Aggregate Industries US

National Labor Relations Board - Board Decisions

Oct 31, 2014

361 N.L.R.B. 879 (N.L.R.B. 2014)

AGGREGATE INDUSTRIES 879
Aggregate Industries and Teamsters, Chauffeurs,
Warehousemen and Helpers, Local 631, Affiliat-
ed with International Brotherhood of Team-
sters. Cases 28–CA–023220 and 28–CA–023250
October 31, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On July 8, 2013, the Board issued a Decision and Or-
der in this proceeding, which is reported at 359 NLRB
1419. Thereafter, the Respondent filed a petition for
review in the United States Court of Appeals for the Dis-
trict of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the Board
issued an order setting aside the Decision and Order, and
retained this case on its docket for further action as ap-
propriate.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein.1 Accordingly, we affirm the judge’s rul-
ings, findings, and conclusions and adopt the judge’s
recommended Order to the extent and for the reasons
stated in the Decision and Order reported at 359 NLRB
1419, which is incorporated herein by reference. The
judge’s recommended Order, as further modified herein,
is set forth in full below.2
1 In finding that the Respondent presented the Union with a fait ac-
compli, we do not rely on Dresser-Rand Co., 358 NLRB 854 (2012),
cited in the vacated decision.
In addition, in finding that the Respondent violated Sec. 8(a)(5) and
(1) of the Act by changing the scope of the Construction unit, a permis-
sive subject of bargaining, without the Union’s consent, we do not rely
on Walt Disney World Co., 359 NLRB 648 (2013), cited in the vacated
decision. Instead, we rely on Wackenhut Corp., 345 NLRB 850, 852
(2005) (elimination of unit position and transfer of the relevant duties
to non-unit positions was a change in unit scope requiring consent of
the union), and Holy Cross Hospital, 319 NLRB 1361, 1361 fn. 2
(1995) (virtual elimination of a unit position was a change in the scope
of the unit requiring the union’s consent).
2 We shall modify the Order in accordance with our recent decision
in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014). We shall also substitute a new notice in accordance with Tor-
ORDER
The National Labor Relations Board orders that the
Respondent, Aggregate Industries, Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the scope of the Construction Bargaining
Unit by moving off-site material haul drivers from the
Construction Bargaining Unit to the Ready-Mix Bargain-
ing Unit without the Union’s consent.
(b) Unilaterally moving off-site material haul work
from coverage under the Construction Agreement to
coverage under the Ready-Mix Agreement without giv-
ing the Union sufficient notice and an opportunity to
bargain about the change.
(c) Changing the terms and conditions of employment
of Construction Bargaining Unit employees by requiring
them to work under the terms of its Ready-Mix Agree-
ment.
(d) Bypassing the Union and dealing directly with its
Construction Bargaining Unit employees, and denying
employment opportunities to Construction Bargaining
Unit employees who refuse to agree to work under the
terms and conditions of its Ready-Mix Agreement.
(e) Bypassing the Union and dealing directly with its
mechanical sweeper truck drivers in the Construction
Bargaining Unit with regard to their terms and conditions
of employment.
(f) Unilaterally, without notice to the Union or afford-
ing the Union an opportunity to bargain, assigning me-
chanical sweeper truck driving work to drivers who are
represented by the Laborers Union, when such work had
previously been performed by drivers who were included
in the Construction Bargaining Unit.
(g) Unilaterally, without notice to the Union or afford-
ing the Union an opportunity to bargain, changing the
terms and conditions of its mechanical sweeper truck
drivers by treating them as employees in the bargaining
unit covered by the Laborers’ collective-bargaining
agreement.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Restore the status quo ante with respect to both the
Construction Bargaining Unit and the Ready-Mix Bar-
gaining Unit, by returning the employees performing off-
site material haul work back to the Construction Bargain-
ing Unit from the Ready-Mix Unit, rescinding all unilat-
tillas Don Chavas, supra, and Durham School Services, 360 NLRB 694
(2014).
361 NLRB No. 80

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880
eral changes in the employees’ terms and conditions of
employment, and continuing in effect all the terms and
conditions of the Construction Agreement for those em-
ployees.
(b) Make former Construction Bargaining Unit em-
ployees performing off-site material haul work under the
Ready-Mix Agreement whole for any loss of wages and
other benefits suffered as a result of its unlawful actions,
in the manner set forth in the Amended Remedy section
of this decision.
(c) Reimburse former Construction Bargaining Unit
employees for any expenses resulting from the Respond-
ent’s failure to make any required contributions to bene-
fit funds, in the manner set forth in the Amended Reme-
dy section of this decision.
(d) Within 14 days from the date of this Order, offer
any former Construction Bargaining Unit employee who
lost employment for refusing to work under the terms
and conditions of the Ready-Mix Agreement full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
(e) Make any former Construction Bargaining Unit
employee who lost employment for refusing to work
under the terms and conditions of the Ready-Mix
Agreement whole for any loss of earnings and other ben-
efits suffered as a result of the unlawful action against
them, in the manner set forth in the Amended Remedy
section of this decision.
(f) Compensate former Construction Bargaining Unit
employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and file a report
with the Social Security Administration allocating the
backpay awards to the appropriate calendar quarters for
each employee.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the loss of employment
opportunities for any former Construction Bargaining
Unit employee who lost employment for refusing to
work under the terms and conditions of the Ready-Mix
Agreement, and within 3 days thereafter, notify them in
writing that this has been done and that the unlawful ac-
tion will not be used against them in any way.
(h) Restore the status quo ante by returning and assign-
ing the work of driving its mechanical sweeper trucks to
employees who are represented by the Union and em-
ployed in the Construction Bargaining Unit.
(i) Make sweeper truck drivers Andrew Barnum and
Mike Crane whole for any loss of wages and other bene-
fits suffered as a result of its unilateral change, in the
manner set forth in the Remedy section of the judge’s
decision.
(j) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(k) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada and its truck yard in
Sloan, Nevada, and distribute in the employees’ mail
slots, copies of the attached notice marked “Appendix.”3
Copies of the notice, on forms provided by the Regional
Director for Region 28, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notic-
es are not altered, defaced, or covered by any other mate-
rial. If the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
October 1, 2010.
(l) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent 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 Federal labor law and has ordered us to post and
obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

AGGREGATE INDUSTRIES 881
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT change the scope of the Construction
Bargaining Unit by moving off-site material haul drivers
from the Construction Bargaining Unit to the Ready-Mix
Bargaining Unit without the Union’s consent, or unilat-
erally move off-site material haul work from coverage
under the Construction Agreement to coverage under the
Ready-Mix Agreement without giving the Union suffi-
cient notice and an opportunity to bargain about the
change.
WE WILL NOT change the terms and conditions of em-
ployment of Construction Bargaining Unit employees by
requiring them to work under the terms of our Ready-
Mix Agreement.
WE WILL NOT bypass the Union and deal directly with
our Construction Bargaining Unit employees, and WE
WILL NOT deny employment opportunities to Construc-
tion Bargaining Unit employees who refuse to agree to
work under the terms and conditions of our Ready-Mix
Agreement.
WE WILL NOT bypass the Union and deal directly with
our mechanical sweeper truck drivers in the Construction
Bargaining Unit with regard to their terms and conditions
of employment.
WE WILL NOT unilaterally, without notice to the Union
or affording the Union an opportunity to bargain, assign
mechanical sweeper truck driving work to drivers who
are represented by Laborers’ International Union of
North America, Local 872 (Laborers), when such work
had previously been performed by drivers who were in-
cluded in the Construction Bargaining Unit.
WE WILL NOT unilaterally, without notice to the Union
or affording the Union an opportunity to bargain, change
the terms and conditions of our mechanical sweeper
truck drivers by treating them as employees in the bar-
gaining unit covered by the Laborers’ collective-
bargaining agreement.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise of
the rights listed above.
WE WILL restore the status quo ante with respect to
both the Construction Bargaining Unit and the Ready-
Mix Bargaining Unit, by returning the employees per-
forming off-site material haul work back to the Construc-
tion Bargaining Unit from the Ready-Mix Unit, rescind-
ing all unilateral changes in the employees’ terms and
conditions of employment, and continuing in effect all
the terms and conditions of the Construction Agreement
for those employees.
WE WILL make former Construction Bargaining Unit
employees performing off-site material haul work under
the Ready-Mix Agreement whole for any loss of wages
and other benefits suffered as a result of its unlawful ac-
tions, plus interest compounded daily.
WE WILL reimburse former Construction Bargaining
Unit employees for any expenses resulting from the Re-
spondent’s failure to make any required contributions to
benefit funds, plus interest compounded daily.
WE WILL, within 14 days from the date of the Board’s
Order, offer any former Construction Bargaining Unit
employees who lost employment for refusing to work
under the terms and conditions of the Ready-Mix
Agreement full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL make any former Construction Bargaining
Unit employees who lost employment for refusing to
work under the terms and conditions of the Ready-Mix
Agreement whole for any loss of earnings and other ben-
efits suffered as a result of the unlawful action against
them, less any net interim earnings, plus interest com-
pounded daily.
WE WILL compensate former Construction Bargaining
Unit employees for the adverse tax consequences, if any,
of receiving lump-sum backpay awards, and WE WILL file
a report with the Social Security Administration allocat-
ing the backpay awards to the appropriate calendar quar-
ters for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the loss of
employment opportunities for any former Construction
Bargaining Unit employees who lost employment for
refusing to work under the terms and conditions of the
Ready-Mix Agreement, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that the unlawful action will not be used against
them in any way.
WE WILL restore the status quo ante by returning and
assigning the work of driving our mechanical sweeper
trucks to employees who are represented by the Union
and employed in the Construction Bargaining Unit.
WE WILL make sweeper truck drivers Andrew Barnum
and Mike Crane whole for any loss of wages and other
benefits suffered as a result of our unilateral change, plus
interest compounded daily.
AGGREGATE INDUSTRIES

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882
The Board’s decision can be found at –
www.nlrb.gov/case/28–CA-023220 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.