Int'l Brotherhood of Teamsters Local No. 414

National Labor Relations Board - Administrative Judge Opinions

Sep 28, 2007

25-CP-000209 (N.L.R.B. Sep. 28, 2007)

JD–66–07
Fort Wayne, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CHAUFFEURS, TEAMSTERS, AND HELPERS
LOCAL NO. 414, a/w INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
and Case 25–CP–209
FIDLER, INC., d/b/a AGGREGATE
INDUSTRIES – CENTRAL REGION
Belinda J. Brown, Esq., for the General Counsel.
Fred O. Towe and Geoffrey S. Lohman, Esqs.
(Fillenwarth Dennerline Groth & Towe),
of Indianapolis, Indiana, for the Respondent.
Donald J. Cairns, Esq. (Lindner & Marsack, S.C.),
of Milwaukee, Wisconsin, for the Charging Party
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Fort Wayne,
Indiana, on July 31, 2007. On June 5, 2007,1 the Charging Party, Fidler, Inc., d/b/a Aggregate
Industries – Central Region filed an unfair labor practice charge. The charge alleged that the
Respondent, Chauffeurs, Teamsters, and Helpers Local No. 414, a/w International Brotherhood
of Teamsters (the Union or Local 414), had, for a period of more than 30 days, engaged in
picketing and strike activity with an object of forcing or requiring the Charging Party to recognize
the Union as the collective-bargaining representative for the employees of the Charging Party’s
newly-acquired facility, Klink Concrete, when the Respondent had not been certified as the
exclusive collective-bargaining representative, had not filed a petition to be certified, and had
not been authorized by a majority of Klink Concrete employees in a unit appropriate for
collective bargaining to serve as their exclusive collective-bargaining representative. The
complaint, alleging that the Respondent’s actions violated Section 8(b)(7)(C) of the National
Labor Relations Act (the Act), was issued July 2, 2007. On July 13, 2007, the Respondent filed
its answer to the complaint and essentially denied the material complaint allegations.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent and the Charging
Party, I make the following

1 All dates are in 2007 unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
The Respondent, located in Fort Wayne, Indiana, admits that it is a labor organization
within the meaning of Section 2(5) of the Act. During the relevant time period in 2007, the
Charging Party, an Indiana corporation, received revenue from its ready-mix concrete sales and
deliveries from its Indiana facilities directly to customers located in the state of Michigan totaling
$781,582.06. Accordingly, the Charging Party is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. Alleged Unfair Labor Practices
A. The Parties
The Charging Party, with headquarters in Goshen, Indiana, provides building materials
and services to construction contractors. It operates five distinct divisions within its Central
Region: ready-mix concrete, asphalt, aggregate, merchanting, and contracting. The affected
department here, the ready-mix division, currently operates facilities at ten locations in Northern
Indiana: Leiters Ford, South Bend, Green, Warsaw, Elkhart, Goshen, Middlebury, Wolcotville,
Angola, and Waterloo.
The Respondent represents 11 drivers at the Wolcotville and Angola facilities. The
Respondent and the Charging Party have been signatories to collective-bargaining agreements
covering employees at Wolcottville and Angola; the current agreement is effective for the period
May 1, 2003, through April 30, 2008 (the CBA). The Charging Party’s drivers at the Waterloo
facility are unrepresented, while drivers at the remaining eight facilities are represented by
another labor organization, Teamsters Local 364 (Local 364).2
B. The Grievances
1. The initial grievances
This controversy started at the Angola facility with the Respondent’s submission of
Grievances 23070, 23071, and 23076. Grievance 23070 asserted that a relatively junior
employee was called into work on March 6 to perform work that should have been offered to
Ron Elliott, a senior employee. Elliott also happened to be the Respondent’s shop steward.
Grievance 23071 asserted that, on March 12, a loader operator was utilized to haul ready-mix
concrete prior to Joseph Kaufman’s scheduled starting time that day and that Kaufman should
have been notified of the work opportunity. On March 16, Michael Kunce, a bargaining unit
employee, filed Grievance 23076 alleging that, on March 15, bargaining unit work was
improperly assigned to others prior to Kunce’s scheduled starting time. The first instance
involved a supervisor unloading a vendor’s truck. The second instance involved a loader
operator with less seniority dispatched on the same day to haul two loads of ready-mix
concrete.

2 Tr. 14–15; Jt. Exh. 1; R. Exh. 1.
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2. The Step 2 meeting
On March 19, the Charging Party’s operations manager, Ron Huster, Elliott, Kaufman,
and Kunce met for a Step 2 grievance meeting relating to Grievances 23070, 23071, and
23076. During the meeting, Elliott withdrew Grievance 23070 after learning that the Charging
Party attempted to contact Elliott to come in that day, but was unsuccessful. In addition,
Kaufman withdrew Grievance 23071 after learning that a more senior employee performed the
March 13 hauling assignment.
The parties were not, however, able to resolve Grievance 23076. The Charging Party
asserted that the loader operator assigned to unload a vendor’s truck was senior to Kunce, and
the CBA permits supervisors to perform bargaining unit work whenever necessary to continue
operations and service a customer. The Respondent insisted that Cynthia Brown, the Charging
Party’s human resources manager, agreed during the 2003 collective-bargaining negotiations
that (1) bargaining unit work could only be performed by management during an emergency if
all bargaining unit employees were working, and (2) the most senior employee at the Angola
and Wolcottville plants would perform the loader operator function. With respect to the latter, the
Respondent asserted that the loader operator called in on March 15 was junior to Kunce.3
3. The Step 3 meeting
On April 2, the parties met for a Step 3 meeting in connection with Grievance 23076.
The Respondent’s vice-president, George Gerdes, Elliott, and Kunce appeared on behalf of the
Respondent; Huster appeared on behalf of the Charging Party and was joined at one point
during the meeting by Gary Manley, the Angola plant manager. The loader operator issue was
settled with an agreement, notwithstanding the language in Article 21 of the CBA, that the
loader operator position would be posted as a “bid position.”
With respect to the performance of bargaining unit work by supervisors, however, the
Charging Party continued to insist that the disputed work either was not covered under the CBA
or was done in an emergency in order to avoid disrupting the business. The Respondent’s view
did not change either, but Gerdes reduced the requested remedy to 2 hours of backpay after
learning that Kunce had worked his regular shift on March 15.
C. The Klink Concrete Acquisition
1. The Respondent finds about the acquisition
During the April 2 meeting, Elliot asked Huster whether the Charging Party was
interested in acquiring Klink Concrete, a competitor. Huster replied, “No.” Later that afternoon,
however, the Charging Party acquired the assets of Klink Concrete, including its ready-mix plant
in Waterloo. The Charging Party also hired the five drivers formerly employed by Klink Concrete
and increased their hourly wage rates and fringe benefits to the levels of the Charging Party’s
employees who were member of the Respondent. The five drivers were neither members of, nor
represented by, a labor organization.4

3 Aside from their varying positions on this issue, there was no evidence introduced by either
party as to whether Kunce was, in fact, junior or senior to the loader operator who performed the
work during the morning on March 15. (Tr. 16–21; Jt. Exh. 2–4.)
4 Huster’s account of the meeting is undisputed. (Tr. 21–27, 142.)
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Gerdes learned about the Klink Concrete acquisition, at the latest during the morning of
April 3. At that time, a bargaining unit employee at the Angola facility notified him that the
Respondent had moved truck 199 from that facility to the newly acquired Waterloo facility. The
truck had been driven by an employee who resigned from the Angola facility on March 30. Later
that day, Gerdes called Huster to discuss the Klink Concrete acquisition. Huster confirmed the
Respondent’s acquisition of Klink Concrete’s assets, including its Waterloo ready-mix concrete
facility, and its retention of the drivers. Gerdes urged Huster to allow the Charging Party’s
present employees to bid for the Waterloo positions based on seniority. Huster got back to
Gerdes a short while later denying the request and informed him the Charging Party would
continue to operate the Waterloo facility as Klink Concrete, and as a nonunion facility.5
2. The Klink Concrete acquisition leads to additional grievances
On April 4, the Respondent filed Grievances 26198 and 26199, and submitted an
information request to the Charging Party. Grievance 26198 alleged that the Charging Party
violated Article 2 by failing to apply the terms of the CBA to the former Klink Concrete
employees. Grievance 26199 alleged that the Charging Party violated Article 4 by moving a
truck from its Angola facility to the Waterloo plant. On the same day, the Respondent also sent
a letter to Huster requesting information relating to the Klink Concrete purchase, the names of
the employees at that facility, their wage levels and benefits package, a description of Klink
Concrete’s dispatch procedures and an identification of the individual(s) having responsibility for
Klink Concrete’s labor relations and day-to-day operations, and the location from which Klink
Concrete’s drivers would be dispatched.6
While the information request was pending, the Charging Party wrote to the Respondent
on April 6, stated that the Respondent had no legal right to access to the Klink Concrete facility,
and requested that it refrain from further organizational activity relating to the employees at that
facility.7 On April 12, Brown responded to the Respondent’s information request. She confirmed
that the Charging Party acquired certain assets of Klink Concrete, but explained that it would
continue to operate as Klink Concrete. Brown also explained that certain Klink Concrete
employees had been retained, and day-to-day direction and dispatch at the Waterloo facility
would be handled by those retained employees; labor relations would be handled by the
Charging Party’s human resources department. Brown’s letter concluded by stating that the
Respondent had not demonstrated majority support among the Klink Concrete employees, that
the Charging Party did not enjoy bargaining rights for those employees, and that the names and
addresses of such employees were not relevant and would not be provided.8
D. The Step 4 Meeting
On April 20, the Charging Party and the Respondent held a Step 4 grievance meeting at
the Charging Party’s headquarters in Goshen. Brown, Huster, quality control manager Tom
Adkins, Elkhart plant manager Bryan Grose, and ready-mix sales manager Bill Perry attended
on behalf of the Charging Party. The Respondent was represented by its president, Dennis
Arnold, and Gerdes.

5 Tr. 123–124, 144–145, 181.
6 Tr. 24–27, 143; Jt. Exh. 5–7.
7 Jt. Exh. 8.
8 The Charging Party contends that the letter was mailed on April 12. (Tr. 77; Jt. Exh. 14.)
However, the Respondent alleges it was not received until the next grievance meeting on April
20. (Tr. 146, 154–155.)
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The parties initially discussed Grievance 23076—the supervisory work issue. The
requested remedy was 2 hours of back pay. The Charging Party continued to insist that
supervisors be allowed to perform work whenever circumstances required it. Invoking Article 16
of the CBA, as well as discussions and understandings arrived at between the parties during
2003 collective bargaining, the Respondent maintained that supervisors could not perform work
normally performed by bargaining unit members unless all of the latter were busy. After several
minutes of discussion, the parties were unable to resolve this issue.9
Grievance 26198 was discussed next. The Charging Party noted that Klink Concrete
was a separate entity and, thus, the CBA did not require it to recognize the Respondent as the
bargaining representative for the Waterloo employees. The Respondent disagreed and insisted
the CBA be extended to cover Klink Concrete’s employees. Brown then suggested another
approach to resolve the representation issue—the filing of a unit clarification petition with the
National Labor Relations Board (the Board). Gerdes replied by reading a listing of Teamster
labor agreements covering the Charging Party’s facilities and sites throughout the United
States, as well as the approximate number of employees at each location. When Brown asked
Gerdes why this information was relevant, Gerdes said, “You’ll see.”10
Grievance 26199 was discussed last. The Respondent claimed that the movement of the
truck from the Angola facility to Waterloo, which is about 10 miles away, deprived bargaining
unit employees of work in violation of Article 4 of the CBA. Huster disagreed on the ground that
the equipment was idle, had not been leased, and the Charging Party would continue to use
such equipment wherever it was needed. The discussion concluded after about 15 to 30
minutes with no resolution of this issue.11
At the end of the meeting, the parties acknowledged in writing that they were deadlocked
at Step 4 with respect to each grievance. Brown then expressed a desire to submit the
deadlocked grievances to arbitration. Gerdes stated that the Respondent was not interested in
arbitration and would, instead, resort to “economic recourse.” Brown asked Gerdes what he
meant by that remark. Gerdes replied, “Read the contract.”12

9 Tr. 27–28, 129–139, 146–148, 189.
10 There was a divergence in testimony as to the order in which Grievances 26198 and
26199 were discussed. I found that Grievance 23076 was discussed first, 26198 was discussed
second, and 26199 was discussed last, based on Arnold’s credible testimony and notes of the
meeting – the only notes produced at trial—and his forthright acknowledgment that they were
only an “overview” of the meeting. In any event, Gerdes conceded that he wanted to show the
Charging Party, who was unwilling to resolve Grievances 23076 and 26199, that the
Respondent meant business and would picket and do anything else necessary to “bust your
butt.” There is no evidence that he explicitly stated the Respondent would seek recourse in
connection with Grievance 23076. (Tr. 30–31. 81–82, 148–153, 190–194; R. Exh. 3.)
11 There was also a divergence of testimony concerning the length of discussion concerning
this grievance. None of the parties convinced me that they were particularly aware of the
amount of time that transpired, but it seemed like more than a few minutes, but not more than a
half-hour. As such, I arrived at a mid-range between the estimates provided by the witnesses.
(Tr. 55–57, 149–151, 191.)
12 Tr. 27–33, 79–84, 152; Jt. Exh. 4–6.
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E. The Respondent Resorts to Economic Recourse
1. Discussions prior to the strike
After the meeting concluded, Huster faxed a letter to the Respondent confirming the
latter’s refusal to arbitrate Grievances 26198 and 26199, but omitting any reference to
Grievance 23076. Huster asserted that a strike would be unlawful and that the Respondent’s
real motivation for seeking economic recourse would be as a pretext for its real objective—
forcing the Charging Party to recognize the Respondent as the exclusive representative for the
Klink Concrete employees and/or to extend the current labor agreement between the Charging
Party and the Respondent to cover the Waterloo facility.13
On April 23, Gerdes responded to Huster’s April 20 letter. Gerdes’ letter noted that
Huster had omitted any reference to Grievance 23076. He also stated that a strike could be
averted by a resolution of Grievance 23076, with 2 hours of back pay and fringe benefits to
Kunce, and a resolution of Grievance 26199, with the return of truck 199. The letter, referred to
a strike scheduled for April 24 and noted that a “strike can be avoided by providing the full
remedy requested for Grievance Nos. 26199 and 23076.” He added that the Respondent
“further reserves the right to take any necessary action in the future in regards to Grievance
26198.”14
2. The Respondent goes on strike and engages in picketing
From April 24 until July 13, the Respondent engaged in a work stoppage and picketing
at the Charging Party’s Wolcottville and Angola facilities, the two ready-mix plants where it
represented employees. The Respondent also started picketing at the Charging Party’s
Warsaw, Bremen, South Bend, Elkhart, Middlebury, and Goshen facilities on April 24. Pickets
were established at the Leiters Ford facility on April 25. However, no pickets were ever
established at the Klink Concrete facility. The signs at all picketed locations read the same—
“Teamsters Local 414 On Strike Only Against Aggregate Industries, Inc.”
Drivers represented by another labor organization, Local 364, refused to cross the picket
line at seven Indiana locations—Leiters Ford, South Bend, Green, Warsaw, Elkhart, Goshen,
and Middlebury. However, they returned to work after 2 days, while continuing to picket. Pickets
also appeared at the Charging Party’s asphalt plant in Valparaiso, Indiana, at about the same
time with picket signs reciting the same message as those employed previously elsewhere. The
Charging Party’s Valparaiso employees, members of Local 150, also refused to cross the picket
line and continued to do so until the strike’s conclusion.15
The Respondent also engaged in ambulatory picketing at the Charging Party’s Indiana
facilities, its regional headquarters in Kalamazoo, Michigan, and facilities in Battle Creek and
Chelsea, Michigan, and Minneapolis, Minnesota.16

13 Jt. Exh. 9; Tr. 33, 155.
14 Gerdes contends that it had to reserve the Respondent’s rights with respect to Grievance
26198 because it had not yet received a response to its information request. (Jt. Exh. 10; Tr.
155–157.)
15 Tr. 36–40, 70–72, 163–164; Jt. Exh. 11–13.
16 It is undisputed that the Respondent also engaged in ambulatory picketing. There is no
evidence, however, to indicate that the Klink Concrete facility was ever picketed or that the
Respondent engaged in ambulatory picketing in connection with the employees assigned to that
Continued
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3. The parties exchange communications
On or about May 7, Gerdes, Walt Lytle (another union vice president), Bowden, Brown,
and Donald Cairns, the Charging Party’s counsel, had a conference call. The Charging Party
indicated it did not want to hire permanent replacements, while the Respondent asserted its
right to picket other facilities as well. The subject of the Klink Concrete employees came up and
Lytle said that the strike was not about Klink Concrete’s employees, but rather, about “turning
the truck back and paying the two hours, making the people whole.” Gerdes also referred to his
April 23 letter stating how the Charging Party could resolve the dispute and end the strike, but
noted that there had been no response.17
On or about May 10, Gerdes received an undated letter from Philip Bowden, the
Charging Party’s regional president. The letter referred to Gerdes’ letter of April 23, outlined the
Respondent’s outstanding grievances—23076, 26198, and 26199—and goes on to state, in
pertinent part:
Your letter went on to say that the Union ‘would not be arbitrating’ but ‘reserves the right
to take any necessary action in the future in regards to grievance number 26198.’
Nothing in your letter or other communication from the Union indicates Grievance No.
26198 has been withdrawn.
The employer does not concede any contract violation has occurred. Nevertheless, we
would like a clarification of the Union’s position so we can better evaluate the current
dispute. Do we understand correctly that payment of two hours’ wages and fringes to
Michael Kunce, the grievant in Grievance No. 23076, will end that matter? If this
payment is made, it would appear that the only reason for further strike action would be
Grievance No. 26199. If so, what proof does the Union have that any bargaining unit
employees were adversely affected by the equipment movement in question? What is
the dollar amount of the remedy sought, and to whom do you claim it should be paid?
What is the basis for that calculation? How will the Union demonstrate that any
bargaining unit employee would have had additional work opportunities but for the
equipment movement?
A prompt response to these questions (and a correction of any misstatements) would
serve to clarify these points and provide possible options for ending the ‘strike’ your
letter said ‘can be avoided by providing the full remedy requested for Grievance Nos.
26199 and 23076.’18
On May 10, the same day he received Bowden’s letter, Gerdes responded. He stated
that Grievance 23076 could be settled based on the payment to Kunce of 2 hours of wages and
fringe benefits, and an agreement “to cease and desist having non-bargaining unit employees
_________________________
facility. (Tr. 84–85, 91–92, 111–112, 117–120.)
17 Lytle was not called as a witness, but I base this finding on the credible and unrefuted
testimony of Gerdes regarding this conference call. I considered this hearsay testimony reliable
because Brown and Donald Cairns, the Charging Party’s trial counsel, were participants in the
conference call. It is noted that Brown testified at trial, then remained in the court room and
could have been called to refute this testimony. (Tr. 157–159.)
18 Jt. Exh. 15.
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perform bargaining unit work in the future.” With respect to Grievance 26199, Gerdes stated that
the Respondent sought the following remedy:
(1) For the company to cease and desist the use of Aggregate Industries’ equipment by
the former Klink employees; (2) Return to Aggregate the equipment sent to Klink; and (3)
Make the Aggregate Industries’ bargaining unit employees whole for all losses of wages
and fringe benefits arising from the transfer of equipment from Aggregate Industries to
Klink.
Gerdes then stated that, in order for the Respondent ‘to establish that bargaining unit
employees were adversely affected by the equipment movement in question,’ it requested the
Charging Party provide the following information:
(1) A description of all equipment transferred from Aggregate Industries to Klink
including the date or dates said transfer occurred; (2) Copies of all records establishing
all work and/or customer orders filled by Klink, which identifies the equipment used to
complete this work order, the employee(s) assigned to the order and the time spent on
each order, from the date the equipment was transferred to Klink up to today’s date; (3)
Copies of all records which reflect the customers serviced by Aggregate Industries–
Teamsters Local 414 bargaining unit employees during the period of March 1, 2006 up
to and including the present date; (4) Copies of all records which reflect the customers
serviced by Klink employees during the period of March 1, 2006 up to and including the
present date; (4) Copies of all records which reflect the customers serviced by Klink
employees during the period of March 1, 2006 up to and including the present date; (5)
Daily time records and/or weekly payroll records reflecting all hours worked by
Teamsters Local 414 bargaining unit employees for the period March 1, 2006 up to and
including the present; and (6) Daily time records and/or weekly payroll records reflecting
all hours worked by Klink employees for the period March 1, 2006 through up to and
including the present.19
On May 24, Bowden provided some of the information requested by Gerdes: Klink
Concrete’s April 2 purchase date; its continuation in business under the same name; the
identification of the truck sent to Waterloo—Truck 199; and that truck’s production record during
the period of April 2 to April 23. However, the requests for information relating to Klink
Concrete’s work orders, customers, and employees were rejected.20
On May 29, Bowden sent another letter to Gerdes, insisting that the Charging Party did
not violate the CBA on March 15 by allowing a supervisor to perform bargaining unit work. He
offered, however, to settle Grievance 23076 on a “non-precedent” basis and provide the back
wages and benefits grieved by Kunce. He asked Gerdes to “[p]lease confirm Local 414’s
acceptance of this offer.” He also reiterated the Charging Party’s May 23 offer to provide
information relating to Grievance 26199 and willingness to use the services of a third party to
review and compare records covering the Waterloo operations with those covering operations at
Wolcottville and Angola.21
On May 31, Gerdes responded to Bowden’s letters of May 24 and 29. Gerdes offered to
settle Grievances 23076 based on the backpay and benefits sought by Kunce for the 2 hours at

19 Jt. Exh. 16.
20 Jt. Exh. 18.
21 Jt. Exh. 17.
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issue, but reiterated his request of May 10 that the Charging Party stipulate that supervisors not
perform bargaining unit work. Gerdes also requested replacement driver information, and
reiterated his request for customer and Klink Concrete employees’ information. Finally, Gerdes
again rejected the Charging Party’s proposal that a third party examine the requested records
and stated the Respondent would consider enter into confidentiality agreement regarding the
customer information sought.22
On June 22, Huster responded to Gerdes’ May 31 letter by offering again to settle
Kunce’s grievance with backpay and benefits, but on a non-precedent basis. He reiterated the
Charging Party’s refusal to provide Klink Concrete’s customer and employee information. Huster
did provide production records for Truck 199, but with the customer and driver information
redacted, while noting its willingness to release such information to a neutral third party. Huster
also provided the hiring dates of the six replacement drivers employed during the strike, but
listed only initials for their names. Finally, he complained that there had been serious acts of
intimidation against replacement employees.23
On June 26, Gerdes reiterated his statement of May 31 by stating the Respondent’s
refusal to settle Grievance 23076 on a nonprecedent basis. The Respondent continued to
demand access to records covering former Klink employees, as well as production records and
customer lists predating the Charging Party’s acquisition of the Waterloo facility, and
replacement employee information. Referring to Bowden’s undated letter, which he received on
May 10, Gerdes explained that it was Bowden’s request for information that, in fact, was the
genesis for Gerdes’ information requests. He added it was obvious, based upon the Charging
Party’s continuing refusal to provide the requested information, that it “does not have a good
faith desire to settle Grievance No. 26199.” Finally, Gerdes noted that the Charging Party failed
to provide the names of persons engaged in acts of intimidation.24
F. The Respondent’s Picketing Is Enjoined by Court Order
On June 20, the Charging Party filed a petition in United States District Court for the
Northern District of Indiana seeking an injunction enjoining the Respondent from engaging in
unlawful recognitional picketing of the Charging Party pursuant to 29 U.S.C. §160(l). On July 3,
United States District Judge Theresa L. Springman held an evidentiary hearing. On July 13,
Judge Springman issued a restraining order.25 After a period of 84 days, the strike and picketing
activity ended on that day. At no point during that period, did the Respondent file a petition with
the Board for a representation election among the Klink Concrete employees pursuant to
Section 9(c) of the Act.26
Analysis
The General Counsel and the Charging Party allege that the Respondent violated
Section 8(b)(7)(C) of the Act by picketing the Charging Party’s facilities for a period of more than
30 days without filing a Section 9(c) petition for a representation election. The Respondent
concedes that it picketed the Charging Party’s facilities for more than a 30 day period, but

22 Jt. Exh. 19.
23 Jt. Exh. 20.
24 Jt. Exh. 21.
25 Rik Lineback v. Chauffeurs, Teamsters Local Union 414, Case No. 1:07–CV–144.
U.S.D.C., ND Indiana.
26 GC Exh. 1; Tr. 91, 198.
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denies that the picketing had a recognitional objective and contends that it was for the purpose
of obtaining a favorable settlement of grievances involving the transfer of truck 199 to the
Charging Party’s newly-acquired Klink Concrete facility and the assignment of a supervisor to
work normally performed by bargaining unit members.
A labor organization, who has not filed a Section 9(c) petition, violates Section
8(b)(7)(C) of the Act when it engages in picketing beyond a reasonable period of time not
exceeding 30 days against an employer with the objective of forcing the latter to recognize that
labor organization as the collective-bargaining representative of its employees. Local 3,
International Brotherhood of Electrical Workers, 325 NLRB 527, 528 (1998). Moreover,
“[r]ecognition or bargaining need not be the sole object for a violation to occur.” Local 282,
International Brotherhood of Teamsters), 332 NLRB 922, 929-930 (2000).
The material facts in this controversy are largely undisputed. The grievance process
proceeded uneventfully until the Step 3 meeting on April 2 in connection with Grievance 23076.
At that meeting, the parties partially resolved the grievance and narrowed the requested remedy
to 2 hours of back pay. The next day, Gerdes learned of the Klink Concrete acquisition and
immediately sought to incorporate Klink Concrete within the scope of bargaining unit work.
Huster rejected that request and told Gerdes that facility would remain separate from the
Charging Party’s other facility and remain nonunion. The Respondent responded by filing
Grievances 26198 and 26199, and a related information request.
At the April 20 Step 4 meeting, the parties deadlocked again over Grievance 23076,
even though the requested remedy was 2 hours of back pay and benefits. At no time during this
meeting did the Respondent insist that the remedy include an agreement that the Charging
Party refrain from similar conduct in the future. The parties then discussed Grievances 26198
and 26199. During the ensuing discussion, Gerdes rejected the Charging Party’s request to
either file for a unit clarification with the Board or submit the deadlocked grievances to
arbitration. Instead, he strongly implied the Respondent would seek economic recourse by
striking and/or picketing the Charging Party’s facilities at numerous locations throughout the
United States.
Huster’s faxed letter to Gerdes after the April 20 meeting attempted to create a context
in which the Respondent’s subsequent actions would be attributable to Grievances 26198 and
26199, since there was no reference to Grievance 23076. Gerdes’ tactical response on April 23
sought to place the context of a looming strike within the ambit of deadlocked Grievances 23076
and 26199. He informed Huster that a strike could be averted by the payment of 2 hours of
backpay and fringe benefits to Kunce, the return of truck 199 and, for the first time, an
agreement to refrain from such conduct in the future. Gerdes also reserved the right to take
further action with respect to Grievance 26198, a measure with no basis for it in the CBA.
If the Respondent’s refusal to arbitrate a 2 hour back pay claim and disagreement over
the utilization of a truck was unreasonable enough, the Respondent’s motivation for the
picketing became clear on May 10. On that date, after 16 days of picketing activity, Gerdes
responded to Bowden’s request for clarification of the Respondent’s position by insisting, for the
first time, on an agreement to refrain from similar conduct in the future. Gerdes’ actions clearly
escalated the controversy at a time when 11 employees had been on strike for over 2 weeks.
On May 31, the Respondent rejected the Charging Party’s offers to settle Grievances 23076
and 26199 on nonprecedent basis.
Given the implications of a strike that placed 11 employees out of work, the
Respondent’s position with respect to Grievances 23076 and 26199 was trivial in nature. The
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Board does not impose a test of proportionality or reasonableness to the exercise of protected
concerted conduct. In re Accel, Inc., 339 NLRB 1052, 1056 (2003). Nevertheless, cannot help
but wonder why the Respondent went to such lengths over 2 hours of backpay and the
deployment of one piece of equipment: its refusal to arbitrate based on evidence extrinsic to the
CBA (Brown’s statements in 2003); the timing of the Klink Concrete acquisition and the
immediate incorporation of Grievances 26198 and 26199 into the dispute; the escalation of its
demand late in day to request a cease and desist agreement; and its failure to file unfair labor
practice charges with the Board. All of these factors provide a clear indication of a recognitional
or organizational intent on the part of the Respondent. Moreover, while Grievance 26199 may
seem different from 26198 in the sense that 26199 dealt with the placement of a truck, the
object of such concern clearly related to concerns over the loss of bargaining unit work to the
Waterloo facility.
Under the circumstances, the object of the Respondent’s picketing for a period of 84
days was recognitional or organizational in nature and, therefore, unlawful. See Sheet Metal
Workers Union Local No. 3 (McCarthy Heating & Air), 253 NLRB 330, 334 (1980); Iron Workers
Local 10 (R & T Steel Constructors, Inc.), 194 NLRB 971, 973 (1972).
Conclusions of Law
1. Fidler, Inc., d/b/a Aggregate Industries – Central Region, the Respondent, is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Chauffeurs, Teamsters, and Helpers Local No. 414, a/w International Brotherhood of
Teamsters is a labor organization within the meaning of Section 2(6) of the Act.
3. By picketing the Charging Party’s facilities with a recognitional or organizational object
for more than 30 days without filing a petition under Section 9(c) of the Act, the Respondent
violated Section 8(b)(7)(C) of the Act.
4. By engaging in the conduct described above, the Respondent engaged in unfair labor
practices affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended27

27 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, Chauffeurs, Teamsters, and Helpers Local No. 414, a/w International
Brotherhood of Teamsters, of Fort Wayne, Indiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Picketing, causing anyone else to picket, or threatening to picket, any facilities
owned by Fidler, Inc., d/b/a Aggregate Industries.
(b) In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its union office and hiring hall
in Fort Wayne, Indiana, copies of the attached notice marked “Appendix.”28 Copies of the
notice, on forms provided by the Regional Director for Region 25, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current members and former members of the Respondent at any time
since April 24, 2007.
(b) 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. September 28, 2007
___________________________
Michael A. Rosas
Administrative Law Judge

28 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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Fort Wayne, IN
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT picket, or cause to be picketed, or threaten to picket Fidler, Inc. d/b/a Aggregate
Industries-Central Region where an object of that picketing is to force or require Fidler, Inc.
d/b/a Aggregate Industries-Central Region to recognize and bargain with us as the
representative of the employees of Klink Concrete, at a time when we are not recognized or
certified as the exclusive bargaining representatives of its employees, and where such picketing
has been conducted without a petition being filed under Section 9(c) of the Act within a
reasonable period of time, not to exceed 30 days from the commencement of such picketing.
WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of
their rights under Section 7 of the National Labor Relations Act.
CHAUFFEURS, TEAMSTERS, AND HELPERS
LOCAL NO. 414, a/w INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Federal Building, Room 238
Indianapolis, Indiana 46204-1577
Hours: 8:30 a.m. to 5 p.m.
317-226-7382.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 317-226-7413.
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