Riverside Cement Co.

National Labor Relations Board - Board Decisions

Dec 10, 1991

305 N.L.R.B. 815 (N.L.R.B. 1991)

815
305 NLRB No. 117
RIVERSIDE CEMENT CO.
1 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) by withdrawing recognition from the Union, we rely on the
fact that such withdrawal did not occur in a context free of substan-
tial unfair labor practices. More particularly, the withdrawal occurred
at a time when Respondent was refusing to meet and bargain with
the Union. We, therefore, find it unnecessary to pass on whether the
Respondent otherwise had a good-faith doubt of the Union’s major-
ity status.
1 All dates refer to the 1989 calendar year unless otherwise indi-
cated.
2 The Union filed an untimely posthearing brief opposed by Re-
spondent. The Union seeks to excuse the late filing on the ground
that it lacked access to a particular document—an employee petition
discussed below—until the petition was introduced as an exhibit at
the hearing. I find the Union’s claim is insufficient to explain the
late filing and, hence, the Union’s brief has not been considered.
3 The dollar volume of Respondent’s annual direct outflow exceeds
the Board’s nonretail standard established for exercising its statutory
jurisdiction. Accordingly, I find that it would effectuate the policies
of the Act for the Board to exercise its jurisdiction to resolve this
dispute.
Riverside Cement Company, a Gifford-Hill Cement
Company and Independent Workers of North
America, Local Union 192. Cases 31–CA–17659
and 31–CA–17924
December 10, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 28, 1991, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Riverside Cement Com-
pany, a Gifford-Hill Cement Company, Oro Grande,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Alice Joyce Garfield, Esq., for the General Counsel.
Roger G. Mebus, Esq. (Haynes & Boone), of Dallas, Texas,
for the Respondent, with Dean J. Schaner, Esq., of the
same firm on the brief.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Inde-
pendent Workers of North America (IWNA), Local Union
192 (the Union or Local 192), filed an unfair labor practice
charge against Riverside Cement Company, A Gifford-Hill
Cement Company (the Company or Respondent) in Case 31–
CA–17659 on April 28, 1989.1 The Union filed Case 31–
CA–17924 against Respondent on October 16, 1989.
On December 1, 1989, the Regional Director for Region
31 of the National Labor Relations Board (NLRB or the
Board) consolidated the two cases and issued an amended
consolidated complaint (complaint). The complaint incor-
porated a notice of hearing before an administrative law
judge.
Respondent is alleged to have violated Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act). Section
8(a)(5) provides that an employer’s refusal to bargain in
good faith with a union selected to represent its employees
is an unfair labor practice; Section 8(a)(1)—alleged here de-
rivatively—provides that employer interference, restraint, or
coercion of employees exercising their rights under the Act
is an unfair labor practice.
The complaint charges that Respondent unlawfully: (1)
failed to timely provide employee cost information requested
by the Union; (2) refused to meet and bargain with the
Union after April 3 absent the presence of a Federal Medi-
ation and Conciliation Service (FMCS) mediator; (3) refused
to meet and negotiate concerning two employee grievances;
and (4) withdrew union recognition on June 13.
Respondent timely answered the complaint denying that it
engaged in the unfair labor practices alleged. Although Re-
spondent admitted that it withdrew recognition as alleged, it
affirmatively asserted that it did so based on objective con-
siderations which demonstrated that the Union no longer en-
joyed majority support.
I heard this matter on April 3, 1990, at Los Angeles, Cali-
fornia. After carefully considering the record, the demeanor
of the witnesses, and the timely posthearing briefs,2 I con-
clude that General Counsel has sustained all complaint alle-
gations with exception of the claim concerning bargaining in-
formation. This conclusion is based on the following
FINDINGS OF FACT
Alleged Unfair Labor Practices
A. The Evidence
1. Background
Respondent, a Delaware corporation, manufactures port-
land cement at its Oro Grande, California plant, the only fa-
cility involved here.3
Respondent’s production and maintenance employees se-
lected the Union as their representative in an NLRB election
on October 22, 1987; the official certification of representa-
tive issued on November 17, 1987. The Union succeeded the
International Brotherhood of Boilermakers (IBB) as the em-
ployees’ agent; the United Cement Lime, Gypsum and Allied
Workers (UCLGA) preceded the IBB in that role.
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Edwards is an experienced labor relations professional. Prior to
his 1986 employment with the Company, Edwards held responsible
labor relations positions with a large aerospace manufacturer for 15
years.
5 The RD petition was docketed as Case 31–RD–1140. Processing
of that petition is blocked by these cases.
6 Hammond claims Walter scheduled bargaining sessions with the
Company for January 19 and 20 well in advance of those dates but
advised him by telephone on January 18 that the Company would
not be available to meet until January 27. Nevertheless, as Walter
did not cancel the January 19 meeting, Hammond and the Local 192
committee met with Walter on that date. Edwards claims to have ad-
vised Walter that the company negotiators would not be available
until January 27 when first contacted by the mediator.
7 This letter followed a telephone conversation between Hammond
and Walter on February 23. The content of that conversation was not
elicited.
Negotiations commenced between Respondent’s represent-
atives and a Local 192 employee committee in February
1988. Dale Edwards, the Company’s regional personnel man-
ager since 1986, served as the Company’s chief spokesman.4
Steve Cox, the Local 192 president and a full-time company
employee, spoke for the Union.
By December 1988, the parties had held 19 bargaining
sessions. In June 1988, Respondent rejected a package pro-
posal presented by the Union and submitted a noneconomic
package of its own. For the next 6 months’ negotiations fo-
cused on Respondent’s proposals. Tentative agreements were
reached on a variety of subjects but several important sub-
jects remained unresolved, including wages, a grievance-arbi-
tration provision and the term of the agreement.
In early December 1988, employee Carl Wray filed a peti-
tion with the NLRB seeking a decertification (RD) election.5
It is fair to assume that this event was foremost among the
problems of the Local 192 committee which caused it to re-
quest assistance from its parent organization.
Shortly thereafter, Jack Hammond Jr., an IWNA service
representative in the area, began assisting the Local 192
committee and, in effect, assumed control of the negotiations
on behalf of the Union. Before his employment as an IWNA
agent, Hammond had been employed by both the IBB and
the UCLGA in the area. While employed by these prede-
cessor unions, Hammond negotiated and serviced agreements
involving the Company and its employees at Oro Grande.
2. The 1989 contract negotiations
After reviewing the progress of negotiations with the
Local 192 committee, Hammond was convinced that the
union negotiators had made too many concessions and that
negotiations were practically at a standstill. For these rea-
sons, Hammond asked area FMCS Commissioner Bert Wal-
ter to schedule a bargaining session and mediate at the nego-
tiations. For some reason not entirely clear nor important to
the outcome of these cases, Walter was unable to schedule
a joint bargaining session until January 27.6
The January 27 meeting was consumed primarily with re-
viewing the ground rules previously followed, the particular
proposals tentatively agreed upon, and the open questions.
Commissioner Walter requested that each side prepare pro-
posals on the remaining issues for submission to each other
at the next sessions which he planned to schedule.
According to Edwards, Commissioner Walter was made
aware that the RD petition was pending during a conversa-
tion at the January 27 meeting. Edwards could not recall that
the matter came up during the bargaining session so it is un-
clear whether Hammond was present when the subject arose.
At the conclusion of the January 27 bargaining session,
Hammond understood that Commissioner Walter would
schedule another meeting after the company negotiators re-
ported available meeting dates to the mediator on January 31.
No further bargaining sessions were ever held. However,
several pertinent written exchanges occurred between the
parties and FMCS representatives over the next 4 months in
a fruitless effort to schedule another meeting.
On February 6, Hammond sent a telegram to Edwards re-
porting that he had been informed the mediator planned to
step aside and schedule no further meetings until the decerti-
fication matter was resolved. In light of this development,
Hammond proposed that the Company and the union nego-
tiators meet without the mediator on any workday between
February 8 and 13.
Having received no response by February 13, Hammond
wrote Edwards to propose negotiations on February 18, 19,
20, and 21. Hammond concluded by saying that it was ‘‘im-
perative’’ that he receive an ‘‘immediate response.’’
In fact Edwards had responded to Hammond’s telegram by
letter dated February 10 which Hammond did not receive
until February 15. In that letter, Edwards advised that
‘‘[i]nasmuch as the [Union has] previously requested the in-
volvement of [FMCS] in our negotiations, and we have in
fact met under the guidance of Commissioner Bert Walters
[sic], we believe it appropriate that you schedule all such
meetings through Commissioner Walters [sic].’’ Edwards
also asserted that the Company had never refused to meet,
nor provide FMCS with available meeting dates.
Hammond then wrote to Walter on February 24 asking for
his ‘‘available dates’’ to meet with the parties or for written
advice that Walter could not assist in further negotiations
‘‘for some reason.’’7
Apparently in the week following Hammond’s letter to the
mediator, a bargaining session was arranged with company
officials by Walter for March 23. Hammond learned of this
scheduling in a telephone conversation with Walter on March
7 or 8. Dissatisfied with the pace of negotiations, Hammond
wrote a lengthy letter to Walter on March 10 criticizing the
mediator’s efforts to schedule regular bargaining sessions and
requesting that the mediator step aside if bargaining sessions
could not be scheduled more frequently than ‘‘one day every
couple of months.’’ Nonetheless, Hammond wrote Edwards
on March 13 confirming the time and place of the March 23
meeting.
On March 17, Floyd Wood, the FMCS district director,
sent separate letters to Hammond and Edwards canceling the
March 23 bargaining session. In his letter to Hammond,
Wood acknowledged receipt of the Hammond’s March 10
letter to Walter and stated that the March 23 bargaining ses-
sion arranged by Walter was canceled ‘‘[s]ince this matter is
now pending before the National Labor Relations Board.’’
Four days later, Wood sent separate but substantively iden-
tical letters to Hammond and Edwards to ‘‘clarify’’ his
March 17 letter. Wood explained that FMCS was with-
drawing ‘‘from negotiations between [the Company and the
817RIVERSIDE CEMENT CO.
8 Hammond asserted that he initially submitted the forms to Ed-
wards at the January 27 bargaining session and requested that the
Company submit the information to him which Edwards promised
to do. Edwards could not recall whether Hammond requested the in-
formation at the bargaining session or not.
Union] since the question of representation rights of the
union is currently pending before the National Labor Rela-
tions Board.’’ Hammond received the Wood letters on March
21 and 22, respectively.
On March 21 Hammond wrote Edwards reporting that he
had asked FMCS to step aside ‘‘so we can schedule dates
more frequently and of longer duration.’’ Hammond pro-
posed that the parties meet ‘‘each week for as many days as
necessary to conclude . . . negotiations’’ and suggested that
the parties commence this regimen by meeting March 27
through 31 at 4 p.m.
Thereafter, Edwards wrote to Walter on March 29 enclos-
ing a copy of Hammond’s March 21 letter and expressing re-
luctance to respond directly without consulting FMCS. Ed-
wards ask for Walter’s recommendation ‘‘as to how we
should proceed.’’ Walter never replied to this letter.
On April 3, Hammond wrote to Edwards acknowledging
receipt of the latter’s March 29 letter to Walter. Hammond
accused Edwards of ‘‘trying to stall negotiations’’ and de-
manded that the Company meet with the Union for negotia-
tions. Hammond suggested that the parties meet in the period
between April 10 through 14 and threatened ‘‘appropriate ac-
tion’’ if the Company continued to refuse to meet with the
Union.
Edwards responded to Hammond on April 11. Edwards’
letter stated: ‘‘While you may have asked [FMCS] to step
aside, the Company believes that the most appropriate course
of action is to coordinate bargaining under the auspices of
[FMCS].’’ Edwards did not address Hammond’s request to
meet in the period specified in Hammond’s April 3 letter nor
any other matter.
The charge in Case 31–CA–17659 alleging, among other
matters, that the Company unlawfully refused to meet with
the Union was filed on April 28. On June 1 Edwards wrote
to Walter requesting that the mediator contact him about ar-
ranging a meeting with the Union and participating in nego-
tiations. Walter never responded to the June 1 letter. As de-
tailed more fully below, the Union was advised within the
following 2 weeks that it would no longer be recognized by
the Company as the exclusive employee representative.
Edwards claims that the ‘‘tone’’ of bargaining changed on
January 27 when Hammond entered the negotiations. By Ed-
wards perception the parties had made steady progress to-
ward reaching an agreement before Hammond appeared.
Hammond’s presence, Edwards believes, caused the negotia-
tions to revert ‘‘back to square-one.’’ Edwards claims that
the Union attempted to put all new proposals on the table at
the January 27 meeting despite the bargaining which had oc-
curred over the past year but the mediator prevented this tac-
tic by insisting that the parties stick to what had been done.
For this reason, Edwards felt that it was ‘‘most advantageous
for all of us to have the FMCS involved in the bargaining.’’
Edwards denied that he ever refused to meet with the Union
without the presence of an FMCS mediator or that he ever
refused to meet with the Union at all.
3. The request for bargaining information
On January 30, Hammond wrote to Edwards enclosing a
two page form and asked that the Company supply the infor-
mation called for in for forms ‘‘as soon as possible.’’ The
forms requested a current employee seniority list reflecting
employee classifications and wage rates. In addition the
Union sought a breakdown of hourly costs for employee
wages and benefits, the total man-hours worked and the aver-
age number of employees employed during the past year, and
the total population of each employee grade or bracket uti-
lized by the Company. Hammond explained that he routinely
requested such information in bargaining in order to evaluate
economic proposals and that he sought the information in
this instance for that purpose.8
Twice thereafter—in his February 6 telegram and his Feb-
ruary 13 letter—Hammond reminded Edwards of his prior
information request. In his February 10 letter (which crossed
in the mails with Hammond’s February 13 letter), Edwards
told Hammond that the information request forms had been
forwarded to the Company’s Dallas, Texas headquarters to
compile the information and that it would be submitted to the
Union ‘‘[a]s soon as that data is available.’’
On May 19 Edwards mailed the completed information
forms to Hammond containing the employee cost breakdown
and work category population. Although Hammond acknowl-
edged—particularly on cross-examination—that he had been
provided with the information called for in his January 30 re-
quest, Edwards’ transmission letter of May 19 (G.C. Exh. 4)
does not appear to include the requested seniority list, with
employee classifications and individual wage rates specified.
The record does not reflect when, if ever, that information
was provided.
According to Edwards, the delay in furnishing the re-
quested information resulted from difficulties at the Com-
pany’s Dallas headquarters. At that particular time, Respond-
ent’s corporate office was altering its computerized record
system. In the process, the software program essential to re-
trieving the some of the requested cost data was destroyed
and a new program capable of retrieving that information had
to be written. No explanation for the delay was ever pro-
vided to the Union.
4. Grievance bargaining
a. The lunch period dispute
Employees are normally provided an unpaid lunch break
from 11 to 11:30 a.m. Under a policy maintained by the
Company for sometime, employees whose work assignments
prevent them from taking a lunch break within 5 hours after
they start work are given a pay premium and a chance to eat
a late lunch more compatible with their assignment. This
practice is commonly called the ‘‘interrupted lunch’’ policy.
Once each year the Company sponsors a by-invitation-only
luncheon to honor employees with a perfect attendance
record. A luncheon cooked by the managers and supervisors
is provided to the honored employees followed by an awards
presentation. The affair is conducted on paid time.
In 1989, the perfect attendance luncheon was held in late
April or early May. Invited employees were asked to attend
the luncheon from noon to 2 p.m. Some invited employees
apparently declined to attend.
On May 11 Hammond wrote to plant manager Jacobs ad-
vising that a ‘‘labor dispute has arisen between [the Com-
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Jacobs’ letters in response to Hammond’s requests on this matter
were drafted by Edwards.
10 The letters to the parties from FMCS District Director Wood
serve as the only explanation for FMCS’s withdrawal. Those letters
suggest a policy at FMCS to withdraw from contract negotiations if
a decertification petition is filed with the NLRB. One can only spec-
ulate that such a practice, if it is that, is designed to maintain abso-
pany and the Union] concerning the proper rate of pay for
interrupted lunch.’’ Hammond asked Jacobs to advise ‘‘as to
your earliest available dates to negotiate concerning this mat-
ter.’’ The letter, Hammond explained, was occasioned by a
complaint from an employee over the failure to receive ‘‘in-
terrupted lunch’’ pay when the perfect attendance luncheon
was held.
Jacobs responded on May 16 asking Hammond to provide
‘‘specific details of your concern’’ so he could ‘‘investigate
the situation.’’9 Hammond replied on May 25 saying ‘‘[t]he
Company is already aware of the facts involved in the inter-
rupted lunch because you called in Lew Hill and Oly Olson,
who are committee members, and asked them about it.’’
Without further elucidation, Hammond repeated his request
to meet and suggested May 30 or 31 as potential meeting
dates.
On May 31, Jacobs answered Hammond’s second ‘‘inter-
rupted lunch’’ letter. Jacobs claimed that Hill and Olson had
been unable to ‘‘shed much light on the situation’’ and ad-
vised Hammond that he would ‘‘be happy to pursue the
issue’’ if Hammond would provide ‘‘specific details of [his]
concern.’’ Otherwise, Jacobs said he would ‘‘consider this
matter closed.’’
In a June 26 letter Hammond reminded Jacobs that he had
written concerning the interrupted lunch dispute on ‘‘several
occasions’’ but Jacobs had refused to provide the Union with
available meeting dates. Hammond concluded by threatening
to file a NLRB charge if the Company failed to respond to
the demand for a meeting within 14 days. The Company did
not respond.
b. The Longyear warning
In April the Company imposed a 10-day suspension on
employee Robert Longyear based on an altercation between
Longyear and another employee.
On October 12 Acting Plant Manager Montgomery issued
a ‘‘last and final warning’’ to Longyear for purportedly writ-
ing the name of his April adversary on a company bathroom
wall. The warning advised Longyear that he was to take a
think-it-over day off with pay on October 13 and made it
clear that he would be fired for any future breach of com-
pany policies and rules.
On October 17 Hammond wrote to Jacobs asking for a
meeting to discuss ‘‘a labor dispute concerning the discipli-
nary layoff of . . . Longyear.’’ By letter dated October 23
Edwards declined to meet with the Union about Longyear
‘‘or any other employee or issue’’ because the Company had
withdrawn recognition of the Union in June.
5. Union recognition
Clara Mosley, Respondent’s Oro Grande personnel rep-
resentative, testified that Carl Wray, the RD petitioner, pre-
sented her with an employee petition at her office one morn-
ing in early June. The multipage petition provides that the
each signing employee does ‘‘not want the [Union] to rep-
resent me as my Collective Bargaining Agent.’’
Purportedly, the petition shocked Mosley. After she count-
ed the names on the petition and made a Xerox copy,
Mosley transmitted a copy of the petition to Respondent’s
counsel in Dallas by a facsimile machine. According to
Mosley, 113 individuals she recognized as company employ-
ees had signed the petition. She returned the original to Wray
who did not testify in this proceeding. Mosley asserted that
there were 224 employees in the bargaining unit at the time.
By letter dated June 13, the Company’s counsel advised
the Union’s counsel that the Company had received a peti-
tion signed by a majority of employees in the certified unit
stating that they no longer wished to be represented by the
Union. Accordingly, that letter advises, ‘‘we are no longer
willing to treat with your client’’ as the employee representa-
tive.
B. Conclusionary Findings
1. Meeting without FMCS participation
Section 8(a)(5) of the Act mandates that employers must
bargain collectively in good faith with the representative cho-
sen by a majority of its employees. Section 8(d) of the Act
defines the obligation to bargain collectively to include ‘‘the
mutual obligation . . . to meet at reasonable times and con-
fer in good faith with respect to wages, hours, and other
terms and conditions of employment.’’
Matters encompassed by the 8(d) phrase ‘‘wages, hours,
and other terms and conditions of employment’’ are gen-
erally called mandatory subjects of bargaining. Other lawful
subjects of bargaining not encompassed within that 8(d)
phrase are traditionally called permissive or nonmandatory
subjects of bargaining. As to mandatory subjects, a party
may lawfully persist to the point of deadlock in negotiations;
however, a party may not legally insist to impasse on a per-
missive subject of bargaining. NLRB v. Borg-Warner Corp.,
356 U.S. 342 (1958).
The General Counsel’s argument is formulated from the
Borg-Warner analytical framework. In the General Counsel’s
view, the presence or absence of the Federal mediator is a
permissive subject and, hence, Respondent’s insistence on
the Federal mediator’s presence was unlawful.
Respondent argues that the Borg-Warner approach is inap-
propriate because FMCS is established by the Act to assist
the parties in resolving their disputes. Because FMCS already
participated in these negotiations, Respondent argues, it
could lawfully insist even under Borg-Warner that bargaining
be conducted under the aegis of FMCS. Indeed, in footnote
6 at page 15 of its brief, Respondent seems to suggest that
FMCS was not substantially justified in withdrawing from
these negotiations and by doing so, ‘‘the Company was
placed in a precarious position.’’
In my judgment participation by FMCS in these negotia-
tions is of no legal significance. Instead, I believe that Re-
spondent, by Edwards’ letter of April 11 and its subsequent
inaction, exhibited an unwillingness to ‘‘meet at reasonable
times’’ as Section 8(d) commands.
In general, an employer’s obligation under Section 8(d) of
the Act to meet at reasonable times with the employee rep-
resentative is wholly independent of the willingness of any
mediator to participate.10 By April 11, FMCS had unequivo-
819RIVERSIDE CEMENT CO.
lute neutrality which might other wise be compromised if FMCS
aided negotiating parties to conclude an agreement that might be ad-
verse to the interests of the NLRB petitioner who, in all likelihood,
would not be present at the bargaining table.
cally removed itself from the negotiations and Hammond, by
his April 3 letter, had made an explicit request to meet on
specific dates.
In these circumstances, I find Respondent had a statutory
obligation to meet on dates suggested by Hammond or offer
to meet at some other ‘‘reasonable’’ time. Edwards did nei-
ther; instead he still insisted that further meetings be ar-
ranged by FMCS, a very unlikely occurrence.
Respondent justifies this insistence on the ground that the
‘‘tone’’ of negotiations changed appreciably with Ham-
mond’s appearance on January 27 and that without the medi-
ator’s presence, little would be accomplished. This justifica-
tion is not supported by any evidence apart from Respond-
ent’s vague, preconceived perceptions about Hammond’s per-
sonalty.
District Director Wood’s March 17 and 21 letters left Ed-
wards with every reason to believe that FMCS would not
‘‘coordinate’’ further bargaining. Hence, Edwards’ April 11
response to Hammond’s April 3 demand to meet for negotia-
tions is tantamount to no response at all. By following this
course without correction thereafter, Respondent effectively
refused to meet at any reasonable time after April 3 pursuant
to Hammond’s legitimate request, as alleged in the com-
plaint. For these reasons, I find that Respondent violated Sec-
tion 8(a)(5) of the Act.
2. The information request
The General Counsel argues in effect that the lost com-
puter program excuse proffered by Edwards to explain the
delay in furnishing the bargaining information lacks credi-
bility essentially because the delay had never been provided
previously to Hammond.
I am unwilling to discount Edwards’ explanation merely
because Hammond was not provided with an explanation for
the delay. From the evidence before me it appears that the
bargaining information request was lost in the shuffle after
Hammond received Edwards’ assurance in the latter’s Feb-
ruary 10 letter that the information would be provided when
available. Following Hammond’s February 13 letter—trans-
mitted before he received Edwards’ February 10 letter—the
subject was never broached again by Hammond.
Where, as here, no effort was made to rebut the expla-
nation provided by Edwards and the circumstances indicate
that no explanation for the delay was ever previously re-
quested or otherwise in order, I credit Edwards’ explanation
provided for the delay, find the delay justified for that rea-
son, and recommend that this allegation be dismissed.
3. Withdrawal of union recognition
The General Counsel argues that the June 13 recognition
withdrawal is unlawful in the face of Respondent’s earlier
unlawful refusal to meet with the Union. In the alternative,
the General Counsel argues that Respondent has failed to
prove with objective evidence that it had a good-faith doubt
of the Union’s majority status when recognition was with-
drawn on June 13.
Respondent argues that Wray’s June petition establishes
that a majority of its employees no longer desired union rep-
resentation and that it ‘‘satisfies the Board’s objective evi-
dence standard’’ for withdrawing union recognition. As for
the General Counsel claim concerning prior unfair labor
practices, Respondent argues that the legal theory relied on
is not absolute and the General Counsel failed to meet the
burden under that theory of establishing that its refusal to
meet and bargain contributed to the Union’s loss of majority
status or tainted Wray’s June petition.
The petition presented to Mosley by Wray in June which
underpins Respondent’s withdrawal of union recognition
does appear to contain 113 signatures. A closer scrutiny indi-
cates two significant periods of activity in connection with
the petition. In the period between October 16 and November
25, 1988, at least 84 employees signed the Wray petition. It
is reasonable to assume that this portion of the Wray petition
served as the 30-percent showing of interest for his RD peti-
tion filed at the NLRB.
At least 27 individuals signed Wray’s petition between
April 22 and June 5, 1989. The greater bulk of these later
signatures are dated between May 16 and 25, 1989. Two sig-
nature dates are so illegible on the copy introduced in evi-
dence as to preclude even conjecture about which of the two
general time periods they belong.
Mosley’s testimony is the sole basis for Respondent’s con-
tention that the unit was comprised of 224 employees and
that the Wray petition represented a majority of the unit em-
ployees at that time. No payroll records were proffered to
support Mosley’s testimony nor did Respondent offer any ex-
planation for its failure to produce such records.
Although it cannot be said that proof of this nature is al-
ways fatal, Mosley failed to convince me either while testi-
fying or on repeated readings of her testimony that anyone
closely analyzed Wray’s petition in conjunction with current
personnel records to make the unequivocal determination that
a majority of the current employees no longer desired union
representation.
Reliance on Mosley’s testimony is questionable for other
reasons. The information provided to the Union on May 19
appears to reflect 229 unit employees at that time. This count
is based on information shown on the second page of Ham-
mond’s form request. Even if it is assumed that Mosley’s
June unit census is accurate, it would be wholly improper to
assume that the Wray petition was unaffected by the recent
work force reduction. Over 88 percent of the signatures on
Wray’s June petition are dated before May 19 when the
Company represented to the Union that there were 229 unit
employees.
Where, as here, the validity of every single signature on
the Wray petition is critical to establish Respondent’s claim
that the Union lacked majority standing, Respondent’s failure
to come forward with conclusive evidence—available to it
alone—that every signature on the Wray petition was valid
for majority determination purposes causes me to conclude
that its affirmative defense has not been proven by reliable
evidence.
Nor can I conclude, as Respondent claims, that no nexus
was shown between its other unlawful conduct and the Wray
petition in June. Between December 1988 and May 1989,
Respondent’s conduct totally stalled the already protracted
negotiations for an initial contract. It is reasonable to con-
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 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.’’
clude that such conduct would tend to undermine employee
confidence in the new representative especially where the in-
ability to even schedule meetings occurred after local rep-
resentatives sought assistance from their parent organization.
Following Respondent’s other unlawful conduct, the Wray
petition on its face received the added impetus of at least 27
signers. Hence, the character, timing and likely effect of Re-
spondent’s unlawful refusal to schedule regular bargaining
sessions after January 27 appears to have significantly af-
fected Wray’s June petition.
For the foregoing reasons, I find that Respondent’s June
13 withdrawal of union recognition was not based on objec-
tive evidence of doubt concerning the Union’s continued ma-
jority status raised in a context free of unfair labor practices
directed at causing employee disaffection with the Union.
Louisiana Dock Co., 297 NLRB 439 (1989). And see Dress-
er Industries, 264 NLRB 1088 (1982). By this conduct, Re-
spondent violated Section 8(a)(5) of the Act as alleged.
4. Requests to bargain about grievances
Grievances concerning the terms and conditions of em-
ployment, including employee discipline, are mandatory sub-
jects of bargaining even in the absence of a collective-bar-
gaining agreement. Storall Mfg. Co., 275 NLRB 220 (1985).
Respondent justifies its refusal to schedule a meeting as
requested over the interrupted lunch matter on the ground
that Hammond failed to provide a written summary about his
concerns on this subject. And as the Longyear matter arose
after Respondent withdrew union recognition, it argues that
there was no obligation to meet.
Having concluded that Respondent unlawfully withdrew
recognition, I find that Respondent’s refusal to meet con-
cerning the Longyear warning as requested violated Section
8(a)(5) of the Act.
The interrupted lunch matter substantively involved a ten-
sion between two apparently well-established policies, i.e.,
premium pay for an interrupted lunch and the annual perfect
attendance banquet. In my judgment, Respondent’s request
that the Union clarify its concerns in writing before sched-
uling a meeting about the matter is not altogether unreason-
able. However, as this issue arose during the period when
Respondent was otherwise avoiding its obligation to bargain
by refusing to meet with the Union, it is reasonable to con-
clude that Respondent’s refusal to meet on this issue was
part of a consistent unlawful strategy. Accordingly, I find
that Respondent’s refusal to meet as requested concerning
the interrupted lunch violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, a labor organization within the meaning of
Section 2(5) of the Act, is the exclusive representative of
employees in the following appropriate unit within the mean-
ing of Section 9(a) of the Act:
All production and maintenance employees employed
by the Employer at its Oro Grande, California facility;
excluding all other employees, including office clerical
employees, agricultural department employees, analysts,
administrative clerks, shipping clerks, guards and super-
visors as defined in the Act.
3. By refusing to recognize and to meet and bargain with
the Union concerning grievances and the terms of a collec-
tive-bargaining agreement, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(5) of the
Act.
4. Respondent did not unlawfully delay providing the
Union with requested information as alleged in the com-
plaint.
5. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended Order requires Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Affirmatively, the Order requires Respondent to recognize
the Union, and meet and bargain, on request, in a timely
manner without regard to participation by the FMCS con-
cerning the terms of a collective-bargaining agreement as
well as employee grievances.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Riverside Cement Company, a Gifford-
Hill Cement Company, Oro Grande, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and to meet and bargain with
Independent Workers of North America, Local Union 192,
concerning the terms of a collective-bargaining agreement
and grievances of employees employed in the appropriate
unit specified on page 12 of the administrative law judge’s
decision in Cases 31–CA–17659 and 31–CA–17924.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, meet and bargain with the
Union as the exclusive representative of the employees in the
appropriate unit specified in paragraph 1(a), above, con-
cerning terms and conditions of employment, including em-
ployee grievances, without regard as to whether the Federal
Mediation and Conciliation Service chooses to participate in
such bargaining and, if understandings are reached, embody
those understandings in signed agreements.
(b) Post at its Oro Grande, California facility copies of the
attached notice marked ‘‘Appendix.’’12 Copies of the notice,
821RIVERSIDE CEMENT CO.
on forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges that Respondent unlawfully delayed pro-
viding information requested by its employees’ collective-
bargaining representative.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize or to meet and bargain,
on request, with Independent Workers of North America,
Local Union 192, about the terms of a collective-bargaining
agreement and grievances of employees in the following ap-
propriate unit:
All production and maintenance employees employed
by the Employer at its Oro Grande, California facility;
excluding all other employees, including office clerical
employees, agricultural department employees, analysts,
administrative clerks, shipping clerks, guards and super-
visors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL meet and bargain with the Union without regard
to the willingness of the Federal Mediation and Conciliation
Service to assist in negotiations.
RIVERSIDE CEMENT COMPANY, A GIFFORD-
HILL CEMENT COMPANY