Mid-Continent Concrete

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 258 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258
Hardesty Company, Inc. d/b/a Mid-Continent Con-
crete and Teamsters Local Union 373, AFL–
CIO. Case 26–CA–17571
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On September 29, 1998, Administrative Law Judge D.
Randall Frye issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed a cross-exception and an answer-
ing brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings1 and conclusions, as
modified, and to adopt the recommended Order as modi-
fied and set forth in full below.2
1. The judge found that the Respondent violated Sec-
tion 8(a)(5) of the Act by refusing to supply information
regarding the wage rate of mechanic Mark Bell and re-
fusing to allow the Union to review an applicant list for
the position of truckdriver.
It is well established that an employer must provide an
incumbent union with requested information, which is
necessary and relevant to the performance of its role as
collective-bargaining representative. NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1967). Acme endorsed the
“discovery type standard” applied by the Board. NLRB
v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2d Cir.
1951). The Board has held that an employer has a statu-
tory duty to furnish a union with information concerning
suspected discriminatory hiring practices for bargaining
unit positions. See Star Tribune, 295 NLRB 543, 549
(1989). See also Bendix Corp., 242 NLRB 62, 63
(1979); White Farm Equipment Co., 242 NLRB 1373,
1374–1375 (1979), enfd. sub nom. Electrical Workers v.
NLRB, 650 F.2d 334 (D.C. Cir. 1980).
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a) (5) by refusing to furnish the list of
applicants for the driver positions. Applicant and union
member Jerry Hixson applied for a position as a truck-
driver, but was not hired. Three other applicants were
hired contemporaneously, none of whom had ostensibly
superior qualifications. The Union wrote a letter to the
Respondent on August 28, 1996, requesting to review the
list of applicants, asserting that Hixson was being dis-
criminated against at least in part because of union activ-
ity. Specifically, the letter stated, inter alia, that “Brother
Hixson is over 40 years of age and was wearing a Team-
ster cap when he filled out the application. We feel these
are the reasons he was not considered for one of the three
positions that have been filled.” The Respondent did not
reply to the request.

1 The Respondent excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with Excel Container, Inc., 325 NLRB 17 (1997), and with our recent
decision in Ferguson Electric Co., 335 NLRB 142 (2001).
The Respondent contends that the allegation that it
failed to provide the applicant list is moot because a
separate allegation that the Respondent discriminatorily
failed to hire Hixson was withdrawn at hearing. We find
no merit in the Respondent’s mootness argument. Al-
though the motivation for the Union’s information re-
quest, at least in part, was concern over discriminatory
hiring practices, the issue is not whether the Respondent
unlawfully refused to hire Hixson, but the right of the
Union to obtain, pursuant to the Board’s discovery-type
standard, information about the hiring policy in order for
it to fulfill its statutory duty to fairly represent employ-
ees. Cf. Markle Mfg., 239 NLRB 1142, 1145 (1979),
enfd. as modified 623 F.2d 1122 (D.C. Cir. 1980). See
also NLRB v. Arkansas Rice Growers Assn., 400 F.2d
565, 567–568 (8th Cir. 1968) (union’s ultimate aban-
donment of its underlying dispute does not negate its
relevance at the time the information was requested).
The Respondent further contends that the judge’s find-
ing is at odds with the holding of the U.S. Court of Ap-
peals for the Third Circuit in Hertz Corp. v. NLRB, 105
F.3d 868 (1996). We disagree. Under that court’s test,
the union must present facts sufficient to support a rea-
sonable suspicion that the employer has discriminated.
Hertz v. NLRB, 105 F.3d 868. In this case, the Union
informed the Respondent of the factual basis underlying
its suspicion: i.e., that Hixson wore a union cap; he was
not hired; and the Union suspected this was the reason he
was not hired. Thus, even under the Third Circuit’s test,
the Respondent violated the Act.
We also affirm the judge’s finding that the Respondent
violated Section 8(a)(5) by refusing to furnish the wage
rate of employee Mark Bell. On September 16, 1996,
during regular business hours, the Union sent a request
for this data by facsimile (fax) machine to Respondent’s
attorney, Steven Andrew. The Union’s fax machine, in
turn, generated a confirmation report indicating receipt of
336 NLRB No. 18
MID-CONTINENT CONCRETE 259
the transmission by Andrew’s machine that day.3 The
Respondent contends that it never received the fax and
that, in any event, it was not obligated to furnish the in-
formation inasmuch as Bell, who had recently been
transferred to a nonunit position, is not in the bargaining
unit.
Unit employees wage rates are presumptively relevant4
and Bell had been a member of the unit at the time rele-
vant to the request. As such, the Respondent was obli-
gated to furnish the Union with Bell’s pay rate. On the
record here, we believe the judge was correct to impute
knowledge of the Union’s request to the Respondent.
The Board has “recognize[d] the facsimile machine as an
effective and generally reliable means of communica-
tion.” B&C Contracting Co., 334 NLRB 218, 219
(2001). See Clow Water Systems, 317 NLRB 126
(1995), enf. denied 92 F.3d 441 (6th Cir. 1996). The
Union’s fax confirmation report, introduced into evi-
dence, was sufficient to create a presumption that An-
drew received the fax. B&C Contracting Co., supra.
The Respondent has not successfully rebutted the pre-
sumption. Although, in his capacity as counsel for the
Respondent, Andrew has denied receipt of the Union’s
request, he did not testify at trial. Nor did the Respondent
introduce other evidence tending to establish that, despite
the confirmation report, the fax was not received by An-
drew. Under the circumstances, we do not believe the
General Counsel was required to prove the Respondent’s
actual knowledge of the Union’s request. Accord: Elec-
trical Workers Local 98 (Telephone Man), 327 NLRB
593 (1999).
2. We agree with the judge’s finding that the Respon-
dent violated Section 8(a)(5) by unilaterally changing
bargaining unit employees’ health insurance benefits.
An employer’s unilateral change in a mandatory subject
of bargaining during collective-bargaining negotiations
violates Section 8(a)(5) of the Act. NLRB v. Katz, 369
U.S. 736 (1961). Bottom Line Enterprises, 302 NLRB
373 (1991). Contrary to the Respondent’s assertions, it
is immaterial that its changes to the plan, a mandatory
subject of bargaining, were companywide and as such
involved both unit and nonunit employees. See Compu-
Net Communications, 315 NLRB 216, 222 (1994); and
United Hospital Medical Center, 317 NLRB 1279,
1281–1283 (1995). The Respondent unilaterally imple-
mented a new health insurance plan that resulted in a
change of benefits. The new plan required the employ-
ees to pay higher premiums and changed coverage.

3 In describing the confirmation report, the judge inadvertently re-
ferred to Andrew as “Anderson.”
4 See Sea-Jet Trucking Corp., 304 NLRB 67 (1991); W. B. Skinner,
Inc., 283 NLRB 989, 990 (1987).
Thus, the Respondent violated Section 8(a)(5) of the Act.
Furthermore, there is no merit to the claim that the Union
agreed to the new health plan, as the Respondent pre-
sented no evidence to support this contention.
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(5) by unilaterally changing the wage
rate of Mark Bell and James Flippen. As the General
Counsel notes in his cross-exception, the judge failed to
set forth the following underlying facts to support his
finding: The Respondent hired Mark Bell as a mechanic
on May 2, 1996, at $11 an hour, 25 cents higher than the
existing rate for that position. On April 29, 1996, the
Respondent also raised front-end loader James Flippen’s
wage rate to $9.80 an hour, 80 cents higher than the pre-
vious highest rate for front-end loaders. The parties did
not bargain over these changes.
We also find no merit in the Respondent’s contention
that the complaint fails to allege the unilateral wage
changes as 8(a)(5) violations. During the hearing the
General Counsel moved to allege the conduct as an
8(a)(5) violation. The judge said that this was not neces-
sary. He also stated that the General Counsel could brief
any allegation that was fully and fairly litigated. The
judge found, and we agree, that the wage change allega-
tions have been fully and fairly litigated as 8(a)(5) issues.
The judge found the 8(a)(5) violation. Accordingly, we
find that the Respondent violated Section 8(a)(5) by uni-
laterally increasing the wages of Bell and Flippen.
3. The judge found, and we agree, that on or about Oc-
tober 13, 1995, and continuing thereafter, the Respondent
engaged in surface bargaining in violation of Section
8(a)(5) of the Act.
Section 8(d) of the Act requires “the employer to meet
at reasonable times with the representative of its employ-
ees and confer in good faith with respect to wages, hours
and other terms and conditions of employment. This
obligation does not compel either party to agree to a pro-
posal or to make a concession.” Nonetheless, the Act is
predicated on the notion that the parties must have a sin-
cere desire to enter into “good faith negotiation with an
intent to settle differences and arrive at an agreement.”
NLRB v. Wonder State Mfg. Co., 344 F.2d 210 (8th Cir.
1965). Therefore, “mere pretense at negotiations with a
completely closed mind and without a spirit of coopera-
tion does not satisfy the requirements of the Act.” Id. A
violation may be found where the employer will only
reach an agreement on its own terms and none other.
Pease Co., 237 NLRB 1067, 1079 (1978).
In determining whether the Respondent bargained in
bad faith, we look to the “totality of the Respondents
conduct,” both at and away from the bargaining table.
Relevant factors include: unreasonable bargaining de-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260
mands, delaying tactics, efforts to bypass the bargaining
representative, failure to provide relevant information,
and unlawful conduct away from the bargaining table.
See Atlanta Hilton & Tower, 271 NLRB 1600 (1974);
NLRB v. Stanislaus Implement & Hardware Co., 226
F.2d 377 (9th Cir. 1955); and NLRB v. Arkansas Rice
Growers Assn., supra at 572.
From its first proposal forward, the Respondent called
for a substantial reduction in extant wages and benefits,
particularly economic benefits. Prior to the advent of the
Union as the employees’ exclusive representative, the
employees had received paid overtime after 40 hours, 7
days’ vacation, a companywide insurance plan to which
the employees made monthly contributions, and a 401(k)
and bonus load plans. In addition, employees were enti-
tled to a 1-week vacation after 1 year and 2-week vaca-
tion after 2 years. Under the Respondent’s initial pro-
posals, the employees would lose paid overtime, result-
ing in a substantial loss of income.5 The Respondent also
changed the employee’s insurance coverage, such that
the employees were required to pay higher premiums and
received less coverage and proposed the elimination of
the 401(k) and bonus load plans.
With respect to its vacation proposal, the Respondent
engaged in regressive bargaining. On November 29,
1995, the Respondent proposed a 1-week vacation after 1
year of employment and 2 weeks’ vacation after 2 years.
Under the proposal that the Respondent advanced on
February 5, 1996, however, the employees were required
to work a minimum of 1540 hours per year or 38-1/2 (40
hours) weeks before they would be entitled to any vaca-
tion time, and they would not receive a second weeks’
vacation until they worked 3 years, rather than 2.
Where the proponent of a regressive proposal fails to
provide an explanation for it, or the reason appears dubi-
ous, the Board may weigh that factor in determining
whether there has been bad-faith bargaining. As the
Board stated in John Asquaga’s Nuggett, 298 NLRB 524,
527 (1990), enfd. in pertinent part sub nom. Sparks Nug-
get v. NLRB, 968 F.2d 991 (9th Cir. 1992), “refusal[s] to
budge from an initial bargaining position, [refusals] to
offer explanations for one’s bargaining proposals (be-
yond conclusional statements that that is what a party
wants), and [refusals] to make any efforts at compromise
in order to reach [a] common ground” can constitute evi-
dence of bad-faith bargaining.
The Respondent failed to provide a legitimate explana-
tion to justify the significant differences between the
proposals that it advanced in negotiations and the status

5 According to employee Chris Poole, the employees averaged 10
hours a week of paid overtime. In his case, he averaged $135 a week in
overtime based on his $9-hour wage rate.
quo prior to negotiations. The record shows that, in bar-
gaining, the Respondent did not attempt to justify its
economic proposals. Even when it attempted to do so
after-the-fact on brief by asserting that Fort Smith/Van
Buren facility was Mid-Continent Concrete’s least prof-
itable facility, no evidence was presented to support this
claim. Belying this contention is the statement by the
Respondent’s general manager, Bill Lincks, that, had
employees not elected the union they would be earning
$10 an hour, a wage rate higher than the status quo prior
to bargaining. When the Respondent insisted on elimi-
nating paid overtime, a benefit accounting for a signifi-
cant portion of the employees’ wages, its only explana-
tion was its unsubstantiated claim that it was considering
this practice on a companywide basis. The Respondent,
however, provided no evidence that it considered or im-
plemented a no-overtime policy at any of its other facili-
ties. In contrast, the Respondent also proposed maintain-
ing current wages rates for unit employees despite the
contemporaneous grant of wage increases to the Respon-
dent’s other nonunion facilities. The Respondent also
refused, without explanation, the Union’s proposal of
accumulating vacation on a pro rata basis, and the Re-
spondent proposed elimination of the 401(k) and bonus
load plans.
The Respondent was similarly unwilling to compro-
mise on, or provide explanations for, its noneconomic
proposals. The Respondent’s management-rights clause
would allow the Respondent to assign all unit work to
employees outside the unit. The Respondent’s explana-
tion was that it wanted the ability to subcontract work,
including bargaining unit work when it believed that it
would be beneficial to do so. The examples the Respon-
dent gave where the subcontracting clause would be of
use concerned nonbargaining unit work (e.g., equipment
repair which unit employees were untrained to perform),
yet the language of the provision was much broader than
what the Respondent claimed was its intended use.
Viewing, as did the judge, the “totality of the circum-
stances,” we find that the Respondent’s lack of an expla-
nation and justification for these proposals, its intransi-
gence, and its failure to make concessions support a find-
ing that the Respondent intended to avoid reaching an
agreement.
Further evidence of bad faith can be found in the or-
chestrated, almost staged, manner of the negotiation.
Unexplained concessions can be considered a tool to
disguise and conceal a party’s strategy of surface bar-
gaining. NLRB v Herman Sausage Co., 275 F.2d 229
(5th Cir. 1960). The Respondent’s negotiating style was
to put forward a harsh bargaining proposal, stand by the
proposal, then as the negotiations dragged on, concede
MID-CONTINENT CONCRETE 261
no more than the status quo, and stall the negotiations by
refusing or delaying its response to any additional pro-
posals. Negotiations were held approximately once a
month, and the negotiating sessions did not increase in
frequency even as the parties’ differences narrowed. The
Respondent put forward several unsubstantiated propos-
als, and then later retreated from them, with no explana-
tion. Additionally, as the negotiations progressed, the
Respondent, in a uniform manner, appeared to slow
down and drag out the negotiations. An example is its
vacation proposals. Prior to February 12 the parties had
agreed to a number of noneconomic proposals. On Feb-
ruary 12, roughly 6 months into the negotiations, the
Respondent submitted a regressive vacation proposal.
The Respondent withdrew a proposal that would have
left vacation at the status quo and substituted a proposal
that included a provision that entitled the employees to 2
weeks’ vacation only after 3 years’ employment. No
reason was advanced for why the Respondent altered its
proposal. Later, the Respondent made a concession in
giving up its demand for 2 weeks’ vacation only after 3
years. There was no indication that Respondent’s con-
cession was in exchange for anything. Backing off on
part of the proposal enabled the Respondent to claim it
had made concessions while still allowing the Respon-
dent to stall the negotiations. The Respondent also com-
promised on the elimination of the 401(k) and bonus load
plan for no apparent reason (i.e., there was no tradeoff).
By April, the Respondent’s chief negotiator indicated
that, although it had new proposals, it was instructed not
to present them. By July, the Respondent was delaying
its responses to the Union’s proposals, particularly the
September 5 proposal which represented a significant
movement toward the Respondent’s position.
Furthermore, the Respondent’s conduct away from the
bargaining table evidenced bad faith. The Respondent’s
attempts to bypass the Union and deal directly with the
employees, its unilateral changes in terms and conditions
of employment, and failure to provide relevant informa-
tion, as well as its conduct in violation of Section 8(a)(1),
further manifested the objective of frustrating and pre-
venting an agreement from being reached.
Moreover, there is a nexus between the unlawful acts
and the Respondent’s conduct during negotiations suffi-
cient to reflect the Respondent’s intent not to bargain in
good faith. See Litton Systems, 300 NLRB 324, 330
(1990), enfd. 949 F.2d 249 (8th Cir. 1991). The Respon-
dent’s bad faith was clearly evidenced in its attempt to
unlawfully bypass the Union and deal directly with the
employees. The Respondent had no prior history of so-
liciting employee grievances. Bad faith was also evi-
denced through the Respondent’s unilateral changes in
wages and insurance benefits. These actions seek to
communicate to employees that there is no need for the
Union as their collective-bargaining representative. See
May Department Stores Co. v NLRB, 326 U.S. 376, 384–
385 (1945).
In addition, the 8(a)(1) statements of one of the Re-
spondent’s supervisors provide a roadmap to the Re-
spondent’s bargaining strategy. Thus, in October 1995,
Supervisor Bill Lincks, in response to employee Chris
Poole’s statement of approval over the Respondent’s
perceived willingness to negotiate at the onset of bar-
gaining, replied that “the Union would be there one
year.” In April 1996, Gary Lincks told employee Paul
Cook that “within a year the whole thing would be over
with and they’d probably have a new vote.” Bill Lincks
also told employee J.R. Cook that he was going to “ap-
point [him] supervisor, that way [he] won’t be able to
vote next time.” When questioned as to when the next
vote would take place, Bill Lincks replied: “the same
time it did last year,” with implied reference to the con-
clusion of the certification year. Also in April 1996,
Gary Lincks told employee Wesley Smith that “it would
be to the Company’s benefit not to enter into a contract
with the Union, the main reason being it would cost them
money and that they would and could wait until all the
Union’s supporters were gone then they’d have every-
thing their own way.” Wesley Smith was also told that
“it wouldn’t do us any good to negotiate with the Com-
pany because they’ll just wait . . . till the next election.”
On September 5, 1996, Bill Lincks asked employee
Poole whether he was needed at what would prove to be
the final bargaining session. When Poole responded that
he was needed, Links replied that “he didn’t know why
they needed both of you (i.e., Poole and Paul Cook) all
here. You are going to accomplish the same thing
you’ve always accomplished which is absolutely zero.”
These statements clearly indicate that the Respondent
intended to drag out the negotiations until a year had
passed and then request a new vote to rid itself of the
Union. The statements also inform the employees that
bargaining is futile and that they would be better off
without the Union because, as Bill Lincks told Poole, “if
they hadn’t joined [they would] have done had done had
$10 an hour and done had new trucks.”
Thus, the Respondent’s conduct both at and away from
the bargaining table clearly demonstrates that it intended
to frustrate negotiations, and prevent the successful nego-
tiation of a bargaining agreement. Accordingly, we find
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262
that the Respondent violated Section 8(a)(5) of the Act
by engaging in surface bargaining.6
ORDER
The National Labor Relations Board orders that the
Respondent, Hardesty Company, Inc., Van Buren and
Fort Smith, Arkansas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Informing employees that bargaining with the Un-
ion would be futile.
(b) Informing employees that they will not be assigned
work with Winslow facility employees because of their
union activities.
(c) Informing employees that had they not selected the
Union as their collective-bargaining representative they
would have received a raise and new trucks.
(d) Informing employees that negotiating with the Un-
ion would accomplish zero.
(e) Telling employees that it would not enter a collec-
tive-bargaining agreement and that there would be a new
vote within a year.
(f) Making obscene and derogatory remarks about em-
ployees’ union caps.
(g) Refusing to bargain in good faith with the Union as
the certified collective-bargaining representative of the
employees in the appropriate collective bargaining de-
scribed below.
(h) Engaging in surface bargaining.
(i) Bypassing the Union and dealing directly with em-
ployees.
(j) Unilaterally changing pay rates and health insur-
ance benefits.
(k) Refusing to provide the Union with requested rele-
vant information.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) On request of the Union, revoke the unlawfully im-
plemented wage increase.
(b) On request of the Union, revoke the unlawfully
implemented health insurance plan and return to the

6 As set forth in his concurrence, Chairman Hurtgen would also au-
thorize the Regional Director to appoint, at the Union’s request, a me-
diator. The mediator would be directed, at the Respondent’s expense,
to participate in all bargaining sessions and to attempt to forge an
agreement or, failing an agreement, to report to the parties and the
Regional Director on the status of negotiations and the mediator’s
recommendations. We find the Chairman’s proposal of interest. How-
ever, as the General Counsel has not sought this novel remedy and the
parties have not had an opportunity to brief the issue, we will not ad-
dress it at this time.
status quo and/or any other insurance plan agreed to by
the Union, and make employees whole for any losses
sustained from this unlawful unilateral change.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records,
timecards, personnel records and reports, and all other
records, including an electronic copy of such records if
stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(d) On request, bargain collectively with the Union as
the exclusive representative of all employees in the unit
with respect to pay, wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment. The appropriate unit is:

All drivers, batchmen, mechanics and front-end loader
drivers employed by the employer at its Van Buren and
Fort Smith, Arkansas, facilities. Excluded from the
unit are all office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act.

(e) Within 14 days after service by the Region, post at
its facilities in Winslow, Van Buren, and Fort Smith,
Arkansas, copies of the attached notice marked “Appen-
dix.”7 Copies of the notice, on forms provided by the
Regional Director for Region 26, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 em-
ployees and former employees employed by the Respon-
dent at any time since October 13, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on the form provided by the Region
attesting to the steps that the Respondent has taken to
comply.

7 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
MID-CONTINENT CONCRETE 263
CHAIRMAN HURTGEN, concurring in part.
1. I agree with my colleagues that the Respondent has
engaged in bad-faith bargaining in violation of Section
8(a)(5) and has committed other violations of Section
8(a)(1) and (5).
Unlike my colleagues, however, in finding that the Re-
spondent did not bargain in good faith, I rely principally
on statements by Respondent’s agents. In these state-
ments, the Respondent vowed to end the bargaining rela-
tionship after the certification year had expired, threat-
ened to insure a union loss in a new election by appoint-
ing prounion bargaining unit employees to supervisory
positions, told employees that they would have higher
wages and new trucks if they reject union representation,
and predicted that the Union would accomplish “abso-
lutely zero” in negotiations. In my view these statements
are sufficiently tied to the Respondent’s position in bar-
gaining as to reflect the Respondent’s intent to avoid
reaching an agreement. See Litton Systems, 300 NLRB
324 (1990), enfd. 949 F.2d 249 (8th Cir. 1991).
I would not, however, rely on the fact that the Respon-
dent made initial proposals which, if accepted, would
have resulted in the employees receiving lower pay and
fewer benefits than they had received before the advent
of the Union. Under Section 8(d), neither party is re-
quired to make concessions. A union can ask for more
than the status quo, and the employer can offer less.
2. As noted above, I concur in the finding of bad-faith
bargaining. Further, as explained in my concurrence in
Altofer Machinery Co., 332 NLRB 130 (2000), as a rem-
edy for the bad-faith bargaining violation found, I would
authorize the Regional Director to appoint a mediator—
chosen from a list of those qualified from an American
Arbitration Association panel for the Regional Office
area. The mediator would be directed, at the Respon-
dent’s expense, to participate in all bargaining sessions,
to attempt to reach agreement. If, after a time decided by
the mediator, these efforts fail, I would direct the media-
tor to render a report to the parties and to the Regional
Director as to the status of negotiations and his or her
recommendations concerning the resolution of the nona-
greed-upon matters.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT tell you that bargaining with the Un-
ion would be futile and that there would be another vote
in a year.
WE WILL NOT tell you that you will not be assigned
work with our Winslow facility because of your activities
on behalf of the Union.
WE WILL NOT tell you that had you not selected the
Union as your collective-bargaining representative you
would have received a raise and new trucks.
WE WILL NOT make derogatory or profane state-
ments about your union caps.
WE WILL NOT tell you that you will make supervi-
sors so that you would not be able to vote in the next
election.
WE WILL NOT interfere with, restrain, or coerce you
in the exercise of your Section 7 rights by soliciting your
complaints and grievances.
WE WILL NOT refuse to bargain in good faith with
the Union as the certified collective-bargaining represen-
tative of the employees in the certified unit by making
unilateral changes in wage rates and health insurance
benefits and by refusing to provide the Union with re-
quested information.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, revoke the unlawfully imple-
mented wage increase.
WE WILL, on request, revoke the unlawfully imple-
mented health insurance plan and either restore the pre-
vious plan or establish a new plan negotiated with the
Union.
WE WILL, on request, bargain with the Union as the
exclusive representative of all employees in the bargain-
ing unit with respect wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.

HARDESTY COMPANY, INC., D/B/A
MID-CONTINENT CONCRETE

Bruce Buchannan, Esq., for the General Counsel.
Stephen L. Andrew, Esq. (Stephen L. And ew & Associates), r
of Tulsa, Oklahoma, for the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 264
DECISION
STATEMENT OF THE CASE AND BACKGROUND
D. RANDALL FRYE, Administrative Law Judge. This case
was tried before me on March 19 and 20, 1997. The initial
underlying complaint and notice of hearing issued on Septem-
ber 16, 1996. Thereafter, additional charges were filed by the
Teamsters Local Union 373, AFL–CIO (Local 373 or Union).
On November 21, 1996, a consolidated complaint and notice of
hearing and order consolidating cases issued. The complaint
was thereafter amended on January 30 and March 19, 1997.
The complaint alleges that Hardesty Company, Inc., d/b/a Mid-
Continent Concrete (Hardesty Company, Inc. or Respondent)
violated Section 8(a)(5) of the Act by unilaterally changing the
insurance benefits of its employees, by refusing to furnish re-
quested information and by failing to bargain in good faith with
the Union. The complaint further alleges that Respondent vio-
lated Section 8(a)(1) of the Act by informing its employees of
the futility of union representation, soliciting employees to
directly meet with management, informing its employees that
they would earn more money without union representation,
making profane statements concerning the employees union
caps, and informing employees that their travel would be re-
stricted because of their union activities.
Background and Procedure Matters
During the course of the trial, the parties were afforded a full
opportunity to be heard, to call, to examine and cross-examine
witnesses, and to introduce relevant evidence. After close of
hearing, briefs were timely filed by counsel for the Respondent
and counsel for the General Counsel. Also, after close of trial,
the parties, pursuant to an agreement made at trial, filed addi-
tional documents which revealed the wage rates of certain em-
ployees of Respondent. I have received this stipulation, with
attachments 1–4, as Joint Exhibit 2.
In addition to the above, the General Counsel filed two addi-
tional posttrial documents. On April 9, 1997, a motion to re-
open the record was filed seeking admission into evidence of a
March 24, 1997 letter from Respondent’s attorney, Stephen L.
Andrew, to Randall Sanderson, the Union’s representative.
Succinctly, the letter withdrew from bargaining prior proposals
made by Respondent. The General Counsel argues that this
conduct is further evidence of bad-faith bargaining by Respon-
dent. In opposing this motion, Respondent contends, inter alia,
that it would be deprived of procedural due process should the
letter be admitted without relevant testimony to fully explicate
its purpose and intent. In my view, Respondent’s argument
must prevail. The March 24, 1997 letter was offered to show
unlawful bad-faith bargaining. Under the circumstances here
present, testimonial evidence may well be critical to a correct
determination as to whether this conduct is, in fact, evidence of
unlawful bad-faith bargaining. Accordingly, the General Coun-
sel’s motion to reopen the record is denied.1
On April 29, 1997, the General Counsel filed a motion to
strike portions of Respondent’s brief. In its best light, the Gen-

1 In view of my overall disposition of this case, I did not consider a
supplemental hearing necessary to provide either Respondent or the
General Counsel an opportunity to further litigate this issue.
eral Counsel’s motion may fairly be considered a reply brief, a
document not permitted under the circumstances here present.
Accordingly, this motion to strike is also denied.
FINDINGS OF FACT
I. JURISDICTION
Hardesty Company, Inc. d/b/a Mid-Continent is engaged in
the business of providing ready-mix concrete through its 27
facilities located in Oklahoma and Arkansas and annually pur-
chases and receives goods valued in excess of $50,000 from
points outside Oklahoma.
Teamsters Local Union 373 affiliated with International
Brotherhood of Teamsters, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
Respondent operates 27 facilities in Oklahoma and Arkan-
sas. On August 21, 1995, Local 373 was certified as the collec-
tive-bargaining representative for Respondent’s drivers, batch-
men, mechanics, and front–end loader drivers employed at its
Van Buren and Fort Smith, Arkansas facilities. Negotiations
for a collective-bargaining agreement commenced on October
13, 1995. Randall Sanderson, secretary–treasurer and principle
officer of Local 373, represented the Union in negotiations.
Respondent was represented by Attorney Stephen Andrews. At
the time of hearing, the parties had not reached agreement on
terms for a collective-bargaining agreement.
III. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by informing employees of the futility of
union representation, soliciting employees to meet directly with
management, informing employees they would earn more
money without union representation, making profane state-
ments concerning employees’ union hats, and informing em-
ployees of restrictions on their travel due to their union activi-
ties. The complaint further alleges that Respondent violated
Section 8(a)(5) of the Act by refusing to furnish requested in-
formation to the Union, by unilaterally changing health insur-
ance benefits and wage rates for unit employees, and by failing
to bargain in good faith with the Union.
A. The Bargaining
In 1995, the Union engaged in an organizational campaign of
Respondent’s employees at its Fort Smith and Van Buren facili-
ties. Although Respondent opposed unionization, these em-
ployees2 voted on August 11, 1995, in favor of representation
by the Union, and was certified by the Regional Director on
August 21, 1995.
On October 13, 1995, the Union and Respondent met and
began negotiations for a collective-bargaining agreement. The
Union was represented by its principal operating officer,3 Ran-
dall Sanderson; Respondent was represented by Kevin Iken-
berry, one of its attorneys. At this session, the Union presented
2 The unit certified included drivers, batchmen, mechanics, and
front-end loader drivers.
3 Employees Christopher Poole and Paul Cook also attended this
session on behalf of the Union.
MID-CONTINENT CONCRETE 265
and explained its contract proposals to Respondent’s represen-
tative. The Union proposed an hourly wage rate of $11.75 for
drivers with a 50-cent-an-hour raise during the second year of
the contract. At the time, Respondent’s starting wage scale for
truckdrivers was $7.50 per hour. After 3 months, drivers
earned $8 hourly and after 6 months $8.50 hourly. After a year,
drivers received the top pay of $9 hourly. At the time, Mechan-
ics earned $10.75 hourly while front-end loaders drivers earned
$9 hourly. Employees were paid overtime after working 40
hours per week and received a paid 1-week vacation after 1
year of employment and a paid 2-week vacation after 2 years of
employment. Finally, employees received seven paid holidays
during the year and were covered by Respondent’s company
wide health insurance plan for which they made monthly con-
tributions. The Union also proposed that Respondent improve
health insurance benefits, provide additional vacation time, and
two additional paid holidays, continue its present contributions
to the 401(k) Pension Plan and further, provide weekly contri-
butions to the Teamsters Central States Pension Fund. The
Union’s proposal also included a wide range of contract provi-
sions such as a recognition clause, checkoff, seniority, hours of
work, leave of absence, a grievance procedure, work assign-
ments, defective equipment, just cause provision for dis-
charge/suspension, management-rights and a no–strike or lock-
out clause. Ikenberry did not present any contract proposals
and his participation at this session was limited to listening to
the Union’s presentation. According to the unrebutted testi-
mony of Sanderson, Ikenberry stated that he had no authority to
negotiate and was there only to receive the Union’s proposals.
The second bargaining session was held on November 29,
1995. At this session, Steven Andrew, Respondent’s primary
attorney, presented contract proposals which covered subjects
such as recognition, management rights, equal employment
opportunity, protection of rights, no strikes, no lockouts, a
grievance procedure, health insurance, seniority, hours of work,
vacations, and holidays. No wage proposals were made. How-
ever, during the course of this negotiating session, the parties
tentatively agreed to the following articles. Article 1, recogni-
tion; article 3, equal employment opportunity; article 4, no
strike, no lockout; article 5, protection of rights; article 7, valid-
ity; article 9, grievance procedure; article 10, shop steward;
article 14, jury duty; and article 15, funeral leave (Jt. Exhs. 1
and 8).
The third negotiation session was held on December 28,
1995. During this meeting the parties agreed to article 31, indi-
vidual agreement, article 32, amendments, additions, waivers
and article 34, termination. In addition, the parties reached
agreement on some of the language in several other proposed
articles.
The parties next met on February 5, 1996. Agreement was
reached on unnumbered articles covering seniority, uniforms,
and physical and mental examinations. Language on parts of
several other articles was discussed and agreed upon. At the
next negotiating session held on February 12, 1996, the parties
reached agreement on a seniority clause, the grievance proce-
dure, and parts of other articles. At this meeting, Respondent
offered a new proposal regarding vacations. Previously, it had
proposed a 1-week vacation after 1 year of employment and a
2-week vacation after 2 years, which was essentially its existing
vacation policy. In contrast, its new proposal provided for a 1-
week vacation after 1 year of employment and a 2-week vaca-
tion after 3 years, provided that employees work a minimum of
1540 hours during the year or the equivalent of 38-1/2, 40-hour
weeks.
On March 29, 1996, the parties again met to negotiate. For
the first time, Respondent submitted a wage proposal to the
Union. (R. Exh. 15.) The proposed hourly wage rate equaled
the hourly rates then paid by Respondent to unit employees.
Respondent also proposed the elimination of paid overtime, a
significant employee benefit. According to the testimony of
employee Chris Poole, overtime (time beyond 40 hours weekly)
was offered to employees regularly, and averaged 10 hours
weekly over the course of a year. Based on his wage rate of $9
an hour, Poole’s overtime pay averaged $135 weekly. Also,
during this session, Respondent proposed to pay $115 monthly
as a maximum employer contribution to group health insurance
and further proposed to eliminate the current 401(k) plan as
well as the bonus load plan. At the next meeting, held on April
10, 1996, Andrew advised the Union that he had prepared fur-
ther proposals but his client had, just prior to the meeting, in-
structed him not to present any proposals. Nonetheless, the
parties continued with this meeting, discussing various pending
proposals.
On May 1, 1996, the parties met and negotiated with the as-
sistance of a mediator from the Federal Mediation and
Conciliation Service. The Respondent presented proposals that
Andrew described as its best and final offer. Essentially, this
proposal was a close facsimile of Respondent’s March 29, 1996
proposal, although it did include the Union’s dues-checkoff
proposal. During this session, Sanderson inquired of Andrew if
he was aware that Respondent had increased hourly wages for
employees at many of its other facilities. Andrew replied that
he was not aware of any increases. Although the parties dis-
cussed several bargaining subjects, they were unable to reach
further agreement.
The parties met again on May 28 and June 11, 1996. Vari-
ous proposals were discussed and agreement reached on a pro-
gressive discipline provision. Respondent offered movement
on its vacation proposal by reducing from 3 to 2 years, the
duration of employment required for a 2-week vacation.
Toward the end of the session, Sanderson proposed orally the
establishment of $10.90 as the top hourly wage, overtime after
40 hours, a 401(k) plan, and a bonus plan, and resolve the prob-
lem with health insurance. Andrew advised that he would have
to “get with Hardesty on it.” (Tr. 93–95.)
On July 11 and August 1, 1996, the parties met again. Sub-
jects discussed included truck assignment, subcontracting,
hours of work, vacation holidays, pension, health insurance,
defective equipment, work assignments, union access, workers’
compensation, safety issues, a dispatch procedure, and wages.
However, no agreement was reached on any subject during
these two bargaining sessions.
On August 28, 1996, Respondent sent the Union an overall
contract proposal that varied little from earlier proposals.
However, in this proposal, adjacent to the proposed contract
language for group insurance, appeared the notation “TA
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 266
6/11/96,” indicating the parties’ tentative agreement on this
subject. Sanderson testified at trial that while he had received
and reviewed this document prior to the September 5, 1996
bargaining session, he failed to discover the above notation
until preparing for the litigation of this case. He further testi-
fied that at no time did he agree to the group insurance proposal
as proposed by Respondent.
As planned, the parties met on September 5, at which time
the Union submitted a comprehensive counterproposal. While
the parties briefly discussed this proposal, Andrew indicated
that he would have to respond to these proposals at a later date.
The Union’s proposal submitted at this meeting represented
significant movement toward Respondent’s position. While the
parties corresponded regarding certain proposals between Sep-
tember 5, 1991, and February 4, 1997, no agreement was
reached.
B. Conduct Away from the Bargaining Table
During the course of bargaining, Respondent engaged in cer-
tain conduct, which provides insight into its motive and intent
with respect to entering a collective-bargaining agreement with
the Union. As above noted, the parties commenced face-to-
face bargaining on October 13, 1995. Also in October, Re-
spondent began on a course of conduct intended to undermine
the collective-bargaining process. In this regard, Christopher
Poole,4 an employee driver at Respondent’s Van Buren facility,
testified that he had a conversation with Bill Lincks5 in which
he informed Lincks that,“I was real impressed with Robertson
[Respondent’s President] for accepting the fact that we had
voted the Union in and we was going to go ahead and work,
you know, work through it and get a contract and live with
what we had.” Lincks reply to Poole was, “The Union would
be there one year.” (Tr. 250–251.) In May or June 1996,
Poole had another conversation with Lincks. This conversation
occurred in the breakroom at the Van Buren dispatch office.
Poole had been discussing the heavy workload with another
unidentified driver who advised him that the Winslow drivers
would no longer help the Van Buren drivers. Previously, Re-
spondent’s practice had been to assign employees at the Wins-
low and Van Buren facilities on an interchangeable basis, de-
pending on the workload at each location. After finishing his
conversation with the unidentified employee, Poole went to
Lincks and inquired as to why there had been a work location
change. Poole testified that Lincks informed him that it was
“because we were—some of them was up there trying to recruit
the—trying to recruit the Winslow drivers into the Union.” (Tr.
251–252).
In the summer of 1996, Lincks and Poole were engaged in a
general conversation at the Van Buren facility. Poole testified
that during this discussion Lincks informed him that he felt
betrayed by the drivers for joining the Union and advised that,
“if we hadn’t joined we [would] have done had $10 an hour and
done had new trucks.” On or about September 5, 1996, Poole
had another conversation with Lincks at the Van Buren facility.

4 Poole also served the Union as alternate steward and was a mem-
ber of the Union’s bargaining committee.
5 Both Bill and Gary Links are admitted supervisors within the
meaning of the Act.
According to Poole, he had just returned from a morning deliv-
ery when Lincks approached him and asked, “Do . . . they need
both of [you] at the bargaining meeting.” This question was in
reference to whether both Poole and Cook were needed by the
Union at a negotiating session scheduled for that morning.
Poole telephoned Sanderson who advised that both were
needed for the session. When Poole conveyed this information
to Lincks, the latter replied, “I don’t understand why they need
both of you all there . . . you’re going to accomplish the same
thing you’ve always accomplished, which is absolutely zero.”
Three additional employees gave testimony at the trial with
respect to conversations they had with Gary Lincks or Bill
Lincks. First to testify was J. R. Cook, a mechanic employed
by Respondent at its Fort Smith facility from May 1995 to
January 1997. Cook was a supporter of the Union and regu-
larly wore a Teamsters cap to work. He testified that toward
the end of April 1996, the shop supervisor left the employment
of Respondent. Shortly after his departure, Bill Lincks in-
formed Cook that he was going to make him the supervisor.
Cook replied that he did not want the job. In response, Bill
Lincks stated, “I’m going to appoint you supervisor, that way
you won’t be able to vote next time.” (Tr. 246–247.) In reply
to Cook’s inquiring as to when the vote would take place, Bill
Lincks stated “the same time it did last year.” (Tr. 247.)
The next employee to testify was Paul Cook, the brother of J.
R. Cook, who also openly supported the Union. Paul Cook
testified that in April 1996 he had a conversation about negotia-
tions with Gary Lincks at the Van Buren facility during which
Lincks advised that, “within a year the whole thing would be
over with and they’d probably have a new vote.” On May 2,
1996, Cook was at the Van Buren facility engaged in general
conversation with both Bill and Gary Lincks. On this day,
Cook and other union supporters wore Teamsters caps to work.
In response to this attire, Cook testified that, “all of a sudden
Bill turned around and looked at Gary and said I see all the
boys have got their cocksucker hats on. And Gary turned back
towards Bill and said, yeah, he said all the boys has got their
cocksucker hats on.” Later in May 1996, Cook testified about
another conversation with Bill Lincks at the Fort Smith facility
during which Lincks asked Cook to “go poll the boys and see
what their opinion was on setting up a meeting with Jim
Robertson.” A few days later Lincks asked Cook what he had
found out “from polling the boys.” In response, Cook informed
him that there was no interest in such a meeting. (Tr. 280–
284.)
Employee driver Wesley Smith testified about a conversation
he had with Gary Lincks concerning contract negotiations.
This conversation took place in April 1996, in the front office
of the Van Buren plant. According to Smith, Lincks informed
him that “it would be to the Company’s benefit not to enter a
contract with the Union. The main reason was that it would
cost them money and that they would and could wait until all
the union supporters were gone then they’d have everything
their own way. He said they were going to look out for busi-
ness first.” “He said it wouldn’t do us any good to negotiate
with the Company because they’ll just, you know, wait till
another election.” Respondent called no witnesses to rebut any
of the above testimony.
MID-CONTINENT CONCRETE 267
IV. DISCUSSION
Section 7 of the Act (29 U.S.C. 157) guarantees employees
“the right to self organization, to form, join or assist labor or-
ganizations . . . and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid and
protection.” Section 8(a)(1) of the Act enforces this guarantee
by making it an unfair labor practice for an employer to, “inter-
fere with restrain and coerce employees in the exercise of the
rights guaranteed in Section 7.” The body of law developed by
the Board and Courts under this Section of the Act is substan-
tial. Thus, it is well settled that an employer violates Section
8(a)(1) of the Act by threatening employees with job losses by
conveying to employees the futility of self-organization and
collective bargaining. NLRB v. Berger Transfer & Storage Co.,
678 F.2d 679, 690–691 (7th Cir. 1982); Outboard Marine
Corp., 307 NLRB 1333, 1335 (1992), enfd. mem. 9 F.3d 113
(7th Cir. 1993), Forrest City Grocery Co., 306 NLRB 723, 729
(1992). Similarly, statements that employees would be re-
moved from the unit by promotion or otherwise so that they
would not be able to vote in a union election have been found
to violate Section 8(a)(1) of the Act. Amperage Electric, 301
NLRB 5, 14–16 (1991), enfd. mem. 956 F.2d 269 (6th Cir.
1992). Violative also are statements that employees would not
receive a raise because of their union activities, that employees
access to other employees would be restricted by the employer
to limit their organizational activities, and profane statement
concerning employees union activities. Marshall Darbin Poul-
try Co., 310 NLRB 68 (1993), Miller Group, 310 NLRB 1235,
1238 (1993), enfd. mem. 30 F.3d 1487 (7th Cir. 1994); and
Bonanza Sirloin Pit, 275 NLRB 310, 311 (1985). Finally, so-
licitation of employees’ grievances have also been found by the
Board to violate Section 8(a)(1) of the Act. The test, according
to the Board and Courts, for determining whether an employer
has violated Section 8(a)(1) of the Act is whether the employers
conduct reasonably tends to be coercive, not whether employ-
ees were in fact coerced. NLRB v. Berger Transfer & Storage,
678 F.2d at 689; Jays Food, Inc. v. NLRB, 573 F.2d 438, 444
(7th Cir.), cert. denied 439 U.S. 859 (1978).
The alleged unlawful 8(a)(1) conduct in this case was pre-
sented by the General Counsel through several witnesses as
discussed above. I fully credit the testimony of each of these
witnesses based on their demeanor. Moreover, their testimony
was not rebutted as Respondent failed to call any witnesses to
testify with respect to any of the alleged 8(a)(1) conduct. Ac-
cordingly, I find that each of the alleged 8(a)(1) allegations are
fully supported by credible testimony and are violative of the
Act.
Section 7 of the Act also provides that employees have the
right “to bargain collectively through representatives of their
own choosing.” Section 9(a) of the Act provides that represen-
tatives selected by the majority of an appropriate unit shall be
the exclusive representative of employees in the unit for the
purpose of collective bargaining with respect to “rates of pay,
wages, hours of employment, or other conditions of employ-
ment.” Section 8(a)(5) of the Act makes it unlawful for an
employer “to refuse to bargain collectively with the representa-
tive of his employees.” Section 8(d) of the Act defines the duty
to bargain collectively, as the mutual obligation “to meet at
reasonable times and confer in good faith with respect to
wages, and other terms and conditions of employment, or the
negotiation of an agreement.” Thus, the statutory mandate
“contemplates a willingness to enter into discussions with an
open mind and a sincere intent to reach an agreement consistent
with the respective rights of the parties.” Sign & Pictorial Lo-
cal 1175 v. NLRB, 419 F.2d 726, 731 (D.C. Cir. 1969). How-
ever, Section 8(d) also provides that the obligation to bargain in
good faith “does not compel either party to agree to a proposal
or require the making of a concession.” Moreover, the Board
may not “compel concessions or otherwise sit in judgment upon
the substantive terms of collective bargaining agreements.”
NLRB v. American National Insurance Co., 343 U.S. 395, 404
(1952). “[A]dament insistence on a bargaining position . . . is
not in itself a refusal to bargain in good faith,” for “[i]f the
insistence is genuinely and sincerely held, if it is not mere win-
dow dressing, it may be maintained forever.” Teamsters Local
515 v. NLRB, 906 F.2d 719, 727 (D.C. Cir. 1990).
The law is well settled that an employer’s duty to bargain in
good faith pursuant to Section 8(a)(5) and (1) includes the duty
“to provide information that is needed by the bargaining repre-
sentative for the proper performance of its duties.” NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–436 (1967); NLRB v.
Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956).
An employer’s obligation to provide the union with relevant
information is founded in the acknowledgement that “good
faith bargaining requires full disclosure by the parties of rele-
vant information in order to produce informed, effective nego-
tiations.” General Electric Co. v. NLRB, 466 F.2d 1177, 1183
(6th Cir. 1972).
As above noted, an employer is obligated to produce all re-
quested relevant information. Information is relevant if it has
any bearing on the matters being discussed. In NLRB v Acme
Industrial Co., 385 U.S. 432, 437 fn. 6 (1967), the Court stated,
“[t]he standard of relevancy is a liberal, discovery-type stan-
dard.”
As set forth above, Section 8(d) of the Act further provides
the parameters within which the parties must discharge their
respective collective-bargaining responsibilities. Notice and an
opportunity to bargain about any proposed change is essential
to that process. Thus, employer changes in wages or other
terms of employment without providing the union an opportu-
nity to bargain “minimizes the influence of organized bargain-
ing” and emphasize to employees “that there is no necessity for
a collective bargaining agent.” May Department Stores Co. v.
NLRB, 326 U.S. 376, 384–385 (1945). Any unilateral action
regarding mandatory subjects of bargaining is prohibited, “for it
is a circumvention of the duty to negotiate which frustrates the
objective of Section 8(a)(5) much as does a flat refusal.” NLRB
v. Katz, 369 U.S. 736, 743 (1962). More to the point, the Court
in Katz also held that an employer cannot unilaterally change
existing employment terms and conditions during ongoing col-
lective-bargaining negotiations.
V. THE UNILATERAL CHANGES
In it’s various locations, Respondent employs approximately
1000 employees. At the time the Union was certified as a col-
lective-bargaining representative and bargaining commenced
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268
all employees were covered by the same group health insurance
plan. (Tr. 316–317.) On June 1, 1996, Respondent changed its
insurance carrier as well as some of the terms of the coverage.
For example, under the new plan employees would have to pay
annual deductibles of $300 for individual coverage and $900
for family coverage. Under the previous plan, there were no
deductibles. Employee out of pocket expenses were also higher
because employees paid higher yearly minimums, higher pre-
scription costs, and higher costs for certain health care services.
(Jt. Exhs. 1 and 22–23.)
Respondent contends that its conduct in changing the plan
did not violate the Act for two reasons. First, it contends that,
while the insurance benefit plan changed, the status quo benefit
of a right by the unit employees to participate in the group in-
surance plan did not change. Secondly, it contends that the
Union agreed to participation in the companywide plan. Re-
spondent argues that this agreement is revealed in Joint Exhibit
25 at page 15. On this page, Respondents proposed contract
language for insurance coverage appears as follows in this con-
tract proposal, “all insurance benefits to which other company
employees are entitled on the same terms as made available to
other employees.” In the left hand column of this document,
adjacent to the proposed language, appears the following: “OK.
6–11–96.” Respondent argues that this notation, which it
made, indicates agreement by the parties on this proposed lan-
guage. In further support of this argument, Respondent con-
tends that the Union did not object to this notation when it re-
ceived Respondent’s proposals prior to the September 5, 1996
bargaining session, and did not raise any concern during this
bargaining session or at any time prior to the litigation of this
case. This silence, Respondent contends, supports its view that
the parties agreed to the group insurance proposal. However,
Respondent’s argument is fatally flawed as it presented no wit-
nesses to testify to establish facts on which such an argument
would be made. On the other hand, the General Counsel pre-
sented facts on this subject through witness Sanderson who
credibly testified that while insurance language had been dis-
cussed the Union had not, at any time, agreed to the proposed
language embodied in Joint Exhibit 25 at page 15. He further
explained that he did not object to the notation, “OK. 6–11–
96,” earlier because he did not discover it until preparing for
the litigation of this case. This testimony is fully credited as it
is unrebutted by testimonial evidence from Respondent.
Respondent’s argument that there was no unilateral change
in the status quo right by the unit employees to participate in
the group insurance plan did not change is fatally flowed.
Should Respondent’s argument prevail, all benefit plans, such
as wage plans, bonus plans, and vacation plans, in which unit
and nonunit employees participate on a companywide basis,
would be subject to unilateral action by an employer. Such a
result would be in direct contravention of the mandates of Sec-
tion 8(a)(5) of the Act.
For the above reason, I conclude that Respondent engaged in
unlawful unilateral action in implementing a new wage rate and
new insurance plan. Accordingly, Respondent violated Section
8(a)(5) of the Act.
With respect to truck assignment, the General Counsel called
two witnesses, Wesley Seth and Christopher Poole, both of
whom testified, based on their experience, that truck assign-
ment had generally been made on the basis of seniority al-
though there was no written company policy. On cross-
examination, Wesley Seth conceded that other factors, such as
driving record and demonstrated ability to properly care for the
trucks, were also considered by Respondent in assigning new
trucks to employees. (Tr. 15.) Respondent’s president, Jim
Robertson, testified that there was no written policy with re-
spect to the assignment of new equipment to employees. He
further explained that Respondent’s practice had been to con-
sider the driver’s productivity, driving record, and seniority.
He further stated that seniority was never the only factor con-
sidered in such assignment. I fully credit Robertson’s testi-
mony in this regard and particularly note that his explanation of
Respondent’s truck assignment policy was not inconsistent with
the testimony of the two witnesses presented by the General
Counsel. Accordingly, I shall recommend that this allegation
of the complaint be dismissed.
VI. THE REQUEST FOR INFORMATION
Applicant and union member Jerry Hixson applied for a
driver’s position at Respondent during the summer of 1996. As
he was not hired, the Union, by letter to Respondent’s attorney
dated August 28, 1996, requested to “review the so-called large
list of applicants.” In the letter, the Union further requested
that Respondent’s attorney call to set a date for the Union to
review the applications (Jt. Exhs. 1 and 24.) Respondent failed
to reply to this request and now argues that it was not obligated
to provide the requested information as Hixson was not hired
and therefore not a member of the bargaining unit.
On May 2, 1996, Respondent hired Mark Bell as a mechanic
at its Fort Smith facility. Sometime after September 10, 1996,
Bell was promoted to lead mechanic, a position outside the
bargaining unit. (Tr. 298, 306.) On September 16, 1996, the
Union faxed to Respondent’s attorney a request for the pay rate
of mechanic Mark Bell. (GC Exh. 6.) The confirmation report
indicates that the request was sent to Anderson’s fax number on
September 16, at 17:04 hours. At trial, as a statement of coun-
sel and on brief, Andrew, on behalf of Respondent, contends
the request not received.
I find that the requested information in both instances was
necessary and relevant for the Union to discharge its statutory
responsibility. The request with respect to applicant and union
member Hixson was made to enable the Union to assess
whether Respondent’s refusal to hire him was discriminatory.
Such a request is fully consistent with the Act as interpreted by
the Board and Courts. Hertz Corp., 319 NLRB 597, 599–600
(1995). Accordingly, I find Respondent’s refusal to provide
this information violative of Section 8(a)(5) of the Act.
Information with respect to the wage rate of employees simi-
larly situated is also relevant and necessary. Initially, Respon-
dent argued that the General Counsel failed to establish that the
request was received. However, the Board in Clow Water Sys-
tems, 317 NLRB 126 (1995), held that, under circumstances
strikingly similar to those here present, “the responsibility for
maintaining adequate office procedures concerning fax trans-
mission, and knowledge of the receipt of the Unions communi-
cations during regular office hours may reasonably be imputed
MID-CONTINENT CONCRETE 269
to it.” Respondent argues that since the Sixth Circuit Court of
Appeals disagreed with the Board’s Rule and denied enforce-
ment this allegation should be dismissed. However, under the
present regulatory scheme, I do not have discretion to disregard
Board law. Accordingly, I conclude that the evidence in this
case is sufficient to impute knowledge of receipt of the faxed
request for information. Respondent further argues that,
assuming receipt of the request, it was not obligated to provide
the information since the subject employee, Bell, was not in the
unit. However, the information sought was intended to encom-
pass the wage rate of Bell when he began employment as a
mechanic in the unit. Thus, Respondent was obligated to pro-
vide the information, Days Hotel of Southfield, 306 NLRB 949,
953–954 (1992). Accordingly, its refusal to do so is violative
of Section 8(a)(5) of the Act.
Finally, the General Counsel argues that when the above
events are examined in context along with the ongoing negotia-
tions the resulting totality of conduct by Respondent reveals an
overall course of bad-faith bargaining. It is further argued that
proposals made by Respondent at the bargaining table on over-
time pay, health insurance, wages, management rights, union
access, defective equipment, 401(k) plan, and bonus pay evi-
dence bad faith as they were inherently regressive. Respon-
dent, on the other hand, argues that it has lawfully discharged
its bargaining obligation by meeting frequently, fully explain-
ing its proposals, making concessions, and reaching agreement
on numerous subjects. It further argues that none of its
bargaining proposals could be objectively viewed as
unreasonable or unlawful.
Based on the totality of circumstances in this case, I con-
clude that Respondent engaged in an unlawful course of con-
duct specifically designed to avoid entering a collective-
bargaining agreement with the Union. Respondent’s conduct,
both at and away from the bargaining table, fully supports this
conclusion. As to the latter, the unlawful 8(a)(1) conduct in
which Respondent’s supervisors engaged provides insight into
its motivation at the bargaining table. Similarly, the above
noted unilateral action by Respondent served to undermine the
Union’s status as collective-bargaining agent with the obvious
objective of causing disaffection of its membership. Further
evidence of bad faith by Respondent is present in the above
referenced bargaining proposals, which I conclude were inher-
ently regressive. For example, prior to the advent of the Union,
many of Respondent’s drivers were paid $9 hourly for 40 hours
a week plus a weekly average of 10 hours of overtime at one
and one–half times the hourly rate. Thus, the average weekly
pay for drivers was $495. Respondent proposed throughout
bargaining to eliminate all overtime which would result in a 27-
percent pay cut for most drivers. With respect to vacation,
Respondent proposed to maintain the same time period but to
require that employees work 1540 hours during the year to
receive the benefit. Benefit reductions were also proposed in
the form of reduced health insurance coverage as well increased
contributions by employees toward the cost of health insurance.
A review of Joint Exhibits 1 and 28 reveals increases for family
coverage of $23 monthly; for employee and children, $17.25
monthly; for employee and spouse, $16.40; and for employee,
$8.25. Respondent also proposed a broad subcontracting
clause, which, if agreed to, would permit Respondent to sub-
contract unit work on an unlimited basis. Additionally, al-
though providing a 401(k) plan for employees as well as an
incentive program based on delivered cement, Respondent
steadfastly refused to include these benefits in a collective-
bargaining agreement. Significant also in assessing Respon-
dent’s motivation is its conduct in granting wage increases to
nonunit employees while proposing to reduce unit employees’
wages by approximately 27 percent.
While it may be fairly argued that Respondent’s position on
the above referenced bargaining proposals, when viewed sepa-
rately, does not evidence bad faith, a different result clearly
obtains when Respondent’s conduct, both at and away from the
bargaining table, is considered. Moreover, Respondent’s
unlawful motive becomes patently clear when the above bar-
gaining proposals are considered along with the unlawful uni-
lateral action, the refusal to provide information and the nu-
merous violations of Section 8(a)(1) of the Act.
Thus, Respondent engaged in a course of conduct, both at
and away from the bargaining table, designed to undermine the
union’s status as collective-bargaining agent and to avoid
reaching agreement with the Union. Accordingly, Respon-
dent’s conduct is violative of Section 8(a)(1) and (5) of the Act.
Overnite Transportation Systems, 296 NLRB 669 (1989), enfd.
938 F.2d 815 (7th Cir. 1991). Chester County Hospital, 320
NLRB 604 (1995).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local Union 373 is a labor organization within
the meaning of Section 2(5) of the Act.
3. At all times material, Teamsters Local Union 373 has been
the exclusive collective-bargaining representative of Respon-
dent’s employees in the following unit appropriate for the pur-
poses of collective bargaining:

All drivers, batchmen, mechanics and front–end loader
drivers employed by the employer at its Van Buren and Fort
Smith, Arkansas, facilities, but excluding all office clerical
employees, professional employees, guards, and supervisors
as defined in the Act.

4. Respondent, in April 1996, violated Section 8(a)(1) of the
Act by informing employees that bargaining with the Union
would be futile and Respondent would wait for another election.
5. In or about June 1996, Respondent violated Section 8(a)(1)
of the Act by informing employees that they would not be as-
signed work with Winslow facility employees because of their
activities on behalf of the Union.
6. Respondent, in or about the summer of 1996, violated Sec-
tion 8(a)(1) of the Act by informing employees that had they not
selected the Union as their collective-bargaining representative
they would have received a raise and new trucks, by telling em-
ployees they would be appointed supervisors to prevent them
from voting in another union election, by making obscene and
derogatory remarks about employees’ union caps, and by telling
employees that it would not do the employees any good to nego-
tiate with Respondent as it would wait for a new election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270
7. Respondent, on September 5, 1996, violated Section 8(a)(1)
of the Act by informing employees that negotiating with the Un-
ion would accomplish zero.
8. Respondent, on April 29 and May 2, 1996, violated Section
8(a)(5) of the Act by unilaterally changing pay rates; on June 1,
1996, by unilaterally changing health insurance coverage; and,
May 1996, by bypassing the Union and dealing directly with
employees.
9. Respondent, on August 28 and September 16, 1996, vio-
lated Section 8(a)(5) of the Act by refusing to provide the Union
with requested information.
10. Respondent, since about October 13, 1995, and continuing
to date, has refused to bargain collectively in good faith concern-
ing rates of pay, hours of employment, and other terms and con-
ditions of employment with Teamsters Local Union 373 by en-
gaging in surface bargaining with the Union with no intention of
reaching mutual agreement, in violation of Section 8(a)(5) of the
Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices in violation of Section 8(a)(1) and (5) of the Act, I
find that it must be ordered to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.
As I have found that Respondent unilaterally changed pay
rates and insurance benefits I shall order it to rescind, at the Un-
ion’s request, the unilaterally imposed wage increase and insur-
ance benefit change. I shall also order Respondent to make em-
ployees whole for any loss they may have incurred including but
not limited to, so from higher employee contributions to insur-
ance premiums, reduced coverage, higher deductibles other
changes.
As I have found that Respondent unlawfully refused to give
the Union relevant information, which it had requested, I shall
order that Respondent furnish the Union with the requested in-
formation.
As I have found that Respondent bypassed the Union and dealt
directly with its employees, I shall order Respondent to cease
from engaging in such conduct.
As I have found that Respondent refused to bargain in good
faith with the Union concerning rates and pay, hours of employ-
ment, and other terms and conditions of employment and other
terms and conditions of employment, I shall order it to cease
engaging in such conduct.6
[Recommended Order omitted from publication.]

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and 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.