Kieft Bros., Inc.

National Labor Relations Board - Board Decisions

Mar 15, 2010

355 N.L.R.B. 116 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

355 NLRB No. 19
116
Kieft Brothers, Inc. and General Teamsters, Chauf-
feurs, Salesdrivers and Helpers, Local 673 and
Jaime Nieves and Construction and General La-
borers, Local Union #25. Cases 13–CA–45023,
13–CA–45058, 13–CA–45062, and 13–CA–45194
March 15, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On July 21, 2009, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed limited cross-exceptions, a supporting
brief, and a brief in response to the Respondent’s excep-
tions.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions,
cross-exceptions and briefs and has decided to affirm the
judge’s findings2 and conclusions, and to adopt his rec-
ommended Order.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Teamsters Local 523 v. NLRB, 590 F.3d
849 (10th Cir. 2009); Narricot Industries, L.P. v. NLRB, 587 F.3d 654
(4th Cir. 2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir.
2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009)
(No. 09-328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), cert. granted 130 S.Ct. 488 (2009); Northeastern Land Services
v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78
U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213). But see Laurel
Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir.
2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept. 29, 2009)
(No. 09-377).
2 Many of the Respondent’s exceptions are based on disagreement
with the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings. We also
deny the Respondent’s request for oral argument, as the record, excep-
tions, arguments, and briefs adequately present the issues and the posi-
tions of the parties.
The General Counsel has cross-excepted to the judge’s failure to rule
on his posthearing motion to strike two documents attached to the Re-
spondent’s brief to the judge. The documents sought to be stricken
pertain to the issue of the Respondent’s compliance with a subpoena
requesting information relevant to the 8(a)(3) layoff allegation, and to
the 8(a)(5) allegation regarding the timeliness of the response to the
request for financial information. We have not relied on these docu-
ments in adopting the judge’s conclusion as to both allegations and,
We agree with the judge that the General Counsel met
his initial burden under Wright Line3 of establishing that
the Respondent’s layoff of nine employees was moti-
vated by unlawful animus against union activity,4 and
that the Respondent did not meet its rebuttal burden of
showing that the layoffs would have occurred even ab-
sent union activity.5 In addition, we adopt the judge’s
findings that the Respondent violated Section 8(a)(5) by
failing to bargain with Teamsters Local 673 over the
layoffs;6 and that the Respondent unlawfully threatened
employees Chuck Dickerson and Jaime Nieves in viola-
tion of Section 8(a)(1).7 Finally, we agree with the judge
that the General Counsel did not show that the Respon-

therefore, we need not rule on this aspect of the General Counsel’s
cross-exceptions.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
Regarding the Wright Line analysis, Member Schaumber notes that
the Board and circuit courts of appeals have variously described the
evidentiary elements of the General Counsel’s initial burden of proof
under Wright Line, sometimes adding as an independent fourth element
the necessity for there to be a causal nexus between the union animus
and the adverse employment action. As stated in Shearer’s Foods, 340
NLRB 1093, 1094 fn. 4 (2003), because Wright Line is a causation
analysis, Member Schaumber agrees with this addition to the formula-
tion. Member Schaumber believes that such a causal nexus has been
shown here.
4 In finding that the layoffs were unlawfully motivated, we do not
rely, as did the judge, on the Respondent’s having purportedly hired a
“martial arts” security guard to provide security on the day of the elec-
tion won by Teamsters Local 673, or on Larry Kieft’s having called the
police on the occasion of the October 9, 2008 rally held by the Team-
sters. Contrary to the judge, Member Schaumber also does not rely on
the Respondent’s changing of the locks on the front gates of its plant
before the drivers’ election as evidence of Respondent’s unlawful mo-
tivation for the layoffs.
5 In finding the Respondent’s economic defense inadequate, Member
Schaumber does not rely, as did the judge, on the Respondent’s failure
to produce documentary evidence that the bank that provided its operat-
ing line of credit had threatened to foreclose if the Respondent’s
monthly “borrowing base” figure declined to zero. Chairman Liebman
finds it unnecessary to rely on this evidence.
6 The judge stated that if the Respondent had shown that the layoffs
were consistent with a past practice, it would not have been required to
bargain over the layoff of the drivers. Chairman Liebman observes that
under established Board precedent, the existence of a past practice
during a period when employees are unrepresented does not excuse an
employer from bargaining over the practice after a union becomes those
employees’ bargaining representative. E.g., Mackie Automotive Sys-
tems, 336 NLRB 347, 349 (2001); Eugene Iovine, Inc. 328 NLRB 294
(1999), enfd. 1 Fed Appx. 8 (2d Cir. 2001). Member Schaumber finds
it unnecessary to reach this legal issue because the Respondent did not
establish a past practice here. See Seafood Wholesalers, Ltd., 354
NLRB No. 53 fn. 2 (2009).
7 Because we adopt the judge’s finding that the Respondent unlaw-
fully threatened Dickerson and Nieves, we find it unnecessary as cumu-
lative to pass on the judge’s finding that the Respondent unlawfully
threatened Miseal Ramirez. The Respondent did not except to the
judge’s finding that it interrogated Virgilio Nueves in violation of Sec.
8(a)(1), and did not except to the finding that it violated Sec. 8(a)(5) by
failing to provide the Union with a requested copy of its health plan.
KIEFT BROS., INC.

117
dent violated Section 8(a)(5) by failing to respond in a
timely manner to the Teamsters’ request for information
concerning its financial condition.8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Kieft Brothers, Inc., Elm-
hurst, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.

Brigid Garrity and Neelam Kundra, Esqs., for the General
Counsel.
Linda M. Doyle, Esq. (McDermott, Will & Emery), of Chicago,
Illinois, for the Respondent.
John Toomey, Esq. (Arnold & Kadjan), of Chicago, Illinois, for
Charging Party Teamsters Local 673.
Robert Cervone, Esq. (Dowd, Bloch & Bennet), of Chicago,
Illinois, for Charging Party Laborers Local Union #25.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Chicago, Illinois, from April 13–16, 2009. Team-
sters Local 673 filed the charge in Case 13–CA–45023 on No-
vember 24, 2008. Jaime Nieves filed the charge in Case 13–
CA–45058 on December 16, 2008. Laborers Local # 25 filed
the charge in Case 13–CA–45062 on December 17, 2008. On
February 1, 2009, the Region issued a consolidated complaint.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and Charging Party
Teamsters Local 673, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Kieft Brothers, Inc. manufactures precast con-
crete manholes at its facility in Elmhurst, Illinois. It also sells
and delivers manholes and other plumbing products, such as
sewer pipe, from this location. During 2008, Respondent pur-
chased and received goods, products, and materials valued in
excess of $50,000 from points outside of Illinois. 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 Unions, Teamsters Local 673 and Laborers Local #25,
are labor organizations within the meaning of Section 2(5) of
the Act.

8 In Member Schaumber’s view, the Respondent did not violate Sec.
8(a)(5), even assuming that the Respondent received the Union’s re-
quest for information on or around February 2, 2009, rather than later.
Its delay in responding to the request from that date until the opening
date of the hearing (April 13, 2009) was not shown to be unreasonable
under the circumstances.
1 Certain errors in the transcript have been noted and corrected.
II. ALLEGED UNFAIR LABOR PRACTICES
Overview
The General Counsel alleges that agents of Respondent
threatened employees on several occasions in violation of Sec-
tion 8(a)(1) in October and November 2008. He also alleges
that Respondent interrogated an employee about his union
sympathies in violation of Section 8(a)(1).
Respondent laid off four employees on November 7, and five
more on November 21, 2008. The General Counsel alleges that
these layoffs and Respondent’s failure to reinstate these em-
ployees were discriminatorily motivated and thus violated Sec-
tion 8(a)(3) and (1). The General Counsel contends that not
only was the decision to have a layoff discriminatorily moti-
vated, but that antiunion animus also contributed to Respon-
dent’s choice of which employees were chosen for layoff.
Furthermore, the General Counsel alleges that Respondent
violated Section 8(a)(5) and (1) in failing to give Teamsters
Local 673 prior notice and an opportunity to bargain with re-
spect to the layoffs of the five employees who were truckdriv-
ers and the effects of the layoffs. The Board certified Local
673 as the bargaining representative of Respondent’s drivers on
October 22, 2008, 2 weeks before the first layoffs occurred.2
Finally, the General Counsel alleges that Respondent vio-
lated Section 8(a)(5) and (1) in refusing and failing to provide
Local 673 information the Union had requested about the Com-
pany’s health care plan and its financial records.
Statement of Facts
Respondent Kieft Brothers, Inc. has been in business for
more than 30 years. It produces manholes for use in the storm
water and waste water markets. Respondent also purchases,
sells, and delivers sewer pipe. Its products are used in residen-
tial construction and in highway construction. Thus, Kieft’s
customers include private developers and governmental enti-
ties.
Until November 2005, Kieft Brothers was a family owned
business. In that month, the Kieft family sold the business to
KBI Holdings, Inc., which is managed by Freedom Venture
Partners. George Smith is the chief executive officer of KBI
Holdings and thus the owner of Kieft Brothers. Ed Carroll is
Respondent’s chief financial officer. Although the Kieft family
no longer owns Respondent, Larry Kieft, a son of the founder,
remains with the Company as president. His brother, Tom
Kieft, was Respondent’s vice president of operations until No-
vember 2008. Larry’s father, Bob Kieft, retains a position as a
consultant to Respondent.3
On July 28, 2008, George Smith sent a letter to all Kieft

2 Respondent’s obligation to bargain with the Union, however, began
on the date of the election, October 10, 2008.
3 Respondent’s answer admits that Larry and Bob Kieft are statutory
supervisors and agents of Respondent and that Tom Kieft was a super-
visor at all times relevant to this matter. It also admits that Chuck
Rogers, who allegedly violated Sec. 8(a)(1) on behalf of Respondent is
a statutory supervisor and agent. While Respondent’s answer denied
that Smith and Carroll are owners of Respondent, they are clearly
agents of Respondent. Moreover, Respondent’s president, Larry Kieft,
described George Smith as “the owner” of Kieft Brothers, Tr. 427.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

118
Brothers employees. (GC Exh. 7.) The stated purpose of the
letter was to provide Respondent’s employees with information
regarding wage changes, cash bonuses, and the Company’s
discretionary bonus program.
Smith informed the employees that wage changes, cash bo-
nuses, and the discretionary bonus would be influenced by
Kieft’s financial performance and management’s assessment of
each employee’s performance for the past year. Further, he
informed employees that compensation would be based on a
three-tier employee assessment. Employees, he wrote, had
already been ranked and placed in three categories; those who
in the past year exceeded expectations, those who met expecta-
tions, and those whose performance was below expectations.
Smith stated that the bonus program was designed to provide
incentives for employee performance and to reward Kieft’s top
performers.
Smith continued:

Kieft is experiencing a downturn in its business due to
decreased levels of construction activity in the suburbs and
Chicago market. The Company is also experiencing sig-
nificant price increases related to its raw materials, sup-
plies and fuel. As a result of these conditions, the Com-
pany’s financial performance has declined relative to re-
cent years. Given this financial performance, management
has made the decision this year to reduce the level of
raises and cash bonuses. In addition, management has
made the decision to forego the discretionary bonus pro-
gram during 2008.

. . . .

We are hopeful that the economy will improve during
fiscal year 2009 and that the company will be in a position
to increase the annual wage and cash bonus levels and to
fund the discretionary bonus program again.

. . . .

If we all take a team approach during this time it
should help the Company through these weaker market
conditions. We are hopeful that if everyone is focused on
the big picture—which is the health of Kieft—and strives
to work efficiently that we will be well positioned to make
it through this economic downturn without lay-offs or a
reduction in our workforce. Please note that pursuant to
Illinois law your employment with Kieft is at-will and
your salary or hourly compensation is not a guarantee of
employment for one year or for any other term.

In late August or early September employees rated in the
highest tier, the “A” tier, received a bonus of 3 percent of their
salary based on Respondent’s assessment of their performance.
Employees rated in the second or “B” tier, including drivers
Ray Embury and Chuck Dickerson who were laid off in No-
vember, received a 1.5 percent bonus; employees in the third or
“C” tier, for the first time during their employment with Kieft,
did not receive a bonus. (Tr. 456, 30, 73–74, 92, 186, R. Exh.
1.)4
Teamsters Local 673 began organizing Respondent’s drivers
sometime in 2008. The Union held a meeting on August 28,
2008, at which a number of drivers signed authorization cards.
The Union then filed a representation petition with the Board
on August 29. The petition was faxed to Respondent on Sep-
tember 2. (Tr. 649.)
In September 2008, Laborers Local 25 began an organizing
campaign amongst the production laborers at Kieft’s facility. It
faxed its representation petition to Respondent on October 20,
2008. (Tr. 649.)
One week prior to the representation election for the drivers’
unit, which was scheduled and conducted on October 10,
George Smith sent letters to Kieft’s drivers urging them to vote
against union representation. (GC Exhs. 3 and 4.) His October
3, letter concluded:

The Union cannot guarantee you much and they can-
not force the company to do much of anything. When you
evaluate the advantages of being a Kieft employee against
the disadvantages of joining the union and monetary cost
of joining that membership, I am confident that you will
see the only answer is to VOTE NO UNION.

In his October 4 letter, Smith again urged Respondent’s
drivers to vote against the Union and stated:

We are hopeful that with all of the information that has been
communicated to you recently that one message has been
made clear—we value you as an employee and we will con-
tinue to work hard to maintain our position as a stable em-
ployer who provides a generous compensation package to our
employees so that you can support you and your family.

Throughout the years, Kieft has maintained a philosophy that
it wants to keep its drivers busy even during slow business pe-
riods. During the winter months or rain days when customers
are not accepting deliveries we have made it a point to offer
our drivers non-delivery work assignments to keep them
working.
Alleged 8(a)(1) Violation on October 9, 2009
Teamsters Local 673 held a rally outside of Respondent’s
premises on October 9. During this rally Respondent called the
Elmhurst police twice and complained that participants in the
rally were blocking the road adjacent to its property. The Gen-
eral Counsel alleges in complaint paragraph V(a) that Larry
Kieft threatened employees with discharge if they attended this
rally.
In support of this allegation, Charles Dickerson, a driver who
was laid off by Respondent a month and a half later, testified
that Larry Kieft asked him if he wanted to go out and join the
rest of the unemployed people at the rally. (Tr. 87.)

4 The timing of this bonus is critical in assessing Respondent’s claim
that it decided to lay off nine employees before it knew of the Team-
sters’ organizing drive. Payment of the bonus in late August or Sep-
tember 2008 is established by the uncontradicted testimony of George
Kent and Jaime Nieves. The timing of the payment of a performance
bonus to two drivers it later laid off, Embury and Dickerson, is incon-
sistent with a determination to lay off nine employees in August.
KIEFT BROS., INC.

119
Larry Kieft testified in a very ambiguous fashion that he did
not tell “an employee” that he can go join the unemployed if he
liked. Kieft testified that he said to “somebody at the union,”
“shouldn’t you be working.” (Tr. 808.) He also testified that
he told Respondent’s employees that they could join the rally if
they wanted to do so. (Tr. 421.) Larry Kieft did not deny that
he spoke to Chuck Dickerson on the day of the rally. He did
not testify about anything he said to Dickerson. Given Kieft’s
failure to testify directly that he did not tell Dickerson that he
could go join the unemployed, I credit Dickerson’s account.
Additional Evidence of Antiunion Animus Supports a Finding
of Restraint, Interference, and Coercion of
Chuck Dickerson’s Section 7 Rights
Moreover, given the fact that Kieft called the Elmhurst po-
lice twice during the Teamsters’ rally, I do not credit his testi-
mony at Transcript 421–422, which suggests that he spontane-
ously invited Kieft employees to attend the Teamsters rally at
the end of the day “in a friendly way.” Finally, I reject the
assertion in Respondent’s brief at page 4 that such a statement
given the state of the American economy on October 9, 2008,
would be perceived as a joke. To the contrary, his statement in
connecting support for the Teamsters to unemployment would
reasonably coerce Dickerson and therefore violated Section
8(a)(1) of the Act, Kona 60 Minute Photo, 277 NLRB 867,
867–888 (1985).
More Evidence of Antiunion Animus
On October 9, on the night before the election, Respondent
changed the locks on the front gate of its facility and then
changed the locks back after the election. It also hired a martial
arts fighter as a security guard solely for the purpose of being
on its premises during the election. These measures indicate a
substantial degree of antiunion animus on Respondent’s part.
Even assuming that Teamsters vehicles blocked the roadway on
October 9, as Respondent contends, Respondent has shown no
reasonable basis for it to conclude that its employees would
assist unauthorized persons to gain entry into its premises or
that there would be any activity inside its facility during the
election that warranted a security guard’s presence solely for
the election.
Driver’s Unit Election on October 10; Laborer’s Representation
Petition on October 20; and Certification of the Teamsters
on October 22
The Board conducted a representation election on October
10, in which nine votes were cast in favor of representation by
Teamsters Local 673 and zero votes were cast against such
representation. The Board certified Local 673 as the exclusive
authorized bargaining representative of Kieft’s drivers on Oc-
tober 22.
A number of laborers signed union authorization cards in
October. Local 25 filed a representation petition on October
20, 2008. This petition was faxed to Respondent the day it was
filed.
Alleged 8(a)(1) Violation in Complaint Paragraph 5(b)
Laborer Miseal Ramirez, who was laid off on November 7,
2009, testified that he had an encounter regarding the Union
with Respondent’s operations manager, Chuck Rogers, in Oc-
tober 2009. Ramirez testified that he walked into Respondent’s
production room and saw Rogers talking on a cell phone. Then
Ramirez stated that Rogers told whoever he was talking to that
the Union was coming in and somebody was going to get fired.
According to Ramirez, Rogers then turned and stared at him.
(Tr. 209–210.)
Rogers did not directly contradict Ramirez. He testified that
he never told any employee that they might be fired for sup-
porting the Union and that he never suggested to any employee
that they might be laid off if they supported the Union. He also
testified that he never ever had any conversation with Miseal
Ramirez about the Union. (Tr. 375–376.) This is not the same
as denying that he said what Ramirez testified Rogers said in
his presence. I therefore credit Ramirez. I would note that
Ramirez’ testimony is consistent with that of Virgilio Nieves,
discussed below, that Rogers told Virgilio that Larry Kieft was
really mad about Respondent’s employees’ union activities.
Despite the fact that Rogers was not initially speaking to Rami-
rez, his remark constitutes a violation of Section 8(a)(1). Val-
ley Community Services, 314 NLRB 903, 907, 914 (1994).5
Alleged 8(a)(1) Violation on November 3, 2009,
Complaint Paragraph 5(c)
Laborer Jaime Nieves testified that on his way to lunch on
November 3, he noticed Respondent’s operations manager,
Chuck Rogers, holding a ladder for employee Mark Kieft.
Nieves testified that he said to Rogers that “we already had
problems with OSHA not wearing our harnesses at work.” He
testified further that Rogers responded by saying that Nieves
“was probably the one that calls the agencies and who called
the unions.” Nieves stated he asked Rogers why he wanted to
know and Rogers told him that if he’s the one who made the
call, he’d probably lose his job for it. (Tr. 160.)
Rogers testified in a confusing manner about a conversation
with Jaime Nieves at Transcript 368–372. Rogers first stated
that he had a conversation with Jaime Nieves about the econ-
omy which changed to a conversation about the Union. Rogers
testified that he told Jaime Nieves that the economy was really
bad and there were a lot of people out of work. According to
Rogers, Jaime Nieves responded by asking him whether his
statement was a threat.
Rogers never directly contradicted Jaime Nieves’ testimony,
but relied on general denials about what he told employees.
(Tr. 368–376.) He stated that he never brought up the subject
of union elections or unions and that neither did Nieves. Thus,
Rogers’ initial statement that the conversation changed to a
conversation about the Union is unexplained. Finally, Jaime
Nieves’ testimony is consistent with that of his brother, which
is discussed below, regarding statements Rogers made to Vir-
gilio concerning Larry Kieft’s anger about union activity. I
credit Jaime Nieves and conclude that Respondent, by Chuck
Rogers violated Section 8(a)(1).

5 Indeed, this is a stronger case for an 8(a)(1) finding than Valley
Community Services in that Rogers was clearly aware that Ramirez was
in earshot when he made his remarks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

120
The Unprecedented Layoffs on November 7 and 21, 2008
On November 7, 2008, Respondent laid off four employees,
laborers Miseal Ramirez and Brandon White and drivers
Eracilio “Rocky” Esparza and Mike Kronkow. Respondent did
not provide Teamsters Local 673 prior notice of the layoffs of
drivers Esparza and Kronkow.
On November 21, Respondent laid off three additional driv-
ers, Ray Embury, George Kent, and Charles Dickerson, and
two additional laborers, Jaime Nieves and Jose Jardon. Re-
spondent did not give Teamsters Local 673 prior notice of the
layoffs of the three additional drivers. Kent had worked for
Kieft Brothers for over 30 years; Jaime Nieves for 24 years;
and Dickerson for 12. Respondent retained employees who had
worked for it for only a few years.
In the 25 years prior to November 2008, Respondent laid off
only one driver for the winter; it never implemented a mass
layoff like the one in the instant case. Even if I accepted Re-
spondent’s testimony at face value, there is no evidence that it
ever laid off more than one employee at a time prior to Novem-
ber 2008.6 As Respondent stated in its October 4, 2008 letter to
its drivers, its practice had always been to keep its drivers
working during slow periods.
Complaint Paragraph 5(d) Alleged Interrogation by
Chuck Rogers7
Virgilio Nieves, one of Respondent’s laborers, who drives a
forklift in Kieft Brothers’ yard, testified that Operations Man-
ager Chuck Rogers asked him what he thought about employ-
ees bringing a union into Kieft 1 or 2 weeks before an NLRB
election. (Tr. 237–238.)8 Virgilio Nieves told Rogers that the
employees were doing what they thought was right for them.
Rogers responded by telling Virgilio that he didn’t understand
why employees were bringing in a union because they were
paid twice as much as employees at the firm at which Rogers
used to work. Nieves told Rogers that the prounion employees
were trying to keep the benefits they already had. He testified
that Rogers then said, “Larry Kieft says that he’s not going to
be really happy. I think he’s going to be really mad about it.”
Rogers conceded that he approached Virgilio Nieves and
asked him how he felt about the Union and that he told Nieves
how much better compensated Kieft employees were than em-
ployees at other companies for which Rogers had worked. (Tr.
373.) He recalls this conversation occurring prior to the Team-
ster’s election “before the time we knew anything about a La-
borers’ election.” Rogers also testified that his inquiry to

6 Other than evidence that Respondent laid off driver Robert Boland
in 1997, there is no reliable evidence that it ever laid off any employee.
I would note that Respondent called dispatcher Gary Egerton as a wit-
ness and failed to substantiate through him its claim that Egerton was
laid off in 1983.
7 The General Counsel moved to amend the complaint to include this
allegation and that in par. 7(d) and the outset of the trial, Tr. 8–9. I
granted the motion over Respondent’s objection to the addition of par.
7(d) relating to an alleged failure to provide the Teamsters information
they requested in January 2009. Respondent did not object to the addi-
tion of par. 5(d).
8 Virgilio Nieves is the brother of Kieft laborer Jaime Nieves, who
was laid off on November 22.
Nieves concerned the Teamsters and the drivers, not the labor-
ers. (Tr. 382.) I discredit this testimony.
I find that the conversation occurred after Rogers was aware
that Laborer’s Local 25 filed a representation petition on Octo-
ber 20. It is illogical to conclude that Rogers, who had respon-
sibility for the laborers and none for the drivers, would be ask-
ing Virgilio Nieves, a laborer, how he felt about the Teamsters’
organizing drive. Moreover, Nieves’ account, which I credit in
its entirety, makes it clear that Rogers was comparing Kieft’s
laborers’ wages to those paid laborers by other employers.
Rogers testified that Nieves said he didn’t know how he felt
about the Union.
Rogers’ inquiry violated Section 8(a)(1). The applicable test
for determining whether the questioning of an employee consti-
tutes an unlawful interrogation is the totality-of-the-
circumstances test adopted by the Board in Rossmore House,
269 NLRB 1176 (1984), affd. sub nom. Hotel Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In
analyzing alleged interrogations under the Rossmore House
test, it is appropriate to consider what have come to be known
as “the Bourne factors,” so named because they were first set
out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Those
factors are:

(1) The background, i.e. is there a history of employer
hostility and discrimination?
(2) The nature of the information sought, e.g., did the
interrogator appear to be seeking information on which to
base taking acction against individual employees?
(3) The identity of the questioner, i.e. how high was he
in the company hierarchy?
(4) Place and method of interrogation, e.g. was em-
ployee called from work to the boss’s office? Was there an
atmosphere of unnatural formality?
(5) Truthfulness of the reply.

These and other relevant factors “are not to be mechanically
applied in each case.” 269 NLRB at 1178 fn. 20, Medicare
Associates, Inc., 330 NLRB 935, 939 (2000).9 I find that the
questioning tended to coerce Nieves because he was not an
open supporter of the Union and because Rogers was a high-
level management official. Moreover, Rogers let Virgilio know
that Company President Larry Kieft was seething with anti-
union animus. Nieves’ evasive response to the questioning also
indicates that he was in fact intimidated and was concerned that
Rogers might be seeking information on which Respondent
might take retaliatory action.
Rogers’ Failure to Specifically Contradict Virgilio Nieves’
Testimony Regarding Antiunion Animus
on the Part of Larry Kieft
Respondent’s counsel asked Rogers, “Did you say anything
else after asking him that question and getting his response?”
Rogers answered, “No.” (Tr. 374.) He also answered nega-
tively to several other somewhat leading questions. However,
Rogers did not specifically address Nieves’ testimony that he

9 Medicare Associates is frequently cited by the name Westwood
Health Care Center.
KIEFT BROS., INC.

121
told Nieves that Larry Kieft would be really mad about em-
ployees bringing a union into the Company. Moreover, Board
law recognizes that the testimony of current employees that
contradicts statements of their supervisors is likely to be par-
ticularly reliable. Flexsteel Industries, 316 NLRB 745 (1995),
enfd. mem. 83 F.3d 419 (5th Cir. 1996). The testimony of cur-
rent employees that is adverse to their employer is “given at
considerable risk of economic reprisal, including loss of em-
ployment . . . and for this reason not likely to be false.” Shop-
Rite Supermarket, 231 NLRB 500, 505 fn. 22 (1977). I there-
fore credit Virgilio Nieves’ account and infer that Larry Kieft
had expressed animus towards the union and prounion employ-
ees to Chuck Rogers.
That Larry Kieft bore such animus is also indicated by the
fact that he called the Elmhurst police twice on October 9 con-
cerning the Teamsters’ rally adjacent to his property, changed
the locks on Respondent’s gates the night before the election
and hired a security guard solely for the purpose of being on
Kieft’s premises during the election.10
The Election in the Laborer’s Unit
The Board conducted an election among Respondent’s la-
borers on December 1, 2008, after Respondent had already laid
off four of its laborers. Eight laborers voted against union rep-
resentation; six voted for the Union; one challenged ballot was
not opened. Despite the fact that the layoffs occurred during
the critical period between the filing of the representation peti-
tion and the election, Laborers Local 25 did not file objections
to the conduct of the election.
As a general proposition, an employer violates Section
8(a)(5) and (1) in unilaterally laying off represented employees
for economic reasons without providing prior notice to their
collective-bargaining representative and without giving their
labor organization an opportunity to bargain about the layoff
decision and it effects.
In Lapeer Foundry & Machine, 289 NLRB 952 (1988), the
Board held that when an employer lays off represented employ-
ees for economic reasons, it must bargain with their collective-
bargaining representative over the decision to lay off and the
effects of that decision. An employer’s decision to lay off em-
ployees for economic reasons is a mandatory subject of bar-
gaining.
The Board noted that the decision to lay off turns on labor
costs and must be bargained. A union can offer alternatives to
the layoff, such as wage reductions, modified work rules, or
part-time schedules for a larger group to save the company
money during an economic downturn. The Board requires an
employer to bargain over economic layoffs to insure that its
employees’ bargaining representative will have the opportunity
to proposed less drastic alternatives.

10 Larry Kieft testified that the police asked the Teamsters to move
their vehicles off a public road twice, Tr. 787. Union Organizer Santi-
ago Perez testified that Teamster vehicles were not blocking ingress or
egress. There is no police report in this record.
An Employer May Implement a Decision to Lay Off Repre-
sented Employees for Economic Reasons Without Prior Notice
to Their Union if the Decision to Conduct the Lay Off was
Made Prior to its Employees’ Selection
of a Bargaining Representative
The Board has held that an employer who decides to lay off
employees before its employees select a bargaining representa-
tive does not violate Section 8(a)(5) and (1) if it implements
that decision after the selection of the bargaining representative,
Starcraft Aerospace, Inc., 346 NLRB 1228 (2006); SGS Con-
trol Services, 334 NLRB 858 (2001); Consolidated Printers,
Inc., 305 NLRB 1061, 1061 fn. 2, 1067 (1992).
The General Counsel has made out its prima facie case that
Respondent’s layoff of its employees in November 2008 was
discriminatorily motivated and specifically that Respondent
decided to implement these layoffs after it was aware of union
activity on the part of both its drivers and laborers.
Respondent has not met its burden of proving nondiscrimina-
tory motivation for the layoff or that it decided on the layoffs
prior to its awareness of its employees’ union activities, or
prior to its drivers’ selection of Local 673 as their collective-
bargaining representative.
In order to establish a violation of Section 8(a)(3) and (1),
the Board generally requires the General Counsel to make an
initial showing sufficient to support an inference that the al-
leged discriminatees’ protected conduct was a ‘motivating fac-
tor’ in the employer’s decision. Then the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of protected conduct, Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 889 (lst Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 399–403 (1983);
American Gardens Management Co., 338 NLRB 644 ( 2002).
Unlawful motivation and antiunion animus are often estab-
lished by indirect or circumstantial evidence.
However, in the case of a mass layoff or discharge, the Gen-
eral Counsel is not required to show a correlation between each
employee’s union activity and the termination of his employ-
ment. The General Counsel must only show that the decision
to discharge or lay off was ordered to discourage union activity
or retaliate against the protected conduct of some employees,
Davis Supermarkets, 306 NLRB 426 (1992). Thus, the General
Counsel in this case was not required to prove employer
knowledge of each employee’s union activity or support.
Nevertheless, Respondent knew prior to the layoffs that
every one of its drivers voted in favor of representation by
Teamsters Local 673 and that Ray Embury, one of the two
drivers who had been rated a “B” (his performance met expec-
tations), had been the Teamsters’ observer at the October 10
election. Further, Larry Kieft’s October 9, comments to Chuck
Dickerson, the other “B” driver, leads me to conclude that Kieft
was aware that Dickerson actively supported the Union.
The layoffs of Embury and Dickerson are particularly pow-
erful indicia of discriminatory motivation. Even assuming that
Respondent had decided to lay off some employees, it has not
presented any credible evidence that it decided to lay off nine
employees prior to its knowledge of its employees’ union activ-
ity. Thus, there is no credible evidence as to when it decided to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

122
lay off two “B” employees, who I find it knew were among the
more active union supporters.
I do not credit the testimony of Larry Kieft, as to how Re-
spondent decided to lay off Embury and Dickerson, as opposed
to other “B” employees. Although, he testified that a decision
to lay off Embury and Dickerson was made on the basis of
“cross-training,” Kieft did not testify as to when this decision
was made or by whom. Moreover, I find Kieft to be an in-
credible witness given his evasiveness with regard to his al-
leged comments to Dickerson at the time of the Teamsters’
October 9 rally.
I also discredit Kieft on the basis of his testimony that he
was unaware of the Teamsters’ organizing drive until mid-to-
late September 2008. (Tr. 740.) The parties stipulated that the
Teamsters’ representation petition was faxed to Respondent on
September 2. Kieft, as Respondent’s president, would have
been aware of the petition almost immediately on its receipt.
Finally, Kieft’s testimony regarding prior layoffs, none of
which, except one, are documented, leads me to discredit him
generally.
Discriminatory motivation and antiunion animus may rea-
sonably be inferred from a variety of factors, such as the Com-
pany’s expressed hostility towards unionization combined with
knowledge of the employees’ union activities; inconsistencies
between the proffered reason for its decision and other actions
of the employer; a company’s deviation from past practices in
implementing its alleged discriminatory decision; and the prox-
imity in time between the employees’ union activities and their
discharge, Birch Run Welding, 269 NLRB 756, 765–766
(1984); Birch Run Welding v. NLRB, 761 F.2d 1175 (6th Cir.
1985); W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir.
1995).
I conclude that the General Counsel has made out a prima
facie case of discriminatory motivation that has not been rebut-
ted. The timing of the layoffs soon after the drivers unani-
mously chose union representation suggests discriminatory
motivation in conjunction with Respondent’s stated opposition
to unionization and its unprecedented mass layoff.11
By the time of the layoffs, Respondent knew that all nine of
its drivers had voted in favor of representation by Teamsters
Local 673. Thus, Respondent knew that each driver had en-
gaged in protected activity prior to the layoff. It also was aware

11 It is clear that in the 30 plus years it has been in business, prior to
November 2008, Respondent had never implemented a mass layoff.
Assuming that Kieft had previously laid off employees, there is no
evidence that it ever laid off more than one at a time prior to the layoffs
at issue in this case.
I note that had Respondent established that the November layoffs
were consistent with past practice, this would not only cut against a
finding of discriminatory motive, it would be a valid defense to the
8(a)(5) allegation. However, to prove that it was entitled to lay off
drivers without providing the Teamsters with notice and an opportunity
to bargain, Respondent would have to show that the practice occurred
“with such regularity and frequency that employees could reasonably
expect the ‘practice’ to continue or reoccur on a regular and consistent
basis.” Sunoco, Inc., 349 NLRB 240, 244 (2007); Philadelphia Coca-
Cola Bottling Co., 340 NLRB 349, 353 (2003), enfd. mem. 112 Fed.
Appx. 65 (D.C. Cir. 2004).
that Laborers Local 25 had filed a representation petition.12
There are also other indicia of discriminatory motive that
Respondent did not rebut other than by self-serving oral testi-
mony, which I decline to credit. In its July 28 letter, Respon-
dent communicated to its employees its hope that Respondent
would make it through the economic downturn without lay-
offs. In late August or early September, it paid cash bonuses to
two-thirds of its employees, including two that it later laid off.
On October 4, Respondent reminded its drivers of its philoso-
phy (and past practice) of keeping its drivers busy even during
slow periods and giving them nondelivery work assignments
during the winter months. In light of what occurred after the
election, the October 4 letter suggests that Respondent was
willing to continue this past practice only if its drivers rejected
union representation.
Moreover, the record is replete with evidence of strong anti-
union animus, particularly on the part of President Larry Kieft.
Therefore, I do not credit Respondent’s self-serving testimony
that it did not mean any of the reassuring statements made to
employees on July 28 and October 4. (E.g., Tr. 504.) Rather, I
conclude that it decided to abandon its past practice of finding
work for its employees during slow periods after its drivers
voted unanimously to be represented by the Teamsters.
The most appealing factor in Respondent’s favor is the fact
that by the fall of 2008, the worst global recession since World
War II had already begun. Respondent’s documentary evi-
dence also shows declining sales in 2008 as opposed to prior
years. However, a decline in business does not meet Respon-
dent’s burden of proving a nondiscriminatory motive given the
strength of the General Counsel’s prima facie case. Indeed,
Respondent’s chief financial officer, Ed Carroll, testified that
there is no one document that he could point to that precipitated
the decision to lay off particular people or lay off anybody on
November 7 or 21, 2008. (Tr. 929–930.) Thus, Respondent’s
affirmative defense rests entirely on the credibility of testimony
of its management witnesses.
Owner George Smith testified that it was liquidity, i.e., the
assets Respondent had available to cover its loan from its bank
that triggered the November layoff. (Tr. 555–556.) Respon-
dent’s reliance on liquidity concerns as its nondiscriminatory
basis for a layoff decision in August is not credible.
Ed Carroll, Respondent’s chief financial officer, discussed
Respondent’s liquidity concerns as reflected by its “borrowing
base reports” at great length. Respondent filed these reports,
(R. Exh. 9), with First Chicago Bank and Trust anywhere from
5 to 15 days after the end of the month for which they were
submitted. According to these documents, Respondent had the
following amounts available to cover its loan in the period be-
tween April 30, 2007, and January 31, 2009:

April 2007 $1,304,887.90 report submitted May 15, 2007
May 2007 $1,071,835.86 report submitted June 13, 2007
June 2007 $1,402,409.43 report submitted undated

12 It is well established that an employer’s failure to take adverse ac-
tion against all union supporters does not disprove discriminatory mo-
tive, otherwise established, for its adverse action against a particular
union supporter, Master Security Services, 270 NLRB 543, 552 (1984);
Volair Contractors, Inc., 341 NLRB 673, 676 fn. 17 (2004).
KIEFT BROS., INC.

123
July 2007 $1,343,100.58 report submitted Aug. 6, 2007
Aug. 2007 $1,204,068.50 report submitted Sept.13, 2007
Sept. 2007 $620,975.33 report submitted Oct. 12, 2007
Oct. 2007 $1,392,411.65 report submitted Nov. 9, 2007
Nov. 2007 $918,851.48 report submitted Dec. 5, 2007
Dec. 2007 $232,081.48 report submitted Jan. 15, 2008
Jan. 2008 $122,808.56 report submitted Feb. 14, 2008
Feb. 2008 $168,485.99 report submitted Mar. 13, 2008
Mar. 2008 $95,174.04 report submitted April 11, 2008
April 2008 $303,018.08 report submitted May 14, 2008
May 2008 $990,284.68 report submitted May 12, 200813
June 2008 $521,603.07 report submitted undated
July 2008 $728,651.85 report submitted Aug. 15, 2008
Aug. 2008 $666,270.40 report submitted Sept. 15, 2008
Sept. 2008 $352,131.39 report submitted Oct.14, 2008
Oct. 2008 $330,515.41 report submitted Nov. 14, 2008
Nov. 2008 $49,149.42 report submitted Dec. 15, 2008
Dec. 2008 $203.571.54 report submitted Jan. 13, 2009
Jan. 2008 $321,000.01 report submitted Feb. 13, 2009

These figures alone, or in conjunction with the testimony of
Respondent’s witnesses do not establish a nondiscriminatory
motive for the layoffs. I would note first that there is no evi-
dence that Respondent’s bank threatened foreclosure or that
Respondent had any discussions regarding its financial situation
with this lender, or any other financial institution to alleviate its
liquidity concerns. The lack of such evidence contributes to my
conclusion that Respondent has failed to make out its affirma-
tive defense, Huck Store Fixture Co., 334 NLRB 119, 120
(2001).
Further, there is no credible explanation why, for example,
the borrowing base figure for March 2008 did not lead to a lay-
off while the figure for November 2008, which Respondent did
not have until December 3, allegedly was a motivating factor
for such a reduction-in-force. Moreover, Respondent’s borrow-
ing base improved slightly in July and August when Respon-
dent claims to have made its decision to lay off nine employees,
as compared to June.
As the General Counsel sets out at page 27 of its brief, Re-
spondent’s records regarding concrete production and delivery,
(R. Exhs. 6 and 7), also fail to establish a nondiscriminatory
motive for the layoffs. Concrete production increased from
July to August 2008; deliveries of concrete decreased some-
what. The decrease in concrete production and delivery, com-
pared to 2007, are smallest for any months of the year.
Respondent has not Established When it Decided to Lay Off
Employees, Who Made this Decision or Decisions and/or
the Means by Which this Decision was Finalized
Larry Kieft testified that by the end of 2007 work was slow-
ing down. George Smith also testified that Kieft’s business
started to decline in the third quarter of 2007. (Tr. 458.) Ac-
cording to Kieft, by April-May 2008, Respondent knew 2008
was going to be “kind of a lean year.” (Tr. 410–411.) Kieft
testified that in the “spring-summer” Dempsey Ing, Incorpo-
rated, which accounted for 8–10 percent of Kieft’s business

13 The date of this report looks like May 12, 2008, but if this report
was for May it had to have been submitted in June.
went bankrupt. Smith testified that in May 2008 Dempsey
owed Kieft $775,000.
Kieft intimated that George Smith and Ed Carroll first spoke
to him about layoffs in June or July. (Tr. 427.) Carroll indi-
cated that he told Kieft and Smith that Respondent needed eco-
nomic savings through reduced labor costs. (Tr. 931.) If cred-
ited, his testimony leaves open the possibility that this reduc-
tion could have been realized through means other than lay-
offs, such as wage cuts, reduced hours, and/or furloughs. There
is no evidence that Respondent considered any way to reduce
labor costs other than by layoff. Given the fact that I find that
this decision was made after Respondent knew about the Team-
ster’s election victory, Respondent was legally obligated to
bargain about such matters with Local 673.
Kieft testified on cross-examination that a decision to have a
lay-off was made in June and the decision as to how many em-
ployees were to be laid off was made in August. (Tr. 752–553.)
He also testified that the decision to lay-off employees “was
officially made” in August. (Tr. 428.) Larry Kieft also testi-
fied that he thinks the decision to lay off four laborers and five
drivers was made in August. (Tr. 429.) Later, he recalled that
the decision was made at a meeting at Respondent’s facility
attended by himself, Larry Sims Jr., Respondent’s general man-
ager and George Smith (Tr. 749), but could not testify as to the
date this decision was made. (Tr. 759.)
George Smith testified that he and Carroll starting consider-
ing layoffs in May 2008. (Tr. 464.) He further stated that the
decision on the quantity of layoffs was made in the early part
August, but could not testify as to the date this decision was
made and testified that there is no documentation as to when
this decision was made. (Tr. 498–500.) He testified that it
could have been either the first or second week of August.
Smith also testified that the decision as to which employees
would be laid off was made in early August. (Tr. 505, 507.)
Ed Carroll’s testimony as to when the critical decisions re-
garding the layoff is even more tentative. When asked when
specific decisions were made, Carroll testified, “[S]ometime in
August, I believe, it was.” (Tr. 727.) As to the number of em-
ployees to be laid off, Carroll testified this was determined
“sometime in that August timeframe.” (Tr. 728.) Carroll’s
testimony suggests that the decision to lay off employees and
the number to be laid off may have been made at different
times. The testimony of Smith and Larry Kieft suggests that a
decision to lay off nine employees was made at the same time a
decision was made to have any layoff. However, neither testi-
fied as to how it was determined that it was that nine employ-
ees, as opposed to a lesser or greater number was chosen or
who made that determination. (Tr. 803–804.)
Carroll also testified that he calculated the cost savings Re-
spondent would realize from the layoff of nine employees in
August. However, Respondent has no documentation to sup-
port his testimony and I do not credit it.
The fact that Respondent paid cash bonuses to Ray Embury
and Chuck Dickerson in late August or early September makes
it very unlikely that Respondent had decided to lay them off
before that date—particularly since neither Embury nor
Dickerson knew they were getting a bonus until the bonus ap-
peared in their paychecks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

124
As to the exact timing that the layoffs would occur, Smith
testified that Respondent wanted to make it to Thanksgiving
before laying off any employees, but decided to lay off four on
November 7, due to a deteriorating liquidity situation. (Tr.
555–556.) He did not specify when this decision to accelerate
the layoff of four employees was made.
Respondent’s liquidity problem markedly improved in De-
cember 2008 when Dempsey, Ing paid Respondent $400,000 of
the $775,000 it owed to Kieft Brothers and Respondent deter-
mined that it had $150,000 in inventory more than what it
showed on its books.
Ed Carroll testified that “right around Thanksgiving,” Re-
spondent received notice that $400,000 worth of liens on
money due from Dempsey, Ing, were going to be processed.
(Tr. 872.) Respondent presented no documentary evidence to
support this testimony. The exact date that Respondent became
aware that it was going to receive this money is critical to this
case, in that if Kieft knew it was receiving the $400,000 prior to
November 21, it would have obviated the need for some or all
of the layoffs. The date as of which Respondent knew or sus-
pected that it had additional inventory to cover its loan is also
critical to Kieft’s contentions that it had to lay off nine employ-
ees in November to avoid foreclosure.
Respondent’s failure to present precise testimony as to when
critical decisions were made, who made those decisions and on
what basis these decisions were made and its failure to present
precise and consistent testimony as to when it was aware of
critical facts leads me to discredit its affirmative defense. I thus
conclude it has failed to rebut the General Counsel’s prima
facia case. Further, I conclude that the decision to lay off em-
ployees was discriminatorily motivated and was made after the
Teamsters prevailed in the October 10 representation election.
The Teamsters’ Information Request
At the second bargaining session between Respondent and
Teamsters Local 673 on January 6, 2009, the Union proposed
that Respondent agree to participate in its health insurance and
pension plan. Respondent rejected that proposal and stated it
wished to remain with its health insurance plan. Roger Kohler,
secretary-treasurer of Teamster’s Local 673 asked Respondent
for a copy of its health insurance plan. (Tr. 281.)
When a collective-bargaining representative seeks informa-
tion from an employer regarding matters pertaining to bargain-
ing unit employees, the request is presumptively relevant and
the employer generally has a duty to provide such information.
Respondent appears to concede that the Union is entitled to the
information it requested. Its defense is that it has not refused to
provide the information nor has it been dilatory in responding
to the Union’s requests.
I find that Respondent violated Section 8(a)(5) in failing to
provide the Union a copy of its health insurance plan in a
timely fashion. This request was made orally to Respondent on
January 6. A request for information need not be in writing to
commence an employer’s obligation to provide the requested
material, A.W. Schlesinger Geriatric Center, 304 NLRB 206,
207 fn. 7 (1991); LaGuardia Hospital, 260 NLRB 1455 (1982).
An employer must respond to an information request in a
timely manner. An unreasonable delay in furnishing such in-
formation is as much of a violation of Section 8(a)(5) of the Act
as a refusal to furnish the information at all, American Signa-
ture Inc., 334 NLRB 880, 885 (2001).14 In the instant case,
Respondent’s failure to provide the Union a copy of its health
insurance plan from January 6 through April 14, is an unrea-
sonable delay and violates Section 8(a)(5).
Roger Kohler testified that his February 2, 2009 written in-
formation request was sent to Respondent in the mail. There is
no persuasive evidence that Respondent received this letter.
However, on February 26, 2009, the Union sent a three-page
fax to McDermott, Will & Emery, Respondent’s counsel’s law
firm. (GC Exh. 30.) Only the cover sheet is in this record.
That sheet reflects a fax of three pages pertaining to an infor-
mation request to Kieft Brothers. On March 24, the Union sent
a two-page fax specifically addressed to Doyle at McDermott,
Will & Emery. (GC Exh. 29.) George Smith testified that he
did not see the February 2 letter until late March or early April.
(Tr. 518–519.)
Respondent suggests that it was not aware of the February 2
letter until March 24, and thus has not been unreasonably dila-
tory in responding to it. Given the fact that it has not been es-
tablished that Respondent was aware of the request for financial
records until 2 to 3 weeks prior to the hearing, I decline to find
that it had violated Section 8(a)(5) in this regard as of April 15.
I would note, however, that if Respondent has not satisfied this
request as of the date of this decision, its failure to do so would
be unreasonable.
SUMMARY OF CONCLUSIONS OF LAW
1. Respondent, by Larry Kieft, violated Section 8(a)(1) of the
Act on October 9, 2008, when he asked employee Chuck
Dickerson whether he wanted to join the rest of the unem-
ployed people at the Teamsters Local 673 rally.
2. Respondent, by Chuck Rogers, violated Section 8(a)(1) in
October 2008 by stating in the presence of employee Miseal
Ramirez that the Union was coming in and somebody was go-
ing to get fired.
3. Respondent, by Chuck Rogers, violated Section 8(a)(1) on
or about November 3, 2008, by telling employee Jaime Nieves
that if he was the one calling the agencies and the unions he
would probably lose his job.
4. Respondent, by Chuck Rogers, violated Section 8(a)(1) in
October or November 2008 by interrogating Virgilio Nieves
about whether he supported or sympathized with an organizing
drive at Respondent’s facility.
5. Respondent violated Section 8(a)(3) and (1) in laying off
four employees on November 7, 2008, and five more employ-
ees on November 21, 2008.
6. Respondent violated Section 8(a)(5) and (1) by failing to
give Teamsters Local 673 advance notice of its layoff of five
employees represented by Local 673 and failing to give the
Union an opportunity to bargain about the layoff and/or its
effects.
7. Respondent violated Section 8(a)(5) and (1) in failing to
provide Teamsters Local 673 a copy of its health insurance plan

14 This case has also been cited under the name of Amersig Graph-
ics, Inc.
KIEFT BROS., INC.

125
in a timely manner.
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.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Remedy for Respondent’s Failure to Give Teamsters Local
673 Advance Notice and an Opportunity to Bargain over
the November Layoff
The Board held in Lapeer Foundry & Machine, supra, that
the remedy for a failure to bargain over a decision to lay off
employees is reinstatement of the laid-off employees with
backpay. Id. at 955. It reiterated this holding in Ebenezer Rail
Car Service, 333 NLRB 167 (2001).
The Board noted that this remedy provides an economic in-
centive for an employer to comply with the rules that requires
an employer to negotiate with the union before changing the
working conditions in the bargaining unit thereby preventing
the employer from undermining the union by taking steps
which suggest to the workers that the union is powerless to
protect them. Thus, I will order Respondent to reinstate em-
ployees Esparza, Kronkow, Dickerson, Kent, and Embury as a
remedy for Respondent’s failure to bargain, as well as for its
discriminatory layoff. Respondent’s backpay liability shall run
from the date of the layoff until the date the employees are
reinstated to their same or substantially equivalent positions or
have secured equivalent employment elsewhere.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Kieft Brothers, Inc., Elmhurst, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining and/or coercing employees in
the rights guaranteed by Section 7 of the Act, by coercively
interrogating them regarding their union sympathies or support
or threatening retaliation against them for supporting any union.
(b) Failing and refusing to bargain in good faith with Team-
sters Local 673 with regard to the wages, hours, and working
conditions of members of its drivers’ bargaining unit.
(c) Failing to respond with reasonable promptness to infor-
mation requests from Teamsters Local 673.

15 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(d) Discriminating or retaliating against any employees due
to their support or the support of any other employees for a
labor organization.
(e) 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) On request, bargain with Teamsters Local 673 as the ex-
clusive representative of the employees in the truckdrivers’
bargaining unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement.
(b) Within 14 days from the date of the Board’s Order, offer
Miseal Ramirez, Brandon White, Eracilio “Rocky” Esparza,
Mike Kronkow, Ray Embury, George Kent, Charles Dickerson,
Jaime Nieves, and Jose Jardon full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(c) Make Miseal Ramirez, Brandon White, Eracilio “Rocky”
Esparza, Mike Kronkow, Ray Embury, George Kent, Charles
Dickerson, Jaime Nieves, and Jose Jardon whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the 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 re-
cords, 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
Elmhurst, Illinois facility, copies of the attached notice marked
“Appendix”16 in both English and Spanish. Copies of the no-
tice, on forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since October 9, 2008.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

16 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

126
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 threaten to fire you or lay you off because you
support Teamsters Local 673, Laborers Local Union 25, or any
other union.
WE WILL NOT interrogate you about your activities, sympa-
thies for, or support of any labor organization, nor will we in-
terrogate you about the union activities, sympathies or support
of any other employee.
WE WILL NOT fail or refuse to bargain collectively and at rea-
sonable times on request concerning wages, hours, and other
terms and conditions of employment with Teamsters Local 673,
as the exclusive bargaining representative of all our full-time
and regular part-time drivers.
WE WILL NOT lay off our drivers without notice to Teamsters
Local 673 and providing Local 673 the opportunity to bargain
with regard to any layoff and its effects.
WE WILL NOT fail and refuse to provide information in a rea-
sonably prompt manner to Teamsters Local 673 upon a written
or oral request when such information is relevant to Local
673’s responsibilities relating to collective bargaining.
WE WILL NOT lay off employees in retaliation for their sup-
port, or the support of other employees, for Teamsters Local
673, Laborers Local Union 25, or any other 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, within 14 days from the date of this Order, offer
Miseal Ramirez, Brandon White, Eracilio “Rocky” Esparza,
Mike Kronkow, Ray Embury, George Kent, Charles Dickerson,
Jaime Nieves, and Jose Jardon full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make Miseal Ramirez, Brandon White, Eracilio
“Rocky” Esparza, Mike Kronkow, Ray Embury, George Kent,
Charles Dickerson, Jaime Nieves, and Jose Jardon whole for
any loss of earnings and other benefits resulting from their
discriminatory layoff, less any net interim earnings, plus inter-
est.
WE WILL promptly provide Teamsters Local 673 with any in-
formation it requests either in writing or orally which is rele-
vant to its duties as the exclusive collective-bargaining repre-
sentative of our truckdrivers.

KIEFT BROTHERS, INC.