Missouri Portland Cement Co.

National Labor Relations Board - Board Decisions

Jun 22, 1987

284 N.L.R.B. 432 (N.L.R.B. 1987)

432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Missouri Portland Cement Company and Local 438,
United Cement, Lime, Gypsum and Allied
Workers International Union, Division of Inter-
national Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers & Helpers
AFL-CIO-CLC. Cases 14-CA-17579 and 14-
CA-178l2
22 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 May 1986 Administrative Law Judge
Richard L. Denison issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, fmdings, and
conclusions only to the extent consistent with this
Decision and Order.
The pertinent facts are not in dispute. The Re-
spondent manufactures and distributes cement and
related products and has had a collective-bargain-
ing relationship with the Union since 1963. The
most recent contract expired on 1 May 1984. 1 Ne-
gotiations to reach a new agreement failed and on
15 June the employees went out on strike. The Re-
spondent hired permanent replacements for the
striking employees and on 29 June implemented its
fmal offer. On 6 August the Union, on behalf of
the strikers, made an unconditional offer to return
to work, and the striking employees were placed
on a preferential hiring list.
As part of its final offer, the Respondent
changed the provisions of the expired agreement
defining who may represent employees at griev-
ance meetings. Article III, section 1, of the expired
agreement2 stated:
In matters arising out of the application and
interpretation of this Agreement, the Joppa
Plant employees shall be represented by a
committee of the President and Vice President
of the Local and four (4) active employees of
the Joppa Plant. Cave-In-Rock employees
shall be represented by a committee of the
President of the Local and two (2) active em-
ployees of the Cave-In-Rock quarry.
1 Unless stated otherwise all dates are in 1984.
2 Hereinafter referred to as the 1984 agreement.
In article 3, section 1, of the Respondent's final
offer this language was changed as follows:
In matters- arising out of the application and
interpretation of this Agreement, the Joppa
Plant employees shall be represented by a
committee of five (5) active employees of the
Joppa Plant. Cave-In-Rock employees shall be
represented by a committee of two (2) active
employees of the Cave-In-Rock Quarry.
Thus, the Respondent's final offer required that
all representatives be "active employees," deleting
the specific inclusion of the union president and
vice president.
According to article 3, section 4, of the final
offer, representatives are to be compensated "at
their regular classified hourly wage rates for sched-
uled time lost while attending" the grievance meet-
ings. Article III, section 4, of the 1984 agreement
did not include the word "classified" but otherwise
was identical to the final offer.
Article XV, section 3, of the 1984 agreement
provided for a Joint Safety and Health Committee
"consisting of four members, two appointed by the
Company and two appointed by the local union."
Article XV, section 3, also stated that time spent in
connection with the work of the committee was to
be "compensated at the employee's regular
straight-time hourly wage rate." The Respondent's
fmal offer at article 14, section 3, includes identical
provisions.
On 15 November the Respondent began to deny
the Union's requests to have the unit employees'
designated representative, Union President Beck,
meet with the Respondent's representative to proc-
ess grievances prior to step 3 of the grievance pro-
cedure. 3 The Respondent also, on 15 November
1984, announced its refusal to meet with the em-
ployees' designated representatives to the Joint
Safety and Health Committee, Union President
Beck, and Vice President Barnhill. The Respondent
justified these refusals by claiming that Beck and
Barnhill were not active employees as required by
the implemented final offer language in articles 3
and 4 and therefore were not eligible to represent
employees in grievance and safety and health mat-
ters. The Respondent explained that by "active" it
meant employees currently on its payroll. Under
the Respondent's interpretation, Beck and Barnhill,
3 The Respondent agreed to meet with Union President Beck at the
third stage of the grievance process because the final offer carried over
the 1984 agreement's language and specifically provided for an official of
the Union to be present at that stage.
284 NLRB No. 60
MISSOURI PORTLAND CEMENT CO. 433
who were on the preferential hiring list, were not
"active."4
The judge found that the Respondent's imple-
mentation of its fmal offer was lawful because there
was no allegation that the Respondent violated
Section 8(a)(5) of the Act. The judge also found
that because the Union made an unconditional offer
to go back to work, it was bound by the provisions
of the final offer. The judge treated the issue as a
matter of contract interpretation and agreed with
the Respondent in finding that "active" meant em-
ployees currently on the payroll. The judge con-
cluded that the references to regular straight-time
rate and regular classified hourly rate as the meas-
ures of compensation due employee representatives
indicated that only currently working employees
were to serve on the committees. Accordingly, the
judge found that no 8(a)(1) violation resulted from
the Respondent's refusal to meet with the union
president as the Union's designated representative
for processing grievances or from the refusal to
meet with the union president and vice president as
the Union's designated representative to the Joint
Safety and Health Committee.
The General Counsel argues that the judge
avoided addressing the central legal issue in dis-
pute—whether the Respondent unlawfully contra-
vened the Union's statutory right to designate its
representatives—by concluding that the Respond-
ent's implementation of its final offer was lawful
merely because there was no 8(a)(5) violation al-
leged. We agree with the General Counsel. There
was no need to establish an 8(a)(5) violation in
order to fmd that the Respondent violated Section
8(a)(1) through its refusal to meet with the employ-
ees' representatives for grievance resolutions and
participation in the Joint Safety and Health Com-
mittee.5
Section 7 of the Act encompasses the right of
employees, acting through their union, freely to
select their representatives for the processing of
grievances and discussion of workplace matters
such as those handled by the Joint Safety and
Health Committee. 6 Although a party lawfully
4 Although the provisions relating to the Joint Safety and Health Com-
mittee did not contain the "active" employee language, the Respondent
relied on the fact that the employee representatives were to be compen-
sated at their "regular straight-time hourly rate" as evidence that only
employees currently on its payroll were eligible to serve on the commit-
tee.
The Respondent contended before the judge that it had bargained to
impasse on its final contract offer and that it was entitled to implement
the restrictions on the Union's representatives as part of that final offer.
As we explain at fn. 13, infra, that defense is without merit because the
identity of a party's bargaining representative is not a mandatory subject
of bargaining, and the Respondent was therefore not free either to insist
on it to impasse or to implement it.
Native Textiles, 246 NLRB 228, 229 (1979).
may, under certain circumstances, refuse to meet
with another party's bargaining representatives, the
party making such a refusal must establish that the
representatives with whom it refuses to meet have
created by their own actions an atmosphere of such
ill will that good-faith bargaining is virtually im-
possible or that their participation in bargaining
otherwise represents a clear and present danger to
the bargaining process. 7 The circumstances justify-
ing a refusal to meet with particular representatives
are, therefore, quite restricted. No such circum-
stances are present in the instant case. Instead, the
Respondent simply predicated its refusal on its al-
leged right to do as it wished pursuant to its collec-
tive-bargaining proposals on which, according to
its claim, it had previously bargained to impasse.
Thus, the evidence establishes that the Respond-
ent, without showing that it came within any of the
recognized exceptions, restricted the class of per-
sons from whom the Union could select grievance
and safety and health representatives, and the Re-
spondent thereby interfered with the employees'
Section 7 right to select their own bargaining rep-
resentatives. 8 Such an infringement on this Section
7 right would be lawful only if the Union clearly
and unmistakably waived the right.° No such
waiver was established in this case.
Certainly, the bargaining history of the parties
does not indicate that the Union waived its statuto-
ry right to designate its representatives. In fact,
during the negotiations, the Union objected to the
proposed changes in the representation provi-
sions." Nor can the Union's unconditional offer to
7 Sahara Datsun, 278 NLRB 1044 (1986) (employer was not required
to negotiate with the union bargaining representative where that repre-
sentative disparaged the respondent's reputation and made published alle-
gations of a highly personal nature against the respondent's owners, some
of whom were likely to participate in the bargaining negotiations; such
conduct was deemed to create an atmosphere of ill will that made good-
faith bargaining virtually impossible); Fitzsimmons Mfg. Co., 251 NLRB
375, 379 (1980) (employer not obligated to meet with union representa-
tive who, without provocation, physically assaulted the respondent's per-
sonnel director during a grievance meeting, since this created ill will
making good-faith bargaining with the representative virtually impossi-
ble); Electrical Workers IBEW Local 1212 v. NLRB, 557 F.2d 995, 998-
1000 (2d Cir. 1977), enfg. 226 NLRB 537 (1976) (applying "clear and
present danger" standard, finds employer not obligated to bargam with
union team that included representatives from a labor organization that
did not represent the unit employees and that would acquire confidential
proprietary information during bargaining that might be transmitted to
competitors whose employees that labor organization did represent).
See Shell Oil Co., 93 NLRB 161 (1951).
9 See Metropolitan Edison v. NLRB, 460 U.S. 693, 708 (1983); Ground
Breakers, Inc., 280 NLRB 146 (1986); Native Textiles, supra, 246 NLRB at
229.
79 The exact extent of the negotiations over the proposed changes is
unclear, but it appears that discussion over the deletion of the union offi-
cials from the representation provision was brief and that there was no
discussion at all of the application of the "active" qualifier to persons on
the preferential hire list. What is clear is that the Union never agreed to
the restrictions on its right to select its grievance and health representa-
tives.
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
return to work, without more, be construed as a
waiver of this statutory right. That offer merely
served notice that the strike had ended and that the
employees were willing to return to work under
the changes in the terms and conditions of employ-
ment brought about by the Respondent's imple-
mentation of its final offer. It did not indicate that
the Union accepted the changes included in the
fmal offer that limit the Union's statutory right to
select its grievance and safety and health represent-
atives. There was no collective-bargaining agree-
ment between the parties, and the parties continued
to negotiate in an effort to reach a new agreement
even after the Union made its offer to return to
work. Since there was never any acceptance by the
Union of any provision restricting its right to select
its representatives, there was never a waiver by the
Union of that statutory right. Thus, all that is left is
the Respondent's bald unilateral implementation of
the provisions restricting the Union's right to select
its representatives. That implementation by the Re-
spondent can in no way be deemed a clear and un-
mistakable waiver by the Union of the statutory
right.
Moreover, the Respondent's own actions indicate
that the Union did not waive its statutory right to
select its representatives. With respect to represen-
tation for the purpose of processing grievances, the
Respondent, in October, 2 months after the Union's
offer to return to work, allowed Union President
Beck to participate in a grievance meeting at the
Cave-in-Rock facility." Beck's participation in that
meeting, without objection by the Respondent, is
evidence that the Respondent itself did not believe
that the Union had agreed to his exclusion by
virtue of the strikers' unconditional offer to return
to work. 1 2
With respect to the Union's representation of the
Joint Safety and Health Committee, it is true that
the Respondent was relying on language that was
unchanged from the previous contract to which the
Union had agreed. But the evidence shows that the
parties had never construed that language as re-
strictively as the Respondent sought to do on 15
November, when it announced its refusal to meet
with Union President Beck and Union Vice Presi-
dent Barnhill. Indeed, in the past, even a dis-
charged employee of the Respondent (who was
also, like Beck and Barnhill, an official of the
11 The 1984 agreement's representation provision specifically included
the union president in grievance meetings at the Cave-In-Rock facility.
The union president's inclusion was deleted in the Respondent's final
offer.
52 Beck's participation in that meeting also indicates that, until its sub-
sequent refusal to meet in November, the Respondent did not necessarily
interpret the "active" qualifier as excluding persons on the preferential
hire list.
Union) had been permitted to represent the em-
ployees on the Joint Safety and Health Committee,
notwithstanding that his claim to be a current em-
ployee was considerably more tenuous than the
claims of former strikers on a preferential hiring
list. Thus, whatever might be the merits of an argu-
ment that the contract language, standing alone,
manifested the Union's agreement in previous con-
tracts to the exclusion of employees other than
those currently on the payroll, the parties' past ad-
ministration of that clause was such that the
Union's agreement to it did not constitute the clear
and unmistakable waiver that is required for the
sacrifice of the Section 7 right at issue here.
Accordingly, because the Union did not waive
the employees' Section 7 right to select their repre-
sentatives, the Respondent's refusal to meet with
the union president as the employees' designated
representative for processing grievances and its re-
fusal to meet with the union president and vice
president as the employees' designated representa-
tives to the Joint Safety and Health Committee
violated Section 8(a)(1) of the Act.13
CONCLUSIONS OF LAW
1. By refusing to meet with the Union's designat-
ed representative for processing grievances based
on the implemented terms of its final offer limiting
the class of persons from which the Union could
select its grievance representatives, the Respondent
interfered with its employees' Section 7 rights in
violation of Section 8(a)(1) of the Act.
2. By refusing to meet with the Union's designat-
ed representatives to the Joint Safety and Health
Committee based on the implemented terms of its
final offer limiting the class of persons from which
the Union could select its Joint Safety and Health
Committee representatives, the Respondent inter-
13 There is no merit to the defense, raised by the Respondent before
the judge, that it was permitted to intrude into the employees' selection
of their representatives because the Respondent had previously bargained
to impasse on the grievance and safety conunittee proposals and was
privileged to implement them unilaterally thereafter. This argument is
based on the proposition, among others, that the determination of the
identity of a party's bargaining representatives is a mandatory subject of
bargaining, for a party is not free to insist to impasse on nonmandatory
subjects. NLRB v. Borg-Warner Corp., 356 U.S 342, 349 (1958) There
may well be some aspects of the proposals that are mandatory subjects.
See, e g, Axelson, Inc. v. NLRB, 599 F.2d 91, 94 (5th Or 1979), and
cases there cited (whether employees will be paid for time spent on
grievance negotiations is a mandatory subject). The question of who shall
represent bargaining unit employees, however, is not a subject on which
an employer can insist on having its way except, as noted above, where
the presence of the chosen representative would make good-faith bargain-
ing virtually impossible. Shell Oil Co., 91 NLRB 161, 163 (1951). See also
NLRB v. Borg-Warner Corp., supra, 356 U S. at 350 (employer could not
insist that the certified representative of the employees not be party to
the collective-bargaining agreement); NLRB v. Signal Mfg. Co., 351 F.2d
471 (1st Cir. 1965) ("right of employees to be represented by officials of
their own choice" in grievance handling overcomes employer's desire to
declare the individual "persona non grata").
MISSOURI PORTLAND CEMENT CO. 435
fered with its employees' Section 7 rights in viola-
tion of Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order the
Respondent to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
ORDER*
The Respondent, Missouri Portland Cement
Company, Joppa, Illinois, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Interfering with its employees' Section 7
rights in violation of Section 8(a)(1) of the Act, by
refusing to meet with Local 438, United Cement,
Lime, Gypsum and Allied Workers International
Union, Division of International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL-CIO-CLC's designated
representative for processing grievances based on
the implemented terms of its fmal offer limiting the
class of persons from which the Union can select
its grievance representatives.
(b) Interfering with its employees' Section 7
rights in violation of Section 8(a)(1) of the Act, by
refusing to meet with the Union's designated repre-
sentatives to the Joint Safety Health Committee
based on the implemented terms of its final offer
limiting the class of persons from which the Union
can select its Joint Safety and Health Committee
representatives.
(c) Interfering with its employees' Section 7
rights in violation of Section 8(a)(1) of the Act, by
holding safety meetings without adequate advance
notice to the Union, and/or using company-ap-
pointed employee representatives in place of offi-
cially designated union representatives.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, meet with the Union's designated
representatives for processing grievances.
(b) On request, meet with the Union's designated
representatives to the Joint Safety and Health
Committee.
(c) Schedule safety meetings only following ade-
quate notice to and consultation with the Union,
* The Board modified its Order as set forth at 291 NLRB No. 146
(Dec. 9, 1988).
and participate in such meetings only with properly
designated representatives of the Union.
(d) Post at its Joppa and Cave-In-Rock quarry
facilities near Joppa, Illinois, copies of the attached
notice marked "Appendix."" Copies of the notice,
on forms provided by the Regional Director for
Region 14, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that Case 14-CA-17579
is severed.
IT IS FURTHER ORDERED that the complaint is
dismissed in all other respects.
14 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcmg an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to meet with Local 438,
United Cement, Lime, Gypsum and Allied Work-
ers International Union, Division of International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers, AFL-CIO-CLC's
designated representative for processing grievances
based on the implemented terms of our final offer
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
limiting the class of persons from which the Union
can select its grievance representatives.
WE WILL NOT refuse to meet with the Union's
designated representatives to the Joint Safety and
Health Committee based on the implemented terms
of our final offer limiting the class of persons from
which the Union can select its Joint Safety and
Health Committee representatives.
WE WILL NOT conduct safety meetings without
adequate advance notice to or consultation with
the Union; nor will we participate in such meetings
with company-appointed representatives in place of
a committee officially designated by the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL, on request, meet with the Union's des-
ignated representatives for processing grievances.
WE WILL, on request, meet with the Union's des-
ignated representatives to the Joint Safety and
Health Committee.
WE WILL schedule safety meetings only follow-
ing adequate notice to and consultation with the
Union, and participate in such meetings only with
properly designated representatives of the Union.
MISSOURI PORTLAND CEMENT COM-
PANY
Stephen D. Smith, Esq., for the General Counsel.
Arthur M. Brewer, Esq. (Shawe & Rosenthal), of Balti-
more, Maryland, for the Respondent.
J. F. Souders, Esq. (Gruenberg, Souders & Levine), of St.
Louis, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge.
This case was heard at St. Louis, Missouri, on 19 No-
vember 1985, based on an original charge in Case 14-
CA-17812, filed 22 May 1985 and subsequently amended.
The complaint, as amended, alleges that the Respondent
violated Section 8(a)(1) of the Act by refusing to meet
with designated agents of the Union for the purposes of
making safety and health inspections of Respondent's
plant, and for the purpose of considering employee
grievances prior to step 3 of the grievance procedure.'
The Respondent's answer, as amended, admits refusals
to meet with the Union's designated agents under the cir-
cumstances alleged, except that the Respondent denies
At the outset of the hearing the General Counsel expressed a desire,
pursuant to a partial informal settlement, to withdraw the allegations of
the complaint pertaining to companion charge Case 14-CA-17579. Since
it appeared to me that the proposed settlement would effectuate the pur-
poses of the Act, counsel for General Counsel's motion to delete pars. IA
and 5A, B, and C, from the complaint and to sever Case 14-CA-17579
from these proceedings was granted.
that its refusals were contrary to "established conditions
of employment," as alleged in the complaint. The Re-
spondent likewise denies the commission of any unfair
labor practices. On the entire record in the case, includ-
ing my consideration of the briefs and observation of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Based on the allegations of paragraphs 2 and 3 of the
complaint, as amended, admitted in the Respondent's
answer, as amended, I find, respectively, that the Re-
spondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act; and that the Union, the
Charging Party, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
The Respondent is engaged in the business of manufac-
turing, retailing, and distributing cement and related
products from installations in the States of Illinois, Mis-
souri, Kentucky, Tennessee, and Louisiana. Only the Re-
spondent's Joppa plant and the Cave-In-Rock quarry, lo-
cated at Joppa, lllinois, are involved in this proceeding.
A collective-bargaining relationship has existed between
the Company and the Charging Party since 1963. 2 The
most recent agreement was a 3-year contract that expired
on 1 May 1984. Negotiations to achieve agreement on a
successor contract failed, and sometime after 1 May
1984, the Company implemented its final complete con-
tract offer, On 15 June the Union struck. The Company
permanently replaced the strikers. Later, as various re-
placements left, former strikers were recalled to work.
Among these, newly elected Union President Jack Mizell
returned on 29 October. Mizell was a member of the ne-
gotiating, safety, and grievance committees, as were Vice
President Rodger Barnhill and retiring Union President
David Beck, both of whom had not been recalled to
work as of the time of the hearing in this case.
Article XVI of the expired 1984 contract sets forth the
grievance and arbitration procedures. To summarize, a
four-step procedure is specified, terminating in final and
binding arbitration. Step 1 provides that if a satisfactory
settlement is not reached between the aggrieved employ-
ee and his supervisor, with or without the assistance of
his union representative, the matter shall be reduced to
writing, and the supervisor must file a prompt written
answer. Failure to achieve a settlement at step 1 results
in processing to step 2, at which point the grievance is
considered at a meeting of' the union representatives and
the plant manager. Failure to reach a satisfactory disposi-
2 It appears from a passing reference in the transcript, and fn. I of
counsel for General Counsel's brief, that the continued existence of this
relationship is currently the subject of consideration by the Regional
Office in Case 14-RD-1058; in which the RespOndent has filed objections
to the Union's victory in a decertification election. However, I find it in-
appropriate to take official notice, as requested, of the hearing officer's
report and recommendations issued in that proceeding; and the material
contained therein has not been considered.
MISSOURI PORTLAND CEMENT CO. 437
tion at this level results in the grievance being referred
to a meeting among the Company's vice president of in-
dustrial relations, local union officials, and a representa-
tive of the International Union.
Article XV, which covers conditions of employment,
provides in section 3 for the establishment of a joint
safety and health committee "consisting of four members,
two appointed by the Company, and two appointed by
the Local Union." It is also provided that
[t]he Joint Committee shall meet as often as neces-
sary, but not less than once each month, at a regu-
larly scheduled time and place, for the purpose of
jointly considering, inspecting by walk-around
during a portion of the regularly monthly meeting,
investigating and reviewing health and safety condi-
tions and practices, and investigating accidents, and
for the purpose of jointly and effectively making
constructive recommendations with respect thereto
Article III deals with employee representation. Section
1 of that article provides that the Joppa plant employees
shall be represented by a committee composed of the
local union president, vice president, and four "active
employees of the Joppa plant. Cave-In-Rock employees
shall be represented by a committee of the president of
the Local and two active employees of the Cave-In-
Rock quarry." This section also requires that on the exe-
cution of the agreement, the Union will promptly notify
the Company in writing of the names of the chosen rep-
resentatives and, thereafter, of any changes as they
OCCUIP.
Section 2, article III, of the expired contract provides
that "Union representatives shall be allowed reasonable
time during regular working hours for the processing of
grievances, but shall not leave their work for such rea-
sons without prior approval of supervision, nor shall
they require another employee to leave his work without
approval of his supervisor." Elsewhere in the section it is
stated:
Off-duty representatives of the Local and represent-
atives of the International Union and/or District
Council shall be permitted on the Company's prem-
ises to investigate grievances provided the Compa-
ny is notified of their presence upon entering the
plant or quarry.
Section 3, article III provides for a meeting between
management representatives and plant union representa-
tives on the first Wednesday of each month at 2 p.m.,
and with quarry union representatives on the third
Wednesday of each month at 1 p.m. Section 4 specifies
the conditions under which union representatives shall be
paid wages for time devoted to attending these meetings.
The grievance and arbitration procedures in the Re-
spondent's implemented contract proposal of 29 June are
contained in article XV. Comparison with article XVI of
the expired agreement reveals that steps 1, 2, and 3 are
identical. The main difference occurs at step 4, which, in
the implemented proposal, provides that on the failure of
step 3 to provide a satisfactory settlement, a meeting will
be held with the union president, chairman of the com-
mittee, International representative, plant manager, vice
president of operations, and vice president of industrial
relations, at the conclusion of which the Company will
grant the grievance, the Union will withdraw, or the
Union will declare that the grievance will go to arbitra-
tion.
Conditions of employment are dealt with in article
XIV of the implemented proposal, which, in the portions
relating to the instant dispute, are identical with those of
article XV, as quoted earlier.
Article III of the proposal placed in effect by the
Company on 29 June, corresponds with article III of the
expired agreement, and covers the subject of representa-
tion. However, the newly implemented article III con-
tains significant changes which directly affect the issues
to be considered. Thus, section 1 of the new article III
states:
In matters arising out of the application and inter-
pretation of this agreement, the Joppa plant employ-
ees shall be represented by a committee of five (5)
active employees of the Joppa plant. Cave-In-Rock
employees shall be represented by a committee of
two (2) active employees of the Cave-In-Rock
quarry. Upon execution of this agreement, the
Union will promptly notify the Company in writing
the names of the chosen representatives and of
changes as they occur.
Section 2 of article III was changed to read,
Off-duty representatives of the Local and represent-
atives of the International Union and/or District
Council may, at the Company's discretion, be per-
mitted on the Company's premises to investigate
grievances provided the Company is contacted in
advance, and further provided that there is no dis-
ruption of work.
As acknowledged by the Union's International repre-
sentative, former employee and Local Union President
Thomas Rice, following the strike the union membership
returned to work under the terms of the Company's im-
plemented fmal proposal. Thereafter, collective bargain-
ing resumed. Rice, Rodger Barnhill, Jack Mizell, and
David Beck testified concerning what transpired. They
each claim that during the phase of the negotiations that
took place prior to the strike, there was never any dis-
cussion of the Company's proposed changes in article
III, section 1, or of the term "active employee" as it was
deemed to apply to that section, although that term was
clearly used in the same context in several prior agree-
ments. 3 Also, these witnesses claimed, despite circum-
stances under which the strike ended, that at no time
during the course of the negotiations did the Union for-
mally agree to the Company's proposed changes affect-
ing the composition of either the grievance or safety
$ However, Beck conceded that during negotiations the Company
wanted to take the union president and vice president off the grievance
committee and eliminate one committeeman.
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
committees. Each of these witnesses attended a negotiat-
ing session held on 15 November 1984 at the Holiday
Inn in Paducah, Kentucky. Also present for the Union
was International Representative Tom Balanoff, who
served as chief negotiator. The Company was represent-
ed by Vice President J. L. McIntyre, Vice President of
Industrial Relations Jack P. Hearn, Plant Manager M. G.
Brekhus, and Personnel and Safety Supervisor William
Sacharnoslci. Mizell testified that during the course of
this meeting, International Representative Rice asked the
Company if it would allow Rice, Barnhill, and Beck to
conduct a safety meeting and a safety walkaround, but
that McIntyre answered that they would never be al-
lowed on the plant property for this purpose. Mizell's
memory failed when he was asked if there was any dis-
cussion concerning who would represent the Union at
grievance meetings.
Rice remembered McIntyre telling Beck that he would
not be allowed in the plant until (under the terms of the
newly implemented employer proposal) there was a
third-step (grievance) meeting. Beck did not testify about
this meeting.
Barnhill testified that he asked Brekhus, "In other
words, you're not refusing to have a safety meeting—
you're just refusing to have one with me?" Brekhus re-
sponded, "That's right."4
According to Rice, Mizell, Barnhill, and Beck, at an-
other bargaining session on 12 December 1984, McIntyre
repeated his refusal to permit Beck, Barnhill, and Rice
into the plant for the purpose of conducting any meet-
ings.
Neither McIntyre nor Brelchus appeared to testify for
the Company concerning what transpired at the meetings
on 15 November and 12 December. Jack P. Hearn, Re-
spondent's vice president of industrial relations, was the
sole witness of Respondent to testify about these events.
After professing a lack of confidence in his ability to
recall what happened at any particular session, and after
demonstrating this inability during questioning by the
Respondent's counsel, I received into evidence, as past
recollection recorded, a typewritten version of portions
of the Company's bargaining notes with respect to these
sessions. The Respondent quite candidly admitted that
these notes represented an amalgam of notes taken at
these sessions by various individuals, and did not purport
to be a complete record of everything that happened at
each of these meetings. Thus, Respondent's Exhibit 1, an
excerpt from the Company's notes for the meeting of 15
November 1984, shows that toward the end of the ses-
sion Rice raised the question of the Company's position
concerning what he described as "monthly meetings"
under the implemented proposal. He noted that they had
asked Plant Manager Brekhus for a meeting, but stated
that "we are not getting anywhere." Rice did not distin-
guish between safety meetings or grievance meetings.
McIntyre began his answer by reading from article III of
the Company's implemented contract proposal concern-
ing representation. He emphasized that the article re-
4 Barnhill testified that these remarks were made at a negotiating meet-
ing on 13 November 1984. In accordance with the testimony of all other
witnesses, I find that the meeting actually occurred on 15 November.
quired representatives to be active employees. He said
that the Company was willing to meet with a committee
of five active employees, and that because the Union had
12 members who met those criteria, they could put any 5
of them they wanted on the committee. Balanoff an-
swered that they wanted to have a meeting on the first
Wednesday of December, and indicated that by that time
they would have a committee of five active employees in
the plant. After a short recess this topic came up again.
McIntyre emphasized that they intended to meet with
the employees in accordance with the implemented plan,
and that because the agreement specified a committee
composed of five active employees, the Union was ex-
pected to give them their names. He noted that the
Cave-In-Rock facility was to be represented by two
active employees. He emphasized that the plan made no
provision for other people to attend these meetings and,
consequently, if Beck showed up for the meeting he
would be evicted from the property and arrested if nec-
essary. At this point Beck asked if McIntyre was saying
that if there were grievances to be discussed, the presi-
dent of the Local could not attend the meeting. McIn-
tyre responded that he could do so as long as he was an
active employee. He also cautioned that if Beck wished
to meet with the Company to discuss other matters, or
Rick or Balanoff or any others, that a different situation
was presented, and the Company was willing to meet
outside the plant as necessary to resolve their differences.
Under similar circumstances as those described above,
the Respondent introduced into evidence Respondent's
Exhibit 2, an excerpt from the prepared company notes
for the meeting of 12 December. The topic of grievance
committee and safety and health committee meetings was
raised again by Balanoff in the context of a brief discus-
sion about an employee who allegedly arrived for work
in a state of intoxication. When McIntyre noted that they
were supposed to be having a negotiating session and
that grievances should be timely filed and presented to
the plant manager, Balanoff asked when they could have
a grievance meeting. McIntyre answered that the Union
had not yet given the Company their list of five active
employees to serve on the grievance committee, as speci-
fied under the terms of the implemented proposal. He
stated that when they did so, they would set up a meet-
ing. He remarked that instead of submitting the requested
list of five active employees, the Union had submitted a
list of nine, which included the name of International
Representative Rice, who was not an active employee.
McIntyre closed by stating, "We solicited from you a list
of five (5) active employees for the grievance committee
and two (2) for the safety and health committee. If, you
want us to consider your grievances, we want you to file
them in a timely manner and follow the steps of the im-
plemented plan."
In his brief counsel for the General Counsel argues
that an adverse inference should be drawn against, Re-
spondent's Exhibits 1 and 2, and in favor of the testimo-
ny of the General 'Counsel's witnesses concerning the
meetings of 15 November and 12 December. He points
to the incompleteness of the notes, and the admittedly
poor memory of Hearn concerning the actual events, in
MISSOURI PORTLAND CEMENT CO. 439
support of this argument. I cannot accept this reasoning.
The testimony by the General Counsel's witnesses con-
cerning these meetings is equally brief and fragmentary,
but, likewise, that does not mean that the General Coun-
sel's witnesses have been untruthful. Because each of the
accounts given of what transpired at these meetings is an
incomplete account, it is entirely possible that each
person remembered or recorded a different portion of
the total discussion. Where the accounts seem to overlap,
the differences can easily be explained by the natural
tendency of different individuals to describe incidents
that occurred sometime in the past in different terms and
with different language. Consequently, I do not discredit
any of the versions of what transpired at these meetings.
Moreover, I do not consider any of the differences that
exist in the various versions to be particularly significant.
It is clear that throughout this disagreement, the Compa-
ny has steadfastly maintained a position based on the lan-
guage of its implemented contract proposal. According-
ly, it has insisted that it will meet to consider grievances
filed under the terms of the implemented proposal only
after the Union has properly notified it of the selection
of a committee of five active employees to serve on the
Union's grievance committee. Respondent interprets the
term "active employee" to mean an employee who is
working on the Company's payroll. Although the term
"active employee" does not appear with respect to the
Union's appointment of two employees to serve on the
Joint Safety and Health Committee, under the terms of
article XIV of the implemented proposal, the proposal
contains provisions for the employees serving on the
committee to receive, under specified circumstances,
compensation "at the employees' regular classified
straight-time hourly wage rate." The Respondent argues
that this latter language makes it clear that Joint Health
and Safety Committee members must be active employ-
ees as well. The various pieces of correspondence be-
tween the parties in evidence as Joint Exhibits 11
through 25, covering a period from 27 November 1984
until 1 July 1985, show that the Respondent has consist-
ently maintained its position to date concerning the
proper interpretation of the applicable provisions of the
implemented proposal. I, therefore, find that the term
"active employee" was extensively addressed in the ne-
gotiations, contrary to the broad assertion of the General
Counsel's witnesses.
The Respondent was never charged nor did the com-
plaint in this action ever allege that the Respondent had
violated its collective-bargaining obligations in violation
of Section 8(a)(5) of the Act. Accordingly, there is no
evidence that the Respondent unlawfully placed into
effect its complete final offer of 29 June 1984. Indeed,
not only does the Union fail to claim that this action by
the Company was unlawful, but it also agrees that it re-
turned to work following the strike under the terms of
the implemented final offer. That implemented final offer
contained the changes detailed above that give rise to
this dispute. Because the implementation of the Compa-
ny's complete contract proposal of 29 June 1984 was
lawful, the employees' wages, hours, working conditions,
and other terms and conditions of employment are now,
pending appropriate further negotiations, determined by
that document. Any evidence concerning events that oc-
curred under the terms of previous contracts with some-
what different language is immaterial, because the lan-
guage of the provisions in question were different. Fur-
thermore, no dispute over the term "active employee"
ever arose under the terms of those previous agreements.
In sum, Respondent's implemented final offer controls,
and the complaint allegations must be evaluated accord-
ingly.
I am persuaded that the Respondent's interpretation of
its lawfully implemented proposal of 29 June 1984 is cor-
rect. The plain language of the provisions of the propos-
al under consideration here make this conclusion, in my
view, inescapable. Although the draftsmanship of the
provisions in question might have been somewhat more
precise, it is nonetheless clear that active employees serv-
ing on the grievance committee must be employees on
the Company's payroll, because they are to be compen-
sated, under the terms of the implemented proposal, for
certain time served on committee affairs at their regular
classified hourly wage rates for scheduled time lost. Joint
Safety and Health Committee members must also be
active employees since they are likewise compensated
under the terms of article XIV at their regular classified
straight-time hourly wage rate.
Finding, as I do, that the Respondent's implemented
contract proposal, which has been properly interpreted
by the Respondent, is the controlling factor in any con-
sideration of the issues presented, I now turn to an as-
sessment of the specific allegations of the complaint, as
amended.
Paragraphs 9A1 and 9A2 of the complaint allege, re-
spectively, that on 30 November 1984, Plant Manager
Brekhus refused the Union's request to meet with Union
President David Beck concerning employee grievances
unless or until the grievances reached the third step of
the grievance procedure, and refused to permit Beck to
make a safety inspection at the Joppa plant. Paragraph
9B1 concerns McIntyre's similar refusal at the 15 No-
vember negotiating session, discussed earlier. The evi-
dence shows that prior to the strike, Beck participated in
safety inspections as a member of the Local Union's
safety committee, and in discussions of grievances with
the aggrieved employee's supervisor at step 1 of the
grievance procedure. On 27 November 1984 James R.
Fisher, recording secretary of local 438, wrote to Brek-
hus that Beck would appear at the main gate of the
Joppa plant at 1 p.m. on 5 December "to be admitted to
the plant to discuss grievances that were presented to
you this date," and also to conduct a safety walkaround
at the river and mill building. A response was requested.
As Respondent admits, both requests were refused in a
letter from Brekhus to Fisher, dated 30 November,
which states in relevant part:
At the November 15, 1984 negotiating session
held in Paducah, the Union was asked to appoint a
grievance committee consisting of active employees
as specified in the Company's implemented propos-
al, so that grievances could be processed in an expe-
ditious and efficient manner. Upon our receipt of
the names of the active employees who will serve
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on the committee, and a meeting agenda, we will
contact the committee to schedule a meeting. I am
unable to meet on December 5 because of prior
commitments.
We are certainly willing to meet with Beck and
others to discuss grievances which reached the
third step of the grievance procedure contained in
the Company's implemented proposal. We will not,
however, meet with Beck to discuss grievances
which have not reached the third step since he is
not an active employee and is ineligible to serve on
the plant grievance committee.
Concerning your request for a walk-around in-
spection to be conducted by Beck, we have previ-
ously stated that safety and health matters in the
plant will be addressed by the Joint Safety and
Health Committee in accordance with the Compa-
ny's implemented proposal. As soon as the Union
provides me with the names of those active employ-
ees who will serve on the Safety and Health Com-
mittee, and an agenda, a meeting with the commit-
tee will be scheduled. Since Beck is ineligible to
serve on this committee, he will not be permitted to
conduct an inspection of the plant.
Thus, it is documented that the Respondent's refusal to
discuss grievances with Beck prior to step 3 and denial
to permit Beck to conduct a safety walkaround inspec-
tion of the Joppa plant are grounded not on antiunion
animus or discriminatory considerations but on a correct
interpretation of the plain language of the controlling ar-
ticles of its implemented proposal, under which the
Union returned to work following the strike. Conse-
quently, I find that the Respondent did not violate Sec-
tion 8(a)(1) of the Act, as alleged in paragraphs 9A1,
9A2, and 9B1 of the complaint.5
Paragraph 9B2 of the complaint alleges that at the 12
December 1984 meeting, the Respondent refused the
Union's request to permit Beck to make a safety inspec-
tion walkaround at the Joppa plant, "contrary to estab-
lished conditions of employment." In its answer, as
amended, the Respondent denied having refused any
such request at this meeting. The General Counsel's wit-
nesses specifically testified that the refusal occurred as al-
leged. Vice President of Industrial Relations Hearn did
not deny the accuracy of their testimony. I find that the
refusal occurred. However, for the same reasons stated
5 At the hearing, and in his brief, counsel for the General Counsel
claimed that even when the Union tested the Company's sincerity by ap-
pointing a grievance committee composed of active employees, the Re-
spondent still refused to meet with it He based this contention on a 3
December 1984 letter from Fisher to Brekhus, and Brekhus' response on
18 December. However, this exchange of correspondence does not sup-
port the General Counsel's position, because, as the documents show,
Brekhus' refusal was based on the Union's designation of Thomas W.
"Ced" Rice as chairman of the grievance committee. Rice, an Interna-
tional representative, has not been employed by the Company since 1981.
Thus, the position taken by Brekhus in his response of 18 December is
completely consistent with that taken in response to similar union re-
quests seeking to place inactive employees on the union committees, con-
trary to the terms of the Respondent's implemented proposal. Moreover,
the complaint, as amended, does not allege this particular exchange as a
violation of the Act, and at no pomt in this proceeding has an amend-
ment to that effect been moved.
earlier, I likewise fmd that the Respondent did not vio-
late Section 8(a)(1) of the Act by its refusal, based as it
was on a correct legal interpretation of the applicable
terms of the implemented proposal.
Paragraph 9A3 of the complaint alleges that about 9
January 1985, by letter, Brekhus refused a request by the
Union to meet with David Beck and Edward Burtis, as
members of the Joint Safety and Health Committee. The
Respondent admitted that Brekhus refused to meet with
Beck, but denied that it refused to meet with Burtis.
Joint Exhibits 14 and 15, in evidence, show that on 2
January 1985, Recording Secretary Fisher wrote Brek-
hus a one-paragraph letter stating:
Please be advised that Local 438 has appointed
the following named men to the Joint Safety and
Health Committee. At the Joppa plant it will be
David Beck and Rodger Barnhill. At the Cave-In-
Rock quarry, it shall be David Beck and Edward
Burtis. You will note in the Co.'s implemented
agreement it says nothing about having to be an
active employee.
On 9 January, Brekhus sent Fisher the following two-
paragraph answer:
This is in response to your letter of January 2,
1985, in which you inform me of Local 438's Joint
Safety and Health Committee appointees, of which
two are ineligible; specifically, Mr. Beck and Mr.
Barnhill, because of their inactive status.
Please be reminded that this has been discussed
and explained to the Union by Mr. McIntyre at the
bargaining table on numerous occasions.
Because it is readily apparent that Brekhus did not
refuse to meet with Burtis, but only refused to meet with
Beck and Barnhill, who remained inactive employees, I
find that the Respondent's refusal was based on its lawful
legal position. Therefore, the Respondent did not violate
Section 8(a)(1) of the Act, as alleged in paragraph 9B3 of
the complaint, as amended.
Paragraphs 9B3, 4, and 5 of the complaint allege refus-
als, similar to those discussed above, by McIntyre at a
negotiating session at the Holiday Inn in Paducah, Ken-
tucky, about 30 May 1985. In its answer, the Respondent
admitted the factual portions of the allegations contained
in paragraphs 9B3, 4, and 5. As noted in his brief, coun-
sel for the General Counsel relied on these admissions to
the extent that he felt it unnecessary to offer any evi-
dence concerning the details of what transpired at the
bargaining session of 30 May. Although the transcript is
devoid of any evidence from any party explaining the
precise circumstances under which these refusals oc-
curred, it is clear from the record as a whole that all the
parties view these allegations as simply an updating of
the conflicting legal positions with respect to this matter,
which had by this time become consistently adopted by
both the Union and the Respondent. Therefore, they
merit the same result for the same reasons. I find that the
Respondent did not violate Section 8(a)(1) of the Act as
alleged in paragraphs 9B3, 4, and 5 of the complaint, as
amended.
MISSOURI PORTLAND CEMENT CO. 441
There remains for consideration the allegations in
paragraph 9C that on 5 June 1985, the Respondent, in
order to avoid meeting with and discussing safety prob-
lems with the Union's designated safety committee mem-
bers, held a meeting of the Joint Safety and Health Com-
mittee on that date, after receiving notice that the
Union's representatives were not prepared and would be
unable to attend.
Despite its consistent position that it would conduct
grievance and safety meetings only after the Union had
properly designated its representatives in advance, in
writing, on 3 June 1985 the Company suddenly decided
that it would hold a grievance meeting and a safety and
health committee meeting. Without giving the Union ad-
vance notice of this decision, Respondent Personnel and
Safety Supervisor William Sacharnoski, pursuant to in-
structions from Plant Manager Brekhus, posted a letter
on the bulletin board announcing a grievance meeting
and a safety meeting for 2 and 3 p.m., respectively, on 5
June. The Union first learned of Respondent's intention
when Sacharnoski, after discovering that David Beck's
telephone number was unlisted, phoned Jack Mizell on 4
June. Beck learned of these events from Mizell, and
called Sacharnoski about 4 or 4:30 p.m. that afternoon.
Sacharnoski said the Company wanted to have a griev-
ance meeting and safety meeting the following day. Beck
replied that he did not think there was any way possible
in the allotted time to contact all the Union's people and
be prepared, but that he would call Sacharnoski the next
day to see if they could set up a date for a meeting. Beck
called Sacharnoski between 3 and 4 p.m. on 5 June, only
to learn that although the grievance meeting had been
canceled, the Company had proceeded to hold a safety
meeting utilizing company-appointed employee repre-
sentatives instead of representatives selected by the
Union. Beck protested the holding of the safety meeting,
but suggested 6 or 7 June for the safety meeting.
Sacharnoski's testimony is somewhat different. He con-
ceded that in their telephone conversation around 4 p.m.
on 4 June, Beck suggested a postponement to 6 June, but
that he also asked Beck to call him between 9 and 9:30
a.m. on 5 June, after he had had an opportunity to check
with his supervisors. Sacharnoski said that because Beck
did not call on the morning of 5 June, he assumed the
grievance and safety meetings would continue. However,
before the grievance meeting occurred, he learned from
Mizell that the Union wanted to cancel the meetings.
Nevertheless, although the grievance meeting was can-
celed, the safety meeting proceeded with company ap-
pointed active employee representatives serving in place
of union appointees. Mizell testified that he phoned Sa-
charnoski at 1:30 p.m. from the maintenance shop. Sa-
charnoski said he understood the meeting was postponed
pursuant to a request from Beck, but that he had not
heard from Beck. According to Mizell, there was no
mention by Sacharnoski of the Company's intention to
hold a safety meeting that day.
I find it unnecessary to resolve the minor factual dif-
ferences between Beck's version and Sacharnoski's ver-
sion of these events because in my view, they are incon-
sequential. Even based on Sacharnoski's testimony stand-
ing alone, it is plain that he knew Beck's position was
that he would not have enough time to assemble a com-
mittee for either the grievance or the safety meeting in
order for it to proceed on 5 June, and that Beck had re-
quested a postponement until 6 June. Whether Beck was
supposed to call Sacharnosld between 9 and 9:30 a.m. on
5 June is immaterial, because Sacharnosld knew Beck
needed a postponement, a fact reaffirmed by Mizell a
half hour before the grievance meeting was scheduled to
begin, and an hour and a half before the safety meeting
was scheduled to start. Considering all these circum-
stances, I fmd as follows: The Company's original notice
to the Union of its intention to hold grievance and safety
meetings on 5 June was inadequate. Indeed, it was not
proper notice at all, because the union officials were no-
tified of the Company's intention only after a notice an-
nouncing the Company's intention to the employees had
been posted on the bulletin board. Under these circum-
stances, Beck's acknowledged request of a postponement
until 6 June was entirely reasonable. Under all these cir-
cumstances, the Respondent acted properly in canceling
the grievance meeting, especially in the aftermath of Mi-
zell's 1:30 p.m. telephone conversation with Sacharnoski.
Why the Respondent then proceeded to hold the safety
meeting at 3 p.m., in the light of these prior events, re-
mains unexplained. Suffice it to say that I find that in
doing so the Respondent clearly bypassed the Union.
Likewise, by conducting the safety meeting utilizing em-
ployer-appointed representatives in place of those desig-
nated by the Union, the Company clearly interfered with
the Union's right to select its own representatives under
the terms of the Company's implemented proposal. Thus,
I find the Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By holding a safety meeting on 6 June 1985, with-
out adequate advance notice to the Union, despite a rea-
sonable postponement request, utilizing company-ap-
pointed employee representatives in place of an officially
designated union committee, the Respondent engaged in
unlawful interference with its employees' Section 7
rights, in violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The Respondent has not violated the Act in any re-
spects other than those specifically found.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I fmd it necessary to order
that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act. I shall also order the Respondent to post
an appropriate notice.
[Recommended Order omitted from publication.]