargaining. However, in
order for a statutory bargaining obligation to arise
with respect to a particular change unilaterally im-
plemented by an employer , such change must be a
"material, substantial , and a significant" one affect-
ing the terms and conditions of employment of bar-
gaining unit employees .6 On the basis of the limited
facts presented , we find that the increase in the uni-
form rental fee did not constitute a material, sub-
stantial, and significant change in the terms and
conditions of employment of bargaining unit em-
ployees. We conclude, therefore, that it did not
give rise to any bargaining obligation.?
CONCLUSIONS OF LAW
1. The Respondent, Alamo Cement Company, is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. United Cement, Lime, Gypsum and Allied
Workers International Union and its Local 560,
AFL-CIO-CLC is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees at
the Company's San Antonio , Texas plant, including
all employees in the Quarry Department, Shipping
Department, Kiln Department, Finishing Mill De-
partment, Slurry Mill Department , Powerhouse
Department, Plant Office Department, Mainte-
nance and Repair Department, Electrical Depart-
ment, Laboratory Department and Oiler Subsec-
tion , as well as plant clerical employees , leadmen,
truckdrivers and mechanics , but excluding all other
employees , office clericals , order clerks , guards,
watchmen, and supervisors as defined in the Act
constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section
9(a) of the Act.
4. The Union is now , and at all times material
has been , the unit employees' exclusive collective-
bargaining representative within the meaning of
Section 9(a) of the Act.
5. By refusing to bargain with the Union regard-
ing the discharge of employee Estevan Sanchez,
6 United Technologies Corp., 278 NLRB 306 (1986); Weather Tec Corp.,
238 NLRB 1535, 1536 (1978); Peerless Food Products, 236 NLRB 161
(1978).
7 Member Johansen has no quarrel with the analysis and reasoning set
forth by Member Stephens in his partial dissent . However, contrary to
Member Stephens, Member Johansen cannot find that the complaint puts
in issue the matter of whether the Respondent violated Sec . 8(aX5) and
(1) by an overall refusal to bargain with the Union about "uniforms."
Rather, in Member Johansen's view , the complaint, with respect to the
uniform rental fees , alleges only that the Respondent's actions regarding
the 25-cent increase in rental fees violated the Act.
Chairman Dotson agrees that the complaint allegations limit the issue
in this case to the Respondent's actions regarding the 25 -cent increase in
uniform rental fees . He therefore does not reach the so-called "second
issue" the dissent addresses.
ALAMO CEMENT CO. 739
the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
6. By unilaterally announcing and implementing
a wage increase, the Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1 ) of the Act.
7. The unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
8. The Respondent has not violated the Act by
refusing to bargain about a 25 -cent increase in the
uniform rental fee.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices, we shall order it to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the
Act. We shall order the Respondent , in addition to
bargaining with the Union over Sanchez' dis-
charge, to pay Sanchez at the rate he received
when last in the Respondent 's employ from 5 days
after the date of this Decision and Order until the
occurrence of the earliest of the following condi-
tions : (1) the date the Respondent bargains to
agreement with the Union concerning Sanchez dis-
charge; (2) a bona fide impasse in bargaining; (3)
the failure of the Union to request bargaining
within 5 days of this Decision and Order, or to
commence negotiations within 5 days of the Re-
spondent's notice of its desire to bargain with the
Union; or (4) the subsequent failure of the Union to
bargain in good faith; provided, however, that in
no event shall this sum be less than Sanchez would
have earned for a 2-week period at his normal
wage rate when last employed by the Respondent.
See San Antonio Portland Cement, 277 NLRB 338
(1985).
ORDER
The National Labor Relations Board orders that
the Respondent, Alamo Cement Company, San
Antonio, Texas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain about the discharge of
Estevan Sanchez.
(b) Unilaterally and without bargaining with the
Union granting a wage increase , provided that
nothing herein shall require the Respondent to re-
scind any wage increase that it has previously
granted.
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request , bargain collectively in good faith
with the Union as the employees ' exclusive collec-
tive-bargaining representative concerning the dis-
charge of Estevan Sanchez and wage increases or
any other term and condition of employment.
(b) Pay Estevan Sanchez his normal wages for
the period set forth in the section of this Decision
and Order entitled "The Remedy."
(c) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records , social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its San Antonio , Texas place of busi-
ness, copies of the attached notice marked "Appen-
dix."8 Copies of the notice, on forms provided by
the Regional Director for Region 23, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
The complaint is dismissed in all other respects.
MEMBER STEPHENS , dissenting in part.
With respect to the uniform rental fee issue,
there are actually two issues presented to us on this
sparse stipulated record as I read it in light of the
pleadings and the parties ' arguments . One is wheth-
er the Respondent violated Section 8(a)(5) and (1)
of the Act when, without prior notice and bargain-
ing with the Union, it announced a 25-cent increase
in rental fees charged by a third-party supplier for
uniforms furnished to certain of the Respondent's
employees who opted to wear uniforms on the job
but were not required to do so. (This is the same
supplier that furnishes uniforms to employees who
are required by the Respondent to wear uniforms
and for whom the Respondent bears the rental ex-
8 this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pense.) The second issue is whether the Respond-
ent violated Section 8 (a)(5) and ( 1) when it refused
to respond at all to a written request from the
Union to bargain about the "uniforms ." For the
reasons explained below, I would fmd that no vio-
lation is made out here under the "unilateral
change" theory, but that the record does show a
violation in the Respondent 's flat refusal to bargain
after the announcement of the fee increase prompt-
ed a request by the Union to bargain about the uni-
form rental fees.
The Respondent' s general defense to both of
these allegations is simply that the subject of uni-
form fee rentals is not within its 8 (a)(5) bargaining
obligation-i.e., not a mandatory subject of bar-
gaining-because the wearing of the uniforms was
voluntary on the employees' part and because the
third-party supplier was the one who set the prices.
I agree that the fact that the price increase was
made by the third-party supplier and that the Re-
spondent merely announced it to the employees is
an adequate basis for concluding that the Respond-
ent itself made no unilateral "change," at least
where there is no history of collective bargaining
on the subject.' Thus, in Ford Motor Co. v. NLRB,
441 U.S. 488 (1979), in which the Supreme Court
upheld the Board 's conclusion that in-plant cafete-
ria and vending machine prices set by a third-party
contractor were a mandatory subject of bargaining,
the employer was deemed to have violated the Act
not by unilaterally changing the food prices but
rather by refusing to bargain about the prices when
the union requested bargaining . By the same token,
the remedy was not to require the employer to re-
store the original prices but rather to bargain about
the subject on request by the Union. Ford Motor
Co., 230 NLRB 716, 719 (1977).
But the holding in Ford refutes the Respondent's
contention that the uniform rental fees are not a
mandatory subject of bargaining simply because
they are supplied by a third party and because the
employees in question are not required to wear uni-
forms . In Ford the cafeteria and vending machine
operations were run by a third-party contractor,
and the employees, who were free to bring their
lunches from home, were not required to purchase
food from those operations . As the Court pointed
out, however, the food prices were still of legiti-
mate interest to the employees and were clearly
connected to their working conditions , and the em-
ployer could potentially affect their impact on the
employees either through its negotiations with the
contractor over the terms under which the oper-
' Had the parties previously bargained over arrangements for the
rental of optional uniforms, the Respondent might well have had a duty
at least to give advance notice of the supplier 's impending increase.
ations would be run or through subsidizing the
prices itself, or both. 441 U. S. at 498 , 503. Such a
subsidy would be simply a form of benefits that
might properly be regarded as part of the econom-
ic package constituting the employees' remunera-
tion . I see no reason the foregoing principles would
not apply here. Clothing worn on the job in a
cement plant is related to working conditions, re-
gardless whether only a portion of the work force
is required to wear uniforms , and the parties could
plainly bargain over subsidies for the rental fees
paid by the employees who opt to wear the uni-
forms.2
With respect to the point on which my col-
leagues rest their conclusion that no violation is
made out-the lack of proof that the rental fee in-
crease constituted a "material , substantial , and sig-
nificant" change-I note initially that this argument
has not been made by the Respondent in its brief
filed with the Board. More significantly, the Re-
spondent did not cite this point as the basis for de-
nying the Union's written request for negotiations
over "uniforms ." Rather, it is apparent on the basis
of the record and the Respondent's submission to
us that the Respondent is engaging in a blanket re-
fusal to discuss any aspect of the rental of uniforms
to employees who are not required to wear them.3
It simply takes the position that this is not a man-
datory subject of bargaining . Even accepting that
the Union's request for bargaining was prompted
by the announced fee increase and that that in-
crease may or may not be de minimis , the Re-
spondent's blanket, categorical refusal to negotiate
constitutes, in my view, a violation of Section
8(a)(5) and (1) of the Act. See Oil Workers Local 6-
418 v. NLRB, 711 F.2d 348, 362, 363 (D.C. Cir.
1983). Accordingly, I would fmd a violation and
issue an order requiring the Respondent to cease
and desist from refusing to bargain on the subject
of uniform rental fees for its employees.
2 The Respondent's claim in its brief that there is no evidence that the
Respondent has any contractual arrangement with the uniform supplier is
belied by the stipulation that it pays this supplier the fees for the uniforms
worn by employees required by the Respondent to wear them and by the
documentary evidence that the supplier sent its announcement of the
rental increase directly to one of the Respondent 's officials. It was
through the Respondent's posting of this announcement that the employ-
ees learned of the rental fee increase.
S Member Johansen is correct in his observation that the complaint,
with respect to the uniform rental fees, alleges only that the Respondent's
actions regarding the 25-cent increase in rental fees violated the Act.
Given the documentary evidence and the arguments made to the Board
by the parties, however , the issue actually litigated was whether the Re-
spondent had an obligation to bargain on the subject of the uniform
rental fees at all . Thus, the Respondent 's defense is not the argument
made by my colleagues but rather the claim that "[b]ecause the wearing
of uniforms by employees who are not required to do so is not a term or
condition of employment, there is no obligation to bargain with respect
to same [citation omitted]."
ALAMO CEMENT CO. 741
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain collectively with
the Union, United Cement, Lime, Gypsum and
Allied Workers International Union and its Local
560, AFL-CIO-CLC as the representative of the
employees in the bargaining unit , by unilaterally
implementing a wage increase.
All production and maintenance employees, in-
ment, Shipping Department, Kiln Department,
Finishing Mill Department, Slurry Mill De-
partment, Powerhouse Department, Plant
Office Department, Maintenance and Repair
Department , Electrical Department, Laborato-
ry Department, and Oiler Subsection, as well
as plant clericals, leadmen, truckdrivers, and
mechanics , excluding all other employees,
office clericals , order clerks, guards , watch-
men, and supervisors as defined in the Act em-
ployed at our San Antonio, Texas, plant.
WE WILL NOT refuse to bargain about the dis-
charge of Estevan Sanchez or any other bargaining
unit employee.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
concerning the discharge of Estevan Sanchez and
any wage increase or other change in the employ-
ees' terms and conditions of employment.
WE WILL pay Estevan Sanchez his normal
wages as required by a Decision and Order of the
National Labor Relations Board.
cluding all employees in the Quarry Depart- ALAMO CEMENT COMPANY