Columbia Portland Cement Co. v. N.L.R.B., s. 89-6105

• Decision Date: 02 October 1990
• Docket Number: 89-6164,Nos. 89-6105,s. 89-6105
• Citation: 915 F.2d 253
• Parties: 135 L.R.R.M. (BNA) 2607, 116 Lab.Cas. P 10,336 COLUMBIA PORTLAND CEMENT COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 253

915 F.2d 253

135 L.R.R.M. (BNA) 2607, 116 Lab.Cas. P 10,336

COLUMBIA PORTLAND CEMENT COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 89-6105, 89-6164.

United States Court of Appeals, Sixth Circuit.

Argued July 26, 1990.

Decided Oct. 2, 1990.

John C. Ross (argued), Ross & Robinson, Canton, Ohio, for petitioner cross-respondent.

Aileen A. Armstrong, Deputy Associate Gen. Counsel, Howard E. Perlstein, William Stewart, Joseph Bornong, Marilyn O'Rourke Athens (argued), N.L.R.B., Office of the General Counsel, Washington, D.C., and Frederick Calatrello, Director, and Steven B. Wilson (argued), N.L.R.B., Region 8, Cleveland, Ohio, for respondent cross-petitioner.

Before KEITH and GUY, Circuit Judges, and ENSLEN, District Judge. ^*

KEITH, Circuit Judge.

Columbia Portland Cement Company ("Columbia") petitions this court for review of the May 31, 1989 decision and order of the National Labor Relations Board (the "Board") finding that Columbia violated section 8(a)(1), (3) and (5) of the National Labor Relations Act ("NLRA"), codified at 29 U.S.C. Sec. 158(a)(1), (3), (5). The Board cross-petitions for enforcement of its decision and order. For the reasons set forth below, we enforce the decision in part and reverse it in part.

I.

Columbia operates a lime shale quarry (the "mine") and a cement production facility (the "plant") in Zanesville, Ohio. ¹ The United Cement, Lime, Gypsum and Allied Workers' International Union, Local No. 24, AFL-CIO (the "union") represents Columbia employees. Columbia purchased the mine and plant from Ashland Technologies on August 28, 1984. Columbia recognized the union and made no substantial changes in its operation personnel. On August 29, 1984, Columbia notified the union that it intended to terminate the prior collective bargaining agreement and requested a meeting with the union to discuss a new agreement. During the negotiating sessions which extended through October 1984, the union requested the processing of certain grievances pending from Ashland Technologies and filed grievances regarding the September 1984 layoffs that occurred as a result of Columbia's cutback in operations.

Columbia and the union failed to reach an agreement on a new collective bargaining contract. Columbia offered its final proposal on October 28, 1984 which contained a new grievance procedure, reducing the size of the employee grievance committee and shortening time limits for invoking successive steps in the grievance process. Columbia informed the union in January 1985 that it had no obligation to process grievances pending from Ashland Technologies' ownership. The new grievance procedure would be applied retroactively to all grievances filed since Columbia's ownership.

Various acts of vandalism were committed during the spring of 1985. As a result, Columbia investigated and interviewed some employees without a union representative present. Robert Wartenbe ("Wartenbe") and Robert Barrett were summoned to speak with the investigator on April 18 and 19 respectively. When Wartenbe and Robert Barrett refused to answer questions without union representation, they were suspended. At an April 1985 union meeting, the employees discussed- : the changes in the grievance procedure; the denial of representation to employees subject to investigatory interviews; and the discontinuation of a policy to provide employees free work gloves. At the conclusion of the meeting, the employees voted unanimously to authorize Donald Fisher, union president, to call a strike at any time.

On May 7, 1985, the Board agent investigating the union's previously filed unfair labor practice charges told Donald Fisher that the Board's Regional Director, acting on behalf of the Board's General Counsel, intended to issue a complaint alleging that Columbia violated the NLRA by denying union representation to employees in investigatory interviews and discontinuing provision of work gloves. Donald Fisher called a strike on the morning of May 8, 1985.

At about 3:00 a.m. on May 8, 1985, Paul Fisher, union trustee, told kiln operators Wayne Dickson ("Dickson") and Larry Jarvis ("Jarvis") about the strike. Paul Fisher and Dickson informed supervisor Carl Hardin that the employees were going on strike and asked Hardin what should be done with the equipment. Hardin advised them to shut everything down. Dickson explained to Hardin how to prevent the kiln from warping as it cooled down. After about 20 minutes, Hardin indicated that he was satisfied with the shutdown and permitted the employees in the kiln room to leave.

At about 10:00 a.m. when Larry Ousky, vice president of operations for Columbia's parent corporation, arrived at the plant, he found the ventilation improperly set and the kiln shut down. He decided to resume production. The kiln suffered damage which permanently reduced its productive capacity.

Mine superintendent Harold Roberts and other supervisors tested the mining equipment in the afternoon. Much of the equipment had been sabotaged by placement of pins or bolts in vital engine parts or by addition of foreign substances to the fuel.

Columbia discharged Russell Barrett ("Barrett"), James Dalrymple ("Dalrymple"), Terry Frame ("Frame"), Jim Hughes ("Hughes"), Mark Jellison ("Jellison"), Keith Luzadder ("Luzadder"), Homer Searls ("Searls"), Gene Swingle ("Swingle"), and George Williams ("Williams") because they were the last employees either to operate or service equipment at the mine before the strike. Columbia discharged Paul Fisher, Michael Fisher, Michael Corbett ("Corbett"), Joseph Stoneburner ("Stoneburner"), Larry Jarvis ("Jarvis") and Larry Tyo ("Tyo") for leaving the plant allegedly without taking reasonable precautions to avoid damage to Columbia's equipment.

On May 31, 1985, the union made an unconditional offer to return to work on behalf of the employees. On June 5, 1985, Columbia accepted the employees' offer, but refused to reinstate the employees who had been discharged for strike misconduct and destruction of property. On June 12, 1985, all of the employees returned to work, except those Columbia refused to reinstate.

The union filed grievances over most of the discharges. Columbia officials met with union officials on June 18, 1985 to discuss the discharges of Frame, Luzadder, Barrett, Paul Fisher, Michael Fisher and Corbett. Columbia credited Luzadder's and Frame's denial of involvement in the sabotage of equipment and rescinded their termination. Columbia, however, gave Luzadder and Frame five-day suspensions for inadequate production on their last shift. Columbia refused to reconsider the other discharges.

On June 17, 1985, the employees met to discuss their return to work. A representative of the international union attended the meeting and belatedly informed the employees that the international union had approved the strike. Some employees who were not present when the decision to end the strike was made expressed dissatisfaction with that decision. The employees also discussed their dissatisfaction with Columbia's refusal to remedy the causes of the first strike and the discharges that accompanied their return to work. After voting for a second strike, the employees returned to the picket lines on June 18 1985. The union notified Columbia of the strike about 55 minutes in advance and no damage to equipment resulted.

On February 23-25, 1987, and March 23-24, 1987, administrative hearings were conducted on the union's allegations against Columbia of unfair labor practices. The administrative law judge ("ALJ") issued his ruling on February 24, 1988. Columbia filed timely exceptions to the ALJ's findings on April 22, 1988. On May 31, 1989, a three-member panel of the Board filed its decision and order affirming the ALJ's ruling with limited exceptions which are not raised on appeal.

The ALJ concluded and the Board agreed that Columbia violated 29 U.S.C. Sec. 158(a)(1) by denying Donald Fisher, Marvin Baker, Paul Slack, Wartenbe and Robert Barrett union representation at investigatory interviews and threatening them for their insistence on representation. The ALJ and the Board also concluded that Columbia violated 29 U.S.C. Sec. 158(a)(1), (3) by taking reprisals against Wartenbe and Robert Barrett because of their insistence on representation at investigatory interviews and by discharging or suspending employees Frame, Luzadder, Russell Barrett, Dalrymple, Hughes, Jellison, Searls, Swingle, Williams, Corbett, Michael Fisher, Paul Fisher, Jarvis, Stoneburner and Tyo for participating in the strike commencing on May 8, 1985. The ALJ and the Board further concluded that Columbia violated 29 U.S.C. Sec. 158(a)(1), (5) by refusing to process grievances filed before September 5, 1984 and by insisting that only active employees could participate in processing grievances. The Board also found, for reasons different from those relied on by the ALJ, that Columbia violated 29 U.S.C. Sec. 158(a)(1), (5) by insisting on processing grievances filed between September 5 and October 28, 1984 under the terms of the proposal implemented by Columbia on October 28, 1984. Finally, the Board and the ALJ found that both strikes were unfair labor practice strikes.

The Board ordered Columbia to cease and desist from the unfair labor practices found. The Board also ordered Columbia: to make whole all employees unlawfully suspended or discharged; to offer reinstatement to all employees unlawfully discharged; to offer full and immediate reinstatement to all employees who struck on June 18, 1985 upon their application for reinstatement; to process grievances filed before October 28, 1984 pursuant to the terms of the collective bargaining agreement that expired September 5, 1984; to rescind its policy recognizing active employees only as employee representatives; and to post an appropriate notice of the policy change regarding employee representatives.

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