Columbia Portland Cement Co.

National Labor Relations Board - Board Decisions

Jul 25, 1991

303 N.L.R.B. 880 (N.L.R.B. 1991)

880
303 NLRB No. 133
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The amended complaint also alleges that the Respondent violated Sec.
8(a)(2) by rendering assistance and support to another labor organization
known as the Plant Committee. On December 14, 1989, the Union requested
the withdrawal of those allegations, and the parties do not seek any findings
concerning them.
2 All dates are 1988 unless otherwise indicated.
3 Columbia Portland Cement Co., 294 NLRB 410 (1989), enfd. in relevant
part 915 F.2d 253 (6th Cir. 1990), rehearing denied (1991).
4 The offer listed the names of 75 strikers, of whom only 62 are at issue
in this proceeding.
Columbia Portland Cement Company and Local
Lodge D24 of the Cement, Lime, Gypsum &
Allied Workers Division of the International
Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers,
AFL–CIO, CLC. Cases 8–CA–20252, 8–CA–
21398, and 8–CA–21593
July 25, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by Boilermakers Local Lodge
D24, the Union, the General Counsel of the National
Labor Relations Board issued an amended consolidated
complaint and notice of hearing dated April 27, 1989.
The amended complaint alleges that the Respondent
engaged in certain unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act by failing and refusing to reinstate
employees who had participated in a protected strike;
by withdrawing recognition from the Union as the ex-
clusive representative of bargaining unit employees; by
making changes in terms and conditions of employ-
ment without providing the Union notice and an op-
portunity to bargain; and by dealing directly with em-
ployees regarding these changes.1
On January 12, 1990, the parties jointly filed a mo-
tion to transfer the proceeding to the Board and a stip-
ulation of facts. The parties waived a hearing before
an administrative law judge, the making of findings of
fact and conclusions of law by an administrative law
judge, and the issuance of an administrative law
judge’s decision and recommended Order. The parties
agreed that the stipulation, with attached exhibits, in-
cluding, inter alia, the initial and amended charges, the
complaint and notice of hearing, and the answer, shall
constitute the entire record in this case and that no oral
testimony is necessary or desired by any of the parties.
On May 17, 1990, the Board issued its Order ap-
proving the stipulation and transferring the proceeding
to the Board. Thereafter, the General Counsel and the
Respondent filed briefs in support of their respective
positions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the stipulation, the briefs,
and the entire record in this proceeding and makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation with an of-
fice and place of business in Zanesville, Ohio, has at
all material times been engaged in the operation of a
cement making plant. Annually, the Respondent, in the
course and conduct of its business operations, pur-
chases and receives at its Zanesville, Ohio facility
products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Ohio.
The parties stipulated, and we find, that the Respond-
ent is now, and has been at all times material, an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The parties stipulated, and we find, that the Union
is now, and has been at all material times, a labor or-
ganization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Since at least September 1, 1984, the Union has
been the exclusive collective-bargaining representative
of the production and maintenance employees em-
ployed at the Respondent’s Zanesville facility. On Oc-
tober 28, 1984, following a valid impasse in contract
negotiations between the Respondent and the Union,
the Respondent implemented the terms of its last con-
tract offer. From that date until July 12, 1988,2 there
were no changes made in those terms of employment.
On June 18, 1985, certain employees of the Re-
spondent ceased work concertedly and engaged in a
strike that was found by the Board to be an unfair
labor practice strike.3 On April 29, 1987, the Union
made an offer to return to work on behalf of employ-
ees who had engaged in the strike.4 By letter dated
May 7, 1987, the Respondent failed and refused to re-
instate these employees, contending that they either
had been lawfully terminated or were permanently re-
placed economic strikers who would be kept on a list
for future vacancies. On April 20, the Respondent of-
fered reinstatement without backpay to the employees
named in the complaint. Pursuant to this offer, ap-
proximately 33 of the striking employees returned to
work on May 2. Apart from this reinstatement offer,
the Respondent has taken no other action to comply
with the terms of the Board’s Order in the earlier un-
fair labor practice proceeding.
On May 6, Union Representative William Smith as-
serted by letter to the Respondent’s counsel that the
881COLUMBIA PORTLAND CEMENT CO.
employee handbook given to returning employees con-
tained working conditions different from the terms of
the Respondent’s implemented proposal of October 11,
1984. Smith demanded that any such changes be nego-
tiated with the Union. Counsel for the Respondent re-
plied on May 16 that no changes in working conditions
had been effected.
On July 12, the Respondent, by letter, withdrew rec-
ognition from the Union. In its letter, the Respondent
cited as the bases for its decision a petition signed by
employees indicating that they did not wish to be rep-
resented by the Union, a lack of contact with union
representatives during the previous 4 months and a
lack of information as to the current union officers and
stewards, and a very high rate of turnover, with no evi-
dence that employees hired since the beginning of the
strike desired representation by the Union. By letter
dated July 27, the Union asserted that it remained the
representative of the bargaining unit employees and
challenged the validity of the petition relied on by the
Respondent. The Union and the General Counsel do
not dispute that on July 8, prior to its withdrawal of
recognition, the Respondent received a petition signed
by 81 of its employees and that based on a comparison
with other records the Respondent reasonably satisfied
itself that the signatures were genuine and that all sig-
natories were employees within the bargaining unit. As
of July 12, when the Respondent withdrew recognition
from the Union, returning strikers made up only 20 of
161 bargaining unit employees.
About June 17, unit employee Darrell Thomas filed
a grievance with the Respondent concerning the job in
which he was placed on his return from the strike. The
grievance was denied by the Respondent and arbitra-
tion was requested about June 28. In letters addressed
to Thomas directly, dated July 19 and August 16, re-
spectively, the Respondent provided a list of arbitrators
and forwarded a letter from the selected arbitrator. In
the second letter, the Respondent notified Thomas that
he must pay the arbitrator a retainer of $100 and that
he might bring a representative to the arbitration pro-
ceeding. The Respondent noted that it no longer recog-
nized the Union as the representative of unit employ-
ees ‘‘due to its loss of majority status within the bar-
gaining unit.’’ Thomas did not respond to the Re-
spondent’s August 16 letter or to the arbitrator’s letter
of August 25, in which the arbitrator stated that he was
closing the file because he had not received the re-
tainer or an authorization letter from Thomas. In a let-
ter dated August 29, Union Representative Smith stat-
ed that in an August 22 telephone conversation he had
informed the Respondent of the Union’s belief that the
Respondent had acted improperly in processing Thom-
as’ grievance without union representation. The letter
further requested that Thomas’ grievance be reinstated
and that the Union be recognized in the complaint pro-
cedure in the future.
About September 21, 1988, the Respondent granted
all employees in the unit a wage increase of 20 cents
an hour, established a retirement savings or 401(k)
plan, and terminated the existing retirement benefit
plan, which was originally created in 1984 under the
proposal implemented by the Respondent. The Re-
spondent announced the changes directly to unit em-
ployees. The parties stipulated that these subjects, as
well as the processing of Thomas’ grievance, relate to
wages, hours, and other terms and conditions of em-
ployment and are mandatory subjects for the purposes
of collective bargaining. The Respondent’s actions
with respect to the grievance and the changes in work-
ing conditions were undertaken without prior notice to
the Union and without having afforded the Union an
opportunity to negotiate and bargain as the exclusive
representative of the Respondent’s employees.
B. Contentions of the Parties
The General Counsel contends that the Respondent’s
failure and refusal to reinstate the 62 named employees
following the offer to return to work made by the
Union on their behalf violated Section 8(a)(1) and (3)
of the Act, and that this violation is not negated by the
Respondent’s offer of reinstatement approximately 1
year later. The General Counsel further argues that the
Respondent’s withdrawal of recognition from the
Union constituted a violation of Section 8(a)(1) and
(5), because the grounds specified by the Respondent
to justify its action did not provide a good-faith doubt
based on objective criteria as to the Union’s continued
majority status. Finally, the General Counsel asserts
that the Respondent violated Section 8(a)(1) and (5) by
granting the September 21 wage increase, replacing the
current pension plan with the 401(k) plan, and attempt-
ing to require Thomas to pay half of the costs of pro-
ceeding with his arbitration.
The Respondent contends that it was not obligated
to reinstate the former strikers after receiving the
Union’s offer to return to work because the employees
were economic rather than unfair labor practice strikers
and because the Union’s offer was not unconditional.
The Respondent also contends that it lawfully with-
drew recognition from the Union based on the em-
ployee petition received on July 8, 80-percent em-
ployee turnover, and the lack of activity by the Union.
The Respondent argues that the unfair labor practices
found in the Board’s earlier decision had no effect on
the Union’s loss of majority status. With respect to the
unilateral changes in wages and benefits, the Respond-
ent contends that the charge filed by the Union ad-
dressed only the change in pension plans and not the
wage increase. The Respondent concedes that if it is
found to have unlawfully withdrawn recognition the
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
change in pension plans may also be unlawful. The
Respondent argues, however, that the portion of the
complaint pertaining to the arbitration fees for Thom-
as’ grievance should be dismissed because no charge
was filed by the Union addressing this allegation.
C. Discussion
1. Considering first the allegation that the Respond-
ent unlawfully failed and refused to reinstate the em-
ployees who had participated in the June 18, 1985
strike, we note that the Board has previously deter-
mined, and the Sixth Circuit has affirmed, that the
strike was an unfair labor practice strike. Therefore, we
reject the Respondent’s contention that the employees
were economic strikers. As unfair labor practice strik-
ers, the employees were entitled to immediate rein-
statement on their unconditional offer to return to
work. NLRB v. Mackay Radio & Telegraph Co., 304
U.S. 333 (1938).
The Respondent argues that the Union’s April 29,
1987 offer on the strikers’ behalf to return to work was
not unconditional. Specifically, the Respondent asserts
that the Union’s letter included the names of lawfully
terminated employees and therefore conditioned the re-
turn of eligible strikers on the reinstatement of ineli-
gible employees. We find no merit in the Respondent’s
contention. The letter sent to the Respondent by the
Union stated, ‘‘The employees of Columbia Portland
Cement (SME), whose names appear on the attached
list, unconditionally offer to return to work imme-
diately.’’ Thus, by its own terms, the offer was uncon-
ditional. Further, the inclusion of the names of employ-
ees who were lawfully terminated by the Respondent
did not render the offer conditional as to the employ-
ees who were eligible for reinstatement. Where rein-
statement offers are made on behalf of ‘‘all striking
employees’’ or lists of employees, the Board does not
infer that the reinstatement of one is conditional on the
reinstatement of all. Home Insulation Service, 255
NLRB 311, 312 at fn. 8 (1981). We therefore find that
following the April 29, 1987 unconditional offer to re-
turn to work the Respondent was obligated to reinstate
the 62 striking employees named in the complaint,
none of whom were lawfully terminated by the Re-
spondent, and that its failure and refusal to reinstate
these employees violated Section 8(a)(3) and (1) of the
Act.
2. With respect to the Respondent’s withdrawal of
recognition from the Union, it is well established that
an incumbent union is afforded a presumption of con-
tinued majority status, which an employer may rebut
by showing a good-faith doubt based on objective con-
siderations. Laystrom Mfg., 151 NLRB 1482 (1965),
enf. denied 359 F.2d 799 (7th Cir. 1966); Burger Pits,
Inc., 273 NLRB 1001 (1984), enfd. sub nom. Hotel &
Restaurant Employees Local 19 v. NLRB, 785 F.2d
796 (9th Cir. 1986). An employer may not assert a
good-faith doubt as to majority status in a context
where employee defections are attributable to
unremedied unfair labor practices. Walker Mfg. Co.,
288 NLRB 888 (1988); Chesapeake Plywood, 294
NLRB 201 (1989). As noted above, the Respondent ar-
gues that its withdrawal of recognition was justified by
the petition signed by 81 of 161 employees, a high rate
of employee turnover, and an asserted lack of contact
by the Union.
The General Counsel contends that the employee pe-
tition may not be relied on as a basis for good-faith
doubt because it was tainted by the Respondent’s pre-
vious unfair labor practices, which had not been rem-
edied. We find merit in the General Counsel’s position.
The Board found in its earlier decision that the Re-
spondent had committed numerous serious unfair labor
practices, including, inter alia, discharging or sus-
pending approximately 15 employees for having par-
ticipated in an unfair labor practice strike; refusing to
bargain with the Union by refusing to process griev-
ances under the appropriate procedure and by restrict-
ing the employees’ choice of grievance representatives;
and conducting investigatory interviews with employ-
ees after having denied their requests for union rep-
resentation. The Board ordered the Respondent to
make whole the unlawfully discharged or suspended
employees and to offer reinstatement to those who
were discharged; to reinstate the remaining unfair labor
practice strikers on their unconditional offer to return
to work; to process employee grievances in accordance
with the applicable grievance procedures; to recognize
the employees’ chosen grievance representatives; and
to post a Board notice at its plant. Furthermore, as dis-
cussed above, we have found that the Respondent un-
lawfully refused to reinstate the former strikers after
the Union’s April 29, 1987 unconditional offer on their
behalf.
As of the time of the withdrawal of recognition, ex-
cept for the April 20 reinstatement offer, the Respond-
ent had taken no steps to comply with the Board’s ear-
lier Order. In response to the reinstatement offer, 33
employees returned to work, of whom only 20 re-
mained employed at the time the Respondent withdrew
recognition from the Union. We do not accept the Re-
spondent’s argument that its unfair labor practices af-
fected only these 20 employees and therefore had no
impact on the Union’s loss of majority status. Rather,
we are persuaded that unremedied unfair labor prac-
tices of the extent and seriousness described above are
likely to have undermined the Union’s authority gen-
erally and influenced the Respondent’s employees to
reject the Union as their bargaining representative. See
Guerdon Industries, 218 NLRB 658, 661–662 (1975).
We note that any uncertainty in this regard must be re-
solved against the Respondent, which is responsible for
883COLUMBIA PORTLAND CEMENT CO.
5 This case is clearly distinguishable from Master Slack Corp., 271 NLRB
78 (1984), relied on by the Respondent. In Master Slack the Board found that
the employer appropriately withdrew recognition from the union on the basis
of an employee petition, notwithstanding the employer’s continuing litigation
of the scope of its backpay liability based on prior unfair labor practices. In
that case, however, the Board noted that the unfair labor practices had oc-
curred many years before the withdrawal of recognition; that the employer had
complied with the Board’s order in many significant respects by bargaining
in good faith, executing an agreement with the union, offering reinstatement
to all eligible employees, and posting a Board notice.
the unlawful conduct and which has an affirmative ob-
ligation to demonstrate its good-faith doubt. Walker
Mfg., supra. Therefore, we find that the employee peti-
tion may not serve as a basis for the Respondent’s as-
serted good-faith doubt of the Union’s majority status.5
We further find that the Respondent is precluded
from relying on employee turnover as a basis for a
good-faith doubt of majority status. We note initially
that the Respondent’s unfair labor practices and its
failure to remedy them, particularly by failing to rein-
state the unlawfully discharged employees and to ac-
cept the unfair labor practice strikers’ offer to return
to work, must be considered to have had a substantial
effect on the composition of the bargaining unit. In
view of the Board’s previous finding that the strike
was an unfair labor practice strike, we find that the
hiring of new employees as striker replacements would
have been unnecessary but for the strike occasioned by
the Respondent’s own unlawful conduct. In addition, if
the Respondent had accepted the April 29, 1987 offer
to return to work, a larger number of strikers might
have been employed by the Respondent at the time of
the withdrawal of recognition approximately 1 year
later.
Moreover, were the above factors absent, we note
the Board will not presume that the striker replace-
ments employed by the Respondent, simply by virtue
of having crossed the picket line, repudiate the Union
as their collective-bargaining representative. See NLRB
v. Curtin Matheson Scientific, 110 S.Ct. 1542 (1990).
More reliable evidence of the desires of replacement
workers must be presented. In this case, even assuming
that the petition signed by employees accurately ex-
pressed their sentiment regarding the Union, we have
concluded that the petition was tainted by the Re-
spondent’s unfair labor practices. Under these cir-
cumstances, we find that the turnover among the unit
employees is not an objective consideration justifying
a good-faith doubt as to the Union’s majority status.
The Respondent also cites a lack of contact by the
Union as evidence of a loss of majority support. In this
regard, the letter from the Respondent to the Union
withdrawing recognition states that the Respondent had
had no contact with representatives of the Local Union
in approximately 4 months and that it did not know
who the officers and stewards were. We find, however,
that International Representative William A. Smith had
corresponded with the Respondent’s counsel as re-
cently as May 6, approximately 2 months before the
withdrawal of recognition. In that letter, Smith alleged
that the Respondent had made changes in the working
conditions established by the October 1984 imple-
mented proposal, asserted that the Local Union re-
mained the employees’ exclusive bargaining represent-
ative, and demanded that any changes in conditions be
negotiated with the Local Union. In its brief, the Re-
spondent argues that this correspondence represents
merely a complaint by the International representative
and does not demonstrate activity by the Local Union.
We do not find the Respondent’s distinction persua-
sive. Although the letter originated from the Inter-
national representative, it is clear that it was sent on
behalf of the Local Union and that its purpose was to
emphasize the continuing role of that Union as the rep-
resentative of the Respondent’s employees. We find
that the letter thus demonstrates the Local Union’s
readiness to carry out its representative functions.
In addition, although the evidence does not show
that the Respondent was aware of the Union’s current
slate of officers and stewards, we note that Smith’s let-
ter indicates that a copy was directed to ‘‘LL-D24
Pres. M. Fisher.’’ We find that this notation would rea-
sonably be interpreted as identifying Michael Fisher–
-one of the strikers unlawfully discharged by the Re-
spondent and the Union’s vice president at the time of
the hearing concerning the Respondent’s previous un-
fair labor practices–-as the current union president.
Therefore, we conclude that the Respondent’s asserted
lack of contact with the Union and lack of knowledge
as to the identity of current officers and stewards fails
as a valid basis for a good-faith doubt of the Union’s
majority status.
For the reasons discussed above, we conclude that
the Respondent lacked a good-faith doubt based on ob-
jective considerations with respect to the Union’s con-
tinued support by a majority of bargaining unit em-
ployees. Therefore, we find that the Respondent’s July
12 withdrawal of recognition from the Union violated
Section 8(a)(5) and (1) of the Act.
3. The complaint further alleges that following its
withdrawal of recognition from the Union, the Re-
spondent also violated Section 8(a)(5) and (1) by mak-
ing unilateral changes in working conditions and by
dealing directly with bargaining unit employees con-
cerning these changes. The parties stipulated that about
September 21 the Respondent granted employees a
wage increase of 20 cents per hour and replaced the
retirement benefit plan provided in the Respondent’s
October 1984 implemented proposal with a retirement
savings or 401(k) plan. In addition, with respect to the
General Counsel’s allegation that the Respondent
failed to bargain with the Union when it required em-
ployee Thomas to pay one-half of the cost of arbitrat-
ing his grievance, the stipulated record includes a letter
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The October 1984 implemented proposal stated with respect to arbitration
fees: ‘‘The Company and the Union shall split the cost of the arbitrator’s fee,
court reporter fee and any other expenses related to the hearing held for the
grievance.’’
7 Although the Respondent does not specifically so contend, the logic of its
argument in this regard, such as it is, would seem to apply equally to the wage
increase.
dated August 16 from the Respondent directly to
Thomas informing him that the arbitrator required a re-
tainer of $100 from each of the parties and instructing
him to submit a check for that amount to the arbitrator.
When Thomas failed to respond to the letter by sub-
mitting the required payment, the arbitrator closed the
file regarding Thomas’ grievance.6 The stipulated facts
reveal that the Respondent implemented the above
changes in wages, retirement benefits, and grievance
processing without prior notice to the Union and with-
out affording the Union an opportunity to bargain, and
that the changes in wages and benefits were announced
directly to bargaining unit employees.
The Respondent acknowledges that if the withdrawal
of recognition was unlawful the change in benefits
may also constitute a violation, but states that the
Union’s charge alleging the unilateral change in pen-
sion benefits did not mention the wage increase, and
that no charge was filed pertaining to Thomas’ griev-
ance. From this, the Respondent argues that the com-
plaint allegation regarding the imposition of a require-
ment that the employee bear part of the cost of arbi-
trating his grievance should be dismissed.7 We find no
merit to the Respondent’s position.
The Respondent’s contention might be construed as
equivalent to an argument that the allegations regard-
ing the unilateral changes in wages and in provisions
concerning access to arbitration should be dismissed
pursuant to Section 10(b) of the Act because they were
not the subjects of a timely filed charge. It is well set-
tled, however, that Section 10(b) constitutes an affirm-
ative defense, and as such must be pleaded and proven
by the Respondent. The Respondent does not mention
Section 10(b) specifically, or the matter of timeliness
generally, in either its answer to the complaint or its
brief, and as a result we find that the Respondent has
waived that defense.
Even were we to find that the Respondent had not
waived the 10(b) defense, however, we still would find
that that defense lacked merit. The General Counsel is
permitted to add complaint allegations outside the 6-
month 10(b) period if they are closely related to the
allegations of a timely filed charge, and are based on
conduct that occurred within 6 months of the filing of
that charge. Redd-I, Inc., 290 NLRB 1115 (1988). The
allegations concerning the unilateral changes in wages
and access to arbitration meet that test. The wage in-
crease took place on or about September 21, 1988; the
Union filed its charge alleging unlawful unilateral
changes in terms and conditions of employment (the
Respondent’s change in retirement benefits) on Feb-
ruary 21, 1989, and served it on the Respondent on
February 22, 1989, 5 months after the wage increase
was granted. The Respondent’s letter to Thomas, in-
forming him that he would have to pay half the cost
of arbitrating his grievance, was dated August 16,
1988; the Union’s charge alleging unlawful direct deal-
ing with employees was filed November 16, 1988,
only 3 months later, and served the next day. Thus,
both of the complaint allegations at issue are based on
conduct that occurred less than 6 months before the fil-
ing and service of timely charges.
We further find that the two allegations are ‘‘closely
related’’ to the allegations of the timely filed charges,
as that term is explained in Redd-I. The September
wage increase and the change in retirement benefits
mentioned in the February charge are both alleged to
be unlawful unilateral changes in terms and conditions
of employment occurring on the same day. They thus
involved the same class of violation (unilateral
changes) and the same section of the Act (8(a)(5));
they involved similar conduct during the same time pe-
riod; and the Respondent would be expected to raise
similar defenses to both. And the allegation that the
Respondent unilaterally changed terms and conditions
of employment in August by requiring Thomas to pay
half the cost of arbitrating his grievance is, a fortiori,
closely related to the allegation in the November
change that the Respondent engaged in direct dealing
with employees, because the conduct regarding Thom-
as’ grievance is alleged to have violated Section
8(a)(5) on both theories. Indeed, direct dealing and
making unilateral changes in terms and conditions of
employment may be aptly considered part and parcel
of the Respondent’s overall pattern of unlawful con-
duct, namely, ignoring the Union with which it was
statutorily required to deal as the exclusive representa-
tive of its bargaining unit employees (see Nickles Bak-
ery of Indiana, 296 NLRB 927, 928 fn. 7 (1989)); the
charges and complaint allegations are ‘‘closely re-
lated’’ for that reason as well.
The parties stipulated that the changes instituted by
the Respondent relate to mandatory subjects of bar-
gaining, that the Union was not given notice and an
opportunity to bargain concerning the changes, and
that the changes in wages and pension benefits were
announced directly to employees. The record also re-
veals that the requirement to pay half of the arbitration
costs was conveyed to Thomas directly. Based on
these facts, we find that by instituting the changes in
wages, pension benefits, and the grievance-arbitration
procedure after having unlawfully withdrawn recogni-
tion from the Union, and by dealing directly with em-
ployees concerning these changes, the Respondent vio-
lated Section 8(a)(5) and (1). Parkview Furniture Mfg.,
284 NLRB 947 (1987).
885COLUMBIA PORTLAND CEMENT CO.
8 In other circumstances the Board has found that backpay for returning un-
fair labor practice strikers should commence 5 days after their unconditional
offer to return to work, as a reasonable accommodation between the interests
of the employees in returning to work as soon as possible and the employer’s
need to ensure an orderly return. The Board has also found, however, that
when a respondent has rejected, unduly delayed, or ignored an unconditional
offer to return to work, as the Respondent has in this case, the 5-day period
serves no useful purpose and backpay should commence as of the date of the
unconditional offer to return to work. Northern Wire Corp., 291 NLRB 727
fn. 5 (1988).
CONCLUSIONS OF LAW
1. Respondent Columbia Portland Cement Company
is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. Local Lodge D24 of the Cement, Lime, Gypsum
& Allied Workers Division of the International Broth-
erhood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers and Helpers, AFL–CIO, CLC is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees em-
ployed at the Respondent’s Zanesville, Ohio facility,
excluding all office clerical employees and profes-
sional employees, guards and supervisors as defined in
the Act constitute a unit appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times material the Union has been the ex-
clusive representative of all unit employees for the pur-
pose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By failing and refusing to reinstate unfair labor
practice strikers on the unconditional offer to return to
work made by the Union on their behalf on April 29,
1987, the Respondent violated Section 8(a)(3) and (1).
6. By withdrawing recognition from the Union, the
Respondent violated Section 8(a)(5) and (1).
7. By unilaterally terminating the existing retirement
benefits plan, instituting a new pension plan, granting
a wage increase, and requiring an employee to pay half
of the cost of arbitrating his grievance, and by bypass-
ing the Union and dealing directly with employees
concerning these changes in their working conditions,
the Respondent violated Section 8(a)(5) and (1).
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and that it take certain af-
firmative action to effectuate the policies of the Act.
We shall order the Respondent to make the striking
employees whole for any loss of earnings they may
have suffered by reason of the Respondent’s unlawful
failure or refusal to reinstate them on the Union’s un-
conditional offer to return to work on their behalf, by
payment to each of them of a sum of money equal to
that which they normally would have earned during the
period from April 29, 1987, the date of the Union’s
unconditional offer, to April 20, 1988, the date of the
Respondent’s offer of reinstatement.8 Backpay shall be
computed in accordance with the method prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). We
shall also order that the Respondent recognize and bar-
gain collectively with the Union as the exclusive rep-
resentative of bargaining unit employees. The Re-
spondent is also ordered to resume processing of em-
ployee Thomas’ grievance at the arbitration level in ac-
cordance with the terms of the October 1984 imple-
mented proposal and to deal only with the Union on
matters concerning the payment of arbitration ex-
penses. Finally, we shall order the Respondent, on re-
quest by the Union, to rescind any unilateral changes
it made in wages and pension benefits; however, our
Order should not be construed as requiring the Re-
spondent to cancel any wage increase or other im-
provement in benefits without a request from the
Union. See, e.g., Elias Mallouk Realty Corp., 265
NLRB 1225 fn. 3 (1982).
ORDER
The National Labor Relations Board orders that the
Respondent, Columbia Portland Cement Company,
Zanesville, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to reinstate unfair labor
practice strikers on their unconditional offer to return
to work.
(b) Withdrawing recognition from Local Lodge D24
of the Cement, Lime, Gypsum & Allied Workers Divi-
sion of the International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers and Helpers,
AFL–CIO, CLC as the exclusive collective-bargaining
representative of production and maintenance employ-
ees at its Zanesville, Ohio facility, unless it can dem-
onstrate by convincing objective evidence that the
Union no longer represents a majority of the employ-
ees in that bargaining unit or that the Respondent has
a reasonably grounded good-faith doubt that the Union
no longer represents a majority of the bargaining unit.
(c) Unilaterally terminating the existing retirement
benefits plan, instituting a new pension plan, granting
a wage increase, and requiring an employee to pay half
of the cost of arbitrating his grievance, or unilaterally
making any other changes in the terms and conditions
of employment for bargaining unit employees without
notifying or bargaining with the Union.
(d) Bypassing the Union and dealing directly with
employees concerning changes in their terms and con-
ditions of employment.
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(e) In any like or related manner interfering with, re-
straining, or coercing its 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) Make whole the striking employees whose
names are listed below for any loss of earnings they
may have suffered by reason of the Respondent’s un-
lawful failure and refusal to reinstate them on the un-
conditional offer to return to work made by the Union
on their behalf, by payment to each of them of a sum
of money equal to that which they normally would
have earned during the period from April 29, 1987, the
date of the Union’s unconditional offer, to April 20,
1988, the date of the Respondent’s offer of reinstate-
ment, with interest, in the manner set forth in the rem-
edy section of this decision.
Michael Fisher Ray Kimble
Stephen Folden Joseph Knaup
Donald Dalrymple Tom McGee
Howard Price Darrell Thomas
Donald Farus Charles Schaeffer
Terry Frame Allen Woodard
Sheila Lanning Ervin Norris
Larry Jarvis Wilbur Gilbert
Marvin Baker Jr. Paul Fisher
Jack Lowry Ronald German
Jimmy Hughes David Morris
Mark Jellison Alan Baker
Joseph Stoneburner Richard Pettit
Terry Smith Clarence Coen
Mark Lynsky James Wofter
Keith Luzzader Milton Merew
George Williams Larry Tyo
Roger Fletcher Floyd Mason
Frederick Fracker Mark Baughman
Richard Doty Franklin Norris
J. S. Miracle Gary Price
Craig Brannon John Morris
Steve Patterson Michael Corbett
Perry Porter James Harding
Warren Wapole Dough Smith
Homer Searls Ron Downey
Gary Ferguson Russell Barrett
Brad Dalrymple Larry Sprangler
Gene Swingle James Morton
Lonnie Porter Rodney Dickerson
John Smith James Dalrymple
(b) Recognize and bargain collectively and in good
faith with Local Lodge D24 of the Cement, Lime,
Gypsum & Allied Workers Division of the Inter-
national Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL–CIO,
CLC as the exclusive collective-bargaining representa-
tive of its production and maintenance employees em-
ployed at its Zanesville, Ohio facility.
(c) On request, rescind the new pension plan and the
wage increase implemented unilaterally without noti-
fying and bargaining with the Union.
(d) Resume processing the grievance of employee
Darrell Thomas at the arbitration level in accordance
with the terms of the October 1984 implemented pro-
posal, and deal only with the Union on matters con-
cerning the payment of arbitration expenses.
(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 Zanesville, Ohio facility copies of the
attached notice marked ‘‘Appendix.’’9 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent’s au-
thorized 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.
WE WILL NOT fail and refuse to reinstate unfair
labor practice strikers on their unconditional offer to
return to work.
WE WILL NOT withdraw recognition from Local
Lodge D24 of the Cement, Lime, Gypsum & Allied
Workers Division of the International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers
and Helpers, AFL–CIO, CLC as the exclusive collec-
tive-bargaining representative of production and main-
tenance employees at our Zanesville, Ohio facility, un-
less we can demonstrate by convincing objective evi-
dence that the Union no longer represents a majority
of the employees in that bargaining unit or that we
887COLUMBIA PORTLAND CEMENT CO.
have a reasonably grounded good-faith doubt that the
Union no longer represents a majority of the bar-
gaining unit.
WE WILL NOT unilaterally terminate the existing re-
tirement benefits plan, institute a new pension plan,
grant a wage increase, and require an employee to pay
half of the cost of arbitrating his grievance, or unilater-
ally make any other changes in the terms and condi-
tions of employment for bargaining unit employees
without notifying or bargaining with the Union.
WE WILL NOT bypass the Union and deal directly
with employees concerning changes in their terms and
conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole the striking employees whose
names are listed below for any loss of earnings they
may have suffered by reason of our unlawful failure
and refusal to reinstate them on the unconditional offer
to return to work made by the Union on their behalf,
by payment to each of them of a sum of money equal
to that which they normally would have earned during
the period from April 29, 1987, the date of the Union’s
unconditional offer, to April 20, 1988, the date of the
Respondent’s offer of reinstatement, with interest.
Michael Fisher Ray Kimble
Stephen Folden Joseph Knaup
Donald Dalrymple Tom McGee
Howard Price Darrell Thomas
Donald Farus Charles Schaeffer
Terry Frame Allen Woodard
Sheila Lanning Ervin Norris
Larry Jarvis Wilbur Gilbert
Marvin Baker Jr. Paul Fisher
Jack Lowry Ronald German
Jimmy Hughes David Morris
Mark Jellison Alan Baker
Joseph Stoneburner Richard Pettit
Terry Smith Clarence Coen
Mark Lynsky James Wofter
Keith Luzzader Milton Merew
George Williams Larry Tyo
Roger Fletcher Floyd Mason
Frederick Fracker Mark Baughman
Richard Doty Franklin Norris
J. S. Miracle Gary Price
Craig Brannon John Morris
Steve Patterson Michael Corbett
Perry Porter James Harding
Warren Wapole Dough Smith
Homer Searls Ron Downey
Gary Ferguson Russell Barrett
Brad Dalrymple Larry Sprangler
Gene Swingle James Morton
Lonnie Porter Rodney Dickerson
John Smith James Dalrymple
WE WILL recognize and bargain collectively and in
good faith with Local Lodge D24 of the Cement,
Lime, Gypsum & Allied Workers Division of the
International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL–CIO,
CLC as the exclusive collective-bargaining representa-
tive of the production and maintenance employees em-
ployed at our Zanesville, Ohio facility.
WE WILL, on request, rescind the new pension plan
and the wage increase implemented unilaterally with-
out notifying and bargaining with the Union.
WE WILL resume processing the grievance of em-
ployee Darrell Thomas at the arbitration level in ac-
cordance with the terms of the October 1984 imple-
mented proposal, and deal only with the Union on
matters concerning the payment of arbitration ex-
penses.
COLUMBIA PORTLAND CEMENT COMPANY