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

National Labor Relations Board - Board Decisions

Feb 5, 2020

369 N.L.R.B. 26 (N.L.R.B. 2020)

369 NLRB No. 26
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Argos USA LLC d/b/a Argos Ready Mix, LLC and
Construction and Craft Workers Local Union
No. 1652, Laborers’ International Union of North
America, AFL‒CIO. Cases 12–CA–196002 and
12–CA–203177
February 5, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On May 14, 2019, Administrative Law Judge Kimberly
R. Sorg-Graves issued the attached decision, and on May
23, 2019, she issued an errata. The Respondent filed ex-
ceptions and a supporting brief, the General Counsel filed
an answering brief, and the Respondent filed a reply brief.
The General Counsel filed cross-exceptions and a support-
ing brief, and the Respondent filed an answering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision and Order.
I. BACKGROUND
The Respondent operates 300 ready-mix concrete facil-
ities and, in 2015, the Union was certified as the exclusive
bargaining representative of the truck drivers at its Naples,
Florida facility. Since at least 2014, the Respondent has
maintained an Electronic Communications Policy and a
Cell Phone Policy and has required employees to sign an
Employee Confidential Information Agreement (“Confi-
dentiality Agreement”).
On March 3, 2017, the Respondent suspended em-
ployee Emmanuel Excellent for suspected possession of a
cell phone in his concrete truck in violation of the Cell
Phone Policy, pending further investigation. The Re-
spondent did not notify the Union of Excellent’s suspen-
sion until March 8, but it subsequently negotiated with the
Union in an attempt to resolve the situation and have Ex-
cellent return to work. Ultimately, the parties were not
able to come to an agreement and, on April 28, the

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
Respondent discharged Excellent for violating its Cell
Phone Policy.
The judge found that the Respondent’s maintenance of
the policies at issue violated Section 8(a)(1) of the Act be-
cause they were overbroad and, as such, interfered with
employees’ rights under Section 7 of the Act. Then, hav-
ing found the Cell Phone Policy to be unlawful, the judge
found that the Respondent also violated Section 8(a)(1) by
suspending and discharging Excellent pursuant to that
Policy. Finally, the judge found that the Respondent vio-
lated Section 8(a)(5) of the Act by failing to provide notice
and an opportunity to bargain to the Union before sus-
pending Excellent.2
For the reasons set forth below, we reverse the judge’s
findings that the Respondent unlawfully maintained the
Confidentiality Agreement, Electronic Communications
Policy, and Cell Phone Policy. Because the Respondent
disciplined Excellent pursuant to a lawful Cell Phone Pol-
icy, we also reverse the judge’s finding that the Respond-
ent unlawfully suspended and discharged Excellent. Fi-
nally, we sever and retain for further consideration the al-
legation that the Respondent unlawfully failed to provide
notice and an opportunity to bargain to the Union prior to
suspending Excellent.
II. DISCUSSION
A. Workplace Rules
In The Boeing Company, 365 NLRB No. 154 (2017),
the Board set out a new standard for determining whether
a facially neutral work rule, reasonably interpreted, would
unlawfully interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights.3 The Board in that
decision overruled the “reasonably construe” prong delin-
eated in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004). Under the standard articulated in Boeing,
when evaluating a facially neutral policy, rule or hand-
book provision that, when reasonably interpreted, would
potentially interfere with the exercise of NLRA rights,
the Board will evaluate two things: (i) the nature and ex-
tent of the potential impact on NLRA rights, and (ii) le-
gitimate justifications associated with the rule.
Id., slip op. at 3 (emphasis omitted). In conducting this
evaluation, the Board will strike a proper balance between
2 There is no allegation that the Respondent failed to bargain with the
Union over its decision to discharge Excellent.
3 The outcome of this inquiry should be determined by reference to
the perspective of an objectively reasonable employee who is aware of
his legal rights but who also interprets work rules as they apply to the
everydayness of his job. The reasonable employee does not view every
employer policy through the prism of the Act. LA Specialty Produce
Co., 368 NLRB No. 93, slip op. at 2 (2019) (internal quotations omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the Respondent’s asserted business justifications for the
policy against the extent to which the policy interferes
with employee rights under the Act, viewing the rule or
policy from the employees’ perspective. Id. “As a result
of this balancing. . . the Board will delineate three catego-
ries” of work rules:
Category 1 will include rules that the Board designates
as lawful to maintain, either because (i) the rule, when
reasonably interpreted, does not prohibit or interfere
with the exercise of NLRA rights; or (ii) the potential
adverse impact on protected rights is outweighed by jus-
tifications associated with the rule. . .
Category 2 will include rules that warrant individualized
scrutiny in each case as to whether the rule would pro-
hibit or interfere with NLRA rights, and if so, whether
any adverse impact on NLRA-protected conduct is out-
weighed by legitimate justifications.
Category 3 will include rules that the Board will desig-
nate as unlawful to maintain because they would pro-
hibit or limit NLRA-protected conduct, and the adverse
impact on NLRA rights is not outweighed by justifica-
tions associated with the rule.
Id., slip op. at 3‒4 (emphasis in original).4 However, these
categories “will represent a classification of results from
the Board’s application of the new test. The categories are
not part of the test itself.” Id., slip op. at 4 (emphasis in
original).
1. Employee confidential information agreement
The Confidentiality Agreement states, in part, that em-
ployees “may receive and obtain access to confidential
Company information” and that they agree to “not dis-
close any such confidential information.” Confidential in-
formation is defined as
… all private information not generally known in the in-
dustry and not readily available, written, or otherwise in-
cluding, but not limited to, information regarding Argos’
customers, customer lists, prospective customers, cus-
tomers’ buying habits, production methods (including
designs, formulas, techniques, processes), any non-pub-
lished prices, discounts, commissions, costs, supplier in-
formation, earnings, contracts, employee information,
subcontractors, business plans, marketing and/or supply
strategies, training programs, computer software or pro-
grams, and other business arrangements … [(Emphasis
added.)]

4 In LA Specialty, supra, the Board re-designated the subdivisions of
Boeing Category 1 as (a) and (b).
Several paragraphs following the definition paragraph
state that employees will (1) assign to the Respondent in-
ventions, processes, discoveries, or improvements devel-
oped while working for it; (2) assist the Respondent with
the preparation for patent applications any time within two
years after termination of employment; and (3) not divulge
confidential information from prior employers to the Re-
spondent, including financial information or technical
manuals.
Applying Boeing, the judge determined that employees
would reasonably interpret the Confidentiality Agree-
ment, specifically the requirement to keep confidential
“earnings” and “employee information,” as potentially in-
terfering with their Section 7 rights. She further found that
the Respondent’s legitimate justification—keeping its
proprietary information confidential—did not outweigh
the infringement on employees’ Section 7 right to discuss
wages or employee contact information and, therefore,
that the Confidentiality Agreement was unlawful.
Unlike the judge, we find that an employee would not
reasonably interpret the Confidentiality Agreement to po-
tentially interfere with the exercise of Section 7 rights.
Read as a whole, and from the perspective of an objec-
tively reasonable employee as defined in LA Specialty, the
Confidentiality Agreement clearly applies only to the Re-
spondent’s proprietary business information. The Confi-
dentiality Agreement explicitly states that employees may
not disclose “confidential Company information.” (Em-
phasis added.) Further, confidential information is de-
fined in the policy as “information regarding Ar-
gos’…earnings” and “Argos’… employee information.”
(Emphasis added.) It does not reference employees’
wages, contact information, or other terms and conditions
of employment that would be generally known or accessi-
ble from sources other than “confidential Company infor-
mation.” Thus, we find that, under the applicable objec-
tively reasonable employee standard, the term “earnings”
would be understood as referring to such things as the Re-
spondent’s revenue and profits, not employees’ wages,
and the term “employee information” would be under-
stood as referring to such things as the Respondent’s staff-
ing information, not employees’ wage or contact infor-
mation. See LA Specialty, supra, slip op. at 4 (finding con-
fidentiality rule lawful and categorized under Category
1(a) because it applied only to the employer’s own non-
public, proprietary records); see also National Indemnity
Company, 368 NLRB No. 96 (2019) (finding lawful rule
requiring employees to keep confidential non-public
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 3
information that would harm the company or benefit its
competitors).
Apart from the express definitional link between Argos’
private information and references to “earnings” and “em-
ployee information,” the overall context in which these
terms appear further supports finding that an objectively
reasonable employee would understand that the Confiden-
tiality Agreement applies only to the Respondent’s propri-
etary business information and would not interfere with
employees’ Section 7 rights. The disputed terms “earn-
ings” and “employee information” are included in a list of
categories of obviously proprietary information, including
non-published prices, costs, supplier information, busi-
ness plans, contracts, production methods (including de-
signs, formulas, techniques, processes), and other busi-
ness-related documents. These categories of information
confirm that the policy only applies to the Respondent’s
confidential information, and implicitly omit from cover-
age employees’ wages, contact information, or other terms
and conditions of employment. Additionally, the three
paragraphs following the definition paragraph contain in-
formation about inventions, business improvements, pa-
tents, and third-party confidential information. These par-
agraphs reinforce the fact that the policy is concerned with
the Respondent’s proprietary business information that it
may lawfully keep confidential. See Macy’s, Inc., 365
NLRB No. 116, slip op. at 4 (2017) (employees have no
right to information “improperly obtained from their em-
ployer’s private or confidential records”).
Accordingly, we reverse the judge and dismiss the alle-
gation of a Section 8(a)(1) violation because the General
Counsel has failed to show that an objectively reasonable
employee would interpret the Confidentiality Agreement,
when read as a whole, to potentially interfere with Section
7 rights. As stated in LA Specialty, “it is the General
Counsel’s initial burden in all cases to prove that a facially
neutral rule would in context be interpreted by a reasona-
ble employee, as defined above, to potentially interfere
with the exercise of Section 7 rights. If that burden is not
met, then there is no need for the Board to take the next
step in Boeing of addressing any general or specific legit-
imate interests justifying the rule. The rule is lawful and
fits within Boeing Category 1(a). There will be no need
for further case-by-case litigation of the legality of a rule
so classified.” 368 NLRB No. 93, slip op. at 2. We there-
fore find that the Confidentiality Agreement here is a law-
ful Category 1(a) rule, requiring no need to address the
legitimate interests justifying it.
2. Electronic communications policy
The Electronic Communications Policy states, in part,
that employees understand that the Respondent’s email
system “is to be used for business purposes and not for
personal purposes.”
Applying Purple Communications, Inc., 361 NLRB
1050 (2014), the judge found the Electronic Communica-
tions Policy an unlawful ban on employee use of the Re-
spondent’s email system for personal use during non-work
time. Subsequent to the judge’s decision in this case, the
Board issued its decision in Caesars Entertainment Cor-
poration d/b/a Rio All-Suites Hotel and Casino, 368
NLRB No. 143 (2019), in which it overruled Purple Com-
munications. In doing so, the Board reinstated the princi-
ple that employees have no statutory right to use employer
email systems for Section 7 purposes in a typical work-
place and applied this principle retroactively to all pending
cases. Caesars Entertainment also recognized that, under
Supreme Court precedent, employees must have “‘ade-
quate avenues of communication’” in order to meaning-
fully exercise their Section 7 rights and that employer
property rights must yield to employees’ Section 7 rights
when necessary to avoid creating an “‘unreasonable im-
pediment to the exercise of the right to self-organization.’”
Id., slip op. at 7 (quoting Republic Aviation, 324 U.S. 793,
802 fn. 8 (1945) (emphasis added), and Le Tourneau Co.
of Georgia, 54 NLRB 1253, 1260 (1944) (emphasis
added)). Thus, an employer does not violate Section
8(a)(1) by restricting employees’ use of its email system
for Section 7 communications absent proof that employ-
ees would otherwise be deprived of any reasonable means
of communicating with each other or proof of discrimina-
tion. Id.
The Board also held in Caesars Entertainment that it
would be appropriate to apply the standard announced
there retroactively to “all pending cases that similarly in-
volve allegations that an employer unlawfully maintained
rules restricting the use of the employer’s IT resources for
nonwork purposes.” Id., slip op. at 9. Accordingly, we
apply that standard in this case and find that the Respond-
ent’s Electronic Communications Policy, a facially neutral
restriction on employees’ personal use of its email system,
is lawful. First, the record demonstrates that the Respond-
ent’s facility is a “typical workplace” where employees
are able to exercise traditional methods of Section 7 com-
munications, including oral solicitation and face-to-face
literature distribution in their breakroom during non-work
time. In addition, there is no indication that the employees
do not have access to more modern forms of communica-
tion, such as use of personal email and social media, that
do not require using the Respondent’s email system.
Lastly, there is no allegation by the General Counsel that
the Electronic Communications Policy was discriminato-
rily applied. As a result, we find the Respondent’s Elec-
tronic Communications Policy to be a permissible
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
restriction on employees’ use of the Respondent’s email
system for nonwork purposes, and we dismiss the allega-
tion.5
3. Cell phone policy
In recognition of “the danger associated with using cell
phones while driving,” the Respondent’s Cell Phone Pol-
icy places certain restrictions on employees’ ability to use
cell phones while working. The Policy states, in part, as
follows:
Road safety must be a priority. Cell phone use must
never distract a driver’s attention from safely operating
a vehicle. Employees are expected to direct all necessary
attention towards the safe operation of vehicles driven
by them, to ensure their own safety as well as the safety
of others around them, including pedestrians and passen-
gers in vehicles nearby.
…
It is strictly prohibited for a cell phone to be in the
cab of a commercial and/or heavy equipment vehi-
cle; (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. ([Empha-
sis in original.)]
Employees are also required to sign a “Cellular Tele-
phone Acknowledgement” form, which states that the Re-
spondent has “zero tolerance” for the use of a cell phone
in commercial vehicles because the “safety of Argos, USA
employees and others is very important” and that it be-
lieves “employees will be safer drivers when they are not
distracted by dialing, answering, talking, or texting on
their cellular telephone while driving a commercial motor
vehicle.”6
Applying Boeing, the judge determined that employees
would reasonably interpret the Cell Phone Policy and Ac-
knowledgment as potentially interfering with their Section
7 rights. She further found that the Respondent’s legiti-
mate justification—ensuring cell phones were not used
while driving commercial vehicles—did not outweigh the
infringement on employees’ right to communicate with
each other while away from the facility and, therefore, that
the Cell Phone Policy and Acknowledgement were unlaw-
ful.

5 Although Purple Communications no longer applies, we find the
result should have been the same under that case as well. The General
Counsel presented no evidence that statutory employees have access to
the Respondent’s email system for work purposes. Proof of access for
work purposes by statutory employees, as opposed to supervisors and
others not covered by the Act, was required in order for those employees
to be afforded the Sec. 7 right to use email for protected activities. 361
NLRB at 1063‒1064. In this respect, we disagree with the judge that the
Unlike the judge, we find that employees would not rea-
sonably interpret the Cell Phone Policy and Acknowledg-
ment to potentially interfere with the exercise of their Sec-
tion 7 rights. Read as a whole, and from the perspective
of an objectively reasonable employee, the Policy and Ac-
knowledgment prohibit the possession and use of cell
phones in the Respondent’s commercial vehicles, includ-
ing concrete trucks, but they do not restrict employees’
right to communicate with each other during nonwork
time. The purpose of the Policy and Acknowledgment is
repeated over and over again—to ensure the safety of driv-
ers and the general public. Concrete truck drivers, inter-
preting the Cell Phone Policy and Acknowledgement as
they apply to the “everydayness of [their] job,” would rea-
sonably understand the danger associated with talking or
texting while driving a 70,000-pound concrete truck.
Even non-commercial drivers can recognize that a prohi-
bition on possessing a cell phone in a vehicle most effec-
tively prevents a driver from getting distracted by a cell
phone while driving. Further, nothing in the Cell Phone
Policy and Acknowledgement would indicate to an em-
ployee that they are prohibited from discussing, taking
photos, or recording their terms and conditions of employ-
ment while away from the facility. As a result of the lim-
ited scope of these restrictions, and recognizing that em-
ployees are not guaranteed the right to use every method
of communication available to them to discuss their terms
and conditions of employment, we find that the Policy and
Acknowledgement do not interfere with the exercise of
their rights under the Act. See Register Guard, 351 NLRB
1110, 1115 (2007) (“‘Section 7 of the Act protects organ-
izational rights…rather than particular means by which
employees may seek to communicate.’” (quoting Guard-
ian Industries Corp. v. NLRB, 49 F.3d 317, 318 (7th Cir.
1995)), enfd. in relevant part and remanded sub nom.
Guard Publishing Co. v. NLRB, 571 F.3d 53 (D.C. Cir.
2009).
Accordingly, we reverse the judge and dismiss the alle-
gation because a reasonable employee would not interpret
the Cell Phone Policy and Acknowledgment, when read as
a whole, to potentially interfere with his or her rights un-
der the Act. Further, we designate rules that prohibit the
use or possession of cell phones in commercial vehicles as
lawful Category 1(a) rules because the General Counsel
has failed to meet the burden of showing that these rules
General Counsel could have met the initial burden of proving that some
statutory employees had access to the Respondent’s email system based
merely on an inference drawn from the size of the Respondent’s opera-
tions. Therefore, the Respondent’s Electronic Communications Policy
would have been lawful under Purple Communications as well.
6 A concrete truck is considered a commercial vehicle because it
weighs between 29,000 pounds unloaded and 70,000 pounds loaded.
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 5
would reasonably be understood as interfering with em-
ployees’ Section 7 right to communicate with each other
during nonwork time.
B. Suspension and Discharge of Emmanuel Excellent
There is no dispute that the Respondent discharged Em-
manuel Excellent pursuant to its Cell Phone Policy be-
cause it suspected he possessed a cell phone in the cab of
his concrete truck. Based on her finding that the Cell
Phone Policy was an unlawful workplace rule, the judge
then applied Continental Group, Inc., 357 NLRB 409
(2011), to find Excellent’s suspension and discharge pur-
suant to that Policy unlawful. However, because we find
the Respondent’s Cell Phone Policy a lawful workplace
rule, we reverse the judge and dismiss this allegation.7
C. Failure to Provide Notice and Opportunity to Bargain
Applying Total Security Management Illinois 1, LLC,
364 NLRB No. 106 (2016), the judge found that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
failing to provide the Union notice and an opportunity to
bargain before suspending Excellent. Subsequent to the
judge’s decision, the General Counsel joined the Respond-
ent in requesting that the Board reconsider Total Security
Management and dismiss the allegation. Moreover, in an-
other case pending before us, 800 River Road Operating
Company, LLC d/b/a CareOne at New Milford, 22‒CA‒
204545, the parties and an amicus curiae filed comprehen-
sive briefs regarding the question of whether Total Secu-
rity Management was correctly decided. Therefore, we
deem it appropriate to sever and retain for further consid-
eration the allegation that the Respondent unlawfully
failed to bargain with the Union before suspending Excel-
lent.
ORDER
The complaint allegation that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to provide the
Union notice and an opportunity to bargain before sus-
pending Emanuel Excellent is severed from this case and
retained for further consideration.
IT IS FURTHER ORDERED that the remaining complaint
allegations are dismissed.
Dated, Washington, D.C. February 5, 2020
______________________________________
John F. Ring, Chairman

7 There is neither an allegation that the Respondent disparately en-
forced the Cell Phone Policy and Acknowledgement nor any record evi-
dence that Excellent was engaged in protected concerted activity at the
time of his suspension.
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
The Board’s decision can be found at
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.
Cristina Ortega and John F. King, Esqs., for the General Coun-
sel.
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 concern-
ing 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 I heard this matter
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
on June 13–15, 2018, in Miami, Florida, and this matter was con-
tinued 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 re-
garding the receipt of exhibits into the record and joint motion to
set briefing schedule and to close the record. I afforded all par-
ties a full opportunity to appear, introduce evidence examine and
cross-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 ob-
servation of the demeanor of the witnesses, and the parties’
briefs2 I find that
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 busi-
ness in Naples, Florida, where it engages in the manufacturing
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 Flor-
ida. 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 Un-
ion No. 1652, Laborers’ 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 facility (Naples facility) from Vulcan En-
terprises 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 pre-
decessors 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

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.
2 Although I have included citations to the record to highlight partic-
ular 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 testi-
mony, 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 wit-
ness 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 com-
ponents such as cement, gravel, sand, and other additives; a water supply;
conveyor systems to refill the storage containers; and conveyor systems
ready-mix concrete batch plant facilities. Because 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 managerial hierarchy. Mi-
chael Beer (Beer) is the director of human resources for ready-
mix operations in the United States. (Tr. 55.) Beer oversees hu-
man 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 man-
ager for the south Florida geographical area, which spans from
Tampa to Miami, including the Naples facility. (Tr. 60, 353.)
Chad Kennedy (Kennedy) is the district manager for the 15 fa-
cilities 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 supervi-
sor at the Naples facility. (Tr. 60.)5
The approximately 11 ready-mix truck-drivers at Respond-
ent’s Naples, Florida facility are 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 facility
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 breakroom sits in line with the
batch plant but closer to the front of 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.
that deliver the components to the shoot. The concrete mixer truck is
maneuvered under the batch plant so that the shoot can deliver the mate-
rials into the rear opening of its drum.
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 ap-
plied 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; ex-
cluding all other employees, office clerical employees, guards and super-
visors as defined in the Act (unit).
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 7
Customer orders are taken by a centralized customer service
and dispatch office in Sarasota, Florida, and a computerized sys-
tem 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.) 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 in the breakroom and then per-
form 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 breakroom for a ticket of
laden.
The computerized dispatch system prints a ticket with all the
delivery information and the ready-mix truckdriver’s name.
Johnson clips the ticket to a string and lowers it through a hole
in the office floor to the breakroom. 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 cus-
tomer’s concrete specifications. Once loaded the driver drives
to the 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 concrete, and add water or
other additives if necessary to ensure the proper slump and con-
crete 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 dis-
penses the concrete as requested by the customer. A driver may
be detained at a jobsite for various reasons including unsafe con-
ditions, 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 construc-
tion, 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 op-
erating with the drum rotating to maintain the concrete. Depend-
ing on weather conditions and the amount of wait time, the driver
may need to climb up the truck to inspect the slump and add wa-
ter 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.)

7 For the monthly safety meetings, all the employees report at the
same time and attend the same meeting. (Tr. 261.)
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 sub-
sequent tickets at the same time. On average drivers haul be-
tween three and five loads per day. Respondent’s employees re-
fer to the time it takes to be 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. (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. 259, 295, 374; R. Exh. 10, at pp. 1b‒
26b under RTT column.) This is consistent with employee Pe-
rez’ testimony that he rarely has occasions where this roundtrip
time exceeds 4 hours. (Tr. 161–162.)
The breakroom contains a refrigerator, coffee maker, micro-
wave, tables and chairs, and a restroom. Drivers are allowed to
take at least short breaks between loads even if their next ticket
is available. Pursuant to Respondent’s policies, drivers may use
their personal cell phones in the breakroom, on the facility prop-
erty, or in their personal vehicles and can store them in their ve-
hicles, 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 begin-
ning of the shift pretrip truck 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 drivers communicate with dis-
patch, 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, 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 ra-
dios are for business purposes only and has specifically reminded
employees of this policy, when employees have failed to be brief
8 Witnesses used the term “key the mike” to mean depressing the talk
button on the mike. (Tr. 261, 292, 313.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
in their nonwork related use of the radio frequency. (Tr. 292;
GC Exh. 14.)
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 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 em-
ployees 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 ce-
ment blocks to customers. (Tr. 84.) 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, but they are commercial trucks estimated to weigh
more than 10,000 pounds. (Tr. 85–86, 237.) The flatbed truck-
drivers 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 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
Exh. 5.)
3. Respondent’s work rules and policies
The General Counsel contends that the following exerts of Re-
spondent’s work rules and policies and employee acknowledge-
ment forms separately or in combination violates Section 8(a)(1)
of the Act.
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 “confi-
dential Company information,” and that they:
understand and agree that [they] may only use such confiden-
tial information for purposes of carrying out Argos’ business,
and [they] may not make use of or disclose any such confiden-
tial information during or after termination of [their] employ-
ment with Argos without the express written consent of the
General Counsel of Argos.

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 document defines “confidential information” to include:
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, produc-
tion methods (including designs, formulas, techniques, pro-
cesses), any non-published prices, discounts, commissions,
costs, supplier information, earnings, contracts, employee in-
formation, subcontractors, business plans, marketing and/or
supply strategies, training programs, computer software or pro-
grams, and other business arrangements. [GC Exh. 3.]
General Counsel, in brief, contends that the inclusion of the
terms “earnings” and “employee information” in this list consti-
tutes a violation of the Act.
b. Electronic communications policy
All of Respondent’s employees are required to sign its “Elec-
tronic Communications Policy Acknowledgment Form” which
states, in pertinent part, that the employee understands that Re-
spondent’s email system “is to be used for business purposes and
not for personal purposes.” (Tr. 69; GC Exh. 4.) The record con-
tains little evidence of employee use of the email system. The
only individuals who have email access at the batch plant facili-
ties 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 per-
form. General Counsel failed to solicit evidence about whether
other statutory employees such as employees who work in cen-
tralized dispatch or clerical employees, as excluded from the unit
description, have access to Respondent’s email system via indi-
vidualized email accounts. I note that Respondent provided in-
formation 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 employ-
ees. (Tr. 381, 397.)
c. Cell phone rules and policies
The following portions of Respondent’s work rules and poli-
cies regarding cell phone use have 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 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 ac-
companying equipment (e.g. earpieces or hands-free devices)
and applies regardless of where the commercial vehicle is be-
ing operated. Employees are encouraged to leave their cell
phones in personal vehicles at all times. If a driver in a com-
mercial vehicle is involved in an accident, the company re-
serves the right to look at the driver’s cell phone call history
(including their personal cellphone), to determine if the driver
the concrete; 10-6 finished the pour; 10-7 to stop for a short break, es-
pecially 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.)
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 9
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) vehi-
cle that is in motion, at any time, unless the employee is using
a completely hands-free device. When using a hands-free de-
vice the driver must be able to operate, place and receive calls
from the phone without distraction. The driver must not at-
tempt 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 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 de-
pending on other disciplinary write-ups in the employee’s file
under the progressive discipline guidelines. [GC Exh. 5.]
In addition to these portions of Respondent’s work rules and
policies addressing cell phone use, employees working in ap-
proximately 110 facilities in Respondent’s South Central Re-
gion, including Texas, Arkansas, and Florida have also signed
“Cellular Telephone Acknowledgement” forms. The acknowl-
edgement form that Excellent signed on June 11, 2014, states, in
relevant parts:
—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
—that “use or possession of cellular telephones are (sic) pro-
hibited while operating any Argos, USA commercial motor ve-
hicles.” (GC Exh. 4.)
In November of 2016, at least the employees in the South Cen-
tral Region, including Excellent, were again required to sign a
“Cellular Telephone Acknowledgement” form which states, in
relevant part:
The use or possession of cellular telephones is prohibited while
operating any Argos, USA commercial motor vehicles. [GC
Exh. 2.]
In about 2015, Beer distributed to all of Respondent’s human
resource officers, managers, and supervisors a “Progressive Dis-
cipline 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 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;
76 Fed. Reg. 75470, 75481 (Dec. 2, 2011).
Beer testified about two ready-mix truck accidents that re-
sulted in the death of the drivers and how such incidents contrib-
uted 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 evi-
dence to support Beer’s assertion that cell phone usage played a
role in these accidents or any other accident caused by Respond-
ent’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 evi-
dence 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-mix truck he was driving be-
cause he “reached for his cell phone,” but there was no explana-
tion 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. Furthermore, the devas-
tating accidents to which Beer testified occurred well after the
cell phone policy was instituted and could not have been the im-
petus 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 his usual spot close to the dump-
sters. (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’ breakroom. (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 breakroom, he noticed that his cell phone was
missing and started to search for it in the breakroom and by ask-
ing other drivers about it. Before locating his cell phone, he re-
ceived a ticket and left to deliver the load. (Tr. 108.) Upon re-
turning from the delivery, he again attempted to locate his cell
phone and asked plant manager Johnson about it. Johnson re-
sponded 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 to tell Marion about it because Marion
might consider the location where it was found suspicious. (Tr.
110.) Excellent returned to the breakroom 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, when company records and the tes-
timony of another driver do not support such claims. (Tr. 94, 95,
132; R. Exh. 10.) The tone of Excellent’s voice evidenced ani-
mosity that likely influenced his perception or accurate recollec-
tion 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 ap-
proached Johnson about his missing cell phone after making that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
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 con-
sidering all the circumstances. 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 dur-
ing the 19 minutes between trips to retrieve his phone and imme-
diately thereafter being unable to locate it. No witnesses corrob-
orated Excellent’s testimony that he asked them if they had seen
his cell phone before leaving to deliver his second load. Addi-
tionally, Excellent’s claim that Johnson told him he was not go-
ing to tell Marion where the phone was found is also implausible.
I can think of no reason that would have caused Johnson to men-
tioned 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 the breakroom. While he would have crossed
over the driveway that passes by the slump rack on his way to
the breakroom 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 breakroom. Finally, Excellent
admitted that he sometimes kept his cell phone with him and, as
discussed 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 Excellent after they arrived at the facil-
ity 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 de-
meanors gave me reason to discredit their testimonies as to their
interactions with Excellent.
After speaking with Johnson, Excellent waited in the driver’s
breakroom. Marion and Kennedy arrived and spoke with John-
son 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 office. Another driver attended the
meeting as a witness, but the union was not informed of the meet-
ing. Marion explained to Excellent that because his phone was

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 em-
ployee use of cell phones for Sec. 7 purposes. Beer testified that Re-
spondent lost the representation election 13 to 1 with the cell phone pol-
icy in place in support of Respondent’s argument that employees have
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 by
the slump rack. Marion informed Excellent that he was sus-
pended, 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 re-
quested 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 rec-
ords and directed Kennedy to speak to the Union about this mat-
ter. (Tr. 116, 352–353.)
On March 8, Beer emailed Rolle informing him that Excellent
had been suspended pending investigation. (Tr. 192, 194; GC
Exh. 8.) This was the first communication that the Union re-
ceived 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 situa-
tion. 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 illustrating how he
could compare the trip times to Excellent’s cell phone call his-
tory 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 ex-
ample, Beer’s 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 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 Chad-
wick finding it immediately thereafter. Respondent determined
sufficient opportunity to communicate with each other. I find that the
election results do little to evidence employees’ opportunity to communi-
cate 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.
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 11
that Excellent’s failure to provide another reliable explanation
for why the cell phone was found in that location and his unwill-
ingness to provide any of his cell phone records supported that
conclusion. (GC Exh. 6.) On April 26, 2017, Beer communi-
cated this determination to Rolle by email marking the point of
impasse in the parties’ negotiations.
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 a commercial motor vehicle
or while on any job site…Management has consistently ad-
hered to a past practice of terminating all employees who vio-
late the company’s cell phone policy. After a thorough review
of the facts before us and after carefully considering the argu-
ments and proposals advanced by the Union on your behalf;
management has decided to apply that practice to the circum-
stances of your case, and to terminate your employment effec-
tive 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 the driver utiliza-
tion 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 suspending employees pending
investigation in situations involving a suspected cell phone pol-
icy violation. (Tr. 283, 314, 349, 365, 401, 437.) As Respondent
asserts, no testimony rebuts 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 suspen-
sions, pending investigation and culminated in discharge. (See
Tr. 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 vehi-
cles. An example of the types of 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.
In one incident arising in Florida, Respondent was unable to
verify whether the driver was suspended before being dis-
charged, but Beer testified that the policy should have been fol-
lowed. (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
Respondent has acquired more and more facilities, implementing
uniform policies and uniformly enforcing them has been an on-
going process. This is apparent in the varying discipline forms
used and discipline issued at various locations. The record re-
flects that these locations maintained the cell phone policy for-
bidding the presence of a cell phone in the cab of a ready-mix
truck, but their procedures in handling cell phone violations dif-
fer greatly. (GC Exh. 16–24; R. Exh. 17‒53.)
In reviewing the documents from outside the south Florida re-
gion, Beer’s assertion that he enforced a company-wide policy
of suspension pending investigation before discharge is not re-
flected in Respondent’s records. In 14 incidents where employ-
ees were found to have violated 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 dis-
cipline short of termination for violating the cell phone 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 be-
fore they were discharged. (R. Exh. 17–42, 46–52.) Often the
records reflect that 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 sim-
ilar 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.
Additionally, the records in two discipline situations reflect
that as late as October 2016, Respondent allowed some of its em-
ployees to transport a cell phone in a yellow box attached to the
outside of the ready-mix truck, but the employees were forbid-
den from having the cell phone in the cab of the truck. (R. Exhs.
53 and 18.)
ANALYSIS
1. Respondent’s work rules
a. Board precedent analyzing employee rules
The Board has long found that employers’ rules, policies or
handbook provisions that reasonably tend to chill employees’ ex-
ercise 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 & Reha-
bilitation Services v. NLRB, 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 dis-
cussing their wages. Other rules clearly do not involve
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
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 am-
biguous or broad language or in the context of other 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.
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 em-
ployees “would reasonably construe” it to interfere with, coerce
or restrain them in the 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 Boe-
ing standard requires that:
a facially neutral policy, rule or handbook provision that, when
reasonably interpreted, would potentially interfere with the ex-
ercise 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, con-
sistent with the Board’s “duty to strike the proper balance be-
tween . . . asserted business justifications and the invasion of
employee rights in light of the Act and its policy,” focusing on
the 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 the Act, and therefore, should be given individual scrutiny
under the standard set forth in Boeing “to strike the proper bal-
ance 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 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

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.
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—
maintenance will violate Section 8(a)(1) if the Board deter-
mines that the justifications are outweighed by the adverse im-
pact 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 em-
ployer’s legitimate business justifications without or with less
infringement on employees’ 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.
Furthermore, the Board did not overturn 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); Ameri-
can Cast Iron Pipe Co., 234 NLRB 1126 (1978), enfd. 600 F.2d
132 (8th Cir. 1979). Therefore, I must assess the 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 disci-
pline any employee.
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 in-
formation for “only” the “purposes of carrying out Argos’ busi-
ness.” The policy goes on to specifically forbid the use or dis-
closure of such confidential information “without the express
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 regard-
ing…earnings…[and] employee information…”
The string of items listed in the definition initially are confined
to information concerning Respondent’s proprietary interests
such as customers, suppliers, subcontractors, production meth-
ods, contracts, pricing, and business plan. I agree with Respond-
ent that confidentiality provisions limited to these investment
and proprietary information of a company do not impact employ-
ees’ 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 confined
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.
13 Respondent relies heavily on NLRB General Counsel Memoran-
dum 18-04 and Advice Memorandum re: Case 20–CA–171751 in con-
tending 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
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 13
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, ap-
plying the reasonable employee standard articulated in Boeing, I
find that a reasonable employee would interpret the inclusion of
the term earnings to include employee wages in the context of
this rule.14 The Board has long held that the ability for employ-
ees to discuss their wages amongst themselves is a core right
protected by Section 7 of the Act. See Victory, LLC d/b/a Vic-
tory 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).
I further find that a reasonable employee would likely inter-
pret 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 rule in no way limits the rule
to more sensitive employee information and is not limited to em-
ployees 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 in-
formation, 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
employee information despite how they acquired that infor-
mation. Furthermore, I find no language noting exceptions to the
confidentiality rule which would permit employees to discuss
their general knowledge of employee contact information, com-
pensation, discipline, or any other specific terms and conditions
of employment with fellow employees or the public.
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 employ-
ees would reasonably believe that they are prohibited from dis-
cussing wages or other terms and conditions of employment with
nonemployees, such as union representatives—an activity pro-
tected 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”);

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 “em-
ployee information” in a confidentiality rule that would otherwise be lim-
ited 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
Double Eagle Hotel & Casino, 341 NLRB 112 (2004) (rule pro-
hibiting employees from discussing grievance/complaint infor-
mation, disciplinary information and other work-related matters
unlawful).
Therefore, I find that Respondent’s confidentiality rule “when
reasonably interpreted, would potentially interfere with the exer-
cise of NLRA rights,” necessitating an analysis of “(i) the nature
and extent of the potential impact on NLRA rights, and (ii) legit-
imate justifications associated with the rule.” Any rule that is
reasonably interpreted, as I have found here, to prevent employ-
ees 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 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 dis-
cussing 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 di-
vulging certain employee information such as medical infor-
mation, but Respondent’s rule is not narrowly tailored to address
this concern. Significantly, Respondent failed to assert any jus-
tification for the necessity of including these terms in the confi-
dentiality definition in order to protect its legitimate proprietary
interests.
Accordingly, I find under the circumstances of this case that
the Respondent’s maintenance of a rule requiring employees to
keep confidential earnings and employee information violates
Section 8(a)(1) of the Act.
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 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 restrict-
ing its employees’ rights. Because limitations on employee
communication should be no more restrictive than 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,
company earnings. No evidence of record supports that assertion or a
finding that such a clarification of the term was ever published or com-
municated 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
employers may nonetheless apply uniform and consistently en-
forced controls over their email systems to the extent that such
controls are 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 an employer maintains a ban on employee use of its email sys-
tem 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’s email system or to whom the rule lim-
iting its use “for business purposes and not for personal pur-
poses” 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 in-
fringes 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 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 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 employ-
ees sign the policy.
To the extent that Respondent employs statutory employees
with access to its email system, the Board presumes the policy to
be an unlawful invasion on their Section 7 rights. Respondent
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.
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 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

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.)
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 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 strin-
gent rule applied to them.
“The Board has long held, with court approval, that the Sec-
tion 7 right to organize and bargain collectively ‘necessarily en-
compasses the right effectively to communicate with one another
regarding self-organization at the jobsite.’” Purple Communica-
tions, supra at 1062, quoting Beth Israel Hospital v. NLRB, 437
U.S. 483, 491 (1978). See also, Estex Inc. v. NLRB, 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 fur-
therance of their Section 7 rights, absent a legitimate business
reason to prohibit such conduct. Boeing, supra at slip op. 18-19;
Hawaii Tribune-Herald, 356 NLRB 661, 661 (2011), enfd. sub
nom. Stephens 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 pro-
hibit employees from discussing, photographing, or recording
information about their terms and conditions of employment, it
effectively prevents them from doing so while away from the fa-
cility. Accordingly, under Boeing, I must evaluate (i) the nature
and extent of the potential impact on NLRA rights, and (ii) le-
gitimate justifications associated with the rule.
Employees’ personal cell phones are by far the most com-
monly 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.
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 com-
pany provided two-way radios to communicate with each other,
including apparently engaging in protected concerted communi-
cations. This argument fails for two reasons. First, Respond-
ent’s two-way radios are constantly monitored by batch plant su-
pervisors, admitted 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 re-
lated issues. Second, employees’ ability to communicate via the
16 The Board’s balancing test in Purple Communications is similar to
the balancing test required by Boeing.
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 15
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 without repercus-
sions, 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 accidents or
situations involving the trucks for use by Respondent. Employ-
ees 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 un-
comfortable position of asking for replacement cameras if they
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 unten-
able because it is likely to chill reasonable employees from ex-
ercising their Section 7 rights.
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 exam-
ple, 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 or did use the picture for any con-
certed 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 opportunity to make a call, text, or
email to or receive a message from other workers or a union rep-
resentative 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 con-
cerning their wages, hours, and working conditions during as
much as 85 percent of their shifts. During much of the time that
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 as-
sess 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 guaranteed by Section 7 of the
Act.

17 Respondent argues that employees would be allowed to use the dis-
posable 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
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 re-
quiring no more than an on/off button touch. Similarly, Re-
spondent 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 al-
lows 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 uti-
lized like a cell phone and at a minimum require one hand to
operate as a two-way radio. While these vehicles are not as
heavy as ready-mix trucks, they too can cause 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 trucks is to remove drivers’ tempta-
tion to use them while driving and that the weight of these vehi-
cles 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 evi-
dence 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 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. 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.
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 interests. Taken to its logical conclu-
sion 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
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 slip op. 19-21.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
limited type of employee information, as discussed above. In-
stead, a rule that fulfills Respondent’s legitimate safety needs, if
followed, but does significantly interfere with employees’ exer-
cise 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
Thus, I find that the employees’ Section 7 rights to communi-
cate 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. Accord-
ingly, I find that Respondent’s cell phone policy, as written, vi-
olates Section 8(a)(1).
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 un-
lawful only if the employee “violated the rule by (1) engaging in
protected conduct or (2) engaging in conduct that otherwise im-
plicates 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 communicate with other workers
during the majority of their working time is conduct that impli-
cates the concerns underlying Section 7.
The Board has issued limited examples of conduct that impli-
cates Section 7 activities. In discussing the second prong in Con-
tinental Group, the Board focused on whether disciplining an
employee for the conduct at issue is likely to chill other employ-
ees’ exercise of Section 7 rights. As an illustration of this con-
cept, the Board provided an example of an employee who com-
plained about his own wage but did not complain about wages in
concert with other employees, thus the employee had not en-
gaged in concerted activity. The Board explained that employ-
ees are not likely to know the distinctions between individual and
concerted activity 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 dis-
cussions about wages and/or raises as well. Continental Group,
supra at 412. In contract, the discharged employee in Continen-
tal Group was living out of his car which he frequently parked
overnight on the employer’s premises. The employer discharged
the employee pursuant to an overly broad rule prohibiting em-
ployees from being on company property, but specifically for
sleeping on the property. The Board found that his discharge

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
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.
Considering the Board’s emphasis on how employees would
reasonably interpret the implications of another employee’s dis-
cipline 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 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 dis-
charged because Respondent suspected he had his phone and will
continue to deter them from exercising their Section 7 rights.
Accordingly, I find that Excellent engaged in conduct that other-
wise implicates the concerns underlying Section 7.
An employer can “avoid liability for discipline imposed pur-
suant to an overbroad rule if it can establish that the employee’s
conduct actually interfered with the employee’s own work or that
of other employees or otherwise actually interfered with the em-
ployer’s operations, and that the interference, rather than the vi-
olation of the rule, was the reason for the discipline.” Id. Mere
evidence that the employee violated the overbroad rule is insuf-
ficient 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 interfer-
ence as a reason for the discharge. Id.
In Flex Frac, the employer maintained an overly broad confi-
dentiality 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 rates. The employer cited the
disclosure of the proprietary information, for which it had a le-
gitimate 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 opera-
tions and cited that interference as the reason for the employee’s
discharge. Supra at 1004–1005.
The record contains no evidence that Excellent’s conduct in-
terfered 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.
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
arrangement. I cite this practice here only as an example of how Re-
spondent 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.
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 17
cell phone records prevented it from proving it had cause to dis-
charge him or to prove that he was unfit to return him to work. I
find that this argument could meet the Board’s test in Continen-
tal, 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 associ-
ated with using cell phones while driving the truck which inter-
feres with Respondent’s safe operations. The record does not
support such an assertion.
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 Rolle clarifies that he was seeking Excellent’s cell phone rec-
ords 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, Re-
spondent 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 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 Ex-
cellent’s conduct actually interfered with his or other employees’
work performance or with Respondent’s business operations.
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 Excellent
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 sus-
pending 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 from
making unilateral changes in terms and conditions of employ-
ment while it is bargaining with the employees’ representative
for an initial contract to individual employee discipline that sig-
nificantly 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, 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 de-
moting or suspending without pay, alters their terms and condi-
tions of employment if the discipline “is not controlled by preex-
isting, nondiscretionary employer policies or practices.” Id. at

19 As discussed above, Advice Memoranda and General Counsel
Memoranda are not precedent but the position of one party before the
Board.
slip op. 3. An employer has the duty to bargain if “the changes
had a material, substantial, and significant impact on the em-
ployees’ 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, 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 fur-
ther discipline, do not require bargaining unless or until they re-
sult in further discipline that has a material, substantial, and sig-
nificant impact on terms and conditions of employment. Id. at
slip op. 4. “And if the change is consistent with established prac-
tice in some respects but also involves an exercise of discretion
by the employer, the employer must bargain over the discretion-
ary aspects 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 that Ex-
cellent’s suspension pending investigation did not have an inev-
itable 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 suspen-
sion. 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 (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
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 Se-
curity, and an inaccurate statement of the reasoning in Alan
Ritchey. In discussing employer’s ability to respond to exigent
circumstances, such as an employee who had engaged in unlaw-
ful 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 result-
ing from the employer’s investigation.” Total Security, supra at
slip op. 9, fn. 20; See also, Alan Ritchey, supra at 404 fn. 19 (con-
taining 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
conditions of employment. This result follows from the Board’s
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 was to allow employees to as-
sert 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 liability
reasons could have excused Respondent from giving the Union
notice and the opportunity to bargain regarding the suspension
before its implementation.
I find that no exigent circumstances existed at the time Excel-
lent 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 regulations do not forbid cell phone
presence or use in these vehicles with the right precautions. Re-
spondent’s own rules recommend only temporary suspensions
for the first violation of this policy. Managers in other geo-
graphic regions have issued mere warnings or temporary suspen-
sions 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 the
record evidence, I do not find that exigent circumstances excused
Respondent from giving the Union notice and opportunity to bar-
gain about the suspension of Excellent. Even if the situation in-
volving Excellent constituted exigent circumstances, Respond-
ent had a duty to immediately give the Union notice and an op-
portunity to bargain about his suspension, which Respondent ad-
mits that it did not do. Total Security, supra at slip op. 9, fn. 20.
(GC Exh. 1(l).)
Respondent contends that its managers were compelled to sus-
pend Excellent by its practice of suspending pending investiga-
tion employees for violating its cell phone policy prior to dis-
charging 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 Flor-
ida operations, where the Naples facility is located, proves that
its managers were exercising a nondiscretionary policy when
they suspended Excellent.20

20 Even if Respondent’s assertion that its managers’ decision to sus-
pend Excellent pending investigation is found to be nondiscretionary be-
cause of those managers’ past practice, it was discretionary to apply that
practice to Excellent. The circumstances under which Excellent was sus-
pended 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
Respondent’s written policies do not support these claims. No
written policy of record states that managers should suspend em-
ployees pending investigation in preparation for discharge or for
suspected violations of the cell phone policy. Respondent’s writ-
ten disciplinary action policy for violation of the cell phone pol-
icy 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 “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 pol-
icy. Finally, Respondent’s “Progressive Discipline Table—A
Guideline” suggests only a step 2, written warning with a docu-
ment to the employee’s file for a violation of the cell phone pol-
icy. Inherent in each of these suggested disciplines for violations
of the cell phone policy is that the managers do have discretion
in what punishment to levy.
Furthermore, the documentary evidence illustrates the discre-
tionary nature of how managers handled violations of the cell
phone policy. Managers in other geographical regions have used
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 discre-
tion to take other actions as outlined in Respondent’s policies,
and as other managers have done.
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. Gen-
eral 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 be-
fore suspending Excellent as the Board noted in Total Security.
I find that the totality of the evidence does not support Respond-
ent’s assertion that Marion and Kennedy had no discretion in de-
termining to suspend Excellent pending investigation. Respond-
ent 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 suspending the em-
ployee. 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.
An employer can avoid liability for remedying a violation of
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 com-
mercial 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.
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 19
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 con-
tends 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 Ex-
cellent engaged in misconduct for which it was privileged to sus-
pend or discharge him.21
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 Sec-
tion 8(a)(5) and (1) and of the Act.
4. Remedial principles at issue
General Counsel asserts that because Respondent failed to
bargain with the Union before suspending Excellent, any infor-
mation gathered during its investigation after his suspension can-
not 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 dis-
cipline: the employer’s unlawful failure to bargain over the im-
position of discipline is itself what makes the discipline unlaw-
ful.” Supra, at slip op. 17. Thus, Respondent’s failure to bargain
over the suspension is what made Excellent’s suspension unlaw-
ful and that act should be remedied.
The Board’s remedial aim is to restore “the situation, as nearly
as possible, to that which 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 back-
pay and reinstatement to make affected employees whole. Total
Security, supra at slip op. 16. In Total Security, the Board ad-
dressed limits to these typical remedies. “In cases in which the
respondent failed to provide notice and an opportunity to 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. Back-
pay in such a case would normally run from the date of the dis-
cipline until the date on which the parties reached [agreement or]
impasse.” Id. “Because the employer may impose the discre-
tionary discipline after the parties have reached impasse,

21 I consider whether Excellent’s refusal to provide his cell phone rec-
ords 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 Excel-
lent 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
ordering a reinstatement or rescission remedy would appear to
be impractical in most circumstances where the parties are at im-
passe.” 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,
and 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 LAW
1. Argos USA LLC, d/b/a Argos Ready Mix, LLC (Respond-
ent) 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 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 and super-
visors as defined in the Act.
3. Since at least January 26, 2017, Respondent has violated
Section 8(a)(1) of the Act by maintaining work rules that would
reasonably tend to chill employees in the exercise of their Sec-
tion 7 rights either by expressly prohibiting or restraining the ex-
ercise 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:
-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.
4. On March 3, 2017, Respondent violated Section 8(a)(1) of
the Act by suspending Emanuel Excellent pursuant to its unlaw-
ful “Cellphone Policy While Operating a Vehicle, Commercial
Vehicle and Heavy Equipment and related Cellular Telephone
Acknowledgement” forms.
5. On about March 3, 2017, Respondent failed and refused to
bargain collectively and in good faith with the Union as the ex-
clusive collective-bargaining representative of its employees in
violation of Section 8(a)(5) and (1) of the Act by failing and re-
fusing to give the Union notice and opportunity to bargain with
Respondent before suspending its employee Emanuel Excellent.
Respondent’s failure to give the Union notice and opportunity to bargain
prior to suspending him.
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 sus-
pending and discharging Excellent pursuant to an unlawful rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
6. On about April 28, 2017, Respondent violated Section
8(a)(1) of the Act by discharging its employee Emanuel Excel-
lent pursuant to its unlawful “Cellphone Policy While Operating
a Vehicle, Commercial Vehicle and Heavy Equipment and Cel-
lular Telephone Acknowledgement” forms.
7. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair 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 work rules, policies and/or
acknowledgement forms, I recommend that Respondent be or-
dered to take the following actions. Within 14 days, at all of its
facilities where the unlawful rules, policies, and acknowledge-
ment 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
may comply with the Order by rescinding the unlawful provi-
sions and republishing its employee rules, policies, and acknowl-
edgement 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 adhe-
sive backing which will cover the old and unlawfully broad rules,
until it republishes the employee rules, policies, and acknowl-
edgement 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 unlaw-
ful provisions before being distributed to employees.” Guards-
mark, 344 NLRB at 812 fn. 8.
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 Re-
spondent be ordered to bargain in good faith with the Union by
giving it notice and opportunity to bargain before imposing seri-
ous discipline (e.g., suspension, discharge, demotion), while an
initial collective-bargaining agreement or a method for dispute
resolution has not been agreed to or is not yet in effect.
Respondent, having unlawfully suspended and discharged Ex-
cellent, must offer him reinstatement and make him whole for
any loss of earnings and other benefits. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky 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 859 F.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 earnings. Search-for-work and interim
employment expenses shall be calculated separately from taxa-
ble 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 ap-
propriate calendar quarters. Respondent shall also compensate
Excellent for the adverse tax consequences, if any, of receiving
one or more lump-sum backpay awards covering periods longer
than 1 year, Latino Express, Inc., 359 NLRB 518 (2012). Re-
spondent 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 Respondent be ordered to post nation-
wide 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 conspic-
uous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, notices in each language deemed appropriate shall be dis-
tributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respond-
ent 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 notice
in each appropriate language to all current employees and former
employees employed by the Respondent at any time since Janu-
ary 26, 2017.
Respondent having been found to have engaged violations of
the Act, I recommend that Respondent be ordered to post in Re-
spondent’s 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 conspic-
uous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, notices in each language deemed appropriate shall be dis-
tributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respond-
ent 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 notice
in each appropriate language to all current employees and former
employees employed by the Respondent at any time since Janu-
ary 26, 2017.
On these findings of fact and conclusions of law and on the
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 21
entire record, I issue the following recommended23
ORDER
Respondent Argos USA LLC, d/b/a Argos Ready Mix, LLC,
Alpharetta, Georgia and Naples, Florida its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Maintaining an overly broad confidentiality policy that
prohibits employees from discussing earnings and employee in-
formation.
(b) Maintaining an overly broad electronic communications
policy that unlawfully interferes with employees’ use of Re-
spondent’s email system for Section 7 purposes.
(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 acknowledge-
ment forms verifying that the employees are aware of Respond-
ent’s overly broad cell phone use policy that unlawfully inter-
feres with employees’ use of their personal cell phones for Sec-
tion 7 purposes.
(e) Issuing suspensions or other discipline to employees for
violating its unlawfully overbroad rules.
(f) Discharging employees for violating its unlawfully over-
broad 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
collective-bargaining representative of the following appropriate
unit (the unit) of Respondent’s employees:
All full-time and regular part-time ready-mix drivers em-
ployed by the Respondent at its Naples, Florida facility; ex-
cluding all other employees, office clerical employees, guards
and supervisors as defined in the Act.
(h) Imposing serious discipline (e.g., suspension, discharge,
demotion) upon bargaining unit employees without first notify-
ing 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 exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) 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.
(b) Rescind the suspension and discharge of Emanuel Excel-
lent.

23 If no exceptions are filed as provided by Sec. 102.48 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
(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 disci-
pline, until a first contract is implemented or an agreement is
reached regarding a method for dispute resolution.
(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 prej-
udice 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
decision.
(f) Compensate Emanuel Excellent for the adverse tax conse-
quences, 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 appro-
priate calendar years.
(g) Compensate Excellent for his search-for-work and interim
employment expenses regardless of whether those expenses ex-
ceed 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 Excellent in writing that this
has been done and that the suspension and discharge will not be
used against him in any way.
(i) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its 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 elec-
tronic form, necessary to analyze the amount of backpay due un-
der 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) provide law-
fully worded provisions on adhesive backing that will cover the
unlawful provisions; or publish and distribute to employees re-
vised employee rules, policies and acknowledgement forms that
(1) do not contain the unlawful provisions, or (2) provide law-
fully worded provisions.
(k) Within 14 days after service by the Region, post nation-
wide 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 Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are cus-
tomarily 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
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
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 ma-
terial. If the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice in each
appropriate language to all current employees and former em-
ployees employed by the Respondent at any time since January
26, 2017.
(l) Within 14 days after service by the Region, post nation-
wide 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 conspic-
uous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, notices in each language deemed appropriate shall be dis-
tributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respond-
ent 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 notice
in each appropriate language to all current employees and former
employees employed by the Respondent at any time since Janu-
ary 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 the
Respondent has taken to comply.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain an “Employee Confidential Infor-
mation Agreement” stating that employees may have access to
“confidential Company information,” and that they:
understand and agree that [they] may only use such confiden-
tial information for purposes of carrying out Argos’ business,
and [they] may not make use of or disclose any such confiden-
tial information during or after termination of [their] employ-
ment with Argos without the express written consent of the
General Counsel of Argos.
In which “confidential information” is defined to include earn-
ings 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 ac-
companying equipment (e.g. earpieces or hands-free devices)
and applies regardless of where the commercial vehicle is be-
ing 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.
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 acknowledge-
ment 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
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.
ARGOS USA LLC D/B/A ARGOS READY MIX, LLC 23
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain an “Employee Confidential Infor-
mation Agreement” stating that employees may have access to
“confidential Company information,” and that they:
understand and agree that [they] may only use such confiden-
tial information for purposes of carrying out Argos’ business,
and [they] may not make use of or disclose any such confiden-
tial information during or after termination of [their] employ-
ment with Argos without the express written consent of the
General Counsel of Argos.
In which “confidential information” is defined to include earn-
ings 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 ac-
companying equipment (e.g. earpieces or hands-free devices)
and applies regardless of where the commercial vehicle is be-
ing 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.
WE WILL NOT issue suspensions or other discipline to our em-
ployees for violating the rules, policies or acknowledgement
forms discussed above.
WE WILL NOT discharge employees for violating the rules, pol-
icies or acknowledgement forms discussed above.
WE WILL NOT fail to bargain in good faith with the Construc-
tion and Craft Workers Local Union No. 1652, Laborers’ Inter-
national Union of North America, AFL‒CIO, (Union) as the ex-
clusive collective-bargaining representative of the following ap-
propriate 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 super-
visors as defined in the Act.
WE WILL NOT impose serious discipline (e.g., suspension, dis-
charge, demotion) upon bargaining unit employees without first
notifying and providing the Union with the opportunity to bar-
gain over the discipline to be imposed or proposed to be im-
posed, 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 Ex-
cellent.
WE WILL on request, bargain in good faith with the Union as
the exclusive representative of the employees in the unit con-
cerning 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 Excellent full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make 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 Excellent for the adverse tax conse-
quences, 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 appro-
priate calendar years.
WE WILL compensate Excellent for his search-for-work and
interim employment expenses regardless of whether those ex-
penses exceed interim earnings.
WE WILL remove from our files any reference to the unlawful
suspension and discharge of Excellent and notify him in writing
that this has been done and that the suspension and discharge will
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
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 acknowledge-
ment 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
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.