Hanson Aggregates BMC, Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 23, 2006

04-CA-033330 (N.L.R.B. Oct. 23, 2006)

JD–77–06
Penns Park, PA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

HANSON AGGREGATES BMC, INC.

and Cases 4-CA-33330
4-CA-33508
4-CA-33547
4-CA-34290
4-CA-34362
4-CA-34363
4-CA-34378

INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 542, AFL-CIO

Margaret M. McGovern, Esq. and Elana R. Hollo, Esq.,
of Philadelphia, PA, for the General Counsel.
Louis Agre, Esq., of Fort Washington, PA,
for the Charging Party.
Karl A. Fritton, Esq. and Jonathan R. Nadler, Esq.,
of Philadelphia, PA, for the Respondent-Employer.

DECISION

Statement of the Case

Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on May
18 and 19 and July 17 through 20, 2006, in Philadelphia, Pennsylvania pursuant to a
Consolidated Complaint and Notice of Hearing in the subject cases (complaint) issued on April
3, 2006, by the Regional Director for Region 4 of the National Labor Relations Board (the
Board). The underlying charges were filed on various dates in 2004, 20051 and 2006 by
International Union of Operating Engineers, Local 542, AFL-CIO (the Charging Party or Union)
alleging that Hanson Aggregates BMC, Inc. (the Respondent or Employer), has engaged in
certain violations of Section 8(a)(1), (3) and (5) of the National Labor Relations Act (the Act).
The Respondent filed a timely answer to the complaint denying that it had committed any
violations of the Act.

1 All dates are in 2005 unless otherwise indicated.

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Issues

The complaint alleges that the Respondent engaged in a number of independent
violations of Section 8(a)(1) of the Act including coercive interrogation, threats of unspecified
reprisals and the solicitation of grievances and complaints while promising improved terms and
conditions of employment in order to discourage employees from supporting the Union. The
complaint further alleges the Respondent terminated an employee and issued written
attendance and tardiness warnings to employees in violation of Section 8(a)(1) and (3) of the
Act. Additionally, the complaint alleges that the Respondent refused to provide necessary and
relevant information to the Union and unilaterally implemented a number of mandatory subjects
of bargaining in violation of Section 8(a)(1) and (5) of the Act without notice or affording the
Union an opportunity to bargain absent an overall impasse in good faith bargaining.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel2 and the Respondent, I make the
following

Findings of Fact

I. Jurisdiction

The Respondent is a corporation engaged in extracting and processing crushed stone
and manufacturing bituminous asphalt at its quarry in Penns Park, Pennsylvania, where it
annually sold and shipped goods and materials valued in excess of $50,000 directly to
customers located outside the Commonwealth of Pennsylvania. The Respondent admits and I
find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the
Act.

II. Alleged Unfair Labor Practices

A. Background

Respondent is a United Kingdom based operator of quarries throughout the world. It
employs approximately 9000 workers, many of whom are represented by labor organizations.

Respondent took over operations of the quarry in Penns Park, Pennsylvania from a
predecessor employer in the summer of 2003. Around that time, the Union commenced an
organizing campaign and filed a representation petition. An election was held in July 2003
which the Union lost. The following year the Union again attempted to organize the
Respondent’s employees. After a petition was filed, an election was held on August 31, 2004.
The Union won the election and was certified by the Board on September 9, 2004 (GC Exh. 3).

At all material times, Tom Spellman was Respondent’s Operation Manager for South
Eastern Pennsylvania and New Jersey, Shawn Gorg served as the Plant Manager and Doug
Chilson held the position of Assistant Plant Manager. Manager of Labor Relations Jeffrey Carey

2 The General Counsel’s motion to correct the transcript attached to its brief, is granted. I
note, however, that the change from Ms. McGovern at page 365, line10, should be to Mr.
Nadler.

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served as the Respondent’s chief negotiator during the parties’ collective bargaining
negotiations.

Union organizer Frank Bankard attended each of the 26 collective bargaining sessions
held between the parties and served as the primary note taker while employee Glen Peabody
was one of the Union’s leading adherents who worked on the night shift at the Respondent’s
quarry. International Representative Joseph Giacin served as the Union’s chief negotiator from
February 2005 to January 2006.

The parties commenced collective bargaining negotiations for an initial contract in the fall
of 2004 but have been unable to reach an agreement to date. The Respondent proffered its last
and best contract offer to the Union on or about September 2 that was rejected by the Union
membership on September 28.

B. The Section 8(a)(1) Allegations

1. Allegations Concerning Doug Chilson

The General Counsel alleges in paragraph 6 (a)-(e) of the complaint that Chilson in July
and August 2004, interrogated employees concerning their union sympathies, solicited
employee’s complaints and grievances in order to discourage employees from supporting the
Union and threatened employees with unspecified reprisals if they continued to support the
Union.

The Board has held that interrogation is not a per se violation of Section 8(a)(1) of the
Act. Rossmore House, 269 NLRB 1176, (1984), affd. sub nom. Hotel Employees Union Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determining whether an interrogation is unlawful,
the Board examines whether, under all the circumstances the questioning reasonably tends to
interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Rossmore
House, 269 NLRB at 1177-1178. Emery Worldwide, 309 NLRB 185, 186 (1992). Under the
totality of circumstances approach, the Board examines factors such as whether the
interrogated employee is an open and active union supporter, the background of the
interrogation, the nature of the information sought, the identity of the questioner, and the place
and method of interrogation. Rossmore House, 269 NLRB at 1178 fn. 20; Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964); Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).

(a) Conversation in Mid-July 2004 at the Quarry

Employee Darlene Foerster testified that she was aware of the Union’s organizing
campaign in the summer of 2004. Sometime in mid-July 2004, while she was working in the
batch plant control room, Chilson asked her, “What do you think about unions.” Foerster
replied, “I have not had any bad experiences.” Foerster further testified that Chilson asked her if
we treat you ok here and stated that we have done good things for you by whenever you were
out sick you could use a vacation day. According to Foerster, Chilson said a number of
negative things about the Union and ended the conversation by stating, “It may be for your best
interests not to vote for a Union.”

Employee Frederick Goodman testified that in mid-July 2004, while in Chilson’s truck, he
was asked by Chilson “What do you think about this Union thing and do you need a mouth piece
or need somebody to talk for you.” Goodman replied, I can speak for myself.

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While Chilson testified during the course of the hearing, the Respondent did not ask him
any questions about his conversations with Foerster or Goodman.

Foerster impressed me as a credible witness whose testimony has a ring of truth to it.
Her straight forward recitation of what Chilson stated in there conversation convinces me that
Chilson made the statements alleged in the complaint. Likewise, I note a pattern with Chilson
asking and making the same statements to a number of different employees.

For all of these reasons, and particularly noting that the Respondent did not rebut the
testimony of the General Counsel’s witnesses regarding this allegation, I find that Chilson’s
statements violated Section 8(a)(1) of the Act as alleged in paragraph 6(a) of the complaint.
Goya Foods of Florida, 347 NLRB No. 103 (2006).

b. Conversation on July 21 in Chilson’s Office

Peabody testified that while he was in the office when Chilson was going over some
records of absenteeism, Chilson asked him, “What do you think about this Union drive,” and
“What could the Union do for you that the Company can’t do for you.” Chilson further stated
during the conversation that “I hope that you will change your mind and vote for the company
and give the company a chance.”

The conversation and the questions asked are not unlike the same exchange that
Chilson had with Foerster and Goodman. The conversation with Peabody took place prior to
the representation election and is consistent in all respects with the method that Chilson
followed when engaging employees in conversations about the Union campaign.

Under these circumstances, and noting that Chilson did not rebut Peabody’s testimony
supporting this allegation, I conclude that the statements made by Chilson are threatening and
coercive. Therefore, I find that they violate section 8(a)(1) of the Act.

(c) Conversations on July 21 and mid-August 2004 in Chilson’s Truck

James Hall currently works for the Union as an organizer and was terminated by the
Respondent on September 3, 2004. During his tenure of employment, he testified that he had
several conversations with Chilson when the Union was discussed. In the first conversation that
occurred on or about July 21, 2004, while he was working in the asphalt plant, Hall got into
Chilson’s truck. According to Hall, Chilson asked him “Whether he was going to vote ‘yes or no’
for the Union.” Hall replied that he had been in the Union for 21-22 years and never had a
problem with it.

In the second conversation that occurred in mid-August 2004, Hall was talking to
employee Sharon Orrick near the scale house, and was trying to convince her to vote for the
Union. According to Hall, Chilson came around the corner and said in the presence of both
employees, “You guys are going to vote no, aren’t you.” Hall replied, no, I am going to vote yes.

Chilson did not rebut the statements attributed to him by Hall. The Respondent
challenges Hall’s credibility and argues that he is biased because of his termination and
affiliation with the Union. I am convinced that Chilson made the statements in his conversations
with Hall. Once again, these statements are consistent with the testimony of three other
employees who also had conversations with Chilson about the Union.

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Under these circumstances I conclude that the statements are coercive and therefore,
find that the Respondent violated Section 8(a)(1) of the Act as alleged in paragraphs 6(c) and
(e) of the complaint.

(d) Conversation in mid-August 2004 in Chilson’s Truck

Peabody testified that in or around mid-August 2004 while working at the quarry he had
an occasion to get into Chilson’s truck. The topic of the Union election came up and Chilson
made a number of statements about the Union. He first asked Peabody, “How he was leaning
towards the vote.” Peabody replied that he was always for the Union. Chilson said, “I was
hoping that you would change your mind that the Union can’t do anything for you. I hope you
think real hard and hopefully you change your mind about voting for the Union and give the
company a second chance.” Peabody replied that we gave the Company a chance in 2003 and
they didn’t do anything so that is why we are going to have another vote.

Chilson did not rebut the statements that Peabody attributed to him.

I am convinced that Peabody’s recitation of the conversation is accurate. Chilson
consistently interrogated a number of employees about there sympathies for the Union and how
they intended to cast their vote.

For all of these reasons, I find that Chilson made the statements alleged in paragraph
6(d) of the compliant. Therefore, they are violative of Section 8(a)(1) of the Act.

2. Allegations Concerning Shawn Gorg

The General Counsel alleges in paragraph 7 of the complaint that Gorg interrogated an
employee concerning the employee’s Union sympathies.

a. Facts

Employee George Benneman testified that sometime in July 2004, but definitely before
the August 31, 2004 representation election, he had a conversation with Gorg near the shop.
Benneman admitted that he initiated the conversation with Gorg by stating to him, “that he did
not believe these people really knew what a union is all about.” Gorg replied, “What do you
think.” Benneman replied, I think the Union will be voted in.

b. Analysis

Although Gorg did not testify at the hearing, I am not convinced that the above recitation
violates the Act. In this regard, Benneman initiated the conversation and Gorg’s reply in no way
can be considered coercive or threatening that rises to the level of interrogation under the Act.
Therefore, I recommend that paragraph 7 of the complaint be dismissed.3

3. Allegations Concerning Tom Spellman

The General Counsel alleges in paragraph 8 of the complaint that Spellman
interrogated an employee concerning the employee’s Union sympathies.

3 The General Counsel, in its post hearing brief, concedes this issue.

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Foerster testified that while working at the quarry in August 2004, she had a
conversation with Spellman in her truck. Spellman asked Foerster, “What she thought about
Union’s.” Foerster replied that she never had a problem with one before. Spellman asked
Foerster to give the Company another chance to prove itself and asked her to think about it.

Although Spellman testified during the course of the hearing he did not rebut the
statements attributed to him by Foerster.

I am convinced that Spellman made the statement alleged in paragraph 8 of the
complaint. First, as I found above, Foerster is a credible witness who testified under subpoena
and articulated her recitation of the conversation in a clear, concise and forthright manner.
Second, the timing of the conversation was proximate to the scheduled representation election
on August 31, 2004. Lastly, the question raised by Spellman was consistent with the
conversations that Chilson had with Foerster earlier in July 2004. I note that Chilson admitted
that in either June or July 2004, he informed Plant Manager Gorg of the Union’s distribution of
organizing cards at the quarry. If both Chilson and Gorg knew about the Union distributing
authorization cards, I infer that Spellman, as there superior, was also aware of the organizing
campaign. I base this on Chilson’s testimony that Gorg told him he would pass the information
on and Chilson’s testimony that on September 2 and 3, 2004, he telephoned Spellman on three
occasions to inform him of incidents that occurred at the quarry during the night shift.

For all of these reasons, I find that Spellman interrogated Foerster about her union
sympathy which is violative of Section 8(a)(1) of the Act.

C. The 8(a)(1) and (3) Allegations

1. Allegations Concerning Written Attendance and Tardiness Warnings

The General Counsel alleges in paragraph 9 of the complaint that Respondent
issued written attendance and tardiness warnings to seventeen employees because they were
seeking Union representation and selected the Union as their collective bargaining
representative.

In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the employer decision. On such a showing,
the burden shifts to the employer to demonstrate that the same action would have taken place
even in the absence of the protected conduct. The United States Supreme Court approved and
adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S.
393, 399-403 (1983). In Manno Electric, 321 NLRB 278, fn. 12 (1996), the Board restated the
test as follows. The General Counsel has the burden to persuade that antiunion sentiment was
a substantial or motivating factor in the challenged employer decision. The burden of
persuasion then shifts to the employer to prove its affirmative defense that it would have taken
the same action even if the employee had not engaged in the protected activity.

a. Facts

The Respondent, in its answer, admits that it issued written attendance and tardiness
warnings to seventeen employees on or about the dates alleged in the complaint but denied that
the warnings were in any way related to the employee’s union activities.

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The General Counsel offered limited evidence to link the warnings with the employee’s
union activities. Indeed, some of the employees that testified on behalf of the General Counsel
including Peabody, Foerster and James Lamb, all admitted that they were late or absent from
work for which they received written warnings. For example, Lamb admitted that he was late
ten times before receiving the July 24, 2004 written warning and was verbally warned about his
tardiness on a number of occasions before he received the disciplinary warning. I also note that
the General Counsel introduced an exhibit into evidence that showed the absenteeism and
tardiness written warnings between November 2002 and September 2004 of those employees
listed in paragraph 9 of the complaint (GC Exh. 16).

b. Analysis

Since the General Counsel did not establish its Wright Line burden or show any nexus
between the employee’s union activities and the written warnings, it has not proven the
allegations in paragraph 9 of the complaint. Although, I previously found that Respondent
representatives interrogated three employees about there union sympathies who are listed in
paragraph 9 of the complaint, the General Counsel did not conclusively establish that these
employees received the written warnings because of their union activities. Indeed, the three
employees admitted that they were late or absent and that is why they received the written
warnings. In fact, of the remaining fourteen employees listed in the complaint, the General
Counsel did not submit any evidence that these individuals were involved in union activities
other then the mere allegation that they received the written warnings because they selected the
Union as their collective bargaining representative.4

Under these circumstances, I recommend that this allegation be dismissed.

2. The Termination of Glen Peabody

The General Counsel alleges in paragraph 10 of the complaint that on or about
September 7, 2004, the Respondent discharged its employee Glen Peabody because he was
active on behalf and supported the Union.

a. Facts

Peabody commenced employment with the Respondent’s predecessor in March 2002,
and remained employed when the Respondent took over in July 2003 until his termination on
September 7, 2004.

Peabody performed maintenance and truck operator duties that included carrying rock
and crushed stone in his assigned haul truck. Peabody primarily worked the evening shift with
hours of work from 4:30 pm to 4am. He was directly supervised by Chilson.

Peabody has been a union member since 1990 and participated in the two union
organizing campaigns at the Respondent in July 2003 and July 2004. Peabody, during the July
2004 campaign, actively distributed and collected union authorization cards from fellow
employees and passed out union pamphlets in the break room. During the same campaign,

4 I note that many of the written attendance and tardiness warnings predated the filing of the
representation petition on July 21, 2004, and no evidence was introduced by the General
Counsel that the Respondent was aware of the Union’s organizing activity before that date.

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Peabody frequently wore shirts at work with the Union logo and it was common knowledge
throughout the quarry that Peabody was an ardent union supporter.

Peabody’s work history and record while employed both with the Respondent and its
predecessor was not without incident. For example, in his relatively short term of employment,
Peabody has been issued both verbal and written warnings for excessive absenteeism and
tardiness, careless disregard for equipment, leaving work without completing the job, and was
involved in a truck accident that cost the Respondent in excess of $6,000 to repair.

On September 3, 2004, Peabody was working in the quarry cleaning up waste materials.
Earlier that morning a female employee suffered an injury that required Chilson to leave the
jobsite to accompany her to the hospital. During Chilson’s absence from the quarry, one of the
employees contacted him to state that the men were running out of work. Chilson told the
employee to inform the men to hold tight until he returned to the quarry. Accordingly, the
employees including Peabody filled there trucks with gasoline and waited for Chilson to return to
the jobsite. Peabody, after filling his truck with gasoline and visiting the rest room, returned to
his assigned haul truck. He took several aspirin due to experiencing a headache, turned on the
truck engine, and put his head back while listening to the truck stereo. Employee Mathew
Williams testified that Chilson returned to the quarry around 3:30 a.m.

Peabody next remembers a knock on his truck window by Chilson around 3:45 a.m.
Chilson informed Peabody that he was going to be written up for sleeping on the job. Peabody
responded that he was not sleeping but admitted that he had his eyes closed.

Chilson testified that when he returned to the quarry after taking the female employee
home from the hospital he did not remember seeing Peabody near the lunchroom. He asked a
number of employees if they knew where Peabody was and attempted to call him on the radio.
None of the employees knew where Peabody was located. Chilson then walked towards the
haul truck that Peabody normally drove and observed that the engine was running. Chilson
climbed up the ladder to look in the cab window and observed Peabody leaning back in his seat.
He knocked loudly on the window four or five times while calling Peabody’s name in a loud
voice. Finally, Peabody jumped out of his seat and Chilson instructed him to accompany him to
the office. When they arrived at the office, Chilson testified that Peabody admitted to him that
he was asleep in the truck. Peabody categorically denies that he was asleep in the truck.
Because Chilson could not locate the corrective action forms in the office, he telephoned
Spellman to inform him of the problem. Spellman instructed Chilson to write up the incident on
a note pad. Chilson informed Peabody that they would handle the matter on September 7, 2004,
when Gorg was expected to return form vacation, but gave Peabody a statement that he
prepared summarizing what took place earlier that morning including the fact that he found
Peabody asleep in his haul truck (GC Exh. 4). After Peabody and Chilson signed the statement,
Chilson instructed Peabody to clock out and go home.

Chilson proceeded to the lunchroom and observed Peabody driving the haul truck
towards the shop at an excessive rate of speed. Chilson got into his pick-up truck and chased
Peabody traveling around 30 miles per hour, while attempting to call Peabody on the radio to tell
him to slow down. When Chilson finally caught up with Peabody at the shop, he informed him
that he needed to slow down when driving on the quarry premises. According to Chilson,
Peabody admitted to him that he was driving around 28 miles per hour, a speed in excess of the
posted 15 mile per hour limit. Peabody denies that he informed Chilson that he was driving
approximately 28 miles per hour. Both Chilson and Peabody engaged in a heated conversation

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regarding this incident and Chilson informed Peabody that it would be handled on September 7,
2004, when Gorg returned to work. Chilson memorialized the speeding incident on the bottom
of the written statement that noted Peabody was asleep in his truck earlier that morning (GC
Exh. 4).

Spellman telephoned Peabody at home on Friday afternoon, September 3, 2004, just
before he was about to leave for work, and informed him that he was being placed on temporary
suspension until Gorg returned to work. Spellman told Peabody that if he was cleared of these
incidents, he would be paid for his lost time. Spellman testified that Peabody told him during the
telephone conversation that he did fall asleep in his haul truck and that he was driving faster
than he should have when he was bringing the truck back to the shop area. Peabody denies
that he informed Spellman that he was asleep in the truck or was driving the haul truck at an
excessive rate of speed.

On Tuesday morning, September 7, 2004, Spellman telephoned Peabody early in the
morning and told him to report to work that day. Peabody, upon reporting to work, was told by
Chilson to see Gorg. After Peabody arrived at the office, Gorg informed him that he was being
terminated and read him the reasons for the termination (GC Exh. 5).

b. Analysis

I am not persuaded under Wright Line, that the General Counsel has made a strong
showing that the Respondent was motivated by antiunion considerations when it terminated
Peabody.

There is no disagreement that the Respondent knew that Peabody was an ardent union
supporter and exhorted fellow employees to vote for the Union in the August 31, 2004
representation election. Likewise, I previously found that Chilson interrogated Peabody about
his union activities and threatened him with unspecified reprisals if he continued to support the
Union.

The Respondent asserts that the termination was for legitimate business reasons due to
Peabody’s past work record culminating with the two incidents that occurred on September 3,
2004.

In balancing the equities in this case, I am mindful of the fact that the Respondent has
approximately 9,000 employees throughout its world wide operations and in many of its facilities
the employees are represented by labor organizations including two in the immediate
Philadelphia, Pennsylvania area. Thus, the Respondent is accustomed to dealing with a
number of different labor organizations in its daily operations. Likewise, it is noted that the
General Counsel has not alleged in the complaint that any other employee of Respondent was
terminated because of their union activities despite the Union’s victory in the representation
election.

It strikes me that if the Respondent really wanted to terminate Peabody because of his
union activities it stands to reason it would have done so prior to the representation election so
as to prevent him from casting a vote and to show other Union supporters that the same fate
could happen to them. It was during this period that the Respondent became aware of his vocal
support for the Union based on a number of conversations that occurred between Peabody and
Chilson. In these conversations, Chilson gleaned further evidence that Peabody was an ardent
union supporter. Likewise, it does not withstand scrutiny that Peabody signed the statement on
September 3, 2004, that specifically charged him with the dischargeable offense of sleeping on

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the job but testified that he informed Chilson on the same day that he was not asleep. If
Peabody denied he was asleep, despite recognizing that he could be terminated, it seems
logical to me that he would have noted this on the statement that he signed.5

The inescapable conclusion is that the termination on September 7, 2004, was solely
based on the two incidents that occurred on September 3, 2004, in addition to Peabody’s past
work record rather then his earlier involvement and support of the Union. I also note that
Peabody admitted in his testimony that he was going over the speed limit when he left the break
room in his haul truck on his way to the shop. Significantly, the General Counsel dismissed
another unfair labor practice charge filed by the Union in which the Respondent asserted that an
employee was terminated for sleeping in her truck on work time (R. Exh. 30 and 31).6 Thus,
there is no question that sleeping on the job is a dischargeable offense for a first infraction (R
Exh. 29).

For all of the above reasons, I recommend that the allegations in paragraph10 of the
complaint be dismissed. 7

D. The 8(a)(1) and (5) Allegations

1. Allegations Concerning Frequency of Bargaining

The General Counsel alleges in paragraph 11 of the complaint that since on or about
October 19, 2004, the Respondent and the Union have met at various times for the purposes of
negotiating their initial collective bargaining agreement. Since on or about November 11, 2004,
the Union has requested that the Respondent meet with it more frequently, however, from
December 9, 2004, until February 24, the Respondent failed and refused to meet at reasonable
times to negotiate a collective bargaining agreement.

a. Facts

By letter dated November 11, 2004, Bankard requested Carey to provide four dates for
bargaining between December 9, 2004, and January 14, by November 15, 2004 (GC Exh. 13).
By letter dated November 15, 2004, Carey responded and noted that the parties were presently
scheduled to meet on December 7, 2004. By agreement of the parties, that meeting was
cancelled and rescheduled for December 14, 2004 (GC Exh. 14). Carey, in that letter, proposed
the dates of January 12, 13 or 20 for negotiation sessions. Bankard testified that Carey

5 While there is a direct credibility conflict between the testimony of Spellman and Chilson
when compared with Peabody concerning the issues of sleeping in the haul truck and driving at
an excessive rate of speed when leaving the quarry premises, I need not resolve it due to my
finding that the General Counsel did not conclusively establish that Peabody was terminated
because of his activities on behalf of the Union.
6 I note that the dismissal letter states that the Employer has discharged another employee
for the same reason and its policy states that employees are subject to discharge for this
behavior. The other employee referred to in the dismissal letter is Peabody.
7 If other disagree with my finding that the General Counsel did not establish a prima facie
case under Wright Line, I would still find that the Respondent would have terminated Peabody
even in the absence of his protected activities. See, e.g., Yuker Construction Co., 335 NLRB
1072 (2001) (discharge of employee based on mistaken belief does not constitute unfair labor
practice, as employer may discharge an employee for any reason, whether or not it is just, so
long as it is not for protected activity).

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informed him that he intended to negotiate once every three or four weeks because of his busy
schedule and he could not meet back to back or more frequently. During the parties’
negotiation session on December 14, 2004, the Union asked Carey for additional bargaining
dates. Carey replied that because of scheduled vacations and the Christmas and New Year’s
Holidays, the next possible available date was January 12 (GC Exh. 15).

b. Analysis

I note that the parties engaged in 26 bargaining sessions between October 19, 2004 and
January 6, 2006 (GC Exh. 11). They met once in October, November, and December 2004,
once in January and February 2005, twice in March 2005, four times in April 2005, twice in May
2005, three times in August 2005, once in September 2005, twice in November 2005, once in
December 2005, and once in January 2006. It is also noted that the General Counsel has not
alleged that the Respondent refused to meet with more reasonable frequency at any time after
February 24. Indeed, I find that the degree of frequency in months after February 24 is not
unlike the span of time between bargaining sessions held between December 9, 2004 and
February 24.

During the critical period, the evidence discloses that Bankard went to the Respondent’s
facility on December 21, 2004, to review certain items of information. Likewise, the Respondent
continued to respond to a number of the Union’s information requests during that period (R Exh.
11 and 14).

Based on the forgoing, and particularly noting that the Respondent negotiated with the
Union on four occasions during the critical period in addition to responding to requests for
information, I am not convinced that the Act was violated. Moreover, the critical period fell
during scheduled Employer vacations and over the Christmas and New Year’s Holiday.

Accordingly, I recommend that the allegations in paragraph 11 of the complaint be
dismissed.8

2. The July 1, 2005 Information Request

The Board explained in Asarco, Inc., 316 NLRB 636, 643 (1995), enfd. in relevant part
86 F. 3d 1401 (5th Cir. 1996) that:

In dealing with a certified or recognized collective-bargaining representative, one of the
things which employers must do, on request, is to provide information that is needed by a
bargaining representative for the proper performance of its duties. NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967). Following an appropriate request, and limited only by considerations
of relevancy, the obligation arises from the operation of the Act itself. Ellsworth Sheet Metal,
224 NLRB 1506 (1976). In each case, the inquiry is whether or not both parties meet their duty
to deal in good faith under the particular facts of the case. NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1973). The legal standard concerning just what information must be produced is whether

8 I also note that the Regional Director in her July 29 dismissal letter in Case 4-CA-33886
involving the same parties rejected the Union’s allegation that the Respondent failed to meet at
reasonable times and stated that “since January 12, 2005, the parties have met on 14
occasions, exchanged proposals and counterproposals, reached agreements in some areas
and narrowed their differences in others. Accordingly, I find that the Employer has not violated
its obligation to bargain with the Union.”

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or not there is “a probability that such data is relevant and will be of use to the union in fulfilling
its statutory duties and responsibilities as the employees’ exclusive bargaining representative.”
Bohemia, Inc., 272 NLRB 1128 (1984).

The General Counsel alleges in paragraph 12 of the complaint that the Union by letter
dated July 1, sought information concerning employee claims for the incumbent health care plan
and the medical exclusions under that plan.

a. Facts

By letter dated July 1, the Union requested twelve items of information to evaluate the
Respondents bargaining proposal to continue its current health care plan in effect (GC Exh. 23).
The complaint alleges that the Respondent refused to supply the information for items 7 and 12
in the July 1 letter. By letter dated July 12, the Respondent replied to the Union and stated that
it previously gave them the Summary Plan Description (SPD) and other requested information
for the requests noted in items 7 and 12 (GC Exh. 24). Likewise, during the parties’ July 12
negotiation session, the Respondent informed the Union that it believed it had given them the
requested information in October 2004 (GC Exh. 25). By letter dated July 14, the Union further
explained why it needed the 12 items of information and its relevancy (GC Exh. 26). By letter
dated July 20, the Respondent replied to the Union’s information requests (GC Exh. 27).

b. Analysis

The evidence discloses that the Respondent provided the Union a large packet of
materials in October 2004 in response to a comprehensive request for information in
anticipation of commencing initial contract negotiations (R Exh. 1((a)-(zz)). Contained in those
materials was a copy of the current Blue Cross/Blue Shield medical plan for bargaining unit
employees. My review of the medical plan shows that a list of exclusions is contained therein
(R Exh. 1(vv)).

With respect to the Union’s request for claims information for the current health plan, I
note that the Respondent replied to the Unions request on July 20 and provided the information
to the Union.

Under these circumstances, and particularly noting that the Union received the
information alleged in paragraph 12 of the complaint, I recommend that those allegations be
dismissed.

3. The November 3, 2005 Information Request
The General Counsel alleges in paragraph 13 of the complaint that the Union orally on
November 3, and by letter dated December 1, requested that the Respondent provide a list of
medical providers which are currently in your plan and not in your new proposed plan. The
complaint alleges that the Respondent refused to provide this information.

a. Facts

In August 2005, the Respondent distributed a bulletin to bargaining unit employees
announcing that Aetna would become its health care provider effective in 2006 (GC Exh. 28).
This bulletin was not provided to the Union at the time it was distributed to employees. By letter
dated October 25, the Respondent officially notified the Union of the change from Blue
Cross/Blue Shield to Aetna (GC Exh. 31). By letter dated October 26, the Union requested to
negotiate over the Respondent’s change of health care providers (GC Exh. 32).

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The record discloses that during the November 3 bargaining session, the Union orally
requested that the Respondent provide it with a list of medical providers for the new proposed
plan and whether those providers have changed form the former health care plan (GC Exh. 33).
Discussions of the need for the providers continued at the parties’ November 9 bargaining
session (GC Exh. 34). By letter dated December 1, the Union in item 7 renewed its request for
a list of all medical providers which currently are in your old plan but not in your new proposed
plan (GC Exh. 35). The Union sought the information to assist employees in the transition of
care and to negotiate whether certain providers from the former medical plan could be included
in the new health care plan.

b. Analysis

Carey testified that he informed the Union that the SPD was the same for the former
health care plan and the new Aetna plan. Therefore, the Respondent argues that it provided the
list of medical providers in response to the Union’s request.

Carey admitted in his testimony, however, that some of the health care providers
changed when the Respondent obtained a new health care plan.

The Respondent further argues that it provided an 800 telephone number to the Union in
order to contact Aetna along with their computer website. Additionally, the Respondent
provided the name and telephone number of the plans administrator that the Union could
contact if it had questions about the plan and the medical providers that it included.

Both Giacin and Bankard credibly testified that they never received a list of medical
providers from the Respondent in response to the information request. While both Union
representatives acknowledge that Carey provided them with alternative methods of contacting
Aetna to obtain the information, they were unsuccessful in doing so. For example, Bankard
attempted to access the website and was not able to pinpoint the information he was seeking.
Likewise, calling the 800 telephone number did not achieve the desired results as the customer
service representative refused to provide the information to the Union because they were not
subscribers in the plan. Lastly, Bankard left several telephone and fax messages for the plan
administrator but none were returned.

Based on the forgoing, I conclude that an Employer owes a greater duty to give
necessary and relevant information to an exclusive bargaining representative then providing a
website or an 800 telephone number especially when it admits that some medical providers did
change when the Respondent changed its health care plan. Indeed, I am of the opinion that
Carey should have independently obtained the information from the website or the customer
service 800 number and given it to the Union.9 Likewise, I believe Carey should have
personally contacted the plan administrator and either obtained the information for the Union or
made arrangements for the Union to meet with the administrator.

Accordingly, I find that the General Counsel sustained the allegations in paragraph 13 of
the complaint and therefore, the Respondent violated section 8(a)(1) and (5) of the Act.

9 While I note that Carey did provide the website and directions to Bankard on how to obtain
the information and testified that he was able to extract the names of pertinent medical
providers, I find that Carey had a duty to print this information and provide it to the Union in
response to there information request (R Exh. 41 and GC Exh. 57).

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4. Premium Holiday for Dental Coverage

The General Counsel alleges in paragraph 14 of the complaint that from October 24 to
December 31, the Respondent implemented a Premium Holiday for Dental Coverage for
bargaining unit employees without notice or affording the Union an opportunity to bargain
absent an overall impasse in good faith bargaining for a collective bargaining agreement.

a. Facts

By letters dated October 12 and 25, the Respondent informed the Union and its
employees that there will be a premium holiday beginning October 24 through December 31.
This meant that the employees would not be required to make contributions to the plan for there
dental coverage for the holiday period. The Respondent informed the Union that the insurance
company was distributing monies to their current and former policyholders and they had decided
to return the money to the employees in the form of a premium holiday (GC Exh. 31 and 37).
By letter dated October 26, the Union requested to negotiate over the premium holiday for
dental coverage (GC Exh. 32). By letter dated October 28, the Union renewed its request to
negotiate and sought separate dates to address the premium holiday for dental coverage
exclusive of their regular bargaining sessions (GC Exh. 38). The Union did not receive a reply
to its October 28 request to negotiate. During the parties November 3 and 9 bargaining
sessions, the Union asked questions about whether the money from the insurance company
was in the form of an overpayment or a refund. Carey discussed the issue with the Union
during the course of negotiations but interchanged the term overpayment and refund which
prompted the Union to press for negotiations over this issue. The bargaining minutes confirm
that the Respondent wanted to move onto other subjects such as management rights and was
unwilling to set up separate bargaining sessions to address this matter (GC Exh. 33 and 34).

b. Analysis

There is no dispute that the Respondent notified the Union in advance of the premium
holiday for dental coverage and the Union immediately requested to negotiate. Bankard
credibly testified that had the Union been able to negotiate they were interested in exploring a
different method of how the overpayment of the dental premiums could be rebated to the
bargaining unit employees. Likewise, the Union wanted to negotiate over whether the
overpayment could be distributed to former employees who participated in the dental plan
during the year but had since retired or left the Employer. Instead of entertaining negotiations,
the Respondent unilaterally determined the manner in which the overpayment would be
returned to bargaining unit employees without any input from the Union.

I conclude that the Union, as the exclusive bargaining representative of the unit
employees, had the right to negotiate the method of how the overpayment would be distributed
to Respondent’s employees. Since the Respondent steadfastly refused to negotiate despite
several attempts by the Union, I find that they violated Section 8(a)(1) and (5) of the Act.10

10 Under these circumstances, I reject the Respondent’s argument in its post-hearing brief
that the suspension of the Dental Insurance Premiums was a Gift that did not require
negotiations with the Union.

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5. Information Regarding the Safety Incentive Program

The General Counsel alleges in paragraph 15 of the complaint that the Union requested
information concerning the criteria the Respondent applied in administering its Safety Incentive
Program for 2004 and 2005. It further asserts that while the Respondent provided some
information it was not accurate and it delayed in providing all of the information until on or about
January 6, 2006.

a. Facts

During the parties’ November 9 bargaining session, Bankard asked Carey what safety
awards were given out in the past year. He also sought information on the dollar amount of the
bonuses that employees received and whether it was distributed to one or more separate
groups of employees’. The Respondent submits that it provided the Union information on the
Safety Incentive Program when it gave them a voluminous amount of material in October 2004
prior to the commencement of collective bargaining for the parties’ initial contract (R. Exh.
1((w)). By letter dated December 22, the Union requested additional information concerning
“Safety Bonuses” as it recently learned that bonuses were just distributed to bargaining unit
employees (GC Exh. 43). By letter dated January 6, 2006, Carey responded to the Union’s
December 22 request and included the same information that it had provided the Union in
October 2004 in addition to the Safety Incentive Reports for the period ending September 30
broken down into separate groups with the amount of the bonus awarded to each bargaining
unit employee. The Respondent also provided the Union information regarding a safety
meeting schedule and training documentation forms from its recent December 21 safety training
meeting (GC Exh. 44).

b. Analysis

Based on the forgoing exchange of documents, I conclude that the Union received
sufficient information responsive to its request to satisfy the requirements of the Act. On the
other hand, I note that Carey informed the Union during the November 9 bargaining session that
the facility’s employees constituted a single group for safety incentive purposes. While this
information was ultimately corrected, it was not done so until January 6, 2006. The Board has
held that unreasonable delay in furnishing such information is as much a violation of the Act as
a refusal to furnish any information at all. Bundy Corp., 292 NLRB 671 (1989) (violation of Act
to ignore or delay supplying the Union with necessary information for 2/12 months).

Under these particular circumstances, while I conclude that the Respondent did respond
and provide the Union with relevant and necessary information responsive to their request, it did
not do so in a timely manner with respect to the composition of the safety groups. Indeed, the
information that the Respondent originally provided to the Union was incorrect. Therefore, I find
that the Respondent violated Section 8(a)(1) and (5) of the Act by not timely responding to the
Union’s request for information and providing incorrect information on the composition of the
safety groups.

6. Information for Premium Holiday for Dental Coverage

The General Counsel alleges in paragraph 16 of the complaint that the Union by letter
dated December 1, requested certain information related to the Respondent’s premium holiday
for dental coverage.

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a. Facts

By letter dated December 1, the Union requested nine items of information regarding the
Respondent’s previously announced premium holiday for dental coverage (GC Exh. 39). The
complaint alleges in paragraph 16 that the Respondent refused to provide necessary and
relevant information as it concerned items 5-8 of the December 1 letter.

By letter dated December 5, the Respondent replied to the Union’s December 1 letter
(GC Exh. 40). The response answered the Union’s question as it concerned item 5 but for
items 6-8, the Respondent stated that “this question is irrelevant since only employees on the
payroll at the time of the ‘holiday’ and contributing to dental insurance were affected.” By letter
dated December 7, the Union reiterated its need for the information and noted that the
Respondent’s December 5 response was incomplete in that it did not provide all of the
requested information (GC Exh. 41).

b. Analysis

While the Respondent responded in a timely manner to the Union it did not specifically
provide the information in items 6-8. As previously discussed above, the Union was interested
in representing the interests of those employees who left the Employer prior to the
announcement of the premium holiday regarding whether they were due refunds for premiums
that they had previously paid. Thus, the request for information was necessary and relevant to
formulate bargaining proposals for presentation to the Respondent. As noted above, the
Respondent refused to negotiate over the premium holiday for dental coverage.

Under these circumstances, I conclude that the Respondent did not fully provide
necessary and relevant information that the Union had requested on December 1.

Therefore, I find that the Respondent violated Section 8(a)(1) and (5) of the Act.

7. Request for Administrative Manuals

The General Counsel alleges in paragraph 17 of the complaint that by letter dated
December 1, the Union requested copies of all administrative manuals, rules, or regulations with
respect to the Respondent’s new proposed health care plan.

a. Facts

As discussed above, the Respondent officially notified the Union on October 25, that
effective January 1, 2006, Aetna will replace Blue Cross/Blue Shield as the Employer’s medical
insurance carrier (GC Exh. 31). By letter dated October 26, the Union requested to negotiate
over the change in medical insurance carriers (GC Exh. 32). The parties discussed the issue of
the new proposed health care plan at their bargaining sessions of November 3 and 9 (GC Exh.
33 and 34). By letter dated December 1, the Union requested information with respect to nine
items relating to the new health care provider (GC Exh. 35). The allegation in paragraph 17 of
the complaint only concerns Item 5 in the December 1 letter. By letter dated December 5, the
Respondent replied to the Union and informed them that the only change to the existing plan is
that of the administrator and the providers and that the documents previously given to them are
applicable.

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b. Analysis

The Respondent repeatedly informed the Union that unlike Blue Cross/Blue Shield,
Aetna did not publish a separate administrative manual, rules or regulations and therefore, it
could not supply the Union with such information. This was specifically discussed at the parties’
December 1 negotiation session which is confirmed in the Union’s notes of that meeting (GC
Exh. 36). Those notes specifically reflect Carey referencing Item 5 of the Union’s December 1
request for information.

Under these circumstances, and particularly noting that the Respondent responded to
the Union’s request for information that is alleged in paragraph 17 of the complaint, I find that
the Act has not been violated. Therefore, I recommend that paragraph 17 of the complaint be
dismissed.

8. Information for a Dual Health Care Plan

The General Counsel alleges in paragraph 18 of the complaint that by letter dated
December 1, the Union requested information concerning the number of Unit employees who
would qualify for a dual health care plan.

a. Facts

By letter dated July 1, the Union confirmed that the Respondent proposed to continue its
current Blue Cross/Blue Shield health care plan for bargaining unit employees and sought
twelve items of information (GC Exh. 23). At the parties July 13 bargaining session, the Union
made a proposal that the Employer provide Health, Dental, and Vision insurance coverage to all
bargaining unit employees. It further proposed that the Employer shall have the right to change
insurance plans during the life of the agreement, provided that the replacement insurance is
substantially equal or greater to the present coverage (R Exh. 2).11 As discussed above, the
Respondent distributed a bulletin to employees in August 2005 announcing that it intended to
change health care plans from Blue Cross/Blue Shield to Aetna (GC Exh. 28). While the Union
was not provided this bulletin by the Respondent, Bankard received a copy from one of the
employees. It was not until October 25 that the Respondent officially notified the Union that it
intended to change health care plans effective in January 2006.

The next negotiation session after the Union became aware of the intended change in
health care plans occurred on August 11. The Union proposed that the Employer maintain its
current health care plan with Blue Cross/Blue Shield. During the parties August 30 bargaining
session the Respondent rejected the Union’s proposal.

On November 3, during their bargaining session, the Union proposed a 542 Health and
Welfare plan to substitute for the Employer’s newly proposed Aetna health care plan. This plan
was sponsored by the Union and was presently in effect at another of Respondent’s facilities
whose employees were represented by a sister local of the Union. The Respondent considered
the Union’s proposal during a caucus but determined that the 542 Health and Welfare plan was

11 The July 1 correspondence and the Union proposal were made prior to the Respondent’s
notice to the Union and its employees that it intended to change its health insurance provider to
Aetna.

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more costly per employee then the newly proposed Aetna health care plan and so informed the
Union.

At the next bargaining session held on November 9, the Union suggested that costs
could be decreased if the Respondent would consider adopting a health care plan that provided
for single coverage, dual coverage and family coverage. The Union pointed out that the current
and newly proposed health care plan at the Respondent only provided for single and family
coverage. The Union opined that a number of the families presently in the Respondent’s health
care plan were required to select family coverage even if only two family members comprised
the family. The Union suggested that if a number of the families were able to switch to dual
coverage, a plan only covering two people, the health care costs for both the Respondent and
the employees’ could be substantially reduced. Accordingly, the Union orally and subsequently
by letter dated December 1, requested that the Respondent either poll there employees or
check their health care records to provide them this information (GC Exh. 39). The Union
informed Carey that upon information and belief only thirteen employees were presently
enrolled in their family plan. Bankard volunteered to poll the employees at the facility but this
was rejected by Carey. During the bargaining session Carey promised to look into the Union’s
request (GC Exh. 34). By letter dated December 5, the Respondent replied to the Union’s
request for information relating to dual coverage by stating in pertinent part: “As we have
answered you on several occasions, you are aware that the Company offers only single or
family coverage and the Company does not have information on who would, if available, choose
two person coverage; We have suggested that you canvas the employees” (GC Exh. 40).

b. Analysis

There is no dispute that health care coverage was a significant component in the parties
discussions for an initial collective bargaining agreement. Both the Union and the Respondent
made a number of proposals involving different types of health care plans during the course of
there protracted negotiations. In seeking information for a dual health care plan, the Union was
attempting to convince the Respondent that such changes could potentially save both the
Respondent and the employees money on there health care costs. In my opinion, such a
request for information was necessary and relevant for the Union to formulate concrete
bargaining proposals with specific cost savings. The Union’s request to Carey for permission to
poll the employees at the facility was not unreasonable. Nor was it unreasonable for the Union
to request the Employer to speak to the thirteen employees and inquire how many family
members were enrolled under the family plan or for the Employer to review the thirteen
employees’ personnel files for the specific information. Rather, the Respondent rejected each
of these eminently reasonably suggestions and never provided the requested information to the
Union.

Under these circumstances, I find that the Respondent refused to provide the Union with
necessary and relevant information and therefore, violated Section 8(a)(1) and (5) of the Act.

9. Bargaining over the Safety Incentive Program

The General Counsel alleges in paragraph 19 of the complaint that the Union orally
requested on November 9 to negotiate over the Respondent’s Safety Incentive Program and
since that date the Respondent has refused to do so.

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a. Facts

The parties met to negotiate on November 9. I have reviewed the Union’s bargaining
notes for that date and while Bankard sought information concerning the safety bonuses that
were given to bargaining unit employees, no request to negotiate over the Safety Incentive
Program is found therein (GC Exh. 34). The Respondent argues that since there were no
changes made to the Safety Incentive Program since 1999, there was no obligation to negotiate
even if a request to bargain had been made (GC Exh. 44, item c). I note that the Union’s notes
for January 6, 2006 (GC Exh. 45) reflect that Bankard requested to negotiate over Safety
Awards but no mention of the Safety Incentive Program is found therein.

b. Analysis

Based on the forgoing, and particularly noting that the Union’s notes do not confirm that
an independent request was made by the Union to negotiate on November 9 over the Safety
Incentive Program, I find that the General Counsel has not sustained the allegations alleged in
paragraph 19 of the complaint. Under those circumstances, I recommend that the allegations
be dismissed.

10. The January 1, 2006 Implementation of Conditions of Employment

The General Counsel alleges in paragraph 20 of the complaint that the Respondent
unilaterally implemented seven conditions of employment listed therein without prior notice or
affording the Union an opportunity to bargain concerning this conduct and absent an overall
impasse in good faith bargaining for a collective bargaining agreement as a whole.

a. Facts

At the parties December 1, 2005 negotiation session, Carey informed the Union that
the parties were at impasse. Giacin asked Carey if there were no open issues. Carey replied
that there were a lot of open issues. Bankard asked Carey whether he was going to implement
the terms of the contract, Carey replied no. Bankard asked Carey whether the Respondent
would continue to negotiate and Carey said no, we are at impasse (GC Exh. 36).

By letter dated December 7, the Union confirmed that there were still numerous open
issues that needed to be negotiated and many outstanding requests for information that had not
been provided or responded to. The Union also vigorously contested the Respondent’s
statement that the parties were at impasse. In fact, Bankard asserts in the letter that there were
approximately 37 outstanding issues that needed resolution (GC Exh. 41)

By letter dated December 9, the Respondent updated all bargaining unit employees
on the status of collective bargaining negotiations (GC Exh. 46). It apprised the employees that
on September 2, it presented its final offer to the Union. On or about September 28, however,
the Union membership rejected the final offer. Thereafter, the parties resumed collective
bargaining negotiations and met four additional times in an effort to achieve an agreement. The
letter further apprised the employees that the Respondent was of the opinion that it had reached
a bargaining impasse and it intends to implement many of the provisions contained in its final
offer. The seven provisions that it specifically intended to implement are set forth in paragraph
20 of the complaint and include lump sum wage increases, the elimination of skill points and
wage level systems, the continuation of the Employer’s health care and retirement plans, and an
attendance policy.

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b. Analysis

In Bottom Line Enterprises, 302 NLRB 373 (1991), the Board held that during
negotiations, “an employer’s obligation to refrain from unilateral changes extends beyond the
mere duty to give notice and an opportunity to bargain, it encompasses a duty to refrain from
implementation at all, unless and until an overall impasse had been reached in bargaining as a
whole.”

In Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub. nom. Television Artists,
AFTRA v. NLRB, 395 F. 2d 622 (D.C. Cir. 1968), the Board defined an impasse as a situation
where “good-faith negotiations have exhausted the prospects of concluding an agreement.”
See also Newcor Bay City Division, 345 NLRB No. 104, slip op. at 10 (2005). This principle was
restated by the Board in Hi-Way Billboards, Inc., 206 NLRB 22, 23 (1973), enf. denied on other
grounds 500 F. 2d 181 (5th Cir. 1974), as follows:

A genuine impasse in negotiations is synonymous with a deadlock;
the parties have discussed a subject or subjects in good faith, and,
despite their best efforts to achieve agreement with respect to such,
neither party is willing to move from its respective position.

The burden of demonstrating the existence of impasse rests on the party claiming
impasse. The question of whether a valid impasse exists is a “matter of Judgment” and among
the relevant factors are “[t]he bargaining history, the good faith of the parties in negotiations, the
length of the negotiations, the importance of the issue or issues as to which there is
disagreement, [and] the contemporaneous understanding of the parties as to the state of
negotiations.” Taft Broadcasting Co., supra at 478.

I find that the Respondent has not met its burden to establish a valid impasse. The
Respondent did not inform the Union that impasse was reached over any specific issue.
Rather, it appears that the Respondent determined that the parties were at impasse based on
the totality of its final proposal.

As discussed above, there were numerous bargaining issues and information requests
outstanding when the Respondent prematurely declared impasse. Indeed, a number of those
information requests were directly related to the health care plan. The Union, once being
officially informed on October 25 that the Respondent intended to change health care plans,
made it very clear that it wanted to negotiate over the newly proposed plan and even proposed
its own plan for consideration by the Employer. Further, I note that after the Respondent
declared impasse, the parties participated in another negotiation session on January 6, 2006,
and Carey responded on that date to outstanding information requests previously submitted by
the Union on November 11, December 22, 24, and January 3, 2006 (GC Exh. 44). Such actions
by the Respondent belie its declaration of impasse.12

12 In contrast to the Board’s holding in Sierra Bullets, LLC, 340 NLRB 242 (2003), the record
in the subject case contains all of the parties bargaining notes during their 26 bargaining
sessions which spanned approximately 16 months and there was extensive testimony by
representatives of the Union and the Respondent on the course of bargaining throughout the
negotiation period.

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Likewise, I am in agreement with the General Counsel’s argument that under the
Board’s holding in Decker Coal, 301 NLRB 729 (1991), the Respondent’s failure to provide
necessary and relevant information precluded impasse, and therefore, prevented lawful
implementation of a final contract offer. Indeed, the refusal of the Respondent to specifically
provide health care information to the Union directly impacts on the core issues separating the
parties in this case. See Caldwell Manufacturing Company, 346 NLRB No. 100 (2006).
Accordingly, I reject the Respondent’s arguments to the contrary in its post hearing brief
including its position that the information requests were made solely for tactical reasons of
avoiding impasse and delay.

Based on the forgoing, I find that the Respondent has failed to meet its burden of
establishing the existence of a valid impasse. Accordingly, the Respondent violated Section
8(a)(1) and (5) of the Act when it unilaterally implemented new terms and conditions of
employment on January 1, 2006.

Conclusions of Law

1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1)
of the Act by interrogating employees concerning their Union sympathies, soliciting
employee’s complaints and grievances and promising employees improved terms
and conditions of employment, threatening employees with unspecified reprisals, and
telling employees it would be futile to select the Union
4. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the Act by refusing to furnish the Union with necessary and relevant
information regarding a current list of medical providers that is not in the new
proposed health plan, information concerning the Premium Holiday for Dental
Coverage, information concerning a dual health care plan, not providing the Union
with information in a timely manner, by unilaterally implementing and refusing to
negotiate in good faith with the Union concerning the Premium Holiday for Dental
Coverage, and unilaterally implementing on January 1, 2006, without notice or
bargaining and absent an overall impasse in good faith bargaining, wage increases
and lump sum payments to employees, the elimination of skill point and wage level
systems, the continuation of the Employer’s health care and retirement plans and the
implementation of an attendance policy.
5. Respondent did not violate Section 8(a)(1) of the Act when Shawn Gorg interrogated
an employee concerning the employee’s Union sympathies.
6. Respondent did not violate Section 8(a)(1) and (3) of the he Act by issuing written
attendance and tardiness warnings to seventeen employees and when it terminated
its employee Glen Peabody.
7. Respondent did not violate Section 8(a)(1) and (5) of the Act by refusing to negotiate
over the Safety Incentive Program, by refusing to meet at reasonable times with the
Union to negotiate a collective bargaining agreement, by refusing to provide
necessary and relevant information regarding all claims and exclusions of the
Respondent’s 2005 health care plan, by refusing to provide copies of all
administrative manuals, rules and regulations for the new proposed health care plan,
and by refusing to provide information concerning the criteria applied in administering
its Safety Incentive Program for 2004 and 2005.

JD–77–06

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Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

Since the Respondent refused to bargain with the Union about the Premium Holiday for
Dental Coverage and the implementation of wage increases and lump sum payments to
employees, the elimination of the skill point and wage level systems, the continuation of the
Employer’s health care and retirement plans and the implementation of an attendance policy, I
shall order it to cease and desist from engaging in such conduct and to bargain on request with
the Union about these matters. In regard to the wage increases and lump sum payments in
addition to the other unilateral changes, the Union may use its discretion as to whether the
changes should be rescinded. The Respondent shall also make whole any employee for any
loss of earnings and other benefits suffered as a result of its unlawful action. Backpay shall be
computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed in the manner set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall rescind and expunge from employees’ files all discipline issued to them
as a result of Respondent’s unilateral implementation of the attendance policy and make
employees whole for any loss they may have suffered as a result of such discipline in the
manner set forth in the above cases.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13

ORDER

The Respondent, Hanson Aggregates BMC, Inc., Penns Park, Pennsylvania, its officers,
agents, successors, and assigns, shall

1. Cease and desist from
(a) Unilaterally changing terms and conditions of employment of our employees
without having first bargained with the Union in good faith to impasse with
respect to the Premium Holiday for Dental Coverage, wage increases and
lump sum payments to employees, elimination of skill point and wage level
systems, continuation of the Employer’s health care and retirement plans and
an attendance policy.
(b) Refusing to negotiate with the Union over mandatory subjects of collective
bargaining.
(c) Interrogating employees concerning their Union sympathies, soliciting
employees’ complaints and grievances, threatening employees with
unspecified reprisals and telling employees it would be futile to select the
Union.
(d) Refusing to provide necessary and relevant information to the Union and
refusing to provide information in a timely manner.

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

JD–77–06

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2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive representative of the
employees concerning terms and conditions of employment and provide
necessary and relevant information to the Union while doing so in a timely
manner.
(b) Rescind the changes in wages, hours, and other terms and conditions of
employment unilaterally implemented on January 1, 2006, and negotiate with
the Union in good faith until we reach an impasse after bargaining in good
faith.
(c) Make any employees whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the manner set forth
in the remedy section of the decision.
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records and reports, and all
other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in Penns Park,
Pennsylvania, copies of the attached notice marked “Appendix.”14 Copies of
the notice, on forms provided by the Regional Director for Region 4, after
being signed by the Respondent’s authorized representative, shall be posted
by the Respondent 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 Respondent to ensure that
the notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent
at any time since July 21, 2004.
(f) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C., October 23, 2006

____________________
Bruce D. Rosenstein
Administrative Law Judge

14 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.”
JD–77–06
Penns Park, PA

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 Federal labor law and has
ordered us to post and obey this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to bargain with the Union as the exclusive bargaining representative of
our employees in the following appropriate unit:

All full-time and regular part-time Motor Operators, Plant Operators, Truck Drivers,
Laborers, Mechanics, Welders and maintenance employees employed by
Respondent at its 852 Swamp Road, Penns Park, Pennsylvania facility, excluding
all other employees, including temporary employees, Laboratory Technicians,
office clerical employees, managers, guards, and supervisors as defined in the Act.

WE WILL NOT unilaterally change the terms and conditions of employment of our employees
without having first bargained with the Union in good faith to impasse with respect to the
Premium Holiday for Dental Coverage, wage increases and lump sum payments to employees,
elimination of skill point and wage level systems, continuation of the Employer’s health care and
retirement plans and an attendance policy.

WE WILL NOT refuse to negotiate with the Union over mandatory subjects of collective
bargaining.

WE WILL NOT interrogate employees concerning their Union sympathies, solicit employees’
complaints and grievances, threaten employees with unspecified reprisals and tell employees it
would be futile to select the Union.

WE WILL NOT refuse to provide necessary and relevant information to the Union or refuse to
provide information in a timely manner.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL on request bargain with the Union as the exclusive representative of the employees
concerning terms and conditions of employment.
JD–77–06
Penns Park, PA

WE WILL rescind the changes in wages, hours, and other terms and conditions of employment
unilaterally implemented on January 1, 2006, and negotiate with the Union in good faith until we
reach an agreement or a valid impasse after bargaining in good faith.

WE WILL make any employees whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set forth in the remedy section of the
decision.

WE WILL provide the Union information that is necessary and relevant and will do so in a timely
manner.

Hanson Aggregates BMC, Inc.

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 215-597-7643.