Hendrickson Trucking Company

National Labor Relations Board - Board Decisions

Oct 11, 2017

365 NLRB No. 139 (N.L.R.B. 2017)

365 NLRB No. 139
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hendrickson Trucking Company and Local 164, In-
ternational Brotherhood of Teamsters (IBT).
Cases 07–CA–086624 and 07–CA–095591
October 11, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On May 16, 2014, Administrative Law Judge Donna
Dawson issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
On April 12, 2016, following an unpublished remand
order by the Board,1 the judge issued the attached Order
Ratifying and Adopting Decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions, to

1 The Board’s Order remanding this proceeding to the judge, availa-
ble at https://www.nlrb.gov/case/07–CA–086624, rejected the Re-
spondent’s argument that the Regional Director lacked authority to
issue the complaint in this matter because she was appointed at a time
when the Board lacked a quorum, as this argument is factually errone-
ous. Further, the Board found it unnecessary to reach the Respondent’s
argument that the Acting General Counsel lacked authority to prosecute
this case. See id. at 3 fn. 4. This argument is now moot as on April 15,
2016, General Counsel Richard F. Griffin, Jr. issued a Notice of Ratifi-
cation stating the following: “After appropriate review and consultation
with my staff, I have decided that the issuance of the complaint in this
case and its continued prosecution are a proper exercise of the General
Counsel’s broad and unreviewable discretion under Section 3(d) of the
Act.”
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, some of the Respondent’s
exceptions allege that the judge’s rulings, findings, and conclusions
demonstrate bias and prejudice. On careful examination of the judge’s
decision and the entire record, we are satisfied that the Respondent’s
contentions are without merit.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
We note that Monmouth Care Center, 354 NLRB 11 (2009), a two-
member decision cited by the judge, was incorporated by reference in a
three-member panel decision following issuance of the Supreme
amend the remedy,3 and to adopt the recommended order
as modified and set forth in full below.4

Court’s decision in New Process Steel, L.P. v. NLRB, 560 U.S. 674
(2010) (holding that under Sec. 3(b) of the Act, a delegee group of at
least three members must be maintained in order to exercise the dele-
gated authority of the Board). See Monmouth Care Center, 356 NLRB
152 (2010), enfd. 672 F.3d 1085 (D.C. Cir. 2012).
Contrary to the judge and his colleagues, Chairman Miscimarra
would not find that the Respondent violated Sec. 8(a)(5) by failing to
provide relevant information requested by the Union on July 31 and
November 30, 2012. In his view, the summary the Respondent provid-
ed to the Union on January 9, 2013, was a sufficient response to those
requests. Chairman Miscimarra would find, however, that the Re-
spondent violated Sec. 8(a)(5) and (1) by unreasonably delaying its
response to those requests.
3 The remedy section of the judge’s decision is amended as follows.
Backpay for the unfair labor practice strikers denied immediate rein-
statement on November 30, 2012, shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950)—not, as the judge
ordered, in accordance with Ogle Protection Service, Inc., 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). Loss of earnings and
other benefits resulting from the Respondent’s unlawful unilateral
changes shall be computed in accordance with Ogle Protection Service,
supra, with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). So shall reimbursements for any
expenses resulting from the Respondent’s failure to make required
contributions to the Michigan Conference of Teamsters Welfare Fund,
including reimbursement of amounts that employees were required to
contribute for coverage under the Fund following the Respondent’s
unlawful implementation of its final offer on about June 23, 2012.
Benefit fund contributions shall be made in the manner set forth in the
remedy section of the judge’s decision. Because the Board’s powers
under Sec. 10(c) are strictly remedial, Chairman Miscimarra would
deduct from any make-whole award to the Union’s Welfare Fund the
amount that the Fund would have paid out for covered claims but did
not pay out as a result of the Respondent’s unlawful implementation of
its final offer in the absence of a valid impasse. See Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 194 (1941) (holding that the purpose of
the Board’s remedies is the “restoration of the situation, as nearly as
possible, to that which would have obtained but for” the unfair labor
practices).
4 Although the Respondent excepted to the judge’s finding that it
unlawfully refused to bargain with the Union on request, it does not
argue that the judge’s recommended affirmative bargaining order is
improper even assuming the Board affirms the judge’s finding. We
therefore find it unnecessary to provide a specific justification for the
affirmative bargaining order. See Lily Transportation Corp., 363
NLRB No. 15, slip op. at 3 fn. 5 (2015), enfd. 853 F.3d 31 (1st Cir.
2017); Heritage Container, Inc., 334 NLRB 455, 455 fn. 4 (2001); see
also Scepter Inc. v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002).
In accordance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir.
2017), we shall order the Respondent to compensate affected employ-
ees for their search-for-work and interim employment expenses regard-
less of whether those expenses exceed interim earnings. Search-for-
work and interim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate prescribed in New
Horizons, supra, compounded daily as prescribed in Kentucky River
Medical Center, supra. For the reasons stated in his separate opinion in
King Soopers, supra, slip op. at 12–16, Chairman Miscimarra would
adhere to the Board’s former approach, treating search-for-work and
interim employment expenses as an offset against interim earnings. We
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In adopting the judge’s findings, we clarify the follow-
ing point. During the course of bargaining, the Union
requested detailed cost-savings calculations from the
Respondent after the Respondent repeatedly stated it was
losing money. The Respondent failed to respond to these
requests or produce that information during bargaining.
While the judge appropriately relied on the Respondent’s
failure to respond to the Union’s requests as evidence
that the Respondent did not bargain in good faith to a
valid impasse,5 and we rely on it as such, the judge mis-
takenly concluded that this failure constituted a separate
violation of Section 8(a)(5) of the Act. The complaint
did not so allege. For the same reason, we also disavow
the judge’s statements in both her 2014 decision and her
2016 order that the Respondent bargained in bad faith.
The complaint did not allege bad-faith bargaining, and
the parties did not litigate that issue. 6

shall also modify the judge’s recommended Order to conform to the
Board’s standard remedial language and in accordance with our deci-
sion in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), and
we shall substitute a new notice to conform to the Order as modified.
5 Chairman Miscimarra agrees that the parties had not reached a val-
id bargaining impasse at the time the Respondent implemented its final
offer, and therefore the Respondent violated Sec. 8(a)(5) when it im-
plemented the terms of that offer. In so finding, however, he does not
rely on several aspects of the judge’s analysis. First, Chairman Misci-
marra does not rely, as evidence that bargaining had not reached a valid
impasse, on the fact that the Respondent did not furnish the Union its
2011 tax return. The judge found that the Respondent had a duty to
furnish the 2011 return “once it received” the return on the basis that
the Respondent had permitted the Union’s accountant to review its tax
returns for 2008, 2009, and 2010. Chairman Miscimarra disagrees that
by furnishing its tax returns for those 3 years, the Respondent incurred
an ongoing duty to provide additional tax returns. He finds there was
no such duty. Second, because Sec. 8(d) precludes the Board from
dictating any term of a collective-bargaining agreement, Chairman
Miscimarra disagrees with the judge’s finding that the Respondent’s
proposal of a judicial rather than an arbitral forum to resolve grievances
at step 4 of the grievance process “constituted a lack of good-faith
bargaining.” See H. K. Porter Co. v. NLRB, 397 U.S. 99, 107–108
(1970) (“It is implicit in the entire structure of the Act that the Board
acts to oversee and referee the process of collective bargaining, leaving
the results of the contest to the bargaining strength of the parties.”).
Finally, Chairman Miscimarra does not rely on National Extrusion &
Mfg. Co., 357 NLRB 127 (2011), or Grinnell Fire Protection Systems
Co., 328 NLRB 585 (1999), cited by the judge.
6 Member McFerran joins her colleagues in affirming the judge’s
finding that, under the totality of circumstances, the parties were not at
impasse when the Respondent unilaterally implemented its final offer.
In doing so, Member McFerran emphasizes that, although certain ele-
ments of the parties’ negotiations indicated good-faith bargaining – the
parties held at least seven negotiating sessions over several months,
enlisted the aid of a federal mediator, and made some progress toward
an agreement, among other things—the cost-savings information the
Respondent failed to provide related directly to what became the stick-
ing point in the negotiations; that is, the Respondent’s justification for
the substantial financial concessions it was seeking from the Union.
Member McFerran also observes that even if the Respondent were
correct that the judge erred in finding that the Respondent’s failure to
ORDER
The National Labor Relations Board orders that the
Respondent, Hendrickson Trucking Company, Jackson,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees without first notifying Local 164,
International Brotherhood of Teamsters (the Union) and
giving it an opportunity to bargain.
(b) Failing and refusing to immediately reinstate em-
ployees who engage in an unfair labor practice strike
upon their unconditional offer to return to work.
(c) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the unit employees.
(d) Failing and refusing to bargain on request with the
Union as the exclusive collective-bargaining representa-
tive of the unit employees.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the changes in the unit employees’ terms
and conditions of employment contained in the Respond-
ent’s last, best, and final offer that were unilaterally im-
plemented on about June 23, 2012.
(b) Make the unit employees whole for any loss of
earnings and other benefits suffered as a result of the
unlawful unilateral changes implemented on about June
23, 2012, in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(c) Make all contractually required contributions to the
Union’s health and welfare and other funds on behalf of
all eligible unit employees, including but not limited to
unit employees who worked during the strike and those
subsequently denied reinstatement upon the conclusion
of the strike, that it has failed to make since about June
23, 2012, if any, and reimburse affected employees for
any expenses ensuing from its failure to make the re-

provide that requested cost-savings information independently violated
Sec. 8(a)(5) and (1) of the Act because it was not properly alleged, it
still would be appropriate to rely on the Respondent’s failure as a basis
for concluding that the parties did not reach a valid impasse. See Deck-
er Coal Co., 301 NLRB 729, 740 (1991).
Last, although Member McFerran agrees with the judge’s finding
that the Respondent unreasonably insisted that all contractual disputes
be resolved through court litigation rather than arbitration, even in the
absence of that finding she would conclude that the Respondent failed
to establish that the parties reached a valid impasse.
HENDRICKSON TRUCKING CO. 3
quired payments, with interest, as set forth in the remedy
section of the judge’s decision.
(d) Within 14 days from the date of this Order, offer
all unit employees who engaged in the unfair labor prac-
tice strike beginning June 25, 2012, and were not imme-
diately reinstated upon their unconditional offer to return
to work full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, terminating, if necessary,
any replacements who occupy those positions.
(e) Make the unfair labor practice strikers whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them in the manner set
forth in the remedy section of the judge’s decision as
amended in this decision, plus reasonable search-for-
work and interim employment expenses.
(f) Compensate the affected employees for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and file with the Regional Director of Region
7, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(g) Furnish to the Union in a timely manner the infor-
mation requested by the Union on July 31, 2012, and
again on November 30, 2012.
(h) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All drivers, mechanics, mechanics helpers, and
parts/utility employees employed by the Respondent at
or out of its facility located at 1077 South Toro, Jack-
son, Michigan, but excluding all guards and supervisors
as defined in the National Labor Relations Act (the
Act).
(i) Within 14 days after service by the Region, post at
its facility in Jackson, Michigan, a copy of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since June 23, 2012.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 11, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT change your terms and conditions of
employment without first notifying Local 164, Interna-
tional Brotherhood of Teamsters (the Union) and giving
it an opportunity to bargain.
WE WILL NOT fail and refuse to immediately reinstate
employees who engage in an unfair labor practice strike
upon their unconditional offer to return to work.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT fail and refuse to bargain on request with
the Union as the exclusive collective-bargaining repre-
sentative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the changes in your terms and condi-
tions of employment that were unilaterally implemented
on about June 23, 2012.
WE WILL make whole all bargaining unit employees
for any loss of earnings and other benefits resulting from
our unlawful unilateral implementation of terms and
conditions of employment on about June 23, 2012, plus
interest.
WE WILL, within 14 days from the date of the Board’s
order, offer all employees who engaged in the unfair la-
bor practice strike beginning June 25, 2012, and were not
immediately reinstated upon their unconditional offer to
return to work full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed, terminating, if
necessary, any replacements who occupy those positions.
WE WILL make the unfair labor practice strikers whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, less any net
interim earnings, plus interest, plus reasonable search-
for-work and interim employment expenses.
WE WILL compensate all employees who suffered loss
of earnings as a result of our unlawful unilateral changes
on about June 23, 2012, or of our failure to immediately
reinstate unfair labor practice strikers upon their uncondi-
tional offer to return to work for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director of Region 7,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
year(s) for each employee.
WE WILL make all contractually required contributions
to health and welfare and other funds on behalf of all
eligible unit employees, including but not limited to unit
employees who worked during the strike and those sub-
sequently denied reinstatement upon the conclusion of
the strike, that we have failed to make since about June
23, 2012, if any, and reimburse you, with interest, for
any expenses ensuing from our failure to make the re-
quired payments.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on July 31, 2012,
and again on November 30, 2012.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All drivers, mechanics, mechanics helpers, and
parts/utility employees employed by us at or out of our
facility located at 1077 South Toro, Jackson, Michigan,
but excluding all guards and supervisors as defined in
the National Labor Relations Act (the Act).
HENDRICKSON TRUCKING COMPANY
The Board’s decision can be found at
https://www.nlrb.gov/case/07–CA–086624 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Patricia A. Fedewa, Esq., for the General Counsel.
Timothy J. Ryan, Esq., Linda L. Ryan, Esq. and Katherine J.
Donohue, Esq., for the Respondent.
ORDER RATIFYING AND ADOPTING DECISION
On May 16, 2014, I issued a decision in this case. Subse-
quently, Hendrickson Trucking Company (Respondent) filed
exceptions and a supporting brief, and the General Counsel
filed an answering brief with the National Labor Relations
Board (the Board). Respondent argued, inter alia, that I was
appointed at a time when the Board lacked a quorum, that my
appointment was therefore invalid and that I lacked the lawful
HENDRICKSON TRUCKING CO. 5
authority to preside over the hearing, issue a decision or other-
wise act in this proceeding.
On April 6, 2016, the Board issued an order remanding this
case back to me with full authority over this matter to “decide
whether or not to ratify [my] prior actions herein, to adopt or
modify [my] prior decision, or issue an entirely new decision.”1
The Board’s order also stated that “[a]bsent a specific order by
[me], this remand does not give the parties the opportunity to
relitigate any matter previously presented for decision, nor does
it give any party the right to expand the scope of the issues
previously presented.”
The Board agreed with the Respondent’s contention that un-
der the Supreme Court’s decision in NLRB v. Noel Canning,
134 S.Ct. 2550 (2014), the Board lacked a valid quorum at the
time that it originally approved my appointment in April 2013.
However, the Board pointed out that on July 18, 2014, it rati-
fied all administrative and personnel decisions made from Jan-
uary 4, 2012, to August 5, 2013. It also concluded that its rati-
fication expressly authorized my appointment.2 However, since
my decision in this case was issued and transferred to the Board
prior to the Board’s July 18, 2014 ratification of my appoint-
ment, I was divested of jurisdiction as well as the opportunity
to consider whether or not to ratify my prior actions. In consid-
ering all of these circumstances of this case, including its com-
plexity, number of alleged violations, the hearing and lengthy
decision, exceptions filed and Respondent’s intention to con-
tinue to litigate my authority, the Board, “in an effort to remove
any lingering questions,” decided to remand the case to give me
the opportunity to consider the issues presented now that my
appointment has been fully confirmed by a legally valid five-
member Board.
This complex case involves many alleged violations of the
National Labor Relations Act (the Act), Section 8(a)(1), (3),
and (5), including alleged unilateral changes to terms and con-
ditions of employment without a lawful impasse; subsequent
failure and refusal to bargain collectively and in good faith
towards a new collective-bargaining agreement; failure and
refusal to provide relevant and necessary information requested
by the Charging Party Union; failure and refusal to reinstate
strikers after they unconditionally offered to return to work
following an unfair labor practice provoked by Respondent);
bad-faith bargaining. Respondent denied violating the Act in
any way, and raised several affirmative defenses. Pursuant to
the Board’s remand order and my now valid ratification, au-
thority and jurisdiction over this case, I have fully reviewed my
decision in light of the alleged allegations and Respondent’s
defenses. In doing so, I have determined that my decision (in-

1 Pursuant to the Board’s remand order, I am only addressing the is-
sues raised by Respondent regarding the validity of my prior actions
and decision in this case. The Board has already made determinations
regarding Respondent’s allegations and arguments about the validity of
appointments ad authority of the Regional Director and Acting General
Counsel in this case. (Board Order Remanding.)
2 The Board explained in its order remanding this case that it took
this ratification action on July 18, 2014, “in an effort to resolve any
continuing uncertainty regarding various actions taken during the time
the board lacked a quorum.” See board remanding (April 6,
2016)Zasssssssssssssssssssssssssssssssx.
cluding the findings of fact, analysis, credibility determinations,
conclusions and recommended order) is based on the entire
record, and that it remains correct and should stand on its en-
tirety.
IT IS SO ORDERED that all prior actions performed by me in
this case are hereby ratified and that my decision issued in this
case on May 16, 214, is hereby adopted in its entirety for the
reasons stated above and in the Board’s remand order issued on
April 6, 2016.
Dated, Washington, DC April 12, 2016
Patricia A. Fedewa, Esq., for the Acting General Counsel.
Timothy J. Ryan, Esq., Linda L. Ryan, Esq., and Katherine J.
Donohue, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
DONNA DAWSON, Administrative Law Judge. This case was
tried in Detroit, Michigan, on May 21–22, 2013. The Acting
General Counsel1 issued the complaint in the first case on No-
vember 21, 2012, and an order consolidating the cases and a
consolidated amended complaint on March 27, 2013 (the com-
plaint). The complaint alleges that Hendrickson Trucking
Company (Respondent) violated Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act) by unilaterally imple-
menting the terms in its last collective-bargaining agreement
offer without bargaining with the Union to a good-faith im-
passe. It also alleges that Respondent violated Section 8(a)(5)
and (1) of the Act by subsequently failing and refusing to bar-
gain collectively towards a new collective-bargaining agree-
ment and failing and refusing to respond to information re-
quested by the Union. Finally, the complaint alleges that bar-
gaining unit strikers engaged in an unfair labor practice strike
and Respondent violated Section 8(a)(3) and (1) of the Act by
failing and refusing to reinstate those strikers after they made
an unconditional offer to return to work. Respondent filed its
answer and amended answer denying all essential allegations in
the complaint. Respondent also raised an affirmative defense
which will also be addressed later in this decision.
On the entire record, including my observation of the de-
meanor of all witnesses, and consideration of the briefs filed by
the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Michigan corporation, is engaged in the inter-
state transportation of aggregate materials, and maintains an
office and facility in Jackson, Michigan. During the calendar
year ending December 31, 2011, Respondent derived gross
revenues in excess of $1 million for the transportation of freight
in interstate commerce under arrangements with and as an
agent for common carriers, including Michigan Materials and
Aggregates Company, d/b/a Stoneco of Michigan, Inc., an enti-
ty which operates to and from points outside the State of Mich-

1 For brevity purposes, the Acting General Counsel and counsel for
the Acting General Counsel will be referred to as the “General Coun-
sel.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
igan. I find, and Respondent admits, 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
The Facts
A. The Parties
Respondent is a trucking company which transports aggre-
gate materials (such as sand, gravel, large rocks, stone, etc.). It
operates as a seasonal employer that generally employs most of
its employees from April 1 (when business picks up) through
December 1 (when business slows down/winter slow down).
Therefore, between about December 1 of each year and April 1
of the next year, Respondent lays off a number of its employ-
ees, including drivers, mechanics and parts/utility workers. On
or shortly after April 1 of each year, Respondent normally re-
hires the laid-off employees. The layoff and rehire times might
vary from year-to-year, based on the amount of work available
(e.g., the slow season may begin the end of November), and
Respondent has historically used a seniority list to determine
who is laid off and rehired. (Tr. 44, 406.) At all times material,
Respondent’s primary agents and/or supervisors have been:
James (Jim) Hendrickson, owner; Thomas James Hendrickson
(T. J. Hendrickson), vice president and in-house counsel; Jack
Durbrow (Durbrow), chief financial officer/treasurer; and Ryan
Hendrickson (R. Hendrickson), mechanic supervisor. T. J.
Hendrickson, Jack Durbrow, and R. Hendrickson served as
Respondent’s bargaining representatives for the current negoti-
ations at issue in this case.
Since about 1977, Respondent has recognized the Union as
the exclusive collective-bargaining representative of the bar-
gaining unit (the unit): consisting of:
All drivers, mechanics, mechanics helpers, and parts/utility
employees employed by Respondent at or out of its facility
located at 1077 South Toro, Jackson, Michigan, but exclusive
of all guards and supervisors as defined in the Act.
(GC Exhs. 1(s) and 4.)2 During the relevant time period,3 the
unit included approximately 20–21 employees. (Tr. 161; R.
Exh. 12.)
In recent bargaining history, the parties have reached succes-
sive collective-bargaining agreements in 2002, 2005, and 2008,
the most recent of which was effective from April 1, 2008 to
March 31, 2012. (GC Exh. 4.) Prior to this complaint, the
parties have not been involved in an unfair labor practice dis-
pute with or before a third party since 2002 when they appeared
before the Aggregate Carrier Association, pursuant to their
collective-bargaining agreement at the time. This association
was an aggregate trucking/transportation industry organization
that included arbitration services in its member dues for em-
ployers and unions.

2 Abbreviations used in this decision are as follows: “Tr.” For
Transcript; “GC Exh.” for General Counsel’s Exhibit; “R. Exh.” for
Respondent’s Exhibit; “GC Br.” for General Counsel’s Brief; and “R.
Br.” for Respondent’s Brief.
3 The relevant time period is 2012, unless otherwise specified.
During most of the relevant time period, Alan Sprague
(Sprague) served as the Union’s president and chief negotiator
until the Union removed him from this position on or about
January 30, 2013. (Tr. 34.) Thomas Mathews (Mathews)
served during the same time period as the Union’s steward and
recording secretary (Tr. 247–248). Subsequently, a trustee was
appointed for the local Union.
B. Overview of the Expired Collective-Bargaining Agreement-
Key Provisions
As stated, the last collective-bargaining agreement expired
on March 31, 2012. It covered a broad range of terms and con-
ditions, but several areas (employee health and welfare insur-
ance, employee 401(k) retirement plan, overtime calculations,
and dispute resolution) proved to be main issues of contention
when the parties began negotiating for a successor agreement in
February 2012. To a lesser extent, the parties also discussed
other issues during their negotiations for a new collective-
bargaining agreement, such as a continued freeze on wage
rates, voluntary layoffs during the off season, and use of earned
vacation, which will be discussed in this decision. (GC Exh. 4.)
Several of the key areas or provisions addressed during bar-
gaining are set forth below.
The health and welfare section of the expired agreement re-
quired Respondent to make contributions, specified by the ex-
pired agreement (ranging from $242.75 to $267.85 per week
per employee), into the Michigan Conference of Teamsters
Welfare Fund (the MCTW Fund) for each unit employee who
had been on the payroll 90 days or more. Generally, Respond-
ent was to make all healthcare insurance contributions for each
employee for each week worked by that employee. Respondent
paid lower contributions (for a certain number of weeks based
on the number of weeks worked) into a separate plan (the
“ENN-NN Plan”) for seasonally laid-off employees based on a
formula set forth in the provision. The expired agreement also
allowed employees to opt out of the plans covered by the Fund
provided they submitted proper proof of other healthcare cov-
erage pursuant to the Fund’s requirements. Employees who
opted out would receive $1-per-hour increase in pay. (GC Exh.
4, art. 14.)
Regarding the retirement plan, the expired agreement called
for Respondent to match dollar-for-dollar each unit employee’s
contribution up to a certain percentage of gross wages, pursuant
to a formula set forth in the agreement. (GC Exh. 4, art. 15.)
The expired agreement described overtime pay as, “[a]ll time
worked in excess of forty (40) hours in any one (1) week and/or
eight (8) hours in any one (1) day, shall be paid at the rate of
one and one-half (1-1/2) times the regular hourly rate.” (GC
Exh. 4, schedules A and B.) It is undisputed that unit employ-
ees were paid overtime at 1-1/2 times the regular hourly rate
after working in excess of 8 hours a day (vs. 40 hours).
The Agreement required the parties to resort to arbitration if
a disputed matter was not settled during step 3 of the grievance
process. Pursuant to step 3, the matter would be submitted to a
Federal mediator assigned to the area, and if not settled, “[t]o
arbitration where the arbitrator shall be a person or procedure
mutually agreed upon by both the Employer and the Union.” If
the parties did not agree on either an arbitrator or arbitration
HENDRICKSON TRUCKING CO. 7
process within 5 days, then the dispute/grievance would be
submitted to the “Joint State’s Committee.” The fees and ex-
penses of the arbitrator would be shared equally by the parties.
(GC Exh. 4, art. 5.) However, the parties had never utilized
arbitration under the expired agreement. As stated above, the
last time the parties submitted a dispute to a third party was in
2002.
According to the expired agreement, during the period from
December 1 through April 1 (each year) in the succeeding year,
Respondent could reduce the size of its work force (during the
slow season discussed above), and give up to 10 employees the
opportunity to voluntarily take a layoff from employment. This
“voluntary layoff” was offered by seniority, allowing the most
senior to the least senior employee on the list to take a volun-
tary layoff. Recall of those laid off, on April 1, was also based
on seniority. (GC Exh. 4, art. 11.)
Finally, regarding vacation, employees were allowed up to 3
weeks of vacation, depending on their tenure (1 week for 1–3
years; 2 weeks for 3–10 years; and 3 weeks for 10–15 years).
The selection for vacation was done from April 1–30 each year
based on seniority. Any requests made thereafter had to be
made 4 weeks prior to the time requested off, and would be
granted on a first come, first serve basis, “contingent with the
efficient operation of the business.” It is undisputed that Re-
spondent rarely allowed employees to take off more than 1
week during the busy season. Although vacation time was
unpaid, Respondent agreed to pay employees “$1.00 per hour
for all hours worked for vacation and Holidays.” (GC Exh. 4,
art. 13.)
C . February through June—Negotiations for Successor Collec-
tive-Bargaining Agreement
On January 4, Respondent notified the Union of its intent to
terminate the Agreement on April 1. On January 20, the Union
advised Respondent of its desire to continue the existing
agreement and to negotiate changes to it. (GC Exhs. 5–6.) In
summary, bargaining began on February 27 and ended on June
13 (after seven in-person sessions) after Respondent declared
the parties had reached an impasse, and subsequently imple-
mented its second final offer. There is no real dispute about
what areas the parties did and did not agree upon. There is,
however, some factual dispute as to whether the Union request-
ed, on several occasions during the negotiation sessions, a
breakdown of cost savings associated with several of Respond-
ent’s economic proposals, and whether Respondent provided
the Union with additional cost saving information.
1. First bargaining session—February 274
On February 27, the parties’ respective negotiating teams
met to begin bargaining for a new/successor collective-
bargaining agreement. As previously stated, Respondent’s
team consisted of T. J. Hendrickson, Durbrow, and R. Hen-

4 The bargaining sessions refer to in-person negotiation meetings,
and not intermittent exchanges of proposals, telephone conversations,
or other correspondence between the parties. There were seven of these
in-person sessions between February 27 and June 13, 2012.
drickson. The Union’s team included Sprague and Mathews.5
During this first session, the parties spent most of their time
exchanging and explaining their initial proposals. The parties
used the expiring collective-bargaining agreement as a frame-
work for their proposed changes. In summary, Respondent was
concerned about saving money, claiming that its expenses were
increasing and that it had been losing money. Its mantra, re-
peated throughout negotiations, was “we need to stop the bleed-
ing.” By contrast, the Union believed that it had sacrificed
wages and many other benefits in past years in attempts to help
Respondent save money. Accordingly, its goal was to restore
some of those lost wages and benefits in the new agreement.
Respondent proposed the following changes: eliminating
payroll dues deduction (art. 1); increasing the probationary
period from 90 days to 1 year, with no placement on the senior-
ity list until after 1 year (art. 1, 11); eliminating layoffs for
those employees with the highest seniority during the off-
season (December 1-April1) (art. 11, sec. 5); eliminating the
equipment list (art. 11); reducing vacation time to 1 week dur-
ing the busy period, and reducing vacation pay from $1 per
hour to $.50 per hour (art. 13); requiring all employees to pay
25 percent of their health insurance premiums, eliminating the
formula to pay insurance in the off-season and increasing the
time an employee must be employed before healthcare would
be provided from 90 days to 180 days (art. 14); and eliminating
pay for travel time (of 50-60 miles) “in the morning from the
shop to the jobsite and/or pit.” (Art. 28.)6 Additionally, Re-
spondent proposed that it eliminate its match to employees’
401(k)/retirement plans (art. 15). It also recommended that
overtime calculations be changed from daily overtime begin-
ning after 8 hours to weekly overtime to begin after 40 hours.
disputes, Respondent offered that in the event step 3 failed to
resolve conflicts, the dispute would be referred to “TRIAL,”
upon the request of either party (rather than to arbitration or the
Joint State’s Committee) (art. 5). (GC Exh. 7.) Finally, Re-
spondent recommended the elimination of a practice not in-
cluded in the expiring agreement- “pick’n’pass,” which allowed
senior employees to decline work so that it would be passed
down to a less senior employee (Tr. 43).
The Union proposed the following: a 3-year contract; elimi-
nating the super seniority provision which places the chief un-
ion steward at the top of the seniority list (art. 2); amending the
contract so as not to allow Respondent to deny any time off for
vacation requested before April 30; increasing regular hourly
wage rates ($1 in year one, $.75 in year 2, and $.50 in year 3);
increasing the hourly wage rates of new hires (from $10 to $12
the first 31 days, from $12 to $14 days 32 to 60, $14 to $16
days 61 to 180, and the full rate after 180 days (schedule A);
instituting employer provided health insurance coverage year-
round (and not just based on the number of days an employee

5 These individuals represented the negotiating teams for Respond-
ent and the Union, and were present for all of the in-person bargaining
sessions through the June 13 session.
6 “Article” and “Schedule” refer to the article numbers and sched-
ules in the parties’ most recent contract which expired on March 31,
2012, and also correspond to those set forth in the proposals exchanged
during bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
worked) (art. 14); implementing a tool allowance for mechanics
of $500 per year (schedule A); and revising the arbitration pro-
vision to require hearings before the Western Michigan Indus-
trial Board (Industrial Board) (art. 5). (Tr. 256–258; GC Exh.
8.)
At this meeting, Respondent explained that it needed to save
money through its proposals, and that “according to the papers,
everybody [was] paying,” referring to a reported trend that
most or all employees were now contributing to their healthcare
insurance costs. In response to Respondent’s claim that it des-
perately needed to save money, Sprague requested that the
Union be allowed to review Respondent’s “books,” referring to
its financial records. Respondent agreed.
2. Union accountant’s report on Respondent’s financial status
On March 27, the Union’s accountant, Gary Kushner (Kush-
ner) and his assistant met with Durbrow to go over Respond-
ent’s books. Kushner reviewed Respondent’s tax returns for
years 2008 through 2010, and discussed Respondent’s financial
situation with its managers.7 On March 13, he sent Sprague his
report, which Sprague did not share with Respondent or his
union membership.8 This report reflects that Respondent made
a small profit in 2008 ($6843), a small loss in 2009 ($18,072),
and larger profit in 2010 ($136,573).9 Its total assets decreased
somewhat over the 3 years analyzed, but the liabilities de-
creased as well, and the stockholder’s equity remained fairly
constant in 2008 and 2009, but rose significantly (from an aver-
age of $80,000 to $209,000) in 2010. Current assets decreased
slightly over this 3-year period, but current liabilities decreased
significantly. Working capital was down from $83,664 in 2008
to $67,014 in 2009, but rose sharply in 2010 to $215,553. Of
note, stockholder’s equity also rose dramatically in 2010 to
$209,494 (from $72,921), and retained earnings rose to
$207,494 in 2010 (from $70,000 in 2009). Management shared
its concerns about needing to replace aging equipment, increas-
ing fuel costs, having received 45 percent of its 2011 business
from one customer, and having to significantly reduce its ad-
ministrative staff. Kushner also reported related-party transac-
tions including real estate and trucks owned by related compa-
nies, such as The Hendrickson Brothers, LLC and leased to
Respondent for fair market value or less, and four acres of land
purchased by its real estate entity for Respondent’s use. This
report was not controverted at the hearing. (GC Exh. 27.)
Sprague testified, and the evidence supports, that he essen-
tially told his membership and Mathews that Respondent had
made a profit in 2008 and 2010, and lost money in 2009.

7 Kushner reported that since Respondent did not use a certified
public accountant, the only documents available were the corporate
income tax returns. Respondent provided several past years’ worth of
returns, but Kushner focused on those for 2008–2010. At that time,
Respondent had not filed tax returns for the 2011 tax year. (GC Exh.
27.)
8 There is no evidence, however, that Respondent asked to see this
report.
9 Sales from 2008 to 2009 took a downward turn ($4,381,198 to
$2,392,395), but turned back upward in 2010 (to $3,108,682). Kushner
also referred to a 2001 analysis previously prepared by his office for
comparison purposes. (Tr. 32, 318, 332–333; GC Exh. 27.)
3. Second bargaining session—April 10
When the parties met for a second session on April 10, Re-
spondent initially presented the same February 27 proposal
with an April 10 date and cover letter. (GC Exh. 9.) The par-
ties reached several tentative agreements at this meeting, albeit
many of them involved only grammatical, spelling, and contex-
tual language changes that Respondent had already made in its
initial proposal.10 However, Respondent agreed to withdraw its
provision recommended on February 27, relating to selection
and notice of vacation days, and a decrease from $1 to $.50 per
hour paid to employees for all hours worked for vacation and
holidays (i.e., the parties kept the vacation selection provision
in art. 13 of the expired agreement). (See also GC Exhs. 4 and
10, art. 13.)
As in the first bargaining session, Respondent continued to
assert that it was not profitable, and needed to save money with
its proposals. On the other hand, the Union expressed its frus-
tration that it had made numerous concessions with previous
contracts in recent years—it “[hadn’t] had any wage increases .
. . [had] taken reductions in insurance . . . changed the insur-
ance plan . . . done everything to help [Respondent].” Accord-
ing to Sprague, since Respondent had not provided tax returns
for 2011, and since tax returns for 2008 and 2010 reflected
profits, he asked Respondent how much money it expected to
save with its various proposals, including overtime calculation
changes and elimination of the 401(k) match. Sprague also
asked Respondent’s bargaining team, “. . . when you say you
need to save . . . [h]ow much—what do you need? $25,000,
$50,000, $175,000?” In response, Durbrow said, “[Y]eah, 75;
75 sounds good, $75,000.” Sprague recalled that when he
asked for specific numbers, Durbrow said that Respondent
would probably save about $20,000 on the 401(k) match, about
$25,000 for the overtime revision, and about $40,000 with em-
ployee healthcare contributions. Sprague believed that Dur-
brow was “just throwing out numbers,” and asked for docu-
mentation and the underlying numbers to support those figures.
Regarding the 401(k) program, Sprague did not know how
many unit employees participated, but did not believe that
many did since there had been “problems” with the retirement
plan.11 (Tr. 209–211.)
Mathews’ testimony generally corroborated Sprague’s testi-
mony that Sprague repeatedly asked Respondent’s representa-
tives for documentation to support their estimated cost savings
totals of $75,000 to $100,000. The only differences were that
Mathews recalled Durbrow giving them a $26,000 total for cost
savings on the new overtime calculations, and that Durbrow did
not respond with estimated savings for individual proposals
until May. For reasons addressed below, I credit the testimony
of Sprague and Mathews that Sprague began asking how much

10 The tentative agreements/provisions had the initials “TA” circled
and next to them. (Tr. 86.) The parties kept these tentative agreements
through all of the subsequent proposals.
11 Sprague explained that many of the unit employees stopped partic-
ipating in the 401(k) program after policy change several years ago
which precluded them from withdrawing all contributions (theirs and
Respondent’s contributions) from their accounts at the end of each
season.
HENDRICKSON TRUCKING CO. 9
Respondent expected to save with its proposals early on in the
bargaining process.
There is no dispute that Sprague believed that Respondent
had not been trying to generate business, and asked Respond-
ent’s team when they were going to “get off [their] duff and go
out and get some work,” referring to the fact that he had recent-
ly helped Respondent get an oil field contract that had generat-
ed about half a million dollars in revenue. Furthermore, Spra-
gue thought that Respondent might be trying to recoup
$100,000 that it had paid for a piece of property in the previous
year.12 (Tr. 69—71.)
Sprague also recalled that he first recommended an opt-out
provision in which Respondent would pay unit members $1
more an hour if they opted out of the health and welfare plan.
Respondent did not dispute that it rejected the opt-out option
because Durbrow thought it would be “too complicated” and
involve too much paperwork to process employees who volun-
teered to opt out. In fact, Respondent had offered an opt-out
option for employees in the expired agreement, but encountered
problems with bargaining unit employees being approved for
opt out by the MCTW Fund.13 There is no evidence that Re-
spondent specifically addressed or provided any counteroffers
to the Union’s initial proposals. According to Respondent’s
witnesses they considered and summarily rejected them.
4. Post-April 10 communications
On about April 13, Sprague faxed an offer to Respondent for
a 1-year contract; freeze on wages; Respondent paid health care
premium increases starting on April 1; and agreed to changes
(tentative agreements) made on April 10. It is undisputed that
Sprague’s intention was to otherwise maintain the status quo, or
rather, extend the expired agreement for 1 year, with the afore-
mentioned changes. He testified that the busy season was fast
approaching, and he wanted to reach an agreement that would
buy additional time for the Union to receive and review Re-
spondent’s 2011 income tax returns, get the information on the
cost savings associated with Respondent’s economic proposals,
and find out how profitable (or not) Respondent really was. He
explained that he was not abandoning the Union’s original pro-
posals, but wanted “to get [Respondent] off the dime . . . to try
to get negotiations going. . . .” (Tr. 75-77; GC Exh. 10.)14

12 There is no dispute that Sprague helped Respondent pick up this
oil field contract. However, evidence revealed that a company con-
nected to Respondent, Hendrickson Brothers, LLC, had purchased the
$100,000 piece of property that Respondent had been renting from a
prior owner, and that Respondent was now renting it from Hendrickson
Brothers, LLC.
13 This health and welfare fund was the provider of health, life, short
and long-term disability, dental and vision benefits for the unit mem-
bers. Respondent claimed that when it offered this option in the past,
only four of five bargaining unit members were initially approved, and
the Fund reversed approval for the fifth applicant due to some kind of
error in processing the application. (Tr. 74.)
14 Respondent’s counsel objected to the admission of GC Exh. 10
because he did not believe that it was ever sent to Respondent. I over-
ruled the objection since the document contained the fax confirmation
time and date stamp showing that it was sent to Respondent’s fax num-
ber. None of Respondent’s witnesses refuted receiving this proposal,
and Respondent did not raise the matter further in its brief.
5. Third bargaining session—April 25
During the third session, Respondent gave the Union an up-
dated proposal. (GC Exh. 11.) In this proposal, Respondent
withdrew most of its initial proposed changes (provided on
February 27) such as: eliminating payroll deductions (art. 1);
increasing the probationary period from 90 days to 1 year and
not being placed on the seniority list until after 1 year (arts. 1,
11); eliminating the formula to pay health and welfare insur-
ance in the off season (art. 15); and eliminating payment to
employees for “travel time in the morning from the shop to the
jobsite and/or pit” (art. 28). Respondent also agreed to the
Union’s proposal to eliminate the super seniority provision for
the union steward (art. 2). Additionally, under the health and
welfare provision, Respondent amended its initial provision to
reduce the employee premium contributions to 20 percent for
each driver and 15 percent for each mechanic (art. 14), as op-
posed to the initial recommendation of 25-percent contribution
from all unit members. Respondent also introduced a formula
to pay insurance in the off-season (which it had done in the
former contract), with the employees contributing the afore-
mentioned percentages. Regarding the retirement plan, Re-
spondent refused to add back the 401(k) match contributions,
but added the following language: “The Employer match will
be suspended until Hendrickson Trucking Company returns to
profitability.” Respondent maintained its stance on the revised
overtime calculations. (Id.)
Respondent noted under article 5, grievance and arbitration
procedure, that it was waiting for additional information about
the Industrial Board (as a method for resolving grievances) and
wanted to attend an Industrial Board hearing.
Sprague testified that he once again asked Respondent for
documentation to show estimated cost savings relating to elim-
ination of the 401(k) match; revision of the overtime calcula-
tions; and employee contributions to the healthcare plan. He
said that Durbrow responded with, “stop the bleeding,” and
asked what the Union was going to do to help save money. (Tr.
80-81; 265.) The parties did discuss the Union’s offers to the
extent of the contract length of 1 year and to explore opt-out
language for health care insurance, as well as the 401(k) match,
but did not reach an agreement. At that point, T. J. Hendrick-
son suggested that the parties obtain a mediator to assist with
negotiations. Sprague said that he would get the rules of pro-
cedure for the Industrial Board for arbitration of disputes, and
to try to set up a time when Respondent could observe one of
the Board’s meetings.15
6. The Union rejects Respondent’s recent proposals and holds
ratification and strike votes
On about April 27, Respondent sent the Union another up-
dated proposal with no recognizable changes, except an at-
tached addendum to a MCTW Fund participation agreement.
This addendum stated, in pertinent part, that for the period
April 1, 2012, through March 31, 2015, employer contributions
to the MCTW Fund “are to be made for each week on behalf of
a participant who worked, or is compensated for any portion of
two or more days in the contribution week. . . .” The addendum

15 Due to scheduling issues, a meeting was never set up.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
contained signature lines for Respondent, the Union, and the
board of trustees for the MCTW Fund. (GC Exh. 12.)
On about April 29 or 30, the bargaining unit met and voted
on several items. The first was a vote rejecting Respondent’s
recent proposals. The second was a vote on a ratified union
proposal to present to Respondent. This ratified proposal in-
cluded a 1-year contract, acceptance of the status quo with a
freeze on wages, and unit members’ offer to pay for the annual
increase in healthcare insurance premiums of about $15 per
employee each week on a pretax basis. The third vote was a
“secret ballot strike vote,” which passed overwhelmingly.
Sprague and Mathews explained that the “secret ballot strike
vote” was a tool that it commonly used at the beginning of or
during negotiations to determine if the bargaining unit would be
willing to strike if necessary. According to Sprague, the Union
believed this strike vote would get Respondent to seriously
consider the Union’s proposals, and get the parties through the
busy season and give them time to explore “where they were
during the year.”
Respondent claimed to have considered and rejected all of
the Union’s proposals, including this one. There is no evidence
that the parties sat down and discussed the Union’s preratified
proposal. (Tr. 87–92; 267–268.)
Thus far, the Union had presented three counterproposals to
Respondent’s initial proposals, including the opt-out option for
healthcare insurance, employee contributions of $15 per week
towards increased healthcare premiums, and use of the Indus-
trial Board for dispute resolution. Respondent agreed to one of
the Union’s initial proposals- to eliminate the super seniority
for the union steward. It had also withdrawn several of its ini-
tial provisions, reduced the amount of employee contributions
toward the health and welfare insurance premiums, and added
that the employer 401(k) match would be suspended (instead of
indefinitely eliminated) only until Respondent reached profita-
bility.
7. Fourth bargaining session—May 16
The parties re-convened on May 16, meeting for the first
time with Federal mediator, Kevin Brahaney (Brahaney). Bra-
haney explained his role and met with the parties individually.
Mostly, the parties brought him up to date on their various pro-
posals; they did not exchange any new ones.
According to Durbrow and T. J. Hendrickson, Durbrow pro-
vided everyone, including Sprague and Mathews, with copies
of a spreadsheet reflecting 8 years of Respondent’s finances,
with an understanding that they would return all copies to him
at the end of the meeting. According to Durbrow, this spread-
sheet also included projected figures generated by Respond-
ent’s accounting system for 2011, including a $138,000 loss for
2011, in lieu of the yet to be completed and filed 2011 tax re-
turns. Of note, this was a huge contrast to Respondent’s actual
profit in 2010 of over $136,000, and to the projected sales in
2011 of over $3.3 million. Durbrow admitted that this data was
not a complete income or profit and loss statement. (Tr. 369–
370; R. Exh. 31.) T. J. Hendrickson testified that it was his
practice to write the dates on undated documents before they
are distributed, as he did with this spreadsheet on May 16.
Sprague and Mathews, however, had no recollection of seeing
or receiving this document prior to the hearing.
Contrary to assertions by Sprague and Mathews, Durbrow
testified that Sprague only requested cost saving information
related to Respondent’s proposals on only one occasion during
their contract negotiations- at this May 16 bargaining session.
He maintained that this spreadsheet was provided to show why
Respondent needed to save at least $100,000, and that the in-
formation contained therein supported the figures he had ver-
bally provided to Sprague. Durbrow finally admitted, however,
that this spreadsheet did not show how much (or an estimate of
how much) each of the economic provisions (the elimination of
the 401(k) match, overtime after 40 hours, and employee con-
tributions to healthcare) would save. Of note, he also did not
recall that this was the first meeting with the mediator. (Tr.
173–174, 208–209, 345–347.)
Respondent asserts that affidavits provided by both Sprague
and Mathews to the NLRB, as well as notes provided by
Mathews, support Durbrow and T. J. Hendrickson’s testimony
that they gave Sprague and Mathews copies of this spreadsheet
on May 16, and that May 16 was the only date on which the
Union requested or mentioned cost savings specific to each of
their economic provisions.16 I disagree. As previously stated, I
credit Sprague’s and Mathew’s testimony on these points over
that of Durbrow and T. J. Hendrickson. Neither Mathews nor
Sprague claimed to recall all of the details and dates regarding
the bargaining sessions, and they both credibly testified that
their affidavits and notes did not represent all that was said or
done during the negotiation meetings. In fact, notes taken by
Sprague at a later session, and entered into evidence, were
sparse and clearly did not include all that was discussed when
compared to the testimony of all witnesses. (GC Exh. 28.)
Sprague also provided more detail regarding the bargaining
sessions than Respondent’s witnesses. Furthermore, testimony
revealed that Mathews’ bargaining notes and affidavit and
Sprague’s affidavit, indicated that the Union brought up the
issue of cost savings on May 30, and not May 16 as claimed by
Durbrow and T. J. Hendrickson. There was no evidence that
these affidavits or notes mentioned or indicated that Respond-
ent had ever provided the union representatives with a spread-
sheet or any other documentation showing total or proposal
specific cost savings. If Respondent’s argument is accepted,
then anything that took place or was said during a bargaining
session would have been included in these affidavits and notes.
Nevertheless, Respondent admits that the Union requested cost
savings information to support its proposals at least once during
negotiations for a new contract.
Respondent’s witnesses implied that this spreadsheet was an
adequate response to the Union’s questions about cost savings.
If Respondent prepared and presented this document to
Mathews and Sprague on May 16, or even on May 30, in re-
sponse to questions by the Union, it is unbelievable that May
16 was the first session during which the union representatives
mentioned or asked for cost savings or documentation in sup-
port thereof (other than during the first bargaining session when
the Union asked for accounting information). There is no evi-
dence of Respondent providing any financial information with-

16 Mathews’ notes were not introduced into evidence.
HENDRICKSON TRUCKING CO. 11
out a request by the Union. Likewise, it is simply not plausible
that Sprague would not have requested cost savings documenta-
tion regarding Respondent’s economic propositions. These
proposals were central to most of the bargaining discussions,
and represented a drastic change from similar provisions in the
expired agreement.
Thus, the evidence supports my crediting the testimony of
Sprague and Mathews that Sprague requested cost savings
numbers and documentation on several occasions during the
bargaining process.17
8. Fifth bargaining session–May 21
The parties met again on May 21, with the mediator, Bra-
haney, present. Respondent presented a new proposal in which
it reverted back to its former recommendation that the parties
use the Federal District Court to resolve grievances. (GC Exh.
13.) However, Respondent further reduced the employees’
contributions to healthcare insurance to 15 percent towards the
cost of each driver’s premium (instead of 20 percent) and 13
percent towards each mechanic’s and/or mechanic helper’s
premium (instead of 15 percent), but new hires would not be
eligible until 180 days. This was the extent of the revised May
21 proposal. Sprague told Respondent it was “ridiculous” for
the parties to resort to Federal District Court for dispute resolu-
tion, instead of arbitration or the Industrial Board. He pointed
out that the parties had not taken disputes to a third party in
years. At that point, Durbrow said, “[W]ell, if that’s all it’s
going to take to get a contract, I’m sure that that can be taken
care of, I’m sure that can be handled,” and Sprague responded
that there were still a lot of other issues on the table. (Tr. 97.)
During this session, Sprague submitted information from the
MCTW Fund about the opt-out option, and advised Respondent
that the Fund representatives were willing to assist Respondent
with the opt-out process and requirements “step by step.”
Sprague also explained that he knew of two unit members who
were interested in opting out, which would save $240 per week
times two. T. J. Hendrickson reiterated his belief that there was
too much paperwork involved, and that Respondent was not
interested in revisiting the opt-out option. Sprague testified that
he reminded Respondent that it had not provided information
showing cost savings for these provisions. He further ex-
plained that the Union needed this information so that it could
see how the parties might save money through changes in other
parts of the contract. (Tr. 96–97, 101, 114, 164, 174, 282, 318.)
For the reasons previously set forth, I credit Sprague’s testimo-
ny that he requested this information. Regarding the 401(k)
match issue, Sprague maintained his belief that only a very
small percentage of unit members participated in the plan.
According to Durbrow, about half or a little over half of the
bargaining unit employees participated in the 401(k) plan, in-
cluding Mathews, but provided no evidence that he had provid-
ed cost savings calculations or documentation to the Union.
(Tr. 362–363.) He also explained that the elimination of the
employer 401(k) match, as well as the requirement that em-
ployees share in the costs of the healthcare and welfare premi-

17 Additionally, I note here my observation that Durbrow waivered
in his testimony, and was not entirely forthcoming.
ums and overtime calculations, applied to all employees, and
not just the bargaining unit. He did not, however, furnish any
of this information or a breakdown of how much savings was
attributable to the bargaining unit versus nonbargaining unit
employees to the Union during negotiations for a new agree-
ment.
9. Respondent’s May 23 proposals
On May 23, Respondent faxed the Union a proposal with
two options for the Union to consider: (GC Exh. 14.) This
proposal only included revised health and welfare and retire-
ment contribution provisions. The first option required em-
ployee contributions at the previously proposed 15 percent
towards each driver’s premium and 13 percent towards each
mechanic/mechanic helper’s premium. This also included em-
ployer and employee contributions into an ENN-NN plan for
laid-off employees from the layoff until April 1 or recall at the
start of the new season. As an example, this would result in
Respondent paying from $240.08-$294.14 of the weekly pre-
miums for drivers and drivers contributing from $42.37 to
$51.91 of the weekly premiums during the work season. The
second option did not include percentages for employer and
employee contributions toward healthcare premiums. Instead,
it recommended set dollar amounts for Respondent’s contribu-
tions of $265.45-$275.50 and drivers’ contributions of $17 to
$32, with increases over the life of the agreement. Option two
only offered laid-off employees 2 weeks of insurance after
layoff. Additionally, the second option included an employer
match of “$0.50 cents for every dollar the employee contributes
up to 3% of the [employee’s] gross wages,” with the employer
agreeing to “match $0.25 cents for every dollar the employee
contributes up to 2% percent of the [employee’s] gross wages
after the first 3% percent of the employees’ contributions.”
This reduction in the employer match (from the match included
in the expired contract) would be effective “until the
[e]mployer returns to profitability.” About 1 or 2 days later, the
bargaining unit rejected these options. (Tr. 102–103.)
10. Sixth bargaining session—May 30—Respondent presents
its last, best offer
During the parties’ sixth bargaining session, with Brahaney
present, Respondent submitted its “LAST BEST OFFER” to
become effective on Monday, June 4. This last best offer es-
sentially incorporated Respondent’s option 1 regarding em-
ployer/employee contributions to the health and welfare premi-
ums presented to the Union on May 23, and the provisions
included in its May 21 proposed contract. (GC Exh. 15.) Bra-
haney caucused with each party, but the parties did not reach
any agreements during this session. Mathews recalled that
Durbrow again stated that Respondent would save $20,000 by
not matching the 401(k) plan contributions; $26,000 with over-
time begin paid after 40 hours instead of after 8 hours; and
about $40,000 with the employee healthcare contributions.
Durbrow did not, however, provide any documentation to sup-
port these numbers as requested by the Union. According to
Sprague and Mathews, Respondent’s representatives continued
their mantra that they needed the Union to help them save mon-
ey and to “stop the bleeding.” (Tr. 106-108, 272–274.)
When the Union rejected this last best offer at this meeting,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
T. J. Hendrickson said, “. . . it looks like we’re at impasse.”
Sprague objected to Respondent’s declaration, saying that “I’ve
never said we’re at impasse. I don’t know where you get we’re
at impasse. I didn’t use that word. We still have a lot of stuff
on the table here.” (Tr. 108–109.)18
11. Respondent presents its “Revised Proposal and Last, Best,
and Final Offer” on June 4
The Respondent did not implement its last best offer dated
May 30. Rather, on June 4, it faxed and mailed a “Revised
Proposal and Last, Best, and Final Offer,” to be effective on
Monday, June 11. (GC Exh. 16.) In the cover letter, T. J. Hen-
drickson stated that Respondent understood that the Union’s
basis for rejection of its last offer on May 30 was that it was
unwilling to agree to the proposals on the elimination of the
401(k) match, health insurance contributions, overtime calcula-
tions, and the grievance procedure. T. J. Hendrickson also
asserted its belief that “throughout our negotiations you have
maintained your position that you are insisting that the lan-
guage of the most recently expired agreement be continued on
all of those subjects.” The only change in this last offer was to
article 5 (grievance and court procedure), from the parties go-
ing to Federal District Court to each party resorting to “whatev-
er judicial remedies” that might be available after exhausting
the grievance procedure. (Id.)
12. The Union votes against Respondent’s last, best, and
final offer
By letter dated June 8, Sprague advised Respondent that his
membership had rejected Respondent’s last, best, and final
offer dated June 4, and reminded Respondent that the Union
had counteroffered to pay weekly healthcare insurance premi-
um contributions of about $15 on a pretax basis. Sprague also
noted that the Union had “TA’d” nine of Respondent’s contract
proposals on April 10, but that Respondent “[had] not TA’d one
Union proposal.” He pointed out that the revised grievance
provision still required the parties to go to court rather than
advance to arbitration. Finally, Sprague said that he and his
team would be available to meet again on June 13 if Respond-
ent was interested in a new contract. (GC Exh. 17.) At this
point, communications between the parties establish that the
parties differed in their opinions as to whether they had reached
impasse.
Prior to the next meeting, Sprague attempted to meet private-
ly with Ryan Hendrickson, with whom he had dealt in the past ,
since he felt he was not getting anywhere at the bargaining
table. He explained that he ran into and talked to Ryan Hen-
drickson because Ryan worked with the employees on a daily
basis. At first, Ryan agreed to meet, but then canceled.
13. Seventh bargaining session—June 13—the union presents

18 After this negotiating session, union membership voted to reject
Respondent’s May 30 last best offer and to strike if Respondent imple-
mented its offer. (Tr. 284.) Sprague attempted to meet one-on-one
with R. Hendrickson, with whom he had most dealings in the past, to
try to make some headway on the negotiations, and to get Respondent
to address some of its proposals. At first, R. Hendrickson agreed to
meet with Sprague, but then declined saying that he could not meet
with him without the rest of his negotiating team. (Tr. 110–111.)
its “Final Proposal”
Despite its alleged impasse declaration, Respondent met with
the Union on June 13. Although the mediator was not available
for this meeting, the parties met because Sprague was about to
have surgery on about June 15. Sprague submitted what was
entitled the Union’s “Final Proposal.” This proposal included
three options. The first two options required a 1-year contract
extension (of the expired contact), but with employees contrib-
uting $15 (on a pretax basis) per week towards healthcare pre-
miums. The second option included the first option plus the
healthcare opt-out alternative (with an attached copy of the
parties’ 2008 agreement for Fund participation opt outs). The
second option also provided that the parties utilize the Industri-
al Board’s arbitration and grievance process rather than going
to court. The third option simply read, “Work Stoppage.” (GC
Exh. 18.)
The attached copy of the recommended grievance procedure
stated that:
Step 3 In the event that Step 2 does not settle the complaint, it
shall be referred to the Western Michigan Industrial Board
(WMIB), unless either party objects to the use of the WMIB.
In the event of an objection by either party to the use of the
WMIB, the grievance may be presented to the American Ar-
bitration Association (AAA) upon the request of the Union or
the Company. The President or the Executive Board of the
Local Union shall have the right to determine whether or not
the grievance is qualified to be submitted for arbitration by the
Union.
(Id.) There, this proposal did not restrict or limit the parties to
the Industrial Board, but allowed them to also pursue arbitra-
tion with the AAA upon request by either party.
Regarding the Fund requirements for opting out, Sprague
admitted that it would require a new memorandum of under-
standing between Respondent and the Union; proof that the
employees who applied had other (adequate) insurance; and the
Fund’s approval of each application. Respondent pointed out
the materials supplied by the Union did not include the criteria
by which the Fund approved applicants, and that Sprague had
not provided the number of interested employees as promised.
Initially, Sprague said that he did not recall making this prom-
ise. However, when he was shown his affidavit, he acknowl-
edged that he said he would get a count of those interested, but
decided not to since Durbrow had said that it would “be a waste
of his time to see what the cost savings would be on opting
out.” As previously mentioned, Sprague had informally polled
members at a recent union meeting, and learned that two unit
members were interested in volunteering to opt out of the
health plan coverage. It is undisputed that he communicated
this to Respondent’s negotiating team, and that Durbrow had
immediately expressed his disinterest with the opt-out option.
Thus, I credit Sprague’s reasons as to why he did not poll the
remainder of his membership. (Tr. 204–206, 208, 212–213.)
During this meeting, Sprague told Respondent’s team “that
there was no way that . . . their offer was going to be accepted,”
and that he needed some feedback on the Union’s economic
proposals since Respondent had not provided any guidance or
anything in writing. He also warned Respondent that his mem-
HENDRICKSON TRUCKING CO. 13
bership might strike in order to push negotiations. Respond-
ent’s representatives caucused and returned to say that they
were not going to change or discuss their proposals any further.
Respondent’s negotiating team met and returned to say that
they were not interested in changing their minds or discussing
anything further. (Tr. 120–123.)
Nevertheless, neither Sprague nor Mathews said that they
viewed the Union’s final proposal as its absolute last offer.
Instead, they testified their proposal was in response to Re-
spondent’s last, best, and final offer, and that they still hoped
and intended that the parties would continue to work towards
an agreement. I credit Sprague’s and Mathews’ testimony that
they did not intend to end negotiations with their final offer.
Their testimony is supported by the fact that they voiced objec-
tion to Respondent’s implementation letters and tried to resume
bargaining.
D. Respondent’s Implementation of Its Last, Best, and Final
Offer and the Strike
1. Decision to strike
Later that evening or the next day, Sprague met with his
membership to inform them that Respondent would not change
its mind about implementing their last offer. At that time, they
decided not to strike, but to wait to see if Respondent would
actually implement its last, best, and final offer. Sprague
claimed that he told his membership that if Respondent imple-
mented its offer, he would contact the Federal mediator to see if
the parties could resume negotiations. I credit this undisputed
testimony regarding the discussions with the membership be-
fore the strike. They are further supported by the fact that the
Union did not strike after the initial strike vote in April, nor did
the Union strike immediately after the Respondent’s first or
second final offers on June 4 and 11. (Tr. 124–125.)
According to Sprague and Mathews, the Union learned that
Respondent had implemented its offer on about June 23 when
some of the bargaining members received their paychecks
which reflected that Respondent had begun calculating their
overtime pay after 40 hours a week versus 8 hours a day. Spra-
gue, who was at home recuperating from surgery, left the deci-
sion to strike to Mathews and Bill Bernard, Jr. (Bernard), the
Union’s vice president, and the membership. The Union went
on strike the following Monday, June 25. (Tr. 124–127, 232–
233, 240, 242, 284–285.)
2. Poststrike bargaining meeting on July 26th
Bernard handled the strike/picket lines while Sprague was
out on sick leave in June and July, but continued to consult with
Sprague by telephone. According to Sprague, Bernard called
him to say he had heard that Respondent had been telling em-
ployees that the Union was not willing to meet concerning
when they would return to work. He then instructed Bernard to
set up a meeting with the mediator present.19
On July 26, the parties met with the mediator, Brahaney.

19 There was some confusion or disagreement as to who wanted or
initiated this meeting, but both parties ultimately agreed to meet. Of
note, Respondent states in its brief that the Union requested this meet-
ing. (R. Br. pp. 18–19.)
Sprague, Bernard, and Mathews attended the July 26 meeting
on behalf of the Union, and the same representatives attended
for Respondent. Neither of the parties presented any new pro-
posals, and Respondent’s representatives asked, “[W]hat are
you willing to give us?” While the Union wanted to discuss
pending issues, Respondent only wanted to know if the Union
had any new proposals or concessions. Although it appears that
the parties mostly caucused with Brahaney, they briefly dis-
cussed several pending issues. It is undisputed, and corroborat-
ed by Mathews, however, that Respondent was not really inter-
ested in further discussion or movement on these matters.
In Sprague’s notes, he indicated with one star issues on
which he felt there could be some movement (health care, fuel
costs, term of contract) and with two stars issues about which
the membership was more resistant (arbitration vs. court, elimi-
nation of the 401(k) match, voluntary layoff, and overtime after
40 hours). (GC Exh. 28.) He testified that he believed that the
Union might have agreed to a reduction in the match if Re-
spondent had provided the cost savings numbers he had re-
quested. Thus, the meeting ended with Respondent maintain-
ing its impasse stance and the Union wanting to further negoti-
ate and move on the issues previously discussed and on those
not yet addressed. (Tr. 131–132, 287–288, 292–294, 298.)
E. The Union Files a Grievance and Request for Information
on July 31
Shortly after the strike began, Respondent changed the name
on some of its trucks from Hendrickson Trucking to “AGG
Trucking, LLC” (AGG). On July 31, Sprague, on behalf of the
Union, sent Respondent a letter constituting a grievance, stating
that the basis for it was:
[T]hat it appeared to us that [AGG] . . . is nothing more than a
disguised continuance of [Respondent], performing work his-
torically covered by our labor agreement, and/or that [Re-
spondent] has improperly and unlawfully transferred bargain-
ing unit work to AGG without notice to Local 164 and with-
out bargaining over the decision and its effects. In order that
we may process this grievance and prepare for bargaining
about any transfers of work and the effects . . . Local 164
needs information about both entities . . . to understand more
fully the relationship between the two operations.
(GC Exh. 20.)20 Included in this letter were the Union’s 48
requests for information, as follows:
1. Who made the decision to open AGG? When was
this decision made? Why was it decided to open it as a
non-union operation in the middle of a strike?
2. Who owns the premises from which AGG is per-
forming work? What is the relationship of AGG to Hen-
drickson Trucking?

20 The Union filed unfair labor charges and amended charges on Au-
gust 3, 16, and 30, alleging various violations, including, but not lim-
ited to, Respondent’s failure to respond to these July 31 information
requests, implementation of its last, best, and final offer without bar-
gaining to impasse, and failure to provide requested cost savings infor-
mation during the negotiation sessions. (GC Exhs. 1(a), (b), (e).)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
3. How large is AGG eventually expected to be in
terms of employment and productive capacity?
4. In what geographic area does AGG do business? In
what geographic area does Hendrickson Trucking do
Business?
5. Where is the office work for AGG performed?
6. Identify all managers or supervisors who have per-
formed any work at or on behalf of AGG, the dates on
which they have performed such work, the amounts of
time which they have spent, and the types of work which
they have done.
7. Identify the banking institution, branch location, and
account number of all bank accounts for both AGG and
Hendrickson Trucking.
8. Identify the person or company who performs the
accounting function for AGG, and the names of the ac-
countants. Provide the same information for Hendrickson
Trucking.
9. Identify where and by whom the corporate and gen-
eral business records for AGG are kept. Provide the same
information for Hendrickson Trucking.
10. Identify where any by whom any other business
records of AGG are kept. Provide the same information
for Hendrickson Trucking.
11. Identify the principal bookkeeper for AGG. Pro-
vide the same information for Hendrickson Trucking
12. Identify the principal payroll preparer for AGG.
Provide the same information for Hendrickson Trucking;
and identify the bank account used to pay employees truck
drivers.
13. Identify . . . health insurance program available at
AGG, by carrier and policy number. Provide the same for
Hendrickson Trucking.
14. Identify AGG’s federal or state taxpayer identifica-
tion number. Provide the same for Hendrickson Trucking.
15. Identify where and by whom the state or federal
tax returns for AGG are kept. Provide the same for Hen-
drickson Trucking.
16. Identify any other state or federal taxpayer identifi-
cation numbers for AGG. Provide the same for Hendrick-
son Trucking.
17. Identify where and by whom other federal or state
reports for AGG are kept. Provide the same for Hendrick-
son Trucking.
18. Identify whether AGG and Hendrickson Trucking
have the same worker’s compensation insurance carrier,
the same worker’s compensation insurance policy, the
same unemployment compensation insurance carrier, and
any other common insurances or fringe benefits. Identify
all such policies, carrier and fringe benefits.
19. Identify who supplied the money to purchase AGG
or to begin its operations, along with the names or identifi-
cation of persons who furnished the money to purchase the
equipment, materials, supplies, etc. which are located at
AGG.
20. Identify whether AGG is operating under a line of
credit from Hendrickson Trucking, or has its debt or oper-
ations in any way guaranteed by or supported by Hen-
drickson Trucking.
21. Identify the dates, reasons for and amounts of any
transfers of funds or work between AGG and Hendrickson
Trucking.
22. Identify whether AGG rents, leases, or otherwise
provides office space or any other services to Hendrickson
Trucking.
23. Identify whether Hendrickson Trucking rents, leas-
es or otherwise provides office space or any other services
to AGG.
24. Identify all building or office suppliers for AGG.
Provide the same for Hendrickson Trucking.
25. Identify any tools, materials, equipment including
trucks or trailers, or supplies purchased by Hendrickson
Trucking which are now used or have been used at or by
AGG.
26. Identify any tools, materials, equipment (including
trucks or trailers) or supplies purchased by AGG which are
not used or have been used at or by Hendrickson Trucking.
27. Identify any lease arrangements or purchase
agreements for any materials supplies or equipment (in-
cluding trucks or trailers) between AGG and Hendrickson
Trucking.
28. Identify whether any of the following services are
provided to AGG by or at Hendrickson Trucking.
administrative
bookkeeping
clerical
detailing
estimating or costing
managerial
any other service
29. Identify the customer of AGG. Provide the same
for Hendrickson Trucking.
30. Identify any customers which have been referred
by Hendrickson Trucking to AGG, or vice-versa.
31. Identify any persons who have authority to negoti-
ate, sell or bid jobs for Hendrickson Trucking.
32. Identify whether those same persons have authority
to negotiate, sell or bid jobs for AGG.
33. Identify where AGG has advertised for employ-
ees/truck drivers, the persons who interviewed the em-
ployees/truck drivers of AGG, the persons who made the
hiring decision, and any criteria which were used. Provide
the same information for Hendrickson Trucking.
34. Identify by job title or craft position that employ-
ees employed by AGG and the skills which they possess.
35. Identify by job title or craft position and respective
employment dates any employees of AGG who are or who
have been employees of Hendrickson Trucking.
36. Identify any supervisors, superintendents, floor
persons, or other supervisory persons of Hendrickson
Trucking who have authority to, or have in fact exercised
such authority, at AGG.
37. Identify any supervisors, superintendents, floor
persons, or other supervisory persons of AGG who at any
time worked for Hendrickson Trucking.
HENDRICKSON TRUCKING CO. 15
38. Identify any managerial personnel of Hendrickson
Trucking who have authority to, or have in fact exercised
such authority, at AGG.
39. Identify any managerial personnel of AGG who at
any time worked for Hendrickson Trucking.
40. Identify any representatives or employees who are
actively involved with day-to-day management or opera-
tions of Hendrickson Trucking who have authority to, or
have in fact exercised such authority, at AGG.
41. Identify any representative or employee who are
actively involved with day-to-day management or opera-
tions of AGG who at any time worked for Hendrickson
Trucking
42. Describe the compensation program, including
wage rates and fringe benefits at AGG. Who pays the em-
ployees/truck drivers at AGG, and from what bank ac-
count are their wage/compensation paid?
43. Describe the labor relations policy of AGG, and
identify who established, controls or determines that poli-
cy.
44. Identify any labor relations representatives of
AGG. Provide the same information for Hendrickson
Trucking.
45. Identify the officers of ACC. Provide the same in-
formation for Hendrickson Trucking.
46. Identify the directors of AGG. Provide the same
information for Hendrickson Trucking.
47. Identify the owners and stockholders of AGG,
along with the amount of Hendrickson Trucking. Also in-
clude copies of any reports or forms filed with the State of
Michigan related to ownership or status as a corporate
LLC of any kind.
48. Identify places and dates of meetings of the board
of directors or other governing body of AGG for the last
12 months. Provide the same information for Hendrickson
Trucking.
(Excerpt from GC Exh. 20.) Sprague asked that Respondent
furnish this information, in writing, within 10 days, and provide
any subsequent information as it became available. In unrebut-
ted testimony, Sprague said that the Union wanted to know how
AGG came about, and if it meant that Respondent was about to
go out of business or be replaced by AGG. (Tr. 137–141.)
There is no evidence that Respondent furnished the Union with
any of this requested information. It did provide some limited
information about its relationship to AGG in response to a sub-
sequent information request made by the December 27 (not at
issue in this case).
F. The Union’s Unconditional Request to Return Strikers to
Work, Request to Bargain, and Other Correspondence Between
the Parties in Late November and Early December
On November 30, Sprague, for the Union, sent Respondent
three separate letters. The first was an unconditional request to
return to work on December 3, which read in relevant part:
Effectively immediately, Local 164 has ceased all picketing
and strike activity. On behalf of all members of the bargain-
ing unit, Local 164 unconditionally offers to return to work
immediately. . . . Our members are prepared to return to work
on Monday morning . . .Please contact the members directly
to inform them of their appropriate report times. . . . If neces-
sary, I am available to help you coordinate and facilitate that
return to work process.
(GC Exh. 21.) The second identified ten bargaining unit mem-
bers who planned to take the voluntary layoff.21 (Tr. GC Exh.
22.) The third letter stated that the Union was “prepared to
meet and bargain in good faith in an effort to achieve a collec-
tive bargaining agreement for [their] membership,” and re-
quested Respondent to provide available dates for bargaining.
The Union further requested that,
[i]n preparation for such bargaining . . . your Company re-
scind any and all unilaterally-implemented changes to em-
ployees’ terms and conditions of employment (referenced in
your June 8, 2012 letter, as well as in paragraphs 12 and 14 of
the NLRB Complaint). This includes, but is not limited to,
changes in wages and employees’ medical insurance contri-
butions. Local 164 also requests your Company to return to
the status quo prior to making these changes and to make all
employees whole for any financial losses suffered as a result
of your unilateral implementation of those changes with inter-
est, in accordance with the NLRB Complaint. . . .
In further preparation for bargaining, Local 1614 again re-
quests that your Company furnish the information which we
have requested since on or about July 31, 2012 (see para-
graphs 9 and 10 of the NLRB Complaint). Once we have re-
ceived and analyzed that information, Local 164 may have
further information requests.
(GC Exh. 23.)
On November 30, R. Hendrickson, designated as Respond-
ent’s president (also the mechanics supervisor), responded that
“[t]here will be no work available for any returning strikers on
Monday morning. We will be evaluating our work loads and
manpower needs and will get back to you in the very near fu-
ture.” (GC Exh. 24.)
On December 10, T. J. Hendrickson advised Sprague, via let-
ter, that its permanent replacement employees, hired during the
strike, would be able to handle any available work during the
winter slow down. He further stated that “[t]he employees who
were striking have been placed on a preferential hire/recall list.
When business picks up we will call them for available work by
seniority. If you prefer a different order of recall, please let us
know.” (GC Exh. 25.)
On December 11, Sprague wrote to Respondent, stating that
his November 30 letter was “clear that our members were pre-
pared to return to work on Monday, December 3, 2012,” and
that the “Collective-Bargaining Agreement, Article II, should
be followed when recalling employees and your referred to
‘replacement employees’ should be placed on the bottom of the
seniority list for recall.” Sprague further stated that “[t]o clari-
fy, the first time I have ever heard that the Company hired
replacement employees was in your letter of December 10,

21 This voluntary layoff notification further stated that the ten em-
ployees should be recalled by lowest senior employee first. (Id.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
2012.” Copies of the seniority list and the December 10 letter
hand-delivered to R. Hendrickson were enclosed. (GC Exh.
26.)
Respondent’s counsel, Timothy Ryan (Ryan), testified that in
early December, he contacted Sprague, by telephone, to set up a
bargaining meeting. He was not certain as to whether he called
Sprague to discuss bargaining in this case, or whether it came
up during a conversation about another case in which he and
Sprague were involved. He said that he told Sprague that Re-
spondent was willing to bargain, but would not be returning the
strikers to work or returning to the status quo under the expired
contract as requested by the Union in its November 30 letters.
Ryan further testified that, Sprague responded, “Well, then just
forget about it. We’ll let the Labor Board figure it out.” Ryan
said that he interpreted this to mean that the Union did not want
to bargain unless Respondent met those conditions. Sprague,
on the other hand, did not recall this conversation taking place,
and thought that Ryan may have talked to Bernard instead. I
credit Sprague on this matter. Although he did not recall
speaking to Ryan, Ryan, who made this assertion, did not recall
the circumstances under which he spoke to Sprague. More
troubling is Ryan’s subsequent testimony that he tried to con-
tact Sprague in January 2013 to try to get back to the bargain-
ing table, and later pursued Sprague’s replacement bargaining
agent in March and April, for bargaining dates (see below).
Ryan said that Respondent was now ready to bargain because it
was the slow season. This is simply contrary to his reasons for
not trying to resume bargaining in December 2012. Prior, un-
disputed testimony reveals that Respondent’s slow season be-
gan in late November/early December. Although, I credit
Sprague here, I will address in my analysis below whether this
statement, had it been made, would have relieved Respondent
of its obligation to resume bargaining. (Tr. 177–182; 385–
386.)
G. Union’s December 27 Grievance and Requests
for Information
On December 27, Sprague sent a letter to Respondent asking
that the letter be accepted as a grievance in accordance with the
collective-bargaining agreement, and stating that,
[t]he reason for our grievance is that it appeared to us that
Hendrickson Trucking Inc. has hired permanent replacement
drivers who are performing work historically covered by our
labor agreement, and/or Hendrickson Trucking has improper-
ly and unlawfully transferred bargaining unit work to those
permanent replacement drivers without notice to Local 164
and without bargaining over the decision and its effects. In
order that we may process this grievance and prepare for bar-
gaining about any transfers of work and the effects of such
transfers on the bargaining unit . . . [w]e need to understand
more fully the relationship between the permanent replace-
ment drivers and Hendrickson Trucking, Inc.
(R. Exh. 11.) This letter also included a detailed request for
information regarding the permanent replacement drivers, in-
cluding but not limited to, their status, names, and a number of
requests regarding Respondent’s business relationship with the
replacements, as well as information about Respondent’s finan-
cial records. Since this particular request for information was
not included in the complaint or in the General Counsel’s re-
quest for remedy in its brief, I will not set forth the specific
requests.
By letter dated January 9, 2013, Timothy Ryan responded on
Respondent’s behalf, asserting that the Union’s grievance
lacked merit and would be denied. He explained that “[u]nder
federal labor law, when the Union began its strike, Hendrickson
was entitled to utilize replacement employees to continue its
business, and to do so without any requirement that it engage in
decision or effects bargaining.” He also denied that Respond-
ent had any contractual obligation to bargain since “neither the
expired contract nor Hendrickson’s last proposal included any
requirement that Hendrickson engage in any decision or effects
bargaining when hiring strike replacements.”
Although he asserted his belief that the Union had no need
for the information requested, Ryan stated that “in an effort to
avoid any further controversy,” he was providing information
about the permanent replacement workers. He advised that T.
J. Hendrickson made the decision to hire replacement drivers
after the strike because drivers were needed, and that Respond-
ent hired seven replacement drivers between July 18 and 31,
2012, and three more between September 4 and October 20,
2012. He also furnished the unit employee seniority list nam-
ing the 21 strikers, and named the supervisors who had per-
formed various work during the strike. Ryan also noted that the
Union had been aware of replacement drivers since the Union’s
representatives “repeatedly chased Hendrickson’s vehicle[s].”
(R. Exh. 12.) Ryan did not provide additional information as
he did not believe that questions 7 through 45 were relevant.
However, he did provide that
[i]tems 7 through 45 of your request do not appear to have
any relevance to any legitimate obligation you have concern-
ing representation of the bargaining unit. If the purpose of
those questions is to gain evidence to establish that Hendrick-
son Trucking and AGG Trucking are a single employer, you
should know that Hendrickson Trucking does not dispute that
they are. Whether replacement drivers operated a truck that
stated AGG or a truck that stated Hendrickson, they were al-
ways employed by Hendrickson and they were always paid
by Hendrickson, so it appears that there cannot be any legiti-
mate issue about the relationship between those two entities.
(Id.) It is noted here that Respondent has claimed that this in-
formation about AGG was also sufficiently responsive to the
Union’s July 31 and November 30 requests.
By letter to Ryan on January 22, 2013, Sprague replied that
Respondent had no right to hire permanent replacement em-
ployees since its unfair labor practices caused the strike, and
that the former strikers should therefore be reinstated. Sprague
explained that he needed the information requested to process
the grievance filed on December 27 (claim that it hired re-
placements); to determine the nature of Respondent’s payroll
and other practices with respect to replacement employees; and
to determine the nature and extent of any subcontracting work
HENDRICKSON TRUCKING CO. 17
which occurred during the strike.”22 He also requested the
following additional information: “copies of any applications
filed by the replacement employees; copies of any letters or
communications by and between Hendrickson Trucking and
these employees; and copies of any documents which relate to
or show the status of these employees.” (R. Exh. 13.)
H. Union Replaces Sprague and Parties Meet One Last Time
On or about January 30, 2013, Sprague was relieved of his
duties for the Union. According to Ryan, Respondent was now
ready to meet with the Union in an attempt to “to resolve the
outstanding contract and ULP issues.” (R. Exh. 30, p. 1.) He
finally learned from an NLRB representative that he should
contact John Canzano(Canzano), an attorney and/or trustee for
the Union. However, it was not until March 25 that Ryan be-
gan a series of email exchanges with Canzano in attempt to set
up a meeting with the Union.23 The parties finally met on April
10. (R. Exh. 30.)
During the April 10 meeting, Canzano and his assistant,
Mike McElmury (McElmury), represented the Union, and T. J.
Hendrickson, R. Hendrickson, and Durbrow represented Re-
spondent. According to Ryan, Respondent, submitted pro-
posals, but the Union did not. (Tr. 393.) However, Respondent
did not submit any such proposals during the hearing, and Ryan
and Canzano agreed in writing on that day that “these are rule
408 settlement discussions.” After this meeting, Canzano and
Ryan attempted to meet again, but were unable to do so before
the hearing in this case. (Id.)
III. DISCUSSION AND ANALYSIS24
A. Respondent’s Failure to Provide Information during Bar-
gaining Precluded Impasse
The General Counsel alleges that Respondent failed to fur-
nish the Union requested financial documentation to show how
it reached its estimated cost savings totals for its newly pro-
posed formula for employee contributions to health and welfare
premiums, elimination of the 401(k) employer match, and revi-
sion of overtime calculations. The General Counsel claims that

22 More specifically, Sprague renewed the Union’s request for re-
sponses to items 1–6, 13–14, 18, 20–28, and 39–40 (of the December
27 request), to be provided in 10 days. He also said that Respondent
could defer answers to the remaining questions pending receipt and
review of these specific questions.
23 It was evident from the email exchanges that Ryan was familiar
with Canzano and that they had been working on another case together.
(R. Exh. 30, p. 1.)
24 In its answer, the Company alleged that the Board and all of its
agents or delegates in these proceedings lack authority to proceed (in
every stage) in this case because the Board lacks a quorum required by
the NLRA. Consistent with Board precedent, I reject the Company’s
Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) (petition for
certiorari filed April 25, 2013), and NLRB v. New Vista Nursing &
Rehabilitation, 719 F.3d 203 (3d Cir. 2013), defense. The Board has
rejected similar contentions in numerous cases, see, e.g., Blooming-
dale’s, Inc., 359 NLRB 1015 (2013). Further, I note that the Board
now has a full complement of five members nominated by the President
and confirmed by the Senate, and could, if they deemed appropriate,
reaffirm the earlier Board’s actions. Accordingly, I reject this affirma-
tive defense.
this information was (and is) necessary for the Union to formu-
late and evaluate bargaining proposals, and that since Respond-
ent never provided this information to the Union, no good-faith
impasse occurred during the bargaining process. Respondent
argues that although it had no obligation to provide this infor-
mation to the Union, it provided sufficient information to ena-
ble the Union to bargain. Respondent also asserts that it en-
gaged in good-faith bargaining to impasse.
1. The information requested by the Union is necessary and
relevant to the bargaining process
An employer is in violation of Section 8(a)(5) and (1) of the
Act when it refuses to turn over to a union information that is
relevant and necessary to the union in carrying out its collec-
tive-bargaining responsibilities. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956); Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979).
When the information requested pertains to bargaining unit
employees represented by a union, e.g., wages and benefits, it is
presumptively relevant and necessary to the union’s bargaining
obligation. Disneyland Park, 350 NLRB 1256, 1257 (2007).
However, when a union seeks information concerning matters
outside the bargaining unit, such information is not presump-
tively relevant, and it is the union’s burden to show relevancy.
See, e.g., Public Service Electric & Gas Co., 323 NLRB 1182,
1186 (1997), enfd. 157 F.2d 222 (3d Cir. 1998). This burden to
show relevancy “is not exceptionally heavy.” Rather, it is a
“liberal discovery-type standard,” and “the sought-after evi-
dence need not be necessarily dispositive of the issue between
the parties,” but only have some bearing upon it, and be of
“probable use to the labor organization in carrying out its statu-
tory responsibilities.” Sands Hotel & Casino, 324 NLRB 1101,
1109 (1997), enfd. 172 F.3d 57 (9th Cir. 1999); Caldwell Mfg.
Co., 346 NLRB 1159, 1160 (2006); Shoppers Food Warehouse,
Corp., 315 NLRB 258, 259 (1994).
While bargaining for a new contract in this case, the Union
requested that Respondent furnish it with the calculations and
financial information showing how it arrived at its cost saving
totals for each of its proposals for the reduction in employer
paid health and welfare premiums, elimination of the 401(k)
employer match, and reduction in wages (overtime recalculated
to begin after 40 hours rather than 8 hours). Since this infor-
mation involves financial data, it is not presumptively relevant.
It is, nevertheless, relevant as it regards the specific economic
proposals regarding the bargaining unit employees’ wages and
benefits. See National Extrusion & Mfg. Co., 357 NLRB 127,
128 (2011) (an employer’s duty to bargain includes “a duty to
provide information that would enable the bargaining repre-
sentative to assess the validity of claims the employer has made
in contract negotiations”); Wilshire Plaza Hotel, 353 NLRB
304, 305 (2008) (detailed calculations for the cost savings that
respondent expected from its wage and benefit proposals were
admittedly relevant to ongoing bargaining). Since it is relevant,
Respondent had an obligation to provide it to the Union.
Respondent claims that it has no duty to provide any finan-
cial information to the Union because it has not asserted an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
inability to pay wages or benefits.25 However, the Board has
rejected the argument that an employer never has a duty to
provide any financial information at all to the union where the
employer has not asserted an inability to pay. While recogniz-
ing that an employer generally is not obligated to open its
books/financial records to a union unless the employer has
claimed an inability to pay, the Board has held that a union is
entitled to financial records when the request is based on spe-
cific claims on which the employer has based its bargaining
proposals. Caldwell Mfg., supra at 1160; National Extrusion,
supra, at 128. Thus, the employer violates Section 8(a)(5) and
(1) when it fails to provide the requested information.
In Caldwell, Mfg., supra, the employer maintained during
negotiations that certain concessions were necessary to improve
its competitive standing. In response to those specific asser-
tions, the union requested information on which the employer
relied, including material, labor and manufacturing costs,
productivity calculations, and competitor data. The Board
found that the union was entitled to that information, explaining
that the employer, “in the course of bargaining, made the in-
formation relevant and created the obligation to provide the
requested data.” 346 NLRB at 1160. The Board further af-
firmed that a union is entitled in these instances to request in-
formation to evaluate and verify the respondent’s assertions and
develop its bargaining positions.” Id. In National Extrusion,
supra, the employer also cited rising production costs, falling
production and loss/potential loss of customers as reasons for
demanding significant wage decreases. The Board found that
“the Union had a legitimate claim to information that it could
use to understand, evaluate, and possibly rebut the Respond-
ent’s assertions.” 357 NLRB 127, 130.
The Board also recognized that although National Extrusion
did not involve an inability-to-pay claim, its holdings in that
case and in Caldwell Mfg., are consistent with the Supreme
Court’s observation in Truitt that, ‘if . . . an argument is im-
portant enough to present in the give and take of bargaining, it
is important enough to require some sort of proof of its accura-
cy.’” National Extrusion, supra, at 129, citing Truitt, 351 U.S.
149, 152–153 (1956).
Although I agree that this is not an inability-to-pay claim, I
disagree that Respondent did not have an obligation to provide
the Union with the requested cost savings information because
it did not claim an inability to pay. As in National Extrusion,
supra, and Caldwell Mfg., supra. Respondent, during bargain-
ing, created its own duty to respond to the Union’s information
requests through its claims it was not profitable and demands to
save money through its various proposals. Thus, the Union
here also had a legitimate claim for underlying financial data so
that it could understand, evaluate, and possibly develop coun-
terproposals.
Respondent’s reliance on Paperworkers Union, 981 F.2d 861
at fn.1 (6th Cir. 1992), is misplaced here. In this case, the Sixth
Circuit found that the Union was not entitled to financial in-
formation because the company had not asserted an inability to

25 (R. Br. p. 36, fn. 6.) Respondent did, however, repeatedly assert
its need to save money because it had not been profitable in the past,
and did not expect to be so in 2011.
pay. (981 F.2d at 865–866 fn. 1) (obligation to provide finan-
cial information arises only if the employer claims an inability
to pay). The Board has distinguished similar court opinions
such as this as set forth above.26
Respondent asserts that since it allowed the Union access to
its accounting “books” and spreadsheet, “detailing its profit and
losses to support its need for cost savings,” the Union’s claim
that it needed additional financial information is false. (R. Br.
p. 33, fn. 6.) I disagree. For reasons set forth in the factual
findings, I have credited Sprague’s and Mathew’s testimony
that they were never provided with the spreadsheet on May 16
or at any other time during the bargaining process. Instead,
Durbrow verbally told Sprague that Respondent needed to save
about $75,000. Subsequently, after Sprague requested a break-
down and documentation, Durbrow said that it expected to save
about $20,000 from the overtime calculation changes, about
$24,000-$25,000 from elimination of the 401(k) employer
match, and about $40,000 or the remainder from the employee
healthcare cost contributions, without providing any data to
support how Respondent arrived at these estimates. Further, as
stated earlier, had the Union received this spreadsheet, it would
have been an insufficient response as it did not include cost
savings calculations or data for each of those economic pro-
posals. During the hearing, Durbrow gave examples of the
financial data on which he relied to determine the estimated
cost savings, including: financial data for the prior 2 years
regarding payroll records for overtime, 401(k) employer match-
ing history maintained on spreadsheets showing how much was
paid, and data showing history of health insurance premium
costs. He also explained how all employees were affected by
the cost savings proposals, and not just the bargaining unit.
(Tr. 341–344.) There is no evidence, however, that Durbrow or
any other of Respondent’s representatives provided the Union
with this explanation or supporting information during the ne-
gotiations for the new contract.
It is understandable that the Union did not trust the inexact,
rather random and ambiguous cost saving totals thrown out at
the bargaining table. In similar cases, the Board has made it
clear that “[w]hile the sum of each year’s savings would be of
use to the Union, it left no way to see the basis of the Compa-
ny’s conclusion, no way to evaluate the accuracy of the claim,
or what the impact of alternative proposals would be.” See
National Extrusion & Mfg., Co., supra, at 159, citing Wilshire
Plaza Hotel, 353 NLRB at 325 (it is an “unfair labor practice
for respondent to respond to union’s request for ‘detailed’ cal-
culations of respondent’s concessionary economic proposals by
providing only ‘flat amounts’ to [the] union”).
Further regarding the implication that the Union should have
been able to calculate savings for the specific proposals from
information it may have already had, “a union is entitled to
have a calculation from the employer so that it can verify the
validity of its own calculation. See National Extrusion, supra,

26 The Board in National Extrusion, supra, distinguished NLRB v.
Harvstone Mfg. Corp., 785 F.2d 570 (7th Cir.1986), denying enf. of
Harvstone Mfg. Corp., 272 NLRB 939 (1984), and Nielsen Litho-
graphing Co. v. NLRB, 854 F.2d 1063, 1066 (7th Cir. 1988), denying
enf. of Nielsen Lithographing Co., 279 NLRB 877 (1986) (Nielsen I).
HENDRICKSON TRUCKING CO. 19
at 159, citing Mary Thompson Hospital v. NLRB, 943 F.2d 741,
747 (7th Cir. 1991) (“need for verification makes it immaterial
that union can secure desired information” by other means).
See also Albertson's, Inc., 310 NLRB 1176, 1187 (1993) (em-
ployer’s assertion that the union could ascertain the amount of
trust fund contributions from plan documents did not excuse the
employer’s failure, and obligation, to give the union its own
documentation of the actual contributions made where this data
would allow the union to verify the plan information). Here,
the Union may have initially received Respondent’s tax returns
and other financial information for several years through 2010,
but the 2010 financial data showed Respondent had been prof-
itable, as it also had been in 2008. This information appeared
to be contrary to Respondent’s mantra that it was not profitable
and needed to save money with its economic proposals. In fact,
there was no evidence that the Union should have been able to
deduce, or make its own cost savings calculations from this
information, much less determine whether or not Respondent
was profitable in 2011 or during negotiations in 2012. Thus,
this information is not a substitute for the cost savings docu-
mentation requested by the Union.
Additionally, I find that Respondent not only had an obliga-
tion to provide the Union with the requested cost saving calcu-
lations, but it also had an responsibility to provide the 2011
income tax returns once it received them.27 Respondent argues
it had no responsibility to open its books to the Union, but the
fact remains that it already opened that door in order to show
the status of its profitability, or lack thereof, and need to save
money.
Finally, Respondent argues in its brief that the Union only
asked for cost savings information once during negotiations. I
reject this argument since the Union is not required to repeat its
request. Nor, does the request have to be in writing. Bundy
Corp., 292 NLRB 671 (1989); Harvstone Mfg. Corp., 272
NLRB939 (1984), enfd in part 785 F.2d 570 (7th Cir.), cert
denied 479 U.S. 821 (1986). Respondent’s outright failure to
furnish the Union with the requested information is of particu-
lar concern given the division between the parties on the issues
of health and welfare cost employee contributions, elimination
of the 401(k) match, and revision of the overtime calculations.
Here, Respondent neither requested clarification nor requested
information on relevancy. Nor did it claim the request to be
unduly burdensome or unavailable. Rather, Respondent simply
failed to provide the information. It is well established that the
Act does not permit an employer to simply refuse to respond to
a request, even when thought to be ambiguous or overbroad,
but requires the employer to either request clarification or com-
ply with the extent the request asks for necessary and relevant
information. See Keaubou Beach Hotel, 298 NLRB 702, 702
(1990).
All said, I conclude that Respondent violated Section 8(a)(5)
and (1) of the Act when it failed to respond to the Union’s re-
quest for information when bargaining for the new contract.
2. Respondent’s failure to provide requested cost savings in-
formation during the bargaining process precludes a valid im-

27 Durbrow testified that he received the 2011 income tax infor-
mation. This was not provided to the Union.
passe and unilateral implementation of its last, best, and
final offer
The Board has consistently found that the failure to provide
information that is important to ongoing bargaining will pre-
clude a valid impasse. See E. I. du Pont & Co., 346 NLRB
553, 558 (2006) (the Board affirmed that “[i]t is well settled
that a party’s failure to provide requested information that is
necessary for the other party to create counterproposals and, as
a result, engage in meaningful bargaining, will preclude a law-
ful impasse”), enfd. 489 F.3d 1310 (D.C. Cir. 2007) (recog-
nized Board principle that “a finding of valid impasse is pre-
cluded where the employer has failed to supply requested in-
formation relevant to the core issues separating the parties.”
(quoting Caldwell Mfg. Co., 346 NLRB at 1170). See also
Decker Coal Co., 301 NLRB 729, 740 (1991) (“[a] legally
recognized impasse cannot exist where the employer has failed
to satisfy its statutory obligation to provide information needed
by the bargaining agent to engage in meaningful negotiations”).
Consequently, an employer may not implement a final offer in
the absence of a lawful, good-faith impasse. Bottom Line En-
terprises, 302 NLRB 373, 374 fn. 9 (1991) (citing NLRB v.
Katz, 369 U.S. 736 (1962); White Oak Coal, 295 NLRB 567,
568 (1989); and Lawrence Livermore National Security, LLC,
357 NLRB 203, 206 (2011). Since I have found that Respond-
ent’s failure to furnish the Union with information to show how
it determined its projected cost savings totals precluded a valid
good-faith impasse and therefore bargained in bad faith, it fol-
lows that Respondent further violated Section 8(a)(5) and (1)
when it implemented its last, best, and final offer.
B. Totality of the Circumstances
Assuming, arguendo, that Respondent’s refusal to provide
requested information alone did not prevent a lawful impasse, I
also find, after considering the facts above under the totality
of circumstances standard, that the parties did not reach a
valid impasse. The Board defines impasse as the point in time
during negotiations when the parties are warranted in assuming
that further bargaining would be futile and where both parties
believe that they are “at the end of their rope.” A.M.F. Bowling
Co., 314 NLRB 969 (1994), enf. denied 63 F.3d 1293 (4th Cir.
1995). In Taft Broadcasting Co., 163 NLRB 475, 478 (1967),
enfd. 395 F.2d 622 (D.C. Cir. 1968), the Board enumerated
some of the factors it considers in determining if the parties
have reached impasse, including the bargaining history, the
good faith of the parties in negotiations, the length of the nego-
tiations, 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 are all relevant factors in
deciding whether an impasse in bargaining existed. The Board
has held that where a party declares an impasse, the burden of
proof rests with the party claiming the impasse. L.W.D. Inc.,
342 NLRB 965 (2004); CalMat Co., 331 NLRB 1084, 1097–
1098 (2000), CJC Holdings, Inc., 320 NLRB 1041 (1996).
I will primarily address the factors as outlined in Taft Broad-
casting Co., supra, to the extent that both parties mention or
refer to them in their respective posthearing briefs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
1. Bargaining history
The record establishes that the parties had a history of not
only successful collective bargaining, but of ratifying contracts
before and after the prior agreement expired. The Union also
had a history of making concessions, and it was not the first
time that the Union stood its ground before finally agreeing to
make concessions in order to save Respondent money. Like-
wise, it was undisputed that the Union historically used the
strike vote and/or threat of strike as a strategy during the bar-
gaining process with Respondent, without evidence of impasse
or failure to ratify a new contract. This is by no means disposi-
tive on the issue, but it appears that Respondent declared im-
passe without much regard to this past bargaining history.
2. Lack of good-faith bargaining
I find that Respondent’s failure to provide the requested cost
savings information to the Union, in violation of the Act, indic-
ative of a lack of good faith during the bargaining process. “A
failure to supply information relevant and necessary to bargain
constitutes a failure to bargain in good faith in violation of Sec-
tion 8(a)(5), and no genuine impasse could be reached in these
circumstances.” Pertec Computer Corp., 284 NLRB 810
(1987). The Board in Decker Coal Co., supra at 740, recog-
nized that as in Pertec, most cases applying this principle are
ones where the employer has unlawfully refused, altogether, to
provide the information. Such is the case here.
The General Counsel alleges that this failure, along with Re-
spondent’s insistence on requiring the parties to go to Federal
district court, rather than to arbitration, to settle all disputes
reflects a lack of good-faith bargaining on Respondent’s part.
Respondent, on the other hand, argues that it acted in good faith
throughout the entire process. There is certain conduct that has
been deemed to be indicative of lack of good-faith bargaining,
which includes: unreasonable bargaining demands, delay tac-
tics, unilateral changes in mandatory subjects of bargaining,
efforts to bypass the Union, withdrawal of previously agreed-
upon provisions, failure to designates agents with sufficient
authority to bargain, and arbitrary scheduling of meetings.
Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). A
determination that a party has not bargained in good faith does
not, however, require a finding that an employer has engaged in
all of these activities. Altorfer Machinery Co., 332 NLRB 130,
148 (2000).
Here, there is no evidence that Respondent employed delay
tactics, implemented unilateral changes in mandatory subjects
of bargaining before declaring an unlawful impasse, tried to
bypass the Union, or failed to designate agents with authority to
bargain. Indeed, as Respondent claims, it participated in the
process, recommended the parties have a mediator, offered up
several proposals, albeit one or two contained few if any signif-
icant changes. However, I agree with the General Counsel that
Respondent made an unreasonable bargaining demand that the
parties utilize Federal or other courts to settle their labor dis-
putes.
Throughout bargaining, Respondent went back and forth on
this provision. Respondent initially proposed, under article 5,
“Grievances and Legal Challenges,” that after the parties ex-
haust their grievance procedures, the matter will be referred to
“TRIAL” upon the request of either party. The same provision
also stated that after certain approvals by the Union, the “griev-
ance may be submitted . . . [t]o TRIAL or procedure mutually
agreeable [emphasis added] to by both the [e]mployer and the
[u]nion,” with the parties being bound if they go to trial with
certain limitations also set forth therein. (GC Exh. 6.) In its
April 25 and 27 proposals, Respondent removed the initial
language and noted that it was waiting for more information
regarding the Western Michigan Industrial Board, including
procedures on attending a hearing. (GC Exh. 11.) However, on
May 21, Respondent changed its proposal to reflect that if all
disputed matters were not settled through steps 1 and 2 of the
grievance procedure, or step 3 submission to the Federal Medi-
ation and Reconciliation Service, then the matter would be filed
as a complaint in the United States District Court, Eastern Dis-
trict of Michigan. (GC Exh. 13.) Finally, in its last, best, and
final offer of June 4, Respondent changed step 4 of its griev-
ance and court procedure article 5 to read that “[i]f no settle-
ment has been made pursuant to Steps 1, 2, and 3, and the
aforementioned grievance procedure fails, then either party
may pursue its judicial remedies.” There was no language to
explain what “judicial remedies” meant, or examples of such
remedies, but Respondent made it clear that it still intended for
the parties to bypass the arbitration process and go to court.
(GC Exh. 16.) On its face, this may appear to be a part of Re-
spondent’s bargaining strategy, but upon closer look, it seems
Respondent went to great lengths to hold onto this provision.
Respondents offered several reasons for wanting to go to
court versus arbitration, most of which defied logic. First, Re-
spondent said that arbitration would be far more costly and less
efficient than going to court. T. J. Hendrickson said that arbi-
tration was more costly because they would have to “fly people
in from all over the place,” and that as in-house counsel it
would be part of his job to go to court. He indicated that he had
more court experience, but offered no reason he could not han-
dle arbitration. He also admitted on further questioning that the
cost for using the AGGregate Carriers Association in the past
was fairly minimal (included in the membership fees). Second,
T. J. Hendrickson, expressed his concern that he learned that
the Industrial Board would not allow him, as an in-house coun-
sel, to represent Respondent unless he was also an officer.
Finally, T. J. Hendrickson explained that based on his past ex-
perience with the AGGregate Carriers Association, he believed
that the Industrial Board’s procedures would favor or be biased
towards the Union. However, the parties had not utilized or
required arbitration or use of such a board, association or panel
for arbitration services in over 10 years, despite its provision
for such a process in its prior collective-bargaining agreements.
In addition, the Union countered in one of its proposals that in
the event that either party would object to the use of the Indus-
trial Board for resolving grievances, they could be presented to
the America Arbitration Association (AAA). Respondent did
not provide evidence that T. J. Hendrickson could not have
represented Respondent before the AAA or before a similar
arbitration forum.
Further, the proposal for a trial in court in lieu of arbitration
is not only contrary to Respondent’s goal to control costs, but it
goes against generally accepted opinion that it is normally far
HENDRICKSON TRUCKING CO. 21
less costly and expeditious to go to arbitration than to take a
dispute into any type of court. The Board has recognized that
arbitration usually costs less and is more efficient than litiga-
tion, and the Supreme Court and Congress have certainly found
arbitration to be the preferred process for settling labor dis-
putes. See Collyer Insulated Wire, 192 NLRB 837, 843 (1971);
Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 578 (1960).
Since arbitration has been deemed an essential part of collective
bargaining, Respondent’s demand to remove it, along with its
refusal to supply requested information, taints and frustrates the
bargaining process. Thus, I reject Respondent’s argument and
reliance on Phelps Dodge Specialty Copper Products Co., 337
NLRB 455, 457 (2002), that even if its proposals appear regres-
sive or reasons for them unpersuasive, they are not “so illogical
as to warrant an inference that” it intended to avoid reaching an
agreement or frustrate the process.
Respondent’s insistence that any and all disputes between
the parties arising out of the contract (i.e., relating to all of em-
ployees’ terms and conditions of employment) go from the
internal grievance process straight to court is also troubling
because it appears that Respondent was implicitly attempting to
limit or bar the exercise of individual bargaining unit employ-
ees’ (or their agents’) statutory right to file charges with the
Board as well as to pursue the full grievance and arbitration
process. See Athey Products Corp., 303 NLRB 92, 96 (1991);
Isla Verde Hotel Corp., 259 NLRB 496 (1981), enfd. 702 F.2d
268 (1st Cir. 1983); Reichold Chemicals, 288 NLRB 69 (1988).
The Board has consistently held that an employer violates the
Act when it requires employees to waive their right (explicitly
or implicitly) to file charges with the Board. Athey Products,
supra; Retlaw Broadcasting Co., 310 NLRB 984 (1993). I am
not finding a per se violation regarding this matter, but rather
that Respondent’s insistence and inclusion of such a provision
supports a finding that Respondent did not engage in good-faith
bargaining.
In support of its bargaining to a good-faith impasse argu-
ment, Respondent also points out that it made numerous con-
cessions and/or engaged in progressive bargaining by agreeing
to withdraw a number of its initial proposals; reaching tentative
agreements; agreeing to only eliminate its 401(k) match until it
became profitable; decreasing its initial proposed employees’
contributions to health and welfare premiums; and changing the
dispute resolution option from filing in Federal district court to
the parties’ choice of judicial remedies. However, I find that
Respondent’s refusal to provide information on the critical
issues to which the Union was entitled plus its unreasonable
demand that the parties bypass arbitration tainted the bargain-
ing process and constituted a lack of good-faith bargaining.
3. Contemporaneous understanding of the parties
In order to establish the existence of impasse, Respondent
must prove that there was a contemporaneous understanding by
both sides that they had reached impasse. Monmouth Care
Center, 354 NLRB 11, 57 (2009). It is clear that the Union did
not believe that the parties were at impasse in May or June
2012, and that Sprague strongly voiced his objection and disa-
greement with Respondent’s assessment and declaration that it
had they had. Although the Union believed it had made
enough concessions in prior years, and did not receive the
requested information, it still countered Respondent’s health
and welfare proposals by offering to pay employee contribu-
tions of $15 per employee per week on a pretax basis and to
reinstate the opt-out option. The Union also proposed main-
taining the status quo except for the tentative agreements made
on April 10 and the $15 employee contributions to health care,
so that the parties could determine whether or not Respondent
was actually profitable from 2011–2012.
Indeed, the Union’s position throughout negotiations was
that further negotiations might be fruitful, especially if Re-
spondent would provide it with the requested cost savings in-
formation. In such circumstances, it is clear that an impasse
cannot be found to have existed on July 1. See Newcor Bay
City, 345 NLRB 1129, 1238–1239 (2005) (union’s contin-
ued assertion that movement is possible in future, depending
in part on what information respondent provided, substantial
evidence of finding no impasse). Despite the fact that the Un-
ion had not offered concessions and counterproposals on over-
time and the 401(k) match, it maintained its intention to be
flexible and desire to continue bargaining. See Grinnell Fire
Systems Co., 328 NLRB 585, 585–586 (1999) (no impasse
where employer expressed unwillingness to move from its
position and union had not offered specific concession, but had
declared its intention to be flexible and sought further bar-
gaining). Given the record as a whole, I conclude that as of
June 13, the parties had not exhausted prospects of reaching an
agreement. The Union had certainly not reached the end of its
negotiating rope. PRC Recording Co., 280 NLRB 615, 635
(1986).
Overall, despite having conflicting goals, the parties were
able to work out several tentative agreements at their April 10
session. Further, in this and later sessions, Respondent also
withdrew several of its own initial proposals, including limiting
employees to 1 week of vacation during the busy season, reduc-
ing vacation pay (back to $1 per hour from $.50 per hour),
implementing a tool allowance of $200 (versus 0), increasing
the eligibility time for health care coverage (back to 90 days
from 180 days), and agreed to the Union’s proposal to eliminate
the super seniority provision placing the chief steward at the
top of the seniority list. Respondent also agreed to eliminate
the 401(k) employer match until it became profitable (versus
indefinitely). The Union, on the other hand agreed to continue
the freeze on wage rate increases, a huge concession after years
with no raises. Respondent reduced its initial proposed em-
ployees’ contributions to health and welfare premiums from 25
percent to 20 percent for drivers and 15 percent for mechan-
ics/mechanic helpers, and then down to 15 percent for drivers
and 13 percent for mechanics/mechanic helpers. At one point,
it offered a second option with flat employee contributions
which increased each year over the life of the agreement. The
Union, in turn, agreed to have members pay $15 each per week
towards the health and welfare insurance costs, and sought to
allow the opt-out option. In addition, Respondent eliminated
the super seniority provision for chief stewards as initially rec-
ommended by the Union, the only concession actually made by
Respondent in response to the Union’s initial proposals. In-
deed, contrary to Respondent’s contention, the Union had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
shown flexibility on several significant issues just as it had.
This is true even though Respondent had also declined to com-
promise on several critical issues and been unwilling to provide
financial documentation that might very well have helped fur-
ther progress towards a new agreement. Newcor, supra. Re-
spondent may have been frustrated with the Union’s pace in
agreeing to concessions, this did not mean that the Union was
ready to abandon negotiations. Id.
I am not persuaded by Respondent’s arguments that impasse
is demonstrated by the fact that the Union held a ratification
vote rejecting its offers and even presented a final proposal
with three options, including a strike. The Board has held that
a ratification vote rejecting such an offer does not in itself show
that the parties are at impasse-instead, one must still consider
whether further bargaining would be futile because both parties
are at the end of their rope. Ead Motors Eastern Air Devices,
346 NLRB 1060, 1063 (2006) (considering the customary fac-
tors used to determine whether the parties are at impasse).
Here, the evidence shows that after the Union’s first vote reject-
ing Respondent’s proposals and strike vote, the Union readily
returned to the bargaining table, pursued counter proposals and
continued to request more information about Respondent’s
proposals. Just because the Union was not willing to roll over
and accept Respondent’s offers does not mean that it believed
further negotiations would not be fruitful. In light of these
facts, Respondent did not carry its burden of showing that the
parties were at a good-faith impasse when Respondent unilater-
ally implemented the terms of its last, best, and final offer.
Additionally, Respondent did not implement its last, best offer
on June 4, but instead sent the Union another last, best, and
final offer to implement on June 11.
4. Number of bargaining sessions
The parties only had six bargaining sessions before Re-
spondent declared they had reached impasse and implemented
its last, best, and final offer, one of which was the first meeting
with the Federal mediator which did not involve any negotiat-
ing or exchange of proposals. I do not find that intermittent
correspondence and exchange of proposals without any discus-
sion or meeting with the bargaining representatives constitute
bargaining sessions. Although the parties need not participate
in a set number of sessions, the Board has found six sessions
insufficient to support an impasse. See U.S. Testing Co., 324
NLRB 854, 860–861 (1997); see also Taft Broadcasting Co.,
supra (finding no impasse after 23 sessions).
All of these factors taken together show that the parties had
not reached a good-faith impasse, and therefore, unlawfully
implemented its last, best and final offer on June 11.
C. The Strike was an Unfair Labor Practice Strike
The General Counsel alleges that the strike in which the bar-
gaining unit engaged was an unfair labor practice strike because
of unlawful impasse and implementation of Respondent’s last,
best, and final offer. Respondent argues that it was an econom-
ic strike because it did not engage in any unfair labor practices.
If an employer’s unfair labor practice was a contributing cause
of a strike, the Board has determined that the strike is an unfair
labor practice strike. Executive Management Services, 355
NLRB 185 (2010); New Brunswick General Sheet Metal
Works, 326 NLRB 915, 915 (1998); C-Line Express, 292
NLRB 638 (1989). Likewise, the Board need not find that such
a strike would not have occurred “but for” the unfair labor prac-
tice. Decker Coal Co., 301 NLRB 729, 746 (1991). Rather, as
long as it finds that the unfair labor practice has “anything to do
with” causing the strike, the strike will be considered an unfair
labor practice strike. Child Development Council of Northeast-
ern Pennsylvania, 316 NLRB 1145 fn. 5 (1995), quoting NLRB
v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir. 1972), cert.
denied 419 U.S. 850 (1974); see also General Drivers & Help-
ers Union Local 662 v. NLRB, 302 F.2d 908, 911 (D.C. Cir.),
cert. denied 371 U.S. 827 (1962). Thus, such unfair labor prac-
tice need not be the primary goal of the strikers. See, e.g.,
Northern Wire v. NLRB, 887 F.2d 1313, 1319–1321 (7th Cir.
1989) (“A strike caused in whole or in part by an employer's
unfair labor practices is an unfair labor practice strike.”);
NLRB v. Moore Business Forms, 574 F.2d 835, 840 (5th Cir.
1978) (“The employer’s unfair labor practice need not be the
sole or even the major cause or AGGravating factor of the
strike; it need only be a contributing factor.”). In the instant
case, even though the union membership took a strike vote in
late April, and Sprague threatened Respondent with a strike,
there is no dispute that the Union did not go out on strike until
it realized and had proof that Respondent had implemented its
last, best offer. Indeed, after Respondent declared impasse and
submitted a last, best offer to be implemented on June 4, and
then a last, best, and final offer to be implemented on June 11,
the Union did not initiate a strike. Since I have determined that
Respondent’s implementation of its last, best, and final offer
constituted an unfair labor practice in violation of Section
8(a)(5) and (1) of the Act, I find that the evidence sufficiently
supports a finding that the unfair labor practice was a contrib-
uting factor to the Union’s strike.
I reject Respondent’s argument that the reasons for the initial
strike vote should prevail in determining how to characterize
the strike in this case. It is without merit, as is its reliance on
case law regarding union membership’s discussions at strike
vote meetings. In Mobil Homes Estates, Inc., 259 NLRB 1384,
1397, 1402 (1982), enfd. on other grounds 707 F.2d 264 (6th
Cir. 1983), the Board affirmed that a strike was economic de-
spite an employer’s unlawful statements the day before the
strike began since the union had previously held three strike
votes. In a second case on which Respondent relies, Facet
Enterprises, 290 NLRB 152, 154 (1988), enfd. on other
grounds 907 F.2d 963 (10th Cir. 1990), the Board found that in
requesting a strike vote, the only grounds offered or ever dis-
cussed by the union representatives dealt with the economic
proposals. In another, Christopher Construction Co., 288
NLRB 1272, 1276 (1988), the Board found that an economic
strike was not converted into an unfair labor practices strike
since there was no evidence that the strikers ever discussed or
considered unlawful discharges as a reason to prolong the
strike. In Reichhold Chemicals, 288 NLRB 69 (1988), revd.
906 F.2d 719 (D.C. Cir. 1990), on remand 301 NLRB 706
(1991), the Board concluded a strike was economic because the
union employees went on strike following two strike votes,
without mentioning the unlawful waiver of access to the Board
by union members. Respondent relies on Reichhold Chemicals
HENDRICKSON TRUCKING CO. 23
to argue that “information on which the employees acted when
they voted to strike is what is crucial in determining if there is a
causal connection” between the employer’s unlawful labor
practice and their “determination to strike.” Id. at 73.
I find that these cases are distinguishable from the instant
case. Here, the unlawful impasse and implementation occurred
prior to the strike. I have credited the testimony that on June 13
or 14, union representatives (one of whom- Mathews- was also
an employee as well as union officer) not only met with and
discussed Respondent’s unwillingness to move forward with
negotiations based on the impasse declaration and two notices
of implementation, but also talked about and decided not to
strike unless Respondent actually implemented its second last
offer. Moreover, there is no dispute that the Union continued to
negotiate and did not strike after the strike vote in April, nor did
the Union strike immediately after Respondent’s first or second
final offers on June 4 and 11. It is well established that a causal
connection between the unlawful conduct and the strike may be
inferred from the record as a whole. In re Post Tension of Ne-
vada, Inc., 352 NLRB 1153, 1163 (2008); Child Development
Council, supra at 1145. Thus, it is quite reasonable, based on
the evidence, to find a causal connection here between Re-
spondent’s unlawful acts (impasse and implementation) and the
strike.
Moreover, it matters not that the Union initially voted to
strike in order to show that it was serious about its proposals,
and to pressure Respondent into considering and accepting
some of them since the evidence shows that the actual strike
was primarily motivated, or least partly motivated, by Re-
spondent’s unlawful impasse and implementation of its last,
best, and final offer. This is not a case where the Union and/or
its membership never considered unfair labor practices before
striking. General Drivers & Helpers Union Local 662 v.
NLRB, supra.
Additionally, Respondent cautions that since the Union
might know that its articulated reasons for striking will deter-
mine its members’ recall rights, that I should “carefully distin-
guish facts demonstrating true motivation from efforts by the
union at revisionist history.” (See R. Br. at 45, citing C-Line
Express, 292 NLRB 638 (1989), and Pirelli Cable Corp. v.
NLRB, 141 F.3d 503 (4th Cir. 1998)). I reject this argument as
well as I have considered, and there is no evidence that the
Union skillfully contrived its reasons for initiating the strike, or
served up “self-serving rhetoric of sophisticated union officials
. . . inconsistent with the true factual context.” C-Line, supra at
638.
D. Respondent’s Failure to Reinstate the Strikers Following
their Unconditional Request to Return to Work also Violated
the Act
An employer violates Section 8(a)(3) and (1) of the Act
when it fails or refuses to reinstate unfair labor practice strikers
immediately after they have submitted their unconditional offer
to return to work. In re Post Tension of Nevada, Inc., supra,
citing Sproule Construction Co., 350 NLRB 774 fn. 2 (2007);
Mastro Plastics v. NLRB, 350 U.S. 270, 278 (1956) (unfair
labor practice strikers are entitled to immediate reinstatement to
their former positions even if replacements have been hired).
Respondent offered no other argument on this issue other than
its assertion that the strike was an economic in nature, which I
rejected. Therefore, I find that Respondent violated Section
8(a) (3) and (1) of the Act when it treated the unfair labor prac-
tice strikers like economic strikers, and failed to immediately
reinstate them after the Union, on their behalf, served Respond-
ent with its November 30 unconditional offer to return to work.
E. The July 31 and November 30 Information Requests
The standards set forth above regarding information requests
are applicable here as well. As stated earlier, an employer’s
duty to bargain includes a general duty to provide relevant and
necessary information requested by the Union to carry out its
statutory duties as its employees’ bargaining representative.
Crittenton Hospital, 343 NLRB 717, 719 (2004), citing NLRB
v. Acme Industrial Co., 383 U.S. 432 (1967). The union need
only show that it had a reasonable belief, based on objective
facts, that the requested information here is relevant. Disney-
land Park, 350 NLRB 1256, 1257–1258 (2007). Respondent
has a duty to respond, and if it does not, it violates Section 8(a)
(5) of the Act. See Columbia University, 298 NLRB 941, 945
(1990). Information sought pertaining to nonunit employees,
including the employer and its managers and operations, are not
presumptively relevant as is that requested about bargaining
unit employees. The Board has held, however, that an excep-
tion to this rule is that “information regarding temporary [non-
unit] workers performing bargaining unit work is presumptively
relevant.” Pavilion At Forrestal Nursing & Rehabilitation, 346
NLRB 458, 466 (2006), citing United Graphics, 281 NLRB
463 (1986); Phoenix Coca-Cola Bottling Co., 337 NLRB 1239,
1244–1245 (2002). Under either circumstance, the General
Counsel met its burden of showing that the Union’s requests
were relevant and necessary.
Respondent claims that it hired permanent, and not tempo-
rary workers, and that the Union knew this because it saw and
allegedly followed the AGG trucks and replacement drivers.
However, there is no evidence that the Union knew whether
these replacements were temporary, permanent, or subcontrac-
tors. Respondent certainly did not furnish the Union with this
information.
As set forth in the factual background, on July 31, the Union
requested 48 pieces of information pertaining to AGG and its
relationship to Respondent, as well as information about
AGG’s employees and truckdrivers potentially performing the
strikers’ work. Sprague explained that the union membership
did not know if AGG was Respondent’s alter ego, if it would be
replacing Respondent, or if Respondent was preparing to close
its doors. The Union requested this information again on No-
vember 30. The Board has held that a union has no obligation
to disclose the objective facts on which its belief that an alter
ego existed was based at the time of the requests, nor is the
union responsible for showing that these facts were either accu-
rate or ultimately reliable. Instead, the General Counsel must
only demonstrate that at the time of the requests, the Union had
a reasonable belief based on the objective evidence that an alter
ego relationship existed. McCarthy Construction Co., 355
NLRB 50, 52 (2010); see also Piggly Wiggly Midwest, LLC,
357 NLRB 2344, 2344, 2357 (2012).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Here, it is undisputed that the union members observed that
Respondent had painted the AGG name on its truck normally
driven by bargaining unit employees. The Union also saw on
the internet that AGG appeared to be one of Respondent’s
companies. These factual observations reasonably led to the
Union’s reasonable belief that AGG might be Respondent’s
alter ego, and also that others were performing the work of the
strikers. Indeed, Respondent later admitted that it and AGG
were in fact one and the same company, and that it allegedly
formed AGG and painted the name on its truck to hide the
trucks from union members who had been following the trucks.
Therefore, information about AGG, its business operations and
relationship to Respondent, as well as information about the
workers driving the trucks, was relevant and necessary for the
Union to carry out its representative function.
On November 30, the Union submitted its second request for
this information in connection with its request to Respondent to
meet to continue to bargain for a new collective-bargaining
agreement. (GC Exh. 23.) Still, Respondent failed to respond.
Instead, it argues that it was absolved of its responsibility to
respond since on January 9, it advised Sprague, in connection
with a separate information request (that of December 27), that
if its purpose was to learn whether Hendrickson Trucking and
AGG Trucking are a single employer, “you should know that
Hendrickson Trucking does not dispute that they are.” Re-
spondent also advised that it always employed and paid the
replacement employees. (R. Exh. 12.) The Board has consist-
ently held that an unreasonable delay in furnishing such infor-
mation is as much of a violation of Section 8(a)(5) and (1) of
the Act as a refusal to provide the information. Monmouth
Care Center, 354 NLRB 11, 51 (2009), reaffirmed and incorpo-
rated by reference 356 NLRB 152 (2010), enfd. 672 F.3d 1085
(D.C. Cir. 2012); Overnight Transportation Co., 330 NLRB
1275 (2000). Here, the evidence shows that Respondent’s Jan-
uary 9 response is not only an unreasonable delay in furnishing
information, but an inadequate response to the July 31 and No-
vember 30 requests. Further, the time delay of over 6 months
far exceeds the delays found acceptable by the Board. See
Postal Service, 308 NLRB 547, 550 (1992) (delay of 5 weeks
and 2 months excessive), Postal Service, 310 NLRB 530, 536
(1993) (1-month delay excessive); El Paso Electric Co., 355
NLRB 428, 478 (2010) (a 3-month delay found to be in viola-
tion of Sec. 8(a) (5)). And, as the General Counsel points out,
the delay in this case far exceeds the 1-month delay that the
Board found reasonable in Woodland Clinic, 331 NLRB 735,
737 (2000).
Therefore, I find that Respondent’s failure to respond to the
Union’s July 31 request for information violated Section 5(a)
and (1) of the Act.
F. Respondent Violated the Act when it Refused to Resume
Bargaining in 2012
On November 30, Sprague also notified Respondent that it
was prepared to resume bargaining in order to achieve a collec-
tive-bargaining agreement, and asked for available dates for
bargaining. (R. Exh. 23.) Sprague further requested that Re-
spondent, in preparation for bargaining, rescind any and all
unilaterally implemented changes, return to the status quo prior
to making the changes, make all employees whole for any fi-
nancial losses resulting from these changes, and respond to the
July 31 information requests. Ryan, Respondent’s outside
counsel, testified that based on a telephone conversation he had
with Sprague shortly thereafter, he did not pursue bargaining
per the written request. As discussed earlier, Ryan claimed that
when he told Sprague that Respondent would not rescind its
implemented changes or return to the status quo, or make em-
ployees whole, or reinstate employees, that Sprague said to
“forget it,” he would just let the NLRB decide it. Sprague did
not recall this conversation, and believed that Ryan may have
talked to another union representative, Bernard. Ryan swore he
spoke to Sprague, but did not recall when or under what cir-
cumstances–i.e., whether he called him directly about this case
or whether he spoke to him after discussions about another case
on which they represented the parties. I credited Sprague’s
account over Ryan’s, but even if Ryan had this conversation
with Bernard, it did not absolve Respondent of its responsibility
to resume bargaining on a new contract when requested by the
Union. I conclude that it was Respondent who refused to bar-
gain when Ryan said it definitely not meet the requested pre-
requisites to bargaining. Respondent also argued that Sprague
never requested bargaining dates in any of his subsequent let-
ters to Respondent, but neither did Respondent until of course
Respondent decided that it was ready to resume bargaining on a
new agreement.
Indeed, Ryan, on behalf of Respondent, did not have any
problem sending numerous emails to Canzano in March and
April 2013 in an attempt to set dates for bargaining and FRE
408 discussions. Ryan explained this was because Respondent
was ready to get back to the bargaining table during the slow
season. However, witnesses testified that the slow season usu-
ally began in late November/early December, so this testimony
is inconsistent with Ryan’s failure to give Sprague bargaining
dates in December 2012.
I find, therefore , that Respondent continued to fail to bar-
gain with the Union between November 30 and his first attempt
on March 25, 2013. (R. Exh. 30), in violation of the Act.28
CONCLUSIONS OF LAW
1. Respondent, Hendrickson Trucking Company, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union, Local 164, International Brotherhood of
Teamsters (IBT), is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is, and, at all material times, was the exclusive
collective bargaining representative of the following appropri-
ate units at Respondent’s Jackson, Michigan facility.
All drivers, mechanics, mechanic helpers and parts/utility
employees employed by us at or out of its facility located at
1077 South Toro, Jackson, Michigan, but excluding all guards

28 Of note, Respondent and the Union met to bargain on July 26, but
Respondent refused to discuss any of the issues because the Union did
not have anything new. Even if a union has nothing new, the Board has
held that a respondent has an obligation to bargain. Carey Salt Co., 358
NLRB 1142, 1167 (2012).
HENDRICKSON TRUCKING CO. 25
and supervisors as defined in the National Labor Relations
Act (the Act).
4. By unilaterally implementing the terms of its last, best,
and final collective-bargaining agreement offer without bar-
gaining with the Union to a good-faith impasse, Respondent
violated Section 8(a) (5) and (1) of the Act.
5. By failing and refusing to provide the Union with the in-
formation it requested on July 31, and again on November 30,
which was relevant and necessary to the Union to carry out its
collective-bargaining representative responsibilities, Respond-
ent violated Section 8(a)(5) and (1) of the Act.
6. By failing and refusing, on November 30, 2012, to imme-
diately reinstate bargaining unit employees who had engaged in
an unfair labor practice strike, beginning on June 25, 2012, and
had made an unconditional offer to return to work, Respondent
violated Section 8(a)(3) and (1) of the Act.
7. By failing and refusing to resume bargaining collectively
towards a new collective-bargaining agreement on or after No-
vember 30, 2012, Respondent violated Section 8(a)(5) and (1)
of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act.
Specifically, I shall order Respondent to rescind the unlawful
unilateral changes contained in its last, best and final offer and
unlawfully implemented/made on about July 11, 2012, regard-
ing the unit employees’ terms and conditions of employment, if
the Union requests, and to restore the status quo ante, if the
Union requests, that existed prior to the changes until such time
as Respondent begins to bargain with the Union in good faith to
a collective-bargaining agreement or good-faith impasse. This
obligation also includes that Respondent immediately begin to
bargain in good faith with the Union to a new collective-
bargaining agreement or bona fide impasse.
I shall also order Respondents to make whole any unit em-
ployees affected by the unlawful unilateral changes. This in-
cludes reimbursing the employees for any loss of earnings or
benefits resulting from the changes. Similarly, I shall also order
Respondent to make whole the unfair labor practice strikers
who were denied immediate reinstatement on November 30,
2012, for any loss of earnings and other benefits suffered as a
result of Respondent’s failure to reinstate them. Backpay shall
be computed in the manner set forth in Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus
interest at the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). It also
includes making any benefit contributions on behalf of eligible
unit employees that have not been made since the date of the
unlawful changes, plus any additional amounts due the health
and welfare and other funds in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). It further
includes reimbursing the unit employees for any expenses ensu-
ing from Respondent’s failure to make the required contribu-
tions to such benefit funds, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the same man-
ner as backpay described above. Respondent shall file a report
with the Social Security Administration allocating backpay to
the appropriate calendar quarters, and shall compensate the
affected employees for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay award award(s) cov-
ering periods longer than one year. Latino Express, Inc., 359
NLRB 518 (2012).
I shall also order Respondent, within 14 days of the below
Order, to offer all of the unit employees who engaged in the
unlawful labor practice strike on June 25, 2012, and who were
not immediately reinstated upon unconditional request made on
November 30, 2012, recall to their former positions, terminat-
ing, if necessary, any replacements who occupy those positions,
or if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed. This includes reimbursing
said employees for any loss of earnings or benefits resulting
from this failure to reinstate on or about November 30 in the
manner as set forth above.
I shall also order Respondent to provide the information re-
quested by the Union on July 31, and again on November 30.
Finally, I shall order Respondent to each post a notice to
their employees regarding their respective violations in accord-
ance with J. Picini Flooring, 356 NLRB 11 (2010).
Accordingly, consistent with the foregoing, and based on the
above findings of fact and conclusions of law and the entire
record, I issue the following recommended29
ORDER
Respondent, Hendrickson Trucking Company, Jackson,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) If requested by the Union, implementing the unilateral
changes contained in its last, best, and final offer and unlawful-
ly implemented/made on about July 11, 2012, regarding the
unit employees’ terms and conditions of employment, without
bargaining (and until it begins to bargain) in good faith with the
Union to a new collective-bargaining agreement or bona fide
impasse.
(b) Failing and refusing to immediately reinstate employees
who engage in an unfair labor practice strike, upon their uncon-
ditional offer to return to work made on November 30, 2012.
(c) Failing and refusing to timely provide relevant and neces-
sary information requested by the Union on July 31 and No-
vember 30, 2012.
(d) Failing to bargain in good faith with the Union towards a
new collective-bargaining agreement or bona fide impasse.
The Union is the exclusive collective-bargaining representative
of the following appropriate bargaining unit at Respondent’s
Jackson, Michigan facility:

29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
All drivers, mechanics, mechanic helpers and parts/utility
employees employed by us at or out of its facility located at
1077 South Toro, Jackson, Michigan, but excluding all guards
and supervisors as defined in the National Labor Relations
Act (the Act).
(e) In any like or related manner interfering with, retraining
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order, if the Union requests, re-
scind the unlawful unilateral changes contained in its last, best,
and final offer and unlawfully implemented/made on about July
11, 2012, regarding the unit employees’ terms and conditions of
employment, and to restore the status quo ante, if the Union
requests, that existed prior to the changes until such time as
Respondent begins to bargain with the Union in good faith to a
collective-bargaining agreement or bona fide impasse.
(b) Make whole, with interest, all bargaining unit employees
affected by the unlawful unilateral changes contained in its last,
best, and final offer and unlawfully implemented/made on
about July 11, 2012, regarding the unit employees’ terms and
conditions of employment, in the manner set forth in the reme-
dy section of this decision.
(c) Within 14 days of this Order, offer all of the unit employ-
ees who engaged in the unlawful labor practice strike on June
25, 2012, and who were not immediately reinstated upon un-
conditional request made on November 30, 2012, recall to their
former positions, terminating, if necessary, any replacements
who occupy those positions, or if those positions no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
(d) Make the unfair labor practice strikers whole for any loss
of earnings and other benefits, with interest, suffered as a result
of the discrimination against them in the manner set forth in the
remedy section of this decision.
(e) Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters, and shall compensate the affected employees for the
adverse tax consequences, if any, of receiving one or more
lump-sum backpay award award(s) covering periods longer
than one year.
(f) Provide the Union with all of the information it requested
on July 31 and again on November 30, 2012.
(g) Bargain collectively and in good faith with the Union as
the exclusive collective-bargaining representative of the unit
employees.
(h) Within 14 days after service by Region 7, post at the
Hendrickson Trucking Company facility in Jackson, Michigan,
a copy of the attached notice marked “Appendix.” 30 Copies of
the notice, on forms provided by the Regional Director for Re-

30 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
gion 7, after being signed by the Respondent’s authorized rep-
resentative, 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. In
addition to physical posting of paper notices, the notices shall
be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. 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 Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since June 11, 2012.
(i) 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.
Dated, Washington, D.C., May 16, 2014
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT unilaterally implement unilateral changes af-
fecting the terms and condition of unit employees’ employment
(wages, hours and working conditions), without good-faith
bargaining with the Local 164, International Brotherhood of
Teamsters (IBT) (the Union) and reaching an overall good-faith
impasse.
WE WILL NOT fail and refuse to immediately reinstate em-
ployees who engage in an unfair labor practice strike, upon
their unconditional offer to return to work.
WE WILL NOT refuse to respond to and provide to the Union
information that is relevant and necessary to its role as your
bargaining representative in the following appropriate unit :
All drivers, mechanics, mechanic helpers and parts/utility
employees employed by us at or out of its facility located at
1077 South Toro, Jackson, Michigan, but excluding all guards
and supervisors as defined in the National Labor Relations
Act (the Act).
WE WILL NOT in any like or related manner interfere with, re-
HENDRICKSON TRUCKING CO. 27
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL restore the status quo that which existed prior to
any unilateral changes implemented without bargaining to a
good-faith impasse until such time as we begin to bargain with
the Union to a collective-bargaining agreement or good-faith
impasse.
WE WILL, if requested by the Union, rescind any and all
changes to your terms and conditions of employment made
without bargaining with the Union to a good-faith impasse.
WE WILL pay bargaining unit employees for the wages and
other benefits lost because of the changes to terms and condi-
tions of employment that we made without bargaining with the
Union to a good-faith impasse.
WE WILL bargain collectively and in good faith with the Un-
ion as the exclusive collective-bargaining representative of our
unit employees.
WE WILL make offers of immediate and full reinstatement,
pursuant to the Union’s unconditional offer to return to work, to
all employees who were on strike at any point since June 25,
2012, to the positions that they held prior to our unlawful dis-
crimination against them, and offer recall rights in the event we
failed or refused to properly reinstate employees, without prej-
udice to their seniority rights or other rights and privileges pre-
viously enjoyed, and to make them whole for any loss of wages
and benefits they may have suffered as a result of the discrimi-
nation, with interest computed in accordance with National
Labor Relations Board (the Board) policy.
WE WILL file a report with the Social Security Administra-
tion allocating backpay to the appropriate calendar quarters.
HENDRICKSON TRUCKING COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07–CA–086624 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.