Blue Circle Cement Co.

National Labor Relations Board - Board Decisions

Nov 13, 1995

319 N.L.R.B. 661 (N.L.R.B. 1995)

661
319 NLRB No. 90
BLUE CIRCLE CEMENT CO.
1 No exceptions were filed to the judge’s findings that the Re-
spondent violated Sec. 8(a)(5) and (1) in other respects by unilater-
ally changing terms and conditions of employment.
2 No exceptions were filed to the judge’s finding that ‘‘employees
in the former job classifications with rotating shifts for more than
20 years have been permitted to return to their original rotation.’’
More particularly, the record shows that David MacIntire returned to
his former rotating shift 7 or 8 years prior to the hearing after an
absence of 8–10 months; Daryl Alsup had returned to his rotating
shift twice in the previous 10 years; Rick Thomas had returned to
his rotating shift twice in the previous 4 years; Bobby Thompson
had returned to his former rotation at least once during the previous
2 years; George Smallwood returned to his former rotating shift 2
or 3 years previously; John Miller returned to his former rotation 2
years previous; and both Will Rainey and Barney Powell had re-
turned to their rotations at least once.
Blue Circle Cement Company, Inc. and United Ce-
ment, Lime, Gypsum & Allied Workers Divi-
sion, International Brotherhood of Boiler-
makers, Iron Shipbuilders, Forgers & Helpers,
AFL–CIO, Local D421. Cases 17–CA–17447
and 17–CA–17563
November 13, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On April 20, 1995, Administrative Law Judge Karl
H. Buschmann issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering 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, and con-
clusions, as modified, and to adopt the recommended
Order as modified and set forth in full below.
This case presents the issue of whether the Respond-
ent unilaterally changed an established practice in vio-
lation of Section 8(a)(5) and (1). More particularly, the
General Counsel contends that the Respondent unlaw-
fully changed an established practice governing the en-
titlement of employees known as ‘‘rotating shift’’ or
‘‘continuous shift’’ employees to return to their pre-
vious workshift and rotation after a temporary absence.
The judge found, however, that the Union had agreed
to a contractual provision that amounted to a waiver of
its bargaining rights, and that therefore the Respond-
ent’s conduct regarding this alleged practice did not
violate the Act. We reverse.1
Facts and Discussion
The Respondent’s production and maintenance em-
ployees are represented by Boilermakers Local D421
(the Union). The parties’ most recent bargaining agree-
ment expired on April 30, 1990. No successor agree-
ment was reached. Accordingly, terms of the expired
agreement continued to govern employees’ terms and
conditions of employment, along with certain lawfully
implemented terms not relevant here, as well as those
longstanding past practices that had acquired the status
of established conditions of employment. See Lamonts
Apparel, 317 NLRB 286, 287 (1995).
For many years, employees in several job classifica-
tions have worked a rotating shift. Each rotation starts
on a different Wednesday over a 4-week period, result-
ing in a long weekend off once every 4 weeks. By
knowing their rotation well in advance, rotating shift
employees can schedule their vacations during advan-
tageous periods to better assure a continuous number
of days off. Further, certain rotations are more advan-
tageous in particular years, i.e., when rotations are
close to holidays such as Christmas or Thanksgiving.
In contrast to regular or ‘‘fixed’’ shift employees, who
bid on their choice of shifts every year between Janu-
ary and February, there is no annual shift preference
for rotating shift employees.
The General Counsel contends that in April 1993
and again in June 1994 the Respondent impermissibly
changed an established practice entitling temporarily
absent rotating shift employees to return to their
former rotation at the conclusion of their absence. In
support of the contention of an established practice, the
General Counsel and the Union presented unrebutted
testimony that over many years, numerous rotating
shift employees consistently were permitted to return
to their rotation upon their return from an absence.2
Notwithstanding this practice, in April 1993 and June
1994, the Respondent refused to permit employees
Thomas Wayne Forrest and Jerry Emerson, respec-
tively, to return to rotations they previously had occu-
pied for many years. In both instances, the Respondent
failed to negotiate with the Union regarding the assign-
ments of Forrest and Emerson.
The judge acknowledged that the Respondent ‘‘has
accommodated employees in the past to be assigned to
the same rotation with the same production crew’’ that
they had worked prior to their temporary absence. The
judge reasoned, however, that the Union had waived
its bargaining rights by virtue of the following provi-
sion at article VI in the expired bargaining agreement:
Sec. 2. (c) The Company will continue the prac-
tice of giving senior employees in a department
their choice of shifts, as long as qualified person-
nel with the necessary skills are available to per-
form the required work. This practice will apply
only to permanent schedule assignments, as op-
posed to temporary scheduling for specific work
such as major repairs and modifications of plant
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The expired bargaining agreement does not specifically refer to
employees’ entitlement to return to their former rotation, or to the
Respondent’s authority to determine such assignments at its discre-
tion. Art. IV of the bargaining agreement provides that the Respond-
ent shall control the direction of the working forces. As the judge
recognized elsewhere in his decision, a general contractual provision
of this type is not sufficient to establish a clear and unmistakable
waiver of the Union’s right to bargain. Ciba-Geigy Pharmaceuticals
Division, 264 NLRB 1013, 1017 (1982), enfd. 722 F.2d 1120 (3d
Cir. 1983).
United Technologies Corp., 300 NLRB 902 (1990), on which the
Respondent relies, is distinguishable. In finding that the union in that
case waived its right to bargain over the decision to change the
length of the Saturday overtime shift from 5 to 8 hours, the Board
relied on the wording of the management functions clause, which
specifically authorized the company unilaterally to determine ‘‘shift
schedules and hours of work.’’
4 Contrary to the Respondent’s contention, we adhere to the clear-
and-unmistakable waiver standard ‘‘when determining whether con-
tract language may be invoked as a defense to an alleged failure to
bargain over changes in mandatory subjects.’’ Exxon Research &
Engineering Co., 317 NLRB 675 (1995). Moreover, in light of our
finding above that art. VI, sec. 2(c), is inapplicable to the instant dis-
pute, we would reach the same result under the less rigorous ‘‘con-
tract coverage’’ standard of NLRB v. Postal Service, 8 F.3d 832
(D.C. Cir. 1993), cited by the Respondent.
5 In finding that art. VI, sec. 2 (c), constitutes a waiver, the judge
noted that returning a rotating shift employee to his or her rotation
after a temporary absence may require the reassignment of the em-
ployee who occupied the rotation during the absence. We fail to dis-
cern how such an eventuality supports a finding of waiver.
We also find no merit to the Respondent’s contention that the
change in the practice of returning employees to their former rota-
tion is not a substantial or material change inasmuch as the evidence
shows that the change impacts on employees’ work schedules and
their workweek.
6 Although the record shows that Forrest may have bid into an-
other position subsequent to the unilateral change, we shall not limit
the remedy available to Forrest if he desires to return to his former
rotation.
equipment. Also, this practice will not apply to
continuous [rotating] shift employees.
The judge concluded that, under this provision, rotat-
ing (continuous) shift employees, such as Forrest and
Emerson, had no right to ‘‘their choice of shifts’’ as
set forth in article VI, section 2(c), in contrast to fixed
shift employees, who had the right to a choice of shifts
based on their seniority. The judge’s reasoning essen-
tially means that this provision confers on the Re-
spondent sole discretion to determine who will occupy
a rotating shift position when a rotating shift employee
returns from a temporary absence. We disagree.
Article VI, section 2(c), of the expired agreement
provides that the practice of giving senior employees
their choice of shifts based on their seniority does not
apply to rotating shift employees.3 Unlike senior fixed
shift employees, who can bump junior employees on
an annual basis when shifts are chosen, rotating shift
employees cannot do so under article VI. Put another
way, once an employee secures a rotating shift posi-
tion, that employee is not subject to bumping by a
more senior employee. The limitation or constraint on
the exercise of seniority as to rotating shift employees
set forth in article VI, section 2(c), however, is wholly
inapplicable to the dispute at issue in this case. We are
concerned here with the practice of returning an em-
ployee to a particular rotation after a temporary ab-
sence, based not on any claim of seniority, but based
on an employee’s incumbency in that position irrespec-
tive of seniority. Accordingly, the limitation imposed
by article VI on the exercise of seniority is of no rel-
evance here because the entitlement has nothing to do
with the exercise of seniority. As Douglas Pardee, the
Respondent’s operations manager, admitted at the hear-
ing when describing his discussion with the Union
over this matter: ‘‘I don’t remember it as a seniority
issue. I remember it as, ‘Hey this is his shift . . . .
We want to put him back in the shift.’’’
In short, article VI, section 2(c), as a provision gov-
erning the use of seniority in shift assignments, simply
is inapplicable to the question of whether employees
are entitled to return to their rotations at the conclusion
of temporary absences, an issue that is unrelated to any
claim of seniority. It follows, therefore, that article VI,
section 2(c), cannot be considered a waiver of the
Union’s right to bargain over the change in the estab-
lished practice of returning temporarily absent rotating
shift employees to their rotation.4 Further, it is evident
and essentially uncontradicted that an established prac-
tice exists permitting rotating shift employees to return
to their rotation at the conclusion of a temporary ab-
sence. Accordingly, we find that the Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally changing
the practice of returning rotating shift employees to
their rotation upon their return from a temporary ab-
sence without bargaining with the Union.5
AMENDED REMEDY
Having found that the Respondent additionally vio-
lated Section 8(a)(5) and (1) by unilaterally changing
the practice of permitting the return of rotating shift
employees to their rotation at the conclusion of a tem-
porary absence, without bargaining with the Union, we
shall order that the Respondent rescind its unilateral
action and provide the Union with the opportunity to
bargain over any changes in unit employees’ working
conditions. We shall also order the Respondent to per-
mit employees Thomas Wayne Forrest and Jerry Emer-
son to return to their former rotations if they so desire
and to reimburse them, with interest, for any losses in-
curred as a result of the failure to permit them to re-
turn to their former rotations.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
663BLUE CIRCLE CEMENT CO.
7 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.’’
Respondent, Blue Circle Cement Company, Inc., Tulsa,
Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain in good faith with United
Cement, Lime, Gypsum & Allied Workers Division,
International Brotherhood of Boilermakers, Iron Ship-
builders, Forgers & Helpers, AFL–CIO, Local D421
(the Union) as the exclusive representative of its em-
ployees with respect to rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment, in an appropriate unit consisting of:
All production and maintenance employees em-
ployed at the Respondent’s Tulsa, Oklahoma
plant, but excluding plant executives, professional
engineers, machine shop foremen, oiling super-
visor, electrical foreman, instrumentation engineer,
guards, watchmen, and supervisors as defined in
the National Labor Relations Act, as amended.
(b) Making unilateral changes in the wages, hours,
and other terms and conditions of employment of its
bargaining unit employees.
(c) Changing the work schedules, such as fixed
shifts to rotating shifts, changing the call-out proce-
dures of its unit employees, and changing the practice
of permitting the return of rotating shift employees to
their rotations following temporary absences, without
prior notice to the Union or bargaining with it as the
exclusive bargaining representative.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify and give the Union an opportunity to bar-
gain about any changes in the bargaining unit employ-
ees’ terms and conditions of employment, including
any proposed shift changes, changes in the call-out
procedures, and changes in permitting rotating shift
employees to return to their rotations following tem-
porary absences.
(b) Rescind the changes in the unit employees’ work
schedules, including the changes from a fixed shift to
rotating shifts, the changes in the call-out procedures,
and the changes in the return of rotating shift employ-
ees to their rotations following temporary absences.
(c) Reimburse the shipping clerks and make them
whole for lost overtime pay with interest in the manner
set forth in the remedy section.
(d) Permit employees Thomas Wayne Forrest and
Jerry Emerson to return to their former rotations if
they so desire and reimburse them, with interest, for
any losses incurred as a result of the failure to permit
them to return to their former rotations.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its plant in Tulsa, Oklahoma, copies of
the attached notice marked ‘‘Appendix.’’7 Copies of
the notice, on forms provided by the Regional Director
for Region 17, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain in good faith with
United Cement, Lime, Gypsum & Allied Workers Di-
vision, International Brotherhood of Boilermakers, Iron
Shipbuilders, Forgers & Helpers, AFL–CIO, Local
D421 as the exclusive representative of our employees
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment,
in an appropriate unit consisting of:
All production and maintenance employees em-
ployed at our Tulsa, Oklahoma plant, but exclud-
ing plant executives, professional engineers, ma-
chine shop foremen, oiling supervisor, electrical
foreman, instrumentation engineer, guards, watch-
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
men, and supervisors as defined in the National
Labor Relations Act, as amended.
WE WILL NOT make unilateral changes in the wages,
hours, and other terms and conditions of employment
of the bargaining unit employees.
WE WILL NOT make changes in the work schedules,
such as fixed shifts to rotating shifts, changes in the
call-out procedure of our unit employees, or changes
to the practice of permitting the return of rotating shift
employees to their rotation following a temporary ab-
sence, without prior notice to the Union or bargaining
with it.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL notify and give the Union an opportunity
to bargain about any changes in the bargaining unit
employees’ terms and conditions of employment, in-
cluding any proposed shift changes, changes in the
call-out procedures, or changes in permitting rotating
shift employees to return to their rotations following
temporary absences.
WE WILL rescind the changes in the unit employees’
work schedules, including the changes from fixed
shifts to rotating shifts, the changes in the call-out pro-
cedures, and the changes in the return of rotating shift
employees to their rotations following temporary ab-
sences.
WE WILL reimburse the shipping clerks and make
them whole for lost overtime pay, as a result of our
unilateral changes, with interest.
WE WILL permit Thomas Wayne Forrest and Jerry
Emerson to return to their former rotations if they so
desire and reimburse them, with interest, for any losses
incurred as a result of the failure to permit them to re-
turn to their former rotations.
BLUE CIRCLE CEMENT COMPANY, INC.
Mary Taves, Esq., for the General Counsel.
John W. Powers, Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of Chicago, Illinois, for the Respondent.
Michael T. Manley, Esq. (Blake & Uhlig), of Kansas City,
Kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried on December 15, 1994, in Tulsa, Oklahoma,
upon a consolidated complaint issued on October 6, 1994.
The underlying charges were filed by United Cement, Lime,
Gypsum & Allied Workers Division, International Brother-
hood of Boilermakers, Iron Shipbuilders, Forgers & Helpers,
AFL–CIO and its Local D421 (the Union). According to the
allegations in the complaint, the Respondent, Blue Circle Ce-
ment Company, Inc. violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act) by unilaterally chang-
ing (a) the working schedule of its unit employees, (b) the
bidding rights of unit employees for workshifts, and (c) the
call-out procedures of unit employees, without notice to the
Union and without affording the Union to bargain.
The Respondent’s answer of October 19, 1994, admitted
the jurisdictional allegations in the complaint but denied that
the Respondent had violated the Act.
Upon the record as a whole, including my observation of
the witnesses and the briefs filed by the General Counsel, the
Charging Party, and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Blue Circle Cement Company, Inc. (the Company or the
Respondent), with an office and place of business in Tulsa,
Oklahoma, is engaged in the manufacture and distribution of
cement and related products. With purchases and receipts of
goods in excess of $50,000 directly from points outside the
State of Oklahoma, the Respondent is admittedly an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Union, United Cement, Lime, Gypsum & Allied
Workers Division, International Brotherhood of Boiler-
makers, Iron Shipbuilders, Forgers & Helpers, AFL–CIO and
its Local D421, is admittedly a labor organization within the
meaning of Section 2(5) of the Act.
II. FACTS
The Company’s production and maintenance employees
have been represented by the Union since 1963 (G.C. Exh.
2, Tr. 19). Four office clerical employees were included in
the bargaining unit in 1974 (G.C. Exh. 3, Tr. 19). In 1983
the Company acquired the plant from Martin Marietta Com-
pany which also had a collective-bargaining agreement with
the Union (G.C. Exh. 4, Tr. 19). The Respondent assumed
the agreement and, upon its expiration, negotiated with the
Union a new collective-bargaining agreement, effective until
April 30, 1990 (G.C. Exh. 3, Tr. 21). Since then, the parties
have been operating according to the terms of the expired
contract. The Company implemented a number of proposals
during the negotiations for a new contract, but the newly im-
plemented proposals are not in issue here. In sum, for the
purposes of this case, relevant are the terms of the expired
contract (G.C. Exh. 3). According to the complaint, the Re-
spondent unilaterally changed the working conditions of its
unit employees in three distinct ways.
A. Rotating Shifts
In April 1994, the Company’s six electricians who are unit
employees were informed by Bob Pratt, electrical supervisor,
that henceforth they would be assigned to a rotating shift
schedule rather than their fixed shifts. They had been work-
ing according to fixed shifts where one electrician worked
from 8 a.m. to 4 p.m., another from 4 p.m. to midnight, a
third from midnight to 8 a.m., one who worked morning
shifts for 3 weeks and evening shifts for 2 weeks, and two
electricians who worked the day shift for 4 weeks and the
midnight shift for 1 week (Tr. 27, 208). According to this
system, the employees had the same days off, were able to
select the shift annually based upon their seniority, worked
665BLUE CIRCLE CEMENT CO.
on the same schedule for the entire year, and knew their
working hours in advance. Under the new system, an em-
ployee is assigned to seven midnight shifts, has 4 days off,
and then begins a pattern of six morning shifts beginning at
8 a.m. with 2 days offs and resumes work with seven shifts
beginning at 4 p.m. followed by 2 days off at which point
the cycle returns to the midnight shifts. The employee wit-
nesses agreed that the new system presented a hardship, such
as disturbed sleep patterns, interrupted family life and the in-
ability to bid on relief jobs. Relief work was often com-
pensated with higher wages, it facilitated ‘‘cross training’’
and better familiarity with all aspects of the work. In addi-
tion, overtime options were adversely affected.
The Respondent announced the rotating schedule in April
directly to the employees, without notice to the Union. Theo-
dore Allen Adams, the Union’s grievance committee chair-
man and negotiating committeeman, learned about the
changes from the employees. He along with two other union
officials met with Respondent’s management, including Plant
Manager Douglas Pardee, and requested an opportunity to
bargain. As recalled by Adams, the meeting went like this
(Tr. 30):
And Mr. Jim King, he was a Maintenance Manager
at the time. We had a meeting and discussed it and told
them that the guys were very dissatisfied and we felt
like, you know, that we wanted to bargain over it. Said,
‘‘Hey, you know, we need to talk about this.’’ And he
said, ‘‘Well, there’s no bargaining about it.’’ He said,
you know, ‘‘This is not a bargaining issue.’’
The same parties met again on the following day. The
Union repeated its request to bargain, but the Respondent re-
jected the Union’s demand (Tr. 31).
The Respondent admits that it refused to bargain about its
unilateral decision to institute rotating shifts for the unit em-
ployees, but argues that rotating shifts were consistent with
the terms of the expired contract and past practice, as well
as the rotating working schedules of other crafts, including
control room operators or console technicians, shift repair-
men, a crane operator, and lab technicians. The new system
was necessary, according to the Respondent, to provide serv-
ice on a 24-hour basis.
It is true that certain limited job categories of Respond-
ent’s work force were working on a rotating schedule. It is
also true that for a limited period, in years past, electricians
had worked under rotating schedules. From 1981 or 1982 to
1985, they worked on a rotating shift schedule—on an exper-
imental basis according to Adam’s testimony—during the pe-
riod of time when the plant was managed by Respondent’s
predecessor, Martin Marietta and for a short period under the
management of Blue Circle Cement. In any case, the Union
‘‘filed a lot of grievances about that’’ and the practice was
discontinued in 1985 (Tr. 90, 264–265). In sum, the elec-
tricians have operated under a fixed schedule for approxi-
mately 10 years. The expired collective-bargaining agreement
does not provide for rotating shifts for the electricians. The
contract refers to both fixed and rotating shift employees, but
it does not specify which of the various job classifications
are assigned to such schedules.
It cannot be gainsaid that the assignments of working
schedules of employees fall within the definition of ‘‘wages,
hours and other terms and conditions of employment’’ of
Sections 8(a)(5) and 8(d) of the Act. Indeed, the express lan-
guage of the Act requires the Respondent to bargain in good
faith with the Union about the wages, hours, and other terms
and conditions of employment. NLRB v. Katz, 369 U.S. 736
(1962). Here, the Respondent admitted to effectuating the
change in working schedules for the electricians without no-
tice to the Union or affording it an opportunity to bargain.
The Respondent argues that the Union had waived its right
because of the past practice.
Relevant to the consideration of past practice are the work
schedules for electricians for the past 10 years, i.e., fixed
shifts. When the employees were assigned to rotating shifts,
for a few years between 1981 and 1985, the Union filed
grievances protesting the electrician’s rotating shifts. And
since then, their work schedules have been on a fixed shift
basis.
I cannot accept the Respondent’s argument that the Union
had waived its right to notice and the opportunity to bargain,
because the Employer had imposed a rotation schedule in
1981 or 1982 and then reverted to a fixed schedule without
bargaining with the Union. First, the Union had filed griev-
ances at that time and had not simply acquiesced to the
change. And it is well settled that the Union cannot be pre-
sumed to have waived its right without clear and unequivocal
evidence. Metropolitan Edison v. NLRB, 460 U.S. 693
(1983). Second, it is clear that Respondent’s reference to that
period of time is too remote. It is the practice which has ex-
isted for the last 10 years which is controlling here and
which the Respondent unilaterally changed.
Finally, Respondent’s reliance on the management rights
clause contained in article IV of the expired contract is also
misplaced (G.C. Exh. 3, p. 6). Broad contractual provisions
of this type are not sufficient to establish that the Union con-
sented to a waiver of its rights to bargain over hours, terms
and conditions of unemployment. Ciba-Geigy Pharma-
ceuticals Division, 264 NLRB 1013, 1017 (1982). It is clear
therefore that the Respondent violated Section 8(a)(5) and (1)
by failing to bargain with the Union prior to implementing
a substantial change in the unit employees’ working hours.
B. The Change of Crew Assignments
The complaint alleges as unlawful Respondent’s refusal to
permit unit employees to exercise their bidding rights into
certain workshifts. Two employees, Thomas Wayne Forrest,
a console technician and Jerry Emerson, a shift repairman,
attempted to return to the same rotation after their temporary
absence. However, the Company refused them to return to
their original rotation shift. Forrest, for example, had been
assigned to a rotation shift schedule for several years, where,
as explained above, he worked for several weeks on the mid-
night shift followed by several weeks on the day shift and
then on the evening shift with certain days off between shift
changes. Forrest had bid to fill a temporary fixed shift job
as a physical tester in the fall of 1993. In April 1993, that
job ended and Forrest expected to return to his original rota-
tion schedule. He was permitted to return to his former job
but not to the same rotation and the same crew.
As a result, Forrest was unable to share his long 45 miles
commute to work with another employee, he was unable to
use his planned vacation without taking additional time off
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work and was inconvenienced in the taking of electricity
courses.
Forrest spoke to Frank Slosar, production manager, that he
wanted to be assigned to the same rotation which he had
prior to the temporary fixed shift job. But Slosar indicated
that Forrest fill the current vacancy, rather than his old rota-
tion which had been filled by another employee. Forrest then
appealed to Plant Manager Pardee but was unsuccessful. The
written schedule showed that he had not been assigned to the
desired rotation.
The Union presented the issue to Respondent’s manage-
ment. Pardee, however, rejected the request, taking the posi-
tion that ‘‘it wasn’t a bargaining issue’’ (Tr. 71).
A similar situation involved employee Jerry Emerson, a
shift repairman. He was on sick leave from March to June
1994, and the Company assigned him to a different rotation
upon his return. Yet Emerson had been assigned to the origi-
nal rotation for about 12 years.
The record shows that the Respondent usually permitted
the employees to return to their original rotation from a tem-
porary absence. The employees in the former job classifica-
tions with rotating shifts for more than 20 years have been
permitted to return to their original rotation. The record con-
tains the names of at least eight employees who, after a tem-
porary absence from their rotating shifts, were permitted to
return to the same production crew (Tr. 40–44, 74–78, 225).
The Respondent conceded that the employees had a right
to return to their regular shift jobs after a temporary absence,
but not necessarily to the same rotation or production crew
to which they had been assigned before. According to the
Respondent the issue is governed by expired contract in arti-
cle VI, section 2(c), which recognized the practice of giving
senior employees ‘‘their choice of shifts.’’ But the same pro-
vision exempts rotation shift employees when it states:
‘‘Also, this practice will not apply to continuous shift em-
ployees’’ (G.C. Exh. 3, p. 20). The Union argues, however,
that continuous shift (or rotating shift) employees are ex-
empted from their right in selecting their initial shift only,
and that their right to return to a former rotation after a tem-
porary absence is not covered by the expired contract.
While the record shows that the Respondent has accom-
modated employees in the past to be assigned to the same
rotation with the same production crew, I agree that the con-
tractual exemption constitutes an express waiver. The
Union’s argument that initial assignments may be exempt but
not a reassignment after a temporary absence is not convinc-
ing, particularly since such a reassignment may not only in-
volve the one employee making the request, but frequently
another one who has filled in on the rotation, requiring also
his reassignment. I therefore dismiss this allegation of the
complaint.
C. The Call-out Practice
The Company sold cement after its normal business hours
by ‘‘a call out’’ procedure involving its four office clerical
employees who are unit employees. Console operators who
receive incoming calls from customers refer the calls to one
of the four office clericals known as shipping clerks. After
hours calls are referred to them at home from where they
handle the customers’ orders.
About 20 years ago, console technicians who received
calls from customers were required to handle the customers’
orders themselves. Following the filing of a grievance by one
of the console technicians complaining that the after-hour
calls were too burdensome, the Respondent changed the
practice so that presently the office clerical staff handles
these orders at home. They receive 1-1/2-hour overtime pay
per 2-hour period at home, if they receive at least one call
during that period. The compensation for the office clericals
under this procedure is governed by article VI, section 12 of
the expired contract.
The responsibility of the shipping clerks working at home
was similar to their duties during regular business hours.
They would make a record of the customers’ orders, prepare
bills of lading and forward the bills of lading to the shipping
area or loading dock for loading the trucks. Usually, the
shipping clerks will inform their supervisor, James Benson,
administrative manager, to keep him informed. During after
hours, the shipping clerks usually fill orders from the Com-
pany’s inventory by informing the shipping area to fill out
a prenumbered bill of lading. Other duties include the fol-
lowing, as explained by Michael St. John (Tr. 151):
Oh, you would have your main call which would be
a direct order and you’d take care of that, or you might
have a credit check. You may have a load destination
change. You may have a truck breakdown. Just any-
thing that pertained to a load of cement getting to the
customer. It was our duty after hours, if we were
called, to take care of that or call the appropriate people
to make sure they were aware of what problem was
going on.
On occasion, the demand for cement exceeded the Compa-
ny’s supplies and its inventories were low. The Company
then adopted an allocation procedure to ration the sale of ce-
ment. Benson would prepare an allocation chart from which
the shipping clerks were able to fill orders. Exceptions to the
allocation procedure were only granted by Benson.
In early 1994, the Company experienced such a situation
and operated in an allocation mode. Benson informed the
console operators in May that they should hold the after
hours calls for normal working hours and refer emergency
calls to him (Benson) or Dale Fuzzell, in the sales depart-
ment. Benson’s memorandum of May 15, 1994, entitled
‘‘After hours and Weekends Orders’’ stated in part (G.C.
Exh. 7):
Until further notice, please continue to have the Con-
sole Operator take any afterhours and weekends orders,
and hold those orders until the Shipping Clerk comes
on duty for dispatching—6 AM the next morning, or 6
AM Monday if over the weekend—there will be no
need to phone a Shipping Clerk afterhours.
You may remind the customer that the order will be
held for the Shipping Clerk and that no bill-of-lading
will be available for loading until the Shipping Clerk
comes on duty the next day.
As is always the case, there may be extenuating cir-
cumstances where a customer feels he has an emergent
need to have an order dispatched at times other than
our stated times above, and in that case, please call me,
or in my absence, Dale Fuzzell, and we will make the
necessary arrangements to handle the problem.
667BLUE CIRCLE CEMENT CO.
The clerical employees learned of the new procedure when
Forrest, a console operator, and St. John, an office clerical,
saw copies of the memorandum. Management did not notify
the Union and Benson conceded in his testimony that he did
not inform the Union of his decision to bypass the shipping
clerks in the call-out functions.
The General Counsel and the Union argue that the new
procedure was a change in policy affecting the overtime
hours and pay of unit employees and that the Respondent
had a duty to bargain.
The Respondent argues that the Company had used the
same procedure in the past, that it reverted to the usual pro-
cedure in December after the allocation procedure was no
longer required, and that the procedure was consistent with
past practice.
To be sure, the record shows that the shipping clerks, as
most employees, were adversely impacted by the change in
procedure. Their overtime earnings derived from the call-out
procedure ranged from $1200 to $1500 per year. The Re-
spondent suspended the practice effective June 1994 until
December 13, 1994, when there were fewer calls, because
customers would become aware that the Company would not
fill orders after hours which had not been allocated. Never-
theless, I cannot accept Respondent’s argument, and the
record does not support, the notion that the issue is de mini-
mis. The question then is whether the Respondent’s past
practice was consistent with the unilateral suspension of the
call-out procedure. The testimony in this regard appears con-
flicting. St. John who prior to his job as a lab technician
worked as an office clerical or shipping clerk for about 14
or 15 years, testified that the Company has experienced a
shutdown virtually every year requiring allocation and a seri-
ous allocation ‘‘during the early 80s.’’ Yet the call-out pro-
cedure was not changed during those times (Tr. 158–160).
Adams, testified that to the best of his knowledge the Re-
spondent had always followed the call-out procedure even in
times of allocation (Tr. 65–66). Adams conceded, however,
that he did not have any personal knowledge about the call-
out procedure in times of allocation, and he was somewhat
unsure about the Company’s practice (Tr. 124–126). Benson,
on the other hand, testified that the Company’s practice has
been consistent and at times of a serious allocation, the last
time being in 1978 and 1979, it similarly bypassed the ship-
ping clerks (Tr. 291–292). According to Benson, the Com-
pany experienced a full scale allocation only once before in
his memory (Tr. 298). While he stated that the Company by-
passed the shipping clerk’s role at that time, the record does
not indicate to what extent, if at all, the Union consented or
acquiesced in that procedure in 1979. But is clear that the
Company had not changed the call our procedure since then.
This supports the testimony of St. John and Adams that they
had never witnessed the Company’s unilateral change in this
regard, presumably because their experience did not date as
far back as 1979.
In sum, the record shows that the Respondent did not
change the call-out procedure at any time during the past 15
years even though the Company’s inventory has been low
from time to time. Even if the Company did not have a full
blown allocation since then as Benson’s testimony would in-
dicate, I cannot accept Respondent’s argument that the one
time occurrence in 1978 or 1979 is sufficient to indicate a
past practice. This is particularly so, because the record does
not support a finding that the Union had acquiesced at that
time or more importantly, indicate a waiver in unequivocal
and unmistaken language. Because the Respondent conceded,
certainly during Benson’s testimony, that it had not notified
the Union of the change in the call-out procedure, I find that
the Respondent’s failure in this regard violated Section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent Blue Circle Cement Company, Inc. is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. United Cement, Lime, Gypsum & Allied Workers Divi-
sion, International Brotherhood of Boilermakers, Iron Ship-
builders, Forgers & Helpers, AFL–CIO and Local D421, re-
spectively, are labor organizations within the meaning of
Section 2(5) of the Act.
3. At all times material to these cases, the Union has been
the exclusive collective-bargaining representative of the fol-
lowing appropriate unit:
All production and maintenance employees employed at
the Respondent’s Tulsa, Oklahoma plant, but excluding
plant executives, professional engineers, machine shop
foremen, oiling supervisor, electrical foreman, instru-
mentation engineer, guards, watchmen, and supervisors
as defined in the National Labor Relations Act, as
amended.
4. By unilaterally changing the wages, hours, and other
terms and conditions of employment of its bargaining unit
employees, and by changing the work schedules from fixed
shifts to rotating shifts of its unit employees and by changing
the call-out procedures of its unit employees, without prior
notice to the Union and without affording the Union an op-
portunity to bargain, Respondent has violated Section 8(a)(5)
and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent must be
ordered to rescind its unilateral actions of changing the work
schedules and the call-out procedures of its unit employees.
The Respondent must be ordered to give notice to the Union
and provide it with the opportunity to bargain in any future
changes in the unit employees’ working conditions. Finally,
the Respondent must be ordered to make the shipping clerks
whole for their lost overtime pay as a result of the unilateral
changes in the call-out procedure.
Backpay for lost earnings resulting from Respondent’s uni-
lateral changes shall be computed as described in Ogle Pro-
tection Service, 183 NLRB 682, 683 (1970). Interest for
backpay and reimbursements shall be computed as described
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]