CalMat Co.

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1084 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
331 NLRB No. 141
1084
CalMat Co. and International Union of Operating En-
gineers, Local 12, AFL–CIO. Cases 21–CA–30573
and 21–CA–31336
August 25, 2000
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
On May 23, 1997, Administrative Law Judge Michael D.
Stevenson issued the attached decision. The Respondent
filed exceptions and a supporting brief,1 the Union filed an
answering brief in opposition to the Respondent’s excep-
tions, and the Respondent filed a reply brief. The General
Counsel filed cross-exceptions, and the Respondent filed an
answering brief in opposition to the General Counsel’s
cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,2 and conclusions only to the
extent consistent with this Decision and Order. We reverse
the judge’s decision and shall dismiss the complaint.
The judge concluded, inter alia, that the Respondent vi-
olated Section 8(a)(5) and (1) of the Act by failing and
refusing to furnish the Union with certain information
requested by the Union. The judge concluded that the
Respondent’s alleged failure to supply the Union with the
requested information constituted a serious unfair labor
practice, which precluded any impasse.3 Thus, the judge
found that the Respondent further violated Section 8(a)(5)
and (1) by implementing changes in its employees’ terms
and conditions of employment on or about March 6,
1995,4 July 1, and August 21, at which times, according
to the judge, no valid bargaining impasse existed. The
judge also concluded that the strike, which began on July
26, was an unfair labor practice strike from its inception,
and that the striking employees are therefore unfair labor
practice strikers.

1 The Respondent’s request for oral argument is denied, as the rec-
ord, exceptions, and briefs adequately present the issues and positions
of the parties.
2 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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 363
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 The judge therefore did not determine whether an impasse regard-
ing any of the bargaining issues existed. However, he speculated that
“lack of impasse would be probable.” See sec. III,C, 2,6 of the judge’s
decision. The judge also stated that if “the Board finds that I erred in”
concluding “that Respondent’s failure to make a full and complete
response to Respondent’s Information Requests which I have found
relevant preclude[s] a lawful impasse from being declared,” then “the
Union’s insistence on economic data which it had no right to, may give
rise to an objectively reasonable declaration of impasse [citations omit-
ted].”
4 All dates refer to 1995 unless otherwise indicated.
We reverse the judge, and find that the Respondent did
not fail and refuse to provide the Union with requested
relevant information in its possession or control, and that
the Respondent lawfully implemented changes in its em-
ployees’ terms and conditions of employment because,
prior to these implementations, the bargaining parties had
reached impasse on the critical issue of the pension plan on
February 16. The impasse affecting the pension plan issue
led to a complete breakdown in negotiations and an overall
impasse between the parties. Having reached a good-faith
impasse with the Union, the Respondent lawfully imple-
mented bargaining proposals contained in its last, best, and
final offer.5 In light of these reversals, we also reverse the
judge’s conclusions that the strike was an unfair labor prac-
tice strike and the striking employees are unfair labor prac-
tice strikers.
I. BACKGROUND RELATING TO THE COLLECTIVE-
BARGAINING NEGOTIATIONS OF 1994–1995
The instant dispute stems from the collective-bargaining
negotiations between the Union and the Respondent for a
successor collective-bargaining agreement to the agreement
that expired in 1994.6
The Respondent, CalMat, Co., is a corporation, engaged
in the business of processing and selling rock, sand, gravel,
and related products, and has a facility located in Los An-
geles, California (with additional facilities throughout the
southern California area). The Respondent and the Union
have had a lengthy bargaining relationship, with the most
recent collective-bargaining agreement between the parties
expiring on September 15, 1994. During 1991–1994, the
term of the expired agreement, the Union represented be-
tween 130–135 of the Respondent’s employees. The rec-
ord also reflects that the Union had negotiated collective-
bargaining agreements with employers in the southern Cal-
ifornia rock, sand, and gravel industry for approximately 40
years.
From at least 1976 until 1989, the Union negotiated with
various employers—including the Respondent7—in the

5 As we discuss below, in a letter dated February 16, that was trans-
mitted by the Respondent to the Union, the Respondent made its last,
best, and final offer concerning wages, health and welfare benefits, and
overtime pay. In this letter, the Respondent stated that the parties were
at impasse. Regarding the pension plan issue, the Respondent stated
that “[t]he parties are at irreconcilable odds concerning the fundamental
structure of the plan. The Company insists on a defined benefit plan
only, while the Union is insisting on a combined defined contribution
and defined benefit plan. You have stated you will not change your
position on this fundamental issue.” The Respondent implemented its
wage and health and welfare proposal on March 6. It implemented its
proposal regarding the defined contribution rate on July 1, and it im-
plemented its proposals on other bargaining subjects in August.
It is undisputed that the Respondent’s proposals contained in its last,
best, and final offer were reasonable reflections of the Respondent’s
proposals throughout the course of the bargaining.
6 The following section contains uncontraverted facts drawn from
the record that are not included in the judge’s decision.
7 The Respondent formerly operated some of its operations under the
predecessor name Conrock.
CALMAT CO. 1085
rock, sand, and gravel industry in southern California on a
multiemployer basis. By bargaining in this fashion, the
Union and the multiemployer group would be bound by a
single collective-bargaining agreement. In 1989, the Union
withdrew its consent to multiemployer bargaining, and
negotiated separate collective-bargaining agreements with
various employers, including the Respondent, in the indus-
try. The record reflects that, although multiemployer bar-
gaining in the southern California rock, sand, and gravel
industry ended in 1989, the Respondent and at least one
other employer in the industry, Livingston Graham/Blue
Diamond (LG/BD), coordinated their bargaining efforts
insofar as the Respondent’s chief negotiator would serve on
LG/BD’s negotiating committee and LG/BD’s chief nego-
tiator would serve on the Respondent’s negotiating com-
mittee.8
On July 1, 1994, the Union notified LG/BD of its inten-
tion to open negotiations on a successor collective-
bargaining agreement. On July 8, 1994, LG/BD acknowl-
edged the Union’s notification, and informed the Union
that it wanted additional time to explore the possibility of
coordinated bargaining with “at least one other signatory
company [presumably the Respondent] within the local
industry” and the Union.9 The Union did not object to this

8 At the time of its negotiations with the Respondent and LG/BD, the
Union was also negotiating successor collective-bargaining agreements
with a number of other employers in the rock, sand, and gravel industry
in southern California. As a result of these negotiations, the Union
filed virtually identical unfair labor practice charges alleging that these
employers failed and refused to bargain in good faith concerning the
same pension plan at issue here; implemented changes in a pension
plan in the absence of a good-faith impasse; and implemented changes
in a pension plan in a manner which unlawfully fragmented pre-
impasse proposals. After investigating and considering these charges,
the General Counsel refused to issue complaints against any of these
other employers. (At the time of the hearing involving today’s case,
some of the above-mentioned cases were still pending in the Office of
Appeals.) In his decision, the judge stated, “[T]hat the General Counsel
has never made it clear to me why [Calmat and LG/BD] have been
singled out for prosecution when the Union claims all other employers
in the industry have also made alleged unlawful implementations.
Moreover, as I understand it, the Union filed identical charges against
all of the employers, but only those against Respondent and LG/BD
were found to have merit. In any event, my bewilderment implies no
legal significance for Respondent.”
See the judge’s decision at sec. III,B,2,c, fn. 15.
On August 15, 1996, the General Counsel issued a consolidated
amended complaint and amended notice of hearing against the Re-
spondent. In this complaint, which contains the allegations at issue
today, the General Counsel ordered that the cases against the Respond-
ent be consolidated with Cases 21–CA–30576 and 21–CA–31337
against LG/BD. The allegations contained in the complaint relating to
LG/BD were essentially the same as the allegations against the Re-
spondent. Therefore, both Calmat and LG/BD appeared as Respond-
ents at the hearing. On October 28, 1996, during the hearing, the judge
was informed that LG/BD and the Union had arrived at a private non-
Board settlement. The judge thus severed the settled case involving
LG/BD from the proceedings.
9 Coordinated bargaining between the Union and the Respondent and
LG/BD began on August 22, 1994. However, as we discuss below, the
Union, on September 9, 1994, stated that it would not agree to further
coordinated bargaining. Thus, after September 9, 1994, the Union
bargained with the Respondent and LG/BD separately, except to the
suggestion, and the Respondent engaged in coordinated
bargaining with LG/BD and the Union. The record reflects
that between July 1, 1994, and March 3, the final negotiat-
ing meeting before the Respondent implemented its wage
and health and welfare proposals, the bargaining parties
met approximately 10 times. The parties met on the fol-
lowing dates: August 22, September 9 and 16, October 3,
and December 20, 1994; January 16 and 19; February 2
and 13, and March 3.10 A Federal mediator was present (at
the Union’s suggestion) at several of the meetings occur-
ring after the October 3, 1994 meeting.
Both parties came to the bargaining table with different
views of what they wished to receive in the successor col-
lective-bargaining agreement. Ultimately, there would be
little movement—and often no movement—in the parties’
positions on the various bargaining proposals.
The Respondent’s chief negotiator was its vice president
for human resources, Mason Dickerson. Dickerson had
approximately 20 years of experience in negotiating collec-
tive-bargaining agreements for various employers. The
Union’s chief negotiating representative was its business
manager, William Waggoner, who had worked for the Un-
ion in various capacities for approximately 35 years.11
Like Dickerson, Waggoner had approximately 20 years of
experience in negotiating collective-bargaining agreements.
At various times, other negotiators, some of whom also
testified at the hearing, assisted these individuals at the
negotiations.
At the first negotiating session, the Respondent stated
that it was seeking the following concessions in its succes-
sor agreement with the Union: reductions in wages and
health and welfare benefits, an end to wage compression
affecting skilled and unskilled employees, and the elimina-
tion of the fixed hourly contribution rate12 that it was re-
quired to pay into the unit employees’ pension plan. The
Respondent argued that the economic climate allegedly
adversely affecting the southern California rock, sand, and
gravel industry13 required the Union to make concessions

extent that a member of the Respondent’s negotiating committee served
on LG/BD’s negotiating committee, and a member of LG/BD’s negoti-
ating committee served on the Respondent’s negotiating committee.
10 The record is replete with testimony and correspondence alleging
that both parties engaged in dilatory, bad-faith bargaining. We also
note that Respondent alleged in an unfair labor practice charge that the
Union bargained in bad faith, and the Union alleged in an unfair labor
practice charge that the Respondent bargained in bad faith. The Gen-
eral Counsel refused to issue a complaint on either of these allegations.
11 Waggoner also had experience serving as a trustee on the Operat-
ing Engineers’ pension plan (not the pension plan that is one of the
subjects of today’s dispute).
12 The contribution rates at issue involve the Respondent’s contribu-
tions per hour worked, not the employees’ contributions per hour
worked.
13 We attach no evidentiary weight to the fact that an economic re-
cession may or may not actually have been adversely affecting the rock,
sand, and gravel industry in southern California, and we note that the
judge correctly refused to allow evidence to this effect to be presented
at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
so that the Respondent could maintain its economic viabil-
ity. Significantly, the Respondent maintained that it had to
remain competitive with nonunion competitors who were
paying less in wages and benefits than the Respondent was
required to pay under its expired collective-bargaining
agreement, an agreement in which the Union had won in-
creases in wage rates and health and welfare benefits. The
Respondent’s drive for concessions occurred in the context
of the recent results of its successful negotiations with four
other unions in the southern California area.14
In addition to seeking reductions in wages and health and
welfare costs, the Respondent contended at the first meet-
ing between the parties that it wanted to rectify a wage
compression problem that was allegedly adversely affect-
ing employees’ morale and pay. In the Respondent’s view,
the pay rates of skilled and unskilled employees were ex-
cessively compressed—only a few dollars an hour separat-
ed the wage rates of skilled and unskilled workers. (The
Respondent employs a greater number of skilled workers
than unskilled workers.) To remedy this wage compres-
sion, the Respondent proposed grouping employees into
two or three pay groups (instead of the then-existing four)
and to make pay reductions in the successor agreement that
would be commensurate with employees’ skills and the
wage rates that skilled and unskilled workers in the indus-
try received in the marketplace. Under the Respondent’s
proposal, unskilled workers would receive a greater pay
reduction than skilled workers. The Respondent contend-
ed that, in terms of defining and evaluating the relevant
marketplace for skilled and unskilled workers in the bar-
gaining unit, its wage rates should be compared with those
paid by Owl Rock,15 its chief nonunion competitor in the
southern California rock, sand, and gravel industry.
Most importantly, in addition to seeking the above-
mentioned changes, as well as changes affecting holidays

Additionally, the Respondent has excepted to the judge’s decision to
sustain the Union’s objection to evidence regarding the Union’s up-
coming and allegedly significant negotiations with AGC (another em-
ployers’ group). We affirm the judge’s evidentiary ruling to sustain the
Union’s objection.
14 Prior to the Respondent’s negotiations with the Union, two other
unions—Teamsters Locals 420 and 166—agreed to concessions in their
new collective-bargaining agreements with the Respondent that would
save the Respondent approximately 14 percent in wages and benefits
costs. Another union, Teamsters Local 186, which also bargained for a
new agreement with the Respondent, would not accept concessions of
this magnitude, and decided to strike. Eventually, Local 186’s unit
employees made an unconditional offer to return to work. Local 186
and the Respondent could not reach an agreement, however, and, at the
time of the hearing, Local 186’s unit employees were working under
implemented terms and conditions of employment. These implemented
terms and conditions of employment resulted in concessions for the
Respondent that were similar to the results it received from the other
Teamsters locals. Finally, during the same period in which it was en-
gaged in the negotiations at issue, the Respondent successfully negoti-
ated a new collective-bargaining agreement with similar concessions of
approximately 14 percent from a Machinists local.
15 The record reflects that at some point Owl Rock and another em-
ployer called Robertson became a single employer known as Owl
Rock/Robertson.
and other comparatively minor collective-bargaining sub-
jects, the Respondent sought to modify the pension plan
scheme under which it was obligated to contribute a fixed
hourly amount to the bargaining unit employees’ pension
plan. The judge found, and we affirm, that the pension
plan issue “was to become of paramount importance in the
negotiations.”16
The pension plan at issue is entitled the “Southern Cali-
fornia Rock Products and Ready Mix Concrete Indus-
tries—Operating Engineers Retirement Fund” (pension
plan). As the judge found, the pension plan is a multiem-
ployer plan administered by the Employers’ Pension and
Insurance Committee (PIC). The governing trustees of the
PIC are either management representatives or are selected
by the participating employers. Participating employers
also select the counsel for the PIC.17 The record demon-
strates that the plan is a defined benefit plan with a fixed
contribution rate,18 and the parties historically bargained
over both of these components. The fixed contribution rate
was set forth in the most recently expired collective-
bargaining agreement between the parties as it had been in
previous collective-bargaining agreements between the
parties, but is not, unlike the benefit levels, considered to be
part of the pension plan itself. In practice, the pension plan
operated as follows: historically, the parties negotiated a
benefit level (a dollar value) for each credit an employee
would receive. For each 1000 hours that an employee
works, he or she received 1 credit. In addition to negotiat-
ing the benefit level, the parties also negotiated the contri-
bution level, which, as stated above, is an amount locked
into the term of each collective-bargaining agreement. In
the most recent collective-bargaining agreement (1991–
1994), the contribution level was set at $3.35.19 The record

16 Decision, sec. III,B,2,c,1.
17 As the judge found, the pension plan is not a “Taft-Hartley”plan;
the plan is not jointly administered, and as originally devised, unions
had no role in the administration of the fund. See Sec. 302 of the Labor
Management Relations Act 1947, 29 U.S.C. Sec. 186 (1998).
18 The following is a general description of the difference between a
defined benefit plan and a defined contribution plan:
In a defined contribution plan, the employer contribution is fixed
or determined by a formula and benefits are based on the contri-
bution of the employer. A defined benefit plan is one in which
the contributions to be made are calculated to achieve a specific
benefit at a time certain in the future. American Assn. of Retired
Persons v. Farmers Group, Inc., 943 F.2d 996, 999 fn. 2 (9th Cir.
1991). Further, under a defined contribution plan, each partici-
pant has an individual account; the level of benefits that he or she
receives depends upon the performance of the assets retained in
the individual account. In contrast, under a defined benefit plan,
the employee is entitled to a fixed period payment upon retire-
ment regardless of the performance of the underlying assets.
Systems Council EM-3 v. AT&T Corp., 159 F.3d 1376, 1380–1381
(D.C. Cir. 1998).
19 Art. XVII (Pension) of the most recent collective-bargaining
agreement states, in pertinent part:
The Employer will make contributions to the [pension plan] for
the benefit of [bargaining unit employees]. . . . The hourly contri-
butions to the Industry Retirement Plan shall be made, for all
hours worked or paid for, as follows:
CALMAT CO. 1087
also reflects that, during the term of the most recent collec-
tive-bargaining agreement, the benefit level contained in
the pension plan was set at approximately $37 per credit.
During the negotiations at issue, the Respondent pro-
posed increasing the benefit level by $2, and stated that it
would agree to be bound to the increased level, so long as
the Union agreed to eliminate the fixed contribution rate.
The Respondent believed that, based on actuaries’ reports,
it could increase the benefit level and reduce the contribu-
tion rate contained in the agreement. Furthermore, the Re-
spondent maintained that it could use the resulting 80-cents
reduction in the hourly contribution rate to offset proposed
reductions in wages. Throughout the course of the negotia-
tions, the Union sought to increase the benefit level; at one
point, it proposed increasing the benefit level by $8. Also,
throughout the course of the negotiations, the Union ada-
mantly maintained that it opposed the Respondent’s pro-
posal to eliminate the fixed contribution rate.20
The pension plan had not always operated in a predicta-
ble manner. The plan was overfunded in 1989 and 1994,
and, on at least one occasion, the plan had been underfund-
ed. To remedy the underfunding, the Union asked its
members to increase their contributions to the plan by 50-
cents per hour. These occurrences suggest that there was a
mismatch regarding the fixed contribution rate, actuarial
projections, the success of the PIC’s investments, and the
benefit level.
When the plan was overfunded, some of the Respond-
ent’s contributions to the plan lost their tax-deductible sta-
tus.21 The parties differed as to how to respond to the

Effective date Amount
1-1-91 $3.35
In the event that Federal or State legislation requires a revision of
the Industry Retirement Plan which results in a higher contribu-
tion rate to meet funding requirements, the increased contribution
rate will come out of the wage package. . . .
This article is identical to those in the collective-bargaining agree-
ments that the Union had with various other employers in the rock,
sand, and gravel industry in southern California.
20 The record reflects that at one point in the negotiations, Union
Negotiator Waggoner responded that he could not make a decision
regarding the Respondent’s proposal to apply the 80-cents reduction in
the hourly contribution rate to its proposed wage reductions unless he
obtained the union members’ consent.
21 When the pension plan was overfunded, the Union twice filed
class-action lawsuits against the PIC in Federal court. The first lawsuit
resulted in a Federal district court-approved settlement in 1991. In its
opinion affirming the Federal district court’s granting of summary
judgment for the defendant in a second lawsuit filed by the Union
against the PIC in 1994, the Ninth Circuit summarized the operation of
the pension plan: “Employers contribute at a specified hourly rate;
participants are paid at a rate determined by their total service. There is
no guarantee that contribution levels will match benefit levels, and in
recent years, the plan has been overfunded. Because the plan’s assets
have exceeded its actuarially accrued liabilities, some contributions
have not been tax-deductible by employers.” Collins v. Pension &
Insurance Committee of the Southern California Rock Products &
Ready Mixed Concrete Assn., 144 F.3d 1279, 1281 (9th Cir. 1998).
The decisions of the Federal courts involving the pension plan at is-
sue do not, of course, have any bearing on our determination of whether
the parties reached a good-faith impasse in this case. As stated by the
overfundings: the Respondent believed that because the
pension plan was overfunded, it could reduce its contribu-
tions, while the Union believed that the Respondent’s con-
tributions should remain the same but that employees’ ben-
efit levels should be increased because the plan contained
excess funds.
For purposes of the instant dispute, the court-approved
settlement of 1991 contained the 18th amendment to the
pension plan. Under section 8.1(a) of the 18th amendment,
subject to two exceptions not relevant here, any amend-
ment to the pension plan
shall become effective only if it has been agreed to be-
tween the Union and at least two-thirds . . . of the Em-
ployers who are then parties to Basic Labor Agree-
ments requiring Employer Contributions which meet
the requirements of Section 3.1, which, in the aggre-
gate, employ at least three-fourths of the Employees
who are then in Covered Employment (not counting
for this purpose Employees who are then on layoff or
on authorized leaves of absence).
Section 3.1 of the 18th amendment to the pension plan
states, in pertinent part:
The cost of funding benefits shall be provided by Em-
ployer Contributions in accordance with the Basic La-
bor Agreements; provided, however, that the Plan shall
not receive Employer Contributions at less than that
rate per Covered Hour which is required at any point
in time in the Basic Labor Agreements of at least two-
thirds . . . of the Employers whose Agreements require
Employer Contributions, and which then, in the aggre-
gate, employ at least three-fourths of the Employees
who are then in Covered Employment. [Emphasis
added].22

Ninth Circuit, “the union argue[d] [that] the district court [which grant-
ed summary judgment in favor of the PIC in the 1994 lawsuit] erred by
giving the employers’ declaration of impasse a presumption of finality
rather than waiting for the NLRB to decide whether the declaration was
proper. However, the district court expressly refused to decide the
impasse issue, explaining that ‘[I]t is for the NLRB, and not this Court,
to decide whether the Employers continue to have an obligation to
contribute to the Pension Plan, and at what level.’” Id. The Ninth
Circuit denied the plaintiffs’ motion to supplement the record before it
with the complaints issued against Respondent CalMat and LG/BD in
February 1996. Id. at fn. 1. The court stated that the complaints “are
not relevant because the district court did not find an impasse had been
reached and because [the lawsuit before the court] involves only an
alleged fiduciary breach by the Administrator.” Id.
We note that the Ninth Circuit held, in part, that the pension plan
administrator was not required under the plan (or under ERISA) to
increase benefits when the plan was overfunded. Id. at 1283. The
Ninth Circuit’s conclusion supplies us with probative evidence regard-
ing the plan’s requirements, but does not, of course, impact our deter-
mination of whether there was a good-faith bargaining impasse be-
tween the parties.
22 At the hearing before the judge—but not during the negotiations at
issue—the Union’s chief negotiator, Waggoner, stated that he believed
the language of sec. 8.1(a) of the 18th amendment precluded the Re-
spondent from changing its contribution rate without the Union’s con-
sent. The Respondent disputed the Union’s contention. For the pur-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088
Starting at the first negotiation meeting, Dickerson, the
Respondent’s chief negotiator, emphasized to the Union the
necessity of avoiding future lawsuits against the PIC. To
this end, Dickerson proposed that the fixed contribution
rate contained in the parties’ most recent collective-
bargaining agreement be reduced from $3.35 to $2.55 an
hour, and that instead of being set in stone for the length of
each collective-bargaining agreement, the contribution rate
should be allowed to “float.” Under the Respondent’s pro-
posal, the Respondent and the Union would continue to
negotiate over the benefit levels, but the Respondent would
be permitted to rely on actuarial reports which would de-
termine the amount of money that was needed at any given
time to fund adequately the specified benefit level. After
receiving the actuarial data, the Respondent would adjust
the “floating” contribution rate accordingly (either increas-
ing or decreasing it when necessary).23 In brief, the fixed
contribution rate would, under the Respondent’s proposal,
become a variable rate linked to more current actuarial data
and the success (or lack thereof) of the PIC’s pension plan
investments. Under the Respondent’s proposal, at no time
would the negotiated benefit level affecting employees’
payments per credit fall below the agreed-upon amount.
The Respondent believed that its proposal to eliminate the
fixed contribution rate would prevent the reoccurrence of
situations in which the pension plan had been overfunded
or underfunded.24 As we discuss below, Dickerson repeat-
edly emphasized the significance of the pension issue in his
correspondence with Waggoner, the Union’s chief negotia-
tor. The Union’s bargaining behavior demonstrated that it,
too, viewed the pension issue as critical to the success of
these negotiations.
The Union was adamant throughout the negotiations that
the Respondent’s contribution rate remain as a fixed, non-
ariable amount. And, from the Union’s perspective, none
of the Respondent’s desired concessions were acceptable.
In fact, the record reflects that although the Union was (at
least generally) aware that the Respondent had gained con-
cessions from the other unions, the Union drew a firm line
against concessions.25 The Union’s opposition was influ-

pose of resolving the instant dispute, it is unnecessary for us to interpret
the meaning of the 18th amendment to the pension plan.
23 Under the proposal, these adjustments would be based on actuar-
ies’ reports, and would occur annually.
24 See discussion, above.
25 A union publication (entitled the International Union of Operating
Engineers News Record) distributed to members in August/September
1994 states:
Pre-negotiation meetings have been held with rock, sand, and
gravel members. We scheduled the meetings early knowing that
negotiations are going to be tough this year because of the wage
concessions the [T]eamsters already have agreed to. The mem-
bers in attendance [at a Union meeting] were very emphatic about
not accepting a reduction in their hourly rate. We have had our
first session with CalMat, Livingston-Graham and Blue Dia-
mond. They did not submit a wage offer but our suspicion about
them “taking on” Local 12 was verified after reviewing their en-
tire proposal.
enced, in part, by its beliefs that the Respondent’s proposal
threatened the financial solvency of the plan, and that the
Union would, under the Respondent’s proposal, lose any
input it may have had regarding the administration of the
plan.
Regarding the Respondent’s other bargaining proposals,
the record reflects that the Union did not view as disposi-
tive the fact that other unions, as discussed above, had
agreed to make significant concessions in their successor
collective-bargaining agreements with the Respondent.
The judge found that, at the first negotiating meeting,
Waggoner informed the Respondent’s negotiators that what
the other unions did would not affect the Union’s negotia-
tions with the Respondent.
Confronted with the Respondent’s stated position that it
wanted to reduce wages and health and welfare benefits in
the successor collective-bargaining agreement to remain
competitive with its nonunion competition, the Union re-
quested certain financial information from the Respondent.
The Union described these information requests in its cor-
respondence with the Respondent. On January 16, the Un-
ion sent the Respondent a letter containing numerous re-
quests for information. The letter stated, in pertinent part:
In order to evaluate the Company’s need for conces-
sion[s], Local 12 is hereby requesting, pursuant to Sec-
tion 8(a)(5) of the [Act] disclosure of the following . . .
[a]ny and all memos, reports, studies, records, or other
documents within the Employer’s possession and/or
control which analyze any of the following factors
with respect to the Employer’s competitors: produc-
tivity, labor and material cost, prices, profits and loss-
es.
On January 19, the Respondent sent a letter to the Union
in response to the Union’s January 16 letter. The Respond-
ent’s January 19 letter (which was delivered by Dickerson
to Waggoner at the January 19 bargaining meeting) states,
in pertinent part:
CalMat wants [the concessions] because we will be
paying over market without them. As we have told
you at the bargaining table, we understand that Owl
Rock Products, a major competitor and several smaller
operators are non-union with lower wages and benefits
than CalMat. For example, at Owl Rock products, we
understand that the top hourly wage rate for a
conveyorman is $15.50, the top wage rate for a
skyloader operator is $18.50 and the top wage rate for
a heavy duty repairman is $20.50. Additionally, other
unionized competitors are seeking substantial reduc-
tions in wages and benefits in their negotiations.
The Respondent also responded to the Union’s request for
financial information about the Respondent’s nonunion
competitors in a letter sent from the Respondent to the Un-
ion on February 9. In pertinent part, this letter, which is
contained in the record, states as follows:
CALMAT CO. 1089
As I informed you [Waggoner] at the meeting,
CalMat’s response [to the Union’s request for financial
information] is contained in our letter to you dated
January 19, 1995. It is still our position that Local
12’s request for financial information is irrelevant, and
CalMat need not respond to it. We have provided you
with information concerning Owl Rock Products’ rates
of pay both at the bargaining table and in our letter of
January 19, 1995. As you are no doubt aware, there
are numerous other companies paying substantially
less in wages and benefits than CalMat currently is.
Examples include P.W. Gillibrand in Simi Valley who
is paying from $12.00 to $16.00 per hour for opera-
tors. Quality Rock in Moorpark pays $7.00 per hour
for “unskilled” up to $13.00 for “skilled” personnel.
Channel & Basin [R]eclamation, Inc. pays, on aver-
age, from $12.00 to $14.00 per hour for its workers,
with a $10.00 per hour top rate for Conveyorman.
Empire Rock in Alta Loma pays its Repairman up
to $20.00 per hour with Operators in the $18.00 to
$20.00 range. Additionally, these companies, overall,
pay less in benefits than CalMat is proposing. The
above confirms that what we have proposed in wages
and benefits is competitive, and in many cases, sur-
passes what other companies are paying.
The letter also stated that Triangle Rock, Irvine Lake was
not a direct competitor to the Respondent, and, as such,
Triangle Rock’s pay rates were irrelevant. The final por-
tion of the Union’s information requests at issue today is
contained in its letter dated February 13, written in re-
sponse to the Respondent’s letter dated February 9. In this
letter, the Union’s Waggoner stated, in pertinent part:
I must again renew my request for the financial in-
formation previously demanded. Your employees are
entitled to see this information before they can knowl-
edgeably cast a vote as to whether to ratify an agree-
ment containing the drastic cuts you propose. I do not
know how, in good conscience, I can submit a pro-
posal such as this with a recommendation for approval
by the membership unless these records are turned
over for inspection. With regard to the information
you have given us concerning your so-called competi-
tors, that information is incomplete and worthless.
Where are these so-called competitors located? How
many Operating Engineers do they employ? What
prices are they charging? How many jobs have they
taken away from you? Without such information,
there is no way for us to judge whether any reductions
in pay, let alone the cuts you seek, are justified.
With regard to Triangle Rock, your conduct and
contradictory statements leave many questions unan-
swered. Who owns this operation? When will the
deal at Irvine Lake be finalized? What will happen to
the employees? Also, how can you complain about
non-union ‘competition’ when you wind up competing
against yourself? What we are faced with here is an
operation being sold by one union employer to another
union employer, with a threat to operate it non-union.
You tell me how Local 12 is supposed to interpret
such conduct. [Emphasis in origianal.]
II. THE BARGAINING SESSIONS
The parties’ general bargaining positions have been de-
scribed above. The following is a more detailed descrip-
tion of the significant occurrences and statements at the
bargaining meetings from August 22, 1994, until May 30,
1995.
As described above, on August 22, 1994, Dickerson, the
Respondent’s chief negotiator, informed the Union that the
Respondent was seeking reductions in wages and benefits
that were comparable to the reductions the Respondent had
received from other area unions. (Waggoner, the Union’s
chief negotiator, testified that although he was generally
aware of the results of the negotiations between the Re-
spondent and the Teamsters, the Union did not view those
results as a significant factor affecting its negotiations with
the Respondent.) Regarding wage concessions, Dickerson
informed the Union’s negotiator at this meeting that the
Respondent was seeking reductions in wages that would
reduce wages to a level that was comparable to wages paid
by Owl Rock, the Respondent’s chief nonunion competitor.
The Respondent informed the Union that it wanted to rem-
edy the wage compression problem (to reduce the wages
paid to unskilled workers, whose hourly pay rate was
bumping up against the hourly pay rate of skilled workers),
and to eliminate the fixed hourly pension plan contribution
rate, which had led to past lawsuits. The Union objected to
each of these proposals. At this meeting, the Respondent
tendered its first written proposal to the Union, and the
Union tendered its first written proposal to the Respondent.
The Respondent’s proposal contained, inter alia, the elimi-
nation of the fixed pension plan contribution rate in the
prior agreement, a revision to the method of overtime pay,
a reduction in paid holidays (from 8 to 3), the deletion of
the “and future” clause from the agreement, a cap on the
vacation benefit schedule at 80 hours over the term of the
agreement, and a $37-pension benefit credit.
The Union’s initial proposal contained several benefit
increases: increasing vacations, adding an additional holi-
day (from 8 to 9), increasing the Respondent’s cap for
health and welfare contributions from $510 to $559 per
month, and increasing shift premium pay to 40 cents from
35 cents for employees reporting to work between 9 a.m.
and before 6 p.m., and to 45 cents from 40 cents for em-
ployees reporting to work at or after 6 p.m. and before 12
a.m. Additionally, the Union proposed to maintain, with-
out modifications, the current overtime payment system.
Regarding the pension plan, the Union proposed retaining
the current contribution rate system and increasing benefit
credits from $37 to $38, $39, and $40 over the course of
the 3-year agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
The second bargaining meeting between the parties oc-
curred on September 9, 1994. At this meeting, the Union
presented the Respondent with a letter in which it objected
to coordinated bargaining between the Respondent and
LG/BD. The parties did not exchange any proposals, and
each side maintained its bargaining positions, which were
unchanged from the positions expressed on August 22.
The third bargaining meeting occurred on September 16,
1994. The Respondent provided its second set of proposals
to the Union, and Dickerson stated that the Respondent was
seeking concessions of approximately 20 percent.26 Re-
garding the wage compression issue, the Respondent pro-
posed reducing the number of wage groups, and submitted
a list of three wage groups. The Union did not make any
new bargaining proposals, and it did not change its bargain-
ing positions. Sometime during the course of this meeting,
Waggoner asked the Respondent to supply the Union with
certain financial records. Dickerson responded that this
information was contained in the Respondent’s annual re-
ports, and that the Union already possessed these reports.
The fourth bargaining meeting occurred on October 3,
1994. Again, the Union made no proposals, and did not
change its bargaining positions. Nor did the Union reiter-
ate its information request. The Respondent presented its
third proposal, which addressed proposed wage reductions
within the three wage groups it had proposed establishing.
The Respondent also proposed, in the area of health and
welfare benefits, to retain the Union’s Health and Welfare
Plan, but to reduce the Respondent’s cap on contributions
to $375 from $475.
After the October 3 meeting, the Union canceled two
meetings with the Respondent which had been scheduled
for October 10 and October 14, 1994. The parties would
not meet again until December 20, 1994. Significantly,
Dickerson, the Respondent’s chief negotiator, sent a letter
to Waggoner on October 31, 1994. In this letter, Dickerson
requested future meetings to continue the negotiations, and
requested the Union to advise the Respondent of its availa-
bility for further bargaining. In this letter, Dickerson reiter-
ated the Respondent’s proposals regarding the pension
plan, and presented a detailed description of this proposal:

In preparation of our next meeting, we have en-
closed [our] proposal regarding pension benefits. As
you can see, the Company proposes to increase the
pension benefit factor by $2.00 (from $37 to $39 per
month) retroactively effective October 1, 1994. There
seems to be a misunderstanding among many of our
employees on the pension issue. We are told that [the
Union] is saying that the Company is attempting to
take away pension benefits. Nothing could be further
from the truth. We have not at any time in these nego-
tiations proposed a pension benefits reduction. To the
contrary, we now offer an increase! As you are well

26 The 20-percent figure was an increase from the 14-percent esti-
mate the Respondent had mentioned at the first bargaining session.
aware, the employees’ pension plan is a defined benefit
plan. Yet, for years, our agreement with [the Union]
has also defined the amount of the Employers’ contri-
bution, a very, very unusual agreement.
This has led to two lawsuits. This simply cannot
continue. We must define the benefit—not the contri-
bution. Our proposal to increase the benefit factor to
$39 per month is simple and straightforward. Eligible
retiring employees (your members) will receive $39
per month for each year of credited service—
guaranteed! The company is absolutely obligated to
provide the monthly benefit. According to estimates
from the actuaries, the Company is able to offer the $2
increase in benefits and still save approximately $0.80
per hour in future contributions. This is especially
good news during these times of “roll-back” contracts.
We can increase the pension benefit and use the $0.80
to offset the proposed reductions in wages. This may
be our best opportunity for a win-win situation. We
look forward to discussing this and other issues during
our next meeting, which hopefully is very soon. [Em-
phasis in original.]

On November 10, 1994, Waggoner wrote back to Dick-
erson, and stated, in part, that “[n]egotiations between [the
Union and the Respondent] have been unproductive to date
because of the unacceptable demands in your proposal.”
Waggoner also stated that he was “requesting that federal
mediation be invited in any future negotiations” between
the parties. On December 13, 1994, Dickerson, in a letter
to Waggoner, stated that although Respondent believed that
the Union’s request for Federal mediation was premature, it
was nonetheless willing to meet with a Federal mediator
present. Dickerson expressed displeasure at what he
viewed as the Union’s dilatory approach toward the bar-
gaining, and requested that the Union come to the next
meeting prepared to schedule enough bargaining sessions
so that the parties could reach agreement by a target date of
January 20. Dickerson proposed 13 days on which to meet,
and noted that he would be amenable to other meeting
times throughout December and January.
On December 20, 1994, more than 2 months after their
fourth meeting, the parties returned to the bargaining table.
In the presence of the mediator, the parties discussed the
Respondent’s proposals contained in its above-quoted letter
of October 31. The Respondent increased its proposed cap
on health and welfare benefits from the $375 figure men-
tioned in the letter to $400. The Respondent also noted that
it had proposed to increase the current pension benefit level
to $39, proposed increasing its vacation cap from 80 hours
to 120 hours for the term of the agreement, and increasing
holidays to 4. The Respondent also increased reporting pay
from 2 to 4 hours. Also, the Respondent supplied the Un-
ion with cost data relating to its bargaining proposals.
The Union did not submit any written proposals at this
meeting. After Dickerson urged the Union’s negotiators to
CALMAT CO. 1091
make a bargaining proposal, Waggoner stated words to the
effect of, “[W]e’ll give you a proposal”: a 1-year extension
of the (expired) collective-bargaining agreement with a
wage freeze, a 25-cent increase in the Respondent’s health
and welfare contribution cap, and a $6 increase in the pen-
sion benefit level. Dickerson rejected these proposals, and
stated that concessions had to be competitive. Dickerson
reiterated that the Respondent was primarily concerned
with wages paid by Owl Rock/Robertson. Waggoner
asked for these wage rates, and Dickerson responded that
Waggoner knew what they were. Dickerson then asked
Waggoner if it would be possible to meet before January
16. Waggoner stated that the Union could not meet before
that date. Dickerson asked Waggoner if the Union could
mail its proposals to the Respondent so that the Respondent
could have time to study the proposals. Waggoner stated
that he could not promise anything, and stated that he had
to leave the meeting early to study the Respondent’s modi-
fications to its proposals.
In a letter dated January 6, Dickerson stated, in part, that
the Respondent wanted to reach an agreement by January
20, and that it was willing to meet for bargaining at any-
time. Dickerson also expressed frustration about what he
believed was the Union’s dilatory approach toward bar-
gaining and lack of rational proposals.
The sixth bargaining meeting occurred on January 16
(the date the Union had insisted upon at the December 20
meeting). Both parties exchanged bargaining proposals.
The Respondent proposed increasing its wage proposal
(which still constituted an overall wage reduction from the
expired wage rates) by $1.35 over the term of the agree-
ment and to increase the cap on its health and welfare con-
tributions to $425 effective the second year of the agree-
ment, and $450 effective the third year of the agreement.
Additionally, the Respondent proposed increasing pension
benefits by $1 a year over the course of 3 years (from $39
to $40 to $41). Respondent’s proposal regarding the pen-
sion benefit level constituted increases over the then-
current $37 benefit level. However, the Respondent con-
tinued to insist—as it had from the beginning of the bar-
gaining—that the fixed contribution rate, be eliminated.
The Union’s written bargaining proposal contained the
following: a 75-cent wage increase in the wage rates con-
tained in the expired agreement; and an increase in pension
benefits (an increase to $39 on October 1, 1994, and an
increase to $43 on July 1). The Union continued to insist
that the contribution rate remain in the agreement. At the
conclusion of this meeting, Waggoner presented Dickerson
with a written information request, which is quoted above
in the letter dated January 16. As the judge correctly
found, only a portion of Waggoner’s information request is
at issue in this case, insofar as the complaint does not allege
that the Respondent claimed an inability to pay.27 Dicker-

27 The relevant portion of the complaint alleges that the Respondent
unlawfully failed to provide the Union with the following information:
son’s response to Waggoner’s information request is quot-
ed above, in the letter dated January 19, and was that the
Respondent’s chief nonunion competitor, Owl Rock, paid
substantially less in wages than did the Respondent. Fur-
ther, Dickerson stated that the Respondent did not possess
studies or analyses regarding competitors’ productivity,
labor and material costs, prices and profitability.
The seventh bargaining meeting occurred on January 19.
Both parties exchanged bargaining proposals. The Re-
spondent’s proposals and positions were essentially un-
changed. The Union did not make any economic conces-
sions from the terms of the expired agreement; to the con-
trary, the Union proposed an overall wage increase of
$1.50 (as noted above, it had proposed a 75-cent increase at
the sixth meeting) over the expired wage rates. The Re-
spondent rejected this proposal. The Union made certain
noneconomic proposals. Waggoner left before Dickerson
could respond to these proposals and told Dickerson to put
his responses in the mail.
The eighth bargaining meeting occurred on February 2.
The primary topic of discussion was the pension plan. At
this meeting, neither party modified its economic pro-
posals. The Respondent continued to insist on the elimina-
tion of the fixed contribution rate; the Union continued to
oppose this. The Respondent stated that by reducing the
contribution rate by 80 cents, it could apply this savings to
its proposed wage reductions, thereby limiting the amount
of these reductions. Waggoner questioned whether the
Respondent had the legal authority to bargain over the pen-
sion without the agreement of other participating employ-
ers,28 and stated that he would not have any authority to
bargain over the 80-cents savings until the Union’s mem-
bers granted him this authority. In response to Waggoner’s
question regarding the Respondent’s authority to bargain
over the pension plan, Dickerson told Steve Billy, a union
negotiator, that the Respondent had veto power over
changes to the pension plan. In this connection, without
indicating his position on the Respondent’s proposal re-
garding the application of the 80-cents savings, Waggoner
asked the Respondent to prepare a letter stating that the
Respondent was authorized to apply the proposed 80-cents
savings to wages and benefits. The parties went back and
forth regarding who should make the proposals concerning
the 80-cents savings. Dickerson stated that, as he saw it,
the 80-cents reduction in the amount of the proposed wage
decreases could not occur without the Union’s agreement

First, “[a]ny and all memos, reports, studies, records, or other docu-
ments within Respondent’s possession and/or control which analyze
any of the following factors with respect to Respondent’s competitors:
productivity, labor and material cost, prices, profits and losses”; se-
cond, information with respect to the Respondent’s competitors’ “loca-
tions, the number of operating engineers they employ, the prices they
are charging, and the number of jobs they have taken from Respond-
ent.” The General Counsel did not issue a complaint with respect to the
other portions of the Union’s information requests, which relate to the
Respondent’s records regarding its financial ability to pay.
28 See discussion, above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
to eliminate the fixed contribution rate. The Union did not
agree to this. Waggoner mentioned the Union’s concern
regarding Triangle Rock.29 The meeting ended, and Wag-
goner stated that he could not negotiate with a “goddamned
ghost,” a reference to the Union’s perception that the Re-
spondent did not have the authority to negotiate over the
pension plan.
On February 9, Dickerson sent the Union a letter (por-
tions of which are quoted above) in which he provided the
Union with additional wage information regarding four
other nonunion competitors.30 In this letter, Dickerson also
stated that the Respondent agreed to the Union’s proposal
to change the base hours from 120 to 173 when calculating
wage reductions for health and welfare premiums in excess
of the caps. Dickerson urged the Union to come to the next
meeting prepared to make any movement it desired to
make regarding any proposals. In relevant part, the letter
states:
[F]or the record, Triangle Rock Irvine Lake (provided
the deal goes through) is not a direct competitor to
CalMat with its market in Orange County. Therefore,
what they pay is irrelevant. Even so, they are planning
to offer a wage and benefit package which is less cost-
ly than what we have proposed. [Regarding the asso-
ciation pension plan], CalMat has been and continues
to be willing to negotiate on a coordinated basis with
certain other companies, but it was you, Mr. Waggon-
er, who has refused to negotiate with more than one
company at a time. In fact, you were the one respon-
sible for destroying the industry’s multi-employer bar-
gaining arrangement in August, 1989, breaking up a
forty (40) year bargaining history. In 1989 the parties
had no trouble reaching accord on pension. And again
in 1991, no problems were encountered and you never
raised the issue once. But now, after two contract ne-
gotiations and seven months into the third, you sud-
denly are concerned that we cannot bargain on the is-
sue of pension without a letter of authorization?
The ninth bargaining meeting between the parties oc-
curred on February 13. At this meeting, Waggoner pre-
sented Dickerson with a letter written in response to Dick-
erson’s letter of February 9. A portion of Waggoner’s let-
ter has been quoted above. In this letter, Waggoner re-
newed his request for financial information, and asked for
more information about Triangle Rock. Regarding the
pension plan, Waggoner wrote:
[O]ur comments [about the pension plan] at the Febru-
ary 2, 1995, session were caused by the recent history
of our efforts to amend the plan. On October 22, 1993,
as a result of the pension reopener, Local 12 received a

29 Waggoner was essentially concerned that the Respondent, which
operated Triangle Rock as a nonunion subsidiary, would acquire and
operate another facility through Triangle Rock as a nonunion enter-
prise.
30 See sec. I, above.
letter signed by yourself, John Gresock and John
Clemente indicating agreement to propose that the As-
sociation Pension and Insurance Committee increase
pension credits from $37.00 to $38.00 effective No-
vember 1, 1993. This proposal was never ratified by
the Plan and never went into effect. Other negotiations
were also unsuccessful in adjusting pension credits.
Then, your own accountant reported that the plan was
in danger of becoming overfunded again, but you
stalled on negotiating a resolution of this problem and
no resolution has yet been reached. As of now, this is-
sue is in litigation. A big part of the problem is the
Association’s rules, requiring any change to be ap-
proved by two-thirds of the employers who employ
three-fourths of the employees in the plan. You your-
self admitted that CalMat has the votes to block any
change to the plan of which you do not approve. That
is why we are so concerned about the status of nego-
tiations concerning the pension plan.
Waggoner concluded by expressing his desire to reach a
mutually acceptable agreement, but noted that numerous
problems remained.
During the meeting, Waggoner orally reiterated the Un-
ion’s request for financial information from the Respond-
ent. Waggoner asked Dickerson who the Respondent’s
competitors were, and Dickerson responded that Owl Rock
was the Respondent’s main nonunion competitor. Dicker-
son added that the Respondent had supplied the Union with
all the information it could with respect to Owl Rock’s
wage rates. The Union presented a written proposal con-
taining a small change regarding criteria affecting employ-
ees’ eligibility for 2 and 3 weeks’ of vacation. The Re-
spondent made a verbal proposal to add back 25 cents to its
proposed wage reductions in the first year of the agree-
ment’s term. (In all, the Respondent had added back a total
of $1.60 to its original wage reduction proposal, which
contained reductions in the various employee classifica-
tions’ hourly wage rates. The Respondent’s original pro-
posal contained wage reductions ranging from $2.15–$8.04
per hour.) The Respondent stated that this was its bottom
line offer regarding wages, and Dickerson asked Waggoner
to take this proposal to the Union’s membership for a vote.
The Respondent also stated that it would agree to 173
(from 120) hours per month as the base for calculating re-
ductions in the health and welfare premiums in excess of
the cap.
Significantly, at this point in the negotiations, Waggoner
stated that unless the Respondent took its proposal to elim-
inate the fixed contribution rate off the table, there would
be no movement on any other issue. The Union did not
modify its opposition to the Respondent’s pension proposal
in any respect.
On February 16, the Respondent transmitted its “last,
best, and final offer” to the Union. Regarding the pension
issue, Dickerson wrote: “The parties are at irreconcilable
odds concerning the fundamental structure of the plan. The
CALMAT CO. 1093
Company insists upon a defined benefit plan only, while
the Union is insisting on a combined defined contribution
and defined benefit plan. You have stated that you will not
change your position on this fundamental issue.” (Empha-
sis added.) Dickerson concluded this letter by stating that
“we are at impasse,” and that the Respondent intended to
implement its last, best, and final offer as to wages, health
and welfare benefits, and overtime pay on February 27.
The Respondent actually did not implement any of its pro-
posals until March 6, because the Union requested another
meeting, and the Respondent delayed its implementation so
the parties could meet one more time.
On February 28 Waggoner responded, in a letter to
Dickerson’s letter of February 16. Waggoner stated that he
was unable to accept Dickerson’s statement that the Re-
spondent would implement its last, best, and final proposals
unless the Union accepted the major economic issues as a
package. Waggoner requested Dickerson to retract this
statement, and added that unless Dickerson did so, the Un-
ion would not be present at the bargaining session sched-
uled for March 3. On March 1 Dickerson wrote back. He
reaffirmed the Respondent’s intent to be present at the
March 3 meeting, and did not retract anything contained in
the February 16 letter.
On March 2 Waggoner sent a letter to the Respondent’s
president/chief executive officer, A. Frederick Gerstell.
Waggoner emphasized that the Union had had a generally
productive bargaining relationship for many years with the
Respondent, and that the Respondent’s excessive proposals
jeopardized this relationship.
The final bargaining meeting occurred on March 3.
Waggoner stated that the only reason he was present was to
prevent the Respondent from using his absence against him
with the Union’s membership. Neither side delivered a
written proposal. The Union did not make any oral pro-
posal relating to wages, overtime, or vacation. However,
the Union orally agreed to four holidays (a reduction from
the eight holidays contained in the expired agreement), and
stated that it would agree to Respondent’s health and wel-
fare proposal, if the Respondent paid the full cost of retiree
coverage. Dickerson asked for a cost estimate, but Wag-
goner responded that he did not have one. Dickerson asked
Waggoner if he had any further movement to report, to
which Waggoner replied, “[N]ot unless you get off your . . .
damn pension plan.” Dickerson stated that the Respondent
would not modify its proposal to eliminate the fixed contri-
bution rate. Then, Waggoner stated that, “[I]t looks like we
are hung up on that.” Dickerson agreed, stating, “[W]e are
hung up on that.” Waggoner testified that he told Dicker-
son that if the parties could resolve the pension issue, then
an overall agreement would be likely. The parties had dis-
cussed the pension plan, but the Union did not make a pro-
posal regarding this bargaining issue. Waggoner asked if
Dickerson could guarantee the pension benefit levels, to
which Dickerson replied, “[W]e guarantee it.” A union
negotiator asked if the Respondent could obtain a letter
from the PIC guaranteeing the benefit levels; Dickerson
asked if such a letter would enable the Union to agree to
Respondent’s proposal to remove the fixed contribution
rate. The union negotiator replied, “[N]o.” The Union also
suggested instituting a jointly administered pension plan,
an idea that the Respondent had previously rejected, and
continued to do so.
Toward the conclusion of the meeting, Waggoner raised
the possibility of the Respondent meeting with the other
employers participating in the pension plan to discuss the
pension. Dickerson stated that he did not discuss “what if”
scenarios, and urged Waggoner to make a proposal if, in
fact, he had any proposals to make. Dickerson added that
such a meeting would be pointless unless the Union would
agree to eliminate the fixed contribution rate. Thus, the
meeting concluded. Ultimately, the parties would meet
again on May 30 to discuss the pension plan. On March 6,
the Respondent implemented the wages and health and
welfare benefits proposals contained in its last, best, and
final offer of February 16.
In March 1995 the PIC retained an attorney named
James Bowles to negotiate with the Union on behalf of the
plan’s participating employers with respect to the pension
plan only. Bowles testified without contradiction that his
chief objective was to eliminate the plan’s exposure to law-
suits by eliminating the fixed contribution rate and replac-
ing it with an actuarially determined variable rate. On
March 13 Bowles asked to meet with the Union. Between
March 13 and May 20 Bowles and Waggoner exchanged a
series of letters regarding the potential meeting(s), and
who, among the participating employers, would get to par-
ticipate.
The record reflects that the following events leading up
to the May 30 meeting occurred. Waggoner accepted
Bowles’ invitation to bargain with a group of participating
employers on the pension issue only. Waggoner also stat-
ed, in a letter, that unless the Respondent (and LG/BD)
rescinded their unilateral implementations, the Union
would agree to “meet on a coordinated basis with the em-
ployers named in [Bowles’] letter except CalMat and
[LG/BD].” Bowles responded, in a letter, that the Union
should reconsider its position with respect to excluding the
Respondent from the meeting, because such a position
could be construed as bad-faith bargaining. Waggoner
responded, in a letter, that the Union was not refusing to
bargain in good faith, and the Union continued to insist that
the Respondent and LG/BD be barred from the meeting.
The issue regarding which employers Bowles would repre-
sent was not definitively resolved until the meeting.
The meeting between Bowles and the Union occurred on
May 30. Bowles and John Gresock represented the PIC.
Waggoner appeared for the Union, and opened the meeting
by stating that the PIC wanted to “screw the working man.”
Waggoner also expressed surprise that Bowles and Gresock
were the only individuals appearing on behalf of the PIC.
Bowles then identified each of the employers he was repre-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
senting at the meeting. The list included the Respondent.
Bowles noted that he had full authority from the PIC to
bargain on behalf of these employers, and that the number
of employers he represented was sufficient to satisfy the
two-thirds, three-fourths rule required under the 18th
amendment to the pension plan.31 The judge implicitly
credited Bowles’ testimony that Waggoner did not object to
the Respondent’s participation, after Bowles stated that he
was representing the Respondent, among others.
Waggoner asked what the employers’ bottom line was.
Bowles responded that the employers wanted to eliminate
the fixed contribution rate to avoid future lawsuits. If the
Union would agree to this, Bowles said, the employers
could also negotiate benefit levels with the Union. Wag-
goner rejected this proposal and stated that he was content
with the way things were under the expired agreement;
specifically, he stated that the Union liked a system under
which it could “sue you guys every couple of years and
change benefit levels that way.” Bowles then suggested a
“covenant not to sue” and told Waggoner that if the Union
would agree to this, the Respondent might be able to modi-
fy its proposal to eliminate the fixed contribution rate.32
Waggoner did not follow up on Bowles’ suggestion. In-
stead, Waggoner stated that the Union wanted to retain the
fixed contribution rate and increase the benefit level by $2
each year for the next 5 years. Bowles noted that this pro-
posal was worse than the Union’s previous proposals and
was, therefore, unacceptable. Waggoner stated that the
Union’s proposals would get even worse, because he was
tired of “you guys” asking for concessions all the time.
Bowles asked who Waggoner was referring to when he
said, “[Y]ou guys”; Waggoner replied that he was referring
to the Respondent and LG/BD. Bowles then asked Wag-
goner why all participating employers should be penalized
as a result of the Union’s dispute with the Respondent;
Waggoner replied, in effect, that that was where things
stood, and that Bowles should get used to it. Bowles then
asked Waggoner if the parties were at impasse. Waggoner
responded: “you can take your proposal and stick [the pro-
posal] up you’re a—.” With that, Waggoner left the meet-
ing room, and the session concluded.
On June 2, Bowles sent Waggoner a letter describing his
view of the events of May 30. In his letter, Bowles stated
that he had represented the Respondent at the May 30
meeting. Waggoner responded by letter dated June 7. In
this letter, Waggoner did not disavow Bowles’ statement
that the Respondent was a participant in the May 30 meet-
ing,33 thus effectively acquiescing in Bowles’ position that

31 See discussion, above.
32 In his uncontradicted testimony, Bowles characterized the “cove-
nant not to sue” idea as a suggestion, not as a proposal. He also testi-
fied, without contradiction, that the Union was not amenable to this
suggestion, and that the Respondent remained firm in its proposal to
eliminate the fixed contribution rate.
33 In fact, as the judge found, the Respondent and LG/BD were nec-
essary participants in the May 30 meeting, because without them, the
requisite numbers of employers required to approve amendments to the
he represented the Respondent. Therefore, it is clear that
the Respondent was, in fact, represented by Bowles at this
proceeding. Bowles offered to meet with the Union before
the Respondent (and other employers represented by
Bowles) implemented its pension proposal. The Union did
not follow up on Bowles’ invitation to meet.
The Respondent implemented its proposal to eliminate
the fixed contribution rate from the pension plan on July 1.
Approximately 3 weeks later, bargaining unit employees
went on strike. On August 21 the Respondent implement-
ed its proposals in the remaining areas that had been the
subject of the negotiations.
As discussed above, the judge concluded, inter alia, that
the Respondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing to furnish the Union with certain
information requested by the Union. The judge concluded
that the Respondent’s alleged failure to supply the Union
with the requested information constituted a serious unfair
labor practice, which precluded any impasse. Thus, the
judge found that the Respondent further violated Section
8(a)(5) and (1) by implementing changes in its employees’
terms and conditions of employment on or about March 6,
July 1, and August 21, at which times, according to the
judge, no valid impasse existed. The judge also concluded
that the strike commencing on July 26 was an unfair labor
practice strike and the striking employees are, therefore,
unfair labor practice strikers.
We first address the judge’s conclusion that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
failing to furnish the Union with information requested by
the Union. Because we reverse the judge’s conclusion that
the Respondent violated the Act in this regard, we next
address whether a valid bargaining impasse existed at the
time the Respondent implemented changes in employees’
terms and conditions of employment.34
III. ANALYSIS
A. Legal Framework and Conclusions Relating to the Un-
ion’s Information Requests
1. Legal Framework
Under Section 8(a)(5) and (d) of the Act, as interpreted
by the Supreme Court, an employer is obligated to furnish
a union with sufficient relevant information, on request, to
enable the union to represent its employees effectively in
collective-bargaining negotiations.35 Further, an employ-
er’s failure to furnish a union with such information may
preclude a good-faith bargaining impasse.36

pension plan under the 18th amendment to the pension plan would not
have been present.
34 The judge did not address whether a valid bargaining impasse ex-
isted at the time the Respondent implemented changes in employees’
terms and conditions of employment.
35 See NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967).
36 See United Stockyards Corp., 293 NLRB 1 (1989), enfd. 901 F.2d
669 (8th Cir. 1990).
CALMAT CO. 1095
The standard governing an employer’s obligation to pro-
duce relevant information is akin to a liberal “discovery-
type standard.”37 Information concerning employees within
the bargaining unit is presumptively relevant.38 But,
[w]hen a union’s request for information concerns data
about employees or operations other than those repre-
sented by the union, or data on financial, sales, and
other information, there is no presumption that the in-
formation is necessary and relevant to the union’s rep-
resentation of employees. Rather, the union is under
the burden to establish the relevance of such infor-
mation. [Emphasis.]39
The “broad, discovery-type standard in determining rele-
vance in information requests” also applies to requests,
such as the requests at issue, in “which a special demon-
stration of relevance is needed, and potential or probable
relevance is sufficient to give rise to an employer’s obliga-
tion to provide information.”40 After the Union has
demonstrated that its information request relates to relevant
information, “the employer has the burden to prove a lack
of relevance . . . or to provide adequate reasons as to why
he cannot, in good faith, supply such information.”41
2. Conclusions
The judge concluded, first, that the Respondent did not
fulfill its obligation to provide the Union with relevant in-
formation, and, second, that the Respondent’s failure to do
so constituted a serious, unremedied unfair labor practice
that precluded a good-faith bargaining impasse.
We have quoted the relevant portions of the Union’s in-
formation requests above.42 Throughout the course of the
negotiations, the Respondent maintained that it was seeking
reductions between 14–20 percent to be competitive with
wages and benefits paid by its nonunion competitors, and
that its chief competitor in this regard was Owl Rock. The
Respondent’s primary concern involved the lower wages
paid by Owl Rock. The Union’s information requests were
not restricted to information about Owl Rock, however. In
brief, the Union asked for all documents in the Respond-
ent’s possession with respect to the Respondent’s competi-
tors’ locations, jobs “taken” from the Respondent, produc-
tivity, labor and material cost, prices, profits, and losses.
The Union also requested information about Triangle
Rock. Further, in a letter responding to Dickerson’s an-

37 NLRB v. Acme Industrial Co., 385 U.S. at 437.
38 NLRB v. Postal Service, 888 F.2d 1568, 1570 (11th Cir. 1989)
(citing NLRB v. Rockwell-Standard Corp., 410 F.2d 953 (6th Cir.
1969)).
39 Bohemia, Inc., 272 NLRB 1128, 1129 (1984). See also Shoppers
Food Warehouse, 315 NLRB 258, 259 (1994).
40 Shoppers Food Warehouse, supra, 315 NLRB at 259, and cases
cited therein.
41 San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 867 (9th Cir.
1977).
42 The Union submitted its first written information request to the
Respondent on January 16, approximately 5 months after the first bar-
gaining session.
swers to the Union’s information requests, Waggoner ex-
pressed dissatisfaction with Dickerson’s response, and re-
peated and expanded upon his information requests.
In a letter dated January 19, the Respondent supplied the
Union with information relating to the Respondent’s chief
nonunion competitor, Owl Rock. Specifically, in this let-
ter, Dickerson supplied the Union with the wage rates for
various classifications.43 In this letter, Dickerson noted
that, “other unionized competitors are seeking substantial
reductions in wages and benefits in their negotiations.”
The Respondent did not furnish the other items listed in the
Union’s information request involving competitors’ labor
and material costs, profits and losses, and productivity.
Dickerson testified that the Respondent did not possess
studies or analyses, and had no information concerning its
competitors’ productivity, labor and material costs, prices,
or profitability. After Waggoner commented at the Febru-
ary 2 meeting that the Respondent had not adequately sup-
plied the Union with necessary information, Dickerson, in a
letter dated February 944 stated the following with respect
to smaller, nonunion competitors:
We have provided you with information concerning
Owl Rock Products’ rates of pay both at the bargain-
ing table and in our letter of January 19, 1995. As
you are no doubt aware, there are numerous other
companies paying substantially less in wages and
benefits than CalMat currently is. Examples include
P.W. Gillibrand in Simi Valley who is paying from
$12.00 to $16.00 per hour for operators. Quality
Rock in Moorpark pays $7.00 per hour for “un-
skilled” up to $13.00 for “skilled” personnel. Chan-
nel & Basin [R]eclamation, Inc. pays, on average
from $12.00 to $14.00 per hour for its workers, with
a $10.00 per hour top rate for Conveyorman. Em-
pire Rock in Alta Loma pays its Repairman up to
$20.00 per hour with Operators in the $18.00 to
$20.00 range. Additionally, these companies, over-
all pay less in benefits than CalMat is proposing. . . .
Again, for the record, Triangle Rock, Irvine Lake
(provided the deal goes through) is not a direct com-
petitor to CalMat with its market in Orange County.
Therefore, what they pay is irrelevant. Even so, they
are planning to offer a wage and benefit package
which is less costly than what we have proposed.
In its February 13 letter, the Union requested the loca-
tions of all of the Respondent’s “so-called” competitors,

43 With respect to wage rates, the Respondent supplied the Union
with the following information:
Job CalMat Owl Rock Difference

Conveyorman $20.76 $15.50 $5.26
Skiploader
Operator 21.07 18.50 2.57
Heavy Duty
Repairman 21.38 20.50 0.88
44 The judge inadvertently stated that the date of this letter was Feb-
ruary 5. The correct date is February 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
how many operating engineers they employed, the prices
they were charging, and how many jobs they had taken
from the Respondent. Regarding its request for the loca-
tions of the Respondent’s competitors, the Union had a
previous bargaining relationship with Owl Rock and the
location of Owl Rock had not changed since 1989.
Additionally, in the above-quoted correspondence, the
Respondent included the locations of its smaller, nonunion
competitors. Dickerson testified that he did not know the
amount of jobs these smaller, nonunion competitors had
taken from the Respondent, and that he did not know how
many operating engineers they employed.45
Thus, the Respondent provided the Union with all of the
information it had that was encompassed by the Union’s
requests that are at issue in this case. The Respondent was
not required to provide the Union with information that it
did not have. First, the Union only requested information
in the Respondent’s “possession and/or control.”
Uncontradicted evidence shows that the Respondent did
not have “possession and/or control” of any of the infor-
mation concerning its competitors requested by the Union.
And, at least in the circumstances of this case, where the
information concerned other companies not related to the
Respondent, it had no obligation to attempt to obtain that
information. The judge found that the Respondent would
have to show that it made efforts to obtain this information
and was unable to do so. The cases cited by the judge in
support of this proposition, however, are distinguishable,
because they involved information concerning employees
of employers with whom the respondents had some sort of
relationship, contractual or otherwise, and thus they would
arguably have the ability to obtain the requested infor-
mation. NLRB v. Rockwell-Standard Corp., 410 F.2d 953,
958 (6th Cir. 1969) (information concerning the employees

45 Also in its February 13 letter, the Union asked the Respondent (a)
who owned Triangle Rock, (b) when would the Respondent’s negotia-
tions to purchase the Triangle Rock operation at Irvine Lake be final-
ized, and (c) what would happen to Triangle Rock’s employees if the
Respondent purchased it. The complaint does not allege an unlawful
refusal to provide the requested information about Triangle Rock and
Irvine Lake. The judge, however, found a violation as to the failure to
provide this information, and the Respondent has not excepted on the
grounds that it was not alleged in the complaint. While we reject the
Respondent’s contention that what Triangle Rock would pay is irrele-
vant, we nonetheless reverse the judge because we find that the Re-
spondent provided all the information it had.
In its posthearing brief to the judge, the Union stated that it knew
that Triangle Rock was a wholly owned nonunion subsidiary of the
Respondent, and that Blue Diamond was threatening to sell its Irvine
Lake facility to the Respondent who, in turn, was threatening to operate
the potentially acquired facility as a nonunion enterprise through Trian-
gle Rock. In an earlier (February 9) letter to the Union, the Respondent
said that Triangle Rock was planning to offer its employees a wage and
benefit package that was “less costly than what we have proposed.” In
the Union’s subsequent March 2 letter to the Respondent, it acknowl-
edged that the Respondent had earlier advised it that the Respondent
did not intend to extend the collective-bargaining agreement to Triangle
Rock, but instead intended to operate Triangle Rock nonunion. On or
about March 3, the Respondent told the Union that the negotiations to
purchase Triangle Rock, Irvine Lake were not completed.
of company which supplied clerical employees to the re-
spondent); United Graphics Inc., 281 NLRB 463 (1986)
(information concerning employees supplied to respondent
by temporary employment agency). See also Congreso de
Uniones Industriales de Puerto Rico v. NLRB, 966 F.2d 36
(1st Cir. 1992) (respondent unlawfully failed to provide
union with document possessed by respondent’s parent
company); Arch of West Virginia, 304 NLRB 1089 (1991)
(respondent failed to request information from parent com-
pany and sister subsidiaries). Obviously, no such close,
dependent relationship exists between the Respondent and
its competitors in this case, so these cases do not impose on
the Respondent the obligation to attempt to obtain the in-
formation requested by the Union.
Thus, we reverse the judge’s conclusion that the Re-
spondent unlawfully failed to supply the Union with infor-
mation requested by the Union concerning its competitors,
on the grounds that the information was neither in its pos-
session or control. However, assuming that the Respondent
did have within its possession or control information con-
cerning such matters as its competitors’ “productivity, la-
bor and material cost, prices, profits and losses,” we would
find that the relevance of the information sought by the
Union has been shown. Thus, the information was relevant
and necessary to the Union’s ability to evaluate and bargain
with the Respondent over its claimed need for concessions
in order to remain competitive. See E. I. du Pont & Co.,
276 NLRB 335 (1985) (in context of employer’s expressed
concern over market competitiveness, it unlawfully refused
to provide union with information relevant to bargaining
over employer’s job restructuring proposal, including
known comparative per unit costs at other plants operated
by both employer and competitors). In the absence of any
other basis for not providing the requested information to
the Union, such as asserted confidentiality interests that
outweighed the Union’s need for the information (see De-
troit Edison Co. v. NLRB, 440 U.S. 301 (1979)), the Re-
spondent would be required to provide the requested in-
formation to the Union.
The Respondent disputed the information’s relevance,
asserting that it was basing its proposals only on the wages
and benefits of its nonunion competitors, and thus infor-
mation concerning other aspects of their business was not
relevant to its bargaining proposals. Where, as here, an
employer relies upon its alleged non-competitiveness with
nonunion employers, information concerning the nonunion
employers is clearly relevant. This information is not lim-
ited to the wages and benefits paid by the nonunion em-
ployers. The wage benefit information does not exist in a
vacuum. For example, when faced with a demand for con-
cessions in wages and benefits based on a need for compet-
itiveness, the Union could reasonably conclude that infor-
mation concerning the competitors’ wages and benefits
alone would not be sufficient to evaluate the Respondent’s
need for concessions. A more complete economic analysis
of the competitors’ performance could help the Union to
CALMAT CO. 1097
better understand and assess, not only the wage and benefit
proposal, but also the competitors’ rate structure and why it
might differ from that of the Respondent. Data on com-
petitors’ productivity, prices, and labor and material costs,
as sought by the Union here, would be relevant to this
analysis. With such information, the Union might be able
to generate alternatives to wage and benefit concessions
through which the Respondent could become more com-
petitive, such as by increasing productivity or reducing
costs in other areas. In addition, the Union might need
such information, as well as information concerning the job
classifications employed by the other companies and the
jobs they have taken away from the Respondent, to evalu-
ate whether or not those companies are truly in the same
competitive market as the Respondent.
Therefore, as stated, if the Respondent had actually pos-
sessed the information sought by the Union, we would find
that it was relevant and necessary to the Union’s collective-
bargaining responsibilities. However, because the Re-
spondent has credibly asserted that it did not have the in-
formation in its possession or control, we find that its fail-
ure to provide it to the Union was not an unfair labor prac-
tice.
B. Legal Framework and Conclusions Relating to Impasse
1. Legal framework
We have reversed the judge’s finding that the Respond-
ent violated Section 8(a)(5) by failing and refusing to pro-
vide the Union with information relevant and necessary to
its collective-bargaining responsibilities. Accordingly, the
judge’s conclusion that no bargaining impasse existed due
to the effect of serious unremedied unfair labor practices
which affected the bargaining, i.e., the failure to provide the
Union with information, can no longer stand. We must
therefore analyze whether the Respondent has met its bur-
den of proving that an impasse existed which justified its
unilateral implementation of its “last, best and final offer”
beginning on March 6.
Under Section 8(d) of the Act, an employer and a union
are mutually obligated “to meet at reasonable times and
confer in good faith with respect to wages, hours, and other
terms and conditions of employment . . . but such obliga-
tion does not compel either party to agree on a proposal or
require the making of a concession.”46 Under Section
8(a)(5) of the Act, “[I]t shall be an unfair labor practice for
an employer . . . to refuse to bargain collectively with the
representatives of his employees.” Thus, according to
well-established law, “[a]n employer violates his duty to
bargain if, when negotiations are sought or are in progress,
he unilaterally institutes changes in existing terms and con-

46 The parties stipulated that the unilateral changes at issue involved
mandatory subjects of bargaining. Significantly, the Board has long
held that an employer’s pension plan is considered a mandatory subject
of collective bargaining. See, e.g., Inland Steel Co., 77 NLRB 1
(1948), enfd. 170 F.2d 247 (7th Cir. 1948), cert. denied 336 U.S. 960
(1949).
ditions of employment.”47 However, “after bargaining to
an impasse . . . an employer does not violate the Act by
making unilateral changes that are reasonably compre-
hended within his pre-impasse proposals.”48 Parties need
not reach impasse on all bargaining issues before an em-
ployer may lawfully implement its bargaining proposals. A
single issue (such as the critical pension negotiations before
us here) may be of such overriding importance that it justi-
fies an overall finding of impasse on all of the bargaining
issues:
The Board has long distinguished between an impasse
on a single issue that would not ordinarily suspend the
duty to bargain on other issues and the situation in
which impasse on a single critical issue creates a com-
plete breakdown in the entire negotiations. Only in the
latter context where there has been a complete break-
down in the entire negotiations, is the employer free to
implement its last, best, and final offer.49
Thus, a party that maintains that an impasse on a single,
critical issue justified its implementing all of its bargaining
proposals must demonstrate three things: first, the actual
existence of a good-faith bargaining impasse; second, that
the issue as to which the parties are at impasse is a critical
issue; third, that the impasse on this critical issue led to a
breakdown in the overall negotiations—in short, that there
can be no progress on any aspect of the negotiations until
the impasse relating to the critical issue is resolved.
In establishing that the bargaining parties have reached
impasse, the burden of proof lies with the party asserting
that an impasse exists.50 Determining whether a bargaining

47 Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub
nom. Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir.
1968); NLRB v. Katz, 369 U.S. 736, 743 (1962).
48 Taft Broadcasting Co., supra at 478. See also Colorado-Ute Elec-
tric Assn., 295 NLRB 607, 609 (1989), enf. denied on other grounds
939 F.2d 1392 (10th Cir. 1991), cert. denied 504 U.S. 955 (1992), in
which the Board stated the rationale underlying the rule permitting
implementations following impasse:
That the employer is free to implement changes after reaching
good-faith impasse is another way of expressing the axiom that
the employer’s duty to bargain over proposed changes does not
imply a duty to agree to the union’s counterproposals or to make
a concession. . . . The employer’s duty to bargain does not give
the union a right to veto the proposed changes by withholding
consent. If the parties have bargained to good-faith impasse and
the union has been unable to secure concessions or agreement to
its proposals, then the employer may proceed to implement the
changes it proposed to the union in negotiations.
49 Sacramento Union, 291 NLRB 552, 554 (1988), enfd. mem sub
nom. Sierra Publishing Co. v. NLRB, 888 F.2d 1394 (9th Cir. 1989),
and cases cited therein. See also NLRB v. Tomco Communications,
Inc., 567 F.2d 871, 881 (9th Cir. 1978): “Those who bargain collec-
tively are normally under an obligation to continue negotiating to im-
passe on all mandatory issues. The law relieves them of that duty,
however, when a single issue looms so large that a stalemate as to it
may fairly be said to cripple the prospects of any agreement.”
50 See, e.g., PRC Recording, 280 NLRB 615, 635 (1986), enfd. sub
nom. Richmond Recording Corp. v. NLRB, 836 F.2d 289 (7th Cir.
1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
impasse exists involves a fact-intensive analysis, guided by
various factors:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations, the importance of the issue
or issues as to which there is disagreement, the con-
temporaneous understanding of the parties as to the
state of negotiations are all relevant factors to be con-
sidered in deciding whether an impasse in bargaining
existed.51
2. Conclusions
The record reflects that the negotiations regarding the
pension plan played the critical role in the bargaining, and
that the parties’ failure to agree on this issue destroyed any
opportunity for reaching a successor collective-bargaining
agreement. From the first meeting on August 22, 1994,
until March 3, the Respondent insisted that it had to elimi-
nate the fixed contribution rate in order to avoid future law-
suits. The Respondent never wavered from its position.
The Union, too, was equally adamant in its position that the
fixed contribution rate could not be eliminated. All other
bargaining occurred in the shadow of this fundamental
disagreement.
The parties’ bargaining behavior demonstrates the vital
role proposals relating to the pension plan played in these
negotiations. First, throughout the negotiations, the parties
differed as to how to interpret the 18th amendment to the
pension plan52—the Union saw it as a vehicle to increasing
its participation in the pension plan, while the Respondent
argued that it did not constrain participating employers’
ability to negotiate changes to the contribution rate. This
was a fundamental disagreement. The record reflects that,
throughout the negotiations, the Union questioned whether
the Respondent possessed the legal authority to bargain
over the pension issue. In this respect, at the bargaining
session of February 2, Waggoner left the meeting announc-
ing that the Respondent lacked the authority to bargain over
the pension plan and that he could not negotiate with a
“ghost.” The Respondent, however, adamantly maintained
that it possessed the requisite authority to negotiate over the
pension plan.53

51 Taft Broadcasting Co., supra, 163 NLRB at 478. Furthermore, as
is arguably true of the bargaining history in this case (namely, the May
30 meeting between the PIC attorney and the Union that occurred after
the Respondent implemented its wage and health and welfare benefits
proposal), “some bargaining may go on even in the presence of dead-
lock.” AFTRA v. NLRB, 395 F.2d at 628.
52 As discussed in sec. I, the 18th amendment to the pension plan
was the result of a Federal district court-approved settlement in 1991.
Stated briefly, the 18th amendment to the pension plan concerns meth-
ods of amending and funding the plan.
53 The General Counsel did not issue a complaint alleging that the
Respondent did not have the authority to negotiate over the pension,
and the Office of Appeals sustained this conclusion. See discussion,
above, regarding the Federal courts’ comments on participating em-
ployers’ legal prerogative to bargain over the contribution rate con-
tained in collective-bargaining agreements. We find it unnecessary to
Second, the parties’ words demonstrate the importance
of the pension plan. On October 31, Dickerson, in a letter
to Waggoner, stated that the fixed contribution rate had to
be eliminated to bar future lawsuits affecting the plan, and
emphasized that the fixed contribution rate “simply cannot
continue.” On February 16, in a letter to Waggoner, Dick-
erson stated that the parties were at impasse. He referred to
the pension plan issue as “fundamental,” and stated that the
Union had expressed its unwillingness to modify its posi-
tion on this issue. He further noted that the parties were at
“irreconcilable odds” on the pension plan. Statements
made by Dickerson and Waggoner at the March 3 meeting
also demonstrates the importance of the pension plan issue.
Waggoner stated that he was only appearing at the meeting
so that the Respondent could not hold his absence against
him with the Union’s members. After some ultimately
futile discussion regarding benefit levels and the possibility
of coordinated bargaining on the pension issue, Dickerson
asked Waggoner if the Union had any movement to report,
to which Waggoner replied, in effect, not unless the Re-
spondent changes its pension proposal. Dickerson said that
the Respondent could not do this. The parties then ex-
pressed their mutual view that they were “hung up” on the
pension issue. (Waggoner also stated that, if the parties
could agree on the pension issue, an overall agreement
might be possible.) The Respondent carried out its first
implementation—affecting wages and health and welfare
benefits—on March 6.
Statements made by Bowles and union negotiators at the
May 30 meeting further demonstrate the unyielding nature
of the parties’ attitudes toward the pension issue. As stated
above, this meeting addressed only the pension issue, there-
fore highlighting the significance of the pension issue.
Bowles reaffirmed the participating employers’ desire to
eliminate the fixed contribution rate. Waggoner, in turn,
responded that the Union liked the plan the way it was, and
that the Union was content with a system which enabled it
to sue the PIC to raise benefit levels. Bowles suggested a
covenant not to sue, but Waggoner did not agree to this.54
Next, Waggoner outright rejected Bowles’ proposal to
eliminate the fixed contribution rate. With that, the meet-
ing ended.
In sum, the pension plan issue pervaded the negotiations.
From the start, the Respondent stressed the significance of
this issue. The Union equally stressed its desire to continue
the fixed contribution rate. These positions never changed.
The record reflects that the Respondent modified several of
its proposals relating to, inter alia, reductions in wages and
caps on health and welfare contributions. The Union’s
only bargaining concessions came in the comparatively
minor areas of holidays and vacations. Ultimately, it was

interpret the legal requirements contained in the 18th amendment to the
pension plan.
54 See fn. 32, supra.
CALMAT CO. 1099
the parties’ fundamental disagreement on the pension plan
issue that led the Respondent to declare impasse.
As applied to the bargaining in this case, the Taft factors
demonstrate that the parties reached a good-faith bargain-
ing impasse regarding the pension plan on March 6.55
The first factor is the parties’ bargaining history. The
parties had a lengthy bargaining history (dating back ap-
proximately 40 years). Waggoner stated, in a letter to the
Respondent’s president/chief executive officer, that alt-
hough the parties had had some disagreements over the
years, the bargaining relationship had always culminated in
the parties reaching agreements. Thus, the parties had a
successful history of bargaining. However, the record re-
flects that the bargaining relationship began to sour as a
result of the Union’s lawsuits against the pension plan. The
bargaining history of the instant negotiations demonstrates
that the parties could not reach agreement.
Regarding the good faith of the parties during bargain-
ing, both parties “have a duty to negotiate with a ‘sincere
purpose to find a basis of agreement,’” but “an adamant
insistence on a bargaining position is not of itself a refusal
to bargain in good faith.”56 Upon scrutinizing both parties’
overall conduct during these negotiations, we conclude that
neither party refused to bargain in good faith: the parties
met frequently and, while the bargaining may have been
difficult, both parties exchanged proposals over the course
of the negotiations.57
The negotiations spanned approximately 7 months and
included 10 bargaining sessions through March 3. The
parties discussed the pension issue at every meeting and in
a series of letters. Over the course of the negotiations, nei-
ther party modified its position on this issue. The Board
does not rely on a set formula for determining whether
negotiations have gone on for an excessively longtime or
whether, alternatively, there have been too few bargaining
meetings. Indeed, the Board has found bargaining im-
passes after a period of time shorter than 7 months.58 Sig-
nificantly, Waggoner met Bowles for a bargaining meeting
solely related to the pension issue on May 30, after the Re-
spondent’s declaration of impasse. As described above, no
progress occurred at this meeting, which took place 10

55 Because we conclude that the parties reached impasse on the criti-
cal issue of the pension plan, it is unnecessary for us to determine
whether the parties also reached impasse on the other areas of bargain-
ing.
56 Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) (quoting
in part NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir.
1960)).
57 We also note that the General Counsel did not issue complaints
against either the Respondent or the Union after each party charged the
other with bad-faith bargaining. The Union additionally alleged that
the Respondent lacked the legal authority to bargain over the pension
issue, but the General Counsel did not issue a complaint on this matter.
58 See, e.g., Prentice-Hall, Inc., 306 NLRB 31, 40–41 (1992) (good-
faith impasse found after eight bargaining sessions over 5 months);
Concrete Pipe & Products Corp., 305 NLRB 152, 153 (1991), affd. sub
nom. Steelworkers Local 14534 v. NLRB, 983 F.2d 240 (D.C. Cir.
1993) (good-faith impasse found after four bargaining meetings).
months after the Union notified the Respondent of its inten-
tion to negotiate a new agreement.
In sum, over a 7-month period, in meeting after meeting,
and in letter after letter, the parties evinced no desire to
modify their positions on the critical pension issue. Alt-
hough conduct such as “delaying tactics, unreasonable bar-
gaining demands, unilateral changes in mandatory subjects
of bargaining, efforts to bypass the union, failure to desig-
nate an agent with sufficient bargaining authority, with-
drawal of already agreed-upon provisions, and arbitrary
scheduling of meetings” may indicate a lack of good faith,
none of these indicia is present here.59
The third factor is the importance of the issue. We have
previously described how the pension plan issue came to
play a critical role in these negotiations. We note, too, that
the judge found that the pension issue played a “para-
mount” role in the negotiations.
Finally, we turn to the contemporaneous understanding
of the parties. On March 3, Waggoner stated that the Un-
ion was not going to make any further proposals “unless
[the Respondent] got off its . . . damn pension proposal.”
Dickerson said that this was not possible; Waggoner re-
plied that the parties were “hung up on that,” and Dicker-
son concurred. Waggoner expressed a similar sentiment at
the conclusion of the May 30 meeting. The Respondent, of
course, declared impasse on February 16.
The Union and the General Counsel contend that the Re-
spondent prematurely declared impasse because, at the
March 3 meeting (3 days before the Respondent imple-
mented its wage and health and welfare proposals), Wag-
goner suggested coordinated bargaining on the pension
issue. However, when Dickerson asked if Waggoner was
making a proposal, Waggoner replied that he was not.
Waggoner did not, during this meeting, suggest that the
Union was willing to accept the Respondent’s proposal to
eliminate the fixed contribution rate. Moreover, after de-
claring impasse, the Respondent did engage in the coordi-
nated bargaining that the Union suggested, to no effect.60 It
is undisputed that Bowles represented PIC employers dur-

59 Atlanta Hilton & Tower, supra, 271 NLRB at 1603 (fns. omitted).
As we conclude below, the Respondent’s unilateral implementations at
issue were lawful.
Moreover, the commission of independent unfair labor practices dur-
ing the negotiations and the parties’ conduct away from the bargaining
table may be evidence of bad-faith bargaining. See, e.g., Coal Age
Service Corp., 312 NLRB 572, 580 (1993) (referring to contemporane-
ous unfair labor practices as evidence of bad-faith bargaining), and
Overnite Transportation Co., 296 NLRB 669, 671 (1989), enfd. 938
F.2d 815 (7th Cir. 1991) (in determining whether a party has bargained
in good faith, the Board examines, inter alia, a party’s conduct away
from the bargaining table). As stated above, the parties’ appearances at
numerous meetings during which they exchanged and discussed various
proposals is indicative of good-faith bargaining. Further, neither party
alleged, and the record contains no evidence of, the existence of con-
temporaneous unfair labor practices or nonbargaining misconduct.
60 As stated above, the fact that the Respondent declared impasse did
not preclude the parties from continuing to bargain, for “some bargain-
ing may go on even in the presence of deadlock.” AFTRA v. NLRB,
supra, 395 F.2d at 628.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
ing the May 30 coordinated bargaining session. And, alt-
hough the Union contends that Bowles was not represent-
ing the Respondent at this meeting, the record reflects that
Waggoner did not repudiate Bowles’ statements during the
meeting and after the meeting that he was representing the
Respondent. Therefore, some form of coordinated bargain-
ing did occur on May 30. As detailed above, the meeting
was unproductive, and concluded on a harsh note. The
record reflects that Dickerson was skeptical as to whether
anything could be achieved in this bargaining session, but
that, because the Respondent wanted an agreement, he
agreed to one more attempt.61 We find that the parties
reached impasse no later than March 3, regardless of the
post-impasse bargaining occurring on May 30.
The Respondent notified the Union on February 16 that
it intended to implement its wage proposal and its health
and welfare benefit proposal on February 27, but remained
willing to meet with the Union to discuss all bargaining
issues. The Union asked to reschedule a prospective meet-
ing date from February 23 to March 3. The Respondent
therefore agreed to delay its first implementation until
March 6.
We find that the Respondent’s last, best, and final offer
was reasonably comprehended by its bargaining proposals
over the course of these negotiations.62 Regarding the pen-
sion plan proposal, which was implemented on July 1, the
Respondent changed its fixed contribution rate of $3.35 to
a variable rate of $2.55. This implementation was reasona-
bly comprehended by the Respondent’s pension plan pro-
posal made throughout the course of the bargaining. The
Respondent’s other implementations were also reasonably
comprehended by its bargaining proposals—the Respond-
ent sought reductions in wages and its cap on health and
welfare contributions, and the last, best, and final offer is
consistent with its proposed reductions.
In sum, we reverse the judge’s conclusion that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
failing to respond adequately to the Union’s information
requests. We also reverse the judge’s conclusion that the
Respondent violated Section 8(a)(5) and (1) of the Act by
unlawfully implementing changes in employees’ terms and
conditions of employment on or about March 6, July 1, and
August 21, at which times no valid bargaining impasse

61 Insofar as the General Counsel and the Union contend that Wag-
goner’s suggestion regarding coordinated bargaining precluded a good-
faith impasse, we note the following. In Holiday Inn Downtown-New
Haven, 300 NLRB 774, 775 (1990), the Board stated that “[a] party’s
bare assertions of flexibility on open issues and its generalized promis-
es of new proposals [do not clearly establish] any change much less a
substantial change.” See also AFTRA v. NLRB, supra, 395 F.2d at 628.
Financial Institution Employees, Local 1182 v. NLRB, 738 F.2d 1038,
1042–1043 (9th Cir. 1984) (impasse occurred after the union rejected
the employer’s final offer, notwithstanding the fact that negotiations
continued on some issues for several months).
We therefore reject the Union’s argument that Waggoner’s sugges-
tion and the May 30 meeting demonstrate that the parties had not
reached impasse on the pension issue.
62 See Taft Broadcasting Co., supra, 163 NLRB at 478.
existed. In light of the above reversals, we also reverse the
judge’s conclusion that the ensuing strike was an unfair
labor practice strike, rather than an economic strike. Thus,
we reverse the judge’s conclusion that the striking employ-
ees are unfair labor practice strikers.
ORDER
The complaint is dismissed in its entirety.

MEMBER BRAME, concurring.
I concur with my colleagues in finding that the Respond-
ent did not violate Section 8(a)(5) and (1) by failing and
refusing to provide the Union with informaiton relating to
nonunion competitors because uncontradicted evidence
shows that the Respondent did not have “possession and/or
control” of any of the information concerning competitors’
productivity, labor and material cost, prices, profits and
losses, number of operating engineers employed, and the
number of jobs taken from the Respondent. See Detroit
Newspapers, 326 NLRB 700, 727 (2000), revd. in part 216
F.3d 109 (D.C. Cir. 2000) (Members Brame and Hurtgen
dissenting in part). However, I disagree with my col-
leagues’ statement that information concerning these items
would, in the event the Respondent possessed such infor-
mation, be relevant and necessary to the Union’s ability to
evaluate and bargain with the Respondent over its claimed
need for concessions in order to remain competitive. Un-
der Board law,
When a union’s request for information concerns data
about employees or operations other than those repre-
sented by the union, or data on financial, sales, and
other information, there is no presumption that the in-
formation is necessary and relevant to the union’s rep-
resentation of employees. Rather, the union is under
the burden to establish the relevance of such infor-
mation.
Bohemia, Inc., 272 NLRB 1128, 1129 (1984). Accord:
San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 867–
868 (9th Cir. 1977); and NLRB v. Leland Stanford Junior
University, 715 F.2d 473, 474 (9th Cir. 1983). Further-
more, an employer is not required to supply a union with
information that the employer did not rely on in fashioning
its bargaining proposals. See, e.g., Southwestern Bell Tele-
phone Co., 173 NLRB 172, 173 (1968) (in concluding that
the information relating to the cost of subcontracting re-
quested by the union in that case was not relevant, the
Board noted that the employer did not claim that cost was a
factor in its subcontracting decisions). See also Southwest-
ern Bell Telephone Co., 262 NLRB 928, 933 (1982).
In light of the fact that the Respondent did not rely on
factors other than Owl Rock’s wages and benefits in fram-
ing its bargaining proposals, the Union has not met its bur-
den of demonstrating that information relating to the num-
ber of operating engineers employed by competitors, the
number of jobs competitors’ had taken from the Respond-
ent, and competitors’ productivity, labor and material cost,
CALMAT CO. 1101
prices, profits, and losses was relevant. Additionally, be-
cause it did not rely on factors other than Owl Rock’s wag-
es and benefits in framing its bargaining proposals, the
Union has not demonstrated that requested information
relating to Triangle Rock was relevant.
The facts demonstrate that, after negotiating at numerous
meetings and exchanging a flurry of correspondence, the
parties were deadlocked on the critical issue involving the
pension plan. Therefore, the Respondent’s changes in em-
ployees’ terms and conditions of employment were lawful-
ly implemented. In my view, in analyzing impasse cases,
the Board recognizes that “there need be no undue reluc-
tance to find that an impasse existed.” E. I. du Pont & Co.,
268 NLRB 1075, 1076 (1984). And, “[w]hile bargaining
must be conducted in good faith, it need not continue in
perpetuity.” Community General Hospital, 303 NLRB
383, 385 (1991). In fact, an impasse “cannot be said to be
an unexpected, unforeseen, or unusual event in the process
of negotiations since no experienced negotiator arrives at
the bargaining table with absolute confidence that all of his
proposals will be readily and completely accepted.” E. I.
du Pont & Co., 268 NLRB at 1076 (quoting Hi-Way Bill-
boards, 206 NLRB 22, 23 (1973), enf. denied 500 F.2d 181
(5th Cir. 1974)). Furthermore, bargaining efforts occurring
after impasse should be encouraged and, thus, not viewed
as evidence of lack of impasse.

Ann L. Weinman, Esq., for the General Counsel.
James A. Zapp and Alfred Sanchez Jr., Esqs. (Paul, Hastings,
Janofsky & Walker), of Los Angeles, California, for the Re-
spondent.
David P. Koppelman, Esq. (Local 12, International Union of Op-
erating Engineers), of Pasadena, California.
Florice Hoffman, Esq. (Wohlner, Kaplan, Phillips, Young &
Brash), of Encino, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This case
was tried before me at Los Angeles, California, on Septem-
ber 25, 26, and October 28–31, 1996,1 pursuant to a consolidated
amended complaint issued by the Regional Director for the Na-
tional Labor Relations Board for Region 21 on August 15, 1996,
and which is based upon charges filed by International Union of
Operating Engineers, Local 12, AFL–CIO (the Union) on March 8
(Case 21–CA–30573) and on September 1 (Case 21–CA–31336).
The complaint alleges that CalMat Co. (Respondent) has engaged
in certain violations of Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act).
Issues
1. Whether Respondent’s motion to strike certain portions of
the consolidated amended complaint should be granted in whole
or in part.
2. Whether Respondent, violated the Act by failing to supply
the Union with certain requested information during negotiations.
3. Whether Respondent in violation of the Act, made certain
unilateral changes in the terms and conditions of employment,

1 All dates herein refer to 1995 unless otherwise indicated.
which terms and conditions are mandatory subjects for the pur-
poses of collective bargaining, without the agreement or consent
of the Union, and at a time when the parties were not at impasse.
4. Whether Respondent’s employees engaged in an unfair labor
practices strike.
All parties were given full opportunity to participate, to intro-
duce relevant evidence, to examine and to cross-examine witness-
es, to argue orally, and to file briefs. Briefs, which have been
carefully considered, were filed on behalf of the Union and Re-
spondent.2
On the entire record of the case, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a corporation engaged in the busi-
ness of processing and selling of rock, sand, gravel, and related
products and has a facility located in Los Angeles, California.
Respondent further admits that during the past year ending De-
cember 31, in the course and conduct of its business described
above, it has purchased and received at its facility, goods or ser-
vices valued in excess of $50,000 directly from points outside the
State of California. Accordingly it admits, and I find, that it is an
employer engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International Union of Op-
erating Engineers, Local 12, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Procedural Background
1. Corespondent settles
When hearing of this case began, a second Respondent, Living-
ston Graham/Blue Diamond Materials, A Division of Cornerstone
C & M, Inc. (LG/BD), was charged by the Union in Cases 21–
CA–30576 and 21–CA–31337 (formerly Case 31–CA–21501)
with certain violations of the Act. During the first 2 days of hear-
ing, both Respondents engaged in settlement negotiations with the
Union while the hearing was in progress. Thereafter, because
prospects for settlement looked promising, I acceded to the re-
quest of all parties to continue the case for a period while Re-
spondents and the Charging Party continued their negotiations.
On resumption of the case on October 28, 1996, I was informed
that Livingston Graham/Blue Diamond Materials and the Union
had arrived at a private non-Board settlement, subject to resolution
of certain other matters, which apparently were eventually re-
solved. After the settled case was severed from the proceeding,
Respondent CalMat continued to litigate the issues to conclusion.
2. Region’s dismissal of certain charges filed by the Union
Before the hearing ended, Respondent offered certain docu-
ments to show that not all of the charges filed by the Union
against Respondent and other employers in the same business
were found by the Region to have merit (R. Exhs. 37, 38). The
only fact from this group of documents and other similar docu-
ments in the record which need be mentioned is that the Union’s

2 In lieu of a brief, the General Counsel cited cases in her opening
and closing arguments. In addition, she submitted a short letter dated
December 10, 1996, with additional citations of cases and limited ar-
gument.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
charge against Respondent alleging bad-faith bargaining was dis-
missed by the Region as lacking in merit and the Union’s appeal
of the dismissal was not successful.3 However, some of the dis-
missals by the Region are still under appeal by the Union with no
results having been reported to me at this writing.
3. Respondent’s motion to strike portions of consolidated com-
plaint and amended notice of hearing
On or about September 17, 1996, Respondent filed its motion
to strike (GC Exh. 1(ll) and on the same date Deputy Chief Ad-
ministrative Law Judge Robbins issued an order to show cause
why said motion should not be granted (GC Exh. 1(nn)). Subse-
quently both the General Counsel and the Union filed responses
(GC Exhs. 1(pp), (qq)), and I indicated I would decide the issue in
my posthearing decision along with all other issues in the case not
otherwise resolved.
In its motion, Respondent recites the somewhat protracted
precomplaint history of the Union’s charges. The record reflects
certain dismissals, appeals by the Union, and requests for advice
by the Region. As a result, Respondent contends, it is faced with
certain allegations in the consolidated amended complaint outside
the scope of the original charges. Based on the [alleged] oppres-
sive nature of the entire process and the [alleged] unfair surprise
in which Respondent is somehow ensnared, Respondent asks for
certain relief:
(1) Dismissal with prejudice of the entire consolidated amend-
ed complaint; or in the alternative.
(2) Striking with prejudice of certain paragraphs of the consol-
idated amended complaint; to wit paragraphs 9(a) and (c), alleg-
ing unlawful unilateral changes in the terms and conditions of
employment (wages and health and welfare benefits); and para-
graphs 10(a) and (b) alleging an unfair labor practices strike.
First, I decline to dismiss the consolidated amended complaint
on the grounds that Respondent has failed to demonstrate preju-
dice which would justify such an extreme remedy. Rather, I find
that the administrative procedures discussed by Respondent have
allowed Respondent to face hearing in a better position than it
would otherwise have been in. Thus, many of the Union’s theo-
ries have been found to be without merit, a decision which in
some cases is yet to be finalized on appeal. Nor do I find any
evidence that the General Counsel, either trial counsel, its investi-
gating agents, or any of its officials in Appeals, Advice, or the
Region acted in bad faith. Again, I find, to the contrary, that they
acted in good faith, seeking with diligence, to protect Respond-
ent’s interests along with those of the Union’s.
As to Respondent’s alternative request, I will also deny the mo-
tion to strike the paragraphs mentioned above for the reasons that
follow. Respondent’s contention that the offending paragraphs
mentioned above are either outside the scope of the Union’s
charges and/or untimely is not supported by the record of this
case.
In paragraph 13 of its motion to strike, Respondent challenges
paragraphs 9(a), (b), and (c) of the consolidated amended com-
plaint; however in pararagraph 19, its final paragraph of the mo-
tion to strike, Respondent asks “as an absolute minimum” that
paragraphs 9(a) and (c), and 10(a) and (b) of the consolidated
amended complaint be struck with prejudice. Perhaps the omis-
sion of pararagraph 9(b) was inadvertent, perhaps deliberate; in
the final analysis it doesn’t matter.

3 Respondent too filed one or more charges against the Union. One
of these charged the Union with unlawfully attempting to delay nego-
tiations. All charges filed by Respondent were dismissed.
Respondent cites no authority for the proposition that any alle-
gation in a complaint different from, or in addition to that remand-
ed by the Office of Appeals may be struck. I agree with the Union
that the case of NLRB v. Fant Milling Co., 360 U.S. 301 (1959),
should govern. In that case, the Court noted and affirmed the
Board’s broad investigatory power not at all confined to the pre-
cise particularization of the charge. Thus, while the letter of De-
cember 1, to Koppelman from the Office of Appeals (Exh. 4 to
Respondent’s motion) refers only to “the Employers’ unilateral
implementations of their wage proposals . . ., I find that the Gen-
eral Counsel was well within its authority to included health and
welfare benefits and pension issues in the complaint. See Redd-1,
Inc., 290 NLRB 1115, 1118 (1988), and Nickles Bakery of Indi-
ana, 296 NLRB 927, 928 (1989).4
At paragraph 15 of its motion to strike, Respondent avers
that paragraph 9(b) of the complaint should be stricken because
Respondent was never given the opportunity to submit evi-
dence or authority regarding the General Counsel’s legal theo-
ry. Respondent fails to explain how it was prejudiced by the
alleged error of the General Counsel nor does it submit legal
authority in support of the relief sought. I find that Respondent
could have submitted argument and/or authority after it knew of
the General Counsel’s allegations in the complaint regarding
unilateral change in the pension plan, or it could have requested
postponement of the hearing on the grounds of inadequate time
to research the issues. I note that even after the first 2 days of
hearing, Respondent had about a month to do whatever legal
research it felt was required. Respondent did none of this.
Instead, in its answer, appended to the General Counsel’s oppo-
sition, it admitted paragraphs 9(a), (b), and (c). Finally, Re-
spondent has now submitted a posthearing brief containing
arguments which will be duly considered. Again, I ask, where
is the prejudice, I find none.
With respect to paragraphs 10(a) and (b) of the consolidated
amended complaint, raising issues regarding the Union’s strike
activity, I again find that such issues are closely related to the
Union’s timely charge and well within the General Counsel’s
legal authority to include in the complaint. I note also, that within
the context of the 6-day hearing, direct evidence regarding wheth-
er the Union is engaging in an unfair labor practice strike is mini-
mal. I find that the issue is primarily, if not exclusively, a legal
issue dependent on other related findings to be made in this deci-
sion.5
Finally, Respondent contends that paragraphs 9(c) and 10(a)
and (b) of the consolidated amended complaint are time barred by

4 I agree with and adopt the General Counsel’s argument, p. 3 of its
opposition to Respondent’s motion to strike portions of the complaint
(GC Exh. 1(qq)): “[A] complaint may allege violations not alleged in
the charge, even if untimely, so long as the new allegations are closely
related to a timely filed charge.” The General Counsel goes on to state
that changes in health and welfare benefits as a result of Respondent’s
declaration of impasse are sufficiently closely related to changes in
wages, where both charges are made on the same date for the same
reason, e.g. [alleged], impasse.
5 The issue regarding whether Respondent made certain unilateral
changes when the parties were not at impasse and the issue regarding
the nature of the strike arise out of events within the same general time
period as alleged in the charges. See Well-Bred Loaf, Inc., 303 NLRB
1016 fn. 1 (1991). I also find that defenses to the impasse and strike
issues would involve the same or similar defenses. See FPC Holdings,
Inc., 314 NLRB 1169 (1994), enfd. 64 F.3d 935 (4th Cir. 1995); Car-
penters Local 35 (Construction Employers Assn.), 317 NLRB 18
(1995).
CALMAT CO. 1103
Section 10(b) of the Act. I find this argument like the others, is
without merit under the authority of Redd-1, Inc. and Nickles Bak-
ery of Indiana, supra. The pension allegations involve the same
section of the Act, Section 8(a)(5) as the other alleged unlawful
unilateral changes, and all three challenged paragraphs arise out of
the same factual situation. Moreover, Respondent’s defenses as
aptly demonstrated at hearing are the same to all allegations, that
is, if Respondent did not make unlawful unilateral changes, the
strike will not be found to be an unfair labor practice strike. Ac-
cordingly, I find that a sufficient nexus exists between the allega-
tions in the Union’s charge as remanded by the Office of Appeals
and those contained in the challenged paragraphs. Hamilton Plas-
tic Products, 309 NLRB 678, 683 (1992). Moreover, I find that
the challenged paragraphs are not just closely related to the timely
charges, but are also inextricably intertwined. See Texas World
Service Co., v. NLRB, 928 F.2d 1426, 1436–1437 (5th Cir. 1991).
For the reasons stated, I deny Respondent’s motion to strike in
toto.
B. The Facts
1. Background
The controversy herein arises out of a series of negotiations
during 1994 and 1995 between Respondent and the Union for a
successor collective-bargaining agreement. The record contains
the expired agreement effective 1991–1994 (Jt. Exh. 1). What
would have seemed a relatively simple task, to negotiate a new
agreement between parties with a history of amicable (more or
less) relations over the years was made complex, frustrating, and
so far impossible to overcome by a series of related collateral
events, the total effect of which was to defeat the effort for a new
agreement and bring the parties to the Board. A strike continues,
awaiting not just settlement of the issues but proper nomenclature,
economic or unfair labor practice, with the different rights and
privilege which may innure to the strikers depending on what they
are.
a. CalMat
Respondent operates in the southern California area where it
performs work in the rock, sand, and gravel industry. As it pre-
pared to begin negotiations for a new labor agreement with the
Union, Respondent sounded familiar themes: that it was being
battered by changing technology and increasingly aggressive
competition from nonunion employers in the industry. Though it
did not exactly claim to be losing money, Respondent entered
negotiations seeking concessions from the Union in order to be
competitive. In this respect it was emboldened by its successful
negotiations with other Unions, prior to the onset of these negotia-
tions. Respondent also sought to rectify alleged wage compres-
sion, whereby less skilled employee wage rates were bumping up
against more skilled employees creating morale and other prob-
lems. Finally, Respondent sought to remedy a perceived problem
with its pension plan, which I will discuss in detail below. For
now, it suffices to say that Respondent had been sued twice in
recent years over pension related disputes and Respondent be-
lieved it was essential to change the pension plan in a way that
lessened or eliminated its exposure to future lawsuits.
Respondent’s chief negotiator and spokesperson and lengthy
witness at hearing was Mason Dickerson, vice president for hu-
man resources. Assisted by Jeffrey Dyer, Respondent’s labor
relations manager, Dickerson attended all negotiating sessions,
formulated strategy and goals, drafted proposals, and sent and
received letters to and from the Union.
b. The Union
The Union represented about 100 employees employed by Re-
spondent and a number of other employees employed by other
companies in the same general area and the same business as Re-
spondent. Although the Union had negotiated wage and benefit
increases in the 1991–1994 collective-bargaining agreement with
Respondent, in recent years, it found itself victimized by the same
economic forces as those besieging Respondent. That is, nonun-
ion employers were becoming more aggressive in seeking busi-
ness, and not just employers who had always been nonunion. In
recent times, the Union struck an employer in the rock, sand, and
gravel industry for a number of weeks, only to make an uncondi-
tional offer to return to work without resolution of the underlying
issues. Sometime after, the Union was decertified and the Em-
ployer became nonunion.
The Union’s chief negotiator and spokesperson was its business
manager, William Waggoner, a longtime union official and
lengthy witness at hearing. Called as an adverse witness by Re-
spondent and as a rebuttal witness by the General Counsel, Wag-
goner ably presented the Union’s point of view on the pending
issues. Waggoner was assisted in negotiations by Steve Billy,
union treasurer. In those few cases where Waggoner was not
present at negotiations, Billy took over. In most cases both at-
tended.
2. Additional background
a. Nature of negotiations
For several years prior to 1989 the Union negotiated with em-
ployers in the rock, sand, and gravel industry in southern Califor-
nia on a multiemployer basis. Beginning in 1989, the Union
withdrew its consent to multiemployer bargaining and negotiated
separately with various employers including Respondent. To a
certain extent, the employers such as Respondent and LG/BD
continued to coordinate their bargaining by insisting in the instant
negotiations that Mason Dickerson, Respondent’s chief negotiator,
would be a member of LG/BD’s negotiating team and John
Clemente, chief negotiator for LG/BD, would be a member of
Respondent’s negotiating team.
b. Teamsters and Machinists negotiations
Sometime prior to April 1994, Respondent began negotiations
with Teamsters Local 420 and two other Teamsters Locals, repre-
senting smaller units of employees. Respondent opened negotia-
tions asking for concessions of 20 percent in wages and benefits
such as holidays, vacations, health and welfare caps, etc. Ulti-
mately the parties agreed to a new labor agreement with a savings
of about 14 percent. Of the concessions granted to Respondent,
the most important was the Teamsters consent allowing Respond-
ent to contract with outside haulers to transport its product. This
resulted in Respondent saving tens of thousands of dollars per
month (R. Exh. 29).
Teamsters Local 166 of San Bernandino County agreed to simi-
lar concessions with Respondent.
The other Teamsters local, Local 186 in Ventura, did not agree
to Respondent’s concessions and instead decided to strike. After
about 10 weeks, Local 186 made an unconditional offer to return
to work. Local 186 never did reach agreement with Respondent
and is working under implemented terms and conditions of em-
ployment.
Respondent also negotiated a new labor agreement with desired
concessions estimated at about 14 percent from a Machinists local
which represented about 12 employees in a classification de-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
scribed as heavy-duty repair. This result occurred during the ne-
gotiations with the Union in the present case.
As negotiations were about to begin, chief union negotiator,
Waggoner, was aware generally of Respondent’s results with the
Teamsters described above. During negotiations with Respond-
ent, he also became aware of the Machinists results as described
above. With Waggoner, Respondent’s negotiators took the posi-
tion that it needed the same concessions that it had received from
the other unions because, Respondent argued, the same conditions
were present which compelled settlement with the other unions,
i.e., the threat to its business from nonunion competitors paying
lower wages and benefits than what Respondent was required to
pay by the expired collective-bargaining agreement. Waggoner,
however, was not convinced by these reasons and stated at the
first negotiations on August 22, 1994, that he could care less what
the Teamsters did; the Operating Engineers were not the Team-
sters.6
c. The pension issue
Not mentioned in detail up to now is the pension issue which
was to become of paramount importance in the negotiations. In
the Teamsters’ negotiations, the pension issue played little or no
role, because the Teamsters’ pension was different from that
which applied to the Operating Engineers. The Teamsters’ pen-
sion fund is a Taft-Hartley governed fund with an equal number of
trustees from management and labor. Periodic reports must be
submitted to the Government on the financial condition of the
pension fund. Any changes in the structure of the pension fund
must be agreed to by the trustees and a change in benefits during
negotiations with an employer is relatively simple once the trus-
tees (and the parties) reach agreement.
By comparison, the pension plan in effect here is not gov-
erned by Taft-Hartley. Called the southern California Rock
Products and Ready Mix Concrete Industries—Operating Engi-
neers Retirement Fund (the Plan) is not jointly administrated
and as originally agreed to, labor played no role in the admin-
istration of the Fund. The governing trustees, known as the
Pension and Insurance Committee (PIC), are either manage-
ment representatives and/or are selected by the participating
employers. Counsel for the PIC is also selected by the employ-
ers. It is characterized as a “defined benefit” plan meaning that
the benefit per employee is defined by the number of hours
worked within the industry. For each 1000 hours worked, an
employee receives one credit. Historically, the parties have
negotiated a benefit level, i.e., a dollar value for each credit.
Historically, the parties have also negotiated a fixed contribu-
tion rate that remains part of the labor agreement during its
term. During the term of a given collective-bargaining agree-
ment, the plan has been over funded which happened in 1989
and 1994. This led to a dispute between Respondent and the
Union over whether the Respondent could reduce its contribu-
tion to the plan or whether the contributions should remain the
same and the employee benefits should be increased.
The two disputes referred to above led to lawsuits in Federal
court against Respondent by employees and union agents attempt-

6 In a union publication dated August/September 1994, there is a ref-
erence to “tough” negotiations to come “because of the wage conces-
sions the Teamsters already have agreed to.” The article goes on to
refer to prenegotiation meetings held with union members who emphat-
ically express opposition to any reduction in hour wages. Other con-
cessions sought by Respondent were characterized in the publication as
“ridiculous” (R. Exh. 3).
ing to compel Respondent to increase benefits. The second of
these lawsuits was dismissed on Respondent’s motion for sum-
mary judgment and is now on appeal to the Ninth Circuit Court of
Appeals.7 That lawsuit has played little or no role in the instant
case. By contrast, the first lawsuit resulted in a court-approved
settlement agreement in 1991. Arrived at with the assistance of a
court-appointed master, the settlement agreement included what
was to become known as amendment to the Pension Plan 18.
Under amendment 18, no changes could occur in the Plan without
the consent of the Union and two-thirds of participating employers
employing 75 percent of the plan members.8
Respondent took the position that in order to eliminate its expo-
sure to lawsuits, it needed to make certain changes in the plan,
changes which would have affected amendment 18.9 More spe-
cifically, Respondent desired to eliminate the contribution rate
from the labor agreement and allow it to “float,” while continuing
to negotiate over the benefit levels which would continue to be
specified in the labor agreement. Then periodically; Respondent
would receive reports from its actuaries as to the amount needed at
any given time to fund the level of benefits specified in the labor
agreement. Respondent would then increase or decrease its con-
tributions to the plan in accord with the actuaries’ reports.
For a variety of reasons, the Union opposed this plan: it would
strip the Union of its input under amendment 18; it might place
the plan benefit in jeopardy; it might implicate ERISA10 in some
way; it might violate the terms and conditions of the settlement
agreement approved by the court,11 and perhaps other reasons as
well. In formulating its position, the Union was not relying on
idle speculation. According to Waggoner, sometime in the mid-
1980s, the plan was underfunded for a period of time and a threat
developed to the plan’s solvency. The Respondent and other par-
ticipating employers explained to the Union that the plan’s actuar-
ies, selected by these very same employers, had miscalculated as
to the contribution levels needed. Ultimately, the Union felt
forced to ask its members to do what was necessary to make the
plan whole. Members agreed to allocate 50 cents an hour from
their wages to increase the contribution levels so the plan re-
mained solvent. This experience may have contributed to the
Union’s position in later years when the plan was overfunded and
the Union demanded that benefits be increased, and to the Union’s
reluctance to accept Respondent’s proposals regarding changes
during present negotiations. The Union apparently felt that the
underfunding of the mid-1980s resulted in whole or in part from

7 The opinion of the U.S. district judge is in the record (R. Exh. 33).
At one point, Respondent’s counsel claimed that the decision had some
sort of res judicata effect binding on me in the instant case (Tr. 650).
This position has not been adequately developed and I reject any con-
tention that the decision of the district judge will determine any issue
here.
8 Underlying the litigation in the instant case is the assumption that
the parties could negotiate over an issue, the end result of which, if
agreement had been reached, would have been to vary the terms and
conditions of the court-approved settlement agreement. Other than to
question this assumption during the hearing (Tr. 480–481), I express no
opinion on the matter.
9 Other elements of the settlement agreement included a decrease in
the contribution factor and an increase in the pension credit.
10 Employee Retirement Insurancy Security Act.
11 As I expressed misgivings about the issue as noted in fn. 8 above,
Waggoner, a witness at the time, volunteered, “That is our position,
Your Honor, that it couldn’t be changed” (Tr. 481). However, I cannot
find evidence in the record that the Union opposed Respondent’s pen-
sion proposal on that specific ground during negotiations.
CALMAT CO. 1105
the Union’s lack of participation in the administration of the plan.
Under amendment 18, the Union felt that it had some degree of
participation in the workings of the pension plan and the Union
was not inclined to relinquish whatever power or control it pos-
sessed.
No discussion of the pension issue would be complete without
alluding to the role played by James Bowles, a witness for Re-
spondent. Bowles is an attorney who practices management side
labor law. One of his law partners represents the PIC. Bowles
was retained by Respondent and other participating employers “to
engage in coordinated collective bargaining of the pension issue
only” and so informed the Union by letter of March 13 (R. Exh.
8). On March 17 Waggoner responded by letter to Bowles. First,
Waggoner agreed to coordinate bargaining “in order to resolve the
pension issue,” and acknowledged that he had made suggestion to
that effect on March 3, at an important negotiating meeting to be
further described below. Waggoner went on to note in his letter
that followed the March 3 meeting, Respondent had declared
impasse and implemented proposals to cut wages and health bene-
fits. Waggoner declared that unless the implementations were
rescinded, he would still agree to “meet on a coordinated basis
with the employers named in your letter except CalMat, Living-
ston-Graham and Blue Diamond” (R. Exh. 9).12
On March 21 Bowles wrote back to Waggoner asking that the
Union reconsider its position with respect to excluding Respond-
ent lest the Union commit an unfair labor practice refusal to bar-
gain in good faith on a mandatory subject of bargaining (R. Exh.
10).
On March 30 Waggoner wrote back to Bowles denying any re-
fusal to bargain in good faith (R. Exh. 12).
There followed a blizzard of correspondence between the par-
ties regarding not only who Bowles was representing, but wheth-
er the Union was delaying negotiations13 and/or engaging in
regressive bargaining14 (R. Exhs. 13–20). In any event, the par-
ties finally met on May 30 at the Union’s office for their single
negotiating session over the pension. Some of the correspond-
ence referred to above had contained proposals or coun-
ter/proposals including that contained in a Waggoner letter of
April 11 to Bowles: “an increase in the benefit rate to $45.00 per
credit, retroactive to November 1, 1993; the contribution rate to
remain the same at $3.35 per hour per employee; and all contrac-
tual language to remain the same” (R. Exh. 14). As already not-
ed, Bowles considered this proposal to be regressive. Without
characterizing the Union’s proposal, I note that on January 13 the
Union submitted a proposal which included, “Pension Credit
Increases Effective”:

October 1, 1994 $39.00

12 As an example of the topsy-turvy state of these negotiations, I note
that the Union ended coordinated bargaining in 1989 over the employ-
ers’ objection. On March 3, when Waggoner suggested the Union
might agree to coordinated bargaining to resolve the pension issue, it
was Dickerson who expressed disapproval, suggesting it was late in the
day for that strategy. Notwithstanding Dickerson’s rebuff, the Employ-
er’s retained Bowles. Notwithstanding Waggoner’s unconditional
expression of interest, the Union refused to consider Respondent as part
of the negotiations on the pension.
13 In the endless exchange of correspondence, Bowles was faxing all
or most of his to the Union, while Waggoner was sending his to Bowles
by certified mail, return receipt requested.
14 According to Bowles, the Union made a pension benefit rate pro-
posal of $45 per credit which was higher than a union proposal made to
the employers on January 13, 1995 (R. Exh. 20).
July 1, 1995 $43.00

[Jt. Exh. 35.]

Waggoner opened the May 30 meeting by making a vulgar
comment regarding Bowles intention to continue screwing the
working man. In light of the opening remarks and the background
of correspondence and prior negotiations, little if anything, of
substance occurred. Bowles restated the employer’s desire to
remove the contribution rate from the labor agreement, but Wag-
goner responded that the Union liked it, “that we can sue you guys
every couple of years and change benefit levels that way.” While
Bowles mentioned a covenant not to sue as a possible remedy to
the employer’s perceived dilemma, it went nowhere.
Ultimately the parties agreed that under present conditions, fur-
ther meetings would be pointless and the meeting ended as it be-
gan with Waggoner telling Bowles to take his proposal and stick it
up his ass. On June 2 Bowles wrote to Waggoner purporting to
summarize the results of the meeting from the Employers’ point of
view (R. Exh. 21). And on June 7 Waggoner wrote back to
Bowles correcting Bowles’ letter “in several respects.” First
Waggoner denied that the parties are at impasse. Second, Wag-
goner noted that all major employers in the Rock Products Indus-
try have now implemented wage and benefit cuts which the Union
considered unacceptable and unlawful.15 Finally, the Union con-
tended that any implementation of the pension proposal would be
in violation of the 18th amendment to the plan (R. Exh. 22).
About 3 weeks after this letter was sent, Respondent implemented
its pension contribution rate proposal.
I will revisit in the analysis and conclusions section of this deci-
sion whether the Union was dilatory in negotiating with Respond-
ent including the Bowles segment. For now it seems pointless to
resolve the issue of whether the Union ignored its plain statement
of position expressed over and over in its correspondence that it
would not negotiate with Respondent and LG/BD (R. Exhs. 9, 12,
14, and 19). Bowles took the position that at the meeting of
May 30, Waggoner not only did not repeat again his position ex-
pressed in the correspondence, but asked questions about and
referred by name to Respondent in the discussions in such a way
that Bowles concluded that Waggoner had changed course and
was negotiating with Bowles as a representative of Respondent. I
note that Waggoner’s letter of June 7 (R. Exh. 22), referred to
above, does not specifically disavow Bowles’ letter of June 2 (R.
Exh. 21) in which Bowles states in part, that he told Waggoner on
May 30 that he was representing Respondent as well as other
named employers on the pension issue. Moreover, without Re-
spondent and LG/BD as part of the employer group being repre-
sented by Bowles, the whole exercise of May 30 would have been
a nullity since under amendment 18 to the plan, unless Respond-
ent and LG/BD consented to any agreement with the Union over
the pension issue, there was no agreement.16 In the final analysis,

15 The General Counsel has never made it clear to me why this Re-
spondent [and LG/BD which settled] have been singled out for prosecu-
tion when the Union claims all other employers in the industry have
also made alleged unlawful implementations. Moreover, as I under-
stand it, the Union filed identical charges against all the employers, but
only those against Respondent and LG/BD were found to have merit.
In any event, my bewilderment implies no legal significance for Re-
spondent.
16 Evidence had been presented at hearing to show that in 1993, the
Union received notice that the pension plan was again overfunded and
the Union requested that negotiations be reopened to address the over-
funding. Ultimately, the parties agreed to reopen negotiations and
reached agreement that benefits in the pension plan would be increased
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
it made no difference exactly who Bowles was representing. First,
there was no agreement on the pension plan and no evidence sug-
gests that Respondent and LG/BD made any difference to the lack
of agreement whether the Union acquiesced or not as to their par-
ticipation through Bowles. Moreover, the implementation of
March 6 on wages and health and welfare was either unlawful or
not without regard to who Bowles was representing and will be
determined below.
3. The negotiations
On July 1, 1994, the Union notified an official of LG that it de-
sired to begin negotiations on a new collective-bargaining agree-
ment (Jt. Exh. 6). On July 8, 1994, John Clemente, on behalf of
LG/BD wrote back acknowledging the Union’s letter and asking
for additional time to explore the possibility of coordinated bar-
gaining with one other signatory company [presumably Respond-
ent] and the Union (Jt. Exh. 7).
a. August 22, 199417
On behalf of Respondent, Dickerson stated that Respondent
was looking for reductions in wages and benefits comparable to
what Teamsters Local 420 had agreed to. Dickerson also ex-
pressed a desire to remedy an alleged wage compression problem
by which the least skilled classifications was bumping up to mid-
dle and high skilled positions. The Union tendered its first pro-
posal to Respondent (Jt. Exh. 27) and Respondent tendered its first
proposal to the Union (Jt. Exh. 29). Respondent did not offer
specific wage or health and welfare (H&W) proposals but did
propose that the pension plan be revised to eliminate the contribu-
tion rate from the labor agreement and to retain the current benefit
levels. Other proposals dealt with overtime (OT) (1-1/2 time after
10 hours per day and after 40 hours per week), with vacations (80
hours’ cap for contract term), and with holidays (reduce from 8 to
3 holidays). Respondent also proposed to delete “and future”
from the contract meaning that any future plants acquired Re-
spondent would not be covered by the agreement.
Like Respondent, the Union did not present a wage proposal,
but as to H&W, proposed increasing the cap to $559 per month, as
to pension plan proposed to retain contribution rate in contract and
increase benefits $38, $39, and $40 for each of the 3-year term.
Proposals were also made on OT (retain status quo), vacations
(add 40 hours, after 8 years and after 15 years) and holidays (in-
crease from 8 to 9).
b. September 9, 1994
On September 9, 1994, the Union tendered to Respondent a let-
ter stating in the future it would not agree to coordinated bargain-
ing (Jt. Exh. 9(a)). No proposals were exchanged on this date and
each side maintained its position as previously described.
c. September 16, 1994 (a.m. only)
On this date, Respondent provided its second set of proposals to
the Union (Jt. Exh. 30). Respondent made no change in any area
except to submit a list of three job groups. Dickerson discussed
desired concessions in the area of 20 percent. While the Union
produced no proposals nor made any changes in its position,
Waggoner made some reference to or request for Respondent’s
financial records to justify its request for concessions. Dickerson

by $1 per hour. This agreement was voided when under amendment
18, a participating employer, Transit Mix, objected to the agreement
and blocked it by withholding consent.
17 The first two bargaining sessions consisted of Respondent and
LG/BD negotiating jointly with the Union.
responded, You already have them. Those are in our annual re-
ports (Tr. 832–833).
d. October 3, 1994
Respondent presented its third proposal (Jt. Exh. 32) in which it
proposed certain wage reductions within the three job groups
referred to above, with the biggest reductions for the least skilled
job. As to H&W, Respondent proposed to retain the trust fund
with a cap of $375. No changes in any other area was proposed.
The Union made no proposals nor any changes in its position.
On October 31, 1994, Dickerson sent a letter to Waggoner
which reads as follows:

October 31, 1994

Mr. Bill Waggoner
Business Manager and General Vice President
Operating Engineers Local Union 12
150 Corson St.
Pasadena CA 91109–7209

Re: Contract Negotiations between CalMat Co. and
IUOE Local 12

Dear Mr. Waggoner:

The purpose of this letter is twofold. One, to request fu-
ture meetings to continue our negotiations and two, to pre-
sent CalMat’s proposal regarding pension benefits.
As to scheduling meetings, CalMat has not heard from
Local 12 since the Union canceled two meetings scheduled
for October 10 and 14. Please advise us of your availability
to meet. We realize that Local 12 has other contracts to bar-
gain in the rock and sand industry therefore we again offer to
meet at the same time as Livingston-Graham/Blue Diamond,
since CalMat’s proposals are virtually identical to theirs.
Please advise us of your available dates as soon as possible.
In preparation for our next meeting we have enclosed
CalMat’s proposal regarding pension benefits. As you can
see, the Company proposes to increase the pension benefit
factor by $2.00 (form $37 to $39 per month) retroactively ef-
fective October 1, 1994.
There seems to be a misunderstanding among many of
our employees on the pension issue. We are told that Local
12 is saying that the Company is attempting to take away
pension benefits. Nothing could be further from the truth.
We have not at any time in these negotiations proposed a
pension benefits reduction. To the contrary, we now offer an
increase!
As you are well aware, the employees’ pension plan is a
defined benefit plan. Yet, for years, our agreement with Lo-
cal 12 has also defined the amount of the Employers contri-
bution, a very, very unusual agreement. This has led to two
lawsuits. This simply cannot continue. We must define the
benefit— not the contribution.
Our proposal to increase the benefit factor to $39 per
month is simple and straightforward. Eligible retiring em-
ployees (your members) will receive $39.00 per month for
each year of credited service–guaranteed! The Company is
absolutely obligated to provide the monthly benefit.
According to estimates from the actuaries, the Company
is able to offer the $2.00 increase in benefits and still save
approximately $0.80 per hour in future contributions. This is
especially good news during these times of “roll-back” con-
CALMAT CO. 1107
tracts. We can increase the pension benefit and use the
$0.80 to offset the proposed reductions in wages.
This may be our best opportunity for a win-win situation.
We look forward to discussing this and other issues dur-
ing our next meeting, which hopefully is very soon.

Very Truly Yours,
/s/ Mason Dickerson

Mason Dickerson
Vice President, Human Resources
enclosure
[Jt. Exh. 10.]

On November 10, 1994, Waggoner wrote back to Dickerson as
follows:

November 10, 1994

CERTIFIED - RETURN
RECEIPT REQUESTED

Mason Dickerson, Vice President
Human Resources
CalMat Company
3200 San Fernando Road
Los Angeles, California 90065

Dear Mr. Dickerson:

Negotiations between Local 12 and the company that
you represent have been unproductive to date because of the
unacceptable demands in your proposal.
As you are aware, John Clemente who represents Blue
Diamond and Livingston Graham, has agreed to accept the
assistance of federal mediation.
Although we have had only one meeting, of which you
were in attendance, I feel that federal mediation can be of as-
sistance in reaching a settlement.
I am therefore requesting that federal mediation be invit-
ed in any future negotiations between CalMat and Local 12.

Sincerely,
/s/ Wm. C. Waggoner

Wm. C. Waggoner, Business Manager
I.U.O.E., Local Union No. 12 and
General Vice President

[Jt. Exh. 13.]

On December 13, 1994, Dickerson wrote a letter to Waggoner
which reads as follows:

December 13, 1994

Bill Waggoner
Business Manager
Local 12
150 East Corson Street
Pasadena, CA 91109–7209

Dear Mr. Waggoner:

This letter will serve as the confirmation of our meeting
scheduled for December 20, 1994 at 10:00 a.m. at the FMCS
offices in Orange, CA for the purpose of negotiating a new
labor agreement between CalMat Co., Los Angeles Region,
and your Union.
This will be the first meeting between the parties since
October 3, more than two months ago. We believe that the
Union is deliberately delaying its negotiations with CalMat.
There are several facts which show this is the case:
(1) Since the Union first asked to open contract negotia-
tions on July 1, 1994, over five (5) months ago, you have
been willing to meet with CalMat only four times. That is
less than one meeting a month, and two of those meetings
(August 22 and September 9) involved coordinated bargain-
ing with Livingston Graham and Blue Diamond. The only
meetings with CalMat alone were on September 16 and Oc-
tober 3. In total, you have spent only a few hours in our ne-
gotiating meetings.
(2) You canceled negotiating meetings which had been
scheduled for October 10 and 14. You did not try to re-
schedule meetings. I had to send you a letter dated October
31 demanding that you schedule another meeting before you
finally did so. Even then, you tried to postpone that meeting
(now scheduled for December 20) until January 1995.
(3) In September, the Union changed its position and re-
fused to meet jointly with CalMat and the other companies in
a coordinated bargaining arrangement. You have used this to
delay the negotiating process.
(4) The Union has requested, prematurely in our view,
that a federal mediator become involved in the negotiations.
While we are willing to meet with a mediator present, we are
not willing to have the Union use the FMCS as a further ex-
cuse to delay bargaining.
In short, by the time we meeting on December 20, eleven
(11) weeks will have elapsed between meetings. This is
clearly unacceptable and constitutes bad faith bargaining.
Given the Union’s abysmal record, CalMat hereby re-
quests that the Union come to the December 20 meeting pre-
pared to schedule enough negotiating sessions so that the
parties can reach agreement by January 20, 1995. CalMat is
available to meet on each of the following dates:
December 21, 22, 23 and 27; and January 3, 7 (Satur-
day), 14 (Sunday), 15, 16, 17, 18, 19 and 20.
Additionally, I will work to free my calendar on any oth-
er dates prior to January 20 on which the Union is available
to meet.

Very truly yours,
/s/ Mason Dickerson

Mason O. Dickerson
Vice President
Human Resources
[R. Exh. 4.]
e. December 20, 1994
This meeting was the first held with the Federal mediator in at-
tendance. The parties first discussed Respondent’s proposal in-
cluding the one sent to the Union with the letter of October 31,
1994, recited above. Respondent increased its H&W cap to $400
per month and increased its pension benefit to $39. In addition,
Respondent increased its vacation cap to 120 hours’ for the term
of the contract and increased holidays to 4. Reporting pay was
increased from 2 to 4 hours just for showing up.
When pressed by Respondent for a proposal, Waggoner said
we’ll give you one: 1-year extension of current agreement, 25
cents’ cap on H&W and $43 pension benefit increase. Dickerson
rejected the Union’s proposal out of hand and considered it to be
nonserious. Before adjournment, Dickerson explained it was
necessary for concessions to be competitive. Dickerson continued
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
that Respondent was primarily concerned with Owl/Robertson
and Waggoner asked for its rates which Dickerson said he knew
(R. Exh. 30). Also before adjournment, Dickerson asked Wag-
goner if it would be possible to meet before January 16 but Wag-
goner said no. Dickerson asked if Waggoner would send any
proposals in the mail before the next meeting so there would be
time to study them. Waggoner said he couldn’t promise anything.
Then Waggoner said he had to leave the meeting early in order to
study Respondent’s latest modification of its proposals.
f. January 16
Respondent proposed to increase wages by $1.35 over the 3-
year term, to increase the cap on H&W by $25 of the second year
(to $425) and by $25 on the third year to ($450). As to the pen-
sion plan, Respondent renewed its proposal on the contribution
rate, but proposed to increase pension benefits by $1 a year for 3
years ($39, $40, and $41) (Jt. Exh. 36).
The Union also submitted a written proposal to increase wages
by 75 cents (25 cents on September 15, 1994, and 50 cents on
September 15, 1995), to increase pension benefits ($39 on Octo-
ber 1, 1994, $43 on July 1, 1995). The Union continued to insist
that the contribution rate remain in the contract (Jt. Exh. 35).
At the conclusion of the meeting, Waggoner presented to Dick-
erson a letter which requested certain financial records and infor-
mation (Jt. Exh. 14). As the Union concedes (Br. at 35), the Gen-
eral Counsel found the Union’s charges with respect to most para-
graphs in this information request lacking in merit, because Re-
spondent had not claimed an inability to pay. Accordingly, only a
portion of this information request presents an issue in the case, to
be considered below.
g. January 19
Both sides exchanged proposals at this meeting: Respondent,
however, made no changes from past proposals (Jt. Exh. 38). The
Union did make certain changes in its proposal (Jt. Exh. 37). As
to wages, the Union increased its demand from 75 cents on Janu-
ary 16 to $1.50-wage increase (25 cents as of September 15, 1994,
50 cents as of February 1, 1995, and 75 cents as of February 1,
1995). Respondent rejected this proposal and the Union made no
concessions from the expired contract on any major economic
areas.18
h. February 2
At this meeting, Respondent again made a written proposal that
made no changes in past proposals (Jt. Exh. 40). The parties spent
most of the time talking about a pension-related topic, the proper
disposition of a supposed 80-cents savings in administration of the
pension plan.19 Waggoner took the position that he had no au-
thority to negotiate over the 80 cents until the hands (members)
told him to. There was also a discussion of Respondent’s authori-
ty to negotiate over the pension since in at least one past occasion,

18 While it is clear to me that little was accomplished at this meeting,
I am puzzled by Dickerson’s testimony regarding the length of the
meeting. At first he testified this was one of the longer bargaining
meetings (Tr. 578); then he testified that the meeting ended with the
Union walking out without allowing Dickerson an adequate time to
respond to the Union’s proposals (Tr. 580).
19 The origin of this 80-cents figure relates back to the letter of Dick-
erson to Waggoner of October 31, 1994 (Jt. Exh. 10), published above.
There, Dickerson discusses a savings of 80 cents per hour in future
contributions and the use of the 80 cents to offset the proposed reduc-
tions in wages. Why the topic suddenly arose 3 months later is not
clear.
Respondent was unable to deliver the agreements of all employers
required by amendment 18. Dickerson recognized the problem,
but told Waggoner’s associate, Billy, that Respondent had veto
power over changes in the pension plan. Waggoner asked for a
letter saying Respondent was authorized to apply the 80 cents to
wage and benefits. Notwithstanding their alleged lack of authority
to negotiate over the 80-cents savings, the parties spent some time
quibbling over who would make a proposal over the issue and just
what would constitute a proposal. Dickerson testified he was
attempting to trade that 80 cents for the Union’s agreement on
taking the contribution rate out of the labor agreement. In the end
this strategy went nowhere and nothing was accomplished.
On February 9 Dickerson wrote a letter to Waggoner which
reads as follows:

VIA MESSENGER
February 9, 1995
Mr. William C. Waggoner
Business Manager and General Vice President
International Union of Operating Engineers, Local 12
150 East Corson Street
Pasadena, CA 91109–7209

Dear Mr. Waggoner:

When you abruptly waked out of our February 2, 1995
negotiations, you provided the best evidence yet that it is
your clear intent to delay, delay, delay. By our account you
spent a scant 56 minutes in the same room with us, refusing
to offer even one counter to the Company’s proposals and re-
fusing to listen to the Company’s review of the Union’s pro-
posals.
Your reasons for refusing to continue negotiations that
day are spurious. First you say you cannot continue without
the financial information previously requested. Then you
complain that you don’t have enough information concerning
what our competition is paying. Then you insist that you
have the right to know what CalMat is planning to pay em-
ployees at Triangle Rock, including Morongo. And finally
you “discover” that CalMat does not have unilateral authori-
ty to negotiate a change in the Rock Products Association
Pension Plan. So you announce that these negotiations are
on hold and you walk out.
Even though your complaints are an obvious pretext to
further stall meaningful negotiations, I will individually ad-
dress them below.

Financial Information—

As I informed you at the meeting, CalMat’s response
is contained in our letter to you dated January 19, 1995. It
is still our position that Local 12’s request for financial in-
formation is irrelevant, and CalMat need not respond to it.

Competititor’s Pay–

We have provided you with information concerning Owl
Rock Products’ rates of pay both at the bargaining table and
in our letter of January 19, 1995. As you are no doubt aware,
there are numerous other companies paying substantially less
in wages and benefits than CalMat currently is. Examples
include P. W. Gillibrand in Simi Valley who is paying from
$12.00 to $16.00 per hour for operators. Quality Rock in
Moorpark pays $7.00 per hour for “unskilled” up to $13.00
for “skilled” personnel. Channel & Basin reclamation, Inc.
pays, on average, from $12.00 to $14.00 per hour for its
CALMAT CO. 1109
workers, with a $10.00 per hour top rate for Conveyorman.
Empire Rock in Alta Loma pays its Repairman up to $20.00
per hour with Operators in the $18.00 to $20.00 range. Ad-
ditionally, these companies, overall, pay less in benefits than
CalMat is proposing.
The above confirms that what we have proposed in wag-
es and benefits is competitive, and in many cases, surpasses
what other companies are paying.

Triangle Rock—

Again, for the record, Triangle Rock, Irvine Lake (pro-
vided the deal goes through) is not a direct competitor to
CalMat with its market in Orange County. Therefore, what
they pay is irrelevant. Even so, they are planning to offer a
wage and benefit package which is less costly than what we
have proposed.

Association Pension Plan—

This is the biggest non-issue of the group. CalMat has
been and continues to be willing to negotiate on a coordinat-
ed basis with certain other companies, but it was you, Mr.
Waggoner, who has refused to negotiate with more than one
company at a time. In fact, you were the one responsible for
destroying the industry’s multi-employer bargaining ar-
rangement in August, 1989, breaking up a forty (40) year
bargaining history. In 1989 the parties had no trouble reach-
ing accord on pension. And again in 1991, no problems
were encountered and you never raised the issue once. But
now, after two contract negotiations and seven months into
the third, you suddenly are concerned that we cannot bargain
on the issue of pension without a letter of authorization?
Frankly, that’s unbelievable.
Since you walked out last Thursday without allowing us
a chance to review your proposals I have enclosed a sum-
mary of the Union’s proposals and the status of each. You
will note that we have agreed to two more of your proposals.
One concerns using 173 hours as the basis for adjusting wag-
es to pay for changes in Health & Welfare premiums. The
other is renewing the Letter of Agreement concerning con-
tracting out of work. We also are offering a counter to the
Letter regarding Drug and Alcohol testing to incorporate a
reference to the applicable laws and regulations.
Also, enclosed is a summary of the Company Proposals.
The Union has made very few counter proposals during
these negotiations, indeed CalMat often has bid against itself.
But no more.
We will see you Monday, February 13, 1995 at 10:00
A.M. at the FMCS office in Glendale. At that meeting the
Union ought to be prepared to make whatever movement it
intends to make during these negotiations. We see no legiti-
mate reason these negotiations cannot be concluded in a
short period of time.

Very truly yours,
/s/ Mason Dickerson

[Jt. Exh. 18.]
i. February 13
At this meeting Waggoner delivered to Dickerson a letter in re-
sponse to the February 9 letter published above. Waggoner’s
letter reads as follows:

February 13, 1995

HAND-DELIVERED & CERTIFIED MAIL—
RETURN RECEIPT REQUESTED

Mason Dickerson
Vice-President, Human Resources
CalMat Company
3200 San Fernando Road
Los Angeles, CA 90065

Dear Mr. Dickerson:

I was extremely disappointed at both the tone and content
of your letter to me dated February 9, 1995. I do not under-
stand how you expect Local 12 to bargain in good faith while
you keep accusing us of bad faith. I remind you that it is
CalMat, not Local 12, which is proposing drastic changes in
wages, benefits, and other working conditions. Your refusal
to disclose financial information leads us to believe that these
changes are not required as a result of any financial problems
your company may be suffering from. Making employees
take as much as a $7.00 per hour cut while CalMat reaps
huge profits is not bargaining in good faith.
I must again renew my request for the financial infor-
mation previously demanded. Your employees are entitled
to see this information before they can knowledgeably cast a
vote as to whether to ratify an agreement containing the dras-
tic cuts you propose. I do not know how, in good con-
science, I can submit a proposal such as this with a recom-
mendation for approval by the membership unless these rec-
ords are turned over for inspection.
With regard to the information you have given us con-
cerning your so-called competitors, that information is in-
complete and worthless. Where are these so-called competi-
tors located? How many Operating Engineers do they em-
ploy? What prices are they charging? How many jobs have
they taken away from you? Without such information, there
is no way for us to judge whether any reductions in pay, let
alone the cuts you seek, are justified.
With regard to Triangle Rock, your conduct and contra-
dictory statements leave many questions unanswered. Who
owns this operation? When will the deal at Irvine Lake be
finalized? What will happen to the employees? Also, how
can you complain about nonunion “competition” when you
wind up competing against yourself? What we are faced
with here is an operation being sold by one union employer
to another union employer, with a threat to operate it nonun-
ion. You tell me how Local 12 is supposed to interpret such
conduct.
Finally, with regard to the pension plan, our comments at
the February 2, 1995, session were caused by the recent his-
tory of our efforts to amend the plan. On October 22, 1993,
as a result of the pension reopener, Local 12 received a letter
signed by yourself, John Gresock and John Clemente indicat-
ing agreement to propose that the Association Pension and
Insurance Committee increase pension credits from $37 to
$38 effective November 1, 1993. This proposal was never
ratified by the Plan and never went into effect. Other negoti-
ations were also unsuccessful in adjusting pension credits.
Then, your own accountant reported that the plan was in
danger of becoming overfunded again, but you stalled on ne-
gotiating a resolution of this problem and no resolution has
yet been reached. As of now, this issue is in litigation. A big
part of the problem is the Association’s rules, requiring any
change be approved by two-thirds of the employers who em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
ploy three-fours of the employees in the plan. You yourself
admitted that CalMat has the votes to block any change to
the plan of which you do not approve. That is why we are so
concerned about the status of negotiations concerning the
pension plan.
I look forward to further negotiations eventually leading
to a mutually acceptable agreement. But there are numerous
problems which remain, many of them caused by conflicting
statements and positions on the Employer side. Addressing
these problems will go a long way towards moving these ne-
gotiations forward. Your cooperation in this regard will be
appreciated.

Very truly yours,
/s/ Wm. C. Waggoner
Wm. C. Waggoner,
Business Manager
I.U.O.E. Local Union No. 12 and
General Vice President

[Jt. Exh. 19.]

The Union repeated the theme at the meeting that it was enti-
tled to certain information on competitors which it had not
received from Respondent. For example, several times Wag-
goner asked, “[W]ho are these other competitors?” Dickerson
responded, “[M]ainly Al Robertson,” then added, “[W]e’ve
given you what we know.” The Union presented a written
proposal (Jt. Exh. 41) which included a small change regarding
vacation rates. Respondent made an oral proposal to add 25
cents to all wage rates and to agree to 173 hours per month base
for H&W.
At one point in the meeting, Waggoner stated that unless Re-
spondent takes the pension issue off the table, there would be no
movement on any other issue. On February 16, Respondent
transmitted to the Union, its last best and final offer (Jt. Ex. 42).
This lengthy correspondence need not be published in detail. Like
all or most correspondence, from both sides, it was self-serving,
contentious and written with one eye on approaching litigation. It
suffices to say that the letter purports to review the history of the
negotiations from the Respondent’s point of view.
As to the pension issue, Dickerson wrote,

The parties are at irreconcilable odds concerning the fun-
damental structure of the plan. The Company insists upon a
defined benefit plan only, while the Union is insisting on a
combined defined contribution and defined benefit plan.
You have stated you will not change your position on this
fundamental issue.

Dickerson concluded his letter by stating, “[W]e are at im-
passe.” Then Dickerson stated that effective February 27, the
Company intended to implement its last, best, and final offer as to
wages, H&W, and OT pay. As matters turned out, Respondent
did not implement on February 27, because the Union asked for
another meeting and Respondent agreed to delay the implementa-
tion, and so informed the Union (Jt. Exh. 20).
On February 28, Waggoner wrote back to Dickerson objecting
to Dickerson’s statement in Joint Exhibit 20: “[II]f the Union is
unwilling to accept the major economic issues as a package as
proposed in our Last, Best and Final Offer, we will be unable to
reach agreement and CalMat will implement its Last, Best and
Final Proposals on the following subjects effective March 6, 1995:
Wages and Health and Welfare.” Waggoner characterized this
statement as an unacceptable precondition and further stated, that
unless Dickerson retracted the statement, Waggoner would not be
present at the bargaining session set for March 3 (Jt. Exh. 22).
Dickerson wrote back on March 1 reaffirming Respondent’s intent
to be present and not retracting anything (Jt. Exh. 23).
On March 2 Waggoner wrote another letter, this time to Re-
spondent’s chairman of the board. It reads as follows:

March 2, 1995

HAND-DELIVERED
Mr. A. Frederick Gerstell
Chairman of the Board,
President and Chief Executive Officer
CalMat Co.
3200 San Fernando Road
Los Angeles, California 90065

Dear Mr. Gerstell:

I am writing this letter to you in an attempt to “head off”
a war that neither your company or Local 12 could win.
I realize as CEO of a company as large as CalMat has a
tremendous amount of responsibilities, but I think your in-
dulgence in the current negotiations between CalMat and
Local 12 are important to both parties.
Local 12 has had a contractual relationship with CalMat
(ConRock) for many, many years. Although we have expe-
rienced some disagreements over those many years, we were
able to maintain that relationship. Whether or not you want
to continue that relationship is entirely in your hands. I can
honestly make that prediction because the demands that your
representatives have made at the bargaining table are ridicu-
lous and absurd.
The proposal your company has submitted calls for a re-
duction of 20 percent in wages and benefits. The proposal
also contains changes in the working conditions that rolls the
clock back 30 years or more.
When asked at the bargaining table of your representa-
tives if it was CalMat’s intention to extend the agreement to
Triangle Rock if and when a settlement of the current negoti-
ations was reached, the reply was, NO!, we intend to operate
Triangle Rock non-union. In my estimation, that is creating
non-union competition within your own organization.
I have had about 30 years of experience in negotiating
labor contracts and learned many years ago that unless you
are honest and truthful with the people you are dealing with
at the bargaining table, it becomes very difficult to reach an
amicable settlement.
Local 12 also understands that negotiations can also be-
come very difficult if the company with whom they are bar-
gaining is experiencing some financial problems, but that is
not the case in this situation because CalMat’s recent finan-
cial report reflects reasonable profit.
Mr. Gerstell, I don’t wish to see the relationship between
Local 12 and CalMat dissolved, but the demands that are be-
ing made at the bargaining table are unacceptable to your
employees, our members.
The cost of living has not decreased by 20 percent, nor
has CalMat’s profit decreased by 20 percent. So, it doesn’t
make sense that we have to go to war when I honestly be-
lieve that a settlement could be reached if CalMat’s proposal
was realistic.
Please call me if you have any questions as to the con-
tents of this letter. If I do not hear from you, it will send me
CALMAT CO. 1111
a very strong signal that CalMat is not interested in continu-
ing our relationship unless it is on CalMat’s terms.
Sincerely,
/s/ Wm. C. Waggoner
Wm. C. Waggoner, Business Man-
ager
I.U.O.E., Local Union No. 12 and
General Vice President

[Jt. Exh. 24.]
j. March 3
The parties did meet on this date with Waggoner present to rep-
resent the Union. However, he stated to the parties that the only
reason he showed up was to prevent the Company from using his
absence against him with the members. Neither side had a written
proposal, but the Union orally agree to four holidays and stated it
would agree to Respondent’s H&W proposal, if Respondent paid
full cost of retiree coverage. When Dickerson asked for a cost
figure, Waggoner said he didn’t know. When Dickerson asked if
the Union had any further movement, Waggoner responded,
“[N]ot unless you get off your G__ D___ pension proposal.”
When Dickerson assured Waggoner that the Company was not
going to get off the pension matter, then Waggoner said, “[T]hen,
it looks like we are hung up on that,” and Dickerson agreed (an-
other version of Waggoner’s remarks found in the record is to the
effect, that if the pension issue is resolved, then we would proba-
bly put this thing together).
With respect to the benefit levels, in the pension plan, the Un-
ion asked if Dickerson could guarantee the levels. This question
was apparently based on the uncertainty caused by amendment 18
and the Union’s prior experience with it in 1993. Dickerson said,
“[W]e guarantee it.” Then the Union asked if Dickerson could
secure a letter from the PIC guaranteeing the benefit levels. Dick-
erson asked whether such a letter was a “deal maker,” i.e, the
Union would agree to take the contribution rate out of the contract.
Waggoner replied, “[N]o.”
As reported above in the section on Bowles, Waggoner cau-
tioned that he was not making a proposal, as he needed to clear it
with legal counsel, but he queried, how would Respondent re-
spond to the possibility of getting all employers together to discuss
the pension issue. Dickerson responded in a negative tenor, but
Waggoner’s statement eventually led to the arrival of Bowles
whose efforts were in vain.
Meanwhile, Respondent implemented its wage and H&W pro-
posals on March 6. After the negotiations with Bowles were un-
successful, Respondent implemented its pension contribution rate
proposal on July 1. About 3 weeks later, unit employee went on
strike and I will determine below what type of strike it is. Finally,
on August 21 Respondent made its third and final implementation
of remaining areas that had been the subject of negotiations.
Before ending this segment of the case, I report on one other
contentious issue that the parties were unable to resolve. Already
mentioned above, deletion of the “and futures” clause from the
recognition clause of the contract received a considerable amount
of attention. Respondent pointed out at hearing that the Union had
agreed to delete this clause in San Diego negotiations with a com-
pany owned by Respondent. The Union contended that because
San Diego was a separate economic market, it did not provided a
precedent for the Union in the Los Angeles negotiations. Moreo-
ver, the Union had good reason to believe that Respondent was
about to acquire a business which it intended to operate as nonun-
ion, when and if the Union agreed to delete the clause. This pre-
sented the Union with the issue of whether it should facilitate
Respondent’s efforts to complete against itself as a nonunion em-
ployer, when Respondent was arguing at the table it needed 20
percent in concessions because of the competition from nonunion
employers. I see the problem. Not surprisingly, the Union de-
clined to agree to this proposal and as matters turned out, Re-
spondent never acquired the new plant anyway.
C. Analysis and Conclusions
1. The Union’s information requests
In a letter to me dated December 10, 1996, the General Counsel
submitted case citations and brief arguments regarding the Un-
ion’s information requests. Simply stated, the General Counsel
contends that Respondent did not respond to the information re-
quests, that the failure violated the Act, and precluded Respondent
from lawfully declaring impasse. In its brief at 36–36, the Union
generally supports the General Counsel’s theory.
To begin, I recapitulate briefly, Respondent was seeking cuts in
wages and benefits in the area of 20 percent. The Union reasona-
bly considered these proposals to be draconian. In addition, the
Respondent was seeking changes in the Pension Plan, the effect of
which on members’ fortunes was debatable. Accordingly, on
January 16, the Union wrote a letter to Dickerson which reads in
part:

In order to evaluate the Company’s need for concession,
Local 12 is hereby requesting, pursuant to Section 8(a)(5) of
the [Act] disclosure of the following:
. . . .
4. Any and all memos, reports, studies, records, or other
documents within the Employer’s possession and/or control
which, analyze any of the following factors with respect to
the Employer’s competitors: productivity, labor and material
cost, prices, profits and losses.

[Jt. Exh. 14.]

On January 19 Dickerson wrote back to the Union, stating in
part:

CalMat wants [the concessions] because we will be pay-
ing over market without them. As we have told you at the
bargaining table, we understand that Owl Rock Products, a
major competitor and several smaller operators are nonunion
with lower wages and benefits than CalMat. For example, at
Owl Rock Products, we understand that the top hourly wage
rate for a conveyman is $15.50, the top wage rate for a
skyloader operator is $18.50 and the top wage rate for a
heavy duty repairman is $20.50. Additionally, other union-
ized competitors are seeking substantial reductions in wages
and benefits in their negotiations.

[Jt. Exh. 15.]

The parties stipulated that Dickerson gave this letter to Waggoner
at the January 19 bargaining session.
On February 5 Dickerson wrote back to Waggoner in a letter
(Jt. Exh. 18) which I have published above and which included
information regarding competitor’s pay. I have also published
above, Waggoner’s followup complaint dated February 13 (Jt.
Exh. 19) that Respondent had not disclosed all of the information
requested.
Looking next at the case law, I begin with the principle that an
employer must furnish a union with sufficient information, on
request, to enable it to represent employees adequately in contract
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
negotiations; Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 68 (3d
Cir. 1965); NLRB v. Item Co., 220 F.2d 956 (5th Cir. 1955). The
information demanded must be relevant, that is, reasonably neces-
sary to the union’s performance as bargaining representative of the
unit employees. J. I. Case Co. v. NLRB, 253 F.2d 149, 153–154
(7th Cir. 1958).
In A-Plus Roofing, Inc., 295 NLRB 967 (1989), the judge stated
applicable law at 970:

Where the request is for information concerning employ-
ees outside the bargaining unit, the Union must show that the
information is relevant. Brooklyn Union Gas Co., 220
NLRB 189 (1975); Curtiss-Wright Corp., 145 NLRB 152
(1963), enfd. 347 F.2d 61, 69 (3d Cir. 1965). In either situa-
tion, however, the standard for discovery is the same: “a lib-
eral discovery-type standard.” Loral Electronic Systems, 253
NLRB 851, 853 (1980); Acme Industrial, supra, at 432, 437.
Th(i)s information need not necessarily be dispositive of the
issue between the parties, it need only be some bearing on
it. . . . [Footnote omitted.]
Once the initial showing of relevance has been made,
“the employer has the burden to prove a lack of relevance . . .
or to provide adequate reasons as to why he cannot, in good
faith, supply such information.” San Diego Newspaper
Guild [Local 95 v. NLRB, 548 F.2d 863, 867 (9th Cir. 1977)].

In the instant case, I find contrary to Respondent (Br. at 46–
47), that the Union has proven that the information requests in
issue are relevant to its statutory duty to represent employees dur-
ing negotiations. In that respect I look to I Hardin Developing
Labor Law 680 (3d ed.) where the author recognizes that in cer-
tain instances, an employer may even be required to divulge in-
formation on wage rates paid by its competitors. For this proposi-
tion of law, the author cites General Electric Co. v. NLRB, 466
F.2d 1177, 1184 (6th Cir. 1972), where the court stated:

When the Company takes the position that its wage rates are
competitive in the local areas and has taken wage surveys of
the local areas, which presumably would back up the Com-
pany’s position, then it is only reasonable that the Union
should be given sufficient data to determine whether the
Company’s position is accurate and justified.

That Respondent is required to supply the information re-
quested by the Union can be supported by other factors. First,
Respondent carefully crafted its position to be, not that it was
unable to pay, but rather, that it was facing a competitive disad-
vantage. These positions are analytically distinct, Steelworkers
v. NLRB, 983 F.2d 240, 243–245 (D.C. Cir. 1993), and lead to
rather different discovery rights for the requesting Union. See,
e.g., Stroehmann Bakeries v. NLRB, 95 F.3d 218, 222–223 (2d
Cir. 1996); Cf. Con Agra, Inc., 321 NLRB 944 (1996). That is,
under Respondent’s current bargaining position, it is required to
provide much less information than it would otherwise have to
provide. Therefore, Respondent should be required to make a
full disclosure of the comparatively small volume of infor-
mation affected.
I now return to the record. In her letter of December 10,
1996, General Counsel concedes that Respondent did provide
information on competitors Robertson and Owl (these two
competitors either are or became at some point a single compa-
ny). However, the General Counsel contends that what was
given is far short of what was requested. The Union joins in
that argument (Br. at 36–39), but adds a claim that Respondent
did not provide information that would have shown that the
nonunion companies which Respondent claimed to be its com-
petitors are in fact its competitors.
I find that Respondent did not provide requested information
called for in paragraph 4 of the Union’s January 16 letter referred
to above (Jt. Exh. 14). Further, Respondent did not provide in-
formation requested in the Union’s February 13 letter (Jt. Exh. 19)
published above, such as locations, prices being charged, and
number of jobs taken from Respondent.
At page 48 of its brief, Respondent argues that it provided the
Union with all the information it was required to give, because “its
proposals were based solely upon the lower wages and benefits
paid by Owl Rock.” As authority for this statement, Respondent
quotes Dickerson who testified that he told the Union, “Owl Rock
was the competition [Tr. 570] Waggoner, who testified that the
company’s wage rates it was proposing [were] generally in line
with the wage rates Respondent understood to be paid at Owl
Rock [Tr. 900] and Billy who testified that the primary nonunion
competitors about which CalMat was concerned was Owl Rock
Products [Tr. 155].” It is clear to me that Respondent has taken
some liberties in interpreting the testimony of Waggoner and Billy
to its own advantage. Moreover, in Dickerson’s letter of Janu-
ary 19 to the Union, he writes in part, “[W]e understand that Owl
Rock Products, a major competitor, and several smaller operators
are nonunion with lower wages and benefits than CalMat (Jt. Exh.
15, at 1) (emphasis added).
I agree with the Union, page 35 of the brief, citing the case of
Stanley Building Specialties, 166 NLRB 984, 986 (1967), enfd.
401 F.2d 434 (D.C. Cir. 1968), cert. denied 395 U.S. 946 (1969),
where the Board stated:

[W] e read that case [NLRB v. Truitt Mfg. Co., 351 U.S. 149]
rather as announcing principles that are generally applicable
to a wide variety of bargaining situations in which good faith
obligations under the Act require that a party to bargaining
negotiations be willing to substantiate on request a position it
has taken during the course of negotiations.

I conclude that Respondent has failed to convey to the Union
all the surrounding data called for by the Union’s request and that
the request was for relevant information. Included among the
missing information was the locations of Respondent’s [primary
and secondary] competitors,20 wage information regarding other
competitors, product prices, and job competitors had taken from
CalMat. I further conclude that even if Respondent were correct
that only Owl Rock is in issue, despite the abundant evidence to
the contrary, I would find that Respondent still has not supplied all
information requested, since its interpretation of controlling case
law is much too narrow. See Shoppers Food Warehouse, 315
NLRB 258, 259 (1994).
Although Respondent does not appear to claim that it did not
turn over the requested information because it did not possess
same, that too would provide no defense, unless Respondent could

20 At pp. 160–161 of the transcript, counsel for Respondent stated in-
formation as to location of Owl Products, the “biggest competitor
CalMat was concerned about” was not conveyed because the Union
already knew its location or had access to that information. Putting
aside the issue about locations of smaller competitors, and putting aside
the Union evidence that while it may have known about one location
for Owl Rock in Irvine Lake, California, it didn’t know if there were
additional locations and if so, where they were, I note the case law that
even if requested information was available from another source, that
fact is no defense. New York Times Co., 265 NLRB 353 (1983).
CALMAT CO. 1113
show that it could not obtain the requested information. United
Graphics, Inc., 281 NLRB 463, 465–466 (1986); NLRB v. Rock-
well-Standard Corp., 410 F.2d 953, 958 (6th Cir. 1969). In that
case, respondent might be called on to explain how it could base
its bargaining proposals on information it did not possess and
could not obtain.
Based on the discussion above, I find that Respondent violated
Section 8(a)(1) and (5) of the Act as alleged in the complaint, by
failing to provide the Union with the requested information.
2. Impasse
I begin with the case of Intermountain Rural Electric v. NLRB,
984 F.2d 1562, 1569 (10th Cir. 1993), where the court stated:

A bargaining impasse occurs when parties to a negotiation
exhaust all possibility of reaching agreement and further ne-
gotiations would be futile. . . . To determine whether parties
have negotiated in good faith impasse, the Board traditional-
ly considers (a) the parties’ bargaining history, (b) the par-
ties’ good faith in negotiations, (c) the length of the negotia-
tions, (d) the importance of the issues over which there is
disagreement, and (e) the contemporaneous understanding of
the parties as to the state of negotiations on the crucial date.
Taft Broadcasting Co., 163 NLRB 475 (1967) [enfd. sub
nom. Television Artists AFTRA v. NLRB, 395 F.2d 622
(1968)].

See also Brown v. Washington Redskins, 516 U.S. 1109 (1996).
As further explicated by Administrative Law Judge Kleiman in
his Board-approved decision in Circuit-Wise, Inc., 309 NLRB
905, 918 (1992):

[A] part(y’s) declaration that an impasse has occurred will
not be dispositive in determining whether one does indeed
exist—all of the circumstances of the case must be ana-
lyzed.64
A finding of impasse presupposes that the parties prior
to the impasse (had) acted in good faith. Generally, a law-
ful impasse cannot be reached in the presence of
unremedied unfair labor practices.65 The Board has long
held that[,] . . . [“A party] may not parlay an impasse re-
sulting from its own misconduct [into a license to make
unilateral changes.”]66
While no unfair labor practice is insignificant, in the con-
text of determining whether an impasse is present[,] some
have more significance than others in . . . the negotiating
process and its progress. For example, unilateral changes in
employees’ terms and conditions of employment may consti-
tute significant violations of the Act in the context of which
misconduct, no lawful impasse can be reached.67
[Parentesized material added.]
_____________________________
64 Huck Mfg. Co. v. NLRB, 693 F.2d 1176 (5th Cir. 1982). Also
see Teamsters Local 175 v. NLRB, 788 F.2d 27 (D.C. Cir. 1986).
65 White Oak Coal Co., 295 NLRB 567 (1989); LaPorte Transit,
286 NLRB 132 (1987), enfd. 888 F.2d 1182 (5th Cir. 1989).
66 Wayne Dairy, 223 NLRB 260, 265 (1976).
67 White Oak Coal Co., supra, . . . .

As the Board stated in Noel Corp., 315 NLRB 905, 911 (1994):

Although an Employer who has bargained in good faith to
impasse normally may implement the terms of its final offer,
it is not privileged to do so if the impasse is reached in the
context of serious unremedied unfair labor practices that ef-
fect the negotiations.33
___________________
33 Columbian Chemicals Co., 307 NLRB 592, 592, 596 (1992),
enfd. mem. 993 F.2d 1536 (4th Cir. 1993); J.W. Rex Co., 308 NLRB
473, 473, 496 (1992), enfd. mem. 998 F.2d 1003 (3d Cir. 1993).

To these principles of law, I add another, that because im-
passe is a defense to the change of an unlawful unilateral
change, the burden of proof rests on the party asserting that
impasse exists. North Star Steel Co., 305 NLRB 45 (1991),
enfd. 974 F.2d 68 (8th Cir. 1992).
The General Counsel contends that Respondent’s failure to
furnish the information in issue is just such an example of a
serious unremedied unfair labor practice. I agree.

A legally recognized impasse cannot exist where the
employer has failed to satisfy its statutory obligation to
provide information needed by the bargaining agent to en-
gage in meaningful negotiations. “A failure to supply in-
formation relevant and necessary to bargaining constitutes
a failure to bargain in good faith in violation of Section
8(a)(5), and no genuine impasse could be reached in these
circumstances.” [Decker Coal Co., 301 NLRB 729, 740
(1991).]

(Dispute over information requested where pension plan in issue).
See also Genstar Stone Products Co., 317 NLRB 1293, 1299–
1300 (1995); Crane Co., 244 NLRB 103, 111–112 (1979); Palo-
mar Corp., 192 NLRB 592, 597–598 (1971), enfd. 465 F.2d 731
(5th Cir. 1972).
I conclude that Respondent’s failure to make a full and com-
plete response to Respondent’s Information Requests which I
have found relevant preclude a lawful impasse from being de-
clared.21 The information at issue was needed by the Union in
order to engage in meaningful negotiations about the major con-
cessions demanded by Respondent over wages and benefits. Even
though the pension issue appears from the record to be equally
intractable, if not more so, as the wage and benefit concessions,
the pension issue is not directly affected by the information re-
quests. The evidence suggesting that the Union desired to resolve
the pension issue first and then turn to the wage and benefit con-
cessions does not convince me that the parties would have been at
impasse even if the information at issue had been conveyed to the
Union. Rather there is reason to believe that one side or the other
may well have decided to settle on the wage and benefit issues and
then turn to the pension matter, if Respondent had provided the
information requested to be produced. In fact, the Union did
make one or more minor concessions in certain areas such as holi-
days and vacations. In Cal-Pacific Furniture Mfg. Co., 228
NLRB 1337 (1977), the Board found that the willingness of a
party to make concessions in some areas suggested a willingness
to make further concessions in order to reach agreement. I add
that this would be particularly true in the instant case, had Re-
spondent turned over the information requested by the Union.
In light of my findings above, it is unnecessary to engage in any
detailed analysis of the Taft Broadcasting Co. factors recited
above. Nonetheless under the holding of Old Man’s Home of
Philadelphia, 265 NLRB 1632, 1634 (1982), as applied to the

21 If the Board finds that I erred in this finding, then under the au-
thority of Concrete Pipe & Products Corp., 305 NLRB 152 (1991),
enfd. sub nom. Steelworkers v. NLRB, 982 F.2d 240 (D.C. Cir. 1993),
the Union’s insistence on economic data which it had no right to, may
give rise to an objectively reasonable declaration of impasse. See also
E. I. du Pont & Co., 268 NLRB 1075 (1984).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1114
instant case, lack of impasse would be probable. Compare, Bell
Transit Co., 271 NLRB 1272 (1984).
I also find in light of my findings above that it is unnecessary to
determine whether Respondent has carried its burden of proof to
show that Respondent may escape liability under the Act for
premature declaration of impasse and subsequent implementation
when, in response to an employer’s “diligent and earnest efforts”
to engage in bargaining, a union insists on continually avoiding or
delaying bargaining; Serramonte Oldsmobile, 318 NLRB 80, 100
(1995), enfd. in part 86 F.3d 277 (D.C. Cir. 1996). In the present
case, under the holding of Bottom Line Enterprises, 302 NLRB
373, 374 (1991), enfd. mem. sub nom. Master Window Cleaning,
15 F.3d 1083 (9th Cir. 1994), it would be unlikely that Respond-
ent could make the necessary showing on this record. One or
more meetings were canceled due to the illness in the family of
Union Negotiator Billy and other delays may have been due to the
Union’s awaiting answers to the information requests.22 See Don
Lee Distributors, 322 NLRB 470 (1996).
I have not overlooked the Union’s alleged regressive bar-
gaining nor its failure in some cases to prepare written pro-
posals. To the cases cited by respondent at pages 37–40 of its
brief, I add the case of Golden Eagle Spotting Co. v. NLRB, 93
F.3d 468, 469 (8th Cir. 1996), where the court noted that re-
gressive bargaining is evidence of bad faith23 and Louisiana
Dock Co., 293 NLRB 233, 235, revd. in part 909 F.2d 281 (7th
Cir. 1990), where the Board said in another context, “a Union
cannot be heard to protest [an employer’s] unilateral actions
[where] it was the Union’s own acts which foreclosed effective
negotiations.” All of this is well and good but I find that where
Respondent failed to supply the information at issue, Respond-
ent effectively removed the Union’s conduct as an issue from
this case.
For the same reason, I leave open the question of whether Re-
spondent was engaged in “diligent and earnest efforts” to engage
in bargaining. For example, I note that in a few occasions, Re-
spondent submitted new proposals to the Union in which no
changes were evident.
For the reasons cited above, I conclude that Respondent’s im-
plementations of its final offers on March 6 (wages and health and
welfare), on July 1 (pension contribution rate), and August 21
(most remaining items), before negotiations reached impasse,
were in violation of Section 8(a)(5) and (1) of the Act. NLRB v.
Katz, 369 U.S. 736, 743 (1962); Wycoff Steel, Inc., 303 NLRB
517, 523 (1991).
3. The strike—economic or unfair labor practice
On or about March 5, the Union called a meeting of its mem-
bers. Here, Waggoner complained about the course of negotia-
tions and a strike was discussed, but not called because Respond-
ent did not implement all of the cuts and changes that were in the

22 On the other hand, parties are obligated to apply as great a degree
of diligence and promptness in arranging and conducting their collec-
tive-bargaining negotiations, as they display in other of their business
affairs. West Coast Liquidators, 205 NLRB 512, 516 (1973). The busy
schedule of its negotiators is no defense to this obligation. Lawrence
Textile Shrinking Co., 235 NLRB 1178, 1179 (1978). Labor relations
matters are urgent matters too. Insulating Fabricators, Inc., 144 NLRB
1325, 1328 (1963), enfd. 338 F.2d 1002 (4th Cir. 1964).
23 However, the fact that a proposal is “regressive” does not establish
that it is made in bad faith (citations omitted). There is nothing in
economics or law which suggests that employment terms must always
improve or even stay the same. Con Agra, Inc., supra, 321 NLRB at
947 (Member Cohen, dissenting in part).
last and final offer (Tr. 210). However, union officials told the
assembly they intended to file a charge with the Board against
Respondent for bad-faith bargaining.
On or about July 16, Waggoner called another meeting in
which all employees of the unionized rock, sand and gravel indus-
try attended, about 300–400 in number. Waggoner addressed the
members commenting on Respondent’s last, best and final offer,
the implementation and the Union’s charge filed with the NLRB.
Waggoner commented to the members that he felt Respondent
was engaged in bad-faith bargaining. Members unanimous ap-
proval of the strike which began on or about July 26 was based in
part over the implemented cuts in pay and benefits.
Turning to the picket signs carried by the strikers, I note that the
legend reads “Local 12” in print and “International Union of Op-
erating Engineers” in smaller black printing, “AFL–CIO,” “On
Strike” and “Unfair Labor Practices” printed in 6 to 8 inches bold
print. The parties stipulated that at certain points during the strike,
the picket signs lacked the words “Unfair Labor Practices” (Tr.
234–237).
Beginning in the fall, strikers distributed to the public union
handbills which read as follows:
Question?
Why are we on Strike Against
the Rock, Sand & Gravel and
Asphalt Industries?
The answer is simple—
EMPLOYERS GREED!
CalMat and Hanson control approximately 70 percent
of the materials in Los Angeles basin that goes into the mak-
ing of asphalt and concrete.
CalMat and Hanson had combined PROFITS OF OVER
$19 MILLION
in 1994. How did they reward their workers?
BY CUTTING WAGES & BENEFITS
25 PERCENT!
How much more PROFIT do they want?
How much is enough? You be the judge!

[R. Exh. 25.]

In a letter to the Mayor of Vista, California, dated September 28,
Waggoner purported to explain why members were on strike
“when the companies insisted on a 25 percent wage reduction for
the rock, sand and gravel industry, the workers voted to strike” (R.
Exh. 24). There is no mention in the letter or the handbill of any
alleged unfair labor practice by Respondent.
Although the evidence with respect to the picket signs, the
handbills and the letter to the mayor of Visa tends to show the
strike was economic in nature, e.g., there is no showing when the
“unfair labor practice” was added to the picket sign, I find the
strike is an unfair labor practice strike. As a basis for this conclu-
sion, I note Respondent’s unlawful refusal to supply information
in the context of bargaining proposals seeking substantial conces-
sions from the Union. I also note that at the Union meetings of
March 5 and July 16, union officials informed the membership
that Respondent was bargaining in bad faith. In these circum-
stances, there is a causal relationship between Respondent’s unfair
labor practices and the strike. Genstar Stone Products, supra, 317
NLRB at 1994. See also Henry Miller Spring Co., 273 NLRB
472, 477 (1984).
Unfair labor practice strikers are entitled to reinstatement upon
making an unconditional offer to return to work. Dilling Mechan-
ical Contractors, Inc., 107 F.3d 521 (7th Cir. 1997), and cannot be
CALMAT CO. 1115
permanently replaced. Walnut Creek Honda, 316 NLRB 139, 142
(1994), enfd. 89 F.3d 645 (9th Cir. 1997).
As of this writing, the strike continues, and no unconditional of-
fer to return to work has been made.
CONCLUSIONS OF LAW
1. The Respondent, CalMat Co., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union, International Union of Operating Engineers, Lo-
cal 12, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing and refusing to furnish the Union with the follow-
ing requested information, Respondent has violated Section
8(a)(5) and (1) of the Act.
(a) Any and all memos, reports, studies, records, or other doc-
uments within the Employer’s possession and/or control which
analyze any of the following factors with respect to the Employer:
competitors, productivity, labor and material cost, prices, profits,
and losses.
(b) As to all competitors, locations of all plants; number of Op-
erating Engineers employed; prices being charged; number of jobs
taken from CalMat.
(c) As to Triangle Rock, name of owners, information as to deal
at Irvine Lake, and how employees will be affected.
4. By implementing changes in its employees terms and condi-
tions of employment on or about March 6, July 1, and August 21,
at which time no valid bargaining impasse existed, Respondent
refused to bargain in good faith in violation of Section 8(a)(5) and
(1) of the Act.
5. The strike which began July 26, was an unfair labor practice
strike from its inception, and the striking employees are unfair
labor practice strikers.
6. The unfair labor practices found above constitute unfair labor
practices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
polices of the Act.
Specifically, I recommend that Respondent be ordered to pro-
vide the Union with the information requested on January 16 and
February 13 in a prompt manner.
I further recommend that Respondent be ordered to bargain in
good faith with the Union until agreement has been reached or a
valid impasse has been reached. In addition, Respondent must be
ordered to restore terms and conditions prevailing in the collec-
tive-bargaining agreement which expired on September 15, 1994,
and to make employees whole for any lost wages and benefits
incurred as a result of the unilateral changes made in those terms
and conditions of employment on or about March 6, July 1, and
August 21. Respondent shall be further ordered to maintain those
terms and conditions of employment in effect until the parties
have bargained to agreement or to impasse.
In accord with the Board’s established policy to require em-
ployers to reinstate unfair labor practice strikers within 5 days
after said strikers make a full and unconditional offer to return to
work, I will recommend such a provision in the Board’s Order.
Respondent also shall be ordered to cease engaging in any like
or related conduct.
[Recommended Order omitted from publication.]