Argos USA LLC d/b/a Argos Ready Mix, LLC

National Labor Relations Board - Administrative Judge Opinions

May 14, 2019

12-CA-196002 (N.L.R.B. May. 14, 2019)

JD–43–19
Naples, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ARGOS USA LLC d/b/a
ARGOS READY MIX, LLC
and Cases 12–CA–196002
12–CA–203177
CONSTRUCTION AND CRAFT WORKERS
LOCAL UNION NO. 1652, LABORERS’
INTERNATIONAL UNION OF NORTH
AMERICA, AFL–CIO
Cristina Ortega and John F. King, Esqs.,
for the General Counsel.
Douglas R. Sullengerger and
Michael S. Bohling, Esqs.
(Fisher & Phillips LLP),
for the Respondent.
DECISION
STATEMENT OF THE CASE
KIMBERLY R. SORG-GRAVES, Administrative Law Judge. On March 31, 2017, Construction
and Craft Workers Local Union No. 1652, Laborers’ International Union of North America,
AFL–CIO, (Union or Charging Party) filed Case 12–CA–196002 with Region 12 of the National
Labor Relations Board (Board), and amended the case on July 26, 2017. The Union also filed
Case 12–CA–203177 with Region 12 on July 26, 2017. The cases allege that Argos USA LLC
d/b/a Argos Ready Mix, LLC (Respondent) maintained unlawful overly broad rules concerning
employee use of cell phones, confidential information, and work email systems and that
Respondent unlawfully suspended employee Emmanuel Excellent and subsequently discharged
him pursuant to the overly broad cell phone policy in violation of Section 8(a)(1) and (5) of the
National Labor Relations Act (Act). On January 31, 2018, the Region issued the consolidated
complaint in this matter. (GC Exh. 1(a)-(n).) 1

1 Abbreviations used in this decision are as follows: “Tr.” for the Transcript, “GC Exh.” and GC “Br.” for the
General Counsel’s exhibits and posthearing brief, “R. Exh.” and “R. Br.” for Respondent's exhibits and posthearing
brief. Specific citations to the transcript, exhibits, and briefs are included where appropriate to aid review and are not
necessarily exclusive or exhaustive. My findings and conclusions are not based solely on the record citations
contained in this decision, but rather are based upon my consideration of the entire record for this case.
JD–43–19
2
I heard this matter on June 13–15, 2018, in Miami, Florida, and this matter was continued to
July 6, 2018. On July 5, 2018, by agreement of the parties, the continuance of the hearing was
cancelled. On July 6, 2018, I issued an order granting the parties’ joint stipulation regarding the
receipt of exhibits in to the record and joint motion to set briefing schedule and to close the
record. I afforded all parties a full opportunity to appear, introduce evidence examine and cross-5
examine witnesses, and argue orally on the record. On September 4, 2018, General Counsel and
Respondent filed posttrial briefs in support of their positions.
After carefully considering the entire record, including my observation of the demeanor of
the witnesses, and the parties’ briefs2 I find that 10
FINDINGS OF FACT
Jurisdiction and Labor Organization Status
Respondent, Argos USA LLC d/b/a Argos Ready Mix, LLC, is a limited liability company
with an office and a place of business in Naples, Florida, where it engages in the manufacturing 15
and delivery of ready-mix concrete. In conducting its operations during the calendar year prior
to the issuance of the consolidated complaint, Respondent purchased and received goods valued
in excess of $50,000 directly from points outside the State of Florida. I find, that Respondent has
been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act. I also find that Construction and Craft Workers Local Union No. 1652, Laborers’ 20
International Union of North America, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act. (GC Exh. 1(j) and (l).)
UNFAIR LABOR PRACTICES
1. Background
In about 2011, Respondent purchased the Naples, Florida ready-mix batch plant3 facility25
(Naples facility) from Vulcan Enterprises which had purchased it from Florida Rock in about
2007. (Tr. 54, 57, 174, 2007.) Many of Respondent’s employees and management officials
worked for one or both of these predecessors or for other companies that Respondent has
purchased in the process of expanding its business into several southern states. (Tr. 55–56, 156,
242, 334.) Respondent owns about 300 ready-mix concrete batch plant facilities. Because 30

2 Although I have included citations to the record to highlight particular testimony or exhibits, my findings and
conclusions are not based solely on the highlighted evidence but upon my review and consideration of the entire
record. My findings of fact encompass the credible testimony, evidence presented, and logical inferences from the
evidence. Double D Construction Group, 339 NLRB 303, 303–305 (2003); Daikichi Sushi, 335 NLRB 622, 623
(2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir.
2003). Credibility findings regarding any witness are not likely to be an all-or-nothing determination and I may
believe that a witness testified credibly regarding one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
3 A batch plant consists of: large storage containers of concrete components such as cement, gravel, sand, and other
additives; a water supply; conveyor systems to refill the storage containers; and conveyor systems that deliver the
components to the shoot. The concrete mixer truck is maneuvered under the batch plant so that the shoot can deliver
the materials into the rear opening of its drum.
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ready-mix concrete maintains the correct slump4 for a limited period of time, the delivery
distance from a batch plant is correspondingly limited. For example, Respondent’s south Florida
geographical region, in which the Naples facility is located, is comprised of 23 batch plant
facilities employing 220 individuals of whom about 150 are ready-mix truckdrivers. (Tr. 244.)
To cover this number of facilities over a large geographical area, Respondent has an extensive 5
managerial hierarchy. Michael Beer (Beer) is the director of human resources for ready-mix
operations in the United States. (Tr. 55.) Beer oversees human resource managers who cover
various geographical regions. Monique Wallace is the human resource manager for the Florida
geographical area. Robert Marion (Marion) is the division manager for the south Florida
geographical area, which spans from Tampa to Miami, including the Naples facility. (Tr. 60, 10
353.) Chad Kennedy (Kennedy) is the district manager for the 15 facilities between Port
Charlotte and Naples employing about 40 drivers. He visits the Naples facility at least once per
week. (Tr. 333, 335–336.) Spencer Johnson (Johnson) is the plant supervisor at the Naples
facility. (Tr. 60.)5
The approximately 11 ready-mix truck-drivers at Respondent’s Naples, Florida facility are 15
Respondent’s only ready-mix drivers represented by a union.6 The Union was certified as their
bargaining representative in July of 2015. At the time of the hearing, Respondent and the Union
had not yet negotiated their first contract, and therefore, no grievance arbitration procedure was
in place. (Tr. 190–192.)
2. Naples facility20
The Naples facility is a large rectangular lot. For the most part, raw materials are stored at
the rear of the lot and structures are located around the perimeter or down the middle of the lot
allowing room for the trucks and equipment to maneuver. The batch plant sits in the center of
the lot. The two-story office building containing a second-floor batch plant control center and
office and a first-floor driver break room sits in line with the batch plant but closer to the front of 25
the lot. (Tr. 105-106; GC Exh. 7.) Mixer trucks not in use are typically parked along the front
perimeter or in a parking area towards one side of the office building.
Customer orders are taken by a centralized customer service and dispatch office in Sarasota,
Florida, and a computerized system sets the schedule for deliveries for the next day. (Tr. 247.)
The drivers call dispatch after 6 p.m. to receive their report time for the next morning. (Tr. 92.) 30
Because the delivery time is based upon customer needs, the drivers’ start and end time can vary
significantly from day to day. On a typical day, the drivers report at staggered times for their
first load of the day between about 5 and 6 a.m.7 End times also vary, but drivers usually
complete their last loads and clean their vehicles by 5 p.m. (Tr. 341.) Upon arrival, they clock in

4 Slump is the industry’s term for the correct consistency of concrete mixture to meet a customer’s order, including
the correct amount of moisture. (Tr. 94.)
5 Respondent refers extensively to Argos-Florida in its brief as if it is a separate entity, but it is simply a
geographical region established by Respondent’s supervisory structure. Respondent provided no evidence that it
maintained specific written policies for its Florida geographical region. As discussed more thoroughly below, the
policies at issue applied to all of Respondent’s employees regardless of which geographical area in which they work.
6 The Union represents: all full-time and regular part-time ready-mix drivers employed by the Respondent at its
Naples, Florida facility; excluding all other employees, office clerical employees, guards and supervisors as defined
in the Act (unit).
7 For the monthly safety meetings, all the employees report at the same time and attend the same meeting. (Tr. 261.)
JD–43–19
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in the break room and then perform the precheck inspection on their work truck. They take the
inspection form to plant supervisor Johnson for him to sign. The driver then puts fuel in the
truck, if needed, and then parks near the breakroom. The driver waits in the break room for a
ticket of laden.
The computerized dispatch system prints a ticket with all the delivery information and the 5
ready-mix truckdriver’s name. Johnson clips the ticket to a string and lowers it through a hole in
the office floor to the break room. Once a driver receives a ticket, the driver positions the ready-
mix truck under the batch plant shoot and notifies Johnson that the truck is ready to be loaded.
Johnson activates the computerized system and the batch plant loads the truck drum with the
materials to fill the customer’s concrete specifications. Once loaded the driver drives to the 10
slump rack. The slump rack consists of stairway up to an elevated platform. On each side of the
platform is an extension platform or catwalk that is raised to a vertical position when not in use
and lowered to a horizontal position when being used by drivers to inspect the concrete in the
truck drum. Two drivers can inspect their loads at the same time, one on each side of the slump
rack. The drivers must exit their trucks, climb the slump rack, visually inspect the slump of the 15
concrete, and add water or other additives if necessary to ensure the proper slump and concrete
specifications. (Tr. 159–160, 247–249.)
The driver commutes to the customer’s jobsite and assesses the jobsite for safety concerns.
After all concerns are addressed and the customer is ready to receive the concrete, the driver
dispenses the concrete as requested by the customer. A driver may be detained at a jobsite for 20
various reasons including unsafe conditions, rain, an inspection has not been completed, and
improper grade of the area on which the concrete will be dispensed. (Tr. 161–162, 164.) Pouring
concrete on certain types of construction, such as curbs and pools, requires periodic breaks in the
pouring while the concrete workers finish the concrete. These various delays can last mere
minutes to 90 minutes or more. (Tr. 163.) While waiting the truck can be parked but must remain 25
operating with the drum rotating to maintain the concrete. Depending on weather conditions and
the amount of wait time, the driver may need to climb up the truck to inspect the slump and add
water if needed one or more times before dispensing or continuing to dispense the concrete. (Tr.
165–166.) Once the drum is empty or the customer has received all the material needed, the
driver must wash out the drum before driving back to the facility. (Tr. 161.)30
Upon returning to the facility, the driver waits in the break room to receive another ticket.
Subsequent loads are assigned on a first in/first out basis dependent upon the order in which
drivers return to the facility after their first loads. (Tr. 257–258.) Frequently more than one
driver will be waiting for initial or subsequent tickets at the same time. On average drivers haul
between three and five loads per day. Respondent’s employees refer to the time it takes to be 35
loaded, deliver the load, and return to the facility, as turnaround time or roundtrip time. Based
upon Respondent’s records, the average round trip time is about 2 hours. (Tr. 159, 259, 295, 374;
R. Exh. 10, at pp. 1b - 26b under RTT column.) Time at the jobsite usually ranges between 20
and 80 minutes. (Tr. 161.)
A ready-mix truck weighs as much as 29,000 pounds unloaded and 70,000 pounds loaded. 40
(Tr. 74, 264.) Respondent’s data on roundtrip times shows that Excellent’s average roundtrip
time of 2.08 hours was consistent with the average round trip time of approximately 2.0 for all
the drivers at the facility. Also, the data shows that Excellent occasionally had roundtrip times
between 3 and 4 hours and only a few times in a year did his roundtrip time exceed 4 hours. (Tr.
JD–43–19
5
259, 295, 374; R. Exh. 10, at pp. 1b - 26b under RTT column.) This is consistent with employee
Perez’ testimony that he rarely has occasions where this roundtrip time exceeds 4 hours. (Tr.
161–162.)
The break room contains a refrigerator, coffee maker, microwave, tables and chairs, and a
restroom. Drivers are allowed to take at least short breaks between loads even if their next ticket 5
is available. Pursuant to Respondent’s policies, drivers may use their personal cell phones in the
break room, on the facility property, or in their personal vehicles and can store them in their
vehicles, the breakroom or the office area. One driver estimated that he was at the facility
between 15 and 20 percent of his work week. (Tr. 160.) The driver did not specify how much of
this time was performing necessary work duties such as the beginning of the shift pretrip truck 10
inspection and cleaning his truck at the end of the shift, and how much of that time is spent as
break time between loads. (Tr. 130.) While their work assignments are staggered often two or
more employees are engaged in these at the facility duties or taking a break between loads at the
same time. (Tr. 130, 143, 151–152.)
Each ready mix-truck is equipped with a two-way radio, often referred to as a CB radio. The 15
drivers communicate with dispatch, each other, and management via the radios. (Tr. 261.) The
radios are used to communicate work progress, jobsite safety issues, truck maintenance issues,
accidents, delays in work, etc. Communications on the radio are broadcasted to all company
radios that are turned on, tuned to the right frequency, and within range of where they typically
deliver. To broadcast a message via the radios, you pick up and key8 the mike with one hand, 20
bring the mike to your mouth, and speak. (Tr. 99, 167–168, 261.) Drivers frequently engage in
short nonwork related chatter over these radios without repercussion. (Tr. 239, 292, 313.)
Periodically management reminds employees that the radios are for business purposes only and
has specifically reminded employees of this policy, when employees have failed to be brief in
their nonwork related use of the radio frequency. (Tr. 292; GC Exh. 14.)25
Drivers use what is referred to as “10-codes” to communicate their progress in performing
deliveries via the two-way radios.9 For example, drivers use the code 10-2 to communicate that
they are leaving the facility to make a delivery. The dispatcher enters into the computer the
departure time for that delivery. Through this system and with the use of GPS tracking devices
on some trucks, Respondent keeps a computerized “utilization report” that shows when each 30
truck leaves the facility, arrives at the jobsite, starts and finishes pouring the concrete, leaves the
jobsite, and returns to the facility. (Tr. 168, 367, 378.) If employees want to stop for a short
break while they are returning to the facility, they communicate the code 10-7 to dispatch. Such
breaks are regularly allowed. (Tr. 102–104, 139–140, 171.)
Until the end of 2017, the Naples facility also delivered cement blocks to customers. (Tr. 84.) 35
The blocks were delivered on a shortened semi-tractor and flatbed trailer or on a straight truck
with a flatbed. (Tr. 85, 174). The trailers were equipped with a truck mounted forklift attached to
the back which is used to unload the block. The exact weight of these trucks is not in the record,

8 Witnesses used the term “key the mike” to mean depressing the talk button on the mike. (Tr. 261, 292, 313.)
9 Respondent uses the following 10-codes:
10-2 is leaving the plant to go to the jobsite; 10-3 is at the jobsite; 10-4 is a universal code to acknowledge
something; 10-5 is starting to pour the concrete; 10-6 finished the pour; 10-7 to stop for a short break,
especially when taking a break away from the facility; 10-8 on the road; 10-9 coming back to the plant; and 10-
10 at the plant. (Tr. 168.)
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6
but they are commercial trucks estimated to weigh more than 10,000 pounds. (Tr. 85–86, 237.)
The flatbed truckdrivers used Nextel flip phones to communicate. A Nextel phone can be used
like a cell phone, and it can have preprogrammed contacts. Once the preprogrammed contact is
selected, the phone functions much like a walkie-talkie in that you push a button to talk and
release it to receive communications. (Tr. 175–176, 237.) Nextel phones only broadcast to the 5
selected contact.
Maintenance employees drive Ford 350 or 450 pickup trucks with side utility boxes and in
some cases a welder. Maintenance employees use these trucks to carry tools and equipment to
repair vehicles away from the facility. Maintenance employees may possess cell phones in these
trucks to communicate, provided that rules for hands free operation are followed. (Tr. 81–82; GC 10
Exh. 5.)
3. Respondent’s work rules and policies
The General Counsel contends that the following exerts of Respondent’s work rules and
policies and employee acknowledgement forms separately or in combination violates Section
8(a)(1) of the Act.15
a. Employee confidential information agreement
Since at least June 11, 2014, Respondent has required that all employees abide by an
“Employee Confidential Information Agreement” stating that employees may have access to
“confidential Company information,” and that they:
understand and agree that [they] may only use such confidential information for 20
purposes of carrying out Argos' business, and [they] may not make use of or
disclose any such confidential information during or after termination of [their]
employment with Argos without the express written consent of the General
Counsel of Argos.
The document defines “confidential information” to include: 25
all private information not generally known in the industry and not readily
available, written or otherwise including, but not limited to, information regarding
Argos' customers, customer lists, prospective customers, customers' buying
habits, production methods (including designs, formulas, techniques, processes),
any non-published prices, discounts, commissions, costs, supplier information, 30
earnings, contracts, employee information, subcontractors, business plans,
marketing and/or supply strategies, training programs, computer software or
programs, and other business arrangements. [GC Exh. 3.]
General Counsel, in brief, contends that the inclusion of the terms “earnings” and “employee 35
information” in this list constitutes a violation of the Act.
b. Electronic communications policy
All of Respondent’s employees are required to sign its “Electronic Communications Policy 40
Acknowledgment Form” which states, in pertinent part, that the employee understands that
JD–43–19
7
Respondent’s email system “is to be used for business purposes and not for personal purposes.”
(Tr. 69; GC Exh. 4.) The record contains little evidence of employee use of the email system.
The only individuals who have email access at the batch plant facilities are the plant supervisors.
Employees who periodically fill in for the plant supervisors use the supervisors’ email accounts
to send and receive information about the batch work they perform. General Counsel failed to 5
solicit evidence about whether other statutory employees such as employees who work in
centralized dispatch or clerical employees, as excluded from the unit description, have access to
Respondent’s email system via individualized email accounts. I note that Respondent provided
information concerning only the batch plant employees’ lack of access to Respondent’s email
system and specifically avoided the issue as to whether the rule applied to other statutory 10
employees. (Tr. 381, 397.)
c. Cell phone rules and policies
The following portions of Respondent’s work rules and policies regarding cell phone use have 15
been in effect since at least June 1, 2014, at all of its facilities:
Commercial Vehicles and Heavy Equipment:
It is strictly prohibited for a cell phone to be in the cab of a commercial and/or
heavy equipment vehicle; (i.e. “commercial vehicles” are defined as having a 20
gross vehicle weight of 10,000lbs. or more including any heavy equipment used
on the plant yard). This prohibition also extends to the use of any accompanying
equipment (e.g. earpieces or hands-free devices) and applies regardless of where
the commercial vehicle is being operated. Employees are encouraged to leave
their cell phones in personal vehicles at all times. If a driver in a commercial 25
vehicle is involved in an accident, the company reserves the right to look at the
driver’s cell phone call history (including their personal cellphone), to determine
if the driver was using his/her phone at or around the time of the accident.
Medium Duty Trucks, Small Trucks, and Light duty Passenger Vehicles
Cellphone use is not permitted in a light duty (passenger) vehicle that is in 30
motion, at any time, unless the employee is using a completely hands free device.
When using a hands free device the driver must be able to operate, place and
receive calls from the phone without distraction. The driver must not attempt to
make notes or write while driving. If the driver finds it necessary to do so, they
may have to pull the vehicle over and park in a safe manner and place before 35
continuing the call.
Disciplinary Action
Failure to follow any aspect of the cell phone policy will result in a minimum of a
three (3) day suspension and final written warning for the first offense and could
result in termination depending on other disciplinary write-ups in the employee’s 40
file under the progressive discipline guidelines. [GC Exh. 5.]
JD–43–19
8
In addition to these portions of Respondent’s work rules and policies addressing cell phone
use, employees working in approximately 110 facilities in Respondent’s South Central Region,
including Texas, Arkansas, and Florida have also signed “Cellular Telephone Acknowledge-
ment” forms. The acknowledgement form that Excellent signed on June 11, 2014, states, in
relevant parts:5
--that “possession of any cell phone while driving and/or on any job site . . . can
lead to immediate termination;”
--that Respondent has “a zero tolerance for the use of cellular telephones while
operating an Argos, USA commercial motor vehicle;” and 10
--that “use or possession of cellular telephones are (sic) prohibited while
operating any Argos, USA commercial motor vehicles.” (GC Exh. 4.)
In November of 2016, at least the employees in the South Central Region, including
Excellent, were again required to sign a “Cellular Telephone Acknowledgement” form which 15
states, in relevant part:
The use or possession of cellular telephones is prohibited while operating any
Argos, USA commercial motor vehicles. [GC Exh. 2.]
20
In about 2015, Beer distributed to all of Respondent’s human resource officers, managers, and
supervisors a “Progressive Discipline Table—A Guideline,” which states that “[u]sing radios,
tape recorders, cameras, cell phones, or other appliances and electronic devices, except as
authorized by the Company” is listed under “Step 2: Written Warning—Document to file.” (Tr.
229; GC Exh. 10.) The discipline table was meant to be used as a guideline for managers and 25
supervisors in assigning discipline. (Tr. 229.)
Respondent’s prohibition on the possession of cell phones in its heavy commercial trucks is
more restrictive than the Federal Motor Carrier Safety Administration (FMCSA) regulations,
which allows the use of cell phones while driving such vehicles as long as certain standards for
hands free operations are met. (Tr. 243–244; GC Exh. 11.) See also, 49 CFR § 392.80–392.82; 30
76 Fed. Reg. 75470, 75481 (Dec. 2, 2011).
Beer testified about two ready-mix truck accidents that resulted in the death of the drivers and
how such incidents contributed to Respondent’s initiation and/or maintenance of the cell phone
policies. (Tr. 432–439.) As General Counsel notes in his posthearing brief, Respondent
presented no documentary evidence to support Beer’s assertion that cell phone usage played a 35
role in these accidents or any other accident caused by Respondent’s drivers. While I have no
doubt that two drivers were killed in accidents while performing work and these incidents were
traumatic for Respondent’s personnel, I find that Beer did not adequately explain through his
testimony or documentary evidence the basis for his assertion that cell phone use contributed to
the cause of these accidents. For example, Beer testified that one driver lost control of the ready-40
mix truck he was driving because he “reached for his cell phone,” but there was no explanation
as to how Beer had such knowledge. (Tr. 432.) Even if Beer’s testimony is accurate, I note that
these employees were using or attempting to use cell phones while driving. There is no evidence
of record that the mere possession of a cell phone in a ready- mix truck caused any accident.
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Furthermore, the devastating accidents to which Beer testified occurred well after the cell phone
policy was instituted and could not have been the impetus for enacting it.
4. Excellent’s suspension
Excellent testified that he arrived at work on March 3, 2017, at about 7:00 a.m. and parked in 5
his usual spot close to the dumpsters. (Tr. 104; GC Exh. 7, marked as “B” on the photo.) After
getting out of his car he walked past the slump rack and went to the drivers’ break room. (Tr.
104; GC Exh. 7, marked as C and A on the photo.) Excellent claims that while waiting for his
first load ticket in the break room, he noticed that his cell phone was missing and started to
search for it in the break room and by asking other drivers about it. Before locating his cell 10
phone, he received a ticket and left to deliver the load. (Tr. 108.) Upon returning from the
delivery, he again attempted to locate his cell phone and asked plant manager Johnson about it.
Johnson responded that Keith Chadwick, a ready-mix truckdriver and backup plant operator for
Johnson, had found it near the slump rack and gave it to Johnson. (Tr. 109.) Excellent testified
that Johnson told him it was okay to have his cell phone at the facility and that he was not going 15
to tell Marion about it because Marion might consider the location where it was found
suspicious. (Tr. 110.) Excellent returned to the break room to wait for his next ticket. (Tr. 112.)
I give little credit to Excellent’s version of events on March 3 because it is inconsistent with
the record as a whole. In general, Excellent had a tendency to exaggerate details of his work
such as the frequency of being assigned deliveries with turnaround times of more than 4 hours,20
when company records and the testimony of another driver do not support such claims. (Tr. 94,
95, 132; R. Exh. 10.) The tone of Excellent’s voice evidenced animosity that likely influenced
his perception or accurate recollection of the events. Other portions of his testimony were
simply inaccurate. For example, Excellent stated that he had misplaced his cell phone while
waiting for his first load of the day and approached Johnson about his missing cell phone after 25
making that first delivery. Company records show that Excellent was issued his first ticket at
6:17 a.m. and that he returned to the plant at 8:07 a.m. He was issued a second ticket at 8:26
a.m. and returned to the plant at 10:04 a.m. (R. Exh. 10, at 26a and b.) Then he was not assigned
another load.
I find other portions of Excellent’s testimony implausible considering all the circumstances. 30
For example, Excellent stated that he regularly stored his cell phone in his personal vehicle while
making deliveries. If that is what occurred on March 3, one would think he would remember
returning to his vehicle during the 19 minutes between trips to retrieve his phone and
immediately thereafter being unable to locate it. No witnesses corroborated Excellent’s
testimony that he asked them if they had seen his cell phone before leaving to deliver his second 35
load. Additionally, Excellent’s claim that Johnson told him he was not going to tell Marion
where the phone was found is also implausible. I can think of no reason that would have caused
Johnson to mentioned Marion only to lie to Excellent about what he would tell Marion. I also
note Excellent’s lack of testimony expressing his conviction that the only way his cell phone
could have possibly ended up by the slump rack was that he dropped it on his way from his car to 40
the break room. While he would have crossed over the driveway that passes by the slump rack
on his way to the break room his proximity to the slump rack when doing so is not established in
the record and could have varied significantly based upon where he entered the break room.
Finally, Excellent admitted that he sometimes kept his cell phone with him and, as discussed
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more below, refused to provide Respondent with his cell phone records to prove he had not made
calls from his cell phone while away from the facility.10 (Tr. 115, 153, 285.) Thus, considering
the entire record, I do not find Excellent’s testimony reliable when it is rebutted by other
testimony or documentation.
Accordingly, I credit the testimony of Marion and Kennedy as to their interactions with 5
Excellent after they arrived at the facility in response to learning that Chadwick had pulled up to
the slump rack right behind Excellent and found his phone within 10 feet from where Chadwick
exited his vehicle to use the slump rack. (Tr. 270–271.) Their testimony is consistent with each
other’s testimony and company records, and nothing in their demeanors gave me reason to
discredit their testimonies as to their interactions with Excellent.10
After speaking with Johnson, Excellent waited in the driver’s break room. Marion and
Kennedy arrived and spoke with Johnson and Chadwick about the situation. Although Marion
was familiar with the area around the slump rack and understood Chadwick’s description,
Marion had Chadwick show him where he found the cell phone.
Excellent was asked to participate in a meeting with Marion, Kennedy, and Johnson in the 15
office. Another driver attended the meeting as a witness, but the union was not informed of the
meeting. Marion explained to Excellent that because his phone was found close to the slump
rack they were going to investigate. Marion asked Excellent if he had taken his cell phone in his
truck cab, and Excellent denied that he had. (Tr. 271.) Excellent claimed that he always carried
his cell phone in his pocket while he was at the facility and that he had no idea how it ended up 20
by the slump rack. Marion informed Excellent that he was suspended, pending an investigation.
Excellent washed out his truck, clocked out, and left the facility. Later that same day, Kennedy
called Excellent and told him not to report to work the next day. (Tr. 114.)
On March 6, Kennedy called Excellent and told him that the investigation was ongoing and
not to report to work. Kennedy told Excellent that they wanted him back at the facility and 25
requested that Excellent submit his cell phone records for the 2 months leading up to and
including March 3 to verify that he had not used his cell phone while working away from the
facility. Excellent adamantly refused to provide any of his cell phone records and directed
Kennedy to speak to the Union about this matter. (Tr. 116, 352–353.)
On March 8, Beer emailed Rolle informing him that Excellent had been suspended pending 30
investigation. (Tr. 192, 194; GC Exh. 8.) This was the first communication that the Union
received concerning Excellent’s unpaid suspension. (Tr. 117, 192, 194.) Beer and Rolle
communicated multiple times by telephone and email over the next 7 weeks attempting to
resolve the situation. Beer continued to request Excellent’s cell phone records and offered to
shorten the timeframe of the requested period. Beer provided Rolle with utilization records 35

10 When asked why he would use his cell phone at work, Excellent responded that he would use it to keep in touch
with his family. (Tr. 137–138.) General Counsel did not solicit any testimony concerning employee use of cell
phones for Sec. 7 purposes. Beer testified that Respondent lost the representation election 13 to 1 with the cell
phone policy in place in support of Respondent’s argument that employees have sufficient opportunity to
communicate with each other. I find that the election results do little to evidence employees’ opportunity to
communicate with each other. I have no way of knowing if or how much they communicated with other employees.
The employees may have favored unionization for various reasons without significant communication with each
other.
JD–43–19
11
illustrating how he could compare the trip times to Excellent’s cell phone call history if provided.
(R. Exh. 11(a)-(k).) Beer explained that based upon the circumstances, Respondent believed that
Excellent had his cell phone with him in the cab of the truck. Respondent was willing to
disregard that conclusion if Excellent’s phone records verified that he had not made calls when
the utilization record evidences that he was working away from the facility. For example, Beer’s 5
March 9, 2017 email to Rolle included copies of the driver utilization report for Excellent from
January 1 to March 3, 2017. Beer explained how to read the report and stated: “This report
should address your concerns about the company being able to match [Excellent’s] phone
records to his being in the truck versus just being punched in.” (R. Exh. 11(a) at p. 1.) Beer
testified that he was willing to work with Rolle to attempt to verify Excellent’s claim that he did 10
not possess the phone in his work truck, because Excellent was an efficient, reliable driver.
Excellent was still unwilling to provide the requested records.
Ultimately Respondent decided that the available evidence supported its conclusion that
Excellent had his cell phone with him in the cab of the ready-mix truck and that he dropped it
when he exited the truck to use the slump rack, which resulted in Chadwick finding it 15
immediately thereafter. Respondent determined that Excellent’s failure to provide another
reliable explanation for why the cell phone was found in that location and his unwillingness to
provide any of his cell phone records supported that conclusion. (GC Exh. 6.) On April 26,
2017, Beer communicated this determination to Rolle by email marking the point of impasse in
the parties’ negotiations. 20
On about April 28, 2017, Respondent issued a discharge letter to Excellent informing him of
the termination of his employment for violating the cell phone policy. (GC Exh. 6; Tr. 117.) The
letter stated in pertinent part:
As we have made clear from the outset of your employment, Argos, USA has
zero tolerance for the use or possession of a cellular telephone while operating 25
a commercial motor vehicle or while on any job site. . . . Management has
consistently adhered to a past practice of terminating all employees who
violate the company’s cell phone policy. After a thorough review of the facts
before us and after carefully considering the arguments and proposals
advanced by the Union on your behalf; management has decided to apply that 30
practice to the circumstances of your case, and to terminate your employment
effective immediately. [GC Exh. 6.]
On May 25, 2017, Beer made another attempt to resolve the matter by requesting
that Excellent provide cell phone records and the parties meet to compare the records to 35
the driver utilization report. (R. Exh. 11(k).) Neither Excellent nor the Union agreed to
this offer.
5. Comparable discipline for violating the cell phone policy
Beer, Marion, and Kennedy testified that Respondent has a consistent policy of immediately 40
suspending employees pending investigation in situations involving a suspected cell phone
policy violation. (Tr. 283, 314, 349, 365, 401, 437.) As Respondent asserts, no testimony rebuts
JD–43–19
12
these claims as far as the suspension pending investigation and subsequent discharge practice
that managers in the south Florida Region practiced.
The evidence from Respondent’s Florida operations shows that 10 alleged cell phone policy
violations resulted in suspensions, pending investigation and culminated in discharge. (See Tr. 5
235–237 and GC Exhs. 12 and 13; Tr. 304 and R. Exh. 3; Tr. 304 and R. Exh. 5; Tr. 356–357
and R. Exh. 6; Tr. 358 and R. Exh. 7; Tr. 359–361; Tr. 362 and R. Exh. 9; Tr. 425 and R. Exh.
12; Tr. 436 and R. Exh. 13; R. Exh. 15; Tr. 426 and R. Exh. 16.) These incidents ranged from
employees being observed using cell phones while driving to employees only possessing cell
phones or blue tooth devices in Respondent’s commercial vehicles. An example of the types of 10
cell phone use that resulted in employees being discharge is ready–mix driver Bello’s situation.
Bello spilled concrete while making a delivery. He used his cell phone to take pictures of the
spill and called management. His termination notice cited both the use of his cell phone for
taking a picture of the spill and for calling management as evidence that he violated the policy.
(R. Exh. 8.) There was no contention that Bello had used his cell phone while driving. 15
In one incident arising in Florida, Respondent was unable to verify whether the driver was
suspended before being discharged, but Beer testified that the policy should have been followed.
(Tr. 436–437 and R. Exh. 14.) According to Beer this policy was implemented company wide,
but the records do not reflect that this was ever a written policy. Beer testified that as 20
Respondent has acquired more and more facilities, implementing uniform policies and uniformly
enforcing them has been an ongoing process. This is apparent in the varying discipline forms
used and discipline issued at various locations. The record reflects that these locations
maintained the cell phone policy forbidding the presence of a cell phone in the cab of a ready-
mix truck, but their procedures in handling cell phone violations differ greatly. (GC Exh. 16–24; 25
R. Exh. 17-53.)
In reviewing the documents from outside the south Florida region, Beer’s assertion that he
enforced a company-wide policy of suspension pending investigation before discharge is not
reflected in Respondent’s records. In14 incidents where employees were found to have violated 30
the cell phone policy by having and/or using a cell phone in the cab of a ready-mix truck, the
employees were suspended typically for 3 days or given some other punishment short of
discharge. There is no evidence that these employees were suspended pending investigation
before they were issued discipline. (GC Exhs. 16–24; R. Exhs. 25, 45, 52, 53.) In four of these
incidents employees where issued discipline short of termination for violating the cell phone 35
policy, and those disciplines were used later in the progressive discipline process to discharge
them only after they violated some other policy, as the Company’s discipline policy states. (GC
Exhs. 23, 24: R. Exhs. 25, 45, 52, 53.) In 33 situations, the employees were discharged for
violating the cell phone rule, but the records do not indicate that they were suspended pending
investigation before they were discharged. (R. Exh. 17–42, 46–52.) Often the records reflect that 40
the discharge was effective immediately and no passage of time between the incident and the
date of discharge occurred. In two other incidents, the employees were suspended and then later
discharged for violating the cell phone policy similar to what occurs in Respondent’s Florida
region. (R. Exhs. 43 and 45.) In each of these discipline situations, Respondent had more direct
evidence that an employee had violated the policy in comparison to Excellent’s situation. 45
JD–43–19
13
Additionally, the records in two discipline situations reflect that as late as October 2016,
Respondent allowed some of its employees to transport a cell phone in a yellow box attached to
the outside of the ready-mix truck, but the employees were forbidden from having the cell phone
in the cab of the truck. (R. Exhs. 53 and 18.)
5
ANALYSIS
1. Respondent’s work rules
a. Board precedent analyzing employee rules
10
The Board has long found that employers’ rules, policies or handbook provisions that
reasonably tend to chill employees’ exercise of their rights guaranteed by Section 7 of the Act,
whether enforced or not, violate Section 8(a)(1) of the Act. Lafayette Park Hotel, 326 NLRB
824,825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999); Beverly Health & Rehabilitation Services,
332 NLRB 347, 349 (2000), enfd. sob nom Beverly Health & Rehabilitation Services v. NLRB, 15
297 F.3d 468 (6th Cir. 2002). Some rules on their face blatantly interfere with employees’
Section 7 rights, such as a rule that directly prohibits employees from discussing their wages.
Other rules clearly do not involve employees’ Section 7 rights, such as a rule prohibiting
working under the influence of a controlled substance.11 Other employee rules, intentionally or
not, are facially neutral but written in ambiguous or broad language or in the context of other 20
language that requires the employee to interpret the meaning of the rule and its implications on
their Section 7 rights. These rules that touch upon Section 7 rights and lend themselves to
interpretation due to vague, ambiguous, or broad terms are the subjects of much litigation before
the Board.
25
The Board’s latest attempt to develop a standard to analyze whether employer rules infringe
upon their employees’ Section 7 rights is set forth in Boeing Co., 365 NLRB No. 154 (2017). In
Boeing, the Board’s new standard specifically overruled the holding in Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004), finding a facially neutral rule violates the Act when
employees “would reasonably construe” it to interfere with, coerce or restrain them in the 30
exercise of Section 7 rights. Id. at slip op. 2. Instead, the Board applied a “reasonable
employee” standard to determine if employees could reasonably interpret a facially neutral rule
to infringe upon their Section 7 rights. Id. The Boeing standard requires that:
a facially neutral policy, rule or handbook provision that, when reasonably 35
interpreted, would potentially interfere with the exercise of NLRA rights, the
Board will evaluate two things: (i) the nature and extent of the potential impact on
NLRA rights, and (ii) legitimate justifications associated with the rule. We
emphasize that the Board will conduct this evaluation, consistent with the Board's
“duty to strike the proper balance between . . . asserted business justifications and 40
the invasion of employee rights in light of the Act and its policy,” focusing on the

11 While any rule could be discriminatorily promulgated or applied in retaliation for employees’ protected activity in
violation of Sec. 8(a)(3) and (1) of the Act, there are no allegations that the rules at issue in this matter were
discriminatorily promulgated or applied.
JD–43–19
14
perspective of employees, which is consistent with Section 8(a)(1).12 Id. at slip
op. 3.

I agree with General Counsel that the rules at issue in this case are facially neutral rules that,
when reasonably interpreted, would potentially interfere with the exercise of rights afforded by 5
the Act, and therefore, should be given individual scrutiny under the standard set forth in Boeing
“to strike the proper balance between . . . asserted business justifications and the invasion of
employee rights in light of the Act.” Id. The Board in Boeing clarified that:
when a rule, reasonably interpreted, would prohibit or interfere with the exercise 10
of NLRA rights, the mere existence of some plausible business justification will
not automatically render the rule lawful. Again, the Board must carefully evaluate
the nature and extent of a rule’s adverse impact on NLRA rights, in addition to
potential justifications, and the rule’s maintenance will violate Section 8(a)(1) if
the Board determines that the justifications are outweighed by the adverse impact 15
on rights protected by Section 7. Id. at slip op. 16.
In Boeing, the Board majority did not specifically address the concept of a facially neutral
rule being unlawful because it is overbroad and more tailored language would protect the
employer’s legitimate business justifications without or with less infringement on employees’ 20
Section 7 rights. See Cintas Corp., 344 NLRB 943, 945 (2005), enfd. by Cintas Corp. v NLRB,
482 F.3 463 (D.C. Cir. 2007). The Board’s emphasis in Boeing on its duty to “carefully evaluate
the nature and extent of a rule’s adverse impact on NLRA rights” seems to support the idea that
the extent of the infringement on employees’ rights (i.e. the broadness of the rule) is part of the
balancing test. 25
Furthermore, the Board did not over turn Lafayette Park Hotel in which the Board reaffirmed
its precedent finding that the mere maintenance of overbroad work rules can violate Section
8(a)(1). Lafayette Park Hotel, 326 NLRB 824, 825, 828 (1998); American Cast Iron Pipe Co.,
234 NLRB 1126 (1978), enfd. 600 F.2d 132 (8th Cir. 1979). Therefore, I must assess the 30
lawfulness of Respondent’s employee confidential information agreement and its electronic
communications policy; even though, there is no evidence in the record that these rules have
been used to discipline any employee.

35

12 In Boeing, the Board stated that through future cases it will place rules into 3 categories: Category 1—will consist
of facially neutral rules that when, reasonably interpreted, would interfere with the exercise of NLRA rights but that
the Board designates as lawful to maintain (i.e. rules prohibiting certain conduct, at least in a certain types of
industries, for which the Board has determined that employer business justifications outweigh the impact on
employees’ rights under the Act); Category 2—rules that warrant individualized scrutiny using the standard set forth
above; and Category 3—rules that the Board designates as unlawful to maintain apparently in any setting. Since the
Boeing decision, the Board has yet to provide additional guidance in subsequent decisions allotting specific rules to
these categories. Therefore, I find it necessary to apply individual scrutiny to the rules at issue in this matter by
evaluating them in light of the two-part standard set forth in Boeing.
JD–43–19
15
b. Employee confidential information agreement
Respondent’s employee confidential information agreement recognizes that employees may
have access to “confidential Company information” and limits employees’ “use” of that
information for “only” the “purposes of carrying out Argos’ business.” The policy goes on to
specifically forbid the use or disclosure of such confidential information “without the express 5
written consent of the General Counsel of Argos.” The policy defines confidential information
as “all private information not generally known in the industry and not readily available, written
or otherwise including, but not limited to, information regarding…earnings, . . . [and] employee
information. . . .”
The string of items listed in the definition initially are confined to information concerning 10
Respondent’s proprietary interests such as customers, suppliers, subcontractors, production
methods, contracts, pricing, and business plan. I agree with Respondent that confidentiality
provisions limited to these investment and proprietary information of a company do not impact
employees’ Section 7 rights or to the extent that they may, a company’s legitimate business
interests would outweigh the infringement on employee rights.13 If the list contained only terms 15
confined to Respondent’s proprietary interests, a reasonable employee may read the term
“earnings” to apply solely to earnings of the company, but the inclusion of the term “employee
information” in the list clarifies to the reader that the definition encompasses more than company
proprietary business information. Thus, applying the reasonable employee standard articulated
in Boeing, I find that a reasonable employee would interpret the inclusion of the term earnings to 20
include employee wages in the context of this rule.14 The Board has long held that the ability for
employees to discuss their wages amongst themselves is a core right protected by Section 7 of
the Act. See Victory, LLC d/b/a Victory Cruises II, 363 NLRB No. 167, slip op. at 6–7 (2016);
Waco, Inc., 273 NLRB 746, 748 (1984); In re Alaska Ship & Drydock, Inc., 340 NLRB 874, 878
(2003); Continental Chemical Co., 232 NLRB 705 (1977). 25
I further find that a reasonable employee would likely interpret the term “employee
information” to include a broad range of information about employees, such as names, addresses,
phone numbers, wages, raises, benefits, promotions, discipline, etc. I find that it is difficult to
derive another meaning of the term based upon the context of the list, because it is not a logical
extension of that list and sticks out as not being related to the other terms. The language of the 30

13 Respondent relies heavily on NLRB General Counsel Memorandum 18-04 and Advice Memorandum re: Case
20–CA–171751 in contending that its confidentiality policy should be considered lawful under Boeing as a
Category I, lawful rule. (R. Br. at pp. 66–69.) First, I note that such memoranda are not Board precedent. Instead,
they are only the position of General Counsel, one of the parties to any complaint before the Board. Furthermore,
neither of these memoranda addresses the issue in this matter: whether the inclusion of the terms “earnings” and
“employee information” in a confidentiality rule that would otherwise be limited to a company’s investment and
proprietary information is unlawful? Notably, the confidentiality clause at issue in the Advice Memorandum does
not include the term “employee information.”
14 Respondent argues that no evidence of record refutes its assertion that the term “earnings” in the confidentiality
agreement refers to company earnings. No evidence of record supports that assertion or a finding that such a
clarification of the term was ever published or communicated to the employees. I note that Respondent’s brief does
not cite actual evidence to support the assertion that the term meant company earnings. Instead, it cites only to
Respondent’s opening statement for the proposition that the term refers to “company earnings.” (R. Br. at p. 68; Tr.
51.) Respondent’s asserted, but uncommunicated meaning does not shed light on how a reasonable employee would
interpret the term in the context of Respondent’s published rule. Thus, I give no weight to this argument.
JD–43–19
16
rule in no way limits the rule to more sensitive employee information and is not limited to
employees who have knowledge of such information solely from access to employee files which
contain personal information such as bank account and social security numbers, medical
information, etc. Without a readily apparent alternative meaning based upon the context of the
provision, reasonable employees will interpret it to mean that no employee is permitted to share 5
employee information despite how they acquired that information. Furthermore, I find no
language noting exceptions to the confidentiality rule which would permit employees to discuss
their general knowledge of employee contact information, compensation, discipline, or any other
specific terms and conditions of employment with fellow employees or the public.
10
The Board has long held that rules enforcing nondisclosure of confidential employee
information to infringe upon employees’ Section 7 rights. In Flex Frac Logistics, 358 NLRB
1131 (2012), affd. in relevant part 198 LRRM 2789 (5th Cir. 2014), the Board restated
established precedent that “. . . nondisclosure rules with very similar language are unlawfully
overbroad because employees would reasonably believe that they are prohibited from discussing 15
wages or other terms and conditions of employment with nonemployees, such as union
representatives—an activity protected by Section 7 of the Act.” IRIS U.S.A., Inc., 336 NLRB
1013, 1013 fn. 1, 1015, 1018 (2001) (finding rule unlawful that stated all information about
“employees is strictly confidential”); Double Eagle Hotel & Casino, 341 NLRB 112 (2004) (rule
prohibiting employees from discussing grievance/complaint information, disciplinary 20
information and other work-related matters unlawful).
Therefore, I find that Respondent’s confidentiality rule “when reasonably interpreted, would
potentially interfere with the exercise of NLRA rights,” necessitating an analysis of “(i) the
nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications 25
associated with the rule.” Any rule that is reasonably interpreted, as I have found here, to
prevent employees from discussing their wages, compensation, promotions, hours, discipline,
contact information, etc. has the potential for significant impact on employee exercise of Section
7 rights. Such employee information is the subject of and the foundation for most protected
concerted activities under the NLRA. While Respondent, like most any company, has a 30
substantial interest in protecting its trade secrets, customer and supplier lists, and other
proprietary interests, these legitimate employer interests are not demonstratively furthered by
prohibiting employees from discussing or sharing employee information including employee
earnings. In some circumstances, employers may have a duty to prevent employees with access
to human resource files from divulging certain employee information such as medical 35
information, but Respondent’s rule is not narrowly tailored to address this concern.
Significantly, Respondent failed to assert any justification for the necessity of including these
terms in the confidentiality definition in order to protect its legitimate proprietary interests.
Accordingly, I find under the circumstances of this case that the Respondent's maintenance of 40
a rule requiring employees to keep confidential earnings and employee information violates
Section 8(a)(1) of the Act.
45
JD–43–19
17
c. Respondent’s electronic communications policy
In Purple Communications, Inc., 361 NLRB 1050 (2014), the Board overturned prior
precedent and found that it:
will presume that employees who have rightful access to their employer's email 5
system in the course of their work have a right to use the email system to engage
in Section 7-protected communications on nonworking time. An employer may
rebut the presumption by demonstrating that special circumstances necessary to
maintain production or discipline justify restricting its employees' rights. Because
limitations on employee communication should be no more restrictive than 10
necessary to protect the employer's interests, [the Board] anticipate[d] that it will
be the rare case where special circumstances justify a total ban on nonwork email
use by employees. In more typical cases, where special circumstances do not
justify a total ban, employers may nonetheless apply uniform and consistently
enforced controls over their email systems to the extent that such controls are 15
necessary to maintain production and discipline. Id. at 1063.
I agree with General Counsel and Respondent that the holding in Boeing does not overturn the
Board’s holding and standard set forth in Purple Communications.15 (GC Br. at pp. 41–42.) In
Purple Communications, the Board balanced the competing property rights of a company over its
email system and the rights of employees Section 7 rights in favor of the employees’ rights. If 20
an employer maintains a ban on employee use of its email system for personal communications
during nonwork time the rule is presumed unlawful, then it is the employer’s burden to prove
that special circumstances exist in its operations sufficient to tilt the balance of competing rights
in the employer’s favor.16
As discussed above, there is scant evidence in the record about who utilizes Respondent’s25
email system or to whom the rule limiting its use “for business purposes and not for personal
purposes” is applicable. The fact that the ready-mix unit employees focused upon in this case
did not have access to the email system is not dispositive of the issue of whether the rule
unlawfully infringes on any of Respondent’s employees’ Section 7 rights. The evidence reflects
that Respondent requires all of its employees to sign the policy. Respondent witnesses never 30
testified that the rule is not applicable to any of Respondent’s employees. I note that the
questions posed by Respondent’s counsel to its witnesses were specifically limited to batch plant
employees and thereby tailored to avoid the issue of whether it is applicable to other statutory
employees of Respondent. Despite what appeared to be active avoidance by Respondent and a
failure by General Counsel in soliciting relevant evidence on this issue, I can only conclude that 35
there are some statutory employees assisting in the operations of a company the size of
Respondent’s with access to its email system, hence Respondent’s requirement that employees
sign the policy.
To the extent that Respondent employs statutory employees with access to its email system,40
the Board presumes the policy to be an unlawful invasion on their Section 7 rights. Respondent

15 Respondent argues further that Purple Communications should be overturned, but I am bound by the Board’s
current precedent. (R. Br. at pp. 71–73.)
16 The Board’s balancing test in Purple Communications is similar to the balancing test required by Boeing.
JD–43–19
18
presented no evidence to rebut that presumption. Accordingly, I find that to the extent
Respondent’s policy stating that its email system “is to be used for business purposes and not for
personal purposes,” is applied to statutory employees with access to the email system, it is a
violation of Section 8(a)(1) of the Act.
5
d. Respondent’s limits on personal cell phone usage

General Counsel concedes that Respondent has a legitimate safety interest in forbidding
employees from using cell phones while driving heavy commercial vehicles, including ready-
mix trucks. General Counsel has not taken the position that the ready-mix truckdrivers should be 10
allowed to use cell phones via hands free devices while operating the trucks as is allowed by the
FMCSA regulations. Instead, General Counsel contends that Respondent’s cell phone policy’s
prohibition on mere possession of a cell phone in its heavy commercial vehicles is overly broad
and not narrowly tailored to address its legitimate safety interests in violation of its employees’
protected Section 7 rights, because it denies them access to their cell phones during nonwork 15
time. Respondent contends that its policy against possessing a cell phone in its heavy
commercial vehicles is necessary to ensure that drivers do not use cell phones while driving.
Respondent claims that the weight of the ready-mix trucks, 70,000 pounds when loaded, makes
them more dangerous than other vehicles operated by some of its employees necessitating the
more stringent rule applied to them. 20
“The Board has long held, with court approval, that the Section 7 right to organize and
bargain collectively ‘necessarily encompasses the right effectively to communicate with one
another regarding self-organization at the jobsite.’” Purple Communications, supra at 1062,
quoting Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978). See also, Estex Inc. v. NLRB, 25
437 U.S. 556, 565 (1978); Central Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972); Republic
Aviation, 324 U.S. 793, 803 (1945); Parexel International, LLC, 356 NLRB 516, 518 (2011).
“The place of work is a place uniquely appropriate for dissemination of views” by employees.
NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974). The Board has also held that employees may
use personal devices to record and photograph information in furtherance of their Section 7 30
rights, absent a legitimate business reason to prohibit such conduct. Boeing, supra at ____;
Hawaii Tribune-Herald, 356 NLRB 661, 661 (2011), enfd. sub nom. Sthephens Media, LLC v.
NLRB, 677 F.3d 1241 (D.C. Cir. 2012); Republic Aviation, 324 U.S. 793, 803 (1945).
While Respondent’s cell phone policy does not facially prohibit employees from discussing, 35
photographing or recording information about their terms and conditions of employment, it
effectively prevents them from doing so while away from the facility. Accordingly, under
Boeing, I must evaluate (i) the nature and extent of the potential impact on NLRA rights, and (ii)
legitimate justifications associated with the rule.
40
Employees’ personal cell phones are by far the most commonly used devices by which
employees engage in non-face-to-face conversations (via text, talk, or email), take photographs,
and make recordings. Respondent’s ready-mix drivers have a greater need for non-face-to-face
conversations because of their staggered shift start and end times, the time that they spend away
from the facility, and their erratic break and lunch schedules.45
JD–43–19
19
Respondent contends that the drivers have other means by which to communicate and take
photographs while away from the facility. Respondent asserts that its employees can use
company provided two-way radios to communicate with each other, including apparently
engaging in protected concerted communications. This argument fails for two reasons. First,
Respondent’s two-way radios are constantly monitored by batch plant supervisors, admitted 5
supervisors as defined in Section 2(11) of the Act, and often by other management officials.
Respondent’s monitoring of the two-way radio communications is very likely to chill reasonable
employees’ communication about work related issues. Second, employees’ ability to
communicate via the two-way radios is limited by Respondent to communications about the
current stage of or complications with work. While some short casual chat among drivers occurs 10
without repercussions, Respondent’s reminders about its limits on the use of the two-way radios
is highly likely to chill employees’ exercise of their Section 7 rights via the two-way radios.
Respondent also claims that disposable cameras are available for employees in the cab of
each truck. The drivers are trained that these cameras should be used to take pictures of 15
accidents or situations involving the trucks for use by Respondent. Employees are unlikely to
use them in furtherance of their Section 7 rights because Respondent has not informed
employees that they are free to use them for other purposes without any repercussions or
questions. Even if Respondent told employees that they could use the disposable cameras, it
would put employees in the uncomfortable position of asking for replacement cameras if they 20
opted to use the company provided camera for documenting terms and conditions of work that
they wanted to share with other employees or a union representative but not Respondent. Again,
I find that Respondent’s asserted solution for the issue is untenable because it is likely to chill
reasonable employees from exercising their Section 7 rights.
25
In making ready-mix deliveries, the time to document safety issues or other difficulties on the
jobsites or incidents that occur between jobsites and the facility is in the moment. Employees
cannot take a picture or make a recording of a condition of work away from the facility after they
return to the facility. For example, when driver Bello spilled concrete while making a delivery,
he took a picture with his cell phone. While the record does not establish that Bello intended to 30
or did use the picture for any concerted activity, such use is conceivable. Respondent’s
discharge of Bello in part for using his cell phone to take a picture of the spill is very likely to
chill other employees from taking pictures for use in concerted activities.
Similarly, employees who regularly take breaks away from the facility are denied the 35
opportunity to make a call, text, or email to or receive a message from other workers or a union
representative during that break. Respondent’s policy prohibiting employees from possessing a
cell phone while away from the facility virtually eliminates the drivers’ ability to communicate
with other employees, take pictures, or make recordings concerning their wages, hours, and
working conditions during as much as 85 percent of their shifts. During much of the time that 40
they are at the facility, they are not allowed to possess or use their cell phones because they are
in and out of the truck cab to perform work (e.g. pretrip check, fueling, loading, inspecting the
load, and washing and parking the truck). Therefore, I must assess whether Respondent has
legitimate business justifications for maintaining its prohibition on the possession of cell phones
in its commercial trucks which warrants the nature and extent of this impact to its drivers’ rights 45
guaranteed by Section 7 of the Act.
JD–43–19
20
Respondent’s prohibition on the possession of cell phones in its heavy commercial trucks is
considerably more restrictive than the FMCSA regulations allowing the use of cell phones while
driving such vehicles providing that certain standards for hands free operations are met. The
FMCSA allows cell phone use requiring no more than an on/off button touch. Similarly, 5
Respondent allows its drivers to use two-way radios while driving for short communications;
even though, the radios require the use of one hand throughout the communication. Respondent
allows the use of cell phones with hands free devices in its work vehicles driven by mechanics
and managers. Respondent also issued Nextel phones to its block truckdrivers which can be
utilized like a cell phone and at a minimum require one hand to operate as a two-way radio. 10
While these vehicles are not as heavy as ready-mix trucks, they too can causing serious bodily
harm or death and damage to property if the driver is distracted by a cell phone and wrecks the
vehicle.
Respondent’s main arguments for the complete prohibition on cell phones in its ready-mix 15
trucks is to remove drivers’ temptation to use them while driving and that the weight of these
vehicles warrants the extra precautions.17 While no party disputes that a ban on cell phone usage
while driving a ready-mix truck reasonably furthers Respondent’s safety goals, there is no
evidence that the prohibition on the mere presence of a cell phone in the ready-mix trucks
furthers this goal. Respondent contends that forbidding employees from having their cell phones 20
in the trucks prevents employees who are willing to use cell phones while they are driving from
doing so. A review of Respondent’s discipline documents illustrates that in many cases
employees’ use of cell phones while driving company commercial trucks is what alerted
management to their possession of a cell phone in violation of the policy. Hence, the prohibition
on the presence of cell phones in the trucks did not prevent these employees from using them. 25
Some employees are simply less risk adverse than others. Employees who are willing to risk
discharge, substantial property loss, and more importantly serious injuries or death of themselves
and others, in order to use a cell phone while driving a ready-mix truck are not likely to be
deterred by the threat of discipline or discharge for the possession of a cell phone in their truck.
30
The standard for balancing employers’ legitimate interests against employees’ Section 7
rights cannot be that employers may institute the most restrictive rules possible because some
employees will break less stringent rules that adequately protect the employer’s legitimate
interests. Such a standard would not be in line with the Boeing decision’s emphasis on balancing
the nature and extent of the rule’s impact on employee rights with the employer’s legitimate 35
interests. Taken to its logical conclusion such a reading of the standard would allow an
employer to preclude employees from discussing any employee information including wages
because the employer has a legitimate business reason for prohibiting certain employees from
disclosing a limited type of employee information, as discussed above. Instead, a rule that
fulfills Respondent’s legitimate safety needs, if followed, but does significantly interfere with 40

17 Respondent argues that employees would be allowed to use the disposable cameras to document safety issues or
performance issues at the jobsite. Thus, Respondent asserts no legitimate business reason for why employees should
be precluded from taking photographs or recordings of their working conditions and no justification for why a cell
phone could not be used for that purpose, but for its prohibition on them being in the vehicle. Thus, this case is
distinguishable from Boeing where the Board found that the employer had legitimate security and contractual
reasons for forbidding photography and recording in its facilities via cell phones or other personal devices. Supra at
JD–43–19
21
employees’ exercise of their Section 7 rights is the balance the Boeing standard intends to reach.
As General Counsel concedes, Respondent can have restrictions on cell phone use in its
company trucks short of a full ban on the possession of such devices (i.e. requiring cell phones to
be powered off and/or in a glove compartment when the truck is not safely parked).18
5
Thus, I find that the employees’ Section 7 rights to communicate with other employees and
union representatives and to take pictures or recordings of their terms or conditions of work
during the majority of their workday outweighs Respondent’s asserted business justification for
the total ban on the possession of a cell phone in its commercial vehicles/ready-mix trucks.
Accordingly, I find that Respondent’s cell phone policy, as written, violates Section 8(a)(1). 10

2. The discharge of Excellent pursuant to the cell phone rule
In Continental Group, 357 NLRB 409 (2011), the Board held that discipline pursuant to an
unlawfully overbroad rule is unlawful only if the employee “violated the rule by (1) engaging in 15
protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying
Section 7.” Id. at 412. See also, Flex Frac Logistics, LLC, 360 NLRB 1004 (2014). No party
contends that the conduct for which Excellent was suspended and discharge is protected conduct
meeting the first prong of the standard. General Counsel contends that Excellent’s conduct
meets the second prong because possessing a cell phone to take pictures, make recordings or 20
communicate with other workers during the majority of their working time is conduct that
implicates the concerns underlying Section 7.
The Board has issued limited examples of conduct that implicates Section 7 activities. In
discussing the second prong in Continental Group, the Board focused on whether disciplining an 25
employee for the conduct at issue is likely to chill other employees’ exercise of Section 7 rights.
As an illustration of this concept, the Board provided an example of an employee who
complained about his own wage but did not complain about wages in concert with other
employees, thus the employee had not engaged in concerted activity. The Board explained that
employees are not likely to know the distinctions between individual and concerted activity 30
addressing wages, hours, and other terms and conditions of work. Based upon learning that their
coworker was discharged for discussing his wage pursuant to the overly broad rule, then
employees are likely to avoid protected concerted discussions about wages and/or raises as well.
Continental Group, supra at 412. In contract, the discharged employee in Continental Group
was living out of his car which he frequently parked overnight on the employer’s premises. The 35
employer discharged the employee pursuant to an overly broad rule prohibiting employees from
being on company property, but specifically for sleeping on the property. The Board found that
his discharge was lawful, because the conduct was totally distinct from and did not implicate
protected conduct (i.e. employees would perceive sleeping on company property as distinct from
protected conduct on company property). Id. at 413. 40

18 Based upon Respondent’s discipline records, as late as October 2016, it allowed ready mix drivers in some
locations to store their cell phones in yellow boxes on the outside of the ready mix trucks for use outside the truck
while away from the facility. (GC Exh. 18 and R. Exh. 53.) Neither General Counsel nor Respondent addressed this
arrangement. I cite this practice here only as an example of how Respondent could keep cell phones out of the cabs
of ready mix trucks, if it so wishes, but give employees access to them to document working conditions and for
communication purposes while outside of their trucks away from the facility.
JD–43–19
22
Considering the Board’s emphasis on how employees would reasonably interpret the
implications of another employee’s discipline pursuant to an overbroad rule on their freedom to
engage in protected concerted activity, I find that the circumstances of this case meet the
standard set forth in the second prong. I agree with General Counsel that employees learning 5
that Excellent was suspended and discharged because Respondent suspected he possessed his
cell phone in the commercial vehicle he drove is very likely to chill employees protected use of
cell phones in similar circumstances. Changes to the wording in the policy will not erase the
employees understanding that Excellent was discharged because Respondent suspected he had
his phone and will continue to deter them from exercising their Section 7 rights. Accordingly, I 10
find that Excellent engaged in conduct that otherwise implicates the concerns underlying Section
7.
An employer can “avoid liability for discipline imposed pursuant to an overbroad rule if it can
establish that the employee’s conduct actually interfered with the employee’s own work or that 15
of other employees or otherwise actually interfered with the employer’s operations, and that the
interference, rather than the violation of the rule, was the reason for the discipline.” Id. Mere
evidence that the employee violated the overbroad rule is insufficient to meet this burden; the
employer must demonstrate that the employee’s conduct interfered with the performance of the
employer’s operations and the employer must cite that interference as a reason for the discharge. 20
Id.
In Flex Frac, the employer maintained an overly broad confidentiality rule. An employee
intentionally disclosed the rates that Flex Frac charged its customers for deliveries, which caused
the trucking companies performing the deliveries for Flex Frac to demand higher reimbursement 25
rates. The employer cited the disclosure of the proprietary information, for which it had a
legitimate business reason to prohibit, as the reason it discharged the employee pursuant to its
overly broad confidentiality rule. The Board found the discharge lawful because Flex Frac
proved that the employee’s conduct interfered with its business operations and cited that
interference as the reason for the employee’s discharge. Supra at 1004–1005. 30

The record contains no evidence that Excellent’s conduct interfered with the performance of
his or other employees’ work. Respondent presented no evidence of any costumer complaint
about Excellent’s work performance. To the contrary, Excellent was considered an efficient
driver because his average trip time of 2.08 hours was close the facility average of 2.0 hours. (Tr. 35
131, 295, 367.) Respondent was willing to return Excellent to work if his cell phone records
verified that he did not break its cell phone policy.
Respondent contends that Excellent’s refusal to produce his cell phone records prevented it
from proving it had cause to discharge him or to prove that he was unfit to return him to work. I 40
find that this argument could meet the Board’s test in Continental, if, prior to his discharge,
Respondent had taken the position that it would discharge him only for using his cell phone
while he was actually operating the ready-mix truck. Respondent then could contend that it
discharged him because of the risk associated with using cell phones while driving the truck
which interferes with Respondent’s safe operations. The record does not support such an 45
assertion.
JD–43–19
23
First, Excellent was suspended pending investigation, which in all frankness meant he was
suspended pending discharge, for the mere suspicion that he had his cell phone in the cab of the
truck. Respondent did not request his cell phone records until after he was suspended; therefore,
his refusal to provide them played not role in that decision. Second, Beer’s March 9 email to 5
Rolle clarifies that he was seeking Excellent’s cell phone records to determine if Excellent ever
used the phone “in his truck versus just being punched in,” meaning away from the facility
regardless whether he was driving at the time. Furthermore, Respondent stated in his discharge
letter that Excellent was being discharged pursuant to its policy prohibiting the possession or use
of a cell phone in a ready-mix truck as was Respondent’s practice to enforce the rule. I find no 10
evidence that supports a conclusion that Respondent would have discharged Excellent only if his
phone records proved he had used the phone while driving. Thus, I find that when Respondent
suspended and later followed through with the discharge, it had no evidence that Excellent’s
conduct actually interfered with his or other employees’ work performance or with Respondent’s
business operations.15
Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by discharging
Excellent pursuant to its unlawfully cell phone policy.
3. Respondent’s suspension of Excellent20
General Counsel cites Total Security Management Illinois 1, LLC., 364 NLRB No. 106
(2016), to support its contention that Respondent had a duty to bargain with the Union before
suspending Excellent pending investigation and that its failure to do so violated Section 8(a)(5)
and (1). In Total Security, the Board extended its longstanding precedent prohibiting employers 25
from making unilateral changes in terms and conditions of employment while it is bargaining
with the employees’ representative for an initial contract to individual employee discipline that
significantly impacts the employee’s terms and conditions of work. The Board held “that an
employer must provide its employees’ bargaining representative notice and the opportunity to
bargain before exercising its discretion to impose certain discipline on individual employees, 30
absent an agreement with the union providing for a process, such as a grievance-arbitration
system, to address such disputes.” Id. at slip op. 1.
The Board found that disciplining employees, including demoting or suspending without pay,
alters their terms and conditions of employment if the discipline “is not controlled by 35
preexisting, nondiscretionary employer policies or practices.” Id. at slip op. 3. An employer has
the duty to bargain if “the changes had a material, substantial, and significant impact on the
employees’ terms and conditions of employment.” Id., citing Toledo Blade Co., 343 NLRB 385,
387 (2004) (emphasis added). The Board determined that “actions such as suspension,
demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, 40
status, or earnings. . . . requiring bargaining before these sanctions are imposed.” Id. Other
actions, such as oral and written warnings that do not automatically result in further discipline,
do not require bargaining unless or until they result in further discipline that has a material,
substantial, and significant impact on terms and conditions of employment. Id. at slip op. 4.
“And if the change is consistent with established practice in some respects but also involves an 45
exercise of discretion by the employer, the employer must bargain over the discretionary aspects
JD–43–19
24
of the change.” Id. See also, Oneita Knitting Mills, 205 NLRB 500 (1973); Washoe Medical
Center, 337 NLRB 202 (2001).
Respondent asserts that it was not required to bargain with the Union about Excellent’s
suspension pursuant to the Board’s holding in Total Security. First, Respondent contends that5
Excellent’s suspension pending investigation did not have an inevitable and immediate impact on
Excellent’s tenure, status or earnings, and even if it did, Respondent was excused by exigent
circumstances from bargaining with the Union over the suspension. To support this contention
Respondent cited Alan Ritchey, Inc., 359 NLRB 396 (2012), vacated by NLRB v. Noel Canning,
134 S. Ct. 2550 (2014), and Pallet Companies, Inc. GC Advice Memo, Case 04–CA–102068 10
(Feb. 25, 2015), which relied upon the reasoning in Alan Ritchey. I agree with Respondent that
the reasoning set forth in Alan Ritchey is consistent with the Board’s reasoning in Total Security,
but Alan Ritchey is not precedent which can be relied upon.19 In asserting that the reasoning in
Alan Ritchey is instructive in this case, Respondent points to the finding in Alan Ritchey that an
investigation does not impact an employee’s tenure, status or earnings. Respondent asserts that 15
this reasoning supports a finding that Excellent’s suspension pending investigation did not
impact his terms or conditions of work.
This argument is contrary to the Board’s findings in Total Security, and an inaccurate
statement of the reasoning in Alan Ritchey. In discussing employer’s ability to respond to20
exigent circumstances, such as an employee who had engaged in unlawful conduct or threatening
behavior, Total Security considered the situation where an employer suspends an employee
pending investigation. “An employer who takes such action should promptly notify the union of
its action and the basis for it and bargain over the suspension after the fact, as well as bargain
with the union regarding any subsequent disciplinary decisions resulting from the employer's 25
investigation.” Total Security, supra at slip op. 9, fn. 20; See also, Alan Ritchey, supra at 404 fn.
19 (containing the same quoted language).
The clear implication of this statement is that a suspension pending investigation is a change
in the employee’s terms and conditions of employment. This result follows from the Board’s 30
holding and reasoning in Total Security that “the obligation to bargain is triggered before a
suspension, demotion, discharge or analogous sanction is imposed.” Supra, at slip op. 5. I note
that the evidence of suspensions pending investigation for violations of the cell phone policy at
Respondent’s Florida facilities are more aptly described as suspensions pending discharge absent
some exonerating evidence. Beer’s reasoning for suspending employees pending investigation 35
was to allow employees to assert a defense to Respondent’s determination to discharge them, as
what was done in Excellent’s case. Even if Excellent was later exonerated and reimbursed for
his backpay, he was immediately suspended without pay, which is clearly a material, substantial,
and significant impact on his terms and conditions at that time. Therefore, I find that only
exigent circumstances that required immediate action by Respondent for safety or significant 40
liability reasons could have excused Respondent from giving the Union notice and the
opportunity to bargain regarding the suspension before its implementation.

19 As discussed above, Advice Memoranda and General Counsel Memoranda are not precedent but the position of
one party before the Board.
JD–43–19
25
I find that no exigent circumstances existed at the time Excellent was suspended. The
available evidence led Respondent to believe that Excellent had his cell phone in the ready-mix
truck cab. Respondent had no evidence that Excellent ever used his phone while driving the
ready-mix truck. As discussed above, there is no evidence of record that the mere presence of a
cell phone in a ready-mix truck cab increases the likelihood of an accident. Even the FMCSA 5
regulations do not forbid cell phone presence or use in these vehicles with the right precautions.
Respondent’s own rules recommend only temporary suspensions for the first violation of this
policy. Managers in other geographic regions have issued mere warnings or temporary
suspensions that allow employees, for which there was direct evidence that they had violated the
policy, including by using the phone while driving, to return to work within 4 days. Based upon 10
the record evidence, I do not find that exigent circumstances excused Respondent from giving
the Union notice and opportunity to bargain about the suspension of Excellent. Even if the
situation involving Excellent constituted exigent circumstances, Respondent had a duty to
immediately give the Union notice and an opportunity to bargain about his suspension, which
Respondent admits that it did not do. Total Security, supra at slip op. 9, fn. 20. (GC Exh. 1(l).) 15
Respondent contends that its managers were compelled to suspend Excellent by its practice of
suspending pending investigation employees for violating its cell phone policy prior to
discharging them absent exonerating evidence. Respondent admits that this practice was not
implemented or at least not followed companywide but contends that its consistent practice in its 20
Florida operations, where the Naples facility is located, proves that its managers were exercising
a nondiscretionary policy when they suspended Excellent.20
Respondent’s written policies do not support these claims. No written policy of record states
that managers should suspend employees pending investigation in preparation for discharge or 25
for suspected violations of the cell phone policy. Respondent’s written disciplinary action policy
for violation of the cell phone policy allows for “a minimum of a three (3) day suspension and
final written warning for the first offense” and up to termination if the employee’s progressive
discipline status warrants termination. The 2014 “Cellular Telephone Acknowledgement” form
states that violation of the policy “can lead to immediate termination” and that Respondent has 30
“a zero tolerance for the use of cell phones while operating a commercial vehicle” without
stating what will be the discipline for violating the zero-tolerance policy. Finally, Respondent’s
“Progressive Discipline Table—A Guideline” suggests only a step 2, written warning with a
document to the employee’s file for a violation of the cell phone policy. Inherent in each of
these suggested disciplines for violations of the cell phone policy is that the managers do have 35
discretion in what punishment to levy.
Furthermore, the documentary evidence illustrates the discretionary nature of how managers
handled violations of the cell phone policy. Managers in other geographical regions have used

20 Even if Respondent’s assertion that its managers’ decision to suspend Excellent pending investigation is found to
be nondiscretionary because of those managers’ past practice, it was discretionary to apply that practice to Excellent.
The circumstances under which Excellent was suspended differ significantly than other employees that were
suspended in that geographic region pursuant to the cell phone policy. A review of the disciplines that occurred in
the Florida region shows that in each of those cases Respondent had some sort of direct evidence that the driver had
a cell phone or hands-free cell phone device in one of Respondent’s commercial vehicles while operating it.
Respondent only had circumstantial evidence that Excellent had his cell phone in his work truck when they
suspended him. Thus, discretion was used because this was a unique situation.
JD–43–19
26
their discretion to apply the policies in various manners. The fact that many managers, including
those who work in the South Florida geographic region, discharge employees for violating the
cell phone policy does not mean that they do not have the discretion to take other actions as
outlined in Respondent’s policies, and as other managers have done.
5
I note that the specific allegation at issue in this case is whether Respondent had a duty to
give notice and opportunity to bargain over Excellent’s suspension pending investigation.
General Counsel concedes that Respondent notified and bargained with the Union about
Excellent’s discharge but asserts that they were also required to give notice and opportunity to
bargain before suspending Excellent as the Board noted in Total Security. I find that the totality 10
of the evidence does not support Respondent’s assertion that Marion and Kennedy had no
discretion in determining to suspend Excellent pending investigation. Respondent does not point
to a written policy to support this assertion and outside of the Florida region, the documentary
evidence shows that other managers rarely follow this practice. Except in a few incidents, other
managers decided to discharge or impose some punishment short of discharge without first 15
suspending the employee. Again, just because it was Marion’s and Kennedy’s practice, does not
mean that they did not have the discretion to act differently under Respondent’s disciplinary
rules as other managers applying the policies clearly do. Accordingly, I find that Respondent
was exercising discretion when it suspended Excellent, and therefore, Respondent breached its
duty to give the Union notice and opportunity to bargain. 20
An employer can avoid liability for remedying a violation of Section 8(a)(5) and (1) under the
Total Security bargaining duty if it shows that: (1) the employee engaged in misconduct, and (2)
the misconduct was the reason for the suspension or discharge. Supra at slip op. 18. This is
where the two theories of violations of the Act alleged in the complaint intersect. Respondent 25
contends that Excellent engaged in the misconduct of possessing a cell phone in his vehicle and
that misconduct was why it had cause to suspend him. As I found above, Respondent was not
privileged, under the circumstances of this case, to suspend and subsequent discharge Excellent
pursuant to its cell phone policy. Therefore, Respondent cannot successfully argue here that
Excellent engaged in misconduct for which it was privileged to suspend or discharge him.21 30
Accordingly, I find that on March 3, 2017, Respondent failed and refused to bargain
collectively and in good faith with the Union, the exclusive collective-bargaining representative
of its employees, regarding Excellent’s suspension in violation of Section 8(a)(5) and (1) and of
the Act.35
1. Remedial principles at issue
General Counsel asserts that because Respondent failed to bargain with the Union before
suspending Excellent, any information gathered during its investigation after his suspension 40

21 I consider whether Excellent’s refusal to provide his cell phone records to Respondent affect the outcome of my
decision that his suspension without notice and opportunity to bargain was a violation of Sec. 8(a)(5) and (1). At
the time of the suspension, Respondent had not asked Excellent for his cell phone records. Therefore, I find that
Excellent’s refusal to provide his cell phone records and any inferences that may be drawn from that refusal played
no part in the decision to suspend him or Respondent’s failure to give the Union notice and opportunity to bargain
prior to suspending him.
JD–43–19
27
cannot be used to justify his later discharge. Furthermore, General Counsel contends that
Respondent’s subsequent discharge flowed from the unlawful suspension and the investigation
that occurred during that suspension, and therefore, the discharge must be remedied. In
discussing the rationale for its make whole remedy in Total Security, the Board found that “the
unfair labor practice is chronologically and causally inseparable from the discipline: the 5
employer's unlawful failure to bargain over the imposition of discipline is itself what makes the
discipline unlawful.” Supra, at slip op. 17. Thus, Respondent’s failure to bargain over the
suspension is what made Excellent’s suspension unlawful and that act should be remedied.
The Board’s remedial aim is to restore “the situation, as nearly as possible, to that which 10
would have been obtained but for” the unfair labor practice. Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 194 (1941). Unilateral changes that give rise to disciplinary actions such as suspension
and discharge typically require backpay and reinstatement to make affected employees whole.
Total Security, supra at slip op. 16. In Total Security, the Board addressed limits to these typical
remedies. “In cases in which the respondent failed to provide notice and an opportunity to 15
bargain before imposing discipline but the parties have bargained in good faith [to an agreement
or] to impasse after the discipline, backpay will be ordered for the prediscipline bargaining
violation. Backpay in such a case would normally run from the date of the discipline until the
date on which the parties reached [agreement or] impasse.” Id. “Because the employer may
impose the discretionary discipline after the parties have reached impasse, ordering a 20
reinstatement or rescission remedy would appear to be impractical in most circumstances where
the parties are at impasse.” Id. at fn. 33.
The record reflects that Respondent engaged in significant back and forth bargaining with the
Union about how to resolve Excellent’s situation before reaching impasse on April 26, 2017, and25
concluding to discharge him. Under the circumstances, I find that the appropriate remedy for
failing to bargain about the suspension is backpay for the period of the suspension until the
parties negotiated to an impasse on April 26, 2017. 22
CONCLUSIONS OF LAW30
1. Argos USA LLC, d/b/a Argos Ready Mix, LLC (Respondent) is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Construction and Craft Workers Local Union No. 1652, Laborers’ International Union of
North America, AFL–CIO (Union) is a labor organization within the meaning of the act and is 35
and has been since July 8, 2015, the exclusive collective-bargaining representative of the
following appropriate unit of Respondent’s employees:
All full-time and regular part-time ready-mix drivers employed by the Respondent at its
Naples, Florida facility; excluding all other employees, office clerical employees, guards 40
and supervisors as defined in the Act.
3. Since at least January 26, 2017, Respondent has violated Section 8(a)(1) of the Act by

22 I note here that while the remedy for the 8(a)(5) and (1) violation does not warrant reinstatement or backpay
beyond April 26, 2017, that does not alter the make whole remedy for the 8(a)(1) violation of suspending and
discharging Excellent pursuant to an unlawful rule.
JD–43–19
28
maintaining work rules that would reasonably tend to chill employees in the exercise of their
Section 7 rights either by expressly prohibiting or restraining the exercise of NLRA rights, or by
potentially impacting the exercise of those rights and the justifications for the work rules do not
outweigh the potential impact on Section 7 rights; specifically, the Respondent has been
violating the Act by maintaining the following rules or policies as written:5
-Employee Confidential Information Agreement;
-Electronic Communications Policy Acknowledgment Form;
-Cellphone Policy While Operating a Vehicle, Commercial Vehicle and Heavy
Equipment provision; and10
-Cellular Telephone Acknowledgement forms.
4. On March 3, 2017, Respondent violated Section 8(a)(1) of the Act by suspending
Emanuel Excellent pursuant to its unlawful “Cellphone Policy While Operating a Vehicle,
Commercial Vehicle and Heavy Equipment and related Cellular Telephone Acknowledgement”15
forms.
5. On about March 3, 2017, Respondent failed and refused to bargain collectively and
in good faith with the Union as the exclusive collective-bargaining representative of its
employees in violation of Section 8(a)(5) and (1) of the Act by failing and refusing to give the
Union notice and opportunity to bargain with Respondent before suspending its employee 20
Emanuel Excellent.
6. On about April 28, 2017, Respondent violated Section 8(a)(1) of the Act by discharging
its employee Emanuel Excellent pursuant to its unlawful “Cellphone Policy While Operating a
Vehicle, Commercial Vehicle and Heavy Equipment and Cellular Telephone Acknowledgement”
forms.25
7. The above unfair labor practices affect commerce within the meaning of Section 2(6) and
(7) of the Act.

REMEDY
30
Having found that the Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent, having violated Section 8(a)(1) of the Act by maintaining unlawful employee 35
work rules, policies and/or acknowledgement forms, I recommend that Respondent be ordered to
take the following actions. Within 14 days, at all of its facilities where the unlawful rules,
policies, and acknowledgement forms are or have been in effect, Respondent shall rescind the
rules, policies, and acknowledgement forms to the extent that they have been found unlawful.
See, e.g., Guardsmark, LLC, 344 NLRB 809, 812 (2005), and cases cited therein. Respondent 40
may comply with the Order by rescinding the unlawful provisions and republishing its employee
rules, policies, and acknowledgement forms without them. The Board recognizes, however, that
republishing such documents could entail significant costs. Accordingly, the Respondent may
supply the employees either with documents stating that the unlawful documents have been
rescinded, or with new and lawfully worded documents on adhesive backing which will cover 45
the old and unlawfully broad rules, until it republishes the employee rules, policies, and
JD–43–19
29
acknowledgement forms without the unlawful provisions. Thereafter, any copies of the
documents that are printed with the unlawful rules must include the republished documents
without the unlawful provisions before being distributed to employees.” Guardsmark, 344
NLRB at 812 fn. 8.
5
Respondent, having violated Section 8(a)(5) and (1) of the Act by failing to give the Union
notice and opportunity to bargain before suspending Emanuel Excellent, I recommend that
Respondent be ordered to bargain in good faith with the Union by giving it notice and
opportunity to bargain before imposing serious discipline (e.g., suspension, discharge,
demotion), while an initial collective-bargaining agreement or a method for dispute resolution10
has not been agreed to or is not yet in effect.
Respondent, having unlawfully suspended and discharged Emanuel Excellent, must offer him
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the 15
rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with the Board’s
decision in King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant
part 859F.3d 23 (D.C. Cir. 2017), Respondent shall compensate Excellent for his search-for-
work and interim employment expenses regardless of whether those expenses exceed interim 20
earnings. Search-for-work and interim employment expenses shall be calculated separately from
taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded
daily as prescribed in Kentucky River Medical Center, supra. Respondent shall file a report with
the Social Security Administration allocating backpay to the appropriate calendar quarters.
Respondent shall also compensate Excellent for the adverse tax consequences, if any, of 25
receiving one or more lump-sum backpay awards covering periods longer than 1 year, Latino
Express, Inc., 359 NLRB 518 (2012). Respondent shall expunge from its records any and all
references to the suspension and discharge of Excellent.
Respondent having been found to have engaged violations of the Act, I recommend that 30
Respondent be ordered to post nationwide in all Respondent's facilities, copies of the attached
notice marked “Appendix A.” Copies of the notice, on forms provided by the Regional Director
for Region 12, after being signed by the Respondent'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. In addition to physical posting of 35
paper notices, notices in each language deemed appropriate shall be distributed electronically,
such as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of business or closed the facility involved in 40
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice in each appropriate language to all current employees and former employees employed by
the Respondent at any time since January 26, 2017.
Respondent having been found to have engaged violations of the Act, I recommend that 45
Respondent be ordered to post in Respondent’s Naples, Florida facility, copies of the attached
JD–43–19
30
notice marked “Appendix B.” Copies of the notice, on forms provided by the Regional Director
for Region 12, after being signed by the Respondent'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. In addition to physical posting of
paper notices, notices in each language deemed appropriate shall be distributed electronically, 5
such as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the 10
notice in each appropriate language to all current employees and former employees employed by
the Respondent at any time since January 26, 2017.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2315
ORDER
Respondent Argos USA LLC, d/b/a Argos Ready Mix, LLC, Alpharetta, Georgia and Naples,
Florida its officers, agents, successors, and assigns, shall20
1. Cease and desist from
(a) Maintaining an overly broad confidentiality policy that prohibits employees from discussing
earnings and employee information.
(b) Maintaining an overly broad electronic communications policy that unlawfully interferes
with employees’ use of Respondent’s email system for Section 7 purposes.25
(c) Maintaining an overly broad cell phone use policy that unlawfully interferes with employees'
use of their personal cell phones for Section 7 purposes.
(d) Requiring employees to cellular telephone acknowledgement forms verifying that the
employees are aware of Respondent’s overly broad cell phone use policy that unlawfully
interferes with employees’ use of their personal cell phones for Section 7 purposes.30
(e) Issuing suspensions or other discipline to employees for violating its unlawfully overbroad
rules.
(f) Discharging employees for violating its unlawfully overbroad rules.
(g) Failing to bargain in good faith with the Construction and Craft Workers Local Union No.
1652, Laborers’ International Union of North America, AFL–CIO (Union) as the exclusive 35
collective-bargaining representative of the following appropriate unit (the unit) of Respondent’s
employees:
All full-time and regular part-time ready-mix drivers employed by the
Respondent at its Naples, Florida facility; excluding all other employees, office 40
clerical employees, guards and supervisors as defined in the Act.

23 If no exceptions are filed as provided by Sec. 102.48 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD–43–19
31
(h) Imposing serious discipline (e.g., suspension, discharge, demotion) upon bargaining unit
employees without first notifying and providing the Union with the opportunity to bargain over
the discipline to be imposed or proposed to be imposed, when an initial collective-bargaining
agreement has not been agreed to or is not yet in effect.
(i) In any like or related manner interfering with, restraining, or coercing employees in the 5
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) Rescind the following overbroad rules, policies, and acknowledgement forms:
-Employee Confidential Information Agreement;10
-Electronic Communications Policy Acknowledgment Form;
-Cellphone Policy While Operating a Vehicle, Commercial Vehicle and Heavy
Equipment provision; and
-Cellular Telephone Acknowledgement forms.
15
(b) Rescind the suspension and discharge of Emanuel Excellent.
(c) On request, bargain in good faith with the Union as the exclusive representative of the
employees in unit concerning terms and conditions of employment by providing prior notice and
opportunity to bargain before implementing serious discipline, until a first contract is
implemented or an agreement is reached regarding a method for dispute resolution.20
(d) Within 14 days from the date of this Order, offer Emanuel Excellent full reinstatement to his
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously enjoyed.
(e) Make Emanuel Excellent whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the 25
decision.
(f) Compensate Emanuel Excellent for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file with the Regional Director for Region 12, within 21 days of
the date the amount of backpay is fixed, either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar years.30
(g) Compensate Emanuel Excellent for his search-for-work and interim employment expenses
regardless of whether those expenses exceed interim earnings.
(h) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful suspension and discharge, and within 3 days thereafter notify Emanuel Excellent in
writing that this has been done and that the suspension and discharge will not be used against 35
him in any way.
(i) 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 designated by the Board or its 40
agents, all payroll records, social security payment records, timecards, personnel records and
reports, and all other records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the terms of this Order.
(j) Furnish employees with inserts for the current employee rules, policies, and
acknowledgement forms that (1) advise that the unlawful provisions have been rescinded, or (2) 45
provide lawfully worded provisions on adhesive backing that will cover the unlawful provisions;
JD–43–19
32
or publish and distribute to employees revised employee rules, policies and acknowledgement
forms that (1) do not contain the unlawful provisions, or (2) provide lawfully worded provisions.
(k) Within 14 days after service by the Region, post nationwide in all its facilities, copies of the
attached notice marked “Appendix A.” Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Respondent's authorized representative, shall be 5
posted by the Respondent and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. In addition to physical
posting of paper notices, notices in each language deemed appropriate shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. 10
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice in each appropriate language to all current employees and former
employees employed by the Respondent at any time since January 26, 2017.15
(l) Within 14 days after service by the Region, post nationwide in its Naples, Florida facility,
copies of the attached notice marked “Appendix B.” Copies of the notice, on forms provided by
the Regional Director for Region 12, after being signed by the Respondent'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. In 20
addition to physical posting of paper notices, notices in each language deemed appropriate shall
be distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the Respondent has gone out of business or 25
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice in each appropriate language to all current employees and
former employees employed by the Respondent at any time since January 26, 2017.
(m) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that 30
the Respondent has taken to comply.
Dated, Washington, D.C. May 14, 2019
35
___________________________
Kimberly Sorg-Graves
Administrative Law Judge
40
,11,_li __):114.,),e49---
JD–43–19
APPENDIX A
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
Choose a representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain an “Employee Confidential Information Agreement” stating that
employees may have access to “confidential Company information,” and that they:
understand and agree that [they] may only use such confidential information
for purposes of carrying out Argos' business, and [they] may not make use of
or disclose any such confidential information during or after termination of
[their] employment with Argos without the express written consent of the
General Counsel of Argos.
In which “confidential information” is defined to include earnings and
employee information.
WE WILL NOT maintain an “Electronic Communications Policy Acknowledgment Form” which
states, in pertinent part, that the employee signing the form understands that Respondent’s email
system “is to be used for business purposes and not for personal purposes.”
WE WILL NOT maintain a Cell Phone Policy for “Commercial Vehicles and Heavy Equipment”
that states:
It is strictly prohibited for a cell phone to be in the cab of a commercial and/or
heavy equipment vehicle; (i.e. “commercial vehicles” are defined as having a
gross vehicle weight of 10,000 lbs. or more including any heavy equipment
used on the plant yard). This prohibition also extends to the use of any
accompanying equipment (e.g. earpieces or hands-free devices) and applies
regardless of where the commercial vehicle is being operated. Employees are
encouraged to leave their cell phones in personal vehicles at all times.
WE WILL NOT require employees to sign forms acknowledging that they have
received and/or understand the rules or policies discussed above.
JD–43–19
WE WILL NOT in any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the following overbroad rules, policies, and acknowledgement forms:
-Employee Confidential Information Agreement;
-Electronic Communications Policy Acknowledgment Form;
-Cellphone Policy While Operating a Vehicle, Commercial Vehicle and Heavy
Equipment provision; and
-Cellular Telephone Acknowledgement forms.
WE WILL furnish our employees with inserts for the current employee rules, policies, and
acknowledgement forms that (1) advise that the unlawful provisions have been rescinded, or (2)
provide lawfully worded provisions on adhesive backing that will cover the unlawful provisions;
or publish and distribute to employees revised employee rules, policies and acknowledgement
forms that (1) do not contain the unlawful provisions, or (2) provide lawfully worded provisions.
Argos USA LLC d/b/a Argos Ready Mix, LLC
(Employer)
Dated:________________ By:__________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
South Trust Plaza, 201 East Kennedy Boulevard, Suite 300, Tampa, FL 33602-5824
(813) 228-2641, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/12-CA-196002 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (813) 228-2641.
JD–43–19
APPENDIX B
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
Choose a representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain an “Employee Confidential Information Agreement” stating that
employees may have access to “confidential Company information,” and that they:
understand and agree that [they] may only use such confidential information
for purposes of carrying out Argos' business, and [they] may not make use of
or disclose any such confidential information during or after termination of
[their] employment with Argos without the express written consent of the
General Counsel of Argos.
In which “confidential information” is defined to include earnings and
employee information.
WE WILL NOT maintain an “Electronic Communications Policy Acknowledgment Form” which
states, in pertinent part, that the employee signing the form understands that Respondent’s email
system “is to be used for business purposes and not for personal purposes.”
WE WILL NOT maintain a Cell Phone Policy for “Commercial Vehicles and Heavy Equipment”
that states:
It is strictly prohibited for a cell phone to be in the cab of a commercial and/or
heavy equipment vehicle; (i.e. “commercial vehicles” are defined as having a
gross vehicle weight of 10,000lbs. or more including any heavy equipment
used on the plant yard). This prohibition also extends to the use of any
accompanying equipment (e.g. earpieces or hands-free devices) and applies
regardless of where the commercial vehicle is being operated. Employees are
encouraged to leave their cell phones in personal vehicles at all times.
WE WILL NOT require employees to sign forms acknowledging that they have received
and/or understand the rules or policies discussed above.
JD–43–19
WE WILL NOT issue suspensions or other discipline to our employees for violating the rules,
policies or acknowledgement forms discussed above.
WE WILL NOT discharge employees for violating the rules, policies or acknowledgement forms
discussed above.
WE WILL NOT fail to bargain in good faith with the Construction and Craft Workers Local Union
No. 1652, Laborers’ International Union of North America, AFL-CIO, (Union) as the exclusive
collective-bargaining representative of the following appropriate unit (the unit) of Respondent’s
employees:
All full-time and regular part-time ready-mix drivers employed by the
Respondent at its Naples, Florida facility; excluding all other employees, office
clerical employees, guards and supervisors as defined in the Act.
WE WILL NOT impose serious discipline (e.g., suspension, discharge, demotion) upon bargaining
unit employees without first notifying and providing the Union with the opportunity to bargain
over the discipline to be imposed or proposed to be imposed, when an initial collective-
bargaining agreement has not been agreed to or is not yet in effect.
WE WILL NOT in any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the following overbroad rules, policies, and acknowledgement forms:
-Employee Confidential Information Agreement;
-Electronic Communications Policy Acknowledgment Form;
-Cellphone Policy While Operating a Vehicle, Commercial Vehicle and Heavy
Equipment provision; and
-Cellular Telephone Acknowledgement forms.
WE WILL rescind the suspension and discharge of Emanuel Excellent.
WE WILL on request, bargain in good faith with the Union as the exclusive representative of the
employees in the unit concerning terms and conditions of employment by providing prior notice
and opportunity to bargain before implementing serious discipline, until a first contract is
implemented or an agreement is reached regarding a method for dispute resolution.
WE WILL offer Emanuel Excellent full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
WE WILL make Emanuel Excellent whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him in the manner set forth in the remedy section of the
decision.
WE WILL compensate Emanuel Excellent for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file with the Regional Director for Region 12, within 21 days of
JD–43–19
the date the amount of backpay is fixed, either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar years.
WE WILL compensate Emanuel Excellent for his search-for-work and interim employment
expenses regardless of whether those expenses exceed interim earnings.
WE WILL remove from our files any reference to the unlawful suspension and discharge of
Emanuel Excellent and notify him in writing that this has been done and that the suspension and
discharge will not be used against him in any way.
WE WILL furnish our employees with inserts for the current employee rules, policies, and
acknowledgement forms that (1) advise that the unlawful provisions have been rescinded, or (2)
provide lawfully worded provisions on adhesive backing that will cover the unlawful provisions;
or publish and distribute to employees revised employee rules, policies and acknowledgement
forms that (1) do not contain the unlawful provisions, or (2) provide lawfully worded provisions.
Argos USA LLC d/b/a Argos Ready Mix, LLC
(Employer)
Dated:________________ By:__________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
South Trust Plaza, 201 East Kennedy Boulevard, Suite 300, Tampa, FL 33602-5824
(813) 228-2641, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/12-CA-196002 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (813) 228-2641.