Geiger Ready-Mix Co. of Kansas City

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 1021 (N.L.R.B. 1994)

1021
315 NLRB No. 153
GEIGER READY-MIX CO. OF KANSAS CITY
1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility findings 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.
Additionally, the Respondents assert that the judge’s findings are
a result of bias and prejudice. After a careful examination of the en-
tire record, we are satisfied that this allegation is without merit.
2 In adopting the judge’s conclusion that the Respondents violated
Sec. 8(a)(5) and (1) of the Act by failing to give the Union re-
quested information concerning customers and jobsites, we do not
rely on the judge’s statement that an employer’s opinion that re-
quested information is confidential is irrelevant to the duty to supply
it. After a union has established the relevance of the information it
seeks, an employer asserting a confidentiality claim has the burden
of demonstrating a legitimate and substantial confidentiality interest
that outweighs the union’s need for the desired information. Mary
Thompson Hospital, 296 NLRB 1245 fn. 1 (1989). Here, as the
judge found, the requested customer and jobsite lists related to the
Union’s reasonable belief that the Respondents were transferring unit
work to nonunit employees, and were plainly relevant to the Union’s
representational duties. We further find that although the Respond-
ents offered to meet and bargain with the Union about their con-
fidentiality concerns, the Respondents have failed to establish that
they had a significant interest in keeping such information confiden-
tial. For example, there is no evidence that the Respondents re-
quested that union representatives keep the customers’ names and
the jobsites confidential. See AGA Gas, Inc., 307 NLRB 1327 fn.
2, 1331 (1992).
3 The General Counsel excepts to the judge’s failure to include in
his recommended Order and notice language concerning the Re-
spondents’ affirmative obligation to provide the Union with the re-
quested information concerning customers and jobsites. We find
merit in the General Counsel’s exception, and shall amend the
judge’s recommended Order and notice accordingly.
Although the judge in sec. I,B, par. 4 set forth a description of
the job classifications included in the bargaining unit that cor-
responds with the description in the complaint, he inadvertently in-
cluded ‘‘batchmen’’ in his conclusions of law, recommended Order,
and notice. We shall correct the errors.
4 The Respondents, single employers, operate an integrated and
double-breasted ready-mix cement business in the greater Kansas
City area. The Union represents the drivers, mechanics, and me-
chanic helpers at the Speaker Road plant; employees at the three
other plants have not been represented since 1989.
5 303 NLRB 386 (1991), enfd. in relevant part sub nom. Food &
Commercial Workers Local 150-A v. NLRB, 1 F.3d 24 (D.C. Cir.
1993), cert. granted 114 S.Ct. 1395 (Apr. 4, 1994), cert. dismissed
114 S.Ct. 2157 (1994). In Dubuque, the Board developed a burden-
Continued
Geiger Ready-Mix Co. of Kansas City, Inc.; Geiger
Ready-Mix Co. of Kansas, Inc.; Geiger Ready-
Mix Co. of Missouri, Inc.; and Geiger Ready-
Mix Co., Inc.; a Single Employer and Building
Material, Excavating, Heavy Haulers, Drivers,
Warehousemen and Helpers, Local Union No.
541, affiliated with International Brotherhood
of Teamsters, AFL-CIO. Case 17–CA–16244
December 16, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On July 28, 1993, Administrative Law Judge Walter
H. Maloney issued the attached decision. The Re-
spondents filed exceptions and a supporting brief, and
the General Counsel filed exceptions and a supporting
brief. Additionally, the General Counsel and the
Charging Party each filed answering briefs.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order as
modified.3
1. We agree with the judge’s finding that the com-
plaint is not time-barred because the underlying charge
was both filed and served within the 6-month limita-
tions period set forth in Section 10(b) of the Act.
However, we correct certain factual errors in the
judge’s analysis, including the judge’s inadvertent find-
ing that the limitations period ended and the charge
was filed and served in June 1992, rather than July
1992. The alleged unlawful conduct occurred and was
communicated to the unit employees on January 10,
1992. Pursuant to Section 102.111 of the Board’s
Rules and Regulations, the statutory period therefore
commenced on the following day, January 11, and
ended 6 months later on July 11, 1992. The Union
filed its charge with the Board on July 8, 1992. Sec-
tion 102.113 of the Board’s Rules and Regulations au-
thorizes service of process by registered or certified
mail, and Section 102.112 provides that service is ac-
complished when the material is deposited in the mail.
See National Automatic Sprinklers, 307 NLRB 481 fn.
1 (1992). Here, the Regional Office sent the charge to
the Respondents by certified mail on July 8. We there-
fore find, in agreement with the judge, that the charge
was filed and served within the statutory period. Re-
garding the Respondents’ contention that under the
Federal Rules of Civil Procedure, service is not accom-
plished until a document is received by the party being
served, we note that the Federal Rules of Civil Proce-
dure do not govern service of process in Board pro-
ceedings. Control Services, 303 NLRB 481, 481
(1991), enfd. by unpublished decisions 961 F.2d 1568
(3d Cir. 1992); 975 F.2d 1551 (3d Cir. 1992). In any
event, the Respondents received the charge on July 9,
prior to the expiration of the statutory period.
2. The judge found that the Respondents violated
Section 8(a)(5) and (1) of the Act on January 10, 1992,
by unilaterally halting operations at the unionized
Speaker Road plant, laying off unit employees, and
transferring unit work to nonunit employees without
first giving the Union notice and an opportunity to bar-
gain.4 In so finding, the judge questioned the applica-
bility of Dubuque Packing,5 finding that the Respond-
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shifting test to determine whether a decision to relocate bargaining
unit work is a mandatory subject of bargaining. See 303 NLRB at
391.
6 452 U.S. 666 (1981).
7 307 NLRB 809 (1992).
8 We also adopt the judge’s finding that the Respondents violated
Sec. 8(a)(5) and (1) by failing to bargain with the Union over the
effects of its decision. The Respondents were obligated to provide
the Union with preimplementation notice of the decision to close the
Speaker Road plant to satisfy an employer’s effects-bargaining obli-
gation, but instead presented the closure decision to the Union as a
fait accompli. See Chrissy Sportswear, 304 NLRB 988, 989 fn. 6
(1991); Los Angeles Soap Co., 300 NLRB 289 fn. 1 (1990).
Additionally, we agree with the judge’s finding that the Union did
not waive its right to bargain about the Respondents’ decision to
transfer unit work and about the effects of that decision. The lan-
guage in the management-rights provision of the parties’ collective-
bargaining agreement does not meet the clear and unmistakable
standard governing the waiver of statutory rights. See Owens-
Brockway Plastic Products, 311 NLRB 519, 525 (1993).
9 Concrete must be delivered within an hour from the time a truck
is dispatched from the batching plant.
10 Holmes & Narver, 309 NLRB 146, 147 (1992).
11 Cf. Seminole Intermodal Transport, 312 NLRB 236 (1993) (em-
ployer permanently closed its Columbus terminal and relocated all
its Columbus trucking work to Springfield, thereby relocating the
terminal; decision was a mandatory subject of bargaining under Du-
buque, above, because, inter alia, there was no change in the oper-
ation and the employer did not meet its burden of establishing that
the union could not have offered labor cost concessions that could
have changed the employer’s decision to relocate).
ents’ conduct did not involve an entrepreneurial deci-
sion aimed at changing the scope and direction of the
enterprise that was exempt from the statutory duty to
bargain under Dubuque and First National Mainte-
nance Corp. v. NLRB.6 The judge found instead that,
like the employer’s subcontracting in Torrington In-
dustries,7 the Respondents’ decision was ‘‘a cost-cut-
ting exercise aimed at replacing higher priced drivers
with lower priced drivers’’ that was subject to the duty
to bargain. For the following reasons, we agree with
the judge’s conclusion that the Respondents’ decision
was a mandatory subject of bargaining and that the Re-
spondents unlawfully failed to bargain with the Union
about the decision.8
As a threshold matter, we reject the Respondents’
contention that for purposes of determining whether
the Respondents unlawfully transferred bargaining unit
work out of the unit, the Board should limit the defini-
tion of ‘‘unit work’’ to ‘‘work for contractors who
have a contract with Local 541 [the Union] delivered
by . . . [Speaker Road] drivers.’’ Although the Re-
spondents maintain that by late 1991 the Speaker Road
plant no longer received orders from union contractors
and that any of the nonunion plants could have pro-
vided concrete to the remaining nonunion customers,
we find that the Respondents’ nonunion drivers faced
more job assignment restrictions than did the unit driv-
ers. As the judge found, although the Union permitted
the unit drivers to deliver concrete batched by non-
union labor at the Lenexa and Liberty plants, the non-
union drivers at those plants were not permitted to de-
liver cement batched at Speaker Road, although they
sometimes delivered concrete to union jobsites. Within
these limitations, job location and truck availability in-
fluenced delivery assignments.9 Regarding the former,
the judge found that the Speaker Road plant was the
hub of the Respondents’ operation and the location of
the Respondents’ central dispatching system, with
quick and easy access to many jobsites. The judge
found that this system furthered job and customer
interchange among the four plants. For all these rea-
sons, the judge found that the ‘‘unit work’’ at issue
was not a discrete segment of the Respondents’ total
concrete production process or market, but was part of
an integrated system producing a ‘‘fungible’’ and
‘‘interchangeable’’ commodity. Under the cir-
cumstances, we agree with the judge’s characterization
of bargaining unit work as including all concrete cus-
tomarily batched and delivered by the unit drivers from
the Speaker Road plant to both union and nonunion
jobsites, as well as concrete batched at nonunion plants
and customarily delivered by the Speaker Road unit
drivers because of factors such as job location and
truck availability. We therefore find no merit in the
Respondents’ contention that no unit work was avail-
able to be transferred out of the unit in January 1992.
We also agree with the judge that the Respondents’
January 1992 closure of the Speaker Road plant and
the accompanying layoff of the unit employees did not
constitute a relocation of unit work within the Du-
buque test, which the Board devised for plant reloca-
tions potentially involving complex decisions respect-
ing both the allocation of capital and the replacement
of one group of employees with another.10 Such deci-
sions are not involved here. In fact, the Respondents
did not ‘‘relocate’’ the Speaker Road plant in the sense
of permanently closing the facility and relocating its
operations to other locations.11 Rather, as the judge
found, the Respondents intended that the plant’s clo-
sure be temporary, as demonstrated by the fact that
management had reopened the Speaker Road plant by
early March. Neither did the Respondents permanently
relocate the plant’s physical assets. Although manage-
ment transferred some of the Speaker Road trucks to
other plants following the January suspension of oper-
ations, the Respondents returned some of the trucks to
Speaker Road in March, and by April 1993, 12 to 14
trucks operated from Speaker Road. We further note
that although in late February 1992 the Respondents
transferred the title to all of the Speaker Road assets
to another Geiger corporation, the Respondents’ presi-
dent admitted that the transaction was essentially an
easily reversible ‘‘paper transfer.’’ Finally, the Re-
spondents did not relocate the laid-off unit employees;
as the judge found, the layoffs were permanent and the
1023GEIGER READY-MIX CO. OF KANSAS CITY
12 This case is distinguishable from the proposed Board decision
in Tel Plus, reported at 313 NLRB No. 47 (not reported in Board
volumes) (1993) (charge subsequently withdrawn pursuant to settle-
ment agreement), in which the Board, applying Dubuque, found that
the respondents violated Sec. 8(a)(5) by unilaterally subcontracting
unit work and by transferring unit work to employees in a different
unit without the union’s consent. The unit employees in Tel Plus re-
paired telephone systems at customers’ premises. Since they were
dispatched by phone, and delivered parts directly to worksites, the
repair persons went directly to customer locations from home and
drove company vans home at night, reporting to the office only
when necessary to pick up equipment or attend meetings. Tel Plus
involved a physical relocation of operations under Dubuque because,
unlike in this case, the respondents permanently closed the facility
from which the repair persons were dispatched and changed the
locus of operations from Long Island to Queens, New York. Under
those circumstances, the Board found that the General Counsel es-
tablished a prima facie case, which the respondents failed to rebut
or defend, that the closing was a work relocation that was unaccom-
panied by a basic change in the operation of the business, and was
therefore a mandatory subject of bargaining.
13 379 U.S. 203 (1964).
14 As indicated, the parties stipulated that the Respondents are sin-
gle employers.
15 However, we do not rely on the judge’s suggestion that perma-
nent change in the direction and scope of an enterprise can only
exist in the case of a permanent, as opposed to a temporary, plant
shutdown.
Because the unit employees were simply replaced and their layoff
was not part of an elimination of the unit work, we reject the Re-
spondents’ contention that the decision to close the Speaker Road
plant is exempt from mandatory bargaining under First National
Maintenance Corp. v. NLRB, above, 452 U.S. 666.
16 See Power, Inc., 311 NLRB 599, 599 (1993).
We note that we do not disagree with Member Cohen that the sub-
contracting decision here is within the category of decisions that Jus-
tice Stewart, in his Fibreboard concurrence and the Supreme Court
in First National Maintenance, supra (embracing Justice Stewart’s
analysis), concluded were subject to a balancing test. But in our
view, when the facts of the subcontracting are as we have found
them here, it is unnecessary to retrace all the steps in striking the
balance that was originally approved in Justice Stewart’s analysis in
Fibreboard. We also note that this case is distinguishable from Fur-
niture Rentors of America v. NLRB, 36 F.3d 1240 (3d Cir. 1994),
in which the court found that the Board should have scrutinized the
amenability to bargaining of the reasons for the employer’s sub-
contracting where thefts of property were a major reason for the de-
cision and wages and benefits were not a factor, since the employer
was paying higher wages to the crews to which it had subcontracted
the work.
17 Harris-Teeter Super Markets, 307 NLRB 1075 fn. 1 (1992); cit-
ing Kohler Co., 292 NLRB 716, 720 (1989). See also A-1 Fire Pro-
tection, 273 NLRB 964, 966 (1984), enfd. sub nom Plumbers &
Pipe Fitters Local 669 v. NLRB, 789 F.2d 9 (D.C. Cir. 1986) (the
allocation of work to a bargaining unit is a term or condition of em-
ployment which cannot be changed without bargaining with the
union).
18 Member Cohen agrees with his colleagues that the decisions in-
volved herein (which involve more than subcontracting) are manda-
tory subjects of bargaining. However, he wishes to emphasize that
the decisions do not fall within the ambit of ‘‘category 2’’ of First
National Maintenance (FNM). Accordingly, rather than find the de-
cision to be clearly and inherently mandatory, he applies the bal-
ancing test for ‘‘category 3’’ decisions under FNM. See discussion
in Dubuque Packing, supra at 390. Applying that test, he notes that
the decisions herein did not represent a change in the scope and di-
rection of the enterprise. In addition, the decisions were motivated
primarily by labor cost considerations. In these circumstances he
agrees that the decisions involve mandatory subjects of bargaining.
Respondents never recalled the laid-off unit employees.
Instead, to maintain essentially the same level of pro-
duction, the Respondents reassigned nonunit drivers to
deliver concrete batched at Speaker Road and reas-
signed Speaker Road work to the nonunion plants.12
Thus, unit work remained at Speaker Road after a brief
interruption but was performed by different employees.
Because this case concerns the reassignment of unit
work rather than a plant relocation, Torrington Indus-
tries, supra, cited by the judge, is controlling. The
Board in Torrington Industries found that in cases fac-
tually similar to Fibreboard Corp. v. NLRB,13 when
virtually the only circumstance the employer has
changed is the identity of the employees doing the
work, there is no need to apply the multilayered test
of Dubuque to determine whether the decision is sub-
ject to the statutory duty to bargain because
Fibreboard, supra, has already held that such decisions
are mandatory subjects of bargaining. As in Fibre-
board, the Respondents’ assignment of nonunit em-
ployees to deliver concrete batched at Speaker Road
involved the substitution of one group of workers for
another to perform the same work at the same plant
under the ultimate control of the same employer for
lower wages.14 Thus, noting that the Respondents have
not demonstrated that the temporary closure and layoff
were based on entrepreneurial decisions that are out-
side the range of bargaining and that the Respondents
made no changes in the production process, we find,
in agreement with the judge, that the decision did not
involve a change in the scope and direction of the en-
terprise that is exempt from the statutory bargaining
obligation.15 In fact, the Respondents’ decision pre-
sents an even stronger case for finding a duty to bar-
gain than the employer’s decision in Torrington Indus-
tries because, as the judge found, the Respondents
based the decision to close the Speaker Road plant
temporarily, lay off union employees, and reassign unit
work primarily on labor costs.16 Similarly, regarding
the Respondents’ transfer of unit work to its nonunion
plants, the Board has found that an employer violates
Section 8(a)(5) and (1) of the Act by reassigning work
performed by bargaining unit employees to others out-
side the unit without affording notice or an opportunity
to bargain to the collective-bargaining representative.17
Based on the above, we find, in agreement with the
judge, that the Respondents violated Section 8(a)(5)
and (1) by failing to provide notice to and bargain on
request with the Union concerning the decision to
close the Speaker Road plant, lay off unit employees,
and reassign bargaining unit work.18
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 We have adopted the judge’s characterization of the components
of the bargaining unit work. We also adopt the judge’s rec-
ommended remedy providing, inter alia, that the status quo be re-
stored and the unit employees made whole for the losses they have
suffered as a result of the Respondents’ unlawful unilateral changes.
See Furniture Rentors of America, 311 NLRB 749, 751 fn. 15
(1993). However, we shall leave to compliance the determination of
the quantity of the Respondents’ work that constitutes ‘‘unit work’’
for purposes of effectuating the terms of the Order. See Owens-
Brockway Plastic Products, above, 311 NLRB at 526 fn. 19.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. The following constitutes a unit appropriate for
collective bargaining:
‘‘All full-time and regular part-time drivers, me-
chanics, and mechanic[s] helpers employed by the
Respondent Geiger Ready-Mix Co. of Kansas
City, Inc., in the counties of Jackson, Clay, Platte,
Ray, Lafayette, Johnson, Bates, Henry, and Cass
in Missouri and Wyandotte, Johnson, Leaven-
worth, and Miami in Kansas, excluding all office
clerical employees, supervisors, and guards as de-
fined in the Act, and all other employees.’’
ORDER19
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Gei-
ger Ready-Mix Co. of Kansas City, Inc., Kansas City,
Kansas; Geiger Ready-Mix Co. of Kansas, Inc.,
Lenexa, Kansas; Geiger Ready-Mix Co. of Missouri,
Inc., Liberty, Missouri; and Geiger Ready-Mix Co.,
Inc., Leavenworth, Kansas, their officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Refusing to bargain collectively in good faith
with Building Material, Excavating, Heavy Haulers,
Drivers, Warehousemen and Helpers, Local Union No.
541, affiliated with International Brotherhood of Team-
sters, AFL–CIO as the exclusive collective-bargaining
representative of its full-time and regular part-time
drivers, mechanics, and mechanic helpers employed in
the counties of Jackson, Clay, Platte, Ray, Lafayette,
Johnson, Bates, Henry, and Cass in Missouri, and Wy-
andotte, Johnson, Leavenworth, and Miami in Kansas,
excluding all office clerical employees, supervisors,
and guards as defined in the Act, and all other employ-
ees.’’
2. Substitute the following for paragraph 2(c).
‘‘(c) Transfer back to the Speaker Road bargaining
unit all bargaining unit work transferred out of that
unit to nonunit employees.’’
3. Insert the following as paragraph 2(d) and reletter
the following paragraphs.
‘‘(d) On request, furnish the Union with a list of
customers and jobsites to which any of the Respond-
ents have delivered concrete.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
WE WILL NOT refuse to bargain collectively in good
faith with Building Material, Excavating, Heavy Haul-
ers, Drivers, Warehousemen and Helpers, Local Union
No. 541, affiliated with International Brotherhood of
Teamsters, AFL–CIO as the exclusive collective-bar-
gaining representative of all full-time and regular part-
time drivers, mechanics, and mechanic helpers em-
ployed in the counties of Jackson, Clay, Platte, Ray,
Lafayette, Johnson, Bates, Henry, and Cass in Mis-
souri, and Wyandotte, Johnson, Leavenworth, and
Miami in Kansas, excluding all office clerical employ-
ees, supervisors, and guards as defined in the Act, and
all other employees.
WE WILL NOT refuse to bargain with the Union with
respect to any decision to shut down the Speaker
Road, Kansas City, Kansas plant, to lay off bargaining
unit employees employed at such facility, or to transfer
bargaining unit work from that facility to nonunit em-
ployees, and WE WILL NOT refuse to bargain with the
Union with respect to the effects of any such shut-
down, layoff, or transfer of bargaining unit work to
nonunit employees.
WE WILL NOT unilaterally transfer bargaining unit
work performed by bargaining unit employees at the
Speaker Road, Kansas City, Kansas plant to nonunit
employees or assign nonunit employees to perform
such work, or unilaterally shut down the plant or lay
off bargaining unit employees to accomplish such shut-
down or transfer of bargaining unit work.
WE WILL NOT refuse to furnish the Union with in-
formation relative to its duty as bargaining agent, in-
cluding, but not limited to, lists of any of the cus-
tomers of any of our companies and lists of jobsites
to which any of our companies have delivered con-
crete.
WE WILL NOT in any other 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, bargain collectively in good
faith with respect to any decision to close down facili-
ties employing bargaining unit employees, to transfer
1025GEIGER READY-MIX CO. OF KANSAS CITY
1 The principal docket entries in this case are as follows:
Charge filed by Building Material, Excavating, Heavy Haulers,
Drivers, Warehousemen and Helpers, Local Union No. 541, affili-
ated with International Brotherhood of Teamsters, AFL–CIO (Union)
against Respondents on July 8, 1992; complaint issued against the
Respondents by the Regional Director, Region 17, on January 15,
1993; Respondent’s answer filed on January 25, 1993; hearing held
in Mission, Kansas, on April 26 and 27, 1993; briefs filed with me
by the General Counsel, the Charging Party, and the Respondents on
or before June 14, 1993.
2 Respondents admit, and I find, that they are corporations which
maintain places of business, respectively, in either Missouri or in
Kansas within the Kansas City metropolitan area where they are en-
gaged in the manufacture and delivery of ready-mix concrete. In the
course and conduct of this business, they annually sell and ship
across state lines goods and merchandise valued in excess of
$50,000. Respondents also admit they they constitute a single em-
ployer under the Act. Accordingly, the Respondents are an employer
engaged in commerce within the meaning of Sec. 2(2), (6), and (7)
of the Act. The Union is a labor organization within the meaning
of Sec. 2(5) of the Act.
3 Certain errors in the transcript have been noted and corrected.
4 Concrete which is unduly delayed in transit becomes ‘‘hot’’ and
is unusable. Under Missouri law, contractors are forbidden from
pouring concrete which has arrived at a building site more than an
hour after it has left the batching plant.
5 Geiger is the major stockholder and operating chief of each cor-
poration.
bargaining unit work out of the unit, or to assign bar-
gaining unit work to nonunit employees, and WE WILL
bargain in good faith with the Union concerning the
effects on employees of these decisions.
WE WILL offer to all employees of the Speaker
Road, Kansas City, Kansas plant who were laid off on
January 10, 1992, full and immediate reinstatement to
their former or substantially equivalent positions, and
make them whole for any loss of pay or benefits suf-
fered by them by reason of our unlawful conduct
against them, with interest.
WE WILL transfer back to the Speaker Road bargain-
ing unit all bargaining unit work transferred out of the
unit to nonunit employees.
WE WILL, on request, provide the Union with a list
of customers and jobsites to which any of our compa-
nies have provided concrete.
GEIGER READY-MIX CO. OF KANSAS
CITY, INC.; GEIGER READY-MIX COM-
PANY OF KANSAS, INC.; GEIGER READY-
MIX CO. OF MISSOURI, INC.; AND GEI-
GER READY-MIX CO., INC.
Mary G. Taves, Esq., for the General Counsel.
Mark G. Flaherty, Esq. and Diane Schoemaker, of Kansas
City, Missouri, for the Respondents.
Robert A. West, Esq. and Michael Arnold, Esq., of Kansas
City, Missouri, for the Charging Party.
DECISION
I. FINDINGS OF FACT
A. Statement of the Case
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Mission, Kansas, on
an unfair labor practice complaint,1 issued by the Regional
Director for the Board’s Region 17, which alleges that Re-
spondent Geiger Ready-Mix Co. of Kansas City, Inc.,2 and
its affiliated companies violated Section 8(a)(1) and (5) of
the Act. More particularly, the complaint alleges that Re-
spondent Geiger Ready-Mix Co. of Kansas City, Inc., a
unionized company, laid-off unit employees and closed its
plant, relocated unit work to other affiliated entities, and as-
signed that work to employees located outside the bargaining
unit without first notifying the Union and offering to bargain
with it concerning the work relocation and plant closing. Re-
spondents contend that they had no duty to bargain concern-
ing the decision to close the plant in question and to relocate
unit work because the decision to question was an entre-
preneurial one which is not a mandatory subject of bargain-
ing. Respondents assert that they offered to bargain with the
Union over the effects of their decision, an assertion which
the Union denies. The complaint also alleges that the Re-
spondents refused to provide the Union in a timely fashion
with information requested to assist it in performing its du-
ties as bargaining agent. Respondents contends, that it did in
fact provide the Union with all relevant information which
was requested and refrained from furnishing only its con-
fidential customer list. On these contentions the issues here
were joined.3
B. The Unfair Labor Practices Alleged
All four respondent corporations in this case are owned
and operated by E. W. ‘‘Bill’’ Geiger III, together with
members of his family. The Geiger family has been in the
building and construction industry and the ready-mix con-
crete industry for many years. At all times material to this
proceeding, the Respondents operated four concrete batching
plants from which trucks filled with ready-mix concrete are
dispatched to a variety of construction sites, large and small.
Because concrete must be delivered within an hour—and
preferably within half an hour—from the time a truck is dis-
patched from a batching plant,4 Respondents’ plants are lo-
cated strategically in different sections of the Metropolitan
Kansas City area. Each one is owned and operated by a dif-
ferent corporate entity.5 Geiger Ready-Mix Company, Inc. is
the current corporate name of the original Geiger plant lo-
cated at Leavenworth, Kansas, some 25 miles northwest of
Kansas City up the Missouri River. Technically it is outside
what is generally referred to as the Metropolitan Kansas City
area. Until about 1989, drivers from the Leavenworth plant
were under contract with Local 541 but, since the strike
which took place in that year, it has operated as a nonunion
facility. In 1975, Geiger opened his second plant, the one
which is principally involved in this case. This plant is lo-
cated on Speaker Road in Kansas City (Wyandotte County,
Kansas) and is the most centrally located of the four batching
plants. It was operated until January 10, 1992, as a union fa-
cility under contract with Local 541. When it opened, it was
staffed with personnel who came from the Leavenworth
plant. It was looked upon as an outgrowth of that plant and
as an effort on the part of Geiger to penetrate the Kansas
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 On December 3, 1991, before the events at issue in this case took
place, Geiger notified his employees in writing that, as of January
1, 1992, he would cease doing business at Liberty and Lenexa under
the Quality Concrete name and would use the Geiger Ready-Mix
title for operations at those facilities. However, this change in names
did not take place until sometime in the spring of 1992. The asserted
reason for the change in names was that ‘‘Geiger Ready-Mix cer-
tainly gives us an edge over many of our competitors in name rec-
ognition and reputation for service and quality.’’
7 The record contains repeated and unchallenged assertions that 60
percent of the Speaker Road customers were unionized and 40 per-
cent were nonunion. This figure must necessarily refer to a nose
count of individual customers since the delivery figures, noted
above, show that 70 percent of the 1991 Speaker Road deliveries,
by volume, went to unionized contractors.
8 Ready-mix concrete is composed of cement, various types of
sand, rock, and water, which is mixed together at the plant in var-
ious proportions, depending on the requirements of the order and the
purpose for which the concrete is being poured. These formulas are
adjusted by computer; the price charged depends on the proportion
of concrete to other ingredients and the type of sand and rock used.
Literally hundreds of different mixes can be prepared. The com-
pleted ‘‘batch’’ is then dropped into a delivery truck having a rotat-
ing drum and is dispatched promptly to a jobsite, where it is poured
in conformity with the instructions of the contractor’s foreman. On
rare occasions, customers will come to the batching plant and carry
away a small amount of concrete in their own trucks.
City market. The Speaker Road facility was selected because
of its proximity to two interstate highways which provide
trucks dispatched from that batching plant with quick access
to relatively remote building sites throughout the Kansas City
area. It is known as Geiger Ready-Mix Co. of Kansas City,
Inc.
In the 1970s the Geiger family acquired another batching
plant at Liberty, Clay County, Missouri, in the northeast
quadrant of the Metropolitan Kansas City area. That plant
was operated as a union facility under contract with Local
541 until 1989 when, following a strike, it also became non-
union and began to operate as Quality Concrete of Missouri,
Inc. It carried that name until 1992, when it was changed to
Geiger Ready-Mix Co. of Missouri, Inc. In the 1970s a
fourth plant was opened in the southwest quadrant of the
Metropolitan Kansas City area at Lenexa, Johnson County,
Kansas, on a rented tract of land which included a quarry.
Lenexa has always been a nonunion facility and operated as
Quality Concrete, Inc., until 1992, when its name was
changed to Geiger Ready-Mix Co. of Kansas, Inc. For ease
of recognition, these plants will be referred to as the Leaven-
worth, Speaker Road, Liberty, and Lenexa plants, respec-
tively.6
Since 1989, the Speaker Road facility has been the only
unionized portion of the Geiger holdings. For more than 15
years, collective-bargaining contracts with Local 541 have
been negotiated by Geiger covering this plant through either
the Builders Association or later, the Concrete Producers As-
sociation, a multiemployer association composed of approxi-
mately five unionized concrete producers in the Metropolitan
Kansas City area. The most recent contract began on April
1, 1991, and expires on March 31, 1994. It was in effect dur-
ing the events at issue in this case and covers a bargaining
unit described as follows:
The jurisdiction of this Agreement shall extend to and
include the counties of Jackson, Clay, Platte, Ray, La-
fayette, Johnson, Bates, Henry and Cass in Missouri,
and Wyandotte, Johnson, Leavenworth and Miami in
Kansas.
The job classifications covered by this contract included
mixer-truck drivers, material-truck drivers, truck mechanics,
and truck mechanic helpers. The Respondent also had con-
tracts with an Operating Engineers Local covering two oper-
ating engineers employed at Speaker Road and a contract
with a Laborers’ Local covering a laborer employed at
Speaker Road. There is no dispute in this case involving ei-
ther Operating Engineers or Laborers, although individuals
employed in those classifications were laid off at the same
time that 24 drivers and mechanics subject to the Local 541
contract were laid off.
In 1991, the last full year that the Speaker Road plant op-
erated as a union facility, drivers from that plant delivered
78,000 cubic yards of concrete to both unionized and non-
union jobsites. By far the largest share of these deliveries,
some 55,000 cubic yards, were delivered to unionized con-
struction sites, but about 23,000 cubic yards were delivered
by its union drivers to nonunion sites. Unionized construction
sites typically involved either large commercial and residen-
tial buildings, such as office and apartment buildings or
warehouses and road and bridge construction.7 Much of it is
so-called bid work, requiring the Respondents to submit
competitve bids against other companies in order to get the
work. Nonunion orders typically involved small commercial
or residential work, such as single-family homes and housing
developments. This concrete is sold at quoted rates, depend-
ing upon the mix,8 and is normally quoted at rates consider-
ably higher than those which are successfully bid on larger
unionized jobs. Union drivers at Speaker Road normally ob-
tained their concrete at the Speaker Road facility. However,
Local 541 did permit them to obtain loads prepared by non-
union labor at the Lenexa and Liberty plants whenever it was
more efficient to do so, in order to serve the needs of cus-
tomers and to avoid travelling great distances without a load.
Nonunion drivers from Lenexa and Liberty were not allowed
to obtain loads at Speaker Road. However, they did deliver
concrete from time to time to unionized or heavy and high-
way jobs. The only limitation on their activity in this regard
was the reluctance of some unionized contractors to accept
deliveries of concrete in trucks driven by nonunion drivers.
Occasionally, Local 541 picketed union jobsites with ‘‘area
standards’’ signs when nonunion drivers regularly appeared.
In the fall of 1991, the Respondents reorganized and cen-
tralized the management of their plants. Managers of all four
plants were stationed at the Respondents’ main office, lo-
cated adjacent to the Speaker Road plant in Kansas City,
Kansas, and were given general duties, such as truck pur-
chasing or estimating, which touched upon the functions of
all the Respondents’ facilities, in addition to oversight re-
sponsibilities at an individual plant. Salesmen located at each
plant then provided immediate onsite supervision. Of consid-
erable importance in the operation of all of these facilities is
the fact that, both before and after the 1991 reorganization,
the dispatching of trucks originating from all facilities was
centralized at Speaker Road. These dispatches were made by
phone or radio by one dispatcher whose dispatch decisions
1027GEIGER READY-MIX CO. OF KANSAS CITY
9 There were 25 drivers, mechanics, and batchmen on the Speaker
Road payroll who were laid off at this time. They were: William
Abbott, Leon Beck (batchman), Eric Cartwright (laborer), Robert
Cox, Larry Earl, Keith Garnett, Larry Gatlin, Earl Guliford, Virgil
Gumm, Leroy Harris, Thomas Heddens, Jerome Hundley, Frank
Jones, Harold Kelly (mechanic), Terry Lalicker, Salvador Magana
(batchman), Steve Maidment (batchman), Randy Massengale (me-
chanic), Joe McDonough, Richard Parrett, Billy Patton, Jerry
Puckett, James Simmons, Russell Thogmartin, and Edward Wood-
ward. (All of the above-named employees are drivers except where
otherwise indicated.) Almost all attended this meeting. Because of
the seasonal nature of the Respondents’ business, those in the bottom
half of the seniority list were not working regularly. Union fringe
benefit reports received from the Respondents for the payroll period
which included January 10 reflected that, during their final week,
seven unit employees worked either 1 hour or no hours, four worked
between 5 and 20 hours, and eight worked more than 20 hours.
were made on an individual, ad hoc basis each day for the
Respondents’ entire operation. Those decisions depended on
a variety of factors, such as the location of the contruction
site and the availability of trucks, at any given moment at
any particular facility, to fill an order which had just come
in. Such centralized dispatching meant an interchange of de-
liveries among the four plants with regard both to particular
jobs and particular customers. As noted above, the only limi-
tation on dispatching Lenexa and Liberty drivers was that
they could not be sent to union jobsites where contractors re-
fused to accept nonunion deliveries.
In December 1991, Respondents’ management decided to
close the Speaker Road facility. However, it did not disclose
this decision until the morning of January 10, 1992. On that
date, it called all of its hourly rated employees to the plant
to an early morning ‘‘safety meeting’’9 attended also by Gei-
ger, his management staff, and Mark G. Flaherty, his attor-
ney. Geiger notified the Speaker Road employees that the
plant was being shut down immediately for an indefinite pe-
riod of time. A memo to all employees was distributed which
read:
Effective today, January 10, 1992, we are shutting
down Geiger Ready-Mix Co. of Kansas City, Inc., for
an indefinite period of time and laying off all of our
employees. As you all know, this operation has not
been profitable lately and demand and price for union
ready mix has decreased markedly over the last few
years. If the situation changes, we will restart this oper-
ation and call employees back as provided in the var-
ious union contracts. We know that this will work a
hardship on our employees and we are very sorry that
we must take this action. We will be happy to provide
you with a letter of recommendation to assist you in
seeking new employment.
Those of you who are covered under union health
and welfare plans will be notified by those plans as
your eligibility for health and welfare benefits is af-
fected. Those plans will furnish you with information
on how to continue your participation in health and
welfare benefits as required by federal law.
For those of you working under the Laborers and
Operating Engineers contracts, your vacation contribu-
tions have been sent to the Funds. Employees working
under the Teamsters contract are receiving their accrued
vacation pay in their paychecks for time worked.
All of you will receive your final paycheck for all
hours worked through yesterday and your show-up pay
for today. The drivers will also be paid their accrued
but unused vacation pay through today.
Again we hope that the business climate will im-
prove but we cannot justify keeping the company open
at its current level of profitability. If business potential
improves, we will reconsider the options. However, at
this time, that does not appear very likely.
Drivers at the Speaker Road plant were regularly assigned
to drive a particular truck, which bore not only the company
name and number but also the name and the safety record
of the driver in question. Drivers frequently kept personal be-
longings, such as radios, tools, or clothing, in their trucks.
On the morning of January 10, these items had been placed
in individual boxes and were given to drivers as they de-
parted.
At the conclusion of the meeting, Flaherty phoned the
union hall and asked to speak with Robert Gillihan, the
Local 541 president and the business agent who had handled
the Geiger account for the Union for several years. The call
arrived at 7:30 a.m., half an hour before the Teamsters office
normally opened, and was taken by Fred Fisher, the Union’s
secretary-treasurer and business agent, who had arrived for
work early. Flaherty told Fisher that he wanted to give
Gillihan notice that the Speaker Road operation was being
closed that day and that all of the Teamsters-represented em-
ployees had been laid off. Fisher said that he would relay the
information to Gillihan when the latter arrived for work and
he did so. By the time Gillihan reached the Teamsters office,
laid-off employees from the Speaker Road plant were arriv-
ing to give him the same information.
On January 10, Geiger wrote Local 541 and the two other
labor organizations with whom the Respondents had a con-
tract the following letter:
This is to notify you that effective January 10, 1992,
Geiger Ready-Mix Co. of Kansas City, Inc., is shutting
down operations for an indefinite period of time and
laying off all of its employees. The company will con-
tinue to be bound by its collective bargaining agree-
ment with your union and, should the business climate
change and the company determines to restart oper-
ations, it will comply with all of the terms of the col-
lective bargaining agreement in recalling employees
from layoff. However, at this time, it apears that the
shutdown and layoffs will last for several months, at
the end of which the company will reassess its options.
We will, of course, notify you of any decisions that
are made that will affect employees who are covered by
our collective bargaining agreement with your organiza-
tion.
During the ensuing hours of the business day on January 10
and for sometime thereafter, Geiger and other management
personnel were busy notifying Speaker Road customers of
the shutdown. In these conversations they informed their cus-
tomers of an option of obtaining union-made and union-de-
livered concrete from other union suppliers. They also in-
formed these customers that the Geiger operations at Liberty
and Lenexa (and presumably at Leavenworth as well) stood
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The Speaker Road trucks which bore the names and safety
records of laid-off unionized employees were repainted to eliminate
those markings. Likewise, the Quality Concrete trucks formerly in
use at Liberty and Lenexa were repainted to remove the Quality
Concrete designation and to replace it with the Geiger Ready-Mix
name. All trucks now operated by the Respondents from any loca-
tion bear the same marking—Geiger Ready-Mix.
ready to complete existing contracts and to supply the needs
of these customers from its other plants.
As more fully detailed, infra, on January 10, the Speaker
Road facility was obligated to make deliveries to several on-
going projects and did so with trucks dispatched from the
Liberty and Lenexa plants. It also used Lenexa and Liberty
drivers to deliver concrete to jobsites at which contractors
had agreements, either formal or informal, to obtain concrete
from Speaker Road but whose projects had not come on line
as of January 10. In the next few weeks, nonunion drivers
from Liberty and Lenexa delivered concrete batched at those
plants to previous Speaker Road unionized customers such as
Tomahawk Construction, DiCarlo, Leavacon, Browner Asso-
ciates, C. L. Fairley, J. E. Dunn, and Foley. They attempted
to deliver to a union job being performed by Grisson and
Stakes at the Quindaro Power Plant but the contractor would
not accept the deliveries because of the presence of pickets
carrying ‘‘area standards’’ signs.
Batching operations at Speaker Road were discontinued
for a period of 4 or 5 weeks and then were resumed. I credit
the uncontradicted testimony of Teamsters-represented truck
mechanic Harold Kelly, who was laid off on January 10, that
he visited the Speaker Road facility a few weeks after the
layoff and observed a truck mechanic who had worked in the
shop as a strike replacement some years before employed as
a mechanic and working on a truck which Kelly had been
repairing at the time of the layoff.
Sometime late in February 1992, title to all the assets,
movable and immovable, at the Speaker Road plant was
transferred from Geiger Ready-Mix of Kansas City, Inc., the
employer of the laid-off drivers and mechanic, to Geiger
Ready-Mix, Inc., the corporation which operated, and contin-
ues to operate, the Leavenworth facility. However, the cen-
tralized control of all operations remained at the central of-
fice on Speaker Road. A few of the Respondents’ Speaker
Road trucks were transferred to other locations, some sat un-
used for a time at the Speaker Road yard, and a few, which
were in bad condition, were sold.
Beginning in March 1992 Geiger Ready-Mix, Inc., the
Leavenworth corporation, reopened the batching operation at
Speaker Road and began to deliver concrete from this loca-
tion. During the course of 1992, the Respondents hired a
large number of new employees. Two mechanics and a la-
borer were specifically hired for the Speaker Road facility.
Fourteen drivers were hired for Leavenworth, 13 drivers for
Lenexa, and 8 for Liberty. While trucks assigned to the
Speaker Road facility had been farmed out to other locations,
many were brought back, along with drivers, from those lo-
cations and new trucks were purchased for all locations.10 By
the end of 1992, the Respondents had approximately 15 driv-
ers assigned, at least on paper, at each of three locations
other than Speaker Road. However, many operated out of
Speaker Road, some on an occasional basis and some on a
semipermanent basis. At the time of the hearing in this case,
the totality of the Respondents’ operations employed ap-
proximately the same number of drivers that they had on the
date of the January layoff. In 1992 the Speaker Road facility
produced, as an almost totally nonunion operation, some
21,021 cubic yards of concrete. Of that figure, only 964
cubic yards had been produced before the layoff. A
comparision of the production at the Respondents’ four loca-
tions between 1991 and 1992 reveals the following figures:
Plant 1991 Yardage 1992 Yardage Difference
Leavenworth 61,569 cu. yards 62,648 cu. yards +1,079 cu. yards
Liberty (Clay Co.) 60,497 79,531 +18,834
Speaker Road
(Wyandotte Co.) 78,203 23,788 -44,415
Lenexa (Johnson Co.) 27,179 61,332 +34,153
Total 227,400 cu. yards 227,200 cu. yards - 200
In April 1993, some 12 to 14 trucks were operating out
of the Speaker Road plant, as compared with 25 at the time
of the layoff. Four of these trucks are new vehicles pur-
chased by the Respondents following the layoff. Eight are
vehicles normally assigned to the Lenexa plant which were
moved to Speaker Road in the fall of 1992 when the Re-
spondents received a letter from the city of Lenexa, dated
September 23, 1992, notifying them that the business of
Praik Mining and its lessees, including Geiger and another,
should cease as a result of a foreclosure action brought ap-
parently by a mortgage holder of the property. At the time
of the hearing, the Respondents were servicing Lenexa cus-
tomers from Speaker Road. Along with other drivers, these
relocated Lenexa drivers were also making deliveries to both
union and nonunion customers who had historically been
served by union drivers from Speaker Road. Notwithstanding
the threat of the city of Lenexa to seek injunctive relief for
a refusal to terminate the Lenexa operation, Respondents
have, up to the time of the hearing in this case, continued
the Lenexa operation with approximately six of the Respond-
ents’ trucks being regularly assigned to that location. Re-
spondents hope eventually to relocate the Lenexa facility fur-
ther out from the center of the Metropolitan Kansas City area
to Olathe, the county seat of Johnson County, but that reloca-
tion has yet to occur.
On March 24, 1992, Gillihan wrote Geiger an eight-page
letter making a detailed request for information relating to
1029GEIGER READY-MIX CO. OF KANSAS CITY
11 Ash Grove and LaFarge were, and are, two unionized competi-
tors, each of whom owns both a cement producing company and a
ready-mix delivery company which sells directly to contractors. It is
the contention of the Respondents that the vertical integration of
these operations placed its unionized company at a considerable
competitive disadvantage in bidding large union jobs because it did
not obtain cement from an internal source but had to purchase it on
the open market. The cost of cement is a major component in the
cost of producing ready-mix concrete.
the operations of Geiger Ready-Mix Co., of Kansas City,
Inc., as well as the corporate structure and interrelation of
that company with its affiliated companies. On or about
April 6, Gillihan, Geiger, and their respective attorneys held
a breakfast meeting at a local restaurant at which they dis-
cussed the requested information. Geiger agreed to provide
the Union information relating to the corporate structure of
the Respondents and their interrelation. However, he flatly
refused to provide any customer lists or any list of jobsites
which were being serviced by any of the Respondents’
trucks. On May 14, Flaherty, acting on Geiger’s behalf, sent
Gillihan a detailed written reply to the March 24 letter, re-
sponding paragraph by paragraph, in which much of the re-
quested information was supplied. However, Flaherty did not
supply the names of the Respondents’ customers or the
jobsites at which his client was supplying concrete. It should
be noted that, during the course of this proceeding, much of
the information relating to the Respondents’ customers and
to jobsites served by the Respondents was given to the
Board, either in the course of the investigation of the charge
herein or in response to subpoenas served prior to the hear-
ing.
On October 29, Geiger wrote Gillihan a lengthy letter in
which he stated, inter alia, ‘‘I believe it is time for the Com-
pany to make a decision whether to make the temporary
plant closing permanent. . . . The only way I can compete
for bid jobs, and make any money on other union jobs,
would be to lower my costs significantly, since I cannot
make any money by selling the cement as Ash Grove and
LaFarge do.’’11 He went on to state, ‘‘Absent some way to
make it profitable, I am ultimately going to have to shut it
down permanently. While it does not appear that you have
any ‘give’ to your longstanding position about labor rates
and benefit contributions, and while you can’t do anything
about the competitive climate or cement prices, I will be
happy to listen to any ideas you may have with regard to the
future of the plant. Please call me so that we can set up
some time to discuss the issue and, if necessary, to negotiate
about the decision to close the plant permanently.’’ On De-
cember 4, Gillihan sent Geiger a lengthy reply in which he
stated:
‘‘You have asked for my suggestions on what to do
about the Speaker Road facility and have threatened to
close it permanently. My suggestion is simple—Geiger
should abide by its current collective bargaining agree-
ment with Local 541 and utilize its former employees
to operate the Speaker Road facility instead of using
non-union employees of other companies to perform the
work. . . . Your offer to negotiate regarding a decision
to close the plant permanently is meaningless, given the
fact that you have transferred all bargaining unit work
to your non-union employees since January 1992.’’
C. Analysis and Conclusions
1. The defense of limitations
Before reaching the merits of this case, two peripheral
questions must be addressed briefly. The Respondents con-
tend that the complaint is barred by Section 10(b) of the Act
because the charge was filed on June 8, 1992, some 180 days
after the January 10 layoffs, and was not served on the Re-
spondents until June 10, some 182 days after the event about
which the General Counsel complains. Accordingly, they
argue that, since a charge must be both filed and served
within the 10(b) period, it is defective so the complaint
which arose out of it must be dismissed.
In fact, the charge was filed on June 8 and placed in cer-
tified mail on the same date. The domestic return receipt in
the record reflects that the charge was received by the Re-
spondents on June 9, not June 10. The Board has held, with
court approval, that the date of maillng of a charge by a re-
gional office to a charged party is the date of service, and
a charge is timely filed and served if done so within 6
months, even though the charge might not have reached a
charged party in the mail until some date beyond the 10(b)
period. Laborers Local 264 (D & G Construction Co.), 216
NLRB 40 (1975), enfd. 529 F.2d 778 (8th Cir. 1976). Ac-
cordingly, the charge herein was both filed and served in a
timely fashion, even by the Respondents’ reckoning. How-
ever, the Respondents’ contention respecting limitations must
fail on other grounds as well. The limitation set forth in Sec-
tion 10(b) of the Act is a 6-month limitation, not a 180-day
limitation. In this case, the 6-month period expired on June
10, not June 8. Accordingly, the charge herein was timely
since it was filed, served, and received before that date.
2. The effect, if any, of the Worker Adjustment and
Retraining Notification Act of 1988 (WARN)
The Respondents also contend that the complaint in this
case must be dismissed because of the provisions of the
Worker Adjustment and Retraining Notification Act of 1988
(WARN), 29 U.S.C. § 2101, et seq. That Act was passed by
Congress in 1988 to require certain employers who are con-
templating plant closures to give their employees a 2-month
notification of their proposed action, something which did
not occur here. The Respondents contend that WARN pre-
empts the provisions of the National Labor Relations Act
(NLRA) so any prosecution of an employer under the NLRA
for a plant closing violation must defer to the procedural
remedies set forth in WARN. The simple answer to that con-
tention is that the provisions of WARN apply only to
employers of 100 or more employees. 29 U.S.C.
§ 2101(a)(1)(A). The Respondents herein employed only 25
employees in the Speaker Road bargaining unit and far less
than 100 in their entire organization. Accordingly, WARN
does not even apply to the Respondents herein by its own
express provisions.
Secondly, section 8 of WARN states that ‘‘the giving of
notice pursuant to this Chapter, if done in good faith compli-
ance with this Chapter, shall not constitute a violation of the
National Labor Relations Act or the Railway Labor Act.’’ 29
U.S.C. § 2108. Such language clearly suggests an intention
on the part of Congress that the provisions of WARN should
be read together with the provisions of the NLRA, as well
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as the Railway Labor Act, that it does not preempt either of
those statutes, and that the provisions of all three statutes
should be read together to give maximum effect to each of
them. Accordingly, the Respondents’ contentions in this re-
gard must also be rejected.
3. The closing of the Speaker Road plant and the
transfer of bargaining unit work to nonunit employees
without notification and bargaining
The Supreme Court long ago held that the subcontacting
of bargaining unit work to another employer is a mandatory
subject of collective bargaining and may not unilaterally be
accomplished without first notifying the bargaining agent of
the affected employees and giving them an opportunity to
bargain about the transfer. Fibreboard Corp. v. NLRB, 379
U.S. 203 (1964). This obligation exists whether the sub-
contracting is to another company, as in Fibreboard, or
whether the proposed transfer is an in-house relocation of
work from a repesented bargaining unit to some other group
of employees employed by the same employer. Connecticut
Color, 288 NLRB 699 (1988). The mandatory nature of such
bargaining exists in such situations because, as the District
of Columbia pointed out in the second A-1 Fire Protection
case, the allocation of work to a bargaining unit is a term
or condition of employment within the meaning of Section
8(d) of the Act and may not be unilaterally diverted. Road
Sprinkler Fitters Local 669 (A-1 Fire Protection Co.) v.
NLRB, 676 F.2d 826 (D.C. Cir. 1982). See also Soule Glass
& Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir. 1981). Even
when, under exceptional circumstances, a decision to close a
plant and transfer bargaining unit work elsewhere may be ex-
cused from the general mandate of Section 8(d), an employer
must still bargain in good faith with its employees’ bargain-
ing agent over the effects of such a transfer. First National
Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). Even
though a bargainable action is taken by an employer for
purely economic reasons, a duty to negotiate about it exists,
since violations of Section 8(a)(1) and (5) of the Act arising
out of unilteral actions are not necessarily predicated on a
finding of animus or discriminatory intent and normally pre-
sume that the reason for an employer’s disputed action is an
effort to achieve some kind of economic advantage or bene-
fit.
In this case, there is no dispute that, in deciding to close
its Speaker Road plant on January 10, 1992, and to lay off
25 bargaining unit employees, the Respondents did not offer
to bargain with the Union and did not in fact do so before
making the decision. To excuse their failure, they claim the
benefit of an exception to the general rule relating to bar-
gaining over plant closure, layoffs, and transfer of unit work
found in First National Maintenance, supra, and its progeny.
These cases hold that, as to the decision to lay off employees
and close a plant, there is no duty to bargain under Section
8(d) if an employer’s action is prompted solely by entre-
preneurial concerns related to a change in the direction and
scope of its business. In such circumstances, a decision to
close all or a part of a business, as well as consequent lay-
offs and transfer of work, may be undertaken unilaterally, so
long as labor costs are not a factor which prompted the
change or, if such costs were a factor, circumstances were
such that the union involved could not have offered cost con-
cessions which would have changed the employer’s decision
to relocate. Dubuque Packing Co., 303 NLRB 386 (1991).
Before examining the factors supporting the Respondents’
claim that it was solely exercising entrepreneurial discretion
aimed at changing the scope and direction of its enterprise,
it would be well to examine first of all what in fact occurred
on January 10, 1992, and thereafter, as well as just what con-
stitutes the bargaining unit work which the General Counsel
says was illegally diverted. In announcing the layoff to its
employees on January 10 and in notifying the Union of its
action, the Respondents asserted that the layoff in question
was ‘‘indefinite.’’ In the course of this litigation, the term
‘‘indefinite’’ became ‘‘temporary.’’ In its view, the perma-
nent decision to close the Speaker Road plant did not take
place until many months later, when Geiger wrote Gillihan
a letter offering to bargain over the ‘‘permanent’’ decision.
Interestingly, the Respondents, though arguing that the deci-
sion to close ‘‘temporarily’’ was not subject to the 8(d) duty
of notification and bargaining, were apparently willing to ac-
knowledge that their decision to close permanently, brought
to the Union’s attention after the charge in this case was
filed, might actually be a mandatory subject of bargaining.
However, as Gilliham pointed out in his reply, by that time
the Union’s bargaining strength had been so decimated by
the layoff that bargaining would have been futile.
While the Respondents may have characterized the Janu-
ary 10 layoff in question as indefinite, it was in fact perma-
nent and was intended to be such from the very outset. None
of the 25 unit employees who were terminated that day ever
worked again for the Respondents. Within 6 weeks after the
layoff, Respondent Geiger Ready-Mix of Kansas City, Inc.,
the unionized component of this family enterprise, had sold
all of its assets and had transferred them to sister corpora-
tions, principally the corporation which operated the Leaven-
worth facility. This transfer included the Speaker Road
batching plant and approximately 24 trucks which had been
used to make deliveries from that plant. The names and driv-
ing records of the laid-off drivers—marks which had identi-
fied them personally with their vehicles—were removed and
all of the Respondents’ vehicles, wherever domiciled, were
repainted with the same logos, thus making them indistin-
guishable one from the other. The names of the nonunion
companies and their facilities were changed to accommodate
a single identification of all Geiger companies in the public
mind. By the time the Speaker Road facility had reopened
early in March, Geiger Ready-Mix of Kansas City, Inc., the
corporate entity which had operated a unionized ready-mix
company and which technically still had a contractual rela-
tionship with the Union, was a corporate shell having no as-
sets and no employees. It has remained as such since that
time. Its total demise was merely formalized late in 1992.
Both at the layoff meeting and at the hearing in this case,
Geiger left himself a small opening, telling his employees
and the Board that he would have recalled some of the union
drivers if he had received a large bid job from a union con-
tractor. However, he never made any such bids in order to
obtain this type of work and sold concrete to union contrac-
tors only when such work came his way on a quotation
basis. The suggestion that he might recall drivers in some
circumstances and under certain contingencies was, when
translated into practical terms, a statement that he would use
unionized drivers if a customer insisted on such deliveries for
1031GEIGER READY-MIX CO. OF KANSAS CITY
fear of inciting ‘‘area standards’’ picketing by the Union
herein. However, that eventuality never arose. From what
Geiger did, as distinguished from asserted intentions linger-
ing privately in the recesses of his mind, it is clear that the
layoffs he made on January 10 were permanent layoffs and
that they were intended as such from the very outset of the
course of action which he took. Accordingly, the posthumous
offer which Geiger Ready-Mix of Kansas City, Inc., made in
October to bargain over a decision to close permanently was
merely a cosmetic effort to achieve some colorable compli-
ance with the law.
While the Speaker Road layoffs of January 10 were per-
manent, the Speaker Road plant closing was not. Indeed, the
plant was up and running by early March and is still in oper-
ation, although under the aegis of another of the Geiger fam-
ily corporations and perhaps not on the same scale as in
1991. Concrete is being batched; approximately 14 trucks are
delivering it to a host of locations, and they continue to be
dispatched on a centralized basis along with trucks domiciled
at other locations. Moreover, trucks are still being maintained
and repaired in its shop. In light of these undisputed facts,
it is very questionable what Geiger meant when he wrote
Gillihan on October 29 offering to bargain about a decision
to make a temporary plant closing permanent. The Speaker
Road facility was producing concrete then and it is producing
concrete now, and there is no credible evidence in this record
that the Respondents have any intention whatsoever of actu-
ally terminating this operation.
Since the allocation of bargaining unit work is, with the
exceptions noted above, a mandatory subject of bargaining,
there must first be some determination of what that work was
in order to ascertain whether or not a violation has occurred.
This determination is complicated by the fact that the bar-
gaining unit description in the contract between the Union
and the now-defunct Kansas City corporation was inartfully
drawn. The contract states that the jurisdiction of the agree-
ment extends to 13 named counties in Kansas and Missouri.
The section on wage rates sets forth the wage scales for four
classifications of employees—two classes of truckdrivers,
mechanics, and mechanics helpers. The union-security article
states that the Company recognized Local 541 as the exclu-
sive representative ‘‘for all its employees within the jurisdic-
tion described in Article III hereof who are employed by the
Company to work in the job classifications listed in Section
1 of Article VI hereof.’’ Since only unionized drivers from
Speaker Road were entitled to deliver concrete batched at
that plant, it is clear that bargaining unit work included all
concrete customarily batched and delivered from that point,
regardless of whether it was delivered to union or nonunion
jobsites. Unionized drivers from Speaker Road were also as-
signed, and were permitted by union officials, to make deliv-
eries of concrete batched at Lenexa and Liberty to any con-
venient jobsite and in fact they did so. Beginning in 1987,
all of these deliveries, as well as all of the deliveries made
by Lenexa and Liberty drivers, were dispatched from a cen-
tral location and, as noted previously, the only practical limi-
tation on those daily dispatching decisions was that nonunion
drivers could not be sent to any jobsites where union con-
tractors would refuse to take a nonunion delivery. Some
union contractors refused such deliveries and others did not.
Within that broad parameter, the location of the job and the
availability of trucks at any particular plant were the factors
which controlled dispatching decisions.
In setting forth the causes of its financial predicament and
the factors which prompted it to close its unionized facility,
the Respondents painted a picture of the concrete business in
the Metropolitan Kansas City area which, at best, only par-
tially conformed to record evidence. According to the Re-
spondents, there were basically three markets—the unionized
‘‘bid’’ work on large buildings and highway construction,
unionized nonbid or quoted work, and nonunion small com-
mercial and residential work which was also supplied on a
quotation basis. However, as far as defining unit work at
Speaker Road vis-a-vis the other facilities, this description of
the market by the Respondents by no means provided a hard
and fast delineation of the work actually performed by the
respective groups of their drivers. Data from the Respond-
ents’ records placed in evidence by the General Counsel es-
tablishes a substantial overlapping of customers who were
supplied from the Speaker Road, Lenexa, Liberty, and Leav-
enworth locations. In 1991, some 31 customers, to whom
Speaker Road drivers delivered over 46,000 cubic yards of
concrete, also received concrete from one or more of the Re-
spondents’ other plants and in some instances in very sub-
stantial amounts. (See G.C. Exhs. 12(a) and (b).)
In the first 5 months of 1992, despite the diminished activ-
ity of the Speaker Road plant following the January layoff,
drivers from Speaker Road made deliveries of 2658 cubic
yards of concrete to a total of 22 contractors who were also
supplied by Respondents’ drivers from other locations. As
might be expected, the amounts provided by Lenexa, Liberty,
and Leavenworth drivers during that period of time were
much the larger share of the total deliveries. As noted above,
in 1992, the Respondents delivered, in toto, almost as much
concrete as they delivered, in the aggregate, in 1991 when
the Speaker Road plant was fully functioning. This occurred
because the amounts delivered from Liberty and Lenexa in-
creased dramatically. In 1991, the 78,200 cubic yards deliv-
ered from Speaker Road constituted approximately 34 per-
cent of the total of 227,400 cubic yards of concrete delivered
from all of the Respondents’ locations during that year. In
light of these factors, a proper definition of unit work at the
Speaker Road plant on January 10, 1992, would be 34 per-
cent of the Respondents’ total deliveries of concrete, in addi-
tion to sufficient batching work to employ the batchmen and
two mechanics. It is this unit work which is at issue in this
case.
In my opinion, even if Dubuque Packing, supra, were ap-
plicable, the exemption provided by Dubuque Packing and
First National Maintenance supra, for bargaining over the
decision to shut down a plant and relocate unit work is un-
available to the Respondents in this case for two reasons.
First of all, the exemption from bargaining provided by these
cases applies only to permanent plant shutdowns, not to tem-
porary shutdowns, because permanent change in the direction
and scope of an enterprise can hardly be said to exist where
a plant shutdown is only temporary in character. In this case,
the January 10 shutdown lasted only 4 or 5 weeks. There-
after, the plant was reopened and operated by management
and other nonbargaining unit personnel. Deliveries began to
be made, and are still being made, by nonunit drivers, most
of whom are technically assigned to other locations but work
out of Speaker Road. Second, the rationale of Dubuque
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 One of the usual factors found in purely entrepreneurial deci-
sions exempt from bargaining is a reallocation of capital from one
facet or phase of an employer’s enterprise to another facet of its ac-
tivity. Here there was no such capital reallocation. Respondents sold
a few old trucks and bought a few new ones, but they were used
to do the same work, in the same market, and from the same source
of concrete as in the pre-January 10 operation.
13 There has never been any contention that the kind or quality of
concrete batched at Speaker Road differed in any respect from the
kind or quality of concrete batched by the Respondents at any of
their other plants.
Packing and First National Maintenance cannot be called
into play where the shutdown, layoff, or relocation of work
is prompted by labor costs. It is clear in this case that labor
costs were the driving force which propelled the action the
Respondents took on January 10. Indeed, when Geiger was
pressed to cite some reason other than labor costs which in-
fluenced the shutdown and layoff decision, he could speak
only generally in terms of geography. However, the Speaker
Road plant is the hub of the four plants which the Respond-
ents operate. The site was selected at the outset because of
its proximity to interstate highways providing its trucks with
easy and fast access to a wide range of jobsites and is still
being utilized to make a host of concrete deliveries in the
daily dispatching decisions in the Respondents’ centralized
operation. When asked why the Respondents did not lay off
employees from one of their nonunion plants and move
Speaker Road bargaining unit employees to one of those lo-
cations, Geiger had no answer, responding only that such a
move was never even contemplated. Since the hourly labor
cost at Speaker Road was about $4–$6 higher than at any of
the nonunion operations when the cost of fringe benefits was
figured in, it is clear that the January 10 closing and layoff
was solely a labor cost related move and, as such, was not
exempt from the duty to bargain set forth in Section 8(d) of
the Act and explicated in the most recent of the Dubuque
Packing decisions.
To the labor cost exception to the Dubuque Packing rule,
there is a further exception which allows an employer, who
shuts down a plant or a section thereof and lays off all or
part of a bargaining unit, to assert that it had no duty to bar-
gain, notwithstanding the fact that labor costs were the pri-
mary factor in its decision, if ‘‘the union could not have of-
fered labor cost concessions that could have changed the em-
ployer’s decision to relocate.’’ Supra. To bring itself under
this exception to the labor cost exception, an employer must
offer something more than a self-serving assertion that there
was nothing the bargaining agent of its unionized employees
could do to change its mind. In this case, during the 1989
bargaining and the strike which attended those negotiations,
the Union agreed to a wage rate several dollars less than
what its members had been receiving during the previous
contract term. During the 1989–1992 contract term, in re-
sponse to the employer’s ongoing complaint that the lower
contractual wage rates were still making it uncompetitive in
a portion of its market, the Union agreed to a requested
modification of contract terms which gave the Respondents
two wage rates, one for deliveries in the union market and
another for deliveries in the residential or nonunion portion
of the market. When this modification, requested by Geiger,
proved to be unworkable, it agreed to a further modification
for a ‘‘blended’’ wage rate of $13.50 an hour. When Geiger
complained that its Speaker Road trucks were running empty
because of a union rule forbidding union drivers to receive
loads of concrete at nonunion batching plants, the Union
modified this rule and permitted its members to load up at
Lenexa and Liberty to avoid running empty over long dis-
tances. Far from being indifferent or insensitive to Geiger’s
business problems, the Union herein has had a long track
record of making economic concessions to assist the Re-
spondents in competing in all of its markets. However, no
‘‘give-backs’’ were ever enough and, for its trouble, the
Union and its members found themselves literally out in the
cold one January morning as the result of a unilateral deci-
sion which was surreptitiously made and concealed from
them until the last possible moment, when any effort toward
meaningful negotiations would have been pointless. Leaving
aside the bargaining history and the equities of this situation,
to the Respondents’ contention that there was nothing the
Union could have done to relieve the economic distress in
which the Respondents purportedly found themselves in late
December 1991 and its claim to fall within the exception to
the exception found in the Dubuque Packing rule, the simple
answer is that the Union was never asked. It is plain that the
January 10 action by the Respondents herein was not an en-
trepreneurial decision aimed at changing the scope and direc-
tion of the enterprise.12 It was a cost-cutting exercise aimed
at replacing higher priced drivers with lower priced drivers.
As such, the activity did not come within the ambit of First
National Maintenance and Dubuque Packing. See Mid-State
Ready Mix Co., 307 NLRB 809 (1992). Accordingly, by de-
ciding to close its Speaker Road facility temporarily and to
lay off its Speaker Road bargaining unit employees perma-
nently without first notifying the Union and offering to bar-
gain with it concerning the decision, the Respondents herein
violated Section 8(a)(1) and (5) of the Act.
The loss of bargaining unit work at Speaker Road was not
the result of impersonal market forces bearing down upon a
hapless employer who found itself in a desperate, last-ditch
fight to rescue its business. It is true that the number of bar-
gaining unit hours worked by Speaker Road employees in
1991 was less than the number of hours worked the previous
year (30,809 vs. 41,714). However, the 1991 figure exceeded
the number of hours those employees worked compared to
1985 (30,809 vs. 25,709), when, according to the Respond-
ents’ view of business conditions, the concrete industry in
the Kansas City area was a level playing field and all union-
ized contractors could compete with each other and still pros-
per. Bargaining unit work at Speaker Road was not a sharply
defined, highly structured, and discrete segment of the Re-
spondents’ total concrete production. It was a percentage of
an interchangeable or ‘‘fungible’’ commodity13 produced
throughout all of the Respondents’ plants and, in 1991, it
was the largest percentage. Both before and after the January
10 layoff, the Respondents had the power, within broad limi-
tations, to adjust that percentage and, following the layoff,
that is just what it did. As production at Speaker Road
dropped dramatically, production and delivery of concrete at
its other locations increased to offset that decline. I conclude
that, by transferring a significant portion of the bargaining
unit work from Speaker Road to be performed at other loca-
tions or by employees assigned to other locations who ob-
tained their loads at Speaker Road, without the necessary no-
tice and bargaining and in order to accommodate its plan to
1033GEIGER READY-MIX CO. OF KANSAS CITY
14 The decision was actually made 3 weeks before it was an-
nounced and effectuated.
shut down Speaker Road and eliminate all unit employees,
the Respondents herein violated Section 8(a)(1) and (5) of
the Act.
As noted before, even under the strictures of First Na-
tional Maintenance and Dubuque Packing, an employer who
may lawfully close its plant without notification and bargain-
ing with the representative of plant employees must still give
the employee representative an opportunity to bargain mean-
ingfully concerning the effects of such actions on unit em-
ployees. The Respondents’ efforts in this regard barely rose
to the level of perfunctory. The duty of notice and bargaining
requires such bargaining before the decision is implemented,
when a union still has some bargaining strength at its com-
mand, unless there is an emergency situation not present in
this case.14 Metropolitan Teletronics, 279 NLRB 957 (1986);
Willamette Tug & Barge Co., 300 NLRB 282 (1990);
Chrissy Sportswear, 304 NLRB 988 (1991). In this case,
Flaherty did not call the Union to announce the company ac-
tion until after the layoff had been accomplished and then all
that he did was to ask the individual who answered the
phone at the union office to transmit his message to the offi-
cial who was responsible for dealing with the Respondents.
Nowhere in this message, or in the written letter which fol-
lowed, was there an offer to bargain over effects. After the
Union filed its request for information, the parties met and
discussed the request at hand. I credit Gillihan’s testimony,
supported by Geiger’s pretrial affidavit, that no discussion of
the effects of the layoff took place during this meeting. The
conversation related strictly to the information request and to
casual conversation about the good old days in the concrete
industry. Having failed to engage in meaningful bargaining
over the effects of the shutdown and layoffs and having pre-
empted the possibility that such bargaining might take place
by their own abrupt behavior, the Respondents herein vio-
lated Section 8(a)(1) and (5) of the Act.
4. Waiver by the Union of the right to bargain
Respondents further assert that, regardless of the applica-
bility of First National Maintenance and Dubuque Packing,
the Union waived its right to notice and an opportunity to
bargain over the decision and the effects of the January 10
plant closing and layoff by virtue of a provision in its 1991–
1994 contract which states:
Section 1. The Company shall have the right to man-
age the business and direct the working force. Manage-
ment of the business includes the right to plan, direct,
and control all operations; to hire, assign employees to
do work, and transfer employees; to promote, demote,
discipline, suspend, or discharge employees for just
cause; to relieve employees from duty because of lack
of work or any other legitimate reasons; to introduce
new and improved methods or facilities, or to change
existing methods or facilities and the right to make and
enforce reasonable rules implemented to carry out the
functions of management.
. . . .
Section 3. The Company shall, at all times, deter-
mine the number of employees required.
The Supreme Court long ago stated that the Act disfavors
waivers of statutorily protected rights and will find such a
waiver only when it has been made in a ‘‘clear and unmis-
takable’’ manner. Metropolitan Edison Co. v. NLRB, 460
U.S. 693 (1983). There is nothing in the above-quoted man-
agement-rights clause which confers on the Respondents the
right to relocate unit work. The Board held in Dubuque
Packing that general language in a management-rights clause
does not excuse a failure to bargain over plant relocation and
that the Union’s right to bargain collectively over such deci-
sions, as well as the effects of such decisions, will not be
waived unless unit work relocation is expressly spelled out
in a contract waiver. No such waiver can be found in the
language of the Respondents’ contract covering the Speaker
Road bargaining unit.
5. The refusal of the Respondents to provide certain
information to the Union
It has long been held that an employer is obligated by Sec-
tion 8(a)(5) of the Act to provide the bargaining agent of its
employees with information which is relevant to the perform-
ance by the union of its duty as bargaining agent. NLRB v.
Truitt Co., 351 U.S. 149 (1956). While the Respondents
herein provided the Union with a wealth of detailed informa-
tion concerning their corporate structure and the interrelation
of the various components of the Geiger enterprise, they re-
fused, both orally and in writing, to provide the Union with
a list of their customers or the jobsites to which they were
making deliveries. They claimed that such information was
confidential.
Whether or not requested information is, in the opinion of
an employer, confidential is irrelevant to its duty to supply
it. The issue is whether the information in question is rel-
evant to the performance by the requesting union of its duties
as bargaining agent. Mary Thompson Hospital, 296 NLRB
1245 (1989), enfd. 943 F.2d 741 (7th Cir. 1991). In this in-
stance, the requesting union asked for a list of the Respond-
ents’ customers and the jobsites it was servicing in order to
determine whether the Respondents were relocating bargain-
ing unit work that should have been performed by Speaker
Road drivers. Such information is not only relevant but cru-
cial to the Union in representing the interests of laid-off
members who may have been entitled to perform the work
in question. Blue Diamond Co., 295 NLRB 1007 (1989);
Bentley-Jost Electrical Corp., 283 NLRB 564 (1987).
As a matter of fact, much of the requested information
eventually came to the Union’s attention in the course of this
litigation and is in evidence in this case. That eventuality is
also irrelevant because the duty to supply relevant informa-
tion is a duty to supply such information in a timely fashion
and to provide it to the Union, not to the Board. Accord-
ingly, by failing to supply the Union with information con-
cerning its customers and the jobsites it was servicing, the
Respondents herein violated Section 8(a)(1) and (5).
On the foregoing findings of fact and upon the entire
record herein considered as a whole, I make the following
CONCLUSIONS OF LAW
1. The Respondents, Geiger Ready-Mix Co. of Kansas
City, Inc., Geiger Ready-Mix Co. of Kansas, Inc., Geiger
Ready-Mix Co. of Missouri, Inc., and Geiger Ready-Mix
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 F. W. Woolworth Co., 90 NLRB 289 (1950).
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Co., Inc., are a single employer and each of them is now and
at all times material herein has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Building Material, Excavating, Heavy Haulers, Drivers,
Warehousemen and Helpers, Local Union No. 541, affiliated
with International Brotherhood of Teamsters, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time drivers, mechanics,
and mechanics helpers and batchmen employed by the Re-
spondent Geiger Ready-Mix Co. of Kansas City, Inc., in the
counties of Jackson, Clay, Platte, Ray, Lafayette, Johnson,
Bates, Henry, and Cass in Missouri and Wyandotte, Johnson,
Leavenworth, and Miami in Kansas, excluding office clerical
employees, guards, supervisors, as defined in the Act, and
other employees constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein the Union has been the ex-
clusive collective-bargaining agent of all employees em-
ployed in the unit found appropriate in Conclusion of Law
3 for the purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By failing and refusing to notify the Union and to give
it an opportunity to bargain collectively concerning a deci-
sion to close the Speaker Road plant, to lay off unit employ-
ees, and to transfer unit work to nonunit employees, and by
failing and refusing to give the Union an opportunity to bar-
gain collectively over the effects of such decision; by unilat-
erally relocating unit work to affiliated entities, assigning
unit work to employees outside the bargaining unit set forth
above, and by laying off unit employees to accomplish these
ends; and by refusing to furnish the Union with requested in-
formation relating to the relocation of unit work, the Re-
spondents herein violated Section 8(a)(1) and (5) of the Act.
The aforesaid unfair labor practices have a close, intimate,
and substantial effect on the free flow of commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondents herein have engaged in
certain unfair labor practices, I will recommend that they be
required to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and
policies of the Act. Because the violations of the Act by this
employer are pervasive and evidence on its part an attitude
of disregard for its statutory obligations and the rights of its
employees, I will recommend to the Board a so-called broad
8(a)(1) remedy designed to suppress all violations of that
section of the Act. Hickmott Foods., 242 NLRB 1357 (1979).
I will recommend that Respondent Geiger Ready-Mix Co. of
Kansas City, Inc., be required to offer full and immediate re-
instatement to all of its bargaining unit employees to their
former or substantially equivalent positions, and that the Re-
spondents be required to make whole those employees for
any loss of earnings which they may have sustained by rea-
son of the unlawful transfer of work and layoffs found here-
in, in accordance with the Woolworth formula15 with interest
thereon at the rate prescribed by the Tax Reform Act of 1986
for the overpayment and underpayment of income tax. New
Horizons for the Retarded, 283 NLRB 1173 (1987). The rec-
ommended Order will also require the Respondents to reim-
burse union fringe benefit funds for all moneys which have
been unlawfully withheld as the result of the January 10,
1992 layoff, with interest computed at the compliance stage
of these proceedings. Merryweather Optical Co., 240 NLRB
1213 (1979).
The recommended Order will require the Respondents to
restore to the Speaker Road plant and to the bargaining unit,
as described above, all bargaining unit work which was un-
lawfully transferred to nonunit employees. Said work is de-
fined as the proportion of work performed by employees as-
signed to that plant in that unit in the calendar year imme-
diately preceding the January 10, 1992 layoff to the total
amount of work performed by all Respondents in that year.
Respondents will also be required to supply to the Union all
information requested by it in its letter of March 24, 1992,
including, but not limited to, a list of all customers which
all Respondents herein have been servicing and a list of all
jobsites to which all Respondents have been delivering con-
crete. I will also require the Respondents to post the usual
notice, advising their employees of their rights and of the re-
sults in this case.
On the foregoing findings of fact and conclusions of law
and on the entire record, I make the following rec-
ommended16
ORDER
The Respondents, Geiger Ready-Mix Co. of Kansas City,
Inc., Geiger Ready-Mix Co. of Kansas, Inc., Geiger Ready-
Mix Co. of Missouri, Inc., and Geiger Ready-Mix Co., Inc.,
and each of them jointly and severally, and their officers,
agents, attorneys, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith with
Building Material, Excavating, Heavy Haulers, Drivers,
Warehousemen and Helpers, Local Union No. 541, affiliated
with International Brotherhood of Teasmters, AFL–CIO as
the exclusive collective-bargaining representative of all of its
drivers, mechanics, mechanics helpers, and batchmen em-
ployed in a 13-county area in and around Kansas City, Kan-
sas, excluding all office clerical employees, guards, and su-
pervisors, as defined in the Act, and all other employees.
(b) Refusing to bargain with the Union with respect to any
decision to shut down its Speaker Road, Kansas City, Kansas
facility, to lay off bargaining unit employees employed at
such facility, or to transfer bargaining unit work from that
facility to nonunit employees, or refusing to bargain with the
Union with respect to the effects on bargaining unit employ-
ees of any such shutdown, layoff, or transfer of bargaining
unit work to nonunit employees.
(c) Unilaterally transferring bargaining unit work per-
formed by bargaining unit employees employed at its Speak-
er Road, Kansas City, Kansas facility, to nonunit employees
or assigning nonunit employees to perform such work, or
unilaterally shutting down the facility or laying off bargain-
1035GEIGER READY-MIX CO. OF KANSAS CITY
17 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
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.’’
ing unit employees to accomplish such shutdown or transfer
of bargaining unit work.
(d) Refusing to furnish the Union with information relative
to the Union’s duty as bargaining agent, including, but not
limited to, lists of customers of any of the Respondents and
lists of jobsites to which any of the Respondents have deliv-
ered concrete.
(e) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively in good faith with the
Union concerning any decision to close down facilities em-
ploying bargaining unit employees, to transfer bargaining
work out of the bargaining unit, or to assign bargaining unit
work to nonunit employees, and bargain in good faith con-
cerning the effects on employees of any such decisions.
(b) Offer to all employees of the Speaker Road, Kansas
City, Kansas plant who were laid off on January 10, 1992,
full and immediate reinstatement to their former or substan-
tially equivalent positions and make them whole for any loss
of pay or benefits suffered by them by reason of the unlaw-
ful conduct found herein, in the manner described above in
the remedy section.
(c) Transfer back to the Speaker Road bargaining unit all
bargaining unit work transferred out of that unit to nonunit
employees. Bargaining unit work is defined as that propor-
tion of the total work performed by all Respondents in cal-
endar year 1991 which was performed by bargaining unit
employees employed by Geiger Ready-Mix Co. of Kansas
City, Inc., at its Speaker Road, Kansas City, Kansas facility.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at all of the Respondents’ facilities at Leaven-
worth, Kansas, and in the Metropolitan Kansas City area
copies of the attached notice marked ‘‘Appendix.’’17 Copies
of the notice, on forms provided by the Regional Director for
Region 17, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondents to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondents have
taken to comply.