Concrete Co.

National Labor Relations Board - Board Decisions

Dec 19, 2001

336 N.L.R.B. 1311 (N.L.R.B. 2001)

CONCRETE CO. 1311
The Concrete Company and International Brother-
hood of Teamsters, Local 991. Cases 15–CA–
16039 and 15–CA–16096
December 19, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On September 11, 2001, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
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,1 and conclusions and
to adopt the recommended Order2 as modified below.
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) by informing employees of its predecessor
“[t]here’s no union; the Union’s gone.” We agree. We
further agree that because of the statement, the Respon-
dent was not privileged to unilaterally set initial terms
and conditions of employment.3 Accordingly, we adopt
the judge’s remedy requiring the Respondent to restore
the terms and conditions of employment under the prede-
cessor’s contract with the Union until it negotiates a new
contract with the Union or negotiates to impasse. See
Advanced Stretchforming International, 323 NLRB 529,
531 (1997), enfd. in part and remanded for further con-
sideration 233 F.3d 1176 (9th Cir. 2000). Such a remedy
is consistent with our previous decisions, and with the
equitable principle that any uncertainty created by the
respondent’s own misconduct should be resolved against
it. See, e.g., State Distributing Co., 282 NLRB 1048,
1048–1050 (1987). The courts have enforced this re-
quirement in similar cases.4

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear 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 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge’s recommended remedy shall be modified to specify that
the Respondent shall make whole unit employees for losses resulting
from its unlawful unilateral changes in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), with interest to be com-
puted in the manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Any additional amounts owed to fringe benefit
funds shall be resolved at the compliance stage of this proceeding.
Merryweather Optical Co., 240 NLRB 1213 (1979). We shall also
modify the judge’s recommended Order in accordance with our recent
decision in Ferguson Electric Co., 335 NLRB 15 (2001).
3 We do not rely on the Respondent’s unlawful refusal to recognize
and bargain with the Union as the employees’ collective-bargaining
representative. Rather, as discussed above, we rely on the judge’s
finding that, prior to refusing to recognize the Union, the Respondent
informed employees that there would be no union at its facilities.
2. The judge concluded that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to hire Ti-
tus James Edwards and Calvin Mack Taite on December
20, 2000, because of their respective positions as job
steward and alternate job steward. The Respondent ex-
cepts, asserting, in part, that it lawfully did not hire the
discriminatees both because it did not have positions
available for all of the predecessor’s employees and be-
cause Edwards and Taite were among the least experi-
enced of the predecessor’s employees.
We find that the evidence set forth by the judge amply
supports the judge’s finding that the Respondent violated
Section 8(a)(3) and (1) by refusing to hire Edwards and
Taite. In this regard, consistent with our decision in
FES, 331 NLRB 9, 10 (2000), the judge found that Re-
spondent had concrete plans to hire, the discriminatees
had experience or training relevant to the announced or
generally known requirements for the positions, and an-
tiunion animus was a motivating factor in the decision
not to hire them. Further, the judge rejected the Respon-
dent’s contention that it did not have positions available
for all of the predecessor’s employees and that it chose
not to hire Edwards and Taite because they were among
the least experienced of the predecessor’s employees.
The judge found no credible evidence in support of this
contention, finding instead that it was revealed as pretext
by the Respondent’s December 20 hiring of employees
of the predecessor with less experience than Edwards and
4 See Operating Engineers Local 465 v. NLRB, mem. 221 F.3d 196
(D.C. Cir. 2000), enfg. Daufuskie Island Club & Resort, 328 NLRB
415 (1999); Pace Industries v. NLRB, 118 F.3d 585, 593–594 (8th Cir.
1997), cert. denied 523 U.S. 1020 (1998); New Breed Leasing Corp. v.
NLRB, 111 F.3d 1460, 1468 (9th Cir. 1997), cert. denied 522 U.S. 948
(1997); NLRB v. Staten Island Hotel Ltd. Partnership, 101 F.3d 858,
862 (2d Cir. 1996); NLRB v. New Horizons Hotel Corp., 49 F.3d 795,
806 (1st Cir. 1995); U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1322–
1323 (7th Cir. 1991), cert. denied 503 U.S. 936 (1992); Systems Man-
agement, Inc. v. NLRB, 901 F.2d 297, 307 (3d Cir. 1990); American
Press, Inc. v. NLRB, 833 F.2d 621, 627 (6th Cir. 1987). Cf. Advanced
Stretchforming, supra, 233 F.3d at 1183–1184 (restoration of initial
terms until successor negotiates new contract or to impasse is required
unless successor shows through definitive evidence that it would not
have agreed to the initial terms even if it had acted lawfully). But see
Capital Cleaning Contractors v. NLRB, 147 F.3d 999, 1010–1012
(D.C. Cir. 1998).
Our dissenting colleague takes particular exception to the fact that
the judge’s remedy requires the Respondent to cancel only those unilat-
eral changes that the Union requests be cancelled. This remedy is
consistent with the Board’s standard approach to redressing the viola-
tion found. See Daufuskie Island Club & Resort, supra at 424; Brown
& Root, Inc., 334 NLRB 628, 632 (2001); Waterbury Hotel Manage-
ment LLC, 333 NLRB 482, 486 (2001). Our approach is designed to
effectively take into account the desires of the employees affected by
the Respondent’s misconduct. See KXTV, 139 NLRB 93, 96 (1962).
336 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1312
Taite, and by its subsequent hiring of two employees not
employed by the predecessor, one of whom had less ex-
perience than Edwards and Taite and the other who had
no experience. Under these circumstances, assuming
without deciding that FES is applicable in cases involv-
ing refusals to hire in the successorship context, we agree
with the judge that the Respondent failed to rebut the
General Counsel’s initial showing that union animus
motivated the Respondent’s decision not to hire the two
discriminatees.
Alternatively, we find, for the reasons stated by the
judge, that the General Counsel has established under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), that
Edwards and Taite’s respective positions as job steward
and alternate job steward were a motivating factor in the
Respondent’s decision not to hire them. We further
agree with the judge that the Respondent failed to estab-
lish its affirmative defense under Wright Line that it
would have refused to hire Edwards and Taite in any
event. In this regard, as discussed above, the judge
found that the reasons relied on by the Respondent for
refusing to hire Edwards and Taite were pretextual.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, The
Concrete Company, Columbus, Georgia, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(c):
“(c) Within 14 days of this Order, offer Titus James
Edwards and Calvin Mack Taite jobs that they applied
for, or would have applied for, had it not been for the
Respondent’s refusal to employ them, or if such jobs no
longer exist, to substantially equivalent positions of em-
ployment, without prejudice to their seniority or any
rights or privileges previously enjoyed.”
2. Substitute the following for paragraph 2(f):
“(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

CHAIRMAN HURTGEN, dissenting in part.
I agree that the Respondent’s statement (that there
would be no union at its facilities) violated Section
8(a)(1). However, I do not agree that the statement
should cause a forfeiture of a successor employer’s right
to unilaterally set initial terms and conditions of em-
ployment. See my dissenting opinion in Pacific Custom
Materials, 327 NLRB 75 (1998).
In addition, and for the same reason, I would calculate
backpay under Respondent’s initial terms and conditions.
Further, I particularly object to the judge’s remedy,
adopted by the majority, that would permit the Union to
“cherry pick”, i.e., to choose Respondent’s terms if it
likes them and the predecessor’s terms if it does not.
This “best of both world’s remedy” has no basis in law
or remedial policy.
My colleagues rely on cases where a union is given the
option to require the recission of, or to leave in place, a
unilateral change. However, where, as here, the change
is a package of terms and conditions of employment, I
know of no authority that would permit the union to
“cherry pick” from among the package. That remedy
leaves the union free to impose, on the employer, a set of
terms and conditions that did not exist before the change,
that the respondent never implemented, and that it never
agreed to. Further, it is obvious that the Union would
choose to retain the economically beneficial parts of the
package and reject the economically detrimental ones.
The result would be a package that is more expensive
than the prior terms and the extant ones. Such a remedy
does not restore the status quo ante; it is punitive. I
would not impose it.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 tell you that there will be no Union at
our Mobile, Alabama facilities.
CONCRETE CO. 1313
WE WILL NOT discriminatorily refuse to hire indi-
viduals because they have engaged in union activities.
WE WILL NOT refuse to recognize and bargain col-
lectively with International Brotherhood of Teamsters,
Local 991, as your exclusive collective-bargaining repre-
sentative, in the following appropriate unit:
All drivers, loader operators, mechanics, and mechan-
ics helpers employed by the Employer at its Theodore,
Alabama, and State Docks, Mobile, Alabama, facilities;
excluding all salespeople, clerical/dispatchers, office
clerical employees, guards, professional employees,
and supervisors as defined in the Act.
WE WILL NOT change your wages, hours, terms and
conditions of employment without first notifying, and
bargaining with, the International Brotherhood of Team-
sters, Local 991.
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, on request of the Union, cancel any depar-
tures from your terms and conditions of employment as
they existed immediately before our assumption of op-
erations, and WE WILL make you whole for any losses
you incurred as a result of any unilateral changes that the
Union requests be rescinded, plus interest.
WE WILL, within 14 days of the Board’s Order, offer
Titus James Edwards and Calvin Mack Taite jobs that
they applied for, or would have applied for, had it not
been for the Respondent’s refusal to employ them, or if
such jobs no longer exist, to substantially equivalent po-
sitions of employment, without prejudice to their senior-
ity or any rights or privileges previously enjoyed.
WE WILL make them whole for any loss of earnings
and other benefits resulting from our refusal to employ
them, less any net interim earnings, plus interest.
WE WILL, within 14 days of the Board’s Order, re-
move from our files any reference to the refusal to hire
Titus James Edwards and Calvin Mack Taite and, within
3 days thereafter, notify them in writing that this has
been done and that the refusal to hire them on December
20, 2000, will not be used against them in any way.

THE CONCRETE COMPANY

Charles R. Rogers and Paul J. Buckley, Esqs., for the General
Counsel.
George G. Boyd Jr. and William L. Tucker, Esqs., for the Re-
spondent.
Charles Sullivan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This
case was tried in Mobile, Alabama, on July 17 and 18, 2001.
The charge in Case 15–CA–16039 was filed on January 8,
2001, and was amended on March 28, 2001. The charge in
Case 15–CA–16096 was filed on February 26, 2001, and was
amended on March 22, 2001. The consolidated complaint is-
sued on May 31, 2001. The complaint alleges that the Respon-
dent, The Concrete Company, is a successor employer to
Southern Ready Mix, Inc., and that the Respondent violated
Section 8(a)(1) and (5) of the National Labor Relations Act by
failing to recognize and bargain with the Union and by making
various unilateral changes in employees’ terms and conditions
of employment. The complaint further alleges that the Respon-
dent violated Section 8(a)(1) and (3) of the Act by refusing to
hire Titus James Edwards and Calvin Mack Taite. At the hear-
ing, the complaint was amended to include a statement alleged
to violate Section 8(a)(1) of the Act. The Respondent’s answer
denies successorship and all violations of the Act. I find that the
Respondent is a successor and that it violated the Act substan-
tially as alleged in the amended complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, the Concrete Company (Concrete), is a
corporation headquartered in Columbus, Georgia, engaged in
the business of producing and delivering concrete at various
locations, including its facilities at Mobile, Alabama. During
the past year the Respondent purchased and received goods
valued in excess of $50,000 directly from points outside the
State of Georgia. The Respondent admits, and I find and con-
clude that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Respondent amended its answer at the hearing to admit,
and I find and conclude, that International Brotherhood of
Teamsters, Local 991, the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Union was certified as the collective-bargaining repre-
sentative of the employees of Southern Ready Mix, Inc. on
October 4, 1999, in the following appropriate unit:

All drivers, loader operators, mechanics, and mechanics
helpers employed by the Employer at its Theodore, Ala-
bama, and State Docks, Mobile, Alabama, facilities; ex-
cluding all salespeople, clerical/dispatchers, office clerical
employees, guards, professional employees, and supervi-
sors as defined in the Act.

On January 24, 2000, the Union and Southern Ready Mix
entered into a collective-bargaining agreement that was effec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1314
tive by its terms from February 1, 2000,1 through January 31,
2003.
Daniel Allen was the general manager for Southern Ready
Mix in the Mobile area. He holds the same position with Con-
crete. Around Thanksgiving, he learned that U.S. Aggregates,
the parent of Southern Ready Mix, was seeking to divest itself
of Ready Mix concrete operations. In early December, at an
employee safety meeting/Christmas Party, held at a local res-
taurant, Allen was asked about the possible sale of Southern
Ready Mix. He recalls responding that whatever happened “we
would be better off.”
Southern Ready Mix’s facilities in Mobile were sold to
Ready Mix USA at 9 a.m. on December 18, and then sold to
Concrete. Ready Mix USA never operated the business.
Before addressing the numerous unilateral changes that are
alleged in the complaint, it is necessary to determine whether
Concrete is a successor to Southern Ready Mix at its Mobile
facilities, and, if so, whether it was privileged to determine the
initial terms and conditions of the employment of the employ-
ees in the unit without notice to and bargaining with the Union.
B. Successor Employer
1. Facts
On Saturday, December 16, pursuant to the pending sale to
Ready Mix USA, Allen met with two representatives from that
company, and they performed a physical inventory of the
equipment of Southern Ready Mix. This process was repeated
on Sunday, December 17, with representatives of Concrete,
Senior Vice President Jim Goudie, who is over all ready mix
concrete operations, and Vice President Todd Daigle. In con-
versation with Allen on Sunday, December 17, and Monday,
December 18, Goudie stated that Concrete “would be operating
one plant, the Theodore plant, instead of operating two plants.
We would base all of our drivers at the Theodore plant and just
use the State Docks plant as a satellite plant, open as needed.”
Goudie told Allen that Concrete “would not be hiring all the
employees, so I needed to be thinking about that. That we had
too many. That they [Concrete] operated very lean.” Allen testi-
fied that he disagreed on both counts and told Goudie that he
“thought we needed all the employees and . . . both plants in
order, you know, to . . . continue good service to our customers,
but I lost both arguments.” Goudie also informed Allen that he
did not want a union.
On Monday, December 18, the drivers of the ready mix con-
crete trucks reported to work as normal and made deliveries.
Ronnie Sutton, plant manager at the State Docks plant, in-
formed Titus James Edwards, job steward at the State Docks
plant, that the employees were no longer employed by Southern
Ready Mix, that there was a new owner, Frank Foley, out of
Columbus, Georgia. Foley is the president of the Concrete
Company.
Goudie denied that Concrete had assumed operational re-
sponsibility on Monday, testifying that “we were kind of wait-
ing for news . . . that all the documents had been signed.” Al-
though the Respondent’s brief asserts that the agreement be-
tween Ready Mix USA and Concrete was not executed “until

1 All dates are in 2000 unless otherwise indicated.
Thursday of the following week,” this assertion is unsupported
by any record evidence. The agreement was not placed into
evidence, and it was not offered as a posthearing exhibit. When,
at the hearing, Goudie was asked when the agreement was ac-
tually executed, he responded that the “attorneys would proba-
bly know better than I do.”
The date of the formal execution of the agreement between
Concrete and Ready Mix USA is immaterial. The record is
clear that Concrete had assumed operational responsibility by
December 19. The Respondent stipulated that “[o]n or about
December 18, 2000, Respondent implemented the following
initial terms and conditions of employment of employees . . . at
its Theodore and Mobile facilities.” On Tuesday, December 19,
Goudie brought “some of our key people” to Mobile to assist in
processing employee applications. Concrete also began exercis-
ing control over the work force. On December 19, Goudie
wrote Allen a note reporting that, at 11:30 a.m., he had ob-
served the loader operator at the Theodore plant asleep in his
loader. On the afternoon of December 19, Allen called this
employee aside and stated that he could not fill out an applica-
tion for employment with Concrete because “my boss will not
hire you back because you were in the loader asleep.” On the
afternoon of Tuesday, December 19, the drivers were called
from their routes to the office at the Theodore plant where they
were provided with job applications by Concrete. Late in the
afternoon, Allen directed all of the employees who were filling
out applications to report to the garage shop area for a meeting.
At the meeting, Allen introduced Vice President Goudie to the
employees, and Goudie introduced the management officials of
The Concrete Company whom he had brought to Mobile.
Goudie and the management officials addressed the employees
regarding Concrete’s operations and informed the employees of
the company’s benefit plans.
The Board, in Golden Cross Health Care of Fresno, 314
NLRB 1201 (1994), affirmed the findings of the administrative
law judge that “successorship can occur during a transition
period,” that the critical inquiry is the date a successor assumes
control over the operations of the predecessor, not the date that
“ownership actually changes hands.” Id at 1205. See also East
Belden Corp., 239 NLRB 776, 791 (1978), enfd. mem. 634
F.2d 635 (9th Cir. 1980).
In the course of the meeting on December 19, Job Steward
Edwards recalled that Goudie stated that The Concrete Com-
pany owned 35 companies and “none of them was union and
none of them would be union.” Employee Maurice Edwards
acknowledged that he could not report precisely what Goudie
said. Alternate Job Steward Calvin Mack Taite recalls that
Goudie was asked about the Union and that Goudie replied that
“[t]here’s no Union; the Union’s gone.” Goudie then continued
to speak about the various benefits offered by The Concrete
Company. Goudie testified, “I’ve been . . . trying to remember .
. . . I think . . . . I said that we were not union. The Concrete
Company was a non-union company. . . . I think I said that . . .
when we bought Augusta.” The Respondent, contending that
the sale to Concrete had not been finalized, argues that this
statement was correct when Goudie made it. Goudie’s
recollection, which I do not credit, was uncertain and dependent
on his recalling what he thought he said when the Respondent
CONCRETE CO. 1315
“bought Augusta.” Goudie did not deny stating that there would
be no union at Mobile. Whether Goudie stated that none of the
Respondent’s facilities “would be union,” as recalled by Ed-
wards, or whether he stated, “[t]here’s no union; the Union’s
gone,” as recalled by Taite, the foregoing mutually corrobora-
tive and credible testimony establishes that Goudie made clear
to the employees that there would be no union at the Mobile
facilities.
When the meeting concluded, the employees who had not
completed their applications were directed to do so during the
evening and to submit them the following day.
Concrete hired all but seven of the Southern Ready Mix em-
ployees.
Following the meeting, Edwards telephoned Union Business
Agent Charles Sullivan and informed him that Concrete had
held a meeting with the employees in which the employees
were told that there would be no union and that Concrete would
be hiring. Sullivan wrote Concrete on January 5, 2001, inquir-
ing whether Concrete intended to abide by the collective-
bargaining agreement and, if not, when the parties could com-
mence contract negotiations. Concrete responded on January
21, 2001, stating that it declined both options.
Concrete uses a formula in the production of its concrete that
is different from the formula used by Southern Ready Mix.
Allen explained that the aggregate used by Concrete is river
rock whereas Southern used limestone. The basic ingredient of
the concrete, portland cement, is the same. The final product,
ready-mix concrete, is the same. The Ready Mix trucks are
loaded from the same plants as those operated by Southern,
although all drivers now report to the Theodore plant and the
State Docks plant is used only when necessary. Trucks used by
the drivers have been repainted, and some new trucks have
been added to the fleet, but the daily routine of the drivers has
not changed. They go to the plant where their trucks are filled
and they then deliver concrete to customers. There is no evi-
dence of any change in the customer base served by Concrete.
As Manager Allen explained, “[Y]ou’re always trying to pick
up customers, and unfortunately you lose customers.” The
types of customers served by Concrete are the same as those
served by Southern Ready Mix.
Goudie testified that, pursuant to its centralized operations,
employees from Mobile are subject to being assigned to work
at other locations. He explained that Concrete also operates a
mobile unit that is set up for specific projects and that employ-
ees from its various locations may be assigned to work at this
unit, thus removing them from their normal reporting location.
There is no evidence that the foregoing has had any effect on
unit employees at Mobile. Concrete offered no documentary
evidence relating to temporary transfers. Allen acknowledged
that the longest any Mobile employee has been directed to work
from other than his normal location was one day.
2. Analysis and concluding findings
The Respondent argues that it is not a successor since it has
not continued to operate the facilities in unchanged form and
that the unit is no longer appropriate. In support of this argu-
ment, the Respondent points out that it now operates the State
Docks plant only when needed, uses a different supplier of
concrete mix and different aggregate, has added some custom-
ers and lost others, operates in a more centralized manner,
“regularly” dispatches employees to other locations on a tem-
porary basis, and disseminates personnel policies from Colum-
bus, Georgia.
Southern Ready Mix did not operate both facilities all of the
time. Allen acknowledged that when one of the facilities was
not operating, drivers were dispatched from the plant that was
operating on the basis of a single-seniority list. Regardless of
the supplier and aggregate, the product, ready-mix concrete, is
the same. Although, as Allen explained, “[Y]ou’re always try-
ing to pick up customers” and you lose customers, there is no
evidence of any change in the type of customers or the cus-
tomer base served by the Respondent. There is no probative
evidence that employees from Mobile are “regularly” dis-
patched to other locations. Allen testified that the longest pe-
riod that any employee from Mobile had been directed to work
from other than his normal location was 1 day. Centralized
control of corporate operations does not render a single-facility
unit inappropriate. Bowie Hall Trucking, 290 NLRB 41, 43
(1988).
The Board utilizes the following criteria, as set out in Border
Steel Rolling Mills, 204 NLRB 814 (1973), in evaluating
whether an employer is as successor: (1) whether there has
been a substantial continuity of the same operations; (2)
whether the new employer utilizes the same plant; (3) whether
the new employer has the same or substantially the same work
force; (4) whether the same jobs exist under the same working
conditions; (5) whether the new employer employs the same
supervisors; (6) whether the new employer uses the same ma-
chinery, equipment and methods of production; and (7) whether
the new employer manufactures the same product or offers the
same services.
In the instant case, the Respondent meets all the Border Steel
criteria for successorship. The Respondent has continued the
same operations at the same plants, although it now uses the
State Docks plant only when necessary. The same employees,
initially reduced by seven, are performing the same jobs under
the same supervision as they did as employees of Southern
Ready Mix. Although providing some new trucks and making
improvements at the plant, the Respondent uses the same ma-
chinery, equipment, and methods of production as did Southern
Ready Mix. Although using a different formula and aggregate
in the production of concrete, the basic ingredient, portland
cement, and the final product, concrete, are the same. I find that
Concrete, having purchased the assets of Southern Ready Mix
from Ready Mix USA, which never operated the business, is a
successor employer to Southern Ready Mix. See Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27 (1987).
A successor employer that honors its legal obligations to-
wards a labor organization that represents the employees of the
predecessor is generally permitted to determine the initial terms
and conditions of employment of the employees that it hires.
NLRB v. Burns Security Services, 406 U.S. 272 (1972). If,
however, a successor employer ignores its legal obligation by
stating that it will not recognize the employees’ collective-
bargaining representative, it forfeits the right to prescribe initial
terms and conditions of employment. The foregoing principle is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1316
clearly stated by the Board in Advanced Stretchforming Inter-
national, 323 NLRB 529 (1997), enfd. in relevant part 233 F.3d
1176 (9th Cir. 2000):

A statement to employees that there will be no union at the
successor employer’s facility blatantly coerces employees
in the exercise of their Section 7 right to bargain collec-
tively through a representative of their own choosing and
constitutes a facially unlawful condition of employment.
Nothing in Burns suggests that an employer may impose
such an unlawful condition and still retain the unilateral
right to determine other legitimate initial terms and condi-
tions of employment. A statement that there will be no un-
ion serves the same end as a refusal to hire employees
from the predecessor’s unionized work force. It “block[s]
the process by which the obligations and rights of such a
successor are incurred.” State Distributing, 282 NLRB at
1049.
In sum, we hold that by declaring at the outset that
there would be no union at its facility, the Respondent,
like a successor that discriminatorily refuses to hire a ma-
jority of its predecessor’s employees in order to avoid rec-
ognizing and bargaining with a union, forfeited its Burns
right to set initial terms and conditions of employment
without first bargaining with the Union. Accordingly, we
find that the Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally changing wages and benefits
when it commenced operations. [Id at 530–531.]

Consistent with the foregoing precedent, I find that Goudie’s
informing the employees that its Mobile facilities would not be
union, “[t]here’s no union; the Union’s gone,” violated Section
8(a)(1) of the Act. Insofar as the Respondent unlawfully failed
and refused to recognize the employees’ collective-bargaining
representative in violation of Section 8(a)(5) of the Act, any
change in the employees’ terms and conditions of employment
also violated Section 8(a)(5) of the Act.
C. The Unilateral Changes
The complaint alleges 18 unilateral changes. It is undisputed
that there was no notice to or bargaining with the Union regard-
ing any of the alleged changes; however, the record does not
establish a violation in each and every instance alleged. The
Respondent proposed stipulations, which counsel for the Gen-
eral Counsel accepted at the hearing, that acknowledge that, on
or about December 18, the Respondent “implemented the fol-
lowing initial terms and conditions of employment of employ-
ees . . . at its Theodore and Mobile facilities.” The listing ad-
mits certain of the alleged unilateral changes. The changes shall
be discussed by subparagraph number as they appear in para-
graph 18 of the complaint.
a. Transferred unit employees based at the Mobile State
Docks plant to the plant in Theodore, Alabama.
The Respondent stipulated that employees “have been pri-
marily based” at the Theodore facility and that the Mobile facil-
ity is used only as a satellite facility. Allen’s testimony estab-
lishes that all drivers are now based at the Theodore plant.
Thus, consistent with the complaint allegation, employees
based at the State Docks plant were transferred. Although driv-
ers who were based at the State Docks were dispatched to
Theodore “almost every day,” their reporting location was at
the State Docks, which was in the proximity of the residences
of many of the employees. The unilateral transfer of these em-
ployees violated Section 8(a)(5) of the Act. San Antonio Port-
land Cement Co., 277 NLRB 309, 314 (1985).
b. Paid the employees for the first week of operations for 45
hours regardless of whether they had not worked a full 45 hours
and Respondent has since then been recouping the overpayment
from those employees who had not worked a full 45 hours by
withholding $15 a week from their paychecks.
There is no probative evidence supporting this allegation.
The stipulation reflects that employees “were advanced money
to cover any delay in payment as they were hired” and that
“[s]uch advances are being incrementally recovered.” Goudie
testified that “we advanced some folks the money.” The record
does not establish the amount of money, the identity of the
employees affected, or the arrangements for repayment. This
allegation appears to be based on Titus Edwards’ testimony
regarding Goudie’s remarks at the December 19 meeting. Ed-
wards understood Goudie to have said that that all employees
would be paid for 45 hours for their first week of work, that
they would be paid by Southern Ready Mix for December 18
and by the Concrete Company for the remainder of the week,
and that any excess wages would be recouped at the rate of $10
to $20 a week. There is no evidence that this occurred. If it had
occurred, the General Counsel could have obtained pay stubs
from the affected employees or, pursuant to subpoena, obtained
payroll documents reflecting the payment and subsequent de-
ductions. There is no evidence that any employee was paid for
hours not worked. There is no evidence that any employee was
paid for 45 hours. There is no evidence establishing that any
employee was overpaid or, if there was an overpayment, the
manner in which any overpayment was recouped. I shall rec-
ommend that this allegation be dismissed.
c. Reduced the number of employees while increasing the
number of hours each employee works.
The Respondent stipulated that Concrete employed fewer
employees and that, “depending on workload,” employees have
the opportunity to work more hours. The record contains no
evidence establishing that the workload increased after Con-
crete assumed operations. Notwithstanding the foregoing stipu-
lation, there is no probative evidence establishing the complaint
allegation that there was an increase in the number of hours that
each employee worked. I shall recommend that this allegation
be dismissed.
d. Brought drivers from other facilities owned by Respon-
dent to perform work usually performed by the unit.
Allen testified that “when we’re overbooked we call a central
number and ask for some help and they send . . . what they
can.” There is no evidence that this actually occurred and, even
assuming that it did, there is no evidence establishing the num-
ber of times it occurred. Allen’s testimony that business is
“slow right now” suggests that any such requests for help, if
made, have been infrequent. There is no evidence of any occa-
sion on which assistance was provided and a unit employee was
deprived of any work as a result of such assistance. I shall
recommend that this allegation be dismissed.
CONCRETE CO. 1317
e. Announced an incentive program whereby drivers who
had no safety violation over a 6-month period would receive a
bonus of $1 per load.
The Respondent acknowledges providing this benefit that
was not provided in the contract between the Union and South-
ern Ready Mix. By increasing employee benefits without notice
to or bargaining with the Union, the Respondent violated Sec-
tion 8(a)(5) of the Act.
f. Increased the wages of unit employees.
The Respondent acknowledged that it “set the wages of its
employees at a higher level then the wages of the employees of
Southern Ready Mix.” The Respondent, having unlawfully
declared its intention to operate without a union, forfeited its
right to set initial terms and conditions of employment. The
Respondent, by unilaterally changing employee wages violated
Section 8(a)(5) of the Act.
g. Changed medical and dental insurance benefits.
h. Changed disability insurance benefits.
i. Changed life insurance benefits.
j. Changed 401(k) program benefits.
k. Changed vacation benefits.
The Respondent acknowledged making all of the foregoing
changes. Review of the collective-bargaining agreement reveals
no provisions relating to disability or life insurance benefits,
thus, as with the bonus, these benefits were granted without
notice to or bargaining with the Union. The changes in medical
and dental insurance benefits, 401(k) program, and vacations
all relate to employee terms and conditions of employment. By
granting new benefits and changing existing benefits, the Re-
spondent violated Section 8(a)(5) of the Act.
l. Ceased basing the assignment of work on seniority.
The only current employee who testified, Maurice Edwards,
was not questioned regarding the manner in which job assign-
ments were made. The Respondent stipulated that it “does not
assign all work on the basis of seniority.” The collective-
bargaining agreement reflects that employees are to be dis-
patched in order of seniority. Testimony suggests that seniority
also played a part in establishing employee reporting times. The
stipulation that the Respondent “does not assign all work” on
the basis of seniority does not establish that the Respondent
does not assign some work on the basis of seniority. In order to
establish this violation, it was incumbent on the General Coun-
sel to adduce evidence that the Respondent deviated from the
contract and past practice. No such evidence was adduced.
Although the Respondent may have departed from the seniority
provisions contained in the contract or past practice, the bare
stipulation that the Respondent “does not assign all work on the
basis of seniority” does not establish the violation alleged in the
complaint. I shall recommend that this allegation be dismissed.
m. Began regularly scheduling employees to work on Satur-
day.
The Respondent acknowledges that it schedules employees
to work on Saturday. The collective-bargaining agreement re-
veals that employees of Southern Ready Mix also worked on
Saturdays since it provides that employees who work on Satur-
day are paid straight time unless the hours that they work place
then over 40 hours for the week or unless they work more than
8 hours on Saturday. There is no testimony or other evidence
establishing that unit employees were not previously scheduled
to work on Saturday. The General Counsel has not established
that the scheduling of employees to work on Saturday consti-
tuted a change in their working conditions. I shall recommend
that this allegation be dismissed.
n. Discontinued paying employees overtime when they
worked more than 8 hours a day.
o. Discontinued paying employees at twice their regular rate
of pay for working on Sunday.
The Respondent admits that it pays time and one-half after
40 hours and does not pay double time. The collective-
bargaining agreement provides that employees be paid time and
one-half for any hours in excess of 8 hours that they work on a
single day and double time for work on Sunday. The foregoing
constituted a unilateral change in the employees’ terms and
conditions of employment and violated Section 8(a)(5) of the
Act.
p. Required as part of the hiring process that employees pay
for physicals and drug testing.
The Respondent admits requiring that applicants make the
foregoing payments but notes that it refunds the cost if the ap-
plicant passes the test. The General Counsel presented no evi-
dence relating to this allegation other than the collective-
bargaining agreement. The agreement reflects that Southern
Ready Mix would bear the cost of such testing of existing em-
ployees. It is silent regarding who bears the cost with regard to
applicants. The General Counsel has not established that the
foregoing constituted a change. I shall recommend that this
allegation be dismissed.
q. Ceased withholding of union dues from paychecks.
The Respondent admits the foregoing conduct. Deduction of
union dues is a matter of contract. Bethlehem Steel Co., 136
NLRB 1500 (1962); Valley Stream Aluminum, 321 NLRB 1076
(1996). Although the Respondent herein was not privileged to
alter the terms and conditions of employment of the unit em-
ployees without notice to and bargaining with the Union, The
Concrete Company was not party to the contract. The contract
does not purport to bind a successor to its terms. The Respon-
dent had received no authorizations from employees to deduct
union dues from their wages. The prohibitions in Section 302 of
the Act preclude any deduction from employee wages or pay-
ments by an employer to a labor organization without the spe-
cific authorizations set out therein. The Respondent did not
violate the Act by failing to deduct union dues from employee
wages. I shall recommend that this allegation be dismissed.
D. The Refusals of Hire
1. Facts
On Tuesday, December 19, Titus James Edwards and Calvin
Mack Taite had begun filling out applications for employment
with Concrete. They were interrupted when they were directed
to go to the meeting at which Goudie spoke with the employ-
ees. Consistent with the instructions they received, Edwards
and Taite completed their applications that evening and brought
them to work the following day.
On Wednesday, December 20, Plant Manager Ronnie Sutton
told Edwards and Taite to remain at the State Docks plant.
They were later informed that Goudie and Allen wanted to talk
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1318
to them. Edwards recalls that he began helping a mechanic with
a frozen pipe, but Taite recalls that they both remained in the
drivers’ room with another employee, Kenneth Johnson. When
Goudie and Allen arrived, Allen called each employee indi-
vidually. Johnson was called first. When he returned to the
drivers’ room he reported that he was told they were going to
keep him. Edwards was spoken to next. Edwards recalled that
Allen stated, “Titus, we hate it, but as part of the cutback that
we’re having, we’re going to have to let you go.” Allen stated
that it was nothing personal. Edwards commented that it did not
appear that they needed his application, and Allen replied that
he did not. Allen then asked Taite to join Goudie and him. Al-
len stated that “it’s wintertime and work’s slow, and we can’t
hire you back on.” Taite did not attempt to give Allen his appli-
cation.
Allen testified that, following his conversations with Goudie
on December 17 and 18, in which Goudie had stated that he did
not want a union and that Concrete “would not be hiring all the
employees,” he decided to eliminate seven positions: four driv-
ers, a loader operator, one salesman, and “a lady in the office.”
The four drivers eliminated included Edwards and Taite. Allen
noted that Goudie had stated that Concrete was going to operate
the State Docks plant as a satellite plant, only when necessary,
and that Edwards and Taite were the two least experienced
drivers at that plant. He testified that “had it not been for an-
other guy, who was out with back surgery and I didn’t know his
future, and another guy who . . . . had a terrible attendance re-
cord in Theodore, . . . . there would have been two more drivers
in the docks that I didn’t retain. But I did take the guy with the
poor attendance record and not recommend him and the guy
that was out, I did not recommend him. So . . . . that was the
four.” The employee who was out with back surgery was the
Theodore plant job steward Bill Shields. Shields had been al-
ternate steward at the Theodore plant. There is no evidence that
an alternate steward was appointed at the Theodore plant after
Shields became the job steward.
Allen was aware that Edwards was the job steward at the
State Docks Plant. His appointment to that position is con-
firmed by a letter dated October 6, 1999, from Union Business
Agent Charles Sullivan to Southern Ready Mix. Allen did not
deny Edwards’ credible testimony that he and Allen met on
over twenty occasions, both formally and informally, in which
Edwards was functioning in his capacity as job steward. Taite
was appointed alternate job steward at the State Docks plant.
Although Allen initially testified that he did “not remember”
that Taite was the alternate steward, Business Agent Sullivan
testified that he told Allen that Taite was the alternate steward
and Taite recalls being identified as the alternate steward at a
safety meeting at which Allen was present. Allen did not deny
the foregoing testimony of Sullivan and Taite. I credit them and
find that, although Taite never took any action as alternate
steward because Edwards was always present, Allen was aware
that Taite was the alternate steward at the State docks plant.
Notwithstanding their respective positions as job steward and
alternate job steward, Allen testified that his decision not to hire
them was not made in order to discourage union activity among
the employees that he did hire. The basis for Allen’s decision,
according to his testimony was that the Edwards and Taite,
“[t]he two of them were the least experienced” at the State
Docks plant which was going to be operated only as a satellite
facility.
On being examined regarding whether factors other than
their seniority were involved in the selection of Edwards and
Taite, Allen testified that, having selected them on the basis of
less experience, he recalled that Edwards had been stopped for
DUI, that some years previously he had raised his voice to the
shop foreman, and that he had also been involved in some prob-
lem with the operations manager. Further examination estab-
lished that the DUI incident occurred in 1998, that Edwards
was unable to drive for only a month or 6 weeks, and that there
was no recurrence of the problem. Allen could not recall the
situation involving the operations manager. He testified that he
spoke with Edwards regarding the shop foreman incident, that
he could not recall the substance of the conversation, and that
Edwards did not receive a warning. Regarding Taite, Allen
testified that Taite’s “attitude had deteriorated,” noting one
occasion on which Taite experienced mechanical difficulties
with his truck and refused to drive another truck. Allen initially
testified that he talked with Taite and told him that “we really
needed him to get on [another] truck,” but he later recanted that
testimony and acknowledged that he did not personally talk
with Taite. Thus the report of an alleged refusal to drive a dif-
ferent truck on one occasion is totally hearsay. Although Allen
testified that he spoke with Taite regarding his attitude, he ac-
knowledged that it was not “like a warning or anything like
that,” and that Taite stated to him that “[e]verything’s all right.”
I permitted counsel for Respondent to examine Edwards re-
garding a discrepancy between his application for work with
Southern Ready Mix, upon which he had reported in 1998 that
he had not been convicted of a felony, and his application for
work with Concrete, upon which he acknowledged that he had
been convicted of a felony. As I stated on the record, the basis
for my ruling was consideration of credibility and was not re-
lated to Rule 409 of the Federal Rules of Evidence. It is clear
that the conviction, which occurred over 10 years ago, in 1983
or 1984, would not have precluded employment with Southern
Ready Mix since Taite was hired although his application re-
ported that he had been convicted of a felony, possession of a
controlled substance. The Concrete application states that a
“conviction will not necessarily bar you from employment.”
Furthermore, in view of the admissions by Allen and Goudie
that none of the applications were actually reviewed, it is clear
that the hiring was based on Allen’s knowledge of the employ-
ees, not matters reported on the Concrete applications. Goudie
admitted that he did not review any of the applications. Allen
also did not review the applications. He testified, “I was mak-
ing the hiring decisions based on history. There was “nothing
that was going to be in the applications that would persuade
me. [W]e needed a permanent . . . file.”
In further testimony regarding the basis for the selection of
the employees who would not be hired, Allen testified that
“[w]e were closing the docks . . . [a]nd the drivers that worked
at the docks tend to live close to the docks, . . and it just seemed
to make a lot of sense.” He later noted that “the less experience
at . . . the plant that we were not going to be operating was the
key factor.” Allen acknowledged that, on occasions when one
CONCRETE CO. 1319
of the two plants was closed for some reason and Southern
Ready Mix was operating only one plant, he used one seniority
list that included all employees.
Thereafter, Taite applied for employment on February 2,
2001. He gave his application to Allen. Edwards also applied
for employment in late January or early February. He also gave
his application to Allen.
Allen admitted that there were employees working at the
Theodore plant with less seniority and less experience than
Edwards and Taite. The record does not establish the identity of
these employees.2
Employee David Pate was initially hired by Southern Ready
Mix on November 12, 1998. He quit sometime in or before
November 2000. Edwards began working for Southern Ready
Mix on August 19, 1997. Taite began on February 19, 1997.
Thus both had well over a year’s more experience than Pate.
Pate applied for work with Concrete and was hired in about
April 2001. At or about the same time Concrete hired another
employee who had no experience driving a Ready Mix concrete
truck.
2. Analysis and concluding findings
In assessing the evidence under the criteria of FES (A Divi-
sion of Thermo Power), 331 NLRB 9 (2000), I find that the
Respondent had concrete plans to hire and that Edwards and
Taite had experience or training relevant to the positions for
hire. Goudie’s announcement that Concrete would not be un-
ion, “the Union’s gone,” thereby depriving the employees of
their collective-bargaining agent at this critical time of transi-
tion, establishes animus. In assessing the evidence under the
analytical framework of Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), I find that both Edwards and
Taite engaged in union activity and that the Respondent was
aware of that activity, specifically that Edwards was the job
steward and that Taite was the alternate job steward at the State
Docks plant. Antiunion animus was established. The failure to
permit Edwards and Taite to continue to work, thereby depriv-
ing them of their livelihood, was clearly an adverse action.
Thus, whether viewed as a refusal to hire or a termination, the
General Counsel established a prima facie case and it was in-
cumbent upon the Respondent to demonstrate that it would not
have hired or retained Edwards and Taite in the absence of their
union activity.
Allen’s testimony that “the less experience at . . . the plant
that we were not going to be operating was the key factor,”
coupled with his explanation that “[w]e were closing the docks
. . . [a]nd the drivers that worked at the docks tend to live close
to the docks,” if credited, would provide a nondiscriminatory
explanation for the selection of Edwards and Taite. It is clear

2 No current seniority list was placed into evidence. A seniority list
dated December 12, 1999, reflects that Willis Finch and David Ne-
smith, who were assigned to the Theodore plant, both had less seniority
than both Edwards and Taite. The inclusion of their names on the last
submission by the Union to Southern Ready Mix for deduction of union
dues suggests that they continued to be employed. Even if their em-
ployment had ended, Allen admitted that there were employees at the
Theodore plant who continued to work and who had less seniority and
experience than Edwards and Taite.
that his recollection of Edwards’ DUI in 1998 and matters in-
volving the shop foreman and operations manager, which he
could not specifically recall were not the basis for his decision.
Allen attempted to place Taite in an unfavorable light by testi-
fying, initially, that he personally directed Taite to take another
truck. He later recanted this testimony. Taite was not disci-
plined. The foregoing hearsay report was not a basis for the
decision not to hire Taite. According to Allen, the basis for the
decision not to hire Edwards and Taite was that “[t]he two of
them were the least experienced” at the State Docks plant
which was going to be operated only as a satellite facility.
In considering that explanation, I note that the Respondent
failed to hire Edwards and Taite after they submitted applica-
tions in late January or early February while hiring one em-
ployee who had no experience and David Pate, who had quit in
or before November and who had less experience than either
Edwards or Taite. Although the complaint does not allege that
the Respondent unlawfully failed to hire Edwards and Taite
after they submitted applications in late January or early Febru-
ary 2001, the hiring of in April of an employee with no experi-
ence and of Pate, who had less experience than Edwards or
Taite, is compelling evidence that Allen’s explanation regard-
ing his basis for determining who not to hire was false.
I do not credit Allen. Goudie had told Allen on December 17
or 18 that he did not want a union. Edwards had met with Allen
on over 20 occasions in his capacity as job steward. The collec-
tive-bargaining agreement provided for unit seniority. Accord-
ing to Allen’s testimony, following his conversations with
Goudie, he understood there was to be only one reporting loca-
tion, the Theodore plant. Thus, the reporting facility of all em-
ployees at the State Docks plant was going to change. All em-
ployees from the State Docks plant except Edwards and Taite
were retained. Despite this, Allen asserts that he chose to elimi-
nate Edwards and Taite because of their seniority at the State
Docks plant. The happenstance that Bill Shields, job steward at
the Theodore plant and for whom no alternate steward had been
appointed, was undergoing surgery assured that there was no
employee present at that plant who had previously been in-
volved in overseeing compliance with the collective-bargaining
agreement. When Southern Ready Mix had operated only one
facility, Allen had used a single seniority list. By eliminating
the job steward and alternate steward at the State Docks plant,
purportedly because they were the least experienced at that
location, Allen eliminated the only remaining job steward and
alternate job steward in the unit. I find Allen’s testimony re-
garding the basis for his decision to be incredible. Allen testi-
fied that he sought to retain all employees and keep both plants
open. He acknowledged that, after speaking with Goudie, “I
lost both arguments.” Allen’s acknowledgement that he “lost
both arguments” reflects that he became amenable to what he
understood Goudie wanted. Allen knew that Goudie did not
want a union. I find that Allen’s decision to eliminate the only
job steward and assistant job steward present in the unit was
discriminatorily motivated to assure that no job stewards would
be present as Concrete began its nonunion operations.
Even if I were to assume that I had some doubt regarding the
foregoing finding and were to give the Respondent the benefit
of that doubt, such doubt would be totally erased by the hiring
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
of an employee with no experience and Pate rather than Ed-
wards and Taite in April. I place little weight on Respondent’s
rehire of job steward Bill Shields after he recovered from sur-
gery since the Respondent had removed all of the job stewards
identified in the record from the unit at the critical time of its
assumption of operations. There was no pending unfair labor
practice charge relating to Shields. The Respondent was aware
that its actions were under scrutiny since the Union had filed
the charges regarding Concrete’s failure to hire Edwards and
Taite on January 8, 2001.
In view of the foregoing, and the entire record, I find that the
General Counsel has established a prima facie case that the
Respondent’s decision to refuse to hire Edwards and Taite was
motivated by its animus towards their positions as union job
steward and alternate job steward, respectively. The Respon-
dent’s assertion that its selection of them was based on the fact
that they were the least experienced employees at the State
Docks plant, a portion of the appropriate unit and from which
employees were transferred in violation of Section 8(a)(5) of
the Act, is not credible and is belied by the hiring to two em-
ployees, one with no experience and one with less experience
than both Edwards and Taite after Edwards and Taite applied
for employment for the second time, early in 2001. In refusing
to hire Edwards and Taite, the Respondent violated Section
8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By informing its employees that there would be no union
at its Mobile, Alabama facilities, Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By refusing to hire employees because of their union ac-
tivities, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the Act.
3. By failing and refusing to recognize and bargain with the
Union and by making unilateral changes in the terms and con-
ditions of employment of its employees as found in this deci-
sion, the Respondent violated Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent, having discriminatorily refused to hire Ti-
tus James Edwards and Calvin Mack Taite, it must offer them
reinstatement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from Decem-
ber 20, 2000, to date of proper offer of instatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
The Respondent must recognize and, on request, bargain
with International Brotherhood of Teamsters, Local 991, as the
exclusive collective bargaining representative of the employees
in the appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the un-
derstanding in a signed agreement.
The Respondent, on request of the Union, must cancel any
departures from the terms and conditions of employment that
existed immediately before its takeover of Southern Ready
Mix, Inc., as found, retroactively restoring any preexisting
terms and conditions of employment that the Union requests be
restored, and it must make employees whole for any losses they
incurred as a result of any unilateral changes that the union
requests be rescinded.3 In this regard, I note that, under the
contract, employees were covered by certain Southern Ready
Mix benefit plans. The record does not reflect the increase in
costs to employees, if any, in maintaining those benefits. Inso-
far as maintaining those benefits resulted in increased costs to
the employees, the Respondent must, if the Union requests
recission of any unilateral change related to those benefits,
make employees whole for any such cost increase from De-
cember 19, 2000, until it negotiates in good faith with the Un-
ion to agreement or to impasse. The reimbursement to employ-
ees of any increased costs shall be with interest as prescribed in
Florida Steel Corp., 231 NLRB 651 (1977). The Respondent
must also reimburse its employees in the manner set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
661 F.2d 940 (9th Cir. 1981), for any expenses resulting from
those unilateral changes that the Union requests be rescinded.
The Respondent will also be ordered to post an appropriate
notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, the Concrete Company, Columbus, Geor-
gia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing its employees that there would be no union at
its Mobile, Alabama facilities.
(b) Refusing to hire employees because of their union activi-
ties.
(c) Refusing to recognize and bargain with International
Brotherhood of Teamsters, Local 991, and making unilateral
changes in the terms and conditions of employment of its unit
employees.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

3 The complaint does not allege the conversion of the State Docks
plant to a satellite facility as an unfair labor practice. Thus, although I
have found that the unilateral transfer of employees from the State
Docks plant violated the Act, I shall not order the reopening of that
facility.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
CONCRETE CO. 1321
(a) Recognize and, on request, bargain with International
Brotherhood of Teamsters, Local 991, as the exclusive collec-
tive-bargaining representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:

All drivers, loader operators, mechanics, and mechanics
helpers employed by the Employer at its Theodore, Ala-
bama, and State Docks, Mobile, Alabama, facilities; ex-
cluding all salespeople, clerical/dispatchers, office clerical
employees, guards, professional employees, and supervi-
sors as defined in the Act.

(b) On the request of the Union, cancel any departures from
the terms and conditions of employment of the employees in
the above described unit that existed immediately before the
assumption of operations of Southern Ready Mix, Inc., retroac-
tively restoring any preexisting terms and conditions of em-
ployment that the union requests be restored, and make em-
ployees whole for any losses they incurred as a result of any
unilateral changes that the union requests be rescinded as set
forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, offer Titus
James Edwards and Calvin Mack Taite reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(d) Make Titus James Edwards and Calvin Mack Taite whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth in
the remedy section of the decision.
(e) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire Titus
James Edwards and Calvin Mack Taite and, within 3 days
thereafter, notify them in writing that this has been done and
that the refusal to hire them on December 20, 2000, will not be
used against them 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 pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(g) Within 14 days after service by the Region, post at its fa-
cilities in Mobile and Theodore, Alabama, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 15, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
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 Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since December 19,
2000.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

5 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”