Irving Ready Mix, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 2011

357 N.L.R.B. 1272 (N.L.R.B. 2011)

1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 105
Irving Ready-Mix, Inc. and Chauffeurs, Teamsters &
Helpers, Local Union No. 414, a/w International
Brotherhood of Teamsters. Cases 25–CA–
031485, 25–CA–031490, and 25–CA–031548
October 31, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On December 17, 2010, Administrative Law Judge
Paul Bogas issued the attached decision.1 The Respond-
ent filed exceptions and a supporting brief, the Acting
General Counsel and the Union filed answering briefs,
and the Respondent filed reply briefs. The Acting Gen-
eral Counsel also filed cross-exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations 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, and conclusions2 and to adopt the recommend-
ed Order as modified.3

1 Since January 28, 2011, there has been in place an injunction under
Sec. 10(j) of the Act requiring the Respondent to recognize and bargain
with the Union and to restore the unit’s preexisting terms of employ-
ment. NLRB v. Irving Ready-Mix, Inc., 780 F.Supp.2d 747 (N.D. Ind.
2011), affd. 653 F.3d 566 (7th Cir. 2011).
2 The Acting General Counsel excepts to the judge’s finding that it
was unnecessary to decide whether the employees’ 2010 strike was or
became an unfair labor practice strike rather than an economic strike.
We agree with the judge. The benefit to the strikers of the Acting Gen-
eral Counsel’s proposed finding would be protection against permanent
replacement. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278
(1956). But here the Respondent had not permanently replaced the
strikers; indeed, it immediately accepted their unconditional offer to
return to work. The Acting General Counsel nevertheless suggests that,
absent a finding that the employees were unfair labor practice strikers,
the Respondent will be free to threaten or take unspecified action
against them, citing Allied Mechanical Services, 332 NLRB 1600
(2001). On the contrary, an employer is not free to retaliate against or
penalize employees for having engaged in a protected economic strike.
See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 346
(1938); Laidlaw Corp., 171 NLRB 1366, 1368–1369 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). Nothing in
Allied Mechanical Services is to the contrary.
3 As discussed below, we are affirming the judge’s findings that the
Respondent unlawfully withdrew recognition of and refused to bargain
with the Union. Because the parties’ last known contract has expired,
and the record does not indicate that the Respondent has since bar-
gained with the Union, we will add an affirmative bargaining require-
ment to the judge’s recommended Order.
The Respondent will be required to reimburse unit employees, with
interest compounded daily, for any expenses ensuing from its unlawful
failure to make required payments to employees’ retirement fund, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981). To the extent that an employee has
made personal contributions to the fund that have been accepted by the
fund in lieu of the Respondent’s delinquent contributions during the
period of the delinquency, the Respondent will reimburse the employ-
The judge found that the Respondent, a supplier of
ready-mix concrete, was not a construction industry em-
ployer within the meaning of Section 8(f) of the Act, and
that it violated Section 8(a)(5) and (1) by withdrawing
recognition of the Union upon the expiration of the par-
ties’ collective-bargaining agreement, refusing to bargain
with the Union, unilaterally changing unit employees’
terms and conditions of employment, and dealing direct-
ly with those employees. We affirm those findings, and
write here only to briefly address one of the Respond-
ent’s arguments on exceptions.
With respect to the Respondent’s status under Section
8(f), the judge found, and we agree, that this case falls
squarely under J. P. Sturrus, 288 NLRB 668 (1988),
where the Board found that a similar ready-mix concrete
supplier was not a construction industry employer within
the meaning of that section. We reject the Respondent’s
argument that J. P. Sturrus was wrongly decided because
the judge’s decision there cites two cases addressing
whether employers fell within the construction industry
proviso to Section 8(e) of the Act, dealing with so-called
“hot-cargo agreements”: Joint Council of Teamsters No.
42 (Inland Concrete Enterprises), 225 NLRB 209
(1976), and Teamsters Local 294 (Island Dock Lumber),
145 NLRB 484 (1983), enfd. 342 F.2d 18 (2d Cir.
1965).4
Although the judge’s decision in J. P. Sturrus could be
read to suggest that Inland Concrete and Island Dock
Lumber concerned both Section 8(e) and (f), see 288
NLRB at 671, the Board’s own analysis clearly focused
on the employer’s status under Section 8(f). See id. at
668. In any event, Inland Concrete and Island Dock
Lumber support the finding in J. P. Sturrus that the em-
ployer there was not covered by Section 8(f). In both of
those cases, the Board found that a supplier of ready-mix

ee, but the amount of such reimbursement will constitute a setoff to the
amount that the Respondent otherwise owes the fund.
We will, however, delete the recommended Order’s reference to
compound interest on payments to the fund because, as the judge’s
remedy properly provides, “any additional payments” owed to the fund
are calculated under Merryweather Optical Co., 240 NLRB 1213, 1216
fn. 7 (1979).
The Acting General Counsel, citing the Respondent’s unlawful di-
rect dealing with unit employees, requests that we modify the judge’s
recommended Order by requiring the Respondent to rescind its June 1
and June 14, 2010 letters to employees altering their terms and condi-
tions of employment. We find it unnecessary to make this modification
because the nullification of those letters is effectuated by the existing
cease-and-desist provisions in the Order.
4 Sec. 8(e) generally prohibits unions and employers from entering
into any agreement in which the employer agrees to refrain from deal-
ing in the products of another employer or to cease doing business with
another person. There is a specific proviso, however, exempting such
agreements “in the construction industry” relating to work to be done at
the construction site.
IRVING READY-MIX, INC. 1273
concrete was not an employer “in the construction indus-
try” under the proviso to Section 8(e). Those findings
are significant because Section 8(e) is broader in scope
than Section 8(f), which more narrowly covers employ-
ers “engaged primarily in the building and construction
industry” (emphasis added).5 Thus, insofar as Inland
Concrete and Island Dock Lumber held that a ready-mix
concrete supplier did not satisfy even the Section 8(e)
proviso, they support the finding in J. P. Sturrus that a
ready-mix supplier did not come within the more restric-
tive scope of Section 8(f).
Accordingly, we affirm the judge’s application of J. P.
Sturrus and his finding that the Respondent was not an
8(f) employer.6
AMENDED REMEDY
As noted, we have decided to add an affirmative bar-
gaining requirement to the judge’s recommended Order.
For the reasons set forth in Caterair International, 322
NLRB 64 (1996), we find that an affirmative bargaining
order is warranted in this case as a remedy for the Re-
spondent’s unlawful withdrawal of recognition. We ad-
here to the view that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) refusal
to bargain with the lawful collective-bargaining repre-
sentative of an appropriate unit of employees.” Id. at 68.
In several cases, however, the United States Court of
Appeals for the District of Columbia Circuit has required
the Board to justify, on the facts of each case, the imposi-
tion of such an order. See, e.g., Vincent Industrial Plas-
tics v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber
& Buillding Material v. NLRB, 117 F.3d 1454, 1462
(D.C. Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d
1243, 1248 (D.C. Cir. 1994). In Vincent, supra, the court
summarized its requirement that an affirmative bargain-

5 See Carpenters (Rowley-Schlimgen), 318 NLRB 714, 715–716
(1995); see also Los Angeles Building Trades Council (Church’s Fried
Chicken), 183 NLRB 1032, 1036–1037 (1970) (employer engaged
primarily in selling fried chicken was nonetheless an employer “in the
construction industry” under Sec. 8(e) with respect to the construction
of its retail stores).
6 We agree with the judge that J. P. Sturrus was not overruled by ei-
ther Techno Construction Corp., 333 NLRB 75 (2001), or Bell Energy
Management Corp., 291 NLRB 168 (1988). However, we do not rely
on the judge’s citation to Mastronardi Mason Materials, 336 NLRB
1296, 1296 fn. 1 (2001), enfd. 64 Fed.Appx. 271 (2d Cir. 2003), where
the 8(f) versus 9(a) issue was not presented to the Board, or his citation
to Engineered Steel Concepts, 352 NLRB 589, 602 (2008), a case de-
cided by the two-member Board. See New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635 (2010).
Member Hayes agrees with his colleagues and the judge that the Re-
spondent was not an employer engaged in the building and construction
industry for purposes of Sec. 8(f). However, he finds that the issue of a
ready-mix concrete supplier’s coverage under 8(f) remains subject to a
case-by-case examination of particular facts relevant to that employer’s
activities.
ing order “must be justified by a reasoned analysis that
includes an explicit balancing of three considerations: (1)
the employees’ Section 7 rights; (2) whether other pur-
poses of the Act override the rights of employees to
choose their bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the viola-
tions of the Act.” Id. at 738. Although we respectfully
disagree with the court’s requirement, for the reasons set
forth in Caterair, supra, we have examined the particular
facts of this case and find that a balancing of the three
factors warrants an affirmative bargaining order.7
(A) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s withdrawal of recognition, refusal to continue
bargaining with the Union, unilateral action, and direct
dealing with employees. At the same time, an affirma-
tive bargaining order, with its attendant bar to raising a
question concerning the Union’s continuing majority
status for a reasonable time, does not unduly prejudice
the Section 7 rights of employees who may oppose con-
tinued union representation because the duration of the
order is no longer than is reasonably necessary to remedy
the ill effects of the violations. To the extent such oppo-
sition may exist, moreover, it may be at least in part the
product of the Respondent’s unfair labor practices.
(B) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of discouraging support for the Union. It also ensures
that the Union will not be pressured by the Respondent’s
withdrawal of recognition to achieve immediate results at
the bargaining table following the Board’s resolution of
its unfair labor practice charges and issuance of a cease-
and-desist order.
(C) Finally, a cease-and-desist order, alone, would be
inadequate to remedy the Respondent’s refusal to bargain
with the Union in these circumstances because it would
permit a decertification petition to be filed before the
Respondent has afforded the employees a reasonable
time to regroup and bargain through their representative
in an effort to reach a successor collective-bargaining
agreement. Such a result would be particularly unfair in
circumstances such as those here, where the Respond-
ent’s unfair labor practices were of a continuing nature
and were likely to have a continuing effect, thereby un-
dermining employee support for continued union repre-

7 Member Hayes agrees with the D.C. Circuit that a case-by-case
analysis is required to determine if an affirmative bargaining order is
appropriate. He finds that imposing a bargaining order here is appropri-
ate under that analysis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
sentation. We find that these circumstances outweigh the
temporary impact the affirmative bargaining order will
have on the rights of employees who might oppose con-
tinued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Irving
Ready-Mix, Inc. of Fort Wayne and Kendallville, Indi-
ana, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 2(a), and reletter
the following paragraphs accordingly.
“(a) Upon request, recognize and bargain collectively
with the Union as the exclusive representative of its em-
ployees with respect to wages, hours, and other terms
and conditions of employment, and if an agreement is
reached, embody such agreement in a signed document.”
2. Substitute the following for relettered paragraph
2(d).
“(d) Make all contributions, including any additional
amounts due, that it was required to make to the employ-
ees’ retirement fund, but which it has not made since
January 26, 2010, and reimburse unit employees, with
interest as provided in the remedy section of the judge’s
decision as modified in this decision, for any expenses
resulting from its failure to make the required payments.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we 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.

WE WILL NOT fail and refuse to recognize and bargain
in good faith with the Chauffeurs, Teamsters & Helpers,
Local Union No. 414, a/w International Brotherhood of
Teamsters (the Union) as the exclusive Section 9 collec-
tive-bargaining representative of our employees in the
bargaining unit comprised of all full-time and part-time
ready-mix drivers employed at our facilities in Fort
Wayne, Indiana, and Kendallville, Indiana.
WE WILL NOT withdraw recognition from the Union as
the exclusive collective-bargaining representative of the
unit employees.
WE WILL NOT unilaterally change unit employees’
terms and conditions of employment without giving the
Union notice and an opportunity to bargain over those
changes.
WE WILL NOT bypass the Union and deal directly with
unit employees regarding terms and conditions of em-
ployment.
WE WILL NOT announce to employees that we no long-
er recognize the Union as the collective-bargaining rep-
resentative of unit employees and/or that we are chang-
ing unit employees’ terms and conditions of employment
without first notifying, and bargaining in good faith with,
the Union.
WE WILL NOT interrogate applicants for bargaining unit
positions about their willingness to work in the event of a
strike by the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, upon request, recognize and bargain collec-
tively with the Union as your exclusive representative
with respect to wages, hours, and other terms and condi-
tions of employment, and if an agreement is reached,
embody such agreement in a signed document.
WE WILL restore, honor, and continue the terms and
conditions set forth in the contract with the Union that
was effective by its terms from June 1, 2005, through
May 31, 2010, until the parties sign a new agreement or
good-faith bargaining leads to a valid impasse, or the
Union agrees to changes.
WE WILL make whole the unit employees and former
unit employees for any and all loss of wages, overtime
pay, and other benefits incurred as a result of our unlaw-
ful unilateral changes, with interest.
WE WILL make all contributions, including any addi-
tional amounts due, that we were required to make, but
did not make since January 26, 2010, to the unit employ-
ees’ retirement fund, and WE WILL reimburse unit em-
ployees, with interest, for any expenses ensuing from our
failure to make the required payments.
IRVING READY-MIX, INC.
IRVING READY-MIX, INC. 1275
Belinda J. Brown, Esq. and Frederic R. Roberson, Esq. for the
General Counsel.
Scott Hall, Esq. (Hall & Gooden), of Fort Wayne, Indiana, for
the Respondent.
Geoffrey S. Lohman, Esq. (Fillenwarth, Dennerline, Groth &
Towe), of Indianapolis, Indiana, for the Charging Party.

DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Fort Wayne, Indiana, on September 29 and 30, 2010. Chauf-
feurs, Teamsters & Helpers, Local Union No. 414, a/w Interna-
tional Brotherhood of Teamsters (the Union) filed the charge in
Case 25–CA–031485 on June 2, 2010, the charge in Case 25–
CA–031490 on June 4, 2010, and the charge in Case 25–CA–
031548 on July 26, 2010. On July 21, 2010, the Union filed the
amended charge in Case 25–CA–031490. The Regional Direc-
tor of Region 25 of the National Labor Relations Board (the
NLRB or the Board) issued the order consolidating cases, con-
solidated complaint and notice of hearing (the complaint) on
August 26, 2010. The complaint alleges that Irving Ready-
Mix, Inc. (the Respondent or the Company) failed to bargain in
good faith with the Union in violation of Section 8(a)(5) and (1)
of the National Labor Relations Act (the Act) by, inter alia,
engaging in bargaining tactics in furtherance of a plan to re-
move the Union and replace the bargaining unit employees,
withdrawing recognition from the Union as the exclusive col-
lective-bargaining representative of unit employees, and unilat-
erally reducing employees wage rates and benefits. The com-
plaint also alleges that the Respondent violated Section 8(a)(1)
by, inter alia, announcing to an applicant for employment that
the Company planned to remove the Union and quickly replace
the bargaining unit employees, and by telling employees that it
was withdrawing recognition from the Union and changing the
terms and conditions of employment of unit employees. The
Respondent filed a timely answer in which it denied that it had
committed any of the alleged violations of the Act. The Re-
spondent argues, inter alia, that its obligation to recognize, and
bargain with, the Union ceased when the collective-bargaining
agreement reached its expiration date because the Company is
an employer in the building and construction industry whose
bargaining relationship with the Union is governed by Section
8(f), not Section 9, of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Respondent, I make
the following findings of fact and conclusions of law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, delivers ready-mix concrete
from its facilities in Fort Wayne, Indiana, and Kendallville,
Indiana, where it annually sells and ships goods valued in ex-
cess of $50,000 directly to points outside the State of Indiana,
purchases and receives goods valued in excess of $50,000 di-
rectly from points outside the State of Indiana, and derives
gross revenues in excess of $500,000. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent has a total of four locations at which it pro-
duces and loads ready-mix concrete for sale and delivery to
customers. Ready-mix concrete (ready-mix) is a mixture of
cement, stone, sand, and various additives. The particular mix-
ture that the Respondent prepares varies based on the custom-
er’s specifications. The Respondent uses its own employee-
drivers to deliver wet ready-mix to the customers’ jobsites. The
Respondent also sells and delivers a number of other items that
customers use in conjunction with ready-mix, including wire
mesh, re-bar, expansion joints, tiles, sealers, and curing com-
pounds. Tom Irving (T. Irving) is the Respondent’s president,
Jerry Irving (J. Irving), is its vice president, and Judy
McKeever (J. McKeever) is its secretary-treasurer. Those three
individuals are equal-part owners of the Respondent. Derek
Ray is the Respondent’s general manager and has responsibility
for the day-to-day operation of its facilities, but is generally not
involved with the financial aspects of the business.
The employees who drive the Respondent’s ready-mix trucks
have been represented by the Union for a period beginning in
the 1970s and continuing at least through May 31, 2010. At the
time relevant to this litigation there were approximately 23 such
drivers. As of 2010, the Union and the Respondent had been
parties to four consecutive collective-bargaining agreements—
each of 5 years’ duration—without any time lapses between
those contracts. There is no evidence that the Union’s repre-
sentative status has ever been set forth in a certification issued
by the Board. George Gerdes is the Union’s president and was
on the Union’s negotiating team for the last four contracts and
also during unsuccessful negotiations for a new contract in May
2010. He is an employee of the Union.
The most recent collective bargaining agreement between the
Union and the Respondent was effective by its terms from June
1, 2005, to May 31, 2010, and applied to the Respondent’s full-
time and part-time ready-mix drivers. Under that contract, the
unit employees, inter alia, were paid $20.82 per hour, received
overtime pay for work in excess of 8 hours in a day or per-
formed before 6 am or after 5 p.m., had 8 paid holidays, and
earned between 7 and 18 days of paid vacation annually. The
contract also provided that the Respondent would contribute
$75 per week to the employees’ retirement fund for each unit
employee who worked during that week.
In May 2010, the Union and the Respondent engaged in ne-
gotiations for a successor contract, but the parties did not reach
a new agreement. On June 1, 2010—the day after the last con-
tract’s expiration date—the Respondent ceased to recognize the
Union and announced to employees that it was unilaterally
implementing new terms and conditions of employment for its
ready-mix truckdrivers.
B. Work of the Ready-Mix Truckdrivers
As is discussed in the analysis section of this decision, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
Board has held that ready-mix concrete delivery companies and
their drivers are not engaged in the building and construction
industry within the meaning of Section 8(f), and that unions
who have bargaining relationships with such companies are
therefore Section 9 representatives, not limited Section 8(f)
representatives. J. P. Sturrus Corp., 288 NLRB 668, 671–672
(1988); see also Mastronardi Mason Material Co., 336 NLRB
1296, 1306 (2001), enf. 64 Fed. Appx. 271 (2d Cir. 2003). The
Respondent contends that the Board decided Sturrus erroneous-
ly, and that consideration of the duties of the Company’s ready-
mix drivers should lead me to conclude that those employees
are engaged in the building and construction industry for pur-
poses of Section 8(f). The basic facts relative to this issue are
discussed below.
The type of work performed by the Respondent’s ready-mix
drivers does not differ from that performed by ready-mix driv-
ers generally. This is established by the record as a whole, and
is supported even by the testimony of the Respondent’s own
witnesses. See Transcript at page(s) (Tr.) 234 (G. Miller testi-
fies that there was no “difference” between the duties per-
formed by the Respondent’s ready-mix drivers and those per-
formed by drivers from the other ready-mix companies) and
Tr. 294 (S. Byler testifies that the Respondent’s ready-mix
drivers do not do anything that other ready-mix drivers do not
do). The primary duties of the Respondent’s ready-mix drivers
are: picking up the load of wet ready-mix at one of the Re-
spondent’s facilities; driving the truck carrying the ready-mix
to the customer’s job site; unfolding the chutes on the truck;
discharging the wet ready-mix cement down the chutes and into
whatever space or spaces the customer directs; washing the
truck after the ready-mix has been discharged; and then driving
back to the Respondent’s facility. Typically the customer has
the driver discharge the ready mix into a form or mold that the
customer has constructed for the purpose of fabricating a con-
crete wall, driveway, building foundation, or other item. In
some instances, the customer has a driver discharge the ready-
mix into a bucket or other receptacle that the customer itself
then uses to move the concrete to the location at the jobsite
where it is needed. Wet ready-mix cannot be warehoused by
the customer because it begins to permanently harden as soon
as it is leaves the truck. In order to place the ready-mix
throughout the space selected by the customer, the driver is
typically required to control the rate at which the ready-mix
flows and to move the chute and/or the truck itself while dis-
charging the mixture. The driver is also sometimes required to
interrupt the discharge of the ready-mix so that the customer
can perform necessary work or the driver can move the truck to
a different location at the jobsite. Sometimes, the location
where the ready-mix is to be poured cannot be reached using
the regular chutes and for this reason the trucks carry extension
chutes that the driver may be required to attach.
In most instances the driver will remain inside the truck dur-
ing the entire time that the ready-mix is being discharged and
will only exit when it is time to wash the truck. He or she uses
controls inside the truck to determine the rate at which the
ready-mix is discharged and the movement of the chute. On
rare occasions, the driver finds it advantageous to observe the
discharge process from outside the truck, and in those instances
he or she can use a set of controls on the exterior of the truck to
control the rate of discharge and movement of the chute. The
ready-mix truck also carries a supply of water, and there are
controls inside the truck that allow the driver to add this water
to the ready-mix when either the truck’s meter, or the customer,
indicate that the ready-mix is not wet enough. The addition of
this water cannot be accomplished from outside the truck. In
addition to delivering the ready-mix itself, the driver sometimes
delivers related items sold by the Respondent such as wire
mesh or re-bar. Immediately after discharging the concrete, the
driver usually washes the truck at the customer’s jobsite to keep
any ready-mix from hardening on it. Then the driver returns
the truck to the Respondent’s facility.
After the ready-mix is discharged from the truck, the cus-
tomers’ own employees use various tools to move the ready-
mix within the form, spread it evenly, smooth it out, and other-
wise “finish” the concrete. It is not the job of the ready-mix
driver to perform or assist with any of these activities. The
ready-mix driver will generally be washing the truck or driving
back to the ready-mix facility while these finishing activities
are performed by the customer’s employees. In rare instances,
ready-mix drivers, including those employed by the Respond-
ent, will voluntarily assist a customer with some aspect of the
finishing process. However, the customer does not pay the
Respondent for this assistance and the ready-mix driver is not
required to render it. Similarly, a ready-mix driver will on rare
occasions voluntarily assist a customer by using the truck’s
hose to rinse off the customer’s tools.
The Respondent’s ready-mix drivers spend approximately 34
to 39 percent of their worktime at the Respondent’s facilities
waiting for a load, wiping down the truck, or helping around
the plant, 6 percent of their work time receiving ready-mix
loads with the trucks, 25 percent of their work time driving to
and from the customers’ jobsites, and 30 to 35 percent of their
work time at the customers’ jobsites. Of the time that drivers
spend at customers’ jobsites, approximately 70 percent is used
to discharge the ready-mix, and approximately 30 percent is
used to wash the truck.
The jobsites to which the ready-mix drivers deliver are out-
doors approximately 98 percent of the time and, as a result, the
drivers’ work is subject to weather conditions. If it is raining,
or if the temperature is below freezing, the Respondent general-
ly cannot deliver ready-mix and the drivers are unable to work.
The drivers usually work steadily during the summer, but do
not have much work in January, February, and March.
Each of the Respondent’s ready-mix drivers is required to
have a Class B commercial driver’s license (CDL). At regular
intervals the driver is required to take and pass a physical ex-
amination in order to retain the CDL. The evidence shows that
most of the Respondent’s drivers are long-time employees of
the Company.1 Under the last contract between the Union and
the Respondent, layoff and recall decisions generally depend on
employee seniority and laid-off workers who have accumulated
at least a year of seniority retain their health insurance benefits

1 Gene Miller had been a driver with the Respondent for over eight
years at the time of trial and was still near the bottom of the seniority
list. David Garn has been a driver with the Respondent for 32 years.
IRVING READY-MIX, INC. 1277
for a period of time. The last contract requires that new em-
ployees become members in good standing of the Union “on or
after the thirtieth (30th) day following the beginning of [their]
employment.”
C. The Respondent’s Financial Circumstances During the
Period Leading up to Contract Negotiations and the
Cessation of Retirement Fund Contributions
The Respondent’s last profitable fiscal year was the one end-
ing in September 2005. At that time, the Respondent possessed
cash reserves of between $2.5 and $3 million. Those cash re-
serves were exhausted by some point in 2009, but the Respond-
ent continued to operate using a line of credit from a bank and
cash infusions from its owners. The Respondent’s total sales
have declined from $9,790,599.35 in fiscal 2008, to
$6,277,361.00 in fiscal year 2009, and $5,759.185.77 in fiscal
year 2010. In December 2009, the bank that was providing the
line of credit told the Respondent that it was terminating the
arrangement, but agreed to extend the credit through July or
August 2010. The Respondent has attempted to find another
bank willing to provide it with credit, but at the time of trial had
not succeeded in doing so.
Since 2008, the Respondent has not made the retirement
fund contributions required by its last contract with the Union.
Pursuant to that contract, the Respondent was responsible for
contributing $75 per week for each unit employee who worked
during that week. On December 4, 2009, the Respondent pro-
vided the Union with a report showing that, in 2008, the Com-
pany had failed to make required contributions totaling
$99,225. A second report, provided to the Union on January
10, 2010, showed that the Company had failed to make re-
quired contributions of $70,200 in 2009.
On March 31, 2010, the Respondent and the Union met to
discuss the Company’s failure to make the retirement fund
contributions. This was about 6 weeks before the Respondent
and the Union began negotiations for a contract to replace the
one that was expiring after May 31, 2010. Present at the March
31 meeting for the Respondent were T. Irving and the Re-
spondent’s operations manager, Mark McKeever (M.
McKeever). Present for the Union were Gerdes and David
Garn, a truck driver who has been employed by the Respondent
for 32 years. Also present were two of the Respondent’s finan-
cial advisors who were familiar with the retirement fund. The
Respondent stated that it did not have the cash to make the
retirement fund payments. It also stated that the bank would
not loan the Respondent any money for cash flow expenditures
such as the retirement fund contributions and was insisting that
the Respondent refrain from making payments to the fund. The
Respondent also stated that it had a plan to make the back con-
tributions, but was waiting for the Internal Revenue Service
(IRS) to approve the plan.
At the March meeting, Gerdes asked what would happen re-
garding the unpaid retirement fund contributions if the Re-
spondent filed for bankruptcy. Gerdes’ understanding was that,
in bankruptcy, the unpaid contributions would be one of the
“top secured debts”. Gerdes also asked for assurances that the
Respondent was not asking the IRS for a waiver of the obliga-
tion to make the unpaid retirement fund contributions. The
Respondent’s officials stated that the Company was not seeking
such a waiver.
D. Contract Negotiations in 2010
The Union, by letter dated March 4, 2010, notified the Re-
spondent that the collective-bargaining agreement was sched-
uled to terminate on May 31, 2010, and offered to meet and
confer for the purpose of negotiating a new contract. Gerdes
followed this up with an April 27, 2010, letter asking that M.
McKeever (operations manager) contact the Union as soon as
possible to schedule negotiations and advising that Gerdes
would not be able to meet on May 25, 26, and 27. The letter
also asked the Respondent to make ready-mix drivers Tom
Bryan, Andy Fisher, and Garn available to participate in the
negotiations. The Respondent did not answer Gerdes’ letters
until approximately May 10, when attorney Scott Hall, who the
Company had hired in December 2009 to handle the 2010 ne-
gotiations, contacted Gerdes by phone. The parties subsequent-
ly met to negotiate on three occasions in May.
May 17 Session
The parties’ first negotiating session was on May 17 at the
Union’s offices. The negotiators for the Union were Gerdes,
Bryan, Fisher, and Garn. The Respondent’s negotiating team
consisted of Ray, Hall, and M. McKeever. As stated above,
Ray had limited involvement with the Company’s finances and,
although he was aware in general terms that the Company was
in financial distress, the owners did not disclose the extent of
that distress to him prior to the start of negotiations. Hall and
M. McKeever were not called to testify, and the record does not
reveal how much they knew about the Respondent’s financial
problems.
At the May 17 session, the Union presented a comprehensive
written bargaining proposal, but the Respondent did not present
any proposals. The Union’s proposal included: a 60-cent-per
hour wage increase for each year of the contract; a 3-year con-
tract term; a requirement that the Respondent provide 28-days’
notice of the Union contract to potential buyers or transferees—
up from 20-days’ notice in the last contract; an increase in the
paycheck deduction for an employee’s union initiation fee from
$20 to $50 per week until the fee is paid; the deletion of con-
tract language limiting the Union’s use of informational picket-
ing; the elimination of a requirement that union representatives
who visit the Respondent’s facility advise management of their
presence and of the identity of any employees being visited; a
change in the amount of annual vacation for an employee with
5 years of service from 2 weeks to 12 days; an increase in the
minimum number of hours of pay to be received by employees
who the Respondent orders to report to work on a Monday; a
decrease in the allowable complement of part-time drivers from
25 percent of the number of ready-mix trucks to 10 percent of
the number of ready-mix trucks; and, an increase in the number
of weeks that the Respondent would be required to continue the
health insurance of unit employees during a period of layoff.
The parties did not reach agreement on any element of the
Union’s May 17 proposal. The next bargaining session was
scheduled for May 19.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
May 19 Session
The Respondents met on May 19 at the Union’s offices. As
at the last bargaining session, Gerdes, Bryan, Fisher, and Garn,
were present for the Union, and Ray, Hall, and M. McKeever
were present for the Respondent. This time the Respondent
presented a written bargaining proposal. That proposal sought
significant reductions in employees’ benefits and entitlement to
overtime pay, but did not include a general wage proposal. The
Respondent also presented employees with plan documents for
health insurance options that the Company provided to nonunit
employees and to which the Respondent was proposing to
switch the unit employees. Ray helped prepare this proposal.
J. McKeever had been working on developing employer pro-
posals for several weeks prior to this, but was unable to say
who exactly put together the particular proposal that was pre-
sented on May 19. J. McKeever stated that prior to May 19,
she had not had a meeting with the other owners and the nego-
tiating team to discuss what the Respondent should offer the
employees. J. McKeever did not explain why such a meeting
had not taken place given that the Respondent was aware for at
least 5 months that negotiations were approaching and had
retained attorney Hall in December 2009 to assist with those
negotiations. As of May 19, the Respondent’s owners had not
yet fully apprised Ray of the extent of the Respondent’s finan-
cial difficulties.
The Respondent’s May 19 proposal included: deletion of the
entire contract article regarding seniority and employee enti-
tlements based on seniority; an increase in the number of hours
that an employee had to work in order to qualify for full vaca-
tion benefits; deletion of the policy of paying employees for
unused vacation time and substituting a policy under which
employees would forfeit vacation time not used by the end of
the year; limitation of overtime pay to hours worked in excess
of 40 hours per week, and discontinuation of the policy of pay-
ing overtime rate for time worked in excess of 8 hours on a
particular day and for any time worked before 6 am or after 5
pm; elimination of the requirement that the Respondent notify
employees of mandatory start times by 8:30 am on the day in
question, and instead allowing the Respondent to wait until
9:30 am to notify employees; reduction in the minimum num-
ber of hours of pay provided to employees the Respondent
orders to report to work on workdays from Tuesday to Friday;
elimination of both the employees’ entitlement to pay for time
spent taking physical examinations required to maintain their
CDLs, and to employer-reimbursement of the cost of those
examinations; reduction of the Respondent’s contributions to
the employee retirement fund from a guaranteed $75 per em-
ployee/per week, to $1.50 for each straight time hour worked
per employee/per week (for a total of $1.50 to $60 per employ-
ee/per week); replacement of the existing health and welfare
plan with the plans that the Respondent offered to nonunit em-
ployees; elimination of the unit employees’ entitlement to con-
tinue receiving health insurance during weeks when they are on
lay-off status or work less than 4 hours during the week; elimi-
nation of the contract section requiring that, in the event of a
transfer of ownership, the new owners be required to abide by
the contract; elimination of a contract section requiring the
Respondent to give new owners advance notice of the Union
contract; substitution of mandatory strike notice by tele-
gram/wire with notice by current communication methods; and
modification of the substance abuse policy to harmonize it with
current governmental standards.
At the May 19 session, the Respondent told the Union that
the Company needed to reduce costs. It presented the Union
with documents showing declines in the Company’s sales of
ready-mix, and in the numbers of hours being worked by its
ready-mix drivers. The information presented showed, inter
alia, that the Respondent’s production of ready mix had de-
clined from 160,444.25 cubic yards in 2003 to 71,821.50 cubic
yards in 2009. However, the Respondent did not state, either
on May 19 or later, that its proposed reductions in benefits were
based on an inability to pay. At the session, Gerdes mentioned
that he had heard the Respondent was having trouble with the
bank.
The Union offered to make the health insurance plan under
the Teamsters welfare fund available to the Respondent. Par-
ticipation in that plan was offered as a way to help the Re-
spondent reduce its costs. The Respondent’s costs under the
Teamsters’ welfare fund plan would be lower than those for the
health insurance provided under the current contract, but great-
er than those under the plans that the Respondent had proposed.
The Union stated, either at this session or one of the other two,
that it wanted the Respondent to make its 2008 retirement fund
contributions by June 30, 2010, and its 2009 contributions a
month later.
At this meeting, the parties reached agreement on a contract
duration of 3 years, on updating the substance abuse policy, and
on replacing wire/telegram strike notification with notification
by facsimile.
During the meeting, Gerdes asked Ray “what is your num-
ber?” Ray apparently understood Gerdes to be asking the Re-
spondent to state the maximum average hourly cost that man-
agement would agree to incur in wages and benefits for a unit
employee. Ray did not provide Gerdes with the Respondent’s
“number” at the May 19 meeting. The parties scheduled their
next bargaining session for May 24, 2010.

Respondent Cancels May 24 Meeting,
Ray Meets with Owners on May 25 and
Prepares for Possible Strike

A few hours before the May 24 negotiating session was
scheduled to begin, Hall called Gerdes to cancel that session.
Hall told Gerdes that the Respondent did not have its offers
ready, and that the offers it did have would anger Gerdes. Hall
suggested that the parties reschedule the session for Friday,
May 28—3 days before the current contract was set to expire.2
The parties agreed to meet on May 28.
On May 25, Ray met with the Respondent’s owners—T. Ir-
ving, J. Irving, and J. McKeever. Ray set up this meeting in
part to seek an answer to Gerdes’ question about the Respond-
ent’s “number.” Prior to when Gerdes posed that question, Ray
had not tried to calculate a specific amount of labor cost sav-

2 Gerdes had previously told the Respondent that he could not meet
on May 25, 26, and 27. At trial, Gerdes stated that due to a change in
his schedule he became available on those dates, but he did not recall
informing the Respondent of that availability.
IRVING READY-MIX, INC. 1279
ings that the Respondent would demand in the new contract.
Ray concluded, based on information he received from J.
McKeever, that the Respondent’s average hourly labor cost,
after one took into account benefits as well as wages, was $43
per unit employee. The participants at the May 25 meeting
decided that they wanted to decrease that figure to $31 or
$32—a reduction of $12 or $11. At the May 25 meeting, Ray
and the Respondent’s owners developed two alternative pro-
posals, each of which brought the average per hour labor costs
for unit drivers close to the $31 figure. Both of these proposals
included significant additional cuts beyond those the Respond-
ent had proposed on May 19. The Respondent referred to these
new options as proposal A and proposal B.
The participants at the May 25 meeting also discussed prepa-
ration for a possible strike by unit employees. The written
agenda for the meeting indicates that the preparations discussed
included hiring drivers, notifying customers, and prioritizing
deliveries. Ray did, in fact, begin interviewing applicants for
bargaining-unit positions in late May. One of the applicants
that Ray interviewed was Greg Walker. Walker drove semi-
trailers for another employer, but also had experience driving
ready-mix trucks as a member of the Union. Walker testified
that he asked Ray whether the position was full-time and that
Ray responded, “Well, we are trying to boot the Union out, and
we are looking to see how fast we can replace our drivers.”
Walker testified that he decided not to pursue employment with
the Respondent because he was unwilling to cross a picket line.
Walker did not know Ray prior to applying for work with the
Respondent. Ray denied making the comment reported by
Walker. According to Ray’s testimony, what he told Walker
and other prospective replacement drivers was that the Compa-
ny was “in the midst of negotiations” with the Union and did
not “know which way it is going to go, whether we are going to
have a ratified contract, or we are going to end up with a
strike.” Ray testified that he asked prospective ready-mix driv-
ers whether they would be willing to drive for the Respondent
during a strike by the incumbent unit employees.
Based on my consideration of the demeanor of the witnesses
and the record as a whole, I find that Ray’s account of the
statements he made to Walker and other applicants was more
credible that the account given by Walker. In reaching this
conclusion, I considered the fact that Walker is a nonemployee
of the Respondent who is not a current union member, and had
nothing obvious to gain by making untrue accusations against
the Respondent, while Ray is a management official with an
interest in the outcome of this proceeding. However, Ray’s
testimony on this point was clear, certain, and facially plausi-
ble. I found it less plausible that Ray would, as Walker
claimed, divulge an unlawful plan to “boot” the Union to an
individual who he did not know and who had previously
worked as a member of the Union. In addition, Ray’s account
is more consistent with other evidence. For example, Walker
stated that he did not pursue employment with the Respondent
because he did not want to cross a picket line, but in his ac-
count Ray did not advise Walker that it would be necessary to
cross a picket line or defy a strike, whereas in Ray’s account
Ray discussed working during a strike by the union employees.
In addition, according to Walker, Ray’s plan included “see[ing]
how fast we can replace our drivers,” but the record shows that
the Respondent continued to offer employment to all the union
employees and promptly accepted the striking employees’ offer
to return to work. I was left with the impression that Walker’s
account, while not intentionally misleading, was also not care-
fully remembered, and was in general a bit pat. For these rea-
sons, I found Ray’s account more credible than Walker’s.

May 28 Session

The parties met on May 28 at the Union’s offices. Ray, Hall,
and M. McKeever attended for the Respondent. This time only
Gerdes and Garn attended for the Union because the Respond-
ent had assigned work to Bryan and Fisher that precluded their
attendance. At the meeting, the Respondent’s negotiators pre-
sented proposal A and proposal B to the Union. The Union
negotiators had not been shown either proposal previously.
Proposal A generally preserved the unit employees’ current
wage rate at $20.82 per hour, but did not provide any wage
increases during the term of the contract, and created a $16-per-
hour wage rate for “inexperienced” drivers. In addition, pro-
posal A slashed a wide array of employee benefits. Under the
last contract, unit employees had 8 paid holidays and between 7
and 18 days of paid vacation annually, but under proposal A the
Respondent would completely eliminate all holiday and vaca-
tion pay for the unit employees. In addition, under proposal A,
the Respondent would end the employer’s obligation to con-
tribute to the unit employees’ retirement fund. This was a re-
duction not only from the $75 per week/per employee contribu-
tion that the unit employees were entitled to under the old con-
tract, but also a reduction from the Respondent’s May 19 pro-
posal to make contributions of $1.50 to $60 per week/per em-
ployee. In addition to these cuts, proposal A included nearly all
the reductions in benefits and other changes that the Respond-
ent proposed on May 19, including the limitations on overtime
pay discussed above.
The Respondent’s proposal B, on the other hand, reduced the
pay of incumbent unit employees from $20.82 per hour to $18
per hour, but preserved more of their benefits. Under this pro-
posal the unit employees would continue to receive holiday
pay, although the number of paid holidays would be reduced
from eight to seven. The unit employees would have a vacation
benefit, but the maximum number of paid vacation days one
could earn was reduced by 2 to 3 days annually depending on
the employees’ years of service. Proposal B also included es-
sentially all of the other benefit reductions and changes that the
Respondent proposed on May 19.
The Respondent told the Union that the parties could talk
about either proposal individually, but could not mix-and-
match elements from the two proposals to create a new pro-
posal. Gerdes asked if this was the Company’s last, best, and
final offer, and the Respondent’s negotiators answered “no.”
Gerdes then asked if the Respondent would agree to extend
the existing contract for 1 week to give the Union an opportuni-
ty to review the two proposals, determine their dollar cost, and
assess how each option would affect unit employees. The May
28 meeting took place on a Friday, and the existing contract
was set to expire at midnight the following Monday, May 31.
The Respondent refused Gerdes’ request for an extension.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
When the Respondent did this, Gerdes became agitated and told
the Respondent’s negotiators to leave the Union’s offices. He
stated that the Company had been mismanaged, that “negotia-
tions were over,” and that he was “probably going to put [the
Company] out of business.” The Respondent’s negotiators left
at that time. There have been no further negotiations between
the Respondent and the Union.
Ray, the only member of the Respondent’s bargaining team
who was called as a witness, testified, credibly in my view, that
he had not bargained with no intention of reaching an agree-
ment. He stated that on May 28 he intended to discuss how the
Respondent had arrived at proposal A and proposal B, but that
he did not have the opportunity to do so before Gerdes ended
the meeting. Gerdes testified credibly, that when he said that
“negotiations were over,” what he meant (but did not say), was
that negotiations were “over for that day.” Since May 28, nei-
ther party has contacted the other to schedule further negotia-
tions. However, Gerdes testified that he filed the unfair labor
practices charges against the Respondent in hopes of forcing
the Company to return to the bargaining table.

May 31 Union Meeting

On May 31, Gerdes and two other union officers met with
the unit employees at the Union’s facilities to discuss the Re-
spondent’s proposals. Approximately 21 of the 23 unit mem-
bers were present. Gerdes discussed the Respondent’s two
proposals, and indicated that he considered them both com-
pletely unsatisfactory. He said, “I see no need to vote for this
because there is no way that we are going accept either one.”
Then he asked “Is there any objection to that?” No one object-
ed, and the unit members did not vote on proposal A or pro-
posal B. Two drivers asked if the Union could continue negoti-
ations, but the record does not show how Gerdes responded.
Gerdes stated that he had authority to initiate a strike pursuant
to the strike vote that the unit members had taken before the
start of negotiations.3
E. Unilateral Changes and Initiation of Strike
By May 31, the Respondent had decided to unilaterally
change the health insurance it was providing to the unit em-
ployees. In a letter prepared by Ray and signed by J.
McKeever on May 31, the Respondent informed its insurance
agent of the Respondent’s decision to cease providing unit em-
ployees with the insurance plan described in the collective-
bargaining agreement and instead offer them participation in
the two health insurance plans that were available to the Com-
pany’s nonunit employees. The letter stated that from June 1 to
16 the unit employees would have the opportunity to choose to
enroll one of the two plans, and that any unit employee who did

3 I do not credit Bryan’s testimony that Gerdes stated that if a unit
employee crossed the picket line that employee would no longer be
able to drive a ready-mix truck in northeast Indiana. Tr. 127. Bryan, a
driver who resigned his union membership and crossed the picket line
during the strike, was palpably hostile to the Union and I believe he
allowed that hostility to color his testimony. His testimony on this
point was contradicted by Fisher, another of the Respondent’s witness-
es, who testified that nothing was said at the May 31 meeting about
employees suffering consequences if they did not honor the strike. Tr.
193.
not enroll during that time would forgo Respondent-provided
health insurance entirely.
On June 1, the Respondent transmitted a letter directly to
each unit employee. The letter stated that the Company no
longer recognized the Union as the employees’ collective-
bargaining representative and advised the employees that “the
terms and conditions of your employment will be explained to
you when you report.” The letter to employees also stated that
the health insurance which the Respondent had been providing
pursuant to the collective-bargaining agreement “terminated
May 31st, 2010” and that as of June 1 employees were eligible
to participate in other health insurance plans offered by the
Respondent. The Respondent did not send a copy of this letter
to the Union, discuss its contents with the Union, or give the
Union advance notice that it would be sending the letter. Ray
testified that his belief was that since the contract had expired
he “shouldn’t have to recognize the Union” any longer.
Effective June 1, the Respondent unilaterally changed the
unit employees’ terms and conditions of employment to essen-
tially those set forth in the Company’s proposal B from May
28. These changes included: a reduction in wage rate from
$20.82 per hour to $18 per hour for the current drivers, the
limitation of overtime pay to only time worked in excess of 40
hours a week (eliminating entitlement to such pay based on
time worked in excess of 8 hours on a particular day and on
time worked before 6 am or after 5 pm), and the elimination of
the Respondent’s obligation to contribute to the retirement
fund. The Respondent also discontinued the health insurance
provided under the last collective-bargaining agreement, but
later in June the Respondent reinstated that insurance retroac-
tive to June 1 out of concern that the Company might ultimately
be ordered to reimburse the unit employees’ uninsured medical
costs.
On June 1, the unit employees initiated a strike against the
Respondent and began picketing at two of the Respondent’s
facilities. At the time the strike began, the unit employees had
not yet received the June 1 letter from Ray or been informed
that the Respondent was changing their terms and conditions of
employment. All of the Respondent’s drivers initially honored
the strike, but 5 of the 23 unit members eventually chose to
resign their union memberships and return to work while the
strike continued.4 The Union began the strike because the em-
ployees had no contract as of June 1, 2010. After the unit em-
ployees were informed that the Respondent was ceasing to
recognize the Union and was making changes to their terms of
employment, the Union filed the initial charge in this case on
June 2, and that same day the Union changed its picket signs to
accuse the Company of unfair labor practices.
On about June 9, the Respondent sent another letter directly
to the unit employees. The Respondent did not provide the
Union with any notice regarding this letter or its contents. The
letter reiterated that the unit employees’ old health insurance
terminated on May 31, 2010, and advised employees that they
would have to enroll by June 16 if they wanted to be covered
by one of the Respondent’s remaining health insurance plans.

4 These individuals would have been subject to union fines if they
had crossed the picket line without resigning their memberships.
IRVING READY-MIX, INC. 1281
The Respondent also denied rumors that it was attempting to
access moneys already in the employees’ retirement fund for
the Company’s own purposes. On about June 25, the Respond-
ent sent a third letter directly to the unit employees—again
without providing a copy or notice to the Union. This letter
informed employees that the Company was retroactively rein-
stating the unit employees’ old health insurance plan.
By letter dated July 14, 2010, and delivered to the Respond-
ent by facsimile that evening, the Union made an unconditional
offer to return to work and end the strike. The Respondent
answered the Union by letter dated July 16, stating that em-
ployees could return to work on Monday, July 19, 2010. This
letter was the first communication that the Respondent had
made to the Union since May 28, and the Respondent began the
letter by reiterating its position that the Company did not rec-
ognize the Union as the bargaining representative of unit em-
ployees. Since June 1, the Respondent has never changed its
position that it does not recognize the Union as the collective-
bargaining representative of unit employees.
F. Complaint Allegations
The complaint alleges that the Respondent has failed to bar-
gain in good faith with the exclusive collective-bargaining rep-
resentative of its employees in violation of Section 8(a)(5) and
(1) of the Act: since about January 26, 2010, by unilaterally
changing employee pension benefits; by taking various steps to
remove the Union and replace bargaining unit employees; on
about June 1, 2010, by withdrawing recognition from the Un-
ion; on about June 1, 2010, when Ray, by letter, bypassed the
Union and dealt directly with employees by informing them
that they could return to work and discuss new terms and condi-
tions of employment; since about June 1, 2010, by unilaterally
reducing employee wage rates and overtime benefits, and uni-
laterally changing employee health insurance benefits.5 The
complaint further alleges that the Respondent interfered with
employees’ exercise of rights guaranteed under the Act in vio-
lation of Section 8(a)(1): on about May 27, 2010, by telling
applicants for employment that it was going to remove the Un-
ion as the unit employees’ collective-bargaining representative
and quickly replace the bargaining unit employees; and, on
about June 1, 2010, by announcing in a letter to employees that
it was withdrawing its recognition from the Union and chang-
ing unit employees’ terms and conditions of employment.6

5 In its brief, the General Counsel states that “[t]he evidence adduced
at trial demonstrated that while Respondent announced to employees
that it was changing their health insurance benefits, it did not actually
do so.” GC Br. at p. 21, fn. 9. The General Counsel abandons its alle-
gation of a violation of Sec. 8(a)(5) based on a change to health insur-
ance benefits, and I make no finding based on that allegation.
6 The complaint also alleges that the strike that the unit employees
engaged in from June 1 to mid July 2010 was caused, and prolonged,
by the Respondent’s unfair labor practices. The Respondent’s denies
that allegation. A resolution of this issue, however, is not necessary
either to determine whether the Respondent committed any of the viola-
tions alleged in the complaint, or to decide whether to order the relief
sought by the General Counsel.
III. DISCUSSION
A. Respondent’s Obligation to Bargain
The Board has held that when parties have a Section 9 bar-
gaining relationship, the employer’s obligation to refrain from
making unilateral changes regarding mandatory subjects absent
an overall impasse in bargaining survives the expiration of the
contract, Engineered Steel Concepts, 352 NLRB 589, 606
(2008), Newcor Bay City Division, 345 NLRB 1229, 1237
(2005), Made 4 Film, Inc., 337 NLRB 1152 (2002), as does the
presumption that the Section 9 representative continues to rep-
resent the unit employees. Lee Lumber & Building Material
Corp., 322 NLRB 162, 176–177 (1996), affd. in relevant part
and remanded, 117 F.3d 1454 (D.C. Cir. 1997). The Respond-
ent contends that it was not required to meet these bargaining
obligations because the parties did not have a Section 9 bar-
gaining relationship based on the employees’ majority support
for the Union, but rather had the more limited type of bargain-
ing relationship that is conferred by Section 8(f) of the Act
when an employer in the construction industry enters into a pre-
hire agreement with a union.7 The Board has held that when
the parties’ bargaining relationship is governed by Section 8(f),
either party is free to repudiate the collective-bargaining rela-
tionship and decline to negotiate or adopt a successor agree-
ment once the contract expires. Oklahoma Fixture Co., 333
NLRB 804, 807 (2001), enf. denied 74 Fed. Appx. 31 (10th Cir.
2003); John Deklewa & Sons, 282 NLRB 1375, 1389 (1987),
enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770
(3d Cir. 1988), cert. denied 488 U.S. 889 (1988). The General
Counsel counters that the Respondent is not an employer in the
construction industry and that its bargaining responsibilities are
therefore the more extensive ones applicable under Section 9.
For the reasons discussed below, I conclude that the General
Counsel correctly characterizes the bargaining relationship as
one existing under Section 9, and that the Respondent violated
Section 8(a)(5) when it ceased to recognize the Union and uni-
laterally implemented changes to employees terms and condi-
tions of employment.
Section 8(f) was added to the Act to “permit employers and
labor organizations who are engaged in” construction, “an in-
dustry peculiarly marked by sporadic employment at locations
that are continually changing to maintain some stability in their
relationship by signing contracts before employees are hired,”
even though the union cannot show at that time that it has ma-
jority status among the employees who will eventually be hired.
J. P. Sturrus Corp., 288 NLRB at 671–172; John Deklewa &
Sons, supra. “[T]he threshold question in determining the ap-
plicability of Sec. 8(f) is whether the employer is engaged pri-
marily in the building and construction industry.” Engineering
Steel Concepts, 352 NLRB at 589 fn. 2.8 The Respondent can-

7 The Respondent does not contend that the parties were at a valid
impasse in June 2010 when it unilaterally implemented new terms and
conditions of employment for unit employees.
8 In order for an employer and a union to lawfully enter into a bar-
gaining relationship under Sec. 8(f) of the Act, three requirements must
be met: (1) the bargaining agreement must be with an employer en-
gaged primarily in the building and construction industry; (2) the bar-
gaining agreement must be with a labor organization of which building
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
not meet this threshold requirement because the Board has al-
ready held in J. P. Sturrus Corp., supra, and Mastronardi Ma-
son Materials Co., 336 NLRB at 1306, that ready-mix delivery
companies are not employers engaged in the building and con-
struction industry for purposes of Section 8(f). Rather, such
companies are suppliers to customers who may be engaged in
the building and construction industry, not employers in that
industry themselves. J.P. Sturrus, 288 NLRB at 671. As ex-
plained in J. P. Sturrus, the fact that a ready-mix concrete com-
pany “is a supplier to companies some of which may be
deemed to be within the provisions of Section 8(f) . . . does not
mean that [the ready-mix concrete company] is in the building
and construction industry any more than a hardware store that
furnishes hammers and nails to building contractors is engaged
in the building and construction industry.” Id.
The Respondent, as the party seeking to avail itself of the
Section 8(f) statutory exception bears the burden of establishing
that it is an employer engaged primarily in the building and
construction industry. Engineered Steel Concepts, 352 NLRB
at 589 fn.2. In this case, the Respondent has failed to show
facts that would justify treating it differently for purposes of
Section 8(f) than ready-mix companies in general or the ready-
mix companies involved in J. P. Sturrus and Mastronardi in
particular. To the contrary, the credible testimony of the Re-
spondent’s own witnesses was that the work performed by the
Respondent is the same as that performed by other ready-mix
companies. Moreover, to the extent that the decisions in J. P.
Sturrus and Mastronardi discuss the particular circumstances of
the ready-mix delivery companies at issue there, those particu-
lars also generally apply to the Respondent and weigh against
exempting the Respondent from the holdings of those cases.
For example, the Respondent, like the employer in J. P. Stur-
rus, has long-term ready-mix drivers who may visit several
different customers in the course of a workday to make deliver-
ies but consistently return to the Respondent’s facilities. Alt-
hough the work of the Respondent’s ready-mix drivers is
somewhat seasonal, the contract entitles laid-off employees to
recall based on seniority. There was no evidence that any of
the contracts between the Respondent and the Union were “pre-
hire” agreements entered into before employees were hired into
the bargaining unit. The record shows, in fact, that the Re-
spondent and the Union have entered into at least 4 consecutive
5-year contracts, without any lapse between those contracts.
Furthermore, the contract between the Union and the Respond-
ent allows new employees 30 days to join the union, rather than
the 7 days permitted in contracts under Section 8(f)—a factor
that was viewed in Mastronardi as supporting the conclusion
that the contract, and the relationship between the parties, was
governed by Section 9 rather than Section 8(f). 336 NLRB at
1306. The Respondent’s ready-mix drivers spend most of their
time at the Respondent’s ready-mix production/loading facili-
ties, and driving to and from customer’s jobsites. During the
time they are at the customer’s jobsites, the drivers generally

and construction employees are members; and (3) the bargaining
agreement must cover employees who are engaged in the building and
construction industry. Hudson River Aggregates, Inc., 246 NLRB 192,
199 (1979), enf. 639 F.2d 865 (2d Cir. 1981).
remain in their trucks except to hose off their equipment before
returning to the Respondent’s facilities. Like the ready-mix
drivers in J. P. Sturrus, the Respondent’s ready-mix drivers
occasionally assist a customer by helping to finish the concrete
or by using the truck’s hose to rinse off the customer’s tools,
but also as in J. P. Sturrus, the customer does not pay the Re-
spondent for this incidental assistance and the driver is not
required to render it. As with the ready-mix companies at issue
in J. P. Sturrus and Mastronardi, I conclude that the Respond-
ent ready-mix company is a supplier of material to customers,
some of whom may be in the construction industry, but that the
Respondent is not itself in that industry.
The Respondent does not really attempt to distinguish the
facts of this case from those in J. P. Sturrus, and does not even
mention Mastronardi. Rather the Respondent relies on the
argument that the Board decided J .P. Sturrus incorrectly, and
that I should not follow that precedent in this case. Brief of
Respondent at Pages 13 to 17. According to the Respondent,
the Board itself essentially repudiated J. P. Sturrus in Techno
Construction Corp., 333 NLRB 75 (2001) and Bell Energy
Management Corp., 291 NLRB 168 (1988). This argument is
frivolous. It is clear that the Board has continued to adhere to
J. P. Sturrus subsequent to both Bell Energy Management
Corp. and Techno Construction. More specifically, the Board
issued its decision in Mastronardi, on December 18, 2001,
approximately 11 months after the Board issued its decision in
Techno Construction on January 23, 2001, and about 20 years
after the Board issued its decision in Bell Energy. In Mastro-
nardi, the Board affirmed the administrative law judge’s deci-
sion, which relied on J. P. Sturrus for the proposition that
“ready-mix concrete delivery companies are not engaged in the
building and construction industry.” 336 NLRB at 1306. The
Respondent conveniently fails to mention the Mastronardi
decision in its brief, much less explain how that decision can be
squared with the argument that the Board has repudiated J. P.
Sturrus. Even more recently, in Engineered Steel Concepts, the
Board affirmed the administrative law judge’s decision, which
relied on both J. P. Sturrus and Mastronardi to hold that an
employer who hauled steel byproducts between steel mills and
delivered clay to a dam construction site was not engaged in the
construction industry for purposes of Section 8(f). 352 NLRB
at 602. The Respondent does not mention Engineered Steel
much suggest a way to harmonize that decision with its argu-
ment that J. P. Sturrus and Mastronardi are no longer good
law.9

9 At any rate, neither Bell Energy nor Techno Bell concerned a
ready-mix delivery company and neither contained any discussion
criticizing the Board’s decision in J. P. Sturrus. In Bell Energy the
Board does not even mention J. P. Sturrus. The employer involved
was not a ready-mix company, but one that serviced, fabricated, and
installed heating and air-conditioning units, and the Board held that the
employer was not shown to be engaged in the building and construction
industry. 291 NLRB at 169. The decision in Techno Bell held that an
employer that built water and sewage systems was engaged in the
building and construction industry for purposes of Sec. 8(f). That deci-
sion makes mention of J. P. Sturrus only as an example of a case in
which an employer was not engaged in construction work for purposes
of Sec. 8(f). 333 NLRB at 82.
IRVING READY-MIX, INC. 1283
Since the Board’s decisions in J. P. Sturrus and Mastronardi
are still good law regarding the status of ready-mix companies
under Section 8(f), I am not free to consider the Respondent’s
arguments that the Board’s decision in J. P. Sturrus was erro-
neous. Those arguments are not persuasive, but even if I
thought they were, I would be bound to follow Board precedent
on the subject. See Comau, Inc., 356 NLRB No. 21, slip op. at
12 (2010); Hebert Industrial Insulation Corp., 312 NLRB 602,
608 (1993); Lumber & Mill Employers Assn., 265 NLRB 199,
199 fn. 2 (1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. de-
nied 469 U.S. 934 (1984); Los Angeles New Hospital, 244
NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir.
1981).
The contract in this case was governed by Section 9 since the
Respondent was not a construction industry employer and thus
could not enter in an 8(f) relationship. Engineered Steel Corp.,
352 NLRB at 602. Therefore, the Respondent had a continuing
obligation to recognize and a bargain with the Union after the
expiration date of the last collective-bargaining agreement and
violated Section 8(a)(5) and (1) since about June 1, 2010 by:
ceasing to recognize the Union, bypassing the Union and deal-
ing directly with unit employees,10 and unilaterally changing
the employees’ terms and conditions of employment, including
those relating to wage rates and overtime benefits. I also con-
clude that the Respondent violated Section 8(a)(1) when, on
about June 1, 2010, Ray informed unit employees by letter that
the Company was withdrawing recognition from the Union and
changing employees terms and conditions of employment since
those statements had the effect of “undermining the Union’s
representative role.” Windsor Convalescent Center of North,
351 NLRB 975, 987 (2007), enf. denied in part on other
grounds sub nom. S & F Market Street Healthcare LLC v.
NLRB., 570 F.3d 354 (D.C. Cir. 2009).
I further find that the Respondent violated its bargaining ob-
ligation since about January 26, 2010, by unilaterally changing
employee pension benefits. Beginning sometime in 2008, the
Respondent ceased to make the retirement fund contributions
required by the collective-bargaining agreement. On December
9, 2009, the Respondent notified the Union that it had failed to
make retirement contributions in 2008 and on January 10, 2010,
the Respondent advised the Union that the Respondent had
failed to make required contributions for 2009. As of the time
of the trial, the Respondent had not paid the back contributions
or resumed making contributions. In June 2010, the Respond-
ent announced that it was unilaterally terminating its obligation
to make pension fund contributions going forward. In its brief,
the General Counsel recognizes that the Respondent ceased
making pension contributions earlier than the January 26, 2010,
date set forth in the complaint, but notes that the January 26
date alleged is within 6 months “of the filing of the charge in
Case 25–CA–031548 and therefore is within the 10(b) period of

10 See Northwest Graphics, Inc., 343 NLRB 84, 93 (2004) (“It is
well settled that the Act requires an employer to meet and bargain
exclusively with the bargaining representative of its employees, and
that an employer who deals directly with its unionized employees or
with any representative other than the designated bargaining agent
regarding terms and conditions of employment violates Section 8(a)(5)
and (1).”)
the Act.”11
The Respondent acknowledges that the company ceased to
make contributions to the employees’ retirement fund and that
it notified the Union of this fact on January 20, 2010, but ar-
gues that this “did not constitute a change in the pension benefit
plan.” Brief of Respondent at page 34. I reject this argument.
The Respondent did not bargain with the Union before chang-
ing the retirement benefit that employees were, in fact, receiv-
ing, and this is a violation of Section 8(a)(5) regardless of the
Respondent’s motivation and regardless of whether the Com-
pany announced it as a formal change. See Castle Hill Health
Center, 355 NLRB No. 196, slip op. at 37–38 (2010); Merrill &
Ring, Inc., 262 NLRB 392, 394 (1982); Gulf Coast Automotive
Warehouse, 256 NLRB 486, 488–489 (1981). Therefore, I find
that the Respondent has violated Section 8(a)(5) since January
26, 2010, by unilaterally changing employees’ pension benefits.
B. Bad-Faith Bargaining
The complaint alleges that the Respondent, by its overall
conduct, bargained in bad faith, and with the intent of removing
the Union and bargaining unit employees when it: (1) bargained
with no intention of reaching an agreement; (2) insisted on
proposals that were predictably unacceptable to the Union; (3)
just 3 days before the expiration of the prior collective-
bargaining agreement, presented the Union with two alternative
regressive wage and benefit proposals and stated that the vari-
ous aspects of the proposals could not be mixed together; and,
(4) refused to extend the expiring contract for 1 week to permit
the Union time to review the Respondent’s contract proposals.
Although, as discussed above, I find that the Respondent un-
lawfully withdrew recognition and made unilateral changes in
June 2010, the record does not show that, during the brief peri-
od of negotiations prior to June, the Respondent bargained in
bad faith or with the intention of removing the Union through
the conduct alleged. As discussed above, I credit Ray’s testi-
mony that he did not bargain with no intention of reaching an
agreement. Rather, based on the record as a whole, I conclude
that the Respondent was having significant financial difficulties
and reacted by seeking extreme concessions from the Union.
Although it is not surprising that the Union refused to agree to
the Respondent’s concessionary proposals prior to June 1, the
evidence does not show that the Respondent made the unattrac-
tive and/or regressive proposals in an effort to thwart agreement
rather than for the purpose of reaching an agreement advanta-
geous to the Company.

11 A 10(b) defense is a statute of limitation and not jurisdictional in
nature. Therefore, it is an affirmative defense which must be pled and is
waived if not timely raised. R.G Burns Electric, 326 NLRB 440, 446
(1998); Public Service Co., 312 NLRB 459, 461 (1993); DTR Indus-
tries, 311 NLRB 833 fn. 1 (1993), enf. denied on other grounds, 39
F.3d 106 (6th Cir. 1994). In its answer to the complaint, the Respond-
ent includes a boilerplate defense that “The Consolidated Complaint
and any recovery thereon should be barred in whole or in part as being
untimely pursuant to Section 10(b) of the Act,” but the Respondent did
not mention that defense at trial or in its posttrial brief, and makes no
argument that the allegation regarding pension fund contributions, or
any other specific complaint allegation, is time-barred in whole or in
part.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
The Board has stated that “[r]egressive bargaining . . . is not
unlawful in itself; rather it is unlawful if it is for the purpose of
frustrating the possibility of agreement.” U.S. Ecology Corp.,
331 NLRB 223, 225 (2000), enf. 26 Fed. Appx. 435 (6th Cir.
2001); see also Houston County Electric Cooperative, 285
NLRB 1213, 1214 (1987) (regressive bargaining tactics are “an
indicium of bad-faith bargaining” where they are “designed to
frustrate bargaining”). It is true that proposal A and proposal
B, which the Respondent offered on May 28, were regressive as
compared to what the Respondent offered on May 19—most
notably in that the May 28 proposals eliminated the require-
ment that the Respondent contribute to an employee retirement
fund and included significant reductions in wage rates and va-
cation/holiday benefits. However, the General Counsel has
failed to show that this regressive movement was “designed to
frustrate bargaining.” Rather the record provides another, more
likely, explanation for the regressive movement between May
19 and May 28. On May 25, Ray met with the Respondent’s
owners to find out what their bottom-line “number” was for
labor costs. None of the owners had been attending the bar-
gaining sessions and, as discussed above, Ray was not fully
aware of the Respondent’s financial situation. At the May 25
meeting, the owners described the full extent of the Respond-
ent’s financial difficulties to Ray. Then the owners concluded
that they should seek to reduce the Respondent’s hourly labor
costs from $43 per unit employee, to $31 or $32 per unit em-
ployee. Ray testified, credibly and without contradiction, that
the regressive proposals presented on May 28 were the product
of this meeting and reduced the Respondent’s labor costs to
about the $31 level. It is true that the Respondent did not ex-
plain all of this to the Union on May 28,12 but it is also true that
Gerdes’ decision to abruptly terminate negotiations that day
limited the Respondent’s opportunity to do so. Indeed, Ray
testified that he had every intention of explaining the basis for
the Respondent’s May 28 proposals and responding to Gerdes’
question about the Respondent’s “number,” but was prevented
from doing so by Gerdes’ actions.
I note, moreover, that this is not an instance in which the par-
ties were moving close to agreement and the Respondent pulled
the rug out from under negotiations by making a regressive
proposal. Rather, even before the Respondent made its May 28
regressive proposal the parties were far from agreement and in
little, if any, danger of reaching a new contract before June 1. I
conclude that the Respondent has shown that there was a lawful
explanation for the regressive proposals of May 28 and that the
record does not support finding that those proposals were de-
signed to frustrate bargaining. Cf. Mid-Continent Concrete,
336 NLRB 258, 260 (2001) (“Where the proponent of a regres-
sive proposal fails to provide an explanation for it, or the reason
appears dubious, the Board may weigh that factor in determin-
ing whether there has been bad-faith bargaining.”), enfd. 308
F.3d 859 (8th Cir. 2002).

12 The record does show, however, that the Respondent informed the
Union about the very substantial reductions in the Company’s sales and
the need for cost cutting, and that Gerdes indicated during bargaining
that he was aware of the trouble the Respondent was having with the
bank that provided the Company’s financing.
I also conclude that bad-faith bargaining is not indicated by
the statements that the Respondent made on May 28 about its
proposals that day. As discussed above, when it presented
proposals A and B, to the Union, the Respondent stated that the
parties could negotiate over either proposal individually, but
could not mix-and-match elements from the two proposals to
create a new proposal. The Respondent stated that these pro-
posals were not the Company’s last, best, and final offer. I do
not consider Respondent’s statements at the bargaining table to
be evidence of bad faith. The Respondent was essentially pro-
posing two routes to an agreement—one under which wages
would remain essentially unchanged but vacation and holiday
benefits would be completely eliminated, and a second under
which wages would be significantly reduced, but the vacation
and holiday benefits would continue, albeit in somewhat dimin-
ished form. The Respondent stated that it would discuss chang-
es to either proposal. The fact that the Respondent was unwill-
ing to consider a mix-and-match counteroffer (e.g., one that
would take the wage rates from proposal A and the benefits
from proposal B) indicates a degree of rigidity, but not a level
of rigidity that was incompatible with further good faith negoti-
ations. At any rate, Gerdes, by abruptly breaking off negotia-
tions without exploring possible compromise, precluded the
Respondent’s willingness to consider counteroffers from being
tested and therefore from being found lacking. Cf. Chicago
Tribune Co., 304 NLRB 259, 260 (1991) (in evaluating the
sufficiency of a respondent’s bargaining efforts, the Board has
considered whether the other party’s bad-faith bargaining has
created a situation in which the respondent’s good faith could
not be tested and, therefore, could not be found lacking); Con-
tinental Nut Co., 195 NLRB 841, 858 (1972) (same). Similar-
ly, the Respondent’s refusal to agree to the Union’s request to
extend the existing contract, while indicative of hard bargain-
ing, does not demonstrate bad-faith bargaining under Board
law. See Sanderson Farms, Inc., 271 NLRB 1477, 1478-79
(1984) (overruling the administrative law judges determination
that the employer’s refusal to agree to a contract extension
showed bad-faith bargaining).
For the reasons discussed above, I recommend dismissal of
the allegation that the Respondent failed to bargain in good
faith and violated Section 8(a)(5) and (1) prior to June 1, 2010,
by acting in furtherance of a plan to remove the Union and
replace bargaining unit employees and/or by engaging in other
conduct designed to frustrate bargaining.
C. Section 8(a)(1) and Ray’s Statements to Applicants
The complaint alleges that the Respondent violated Section
8(a)(1) on or about May 27, 2010, when Ray, by telephone, told
applicants that the Respondent was going to remove the Union
as its employees’ collective-bargaining representative and
quickly replace its bargaining unit employees. Walker, an ap-
plicant for employment, testified that such statements had been
made to him by Ray during a telephone interview close to the
end of May. Ray testified that he did not make such statements
to Walker or other applicants, but rather told applicants that the
Union might engage in a strike and asked the applicants wheth-
er they would drive for the Respondent in the event of a strike.
As discussed above, I credit Ray’s version of this conversation.
IRVING READY-MIX, INC. 1285
However, I conclude that even Ray’s version of what he said to
applicants constitutes a violation of Section 8(a)(1). In Planned
Building Services, 347 NLRB 670, 677 (2006) the Board held
that an employer violates Section 8(a)(1) by asking employees
whether they would be willing to cross a picket line if hired.
As noted in that case, the employee’s willingness to cross a
picket line is an “impermissible consideration for hiring, since
it penalizes employees for their intention to engage in protected
activities,” and asking employees about their willingness to do
so is coercive. Id. at 707–08; see also Mammoth Coal Co., 354
NLRB No. 83, slip op. at 18 (2009), Fremont Ford, 289 NLRB
1290 fn. 6 (1988), and Spencer Foods, 268 NLRB 1483, 1503
(1984), affd. in relevant part sub nom. Food & Commercial
Workers Local 152 v. NLRB, 768 F.2d 1463 (D.C. Cir. 1985).
Such questioning of an applicant has been found to violate the
Act even when the employer is interviewing applicants during
negotiations with a union for the purpose of securing replace-
ment workers who will be willing to work in the event the un-
ion goes on strike. See, e.g., Smith’s Complete Market, 237
NLRB 1424, 1431 (1978).
I find that the Respondent violated Section 8(a)(1) of the Act
in late May 2010, by interrogating an applicant for a bargaining
unit position about his willingness to work in the event that the
Union called a strike by the unit employees.13
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5).
3. The full-time and part-time ready-mix drivers employed
by the Respondent at its facilities in Fort Wayne, Indiana, and
Kendallville, Indiana, constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9 of the Act.
4. At all material times, the Union has been the designated
exclusive collective-bargaining representative of the unit de-
scribed in Conclusion of Law 3 for the purpose of collective
bargaining within the meaning of Section 9 of the Act.

13 Although I do not find that Ray made the specific statements that
the complaint alleges he did during the late May telephone conversation
with an applicant, I find a violation based on the remarks that Ray
admitted to making during that conversation. The Board may find and
remedy a violation even in the absence of a specific allegation in the
complaint if the issue is closely connected to the subject matter of the
complaint and has been fully litigated. This is particularly true when
the unlawful conduct is established by the testimonial admissions of the
Respondent’s own witness. Letter Carriers Local 3825 (Postal Ser-
vice), 333 NLRB 343, 343 fn. 3 (2001); Meisner Electric, 316 NLRB
597 (1995), affd. 83 F.3d 436 (11th Cir. 1996) (Table); Pergament
United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990). In the instant case, the violation that I find is closely related to
the one alleged in the complaint—involving statements by the same
Company official, during the same telephone conversation, arising from
the same contract negotiations, and under the same section of the Act.
The statements which give rise to the violation, are established by the
testimonial admission of Ray, the Respondent’s own witness and gen-
eral manager. I conclude that this matter has been fully litigated, and
that the Respondent violated Sec. 8(a)(1) when Ray interrogated Walk-
er about his willingness to work even if the Union went on strike.
5. The Respondent violated Section 8(a)(5) and (1) of the
Act: since January 26, 2010, by unilaterally changing the pen-
sion benefits provided to unit employees; and, since about June
1, 2010, by ceasing to recognize the Union, dealing directly
with unit employees, and unilaterally changing the unit em-
ployees’ terms and conditions of employment, including those
relating to wage rates and overtime benefits.
6. The Respondent violated Section 8(a)(1): in about late
May 2010 by interrogating an applicant for a position as a
ready-mix driver about his willingness to work in the event that
the Union went on strike against the Respondent; and, on about
June 1, 2010, when it informed unit employees that the Com-
pany was withdrawing recognition from the Union and unilat-
erally changing the unit employees’ terms and conditions of
employment.
7. The General Counsel has not shown that during the con-
tract negotiations in May 2010 the Respondent bargained in bad
faith, or with the purpose of removing the Union and replacing
unit employees.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In particular, I recommend that the
Respondent be required to place in effect all terms and condi-
tions of employment provided by the contract that was effective
by its terms from June 1, 2005, through May 31, 2010, and
maintain those terms in effect until the parties have bargained
to agreement or a valid impasse, or the Union has agreed to
changes. In addition, I recommend that the Respondent be or-
dered to make the Unit employees whole for any losses of wag-
es, overtime pay and other benefits that they may have incurred
as a result of the unilateral changes, as set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971) plus interest, compounded daily, as computed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). The
Respondent should also be ordered to remit all payments it
owes to the employees’ retirement fund, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd. 661 F.2d
940 (9th Cir. 1981) (Table), including any additional amounts
pursuant to Merryweather Optical Co., 240 NLRB 1213, 1216
fn.6 (1979), plus interest, compounded daily, as computed in
Kentucky River Medical Center, supra. In addition, the Re-
spondent should be ordered to continue such contributions and
otherwise honor the terms of the most recent collective-
bargaining agreement until it negotiates in good faith with the
Union to a new contract or a bona fide impasse. Crest Bever-
age Co., 231 NLRB 116, 120 (1977).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.14

14 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 BOARD 1286
ORDER
The Respondent, Irving Ready-Mix, Inc. of Fort Wayne and
Kendallville, Indiana, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in good
faith with the Chauffeurs, Teamsters & Helpers, Local Union
No. 414, a/w International Brotherhood of Teamsters (the Un-
ion) as the exclusive Section 9 collective-bargaining representa-
tive of a unit of employees comprised of all full-time and part-
time ready-mix drivers employed by the Respondent at its facil-
ities in Fort Wayne, Indiana, and Kendallville, Indiana.
(b) Withdrawing recognition from the Union as the exclusive
collective bargaining representative of the unit employees.
(c) Unilaterally changing unit employees’ terms and condi-
tions of employment, including wages rates, overtime pay poli-
cy, and pension benefits without giving the Union notice and an
opportunity to bargain over those changes.
(d) Bypassing the Union and dealing directly with unit em-
ployees regarding terms and conditions of employment.
(e) Telling unit employees that it is no longer recognizing the
Union as the collective-bargaining representative of unit em-
ployees and that it is changing unit employees’ terms and con-
ditions of employment.
(f) Interrogating applicants for bargaining unit positions
about their willingness to work in the event of a strike by the
Union.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Restore, honor, and continue the terms and conditions of
employment set forth in the contract with the Union that was
effective by its terms from June 1, 2005, through May 31, 2010,
until the parties sign a new agreement or good-faith bargaining
leads to a valid impasse, or the Union agrees to changes.
(b) Make whole the unit employees and former unit employ-
ees for any and all loss of wages, overtime pay and other bene-
fits incurred as a result of the Respondent’s unlawful unilateral
changes, with interest compounded daily, as provided in the
remedy section of this decision.
(c) Make all contributions, including any additional amounts
due, that it was required to make to the employees’ retirement
fund, but which it has not made since January 26, 2010, with
interest compounded daily, as provided in the remedy section
of this decision.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Fort Wayne, Indiana, and Kendallville, Indiana, cop-
ies of the attached notice marked “Appendix.”15 Copies of the
notice, on forms provided by the Regional Director for Region
Twenty-Five, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, 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 Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since January 26,
2010.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your 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 fail and refuse to recognize and bargain in
good faith with the Chauffeurs, Teamsters & Helpers, Local
Union No. 414, a/w International Brotherhood of Teamsters
(the Union) as the exclusive Section 9 collective-bargaining
representative of our employees in the bargaining unit com-
prised of all full-time and part-time ready-mix drivers em-
ployed at our facilities in Fort Wayne, Indiana, and Ken-
dallville, Indiana.
WE WILL NOT withdraw recognition from the Union as the
exclusive collective-bargaining representative of the unit em-
ployees.
WE WILL NOT unilaterally change unit employees’ terms and
conditions of employment without giving the Union notice and
an opportunity to bargain over those changes.

15 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.”
IRVING READY-MIX, INC. 1287
WE WILL NOT bypass the Union and deal directly with unit
employees regarding terms and conditions of employment.
WE WILL NOT announce to employees that we no longer rec-
ognize the Union as the collective-bargaining representative of
unit employees and/or that we are changing unit employees’
terms and conditions of employment without first notifying,
and bargaining in good faith with, the Union.
WE WILL NOT interrogate applicants for bargaining unit posi-
tions about their willingness to work in the event of a strike by
the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL restore, honor, and continue the terms and condi-
tions set forth in the contract with the Union that was effective
by its terms from June 1, 2005, through May 31, 2010, until the
parties sign a new agreement or good-faith bargaining leads to
a valid impasse, or the Union agrees to changes.
WE WILL make whole the unit employees and former unit
employees for any and all loss of wages, overtime pay, and
other benefits incurred as a result of our unlawful unilateral
changes, with interest.
WE WILL make all contributions, including any additional
amounts due, that we were required to make, but did not make
since January 26, 2010, to the unit employees’ retirement fund,
with interest.
IRVING READY-MIX, INC.