Circle City Asphalt LLC

National Labor Relations Board - Board Decisions

Nov 30, 1999

330 N.L.R.B. 282 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 282
Circle City Asphalt, LLC and Operating Engineers
Local Union No. 103 a/w International Union of
Operating Engineers, AFL–CIO. Cases 25–CA–
26293, 25–CA–26463, and 25–CA–26546
November 30, 1999
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
On August 11, 1999, Administrative Law Judge Jerry
M. Hermele issued the attached decision. The General
Counsel filed limited exceptions and a brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.1
ORDER
The National Labor Relations Board orders that the
Respondent, Circle City Asphalt, LLC, Indianapolis,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain in good
faith with the Union as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

All operating engineer employees, including all plant
operators and all machine operators, but excluding all
office clerical employees, all guards and supervisors as
defined in the Act.

(b) Refusing to bargain collectively with the Union by
refusing to furnish information regarding the Respon-
dent’s employees as requested by the Union by letter
dated August 21, 1998.
(c) Failing to recall employees because they have en-
gaged in union activity.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the National La-
bor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Meet and bargain with the Union as the collective-
bargaining representative of the bargaining unit employ-
ees.

1 We shall modify the judge’s recommended Order to correct inad-
vertent errors and to conform to our decision in Indian Hills Care Cen-
ter, 321 NLRB 144 (1996), as modified in Excel Container, Inc., 325
NLRB 17 (1997). We also shall issue a new notice to employees to
conform to the Order.
(b) Provide the Union with the information regarding
the Respondent’s employees that the Union requested on
August 21, 1998.
(c) Within 14 days from the date of this Order, offer
Todd Brackman full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(d) Make Todd Brackman whole for any loss of earn-
ings and other benefits he may have suffered by reason
of the failure to recall him, to be computed as set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful failure
to recall Todd Brackman, and within 3 days thereafter
notify him in writing that this has been done and that the
failure to recall him will not be used against him in any
way.
(f) Preserve, and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of the records
if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Indianapolis, Indiana facility copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since August 21, 1998.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent has taken to comply.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
330 NLRB No. 33
CIRCLE CITY ASPHALT, LLC 283
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail and refuse to meet and bargain in
good faith with the Operating Engineers Local Union
No. 103 a/w International Union of Operating Engineers,
AFL–CIO as the collective-bargaining representative of
the employees in the following appropriate unit:

All operating engineer employees, including all
plant operators and all machine operators, but
excluding all office clerical employees, all
guards and supervisors as defined in the Act.

WE WILL NOT refuse to bargain collectively with the
Union by refusing to furnish information regarding Re-
spondent’s employees as requested by the Union by letter
dated August 21, 1998.
WE WILL NOT fail to recall employees because they
have engaged in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL meet and bargain with the Union as the col-
lective-bargaining representative of the bargaining unit
employees.
WE WILL provide the Union with the information re-
garding the employees that it requested since August 21,
1998.
WE WILL, within 14 days from the date of the Board’s
Order, offer Todd Brackman full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Todd Brackman whole for any loss of
earnings and other benefits resulting from the failure to
recall him, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the failure
to recall Todd Brackman, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the failure to recall him will not be used against
him in any way.
CIRCLE CITY ASPHALT, LLC

Joanne C. Mages, Esq., for the General Counsel.
S. Douglas Trolson, Esq. (Hoffman, Drewry, Hancock & Sim-
mons), of Indianapolis, Indiana, for the Respondent.
William R. Groth, Esq. (Fallenwarth, Dennerline, Groth &
Towe), of Indianapolis, Indiana, for the Charging Party.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. In a May
11, 1999 complaint, the General Counsel alleges that the Re-
spondent, Circle City Asphalt, LLC, violated Section 8(a)(1)
and (5) of the National Labor Relations Act by failing to fur-
nish information in 1998 regarding the Respondent’s employ-
ees to the Operating Engineers Local Union No. 103, a/w Inter-
national Union of Operating Engineers, AFL–CIO (the Union).
The General Counsel also alleges a violation of Section 8(a)(1)
and (5) in 1999 when the Respondent failed to meet and bar-
gain collectively with the Union. Finally, it is alleged that the
Respondent violated Section 8(a)(1) and (3) of the Act in
March 1999 when it refused to recall employee Todd Brackman
for the 1999 production season. The Respondent denied all of
these allegations in its May 12, 1999 answer.
This case was tried on May 27, 1999, in Indianapolis, Indi-
ana, during which the General Counsel called five witnesses
and introduced written evidence. The Respondent called only
one witness and introduced no written evidence. Briefs were
then filed on June 30, 1999, by the General Counsel and the
Respondent.
II. FINDINGS OF FACT
The Respondent, Circle City Asphalt, LLC (Circle City), lo-
cated in Indianapolis, produces and sells asphalt. Its chairman
is Brian Easley, who owns two other companies in Indiana
which supply Circle City with material. Circle City annually
sells and ships over $50,000 in goods to out-of-state customers.
At its Indianapolis plant, there are three office workers, one
plant supervisor, one loader operator, and one groundskeeper.
Because of cold winter weather, Circle City’s plant operates
from April to November, at which time the nonoffice employ-
ees are typically laid off until the new season (Tr. 19–21, 41,
46, 69; GC Exh. 1(n)).
Circle City’s Indianapolis plant opened in June 1996 (Tr.
33). On July 1, 1996, the Respondent signed a consent agree-
ment with the Union, recognizing it as the employees’ bargain-
ing representative. The agreement also provided that:

(2) The parties do hereby adopt any and all agreements
traditionally referred to as Construction agreements as ne-
gotiated by and between the various contractor associa-
tions and International Union of Operating Engineers, Lo-
cal 103, for all forms of construction industry work within
the territorial jurisdiction of the above state UNION.
. . . .

(4) THIS AGREEMENT OF CONSENT, shall be effective as
of JULY 1, 1996 and remain in effect to and including the
expiration dates of these Agreements first adopted herein.
The EMPLOYER specifically adopts and agrees to be bound
as above set out in (2) by any Agreements subsequent to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 284
the expiration date of these Agreements first adopted
herein entered into, between the UNION and the Associa-
tions referred to above or any employers covering the
same work, unless notice of termination or amendment of
any of the Agreements is given in the manner provided
herein.
(5) Either party desiring to amend or terminate any or
all Agreements must notify the other in writing by certi-
fied or registered mail, return receipt requested, at least
ninety (90) days prior to the expiration of the Agreements
first adopted herein or the expiration date of any subse-
quent Agreements adopted as herein provided.

(GC Exh. 2.) The aforementioned construction agreement be-
tween the Union and the Indiana Constructors, Inc., labor rela-
tions division, ran from April 1, 1996, to March 31, 1999 (GC
Exh. 3). Pursuant to its agreement with the Respondent, the
Union’s business agent, John Nunley, dispatched eight or nine
employees to Circle City during the lifespan of the collective-
bargaining relationship (Tr. 64, 66, 83).
One of the first such dispatches was Todd Brackman, who
was sent to Circle City in May 1997 to work as a grounds-
keeper (Tr. 32–33, 75). Brackman was then promoted to the
job of loader operator in the fall of 1997 (Tr. 98–99). At the
end of the 1997 season, Brackman was laid off from January
1998 to March 1998. During this period, however, he contin-
ued to perform odd jobs for Circle City at less-than-union
wages, as Easley told him “we could go around the union” (Tr.
99–100).
Easley fired Plant Manager Dave Blanton in January 1998,
and thereafter asked the Union for a replacement. But Nunley
said there was nobody available (Tr. 85, 133–134). So, Easley
asked Brackman to take the job (Tr. 140–141). Brackman de-
clined, however, saying he was unqualified (Tr. 101).
On February 18, 1998, Easley wrote a letter to the Union
giving 90 days’ notice of Circle City’s “intent to terminate our
participation agreement” and stating that “Circle City Asphalt
will conform to the terms of the current agreement until May
18, 1998” (GC Exh. 4). On February 24, 1998, union lawyer
William Groth responded that Circle City “is seeking to prema-
turely extricate itself from the current collective bargaining
agreement” which did not expire until March 31, 1999 (G.C.
Ex. 5). Circle City then responded with a March 2, 1998 letter
stating that the February 18, 1998 letter was merely an early
notice that Circle City did not intend to continue its relationship
with the Union beyond March 31, 1999 (GC. Exh. 6).
Brackman returned to work in the spring of 1998 as the
loader operator. Upon returning, he referred Jim Bullock to
Easley for the open groundskeeper job. According to Brack-
man, Easley told Bullock that “[y]ou’re not going to join the
union, and if you do, you’re fired.” (Tr. 102–103.) Easley de-
nied ever discussing the Union with Bullock, and specifically
denied ever threatening Bullock with termination (Tr. 142).
There was no permanent plant manager in the first half of 1998
(Tr. 60). Thus, Easley asked Brackman again, in May and the
fall of 1998, about taking the plant manager job. In this con-
nection, Easley said he was “tired of the union,” asked Brack-
man if he was “talking to the union,” and reminded Brackman
that Brackman would have to choose between the Union and
the plant manager job (Tr. 104, 141). Because Brackman never
accepted the manager’s job, Easley hired James King on an
interim basis for the 1998 season (Tr. 61).
In mid-1998 Brackman was injured at work. After taking
time off to recover, Easley testified that Brackman’s job per-
formance went downhill. Specifically, Easley testified that
Brackman refused overtime assignments, did not get along with
King, had a fight with his father on the company premises, let
the machinery become untidy, watched television on the job,
and let unwanted big rocks escape into the asphalt mixture (Tr.
45–53, 58). Nevertheless, Easley never disciplined Brackman
(Tr. 62, 99). Indeed, Easley explained that he did not typically
discipline his nonadministrative employees because they did
not work full time, 12 months a year (Tr. 144). Moreover,
Easley still wanted Brackman to be the permanent plant man-
ager in late 1998 because “he still had a potential” (Tr. 148–
149). But Brackman denied fighting with his father, goofing off
to watch television, or negligently contaminating the asphalt
with big rocks (Tr. 109, 113–114).
At the end of the 1998 season, Easley again laid off Brack-
man, effective December 18 (GC Exh. 11). At the company
Christmas dinner, Easley told Brackman that “he didn’t want
me to go back on the board at the union” and that he would be
recalled for work in March (Tr. 105–106, 130–131). But in
February 1999, Easley told Brackman that he might not be
recalled because “[t]he Union’s gave me so many problems, it
cost me so much money.” But Easley added that “if you went
salary, that might be a different situation” (Tr. 108). Also in
February, Easley interviewed retired union worker Willie Bev-
erly for the plant manager job, but Beverly was too old to take
the job on a full-time basis (Tr. 123–126, 137–140). Then, in a
March 2, 1999 letter, Easley notified Brackman that Circle City
was “not requesting your services for the upcoming 1999 pro-
duction season.” (GC Exh. 12.) According to Easley, he
learned that a former experienced employee and union member,
James Dalton, would be available for the job. So, Easley con-
tacted the Union and requested Dalton’s services in March (Tr.
43–44, 76–77, 134–135; GC Exh. 14).
In 1998, Union Business Agent Nunley learned that Circle
City might not have been paying full benefits to the employees
and that the Company might be employing nonunion workers
(Tr. 66–67). So, on August 21, 1998, the Union’s lawyer sent a
letter to the Company’s lawyer requesting:

[T]he names, hire dates, job classifications, wage rates, ad-
dresses and Social Security numbers of all non-supervisory
and non-clerical persons who presently or in the past twelve
(12) months have been employed by your client, Circle City
Asphalt. The purpose for this request is to determine whether
Circle City Asphalt is complying with the terms of its collec-
tive bargaining agreement with Local 103. We request that
this information be provided us within ten (10) days from the
date of your receipt of this letter.

(GC Exh 7.) The Respondent never provided this information
(Tr. 10–11). But according to Easley, he provided that re-
quested information to his lawyer (Tr. 28). Also, Nunley con-
ceded that Circle City paid the money owed for back benefits
(Tr. 82). Then, on March 18, 1999, Nunley sent the following
certified letter to Easley:

As you know, by letter dated March 2, 1998, your attorney in-
formed us that you intended to terminate your company’s
“participation under the Agreement when the Agreement ex-
pires March 31, 1999.” Because of the pending unfair labor
practice charges against your company, you are prohibited
from making any unilateral changes on or after March 31,
CIRCLE CITY ASPHALT, LLC 285
1999 and you are required to adhere to all the terms and con-
ditions of the current Agreement as long as we are engaged in
good faith bargaining. We are requesting that such bargaining
begin, and I am requesting that you contact me with your
available dates and times to begin the bargaining process. I
look forward to hearing from you.

(GC Exh 8.) The Union never received a response and the
letter was returned undelivered (GC Exh. 13; Tr. 73–74). So,
the Union’s lawyer sent the same letter to the Respondent’s
lawyer on April 15, 1999 (GC Exh. 9). The Respondent did not
respond to either the March 18 or April 15, 1999 letters (Tr.
10–11). Although a new contract was reached between the
Union and the Indiana Constructors in 1999, the Union did not
ask Circle City to sign a new consent agreement (Tr. 88).
III. ANALYSIS
The General Counsel’s first allegation concerns the Respon-
dent’s failure to provide information, such as names and wage
rates, regarding bargaining unit employees for the period Au-
gust 1997 to August 1998. The Union sought this information
on August 21, 1998, because it feared that Circle City was em-
ploying nonunion employees in violation of the 1996 consent
agreement. But the Union’s audit of Circle City’s operation
apparently showed no such violation. Nevertheless, Circle City
admitted that it did not supply this information.
It appears that the bargaining unit may have consisted of
only one employee—Todd Brackman—during the relevant
time period for which the Union sought its information, and
perhaps the groundsman as well. In either event, the Respon-
dent’s failure to provide this limited information was much ado
about very little, but nevertheless a violation of Section 8(a)(1)
and (5) of the Act. Accordingly, the Respondent will be re-
quired to provide the requested information.
Second, the General Counsel alleges that the Respondent
failed to bargain with the Union over the expired March 31,
1999 agreement. Indeed, on March 18, 1999, the Union re-
quested that the Respondent commence bargaining, and the
Respondent admitted that it has not met with the Union to bar-
gain. In its brief, however, the Respondent contends that there
is “no evidence” that it refused to bargain, such as testimony
from a union witness. Moreover, it notes that the Union never
asked Easley to sign a new consent agreement after a new con-
tract was reached in 1999 between the Union and Indiana Con-
structors.
Clearly, the evidence shows that the Union requested that the
Respondent bargain and the Respondent admitted that it did
not, notwithstanding the Union’s failure to send an engraved
invitation. Therefore, the preponderance of the evidence is that
the Respondent did not bargain. Also, it is no defense that the
Respondent notified the Union that it did not desire to continue
its relationship with the Union beyond March 31, 1999. In-
deed, the Respondent had previously recognized the Union as
the employees’ bargaining representative. Moreover, the Re-
spondent has not asserted a defense that it was exempt from
bargaining because the bargaining unit consisted of only one
full-time employee. See D & B Masonry, 275 NLRB 1403,
1408 (1985). Therefore, it is concluded that the refusal to bar-
gain likewise violated Section 8(a)(1) and (5). Accordingly, the
Respondent will be required to bargain with the Union.
Third and finally, the General Counsel alleges that the Re-
spondent failed to recall Todd Brackman in early 1999 because
of Brackman’s union activity. The Respondent, however, de-
nies any union animus and further notes that it hired another
union member, James Dalton, instead of Brackman for the 1999
season. The parties’ competing claims must be evaluated pur-
suant to the standards of Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); approved in Transportation Management Corp., 462
U.S. 383 (1983). Thus, to prove its 8(a)(1) and (3) allegations
regarding the Respondent’s failure to recall Brackman, the
General Counsel must establish, by a preponderance of the
evidence, that his protected union activity was a motivating
factor in the Respondent’s decision not to recall him. If so
established, the burden then shifts to the Respondent to show,
also by a preponderance of the evidence, that its action was
based on a lawful reason and would have occurred absent the
protected activity.
I conclude that the General Counsel has met his Wright Line
burden. First, Easley made numerous antiunion remarks to
Brackman in connection with his efforts to persuade Brackman
to leave the union job of loader operator and become the plant
manager. For example, in 1998 Easley said he was tired of the
Union and told Brackman to choose between the two positions.
Then in early 1999, Easley told Brackman that he might not be
recalled because “the union’s gave me so many problems, it
cost me so much money.” Second, it is abundantly clear that
Easley wanted to disassociate Circle City from Local 103 be-
ginning in February 1998, as evidenced by his premature at-
tempt to terminate the 1996–1999 consent agreement. Also in
early 1998, he hired Brackman to perform off-season work in
an effort to “go around the union.” And thereafter, as discussed
supra, Easley attempted to persuade Brackman—perhaps its
only employee at the time—to leave the Union. Although the
Respondent correctly opines that mere free expression of a
company’s desire to remain nonunion does not establish union
animus, I believe that Circle City’s actions and statements, to
switch from union to nonunion, are a different matter. Third,
the General Counsel correctly notes that the Respondent’s fail-
ure to provide the Union with requested information and failure
to bargain constitutes evidence of union animus. Based on the
foregoing, it is therefore concluded that the preponderance of
the evidence establishes that Circle City possessed union ani-
mus and an illegal motive not to recall Brackman.3
Turning to the Respondent’s defense, it is glaring that the re-
cord contains no reason at all for Easley’s March 2, 1999 deci-
sion that Brackman’s services were not being requested for the
upcoming season. Although there is some evidence of Brack-
man’s poor job performance in late 1998, the Respondent does
not allege this to be a factor in Brackman’s nonrecall for 1999.
Indeed, Easley testified that he still wanted Brackman to be-
come the plant manager in late 1998. As for the Respondent’s
argument that Easley wanted to replace Brackman with the
“more qualified” union member, James Dalton, the record con-
tains no evidence of Dalton’s superior qualifications other than
Easley’s self-serving characterization. Moreover, the Respon-
dent misreads the record in claiming that Easley was trying to
hire the “superior” Dalton as early as 1998. Also, Easley’s

3 This analysis does not take into account the disputed evidence re-
garding Easley’s alleged threat to groundsman Jim Bullock that Bul-
lock would be fired if he joined the Union. Easley denied the threat,
Brackman testified that Easley said it, and Bullock never testified. In
view of the relatively equal credibility of Easley and Brackman, and the
resolution of the Wright Line matter above, it is unnecessary to decide
whether Easley in fact made the threat.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286
attempt to hire retired union member Willie Beverly in 1999
further belies the contention about Dalton’s superiority. The
plain fact is that Easley punished Brackman for not accepting a
management position. Thus, the Respondent’s subsequent hir-
ing of Dalton, as a union replacement for Brackman, does not
absolve City Circle of its violation of Section 8(a)(1) and (3)
regarding Brackman. Therefore, the Respondent will be or-
dered to offer Brackman reinstatement, with appropriate back-
pay.
CONCLUSIONS OF LAW
1. The Respondent, Circle City Asphalt, LLC, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Operating Engineers Local Union No. 103,
a/w International Union of Operating Engineers, AFL–CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Pursuant to paragraphs 5 and 9 of the General Counsel’s
complaint, the Respondent violated Section 8(a)(1) and (3) of
the Act by failing to recall employee Todd Brackman for the
1999 production season.
4. Pursuant to paragraphs 7 and 10 of the complaint, the Re-
spondent violated Section 8(a)(1) and (5) of the Act by failing
to provide the Union since August 21, 1998, with information
regarding the Respondent’s employees.
5. Pursuant to paragraph 8 and 10 of the complaint, the Re-
spondent violated Section 8(a)(1) and (5) of the Act by failing
to meet and bargain with the Union after March 18, 1999.
6. The unfair labor practices of the Respondent, set forth in
paragraphs 3, 4, and 5, above, affect commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]