Spurlino Materials, LLC

National Labor Relations Board - Board Decisions

Mar 31, 2009

353 N.L.R.B. 1198 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 125
1198
Spurlino Materials, LLC and Coal, Ice, Building Ma-
terial, Supply Drivers, Riggers, Heavy Haulers,
Warehousemen and Helpers, and Local Union
No. 716, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and
Helpers of America. Cases 25–CA–30053, 25–
CA–30054, 25–CA–30080, 25–CA–30104, 25–
CA–30156, 25–CA–30179, and 25–CA–30362
March 31, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On December 17, 2007, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party each filed cross-
exceptions, a supporting brief, and an answering brief to
the Respondent’s exceptions. The Respondent filed an
answering brief to the General Counsel’s and the Charg-
ing Party’s cross-exceptions, and a reply brief to the
General Counsel’s and the Charging Party’s answering
briefs. The Charging Party filed a reply brief to the Re-
spondent’s answering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions, as modified herein, and to adopt
his recommended Order as modified and set forth in full
below.
The Union represents a bargaining unit of concrete
truckdrivers at the Respondent’s three facilities in the
Indianapolis, Indiana area. The consolidated complaint,
as amended, alleges that the Respondent committed vio-
lations of Section 8(a)(5), (3), and (1) of the Act. Most
of the allegations relate to work performed at two job-
sites: (1) the Lucas Oil Stadium and Convention Center
expansion project (Stadium project) between late 2005

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.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
and early 2007, and (2) the Air West Distribution Ware-
house (Warehouse project) in 2007.
We adopt the judge’s conclusions, for the reasons
stated by him, that the Respondent violated Section
8(a)(5) and (1) by unilaterally assigning unit work at the
Warehouse project to nonunit employees,3 by unilaterally
creating the positions of “portable plant driver” and “al-
ternate/backup portable plant driver” at the Stadium pro-
ject, and by instituting a new evaluation system and apti-
tude testing (driving tests) to select the portable plant
drivers from among unit employees.4 We further adopt
the judge’s conclusions, again for the reasons stated by
him, that the Respondent violated Section 8(a)(3) and (1)
by failing to select prominent union supporters Matt
Bales, Ron Eversole, and Gary Stevenson as portable
batch plant drivers, and by suspending and later dis-
charging Stevenson,5 and that the Respondent also vio-
lated Section 8(a)(1) by failing to accord Stevenson his
union representation rights during an investigatory meet-
ing preceding his suspension.6

3 In adopting the judge’s conclusion, Member Schaumber notes that
the Respondent did not present an “economic exigency” argument to
the judge. See generally RBE Electronics of S.D., 320 NLRB 80, 81
(1995). Accordingly, he deems such argument in the Respondent’s
exceptions to be untimely raised and thus waived. Smoke House Res-
taurant, 347 NLRB 192, 195 (2006), citing Yorkaire, Inc., 297 NLRB
401 (1989), enfd. mem. 922 F.2d 832 (3d Cir. 1990).
There are no exceptions to the judge’s recommendation to dismiss
the allegation that the Respondent violated Sec. 8(a)(5) by soliciting
volunteers for night pours on the Warehouse project.
4 The Respondent contends that the General Counsel coined the
terms “portable plant driver” and “alternate portable plant driver” and
that the challenged actions more closely resemble a transfer of work
rather than the creation of new unit job classifications. The judge ad-
dressed this alternative view. We agree with the judge that, regardless
of how the issue is framed, the Respondent had an obligation to bargain
with the Union before departing from established dispatch and seniority
practices when using unit employees to staff the driver positions at the
portable plant. We find no need to pass on the General Counsel’s con-
tention that the Respondent’s actions also violated Sec. 8(a)(3) inas-
much as the finding of an additional violation would not materially
affect the remedy. See, e.g., Industrial Hard Chrome Ltd., 352 NLRB
298 fn. 2 (2008), and Raymond F. Kravis Center for Performing Arts,
351 NLRB 143, 145 (2007), enfd. 550 F.3d 1183 (D.C. Cir. 2008).
There are no exceptions to the judge’s recommended dismissal of
the allegation that the Respondent violated Sec. 8(a)(5) when offering
certain drivers the alternate portable plant positions.
5 In adopting the judge’s conclusion on Stevenson’s suspension and
discharge, Member Schaumber relies primarily on the judge’s credibil-
ity-based analysis of the pretextual nature of the Respondent’s shifting
explanations. He notes that while, under appropriate circumstances, the
disproportionate nature of discipline may be a relevant factor in assess-
ing pretext, it is not the Board’s place to “function as a ubiquitous
‘personnel manager,’ supplanting its judgment on how to respond to
unprotected” behavior of employees. Detroit Newspaper Agency v.
NLRB, 435 F.3d 302, 310–311 (D.C. Cir. 2006) (citations omitted).
6 See NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
SPURLINO MATERIALS, LLC 1199
For the reasons explained below, we reverse the judge
and find that the Respondent violated Section 8(a)(3) and
(1) by discriminatorily failing to dispatch Bales, Ever-
sole, and Stevenson according to the established seniority
system for the deliveries to the Stadium project prior to
the staffing of the portable plant operation at that project.
We also reverse the judge and dismiss the allegation that
the Respondent violated Section 8(a)(5) by failing to
timely answer the Union’s information request. Finally,
we disagree with the judge’s recommendation to extend
the Union’s certification year, and we shall delete provi-
sions for that remedy from the Order and notice.
A. Alleged Discriminatory Failure to Dispatch
by Seniority
The Union was certified to represent the Respondent’s
concrete delivery drivers on January 23, 2006.7 At that
time, the Respondent’s established procedure for initial
daily deliveries, with limited exceptions, was to dispatch
unit drivers out of each plant according to call-in lists
ordered by seniority. In February, the Respondent began
deliveries to the Stadium project using drivers dispatched
from its Kentucky Avenue facility, where Bales, Ever-
sole, and Stevenson worked. These three drivers had
only recently served as members of the Union’s preelec-
tion organizing committee, as its observers during the
Board election, and as the employee representatives on
the Union’s bargaining committee.
By the terms of a project labor agreement (PLA), unit
employees dispatched to the Stadium project received
significantly higher hourly wages than for other delivery
assignments. The Respondent’s witnesses testified that
drivers were dispatched to the Stadium project in accord
with the usual seniority-based system. The judge cred-
ited the contrary testimony of General Counsel’s wit-
nesses, as corroborated by documentary evidence, and
found that dispatches were not made in the normal se-
quence, with the result that Eversole, Bales, and Steven-
son made fewer Stadium project runs from February
through June than they should have made based on their
seniority. Applying Wright Line,8 the judge further
found, and we agree, that the General Counsel met the
initial burden of demonstrating that the Respondent
unlawfully discriminated against these known prounion
employees in making Stadium project dispatches from
Kentucky Avenue.9

7 All dates are in 2006, unless otherwise indicated.
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
9 As previously mentioned, we affirm the judge’s finding that the
Respondent subsequently discriminated against Bales, Eversole, and
Stevenson when staffing the portable batch plant for the Stadium pro-
ject and that it discriminatorily suspended and discharged Stevenson.
However, the judge attributed the Respondent’s devia-
tions from the established seniority-based dispatch pro-
cedure to a desire to display new trucks driven by three
other unit employees, and thereby to “make a good im-
pression at a high-profile job.” The judge concluded that
the Respondent therefore met its Wright Line rebuttal
burden of proving that it would have made the disputed
dispatches based on this factor even in the absence of
union activity by the alleged discriminatees.
In cross-exceptions, the General Counsel and the Un-
ion argue, among other things, that the Respondent never
advanced a “new truck” defense. Based on testimony
discredited by the judge, the Respondent simply denied
deviating from the established dispatch pattern. We find
merit in the cross-exceptions. The Board has held that in
cases turning on employer motivation the judge may not
provide reasons not offered by the employer to defend its
decisions. See Allied Mechanical Services, 346 NLRB
326, 328 fn. 14 (2006), citing White Oak Coal Co., 295
NLRB 567, 569–570 (1989). The judge erred by doing
so here. We therefore conclude that the Respondent
failed to meet its Wright Line rebuttal burden and that it
violated Section 8(a)(3) as alleged.
B. Alleged Delay in Responding to an
Information Request
By letter dated August 24, the Union’s attorney, Neil
Gath, requested that the Respondent provide, by Septem-
ber 6, payroll records showing union dues deductions
and the dates that dues were actually remitted to the Un-
ion for unit drivers working on the Stadium project.10
Because the Respondent contracts its payroll services,
Respondent’s agent, Mary Rita Weissman, forwarded the
request to the Respondent’s administrative offices.
Weissman received the payroll information on Sep-
tember 5. On September 6, she left Gath a voice mail,
saying that she would send the information as soon as
she had reviewed it (she was travelling on business dur-
ing most of September through mid-October). On Sep-
tember 14, the Union filed unfair labor practice charges.

The judge also found that the Respondent discriminated against these
employees by failing to select them as alternate portable plant drivers.
We find no need to pass on this issue, inasmuch as any remedy for such
an additional violation would be subsumed by the remedies for the
other violations found. We also find no need to pass on the General
Counsel’s exceptions to the judge’s failure to find that the Respon-
dent’s portable plant driver selections violated Sec. 8(a)(5). The find-
ing of an additional violation would be cumulative and would not mate-
rially affect the remedy for the Respondent’s unlawful conduct.
10 The Stadium project PLA contained a dues-checkoff provision,
and the Union had presented the Respondent with dues-checkoff cards
from employees working at the Stadium. Although the Union had
requested, at a March or April bargaining session, that dues be de-
ducted monthly, it did not receive any dues until late July. This delay
prompted the information request.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1200
On September 22, Weissman faxed documents respon-
sive to the information request.
There is no dispute that the Respondent provided the
requested information. The issue is whether the Respon-
dent did so in a timely fashion, consistent with its statu-
tory obligation to bargain in good faith. The judge con-
cluded that it did not, finding it “noteworthy” that: (1)
the Respondent did not supply the information until after
a charge had been filed; (2) the parties were still negoti-
ating an initial agreement; and (3) the request was rela-
tively simple. The Respondent excepts, arguing that the
Union’s self-proclaimed 14-day deadline was per se un-
reasonable, that all requested information was provided,
and that there is no claim of prejudice to the Union’s
bargaining position because it did not receive that infor-
mation sooner.
When a union makes a request for relevant informa-
tion, an employer has a duty to supply the information in
a timely fashion or to adequately explain why the infor-
mation will not be furnished. Regency Service Carts,
345 NLRB 671, 673 (2005). In determining whether an
employer has unlawfully delayed in responding to an
information request, the Board considers the totality of
the circumstances, including the “complexity and extent
of information sought, its availability and the difficulty
in retrieving the information,” Samaritan Medical Cen-
ter, 319 NLRB 392, 398 (1995), quoted with approval in
West Penn Power Co., 339 NLRB 585, 587 (2003), enfd.
in part 394 F.3d 233 (4th Cir. 2005).
Here, the Respondent took immediate action to get the
requested information from a third party; Weissman left
Gath word about the status of the request before the Un-
ion’s “due date”; Weissman requested more information
so that she could match the payroll information she had
received to the question of when dues had been remitted;
and Weissman provided information to the Union less
than a month after it was requested. In this context, and
particularly in the absence of any evidence that the par-
ties’ contract negotiations were adversely affected by
waiting for the Respondent to provide the information,11

11 The cases cited by the judge to support his conclusion, that even
relatively short delays can be unlawful, are factually distinguishable. In
Woodland Clinic, 331 NLRB 735 (2000), the Board found that a 7-
week delay in providing employees’ home phone numbers was neither
“minimal” nor legitimized by the employer’s asserted interest in pro-
tecting employees’ privacy. In Pennco, Inc., 212 NLRB 677 (1974),
the employer took no action to supply information for over 1 month,
acted only after the union filed a charge, and then furnished incomplete
information. In Samaritan Medical Center, supra, the Board found a 2–
3-month delay violative because it impeded the union’s preparations for
upcoming negotiations.
In exceptions, the Respondent suggests for the first time that the in-
formation was not “presumptively relevant,” as the judge found, be-
cause the requested information pertained to the PLA, not to issues
we conclude that the Respondent made a good-faith ef-
fort to respond to the request as promptly as circum-
stances allowed. Accordingly, we reverse the judge’s
finding to the contrary.
AMENDED REMEDY
We shall order the Respondent to make Ron Eversole,
Matthew Bales, and Gary Stevenson whole for losses
suffered as a result of the Respondent’s discriminatory
failure to dispatch them in accord with the established
seniority system prior to the establishment of the portable
batch plant.12 In addition, we agree with the judge that
the Respondent should be ordered to make Eversole,
Bales, and Stevenson whole for its discriminatory failure
to select them to fill the regular portable batch plant posi-
tions. Finally, we agree with the judge that the Respon-
dent should be ordered to make whole all unit employees
who suffered losses as a result of the Respondent’s
unlawful unilateral creation of portable batch plant driver
positions and the failure to utilize the preexisting dis-
patch procedure from the Kentucky Avenue facility that
would have otherwise governed Stadium project deliver-
ies. This remedy will include backpay for those employ-
ees who worked as portable batch plant drivers to the
extent they suffered any losses as a result of the unilat-
eral change, as well as Eversole, Bales, and Stevenson, to
the extent they suffered any additional losses from the
unilateral change after being compensated for the failure
to select them to work at the portable plant.13 Backpay
for the aforementioned violations should be computed in
accordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest
as computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).14
Contrary to the judge’s recommendation, we find that
an 8-month extension of the Union’s certification under

relevant to the Indianapolis unit. We deem this belated argument
waived, but even if timely raised, there would be no need to address its
merits in light of our dismissal of the 8(a)(5) allegation on other
grounds.
12 We have modified the recommended Order and substituted a new
notice with language conforming to the violations found herein and to
correct an error in the records removal provisions with respect to the
year of Stevenson’s discharge. We shall also change the conditional
notice-mailing provision in our Order to reflect February 10, 2006, as
the approximate date of the Respondent’s first unfair labor practice.
The judge found that the Respondent dispatched drivers to the Stadium
project beginning on this date and bypassed the three prounion employ-
ees for these assignments thereafter.
13 We leave resolution of any issues with respect to backpay entitle-
ment to the compliance stage of this proceeding.
14 As stated by the judge, the backpay remedy for Stevenson’s
unlawful suspension and discharge shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, supra.
SPURLINO MATERIALS, LLC 1201
Mar-Jac Poultry Co., 136 NLRB 785 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), is unwarranted in the circum-
stances of this case. The Board exercises remedial dis-
cretion in determining whether to extend the certification
year, with the resultant bar against challenges to the in-
cumbent union’s status as the employees’ exclusive bar-
gaining representative. United Electrical Contractors
Assn., 347 NLRB 1, 3 (2006). The Board has often
granted Mar-Jac extensions in cases involving a com-
plete refusal to bargain, overall bad-faith bargaining, or a
breakdown in negotiations caused by unfair labor prac-
tices. In this case, there is no allegation that the Respon-
dent engaged in a complete refusal to bargain or overall
bad-faith bargaining. Furthermore, there is no showing
that its unilateral changes and other unfair labor practices
had any impact on the parties’ ongoing contract negotia-
tions. In this respect, this case is similar to Southern
Mail, Inc., 345 NLRB 644, 644 fn. 2 (2005), where the
Board rejected the judge’s recommendation for a Mar-
Jac extension. The respondent in Southern Mail made
unlawful unilateral changes and refused to furnish re-
quested relevant information, but the General Counsel
did not contend either that the respondent had refused to
recognize and negotiate in good faith with the union for a
contract following its certification or that the respon-
dent’s 8(a)(5) violations had tainted those negotiations.
Accordingly, as in Southern Mail, we shall delete the
provision for a certification year extension from the rec-
ommended Order. 15
ORDER
The Respondent, Spurlino Materials, LLC, Indianapo-
lis, Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Creating new positions or implementing new em-
ployee evaluation or testing procedures for the selection
of employees to fill those positions, without first afford-
ing Coal, Ice, Building Material, Supply Drivers, Rig-
gers, Heavy Haulers, Warehousemen and Helpers, and
Local Union No. 716, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of
America (the Union) notice and an opportunity to bar-
gain.
(b) Subcontracting out unit work or using Spurlino
Ohio employees to perform such work, without first af-
fording the Union notice and an opportunity to bargain.

15 See also Visiting Nurse Services of Western Massachusetts, 325
NLRB 1125, 1132 (1998), enfd. 177 F.3d 52 (1st Cir. 1999), cert. de-
nied 528 U.S. 1074 (2000), and Cortland Transit, Inc., 324 NLRB 372
(1997).
(c) Discriminatorily bypassing employees out of the
normal dispatch sequence because they have engaged in
activities on behalf of the Union.
(d) Failing to select employees for new positions, or
suspending, terminating, or otherwise disciplining them,
because they have engaged in activities on behalf of the
Union.
(e) Denying an employee’s requests for the presence of
a union representative and continuing to question him
during an investigatory meeting which the employee
could reasonably fear would result in disciplinary action.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain in good faith with the Union as the
exclusive collective-bargaining representative of em-
ployees in the following appropriate unit:
All full-time and regular part-time drivers and plant op-
erators/batch men employed by the Employer at the
following facilities: Indianapolis (Kentucky Ave.),
Indiana; Linden, Indiana; and Noblesville, Indiana;
BUT EXCLUDING all garage employees, mechanics,
helpers, laborers, dispatchers, and guards and supervi-
sors, as defined in the Act.
(b) Make unit employees whole, with interest for any
loss of earnings and other benefits suffered as a result of
the Respondent’s unilateral implementation of new selec-
tion criteria and staffing procedures for the portable
batch plant at the Lucas Oil Stadium project from June 8,
2006, until March 2007, in the manner set forth in the
amended remedy section of this decision.
(c) Make employees Ron Eversole, Matthew Bales,
and Gary Stevenson whole, with interest, for any loss of
earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the
amended remedy section of this decision.
(d) Within 14 days from the date of this Order, offer
Gary Stevenson full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(e) Within 14 days from the date of this Order, remove
from its files any references to the August 26, 2006 in-
definite suspension, and the February 22, 2007 termina-
tion, issued to Gary Stevenson, and the failure to select
Ron Eversole, Matthew Bales, and Gary Stevenson for
positions at the portable batch plant and to properly dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1202
patch them, and within 3 days thereafter, notify them in
writing that this has been done and that the unlawful ac-
tions will not be used against them in any way.
(f) Within 14 days from the date of this Order, remove
from its files employee evaluations written pursuant to
the Respondent’s new evaluation system, which was uni-
laterally implemented without affording the Union notice
and an opportunity to bargain.
(g) 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, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of money due
under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facilities in Indianapolis (Kentucky Avenue), Linden,
and Noblesville, Indiana, copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 25 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. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 10, 2006.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 25 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.

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.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT create new positions or implement new
evaluation or testing procedures for employees without
first affording the Union, Coal, Ice, Building Material,
Supply Drivers, Riggers, Heavy Haulers, Warehousemen
and Helpers, and Local Union No. 716, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, prior notice and an opportunity
to bargain.
WE WILL NOT subcontract out unit work or use
Spurlino Ohio employees to perform unit work without
first affording the Union prior notice and an opportunity
to bargain.
WE WILL NOT discriminate against you by not dis-
patching you pursuant to our normal dispatching proce-
dure, by not selecting you to fill newly created positions,
or by suspending, terminating, or otherwise disciplining
you because you have engaged in activities on behalf of
the Union.
WE WILL NOT deny your requests for the presence of a
union representative and continue to question you during
meetings in which you reasonably fear that discipline
may result.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
under Section 7 of the Act, as set forth at the top of this
notice.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment, no-
tify and, on request, bargain in good faith with the Union
as your exclusive collective-bargaining representative in
the appropriate bargaining unit:
SPURLINO MATERIALS, LLC 1203
All full-time and regular part-time drivers and plant op-
erators/batch men employed by us at our following fa-
cilities: Indianapolis (Kentucky Ave.), Indiana; Lin-
den, Indiana; and Noblesville, Indiana; BUT
EXCLUDING all garage employees, mechanics, help-
ers, laborers, dispatchers, and guards and supervisors,
as defined in the Act.
WE WILL make employees Ron Eversole, Matthew
Bales, and Gary Stevenson whole for any loss of earn-
ings and other benefits suffered as a result of our dis-
criminatorily bypassing them (assigning them out of the
normal dispatch sequence) for Stadium assignments be-
tween February 10 and June 8, 2006, and for not select-
ing them thereafter for portable plant assignments, be-
cause they engaged in activities on behalf of the Union.
WE WILL make employee Gary Stevenson whole for
any loss of earnings and other benefits suffered as a re-
sult of his discriminatory suspension and discharge, with
interest.
WE WILL make employees whole, from when the Re-
spondent first assigned drivers to the portable plant on
June 8, 2006, to when it closed the portable plant, for any
loss of earnings and other benefits suffered as a result of
the Respondent’s failure to utilize the preexisting dis-
patch procedure that would have otherwise governed,
had Respondent not made unlawful unilateral changes
which resulted in certain drivers being dedicated to Sta-
dium dispatches.
WE WILL, within 14 days of the Board’s Order, offer
Gary Stevenson full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL, within 14 days of the Board’s Order, remove
from our files any references to the August 26, 2006 in-
definite suspension, and the February 22, 2007 termina-
tion, issued to Gary Stevenson, and the failure to select
Ron Eversole, Matthew Bales, and Gary Stevenson for
positions at the portable batch plant and to properly dis-
patch them, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the
unlawful actions will not be used against them in any
way.
WE WILL, within 14 days of the Board’s Order, remove
from our files the employee evaluations that we prepared
without first affording the Union notice and an opportu-
nity to bargain.
SPURLINO MATERIALS, LLC
Joanne C. Mages and Rebekah Ramirez, Esqs., for the General
Counsel.
Robert J. Brown, Esq. (Thompson Hine LLP) and Mary Rita
Weissman (The Weissman Group), for the Respondent.
Geoffrey S. Lohman (Fillenwarth, Dennerline, Groth & Towe),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. The amended
consolidated complaint dated March 21, 2007, and the com-
plaint dated July 18, 2007, stem from unfair labor practice
(ULP) charges that Coal, Ice Building Material, Supply Driv-
ers, Riggers, Heavy Haulers, Warehousemen and Helpers, and
Local Union No. 716, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen, and Helpers of America (the
Union) filed against Spurlino Materials, LLC (Respondent or
the Company). The alleged violations of Section 8(a)(3), (5),
and (1) of the National Labor Relations Act (the Act) relate to
drivers that the Union represents at Respondent’s three Indian-
apolis, Indiana area facilities. Most pertain to work performed
at two major jobsites: the Lucas Oil Stadium (Stadium) in
2006, and the AirWest Distribution warehouse (Warehouse
Project) in 2007.
Pursuant to notice, I conducted a trial in Indianapolis, Indi-
ana, on April 24–27, May 30–31, and October 18, 2007, at
which the parties had full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence.1 All
parties filed helpful posthearing briefs that I have duly consid-
ered.
At the General Counsel’s unopposed request, I take official
notice that on November 8, 2007, Judge David F. Hamilton of
the United States District Court for the Southern District of
Indiana, Indianapolis Division, issued an injunction against
Respondent pursuant to the Regional Director’s petition for
such under Section 10(j) of the Act. As Judge Hamilton articu-
lately explained, the standard he applied in determining injunc-
tive relief appropriate was not that of passing on the merits of
the underlying ULP charges, a role vested at the first adjudica-
tory level with me.
I also grant the General Counsel’s unopposed motion to cor-
rect transcript.
Issues
Did Respondent violate Section 8(a)(5) and (1) by the fol-
lowing conduct:
1. In May 2006, created the position of portable batch plant
driver (portable plant driver) at the Stadium, without first af-
fording the Union notice and an opportunity to bargain over the
conduct and its effects?

1 I left the record open on May 31 to afford the General Counsel the
opportunity to investigate pending charges that the Union had filed
against Respondent on May 24, in Case 25–CA–30345. Subsequently,
the General Counsel found merit to certain charges in Case 25–CA–
30362, filed on June 12, and issued a complaint on July 18. By order
dated July 30, I granted its unopposed motion to consolidate such com-
plaint with the outstanding amended consolidated complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1204
2. In May 2006, implemented a new evaluation and testing
procedure, upon which to select employees to work as portable
plant drivers, without first affording the Union notice and an
opportunity to bargain?
3. In about late July 2006, created the position of alter-
nate/backup portable plant driver (alternate driver) at the Sta-
dium, without first affording the Union notice and an opportu-
nity to bargain?
4. In about late July 2006, by Jeff Davidson, operations man-
ager, bypassed the Union and dealt directly with unit employ-
ees by offering them alternate driver positions?
5. Unreasonably delayed furnishing the Union with informa-
tion it requested on August 24, 2006, concerning Respondent’s
records of union dues deductions made from unit employees’
paychecks and their remittance?
6. From June 11–28, 2007, assigned unit work to nonunit
employees; more specifically, utilized subcontracted trucks and
drivers, employees from Spurlino’s Ohio operations (Spurlino
Ohio), and nondriver employees, for concrete slab pours at the
Warehouse Project, rather than using unit employees?
7. On about June 11, 2007, altered the manner in which it as-
signed unit employees to perform unit work; more specifically,
solicited unit employees to volunteer for slab pours at the
Warehouse Project, rather than simply using the regular call-in
referral system?
Did Respondent violate Section 8(a)(3) and (1) by the fol-
lowing conduct against the named employees because they
engaged in union activity:
1. From about February 10 until about June 7, 2006, failed to
assign employees Matt Bales, Ron Eversole, and Gary Steven-
son to the Stadium?
2. In about early June 2006, failed to select them as portable
plant drivers?
3. In about late July 2006, failed to select them as alternate
drivers?
4. On August 26, 2006, indefinitely suspended Stevenson,
and on about February 25, 2007, discharged him?
Finally, did Respondent commit an independent violation of
Section 8(a)(1) on August 25, 2006, when Davidson continued
to interview Stevenson after denying his request for union rep-
resentation at an interview at which Stevenson had reasonable
cause to believe that disciplinary action might result?
Witnesses and Credibility
The General Counsel’s witnesses included Bales, Eversole,
and Stevenson; Union Attorney Neil Gath, Union President
Gary Green, Union Vice President Steve Jones; drivers Ken-
neth Cox, Eric Kiefer, and Terry Mooney; and Matt Ahlquist,
area lead for Lithko, the contractor under which Respondent
performed work at the Warehouse Project.
Respondent called its admitted agents Davidson, Majority
Owner Jim Spurlino (Spurlino), Consultant Mary Rita Weiss-
man (Weissman) of The Weissman Group (TWG), General
Manager Gary Matney, and dispatchers Wilma Leary and Don-
ald Rollins.
On some matters, the testimony of various witnesses from
both sides was completely consistent; on others, testimony was
contradictory, not only between witnesses from opposing par-
ties but also between a party’s witnesses themselves. I have
taken into account the natural diminution of recall when events
occurred over a period of time rather than on one or two spe-
cific occasions.
Ahlquist is employed by a neutral third party with no stake in
the proceedings. He appeared candid and answered questions
posed by Respondent’s counsel on cross-examination as readily
as he did those asked by the General Counsel on direct. His
testimony was also consistent with the documentary evidence
of record. Accordingly, I credit what he stated.
Cox, Kiefer, and Mooney are not alleged discriminatees and
were not active union proponents. Thus, Cox served as an elec-
tion observer for the Company; Kiefer was neutral during the
campaign; and Mooney’s sole union activity was signing an
authorization card. These drivers would have no apparent
vested interest in slanting their testimony either for or against
Respondent, and they did not seem to do so during their testi-
mony. They appeared candid, and I credit them.
Eversole and Bales struck me as generally credible, and I
credit their testimony for the most part. Stevenson, who appar-
ently has limited education and seemed somewhat intimidated
by the trial setting, did not always testify smoothly, and at dif-
ferent times related events differently, particularly as to what
was said at his August 25, 2006 interview with Davidson. I do
not believe he was deliberately untruthful but nevertheless find
portions of his testimony unreliable.
Turning to Respondent’s witnesses, I find that Weissman and
Rollins were the most reliable, with an exception in each case.
Although Weissman occasionally tried to slip in statements in
support of Respondent’s legal positions, she generally an-
swered questions, including those I posed, readily and without
an apparent effort to formulate the “right” answers. She was
Respondent’s chief negotiator at bargaining sessions, and I
believe she would have had a more solid recall than Green or
employees on the Union’s bargaining committee who testified
on what was said during negotiations. Only when it came to
her testimony on Spurlino’s role in decisionmaking did Weiss-
man equivocate and lose her otherwise self-assured demeanor.
Rollins seemed candid, and he has a great deal of experience
both in driving and dispatching. As opposed to Rollins,
O’Leary has never personally been inside the trucks, and her
testimony struck me as more calculated to help Respondent’s
case. Accordingly, I credit his testimony over hers where they
diverged. On one matter—whether the call-in list was strictly
followed in dispatches to the Stadium—Rollins’ testimony (and
that of other management witnesses) was contradicted not only
by the testimony of General Counsel’s witnesses but, more
significantly, by Respondent’s own documents. Therefore, I do
not credit his testimony thereon.
Respondent’s remaining witnesses were often not credible.
Spurlino claimed lack of knowledge on a wide range of sub-
jects and was frequently vague or nonresponsive, even though
the testimony of other management witnesses and Spurlino
himself show his active role in managing the Indiana facilities.
His testimony regarding Stevenson’s suspension was notably
suspect. Thus, he more than once first testified that the final
decision to suspend Stevenson was a consensus between him,
Weissman, Matney, and Davidson, but Matney and Davidson
SPURLINO MATERIALS, LLC 1205
directly contradicted this testimony, and Spurlino himself later
retracted it.
Ironically, both Matney and Davidson seemed noticeably
more at ease in testifying as adverse witnesses under Section
611(c) than they did in testifying as witnesses in Respondent’s
case-in-chief. During the latter, both exhibited considerably
greater defensiveness and more stress. Matney, in fact, became
argumentative at times. This causes me to believe that they
were not comfortable in testifying in support of Respondent on
certain subjects and to have doubts about the reliability of their
testimony thereon.
Other factors undermine the reliability of their testimony in
general. Matney, particularly as Respondent’s witness, fre-
quently hesitated in giving answers and often professed not to
recall specific details. The latter was most noticeable regarding
conversations he had with employees prior to the election on
January 13, 2006. Further, certain aspects of his testimony
were not believable. For example, he testified that both Ever-
sole and Stevenson told him more than once prior to the elec-
tion that they did not support the Union and never told him they
changed this position. Yet, he also testified that he was not
surprised to learn they were later appointed to the Union’s ne-
gotiating committee. Similarly, his testimony that he did not
know on the day of the election who the Union’s observers
were flies in the face of his presence at Kentucky Avenue that
day, and the uncontroverted fact that Respondent engaged in a
vigorous preelection campaign to discourage employees from
voting for the Union and evinced a strong interest in the out-
come.
Matney’s credibility was further weakened when he pro-
fessed not to have understood a simple question that had been
posed by Respondent’s counsel (concerning his preelection
statements to drivers about collective bargaining), after having
first given an ambiguous and evasive answer. I do not find this
plausible from a high-level manager who had no problems un-
derstanding questions from the General Counsel and the Un-
ion’s attorney when he testified as a 611(c) witness. Finally, I
do not believe that all of the five drivers who testified that Mat-
ney made a variety of antiunion statements before or shortly
after the election fabricated their testimony, and I therefore do
not credit Matney’s denials thereof.
Davidson’s testimony about the evaluation process used to
select drivers to staff the portable plant was frequently ambigu-
ous, shifting, and even directly contradictory, particularly on
how employees were evaluated and how various factors were
weighed. For example, on the question of whether grades of
“A” or “B” were required on certain criteria, he first testified
that there were two such criteria, then added several others, and
finally stated that there were none. He also failed to give any
specific supporting information behind his purported reasons
for not selecting Bales, Eversole, and Stevenson, and some of
his statements about them were conflicting. I note that their
personnel files, subpoenaed by the General Counsel, contain no
documentation of their alleged deficiencies. Moreover, several
driver-witnesses contradicted his testimony about the role driv-
ing tests played in selecting portable plant drivers.
Finally, as to credibility, I note the well-established precept
that witnesses may be found partially credible, because the
mere fact that a witness is discredited on one point does not
automatically mean that he or she must be discredited in all
respects. Golden Hours Convalescent Hospitals, 182 NLRB
796, 799 (1970). Rather, it is appropriate to weigh the witness’
testimony with the evidence as a whole and to evaluate its plau-
sibility. Id. at 798–799; see also MEMC Electronic Materials,
342 NLRB 1172, 1200 fn. 13 (2004), quoting Americare Pine
Lodge Nursing, 325 NLRB 98 fn. 1 (1997) (when examining
testimony, a trier of fact is not required “to accept the entirety
of a witness’ testimony, but may believe some and not all of
what a witness says”); Excel Container, Inc., 325 NLRB 17
fn. 1 (1997) (it is quite common in all kinds of judicial deci-
sions to believe some, but not all, of a witness’ testimony).
Facts
Based on the entire record, including witness testimony,
documents, and the parties’stipulations, I find the following
facts.
Spurlino, Respondent’s majority owner, owns and operates a
number of plants in various states, all engaged in supplying and
delivering ready-mix concrete in the construction industry. His
business enterprises are headquartered in Ohio. In about No-
vember 2005, he purchased the assets of American Concrete as
a limited liability company and took over its three facilities in
the Indianapolis, Indiana area: Kentucky Avenue (or South
Plant) in Indianapolis, Linden, and Noblesville (or North Plant).
Jurisdiction has been admitted, and so I find.
Spurlino visits the facilities on an average of twice monthly
for 2 days each, mostly going to Kentucky Avenue, where
management offices are located. Matney, as general manager,
oversees the entire operation on a day-to-day basis. Davidson,
as operations manager, has direct responsibility over quality
control, plant and truck maintenance, and dispatchers, drivers,
and batch men. He reports to both Matney and Spurlino, with
whom he typically talks several times a week. George Gaskin,
also classified as an operations manager, assists him. Angie
Johnson handles payroll, employee benefits, and recordkeeping
functions. At all times relevant, Respondent employed three
dispatchers, all located at Kentucky Avenue.
For the Indiana facilities, Respondent has at all times out-
sourced resources and labor relations, including union matters,
to TWG. Respondent’s management in Indiana is in contact
with TWG on a regular basis, at least three or four times
weekly. Weissman has been TWG’s primary contact person.
At the time of trial, Respondent employed approximately 15
drivers and one batch man (or plant operator) at Kentucky
Avenue; about eight drivers and one batch man at Noblesville;
and about four or five drivers and one batch man at Linden.
I. UNION ACTIVITY AND ELECTION
In late 2005, drivers, including Bales, Eversole, and Steven-
son contacted the Union, which, on December 6, 2005, filed a
petition for an election. The Union considered the three, along
with Kentucky Avenue batch man, Scotty Sullivan, to be mem-
bers of its bargaining committee during the preelection cam-
paign period. They talked in favor of the Union and solicited
employees to sign authorization cards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1206
A number of employees testified about one-on-one meetings
with Matney following the filing of the petition, and it is undis-
puted that Respondent engaged in a preelection campaign to
dissuade employees from voting for the Union. Respondent’s
preelection conduct was the subject of a prior complaint and is
not before me for adjudication. Nevertheless, I can appropri-
ately consider such conduct as background evidence in this
proceeding.
Matney testified that “John” from TWG provided manage-
ment with a series of about six bullet-point letters on various
topics to discuss with drivers.2 Matney and Gaskin divided up
the Kentucky Avenue drivers for such meetings, with Matney
having six or seven on his list.
According to Matney, he met on a one-to-one basis with
drivers he had been assigned, usually in his office for 5–15
minutes. Initially, he testified that he followed the contents of
the letters “generally fairly closely.”3 However, on cross-
examination, he testified that what he read to them “varied,
really,” depending on whether he or the driver was pressed for
time.4 He also testified that he did not go over all of the letters
with all of his assigned drivers because some drivers were eas-
ier to “get a hold of” than others.”5 In light of his status as
Respondent’s highest-level manager in Indiana, I find incredi-
ble his professed inability to secure the presence of employees,
especially when Respondent’s labor relations consultant had
directed that he speak to them.
Matney’s testified inconsistently concerning which drivers
he spoke to. He first stated that he spoke to four or five, includ-
ing Bales, Eversole, Stevenson, Randy Poindexter, and there
“may have been a few more.”6 He also testified that he “be-
lieved” he also talked to Cox, who he “believed” was on his
list, but could not recall how many times. He did not raise
Kiefer’s name until the General Counsel’s redirect-
examination—and then in response to the question of the driver
with whom he had the most conversations on the letters.7 This
is another indication of Matney’s lack of reliability as a wit-
ness.
Matney was vague about what he discussed with drivers. He
could recall only “some discussion about bargaining . . . how
bargaining took place. There were discussions about the length
of time that first contracts generally take.”8 He gave no other
description about what was said. When Respondent’s counsel
specifically asked whether he had any conversations about
collective bargaining outside the scope of the letters, Matney
was ambiguous and evasive. He first answered that several
employees had questions for him about the Company but could
recall no specifics. He then said the questions were related to
operations, such as the types of trucks. Next, he stated, circu-
larly, “[T]hese were just conversations that we were having
during the course when we were talking about the collective

2 Respondent furnished three of them, all signed by Matney, dated
December 29, 2005, and January 3 and 5, 2006. R. Exh. 1.
3 Tr. 788.
4 Tr. 815.
5 Tr. 791; semble, Tr. 813.
6 Tr. 779–780.
7 Tr. 814.
8 Tr. 788.
bargaining, questions that they asked.”9 Finally, he claimed
that he “didn’t understand” the question and could recall no
such conversations.10
Matney’s testimony about his conversations with Eversole
and Stevenson was as follows. They approached him and vol-
unteered that they were both on the Company’s side and willing
to work with him by circulating a petition against proceeding
with the election. Eversole asked if Matney could provide such
a petition and was told “no.” In later conversations, Eversole
stated that his sister had prepared one, which would be circu-
lated to drivers for their signatures, and that he would help to
get it signed. Stevenson also told Matney a couple of times
after the three of them met that he was behind the Company
and would assist management.
Oddly, although Matney testified that Eversole and Steven-
son had evinced antiunion sentiments to him, he also testified
that he was not surprised when he learned after the election that
they had been elected to the Union’s bargaining committee.
His explanation, that he “fully anticipated that somebody from
the group would be there and they were the ones who were
elected,”11 was a nonsequitur that further undermines Matney’s
credibility, as does the implausibility of his testimony that
Eversole and Stevenson sua sponte offered to get drivers to sign
antiunion petitions, when they were among the employees who
approached the Union and sought drivers to sign authorization
cards.
For the myriad of reasons above, Matney’s testimony about
what he said to drivers during the one-on-one meetings was
unreliable.
The following employees, in the order they testified, re-
counted conversations with Matney prior to, or shortly after, the
election: Eversole, Stevenson, Bales, Kiefer, Mooney, and
Cox. Their testimony on these was generally credible, plausi-
ble, and not inconsistent, and I credit it over Matney’s denials.
The one exception is Stevenson, whom I credit only partially
for reasons to be stated.
Eversole’s first such conversation with Matney was in De-
cember 2005, when the latter called him in to the mechanics’
shop. Matney laid a piece of paper on the desk (presumably,
the NLRB notice that the petition had been filed), and said, “I
cannot believe you guys acted in such a fast manner to run to
the Union to try to get the Union in this company instead of
giving Jim Spurlino a chance . . . [Y]ou guys are messing up a
good thing that could happen here, and now you’ve blown it for
yourselves. . . . I cannot believe you’re doing this to us.”12
Eversole replied that he and the other employees felt it was best
for their families.
Matney initiated about 20 subsequent conversations with
Eversole. Generally, similar in content, they took place in vari-
ous locations, including the mechanics’ shop, drivers’ room,
and the management office. Matney stated it was their (the
drivers’) decision but that he did not want the Union, and the
Company would not stand for a union. He further stated that

9 Tr. 797.
10 Tr. 797–798.
11 Tr. 824–825.
12 Tr. 409.
SPURLINO MATERIALS, LLC 1207
Spurlino had gone through union organizing several times, and
“only once did it even get to a bargaining session. And he
[Spurlino] held it out for so long that the Union walked away
from the table.”13
At one meeting, Matney asked Eversole to circulate an anti-
union petition, and he replied that he was not interested. Mat-
ney pressed him, and he then asked what he needed to do.
Matney replied it was a petition that needed to be signed by at
least 51 percent of the employees to stop the election. In later
conversations, Matney asked him if he had gotten the petition
signed. During their last conversation, 2 days before the elec-
tion, Eversole stated that the drivers did not want to sign be-
cause they were fearful of repercussions. Matney replied there
would be no repercussions, and he accused Eversole of not
being a man of his word.
Stevenson also had numerous conversations with Matney, ei-
ther in the mechanics’ shop or the break room. His testimony
about them was often not easy to follow, some of it was confus-
ing, and some was implausible. Accordingly, I credit his testi-
mony on this subject only in part and where consistent with
Eversole and the credited testimony of other drivers.
I find that on December 10 or 11, soon after the petition was
filed, Stevenson had a conversation with Matney in the me-
chanic’s shop.14 Matney asked why the drivers wanted a union
and to give management a chance. Stevenson, for whatever
reason, led Matney to believe he would assist in getting rid of
the Union. The next morning, in the same location, Matney
asked Stevenson if he (Stevenson) thought he could get rid of
the Union. Stevenson asked how, and Matney replied, to take a
petition around and have people sign.
I further find that Gaskin gave Stevenson such a petition ei-
ther later that day or the next morning. A day or so thereafter,
Stevenson was in the break room when Matney asked how the
petition was coming and if Stevenson had encountered any
problems getting signatures. Stevenson replied that it was go-
ing slowly but that he was still trying. Matney asked if there
were any people to whom he needed to talk, to persuade them
to sign the petition. Stevenson replied, “[N]o.” A day or 2
later, Matney called him to the mechanics’ cage and again
asked how the petition was coming. Stevenson replied that he
was still having problems.
On the other hand, I do not credit Stevenson’s testimony that
in the last conversation above, Matney then asked who had
started “this union shit” and became irate when Stevenson re-
sponded that he had. Such question would have been highly
out of context and is one that I would expect Matney would
have asked much earlier. In that event, I doubt if Matney
would have continued to press Stevenson to spearhead an anti-
union effort. I also do not credit Stevenson’s incredible testi-
mony that 2 or 3 days later—after Matney’s purported angry
reaction at Stevenson’s union activity—Matney again called
him to his office and asked how the petition was going, and was
he (Stevenson) still trying to get rid of the Union.

13 Tr. 411–412.
14 Stevenson testified that it was in the presence of Bales, Cox, and
Eversole, but his subsequent testimony suggests he was alone with
Matney. None of the named drivers testified about such a conversation.
Matney called Bales to the management office a week before
Christmas 2005. He stated that Spurlino had been through this
(union organizing activity) six times and “had prolonged it 16
to 18 months, long enough that the union walked away from the
table.”15 In subsequent conversations, Matney asked Bales if
he understood “that stuff.” In at least one conversation, Matney
stated that he knew that Bales had already made up his mind
how he was going to vote. Bales replied that he and Eversole
were best friends but did not always agree. On at least two
occasions, Matney asked Bales if he understood that the Com-
pany could not retaliate.
Kiefer characterized himself as “neutral” during the preelec-
tion period, during which Matney initiated about three “casual”
meetings with him. Therein, Matney explained what the Union
could not do for him and stated that the Company wanted a
“no” vote.
Mooney’s sole union activity consisted of signing a union
authorization card. Matney had three meetings with him prior
to the election, all in the management office. The first was on
December 20, 2005. Matney advised Mooney that he did not
have to talk to him if he did not wish. He asked Mooney to
give the Company a chance and said that Spurlino would take
care of the drivers if they did so; however, if they voted for the
Union, it would probably take about 18 months to get to nego-
tiations. In the second conversation, a week later, Matney
started the conversation in the same way. He then said he
wanted Mooney to convince the other drivers that if they
dropped the Union, they would suffer no repercussions, and
nobody would get fired. He added that the drivers did not need
a third party to intervene. In their third conversation, on Janu-
ary 4, 2006, Matney stated that “[I]t would take 18 months if
we did vote the union in, for negotiations, to start negotiating
and that Jim Spurlino would drag it out and that he would pay
any fines.”16 He also said that just because the drivers were
union did not mean they would get all the union jobs, and he
repeated that the drivers did not need a third-party intervenor.
An election was held on January 13, 2006. The Union’s ob-
servers were Eversole at Kentucky Avenue, Stevenson at Lin-
den, and Bales at Noblesville. Cox was the Company’s ob-
server at Kentucky Avenue. For reasons stated, I discredit
Matney’s testimony that he was not aware of the identity of the
Union’s observers that day and conclude that management had
such knowledge. I note that he was present at Kentucky Ave-
nue on the day of the election and find disingenuous his testi-
mony on this point. After the election results were announced,
John Coit, one of the Company’s representatives at the preelec-
tion conference (and perhaps the same individual with TWG
who prepared the letters for Matney to read to drivers) stated,
“They all lied. All those mother-fuckers voted yes.”17
Following the announcement of the election results in favor
of the Union, Cox and Gaskin had a conversation outside the
break room, in which the latter stated that he wished the vote
had gone differently, and “Stuff around the plant was going to

15 Tr. 667.
16 Tr. 600.
17 Eversole at Tr. 420; semble, Bales at Tr. 672. See GC Exh. 20,
preelection conference attendance sheet.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1208
be a whole lot different and things were going to get uglier than
what they were.”18
A couple of days later, Matney, as he was going upstairs,
told Stevenson that “[i]t is just going to get worse now, union
[sic] makes me do mean things.”19 In a similar vein, in a con-
versation with Cox the following week in or around the break
room area, Matney stated that he wished things had gone better
as far as the election and that drivers were going to “lose a lot
of stuff that we could have had that [Spurlino] was going to
offer regarding not having a union, that we were going to lose
all of that as far as bonuses and more money and vacations and
stuff like that . . . Now it was all going to be gone . . . [T]hings
at the plant were going to get a whole more [sic] uglier.”20 Cox
responded that drivers had not known that the Company was
going to give them those benefits. Matney stated that he felt
Eversole was “the ringleader in all this that got everybody in-
volved” and called him a “nigger.”21
On January 23, 2006, the Union was certified as the repre-
sentative of all full-time and regular part-time drivers and plant
operators/batch men at the three facilities.22
II. DISPATCH SYSTEM
When Respondent purchased the facilities from American
Concrete in November 2005, it kept in place the latter’s dis-
patch system, to which it claims to have adhered consistently
since.
Although the policy has never been reduced to writing, its
basics are not at issue. At each location, a separate call-in list is
maintained daily, listing drivers in order of their seniority or
dates of hire, with the most senior at the top (GC Exh. 2, for
January 2, 2006, is representative). New hires are added to the
bottom. In making assignments for the following day, dis-
patchers start at the top of the list and go down, skipping driv-
ers off on scheduled leave or otherwise not available. Drivers
call in after 7 p.m. for a recorded dispatch message telling
them, by facility, what time each should report the following
day. Reporting times vary, depending on customer orders and
the intervals between deliveries.
Drivers who return to the facility after completing their ini-
tial assignments of the day are ordinarily sent out again on fur-
ther assignments in the order of their return. The first drivers
in, either in the morning or during the day, are the first to be
loaded out. The only exceptions, occurring less often than once
a month, are when a special type of truck is required or because
a customer does not want a certain driver.23 All of the trucks
have GPS, and dispatchers can track their movements at all
times and thereby know when they are back at the facility and
ready for another load. This does not hold true if the tracking

18 Tr. 513. Stevenson recalled similar statements that day but attrib-
uted them to Matney.
19 Tr. 577.
20 Tr. 516.
21 Tr. 517–518.
22 Jt. Exh. 2.
23 Testimony of Rollins at 896–897. Semble, Matney’s testimony at
Tr. 77 (exceptions are “seldom.”)
mechanism in the truck’s box is not working, an uncommon
event.24
Respondent owns the trucks its drivers use. Each driver is
assigned and normally drives a particular truck, although, for a
number of reasons, including vehicle repair, such is not always
the case. New drivers are normally sent out with more experi-
enced drivers for about 2 weeks, as training, before driving on
their own. They take no driving test as such.
III. THE LUCAS OIL STADIUM PROJECT
When Respondent contracted with Baker Concrete (Baker)
to provide ready-mix concrete at the Stadium, it was required to
sign a letter of assent to the Project Labor Agreement for Work
Stabilization for Stadium and Convention Center Expansion
Construction (PLA), entered into on August 9, 2005, between
the Indiana Stadium and Convention Building Authority, Hunt
Construction Group, Inc., as the current construction manager
for the project, employers who are or may become signatory to
the agreement; and the Central Indiana Building and Construc-
tion Trades Council and its affiliated unions.25 The Union is
among the signatory unions. Following are relevant PLA pro-
visions:
Art. 2.1—The PLA applies to employers who perform
construction work on the project at the project site.
Art. 2.3—“. . . . This Agreement (including the appli-
cable collective bargaining agreements listed in Attach-
ment C . . . represents the complete understanding of the
Parties . . . . The provisions of this agreement shall control
construction of this project and take precedence over and
supersede provisions of all the Unions’ collective bargain-
ing agreements . . . which conflict with the terms of this
Agreement. . . .”
Art. 2.4—“[E]ach Employer, before performing any
Construction Work on the Project, shall become signatory
and bound by the terms and conditions of this Agree-
ment. . . .”
Art. 2.11—The delivery of concrete, sand, gravel, as-
phalt, ready mix, and/or aggregate is included within the
scope of this agreement.
Art. 3.1—“[E]ach Employer agrees to recognize the
appropriate Union(s) signatory to this Agreement, as the
sole and exclusive bargaining agent of all craft employees
performing construction work on the Project within the
scope of this Agreement.”
Attachment C referenced numerous labor agreements by
trade, including the Uniform Building Construction Agreement
between the Associated General Contractors of Indiana, Inc.
and the Union, effective June 1, 2005, through May 31, 2008.26
Article 1 of this agreement provides that the employer recog-
nize the Union as the exclusive representative and bargaining
agency for several categories, including truckdrivers, covered

24 See Rollins’ testimony at Tr. 893, 913.
25 Jt. Exh. 4.
26 Jt. Exh. 5.
SPURLINO MATERIALS, LLC 1209
by the agreement. Article 32 sets out hourly wage rates by
classification.27
IV. DISPATCH OF DRIVERS TO THE PROJECT,
FEBRUARY 10–JUNE 7, 2006
On about February 10, 2006, Respondent first sent out driv-
ers to work on the Stadium. Consistent with Respondent’s
practice of normally using the plant nearest to a delivery site,
almost all of the loads sent to the Stadium were from Kentucky
Avenue, the geographically closest. On occasion, if the need
were great enough, drivers from the other two facilities were
also used. New drivers, after about 2 weeks of training, were
dispatched to the Stadium in the normal order of dispatch. At
all times, drivers used their regular timecards for non-Stadium
deliveries but separate time cards for Stadium deliveries, for
which they were paid more pursuant to the PLA.
The General Counsel contends that prior to the operation of
the portable plant on June 8, 2006, Respondent bypassed union
supporters Bales, Eversole, and Stevenson by loading other
drivers either before or after them, instead of following the
normal dispatch procedure. At the time, Eversole was first on
the call-in list, followed by Mooney, Cox, Stevenson, Bales,
approximately two other drivers, and then Kiefer. Respon-
dent’s witnesses uniformly testified that the normal dispatch
procedure was used as on any other job. However, their testi-
mony was not borne out by records that Respondent furnished
pursuant to subpoena.
Thus, General Counsel’s Exhibit 19, dispatch tickets from
February 16–March 24, 2006, shows that Mooney, Kiefer, and
Cox were dispatched most often to the Stadium during that
period. According to the General Counsel’s calculations,
Mooney received 50 trips, Kiefer 44, and Cox 41, or approxi-
mately 45 percent of all such dispatches.28 Bales was fourth
with 31, followed by Sam Southerland, a newer employee (he
was not employed as of January 2006) with 15, Stevenson 13,
and Eversole 11. The remaining eight drivers had between two
and seven. Respondent’s analysis of General Counsel’s Exhibit
4, which shows hours worked at the Stadium by driver from
February 13, 2006, through April 10, 2007, reflects that for the
period from May 1–June 9, 2006, Mooney worked 62 Stadium
hours, Eversole—61; Kiefer—57; Bales—54; Stevenson—48;
Steve Miller—48,Cox—47; and Mark Sims—43.29 Therefore,
Mooney was the only driver who received more Stadium hours
than Eversole during that timeframe, and Mooney and Kiefer
the only ones who had more such hours than Bales and Steven-
son, out of normal dispatch order.
These records substantially corroborate the basically consis-
tent testimony of Bales, Cox, Eversole, Kiefer, and Mooney
that for early dispatches to the Stadium, Cox, Kiefer, and
Mooney, and later Bales, were sent out of their normal call-in
list dispatch order.
Respondent had given Cox, Kiefer, and Mooney new trucks
in late January or early February 2006. Gaskin told Cox that he
and the other two drivers were selected to receive them based

27 As of June 1, 2005, drivers $20.95–$21.10; as of June 1, 2006,
$21.83–$21.98. Respondent’s wage rate was $17.50 an hour.
28 GC Br. at attachment A.
29 R. Br. at 20 (hours are rounded off).
on a 15-point system, including work performance, time on the
job, and other factors.30 Davidson later told Cox that the reason
he, Kiefer, and Mooney had been given loads to the Stadium
was that Respondent “wanted the new trucks shown on the
job.”31 Cox heard him say this more than once. Those were the
trucks that were initially sent to the Stadium, with other trucks
being dispatched there only if big pours required them.32
Based on the preceding, I find that the favored treatment
Cox, Kiefer, and Mooney received for Stadium assignments
was due to their driving new trucks that Respondent reasonably
wished to display when it started performing work at the Sta-
dium.
V. THE PORTABLE PLANT
At Baker’s initiation, Respondent set up a portable batch
plant at the Stadium in approximately May 2006, with the an-
ticipation that it would operate for about a year (Matney and
Davidson) or through the end of 2006 (Spurlino). It remained
in operation until approximately March 2007, when it was dis-
mantled due to a decrease in the volume of work. Davidson
was in direct charge of its day-to-day operations, with Matney
and Gaskin occasionally also having a role. At Respondent’s
three plants, the drivers used front-discharge trucks. However,
Baker suggested that Respondent use rear-discharge trucks at
the portable plant because they loaded faster and mixed more
thoroughly. Respondent first assigned drivers to the portable
plant on June 8, 2006.
The General Counsel does not contend that the establishment
of the portable plant or the use of rear-discharge trucks there
per se violated the Act.
A. Portable Plant Drivers and the Call-In List
General Counsel’s Exhibit 14 is a memo dated June 7, 2006,
signed by Davidson. It stated that on days when the portable
plant was not in operation, the portable plant drivers would be
at the bottom of the call-in list at their home plants. Further,
once the project was completed, those drivers would return to
their home plant and be restored to their original places on the
call-in list. Davidson was uncertain whether this was shown to
employees before or after the selections were made for the
portable plant, and he was very vague about whether it was
posted or not. When asked the simple question whether he
instructed anyone to distribute it, he replied, “It was—yes, I’m
sure I did or—or maybe I did. It’s been over a—you know, a
year ago and I just don’t recall.”33 I credit the testimony of
Cox, Eversole, Kiefer, and Stevenson, that they never saw the
memo. No driver testified that they did. Accordingly, I find
that the memo was not disseminated to employees. Eversole, in
fact, did not learn until after July 2006 that portable plant driv-
ers would revert to their former call-in list positions at their
home plants once the portable plant closed.
Davidson professed not to recall who decided that the port-
able plant drivers would be at the bottom of their home plant
call-in list on days that the portable plant was not operating. In

30 Unrebutted testimony of Cox at Tr. 524–525.
31 Unrebutted testimony of Cox at Tr. 523.
32 Testimony of Mooney at Tr. 617; Bales at Tr. 679.
33 Tr. 302.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1210
light of Davidson’s integral involvement in the portable plant’s
preparations and operations, I find this answer difficult to ac-
cept, especially when I credit Matney’s testimony that he had
nothing to do with the decision. In any event, Weissman con-
ceded that nothing was said during bargaining sessions about
how portable plant drivers would be treated when they worked
out of Kentucky Avenue.
B. Selection of Drivers for the Portable Plant
As with most personnel matters concerning the drivers, the
Company has no written policies regarding transfers from one
facility to another. Since Davidson has worked for Respondent
in Indiana (he previously worked at Spurlino Ohio), there has
been only one temporary transfer and no permanent transfers.
Spurlino, as was so frequently the case during his testimony,
was evasive when asked if he was involved in creating the port-
able plant driver position. Instead of giving a responsive an-
swer, he replied, “[W]e did not think of it as creating a new
position.”34
According to Davidson, Respondent determined not to use
the normal call-in list for the portable plant because Respondent
was a new concrete company in the area and wanted to put its
“best foot forward” by selecting reliable individuals who would
not have attendance problems.35 This resulted in the first and
only time that drivers at the Respondent’s Indiana operations
have been subject to performance reviews or formal driving
tests.
On about May 12, 2006, Respondent posted in the drivers’
break room at Kentucky Avenue a notice with that date from
Matney,36 stating:
In the near future we anticipate erecting a portable
plant adjacent to the Stadium project. Any employee in-
terested in working out of the plant for the duration of the
project should notify the Company in writing of this inter-
est by May 17, 2006. The notification of interest should
include your name and experience with rear-discharge
trucks.
Wages and benefits for this project are set by the pro-
ject agreement with the Teamsters.
Stevenson asked Davidson that day how seniority would work
and how they would pick the drivers. Davidson responded that
selection would be based on the driving test and also that port-
able plant drivers would lose seniority at Kentucky Avenue and
go to the bottom of the call-in list.
Subsequently, 13 drivers, including Bales, Eversole, and
Stevenson signed the notice. Wayne Thomerson added a com-
ment, “None Will Learn.” One driver from another facility also
expressed an interest. Of the 13, only Bales and Eversole sub-
mitted to Davidson written notifications of interest as per the
announced requirement.37 Both stated that they had no rear-
discharge truck experience.
Davidson ultimately selected Kiefer, Mooney, Thomerson,
and John Pinatello. His testimony regarding the selection proc-

34 Tr. 177.
35 Tr. 271.
36 GC Exh. 5.
37 GC Exhs. 11–12.
ess was hazy, often internally inconsistent, and contradicted by
driver-applicants.
He testified that performance was the criteria—attendance,
customer service, truck cleanliness, plus experience, including
driving rear-discharge trucks. He conducted no personal inter-
views of applicants but rather, he testified, had knowledge of
the experience of the four who were selected through their job
applications or casual conversations. However, he could not
recall the names of any of those to whom he talked casually.
He was also uncertain whether he discussed with the dispatch-
ers any of those selected. He averred that the only documents
he reviewed were job applications and attendance records and
conceded that he did not check employees’ personnel files or
look at any safety records.
I note that, although Davidson indicated at certain points in
his testimony that experience, including driving rear-discharge
trucks was a consideration, Kiefer and Mooney testified they
had no rear-discharge truck driving experience. Thomerson
(who had indicated the same in writing) and Pinatello were
both recent hires, their names not even appearing on the Janu-
ary 2, 2006 call-in list.38 Moreover, Davidson also testified that
he did not take into consideration the years employees had
worked for Respondent or American Concrete.
The sole documents to reflect the evaluation process are con-
tained in General Counsel’s Exhibit 13, the “performance re-
view cards” that Davidson and Gaskin prepared for each driver-
applicant on about May 25, 2006. Davidson graded drivers
“A” to “F” in 13 categories relating to performance, and he
wrote in the comments appearing at the bottoms of some of the
evaluations. Experience and experience with a rear-discharge
truck were not among the listed categories and were not other-
wise mentioned in any of the evaluations.
A review of the evaluations makes somewhat puzzling
Davidson’s testimony that the Company chose drivers who
would put its “best foot forward.” Thus, he commented about
Mooney: “Attitude sometimes below standards. Also with
customers” and about Kiefer, “Eric could be much better if he
applied himself.”39
In later testimony, Davidson averred rather curiously that
neither Bales’ nor Eversole’s evaluations contained any “stalls”
but that they were “not as qualified” as some of the others.40
He then went on to testify, for the first time, that he basically
categorized drivers into three groups—best qualified, qualified,
and not qualified, and that Bales and Eversole were in the sec-
ond category. He also testified that Stevenson had a “horrible
truck cleanliness” problem and believed that Stevenson had
attendance problems, and therefore was assigned to the third
category.41 Respondent submitted no records showing anything
in Stevenson’s’ personnel files regarding attendance or truck
cleanliness. Davidson later conceded that there was no actual
policy in place on truck cleanliness and that in several conver-
sations, he merely asked Stevenson to improve on this. When

38 GC Exh. 2.
39 GC Exh. 13 at 1, 4.
40 Tr. 726.
41 Tr. 729, 731.
SPURLINO MATERIALS, LLC 1211
asked about Stevenson’s attitude (for which he was rated
“F”42), Davidson could recall nothing specific.
Similarly, although Davidson testified that Bales had had ac-
cidents, which tied in with safety, and an attitude problem,
Respondent submitted nothing from Bales’ personnel files re-
garding either alleged deficiency.
Finally, on the subject of the criteria Davidson used for se-
lection, he testified at one point that an “A” or “B” for atten-
dance and safety were required; however, soon thereafter, he
testified that such grade was required for attendance, safety, on-
time delivery, personal productivity, and customer service.
Shortly thereafter, Davidson directly contradicted this earlier
testimony by stating flat out that there were no areas in which
an “A” or “B” were absolute requirements.43
Davidson testified that he made the decision that applicants
for the portable plant driver position would have to take driving
tests in rear-discharge vehicles. Brett, DeLong, an employee of
Spurlino Ohio, administered them.
The role, if any, that these driving tests actually played in the
selection process remains an enigma. Davidson was vague on
what the “test” consisted of and how DeLong rated the appli-
cants (no one failed). Davidson stated that DeLong made notes
and showed them to him but that no records of the driving tests
were kept. He could not recall if the driving tests were given
before or after the performance reviews were done.
Davidson testified that he selected Kiefer, Mooney, Pi-
natello, and Thomerson in part as a result of the driving tests, to
the extent that they would not have been selected if they had
been unable to drive a rear-discharge truck. However, Mooney
refused to take the test at all, and Kiefer described it as “un-
pleasant,” because he encountered problems. Mooney was
present when Kiefer took the test and observed his having diffi-
culties. On the other hand, DeLong told Stevenson that he was
“one of the better ones,”44 and neither Bales nor Eversole were
ever offered the test.
Interestingly, the next occasion when Kiefer drove a rear-
discharge truck after his test was on the first day he reported to
the portable batch plant, June 8, 2006. An individual from
Respondent’s Ohio operations went through the truck controls
with the four drivers, giving them a “crash course” on site.
That was the extent of their training in operating a rear-
discharge truck. By the end of the first day of work, they all
were able to drive.
In sum, Davidson’s testimony on the evaluation, testing, and
selection process for portable plant drivers was a hopeless
muddle, much of which driver-witnesses contradicted. I there-
fore find it wholly unreliable.
During negotiations, Respondent never stated that drivers
would be formally evaluated or given driving tests, although
Weissman said at a meeting in late April 2006 that work per-
formance and “driving skills” would be criteria for selecting
portable plant drivers.
When Pinatello left the portable plant in approximately July,
Davidson testified, he first offered the vacant position to some

42 GC Exh. 13 at 10.
43 Tr. 771–773.
44 Tr. 588.
of those who had already applied, in order of their performance,
with attendance and safety being the most heavily-weighted
factors. He then went on to ask newer employees.
Davidson did offer the position to Bales and Eversole, who
both turned it down because they did not want to be at the bot-
tom of both call-in lists (Kentucky Avenue and portable plant).
He did not offer it to Stevenson. He ultimately selected An-
drew Alexander. Since Respondent did not employ Alexander
at the time of the performance reviews, none exists for him.
Mooney and Kiefer, the two portable plant drivers who testi-
fied, both benefited financially from being assigned to the port-
able plant, even though they were assigned from the bottom of
the list from Kentucky Avenue. During the time they were
portable plant drivers, both also performed non-Stadium work
out of Kentucky Avenue. Mooney worked a total of 69 days at
the portable plant, and Kiefer during the period the portable
plant was in operation spent about 60 percent of his time at the
portable plant and the remainder on regular Kentucky Avenue
dispatches.
C. Alternate Portable Plant Driver Position
Shortly after Alexander became a portable plant driver,
Davidson, most likely in conjunction with Spurlino, apparently
made the decision to create the position of alternate or backup
portable plant drivers (alternate drivers) when regular portable
plant drivers were unavailable or an additional driver was
needed to deliver at the portable plant.45 Respondent had pur-
chased a total of six rear-discharge trucks, and about 10 percent
of the time, more than four trucks were needed at portable
plant. Nothing about this position was posted, nor was the
Union ever notified that it would be created, either during nego-
tiations or otherwise.
In about late July, Davidson approached certain employees
and asked them verbally if they were interested. He did not go
through the applicants who had turned down the portable plant
position that became available when Pinatello left (including
Bales and Eversole), because he assumed they would not have
changed their minds. However, he did not tell them that there
was a key difference in the treatment of the alternate driver’s
position on his home plant’s call-in-list vis-à-vis regular port-
able plant drivers. That is, Davidson considered the alternative
driver position to be a “temporary fill-in” position rather than a
“reassignment,” and he therefore determined that such drivers
would keep their normal call-in list order at their home plant
when they were not dispatched to the portable plant, rather than
go to the bottom. He did not offer the position to Stevenson.
Carlos Quesada, a driver hired April 24, 2006, was given the
position at Kentucky Avenue. One driver from each of the
other two facilities was also selected.
D. Statements Made During Negotiations
From February 12, 2006, to January 10, 2007, Respondent
and the Union had about 13 bargaining sessions. Weissman
was Respondent’s chief negotiator throughout. Green was the
Union’s chief negotiator at the first or so session, after which
attorney Gath assumed the role. Also on behalf of the Union,

45 Matney testified that he had no role in the creation of this position
and was “not sure” who did. Tr. 137–138.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1212
Jones was at all or most meetings, and employees Bales, Ever-
sole, and Stevenson (prior to his discharge) attended as mem-
bers of the Union’s negotiating team from the start of negotia-
tions. Matney and Gaskin also attended for management.
It is undisputed that the Union raised the issue of Stadium
work at the first meeting. Green stated that employees sent
there were entitled to a higher wage rate under the PLA, and
Weissman said she would check it out. This issue was later
resolved when Respondent paid those higher wage rates to unit
employees dispatched to the Stadium.
At the April 25 or 26, 2006 session, Gath raised the matter of
how employees were being dispatched to the Stadium. Weiss-
man responded that she understood they were being sent the
same way they were sent to any other customers. Gaskin con-
firmed this. Gath asked if Respondent was going to put up a
portable plant. Matney answered that it was likely and that
employees would be assigned there based on performance.
Gath responded that they should be assigned by seniority, as
per the AGC. Weismann replied that the terms of the AGC did
not apply until employees were actually on site. After a caucus,
Weissman told Gath that management’s representatives had
looked at both the AGC and PLA, and it was clear that they
applied when employees were at the Stadium site. However,
she said, the PLA clearly stated that if a conflict existed be-
tween it and individual contracts between unions and compa-
nies at the project, the PLA governed and, according to the
PLA, no seniority was to be considered on the project. She told
Gath that she would let him know as soon as Respondent knew
when the portable plant would open.
By letter to Gath dated May 1, Weissman stated that a port-
able plant would be set up at the Stadium in the “not too distant
future” and that Respondent would post a solicitation for driv-
ers who wished to work there.46
At the May 11 meeting, Gath asked if the Company believed
that the Union represented employees at the portable plant.
Weissman replied, “yes,” because Respondent had signed the
PLA, which recognized that drivers belonged to the bargaining
unit represented by the Teamsters. She further said that the
Union did not represent drivers at the portable plant with regard
to the contract proposals that were being discussed at negotia-
tions and that the Engineers represented batch men working at
the portable plant (as opposed to those working at Respondent’s
three facilities). Gath asked how Respondent was going to send
people to the portable plant. She replied that Respondent was
going to post a solicitation for employees to express an interest
in being assigned there but did not know when. Matney stated
that it might be in a couple of weeks, and Weissman said she
would send a copy to the Union. Gath stated that assignments
should be in order of seniority, to which she responded that
Respondent had no an obligation to even assign any drivers
from the bargaining unit to work there.
Respondent has refused to arbitrate a grievance the Union
filed under the PLA regarding how the Company assigned driv-
ers to work at the Stadium, on the ground that the PLA does not
apply to the hiring of such drivers.

46 GC Exh. 15.
By letter dated May 12 to Gath, Weissman forwarded a copy
of the notice put up that morning, soliciting volunteers “who
might wish to move from their existing plant to the batch
plant.”47
Gath responded by letter dated May 15,48 in which he posed
several questions, including: (1) identifying the criteria on
which Respondent planned to rely in deciding who would be
sent to the Stadium; (2) whether an employee assigned to the
portable plant would also be making pickups and/or deliveries
from other company locations; and (3) a description of how
Respondent intended to pay unit employees transferred to the
portable plant. He stated that the Union reserved the right to
bargain over the transfers and work assignments of unit em-
ployees to the Stadium, to the extent that such issues were not
covered by the PLA.
By letter dated May 22, Weissman replied,49 saying that Re-
spondent would make the decision based on “skills, qualifica-
tions and past performance. Where all other factors are equal,
seniority shall govern.” Further, drivers transferred to the port-
able plant would be paid the rate defined in the agreement cov-
ering the Stadium for all hours they worked at the portable
plant. Drivers dispatched from Kentucky Avenue to the Sta-
dium would continue to be paid such rates. Non-Stadium work
would be paid at the regular $17.50 an hour.
Other than the above, Respondent and the Union had no
other communications regarding how Respondent would staff
the portable plant or the treatment of drivers selected to work
there.
1. The Union’s information request
The PLA contained a dues-checkoff clause, and the Union
presented Respondent with dues-checkoff cards from employ-
ees who were performing work at the Stadium. At a bargaining
session in March or April 2006, Gath told Weissman that such
dues needed to be taken out of employees’ paychecks once a
month, for work they performed at the Stadium. The Union
received moneys for the first time at the end of July.
By letter to Weissman dated August 24,50 Gath expressed
concern that Respondent was not honoring the written dues
checkoffs and the PLA. He requested, by September 6,
monthly payroll records for the period of May 2006 to present,
reflecting an itemization of all deductions from bargaining unit
employees’ wages including, inter alia, union dues and when
they were remitted to the Union.
Weissman forwarded the request to Respondent’s adminis-
trative offices, since Respondent uses a contracted payroll ser-
vice. On September 5, she received the information, and the
following day left a voice mail for Gath, stating that as soon as
she had an opportunity to analyze the information she had col-
lected, she would send it. On September 8, the Union filed
ULP charges on the matter. On or about September 22, she
faxed to the Union documents showing, by employee, amounts
of union dues withheld and check numbers, along with a re-

47 GC Exh. 16.
48 GC Exh. 17.
49 GC Exh. 18.
50 Jt. Exh. 7.
SPURLINO MATERIALS, LLC 1213
cap.51 All the documents have the notation “Run Date:
9/05/2006” and a time.
The General Counsel does not contend that the response was
defective in content; only that it was untimely.
2. Stevenson’s suspension and termination
For bargaining unit employees, Respondent has no formal
written disciplinary procedure in place, no progressive disci-
pline system, and no specific policies for written warnings or
suspensions. Respondent has terminated three other drivers:
Berlin Everson for misappropriating concrete and giving it to
friends or relatives instead of to customers; Steve Miller, for
attendance problems; and Mark Sims, for making threats to
drive his truck through the Company’s building.
The sole basis for Stevenson’s suspension on August 26,
2006, and discharge on February 22, 2007, was his conduct on
August 25, 2006. He had no prior warnings.
On about August 25, 2006, Respondent distributed with
some employee paychecks, including Stevenson’s, a packet of
documents, with a cover letter from Matney, relating to how
Respondent was handling the deduction of union dues from
their paychecks under the PLA.52 Included were copies of au-
thorization cards employees had signed. Respondent errone-
ously neglected to remove the SSNs from them. When this was
brought to Respondent’s attention, it attempted to retrieve cop-
ies of such documents.
Stevenson admittedly became agitated when he saw the
SSNs, and he placed the envelope in his truck. Shortly before
he was to leave for another delivery, batch man Larry Davis
told him that he needed back the papers enclosed with the pay-
check. Stevenson replied that he had gotten rid of them in the
dumpster (they were actually in his truck). Davis told him not
to lie and to return the papers. Stevenson repeated that he did
not have them, and, “I ain’t [sic] giving nothing back.”53 He
proceeded to his next job.
When Stevenson returned at about noon, Davis informed him
by radio that Davidson wanted to see him in the management
office. Davis and Davidson were present when Stevenson ar-
rived, and Angie Johnson joined them.
In relating the subsequent conversation, Stevenson was not
always chronological, his statements about what was he said
about union representation varied in specifics, and his versions
on direct-examination and cross-examination were not entirely
consistent. Nevertheless, on major points, his testimony did not
differ significantly from Davidson’s account. Where there
were differences, I accept Davidson’s version, which substan-
tially mirrored the later written statements that Weissman had
Davidson, Davis, and Johnson prepare.54
I find the following. Davidson asked for the papers and said
that the Company really needed them back because they con-
tained SSNs. Stevenson replied that he had thrown them in a
customer’s dumpster because he was very upset. Davidson
stated that if the documents could not be located “[W]e may

51 Jt. Exh. 8.
52 See GC Exh. 22, identical to what was distributed, with the excep-
tion that social security numbers (SSN’s) have been redacted.
53 Tr. 630.
54 GC Exhs. 7–9.
have to take further action.”55 Stevenson then said he needed to
call his union representative, to find out if he had to give the
papers back.56 Davidson continued to question him about their
whereabouts. Stevenson finally took them from his pocket and
placed them on the table. At some point during the conversa-
tion, Davidson asked if Stevenson was lying to him.
The following day, Gaskin left Stevenson the phone message
that he was suspended while the matter was under investiga-
tion.
Respondent’s witnesses gave marked conflicting accounts of
the decision-making process relating to Stevenson’s suspen-
sion.
Spurlino testified that on August 25, he had a number of
conversations with management representatives concerning the
incident, although he could not recall with whom he had the
first. Throughout his testimony, he was quite vague about the
specifics of the conversations he had with other management on
the subject. He initially testified that he was not the sole deci-
sion-maker on Stevenson’s suspension and that it was collec-
tive decision between him, Matney, Davidson, and Gaskin.57
Later, however, he averred that those involved in the “consen-
sus” decision were him, Weissman, Matney, and Davidson.58
Still later, after once more testifying that the suspension was a
collective decision, went on to say, “It is correct as to the ter-
mination. I don’t recall the suspension.”59
Weissman testified that after Davidson reported to her on
August 25 that Stevenson had refused to return the documents,
she had “a lot” of conversations with Spurlino, Matney, and
Davidson about what should be done and that she recom-
mended he be suspended pending further investigation. I note
that Weissman, who generally testified quite smoothly and
without hesitation, equivocated to the point of evasiveness
when I asked her who made the decision to suspend Stevenson:
“I do not know with certainty. My—my best understanding is
that it was a decision between Mr. Matney and Mr. Spurlino.
Obviously, it was my recommendation, so I would say, the
three of us, I guess.”60
Matney and Davidson contradicted Spurlino’s and Weiss-
man’s account that the suspension resulted from a “joint” deci-
sion. Thus, Matney testified that he was not involved in the
decision to indefinitely suspend Stevenson and did not for cer-
tain who was. Davidson testified that his only role in Steven-
son’s suspension was conducting the interview with him, that
he furnished information on the interview but did not make a
recommendation, and that Spurlino made the final decision.
I credit Matney and Davidson and find that they did not play
any part in the decision to suspend Stevenson. I further credit
Davidson’s testimony, and find that Spurlino made the final
decision, believing that to be the most logical conclusion in
light of Spurlino’s ownership of the Company, regular contact
with Kentucky Avenue management, and active participation in

55 Davidson at Tr. 741.
56 Ibid; Stevenson at Tr. 658.
57 Tr. 178–179.
58 Tr. 188–189.
59 Tr. 205.
60 Tr. 954–955.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1214
discussions on August 25. For whatever reasons, Spurlino and
Weissman attempted to minimize his role, and their lack of
candor raises suspicions about the real reasons for the suspen-
sion.
Weissman called Stevenson on September 5 and said that she
wanted to interview him about the incident, with a union repre-
sentative present. He replied in the affirmative. Weissman and
Green subsequently arranged that she would have a telephonic
interview with Stevenson at Gath’s law offices on September
15, with Attorney Lohman in attendance.
Weissman’s notes of the interview are contained in Respon-
dent’s Exhibit 4. I have no reason to doubt their accuracy and,
crediting her testimony, find that they constitute a complete
record of what was said. She engaged in no further investiga-
tion. All of her subsequent communications with the Union on
the matter related to attempts to settle the grievance that the
Union filed over the suspension.
Stevenson was not terminated until February 22, 2007, over
5 months later. Weissman testified that this long hiatus be-
tween indefinite suspension and termination resulted from ef-
forts she made to settle the above grievance. After Gath in
early 2007 notified her that the Union was not interested in
Respondent’s (final) settlement offer, the decision was made to
terminate Stevenson. I note that Stevenson indirectly corrobo-
rated her by testifying that in about December 2006 or January
2007, Gath related to him a settlement offer from Respondent.
I credit Weissman’s testimony that grievance settlement efforts
were the reason for the delay. Conversely, I do not accept
Spurlino’s contrary explanation, that “[w]e had difficulty com-
pleting the investigation and Ms. Weissman was . . . making
attempts to complete that investigation and had extraordinary
difficulty in doing that.”61 This is yet another example of why I
have found him a generally unreliable witness.
Although Weissman testified that Spurlino made the decision
to terminate Stevenson “in consultation” with her and Matney,
she conceded that she did not directly recommend that Steven-
son be discharged. In fact, she also testified that other man-
agement informed her that Stevenson was going to be dis-
charged—inconsistent with her having participated in making
the decision. It is clear, contrary to Spurlino’s claim of joint or
consensus decisionmaking, that, as with the suspension, he had
the final word on the termination.
Weissman prepared Stevenson’s termination letter, dated
February 22, 2007, and signed by Matney.62 Consistent with
the Company’s normal practice, it listed no reasons. Weissman
testified that this is done for the benefit of discharged employ-
ees.
According to Spurlino, Stevenson was terminated for the fol-
lowing reasons: dishonesty, attempted theft of personal confi-
dential information, and intentionally misleading other employ-
ees and management. No nonbargaining unit employee has
been disciplined for these reasons.

61 Tr. 193.
62 GC Exh. 23.
3. Warehouse project slab pours
Past Practices
Davidson testified that Respondent prior to June 11, 2007,
used nonunit employees based in Indianapolis, drivers from the
Spurlino Ohio, and leased drivers, to perform unit work, when
needed.
In this regard, both the General Counsel and the Union spe-
cifically subpoenaed records from Respondent that would
document any use of leased trucks or truckdrivers since No-
vember 2005, when Respondent began its operations in Indi-
ana.63 Respondent did provide documentation showing the
leases in which it entered in June 2007. However, Respondent
provided nothing showing that it ever before entered into con-
tracts for the leasing of trucks and drivers. Nor did Respondent
make a motion to revoke any portion of either subpoena.
As the Board stated in Smithfield Packing Co., 344 NLRB 1,
8 (2004), “It is well established that a respondent that has re-
fused to produce subpoenaed materials that are the best evi-
dence of a fact may not introduce secondary evidence of mat-
ters provable by those materials,” citing Bannon Mills, Inc., 146
NLRB 611 (1964), and Avondale Industries, 329 NLRB 1064,
1244–1245 (1999).
Respondent’s counsel represented that Respondent contends
that no such documents are in existence. This averment cannot
be automatically accepted at face value without further evalua-
tion. To do so would be to allow a party to avoid subpoena
compliance by merely stating that it has no documents that are
responsive to the request and thereby defeat the whole purpose
of the subpoena process.
I find totally incredible that, in this day and age of extensive
recordkeeping requirements, particularly in the transportation
industry, that had Respondent engaged in leasing arrangements
with other companies prior to June 2007, nothing in its files
would contain any kind of documentation thereof. What makes
this more suspect is that Spurlino maintains operations in a
number of states and is not new to the business.
Distinguishable are situations in which the subpoenaed
documents are not in the nature of formal business records, and
the representation that they have been inadvertently lost or
destroyed may be plausible. See, e.g., BP Amoco Chemical-
Chocolate Bayou, 351 NLRB 614 (2007) (employer claimed
that it had shredded worksheets from various committee meet-
ings); CPS Chemical Co., 324 NLRB 1018, 1019 (1997) (union
claimed that it could not locate a list of employees who had
attended a union meeting); Champ Corp., 291 NLRB 803, 803–
804 (1988), enfd. 932 F.2d 688 (9th Cir. 1990) (union claimed
it could not locate bargaining notes taken during negotiations).
Respondent has either failed to maintain normal and custom-
ary business records, for whatever reason, or has chosen not to
provide them. Either way, I will not reward Respondent for
their nonproduction. I, thus, conclude that either Davidson’s
testimony was inaccurate, and no such subcontracting took
place, or his testimony constituted secondary evidence that
should be excluded because the documents that were subpoe-

63 See GC Exh. 29, attachment at par. 13; CP Exh. 1, attachment A at
par. 1.
SPURLINO MATERIALS, LLC 1215
naed would have been the best evidence of any such subcon-
tracting. Therefore, I do not find as a fact that Respondent
engaged in leasing trucks or drivers prior to June 2007.
Davidson also testified that Spurlino Ohio employees have
occasionally been sent to the Indiana facilities and made con-
crete deliveries when needed. This was mostly shortly after
Respondent took over the operation in late 2005, and they pri-
marily performed plant maintenance. In any event, Respondent
provided no documentation of such, and I would expect Re-
spondent to have maintained payroll or other internal records of
some kind showing that drivers from one State were assigned to
do work in another. Indeed, Weissman testified that she be-
lieved that Respondent was billed by Spurlino Ohio when the
latter’s employees were sent to perform work at the Indiana
facilities. I therefore draw an adverse inference against Re-
spondent for failing to provide any documentation and do not
find as a fact that Spurlino Ohio drivers previously were as-
signed to drive out of the Indiana facilities, at least at any time
following the Union’s certification in January 2006.
On the contrary, I credit Gath’s unrebutted testimony, and
find, that in one of his conversations with Weissman between
June 8 and 11, Gath asked whether Respondent had any prac-
tice of using leased drivers, and she replied, “[N]o.”64 As an
admission against interest, her statement comes under the ex-
ception to the hearsay rule. See Federal Rule 804(b)(3), 28
U.S.C. 804(b)(3).
Finally, Davidson testified without controversion that, prior
to June 2007, Respondent occasionally used mechanics and
maintenance employees at its Indiana facilities to deliver con-
crete when unit employees were not readily available. Regard-
less of the scope of the General Counsel’s and Union’s subpoe-
nas, this is not the type of situation where I would necessarily
expect Respondent to have had documentation. Accordingly, I
do not draw an adverse inference from Respondent’s not pro-
viding such, and I credit Davidson’s unrebutted testimony
thereon.
4. The Air West distribution warehouse project
In September 2006, Lithko Contracting (Lithko) solicited
from Respondent a bid to provide all of the ready-mix cement
for the approximately 725,000-square-foot Warehouse Project,
Plainfield, Indiana (the Warehouse Project), for Arco Construc-
tion. This bid entailed supplying concrete for the entire build-
ing, including footers, foundations, interior slabs, and exterior
paving, as well as surrounding site work. Of the approximately
16,000-cubic yards of concrete total, about 11,000-cubic yards
were for the interior slabs, to be installed continuously over a 3-
week or so period. Respondent’s contact person was Scott
Noel, then Respondent’s sales manager. He was not called as a
witness.
Respondent bid on the project on September 25, 2006, and
was verbally awarded the job on about October 9, 2006. At
that time, the anticipated start date was around the end of Octo-
ber. Primarily because of the condition of the soil on the site,
Lithko repeatedly postponed Respondent’s start date. The site
owner eventually decided that it would be better to wait until

64 Tr. 1166.
the spring and weather improved. In the concrete construction
industry, winter is a slow time of year, whereas the spring is
busier.
After September 25, Respondent and Lithko negotiated
modifications to their contract in late October 2006 and in mid-
January and early April 2007.65
In approximately February 2007, Respondent held a “job
fair” at an Indianapolis hotel, at which it took applications for
drivers and other positions. Green testified without controver-
sion, and I find, that he went to the job fair, filled out a driver
application, and was told, inter alia, by Matney that Respondent
was “going to be getting a lot of business and he was going to
hire drivers in town.”66
Respondent first did work at the site on April 5, 2007.67
These were small pours. However, it did not commence major
work until June 11, when it started making deliveries for the
interior slabs. Respondent’s alleged ULP’s at the Warehouse
project relate solely to the slab work it performed there, from
June 11–28.
Sometime in March, Davidson and Noel participated in a
meeting with representatives of Lithko and Arco, concerning
general plans.
On May 11, Ahlquist, along with other Lithko representa-
tives, attended a meeting with Davidson and Noel at Lithko’s
offices. I credit Ahlquist’s account of what was said there, as
follows. Lithko and Respondent discussed slab pour logistics,
including locations, production rates, and anticipated pour
dates. Lithko stated that it anticipated starting the slab pours
within 2 weeks but did not have a date certain. Lithko re-
quested 150-cubic yards per hour. Respondent replied that they
could do it. The parties agreed to a start time (time of delivery
to the Warehouse Project site) of 1 a.m., with 7 or 8 hours of
continuous truck delivery.68
Davidson testified that he and Noel attended a meeting in
approximately the third week of May, in a restaurant a few
blocks from Lithko’s offices. This was the final meeting prior
to June 11. According to Davidson, he told Lithko that unless
Lithko agreed to certain revisions that Respondent proposed in
the pour schedule, including weekend deliveries, Respondent
could not do the slab work. Further, according to Davidson,
Lithko wanted a start time of between 2 and 4 a.m., and Re-
spondent proposed starting earlier. Davidson also testified that
he and Noel left the meeting with the understanding that Lithko
would get back to them, to let them know if Lithko would agree
to make the changes that Respondent requested. I do not credit
this testimony to the extent that it was contrary to Ahlquist’s
testimony reflecting lack of disagreement between the parties at
the May 11 meeting.
On June 6, Lithko notified Respondent that the slab pouring
would begin on June 11.69

65 See GC Exh. 30.
66 Tr. 1201.
67 See GC Exh. 37, Lithko’s concrete log.
68 Such a start time is common. The general contractor may request
it to avoid interference with other trade traffic on the jobsite or because
it fits in with other scheduling needs.
69 See GC Exh. 35, pour schedule that Lithko provided to Respon-
dent dated, June 5, 2007.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1216
5. Soliciting unit employees to volunteer
I credit Davidson’s unrebutted testimony that prior to the
Warehouse Project, Respondent sometimes asked for volun-
teers for Saturday or early morning deliveries, including most
of the early morning pours at the Stadium Project (before, dur-
ing, and after the operation of the portable plant). It is only
logical to assume that some employees would either be un-
available or uninterested in working hours outside the normal
schedule.
Davidson testified that dispatchers spoke directly to the driv-
ers concerning volunteering for the Warehouse Project. How-
ever, since no dispatchers or drivers testified on the subject,
there were no first-hand witnesses. Nonetheless, it is undis-
puted that Respondent did engage in such conduct; indeed, the
substance of the General Counsel’s allegation of unilateral
change in dispatch procedures is that Respondent did not follow
the normal call-in system but rather asked drivers to volunteer
in advance for the work. In these circumstances, and in the
absence of objection from any counsel, I will accept secondary
evidence on the subject.
I credit Davidson’s unrebutted testimony that the dispatchers
asked unit drivers at all three facilities to volunteer, both for the
first day of the pour (June 11) and for the remainder of that
week. Some drivers said they were available to report at 11
p.m. on June 10 and for the rest of the days that week; others
were available only on some days; and still others did not wish
to be scheduled at all. General Counsel’s Exhibit 31, prepared
by the dispatch office, is a list of volunteers during the period
from June 18–July 7. Many of its notations are unclear, since
the preparer(s) did not testify, but the document does reflect
Respondent’s use of a volunteer system. Nothing documentary
was furnished for the week of June 11, but I will assume that a
similar record of driver responses was used at the time.
Drivers who volunteered were called in order of the call-in
sheet, with Kentucky Avenue first, Noblesville second, and
Linden third. After all of them were called, Respondent used
the subcontractors when needed.
6. Respondent’s use of nonunit employees
After Davidson and Matney were notified on June 6 that the
slab work was to start the following Monday, the former called
the dispatcher at Spurlino Ohio but was told they were to busy
and unable to assist. Respondent then made the decision to use
subcontracted trucks and drivers from McIntire and Buster’s
Cement Products (Buster’s). Davidson called them on June 7
and asked if they had trucks available on Monday. He men-
tioned the possibility that Respondent might need trucks on and
off for the next several weeks.
The following day, both companies notified Davidson that
they could provide trucks on Monday. Davidson made identi-
cal arrangements with them: they would be paid $100/hour for
their drivers to load Respondent’s cement and deliver it to the
Warehouse Project.
Davidson decided how many trucks would be needed from
the subs during the course of the slab deliveries. McIntire fur-
nished four trucks on June 10, two on June 12, and two on June
14; Buster’s furnished six on June 10, two on June 12, and two
on June 20.70 They were dispatched solely to the Warehouse
Project.
The night pours took about 6 or 7 hours. Leased drivers and
unit employees were reloaded to return to the Warehouse Pro-
ject in the normal order of first-back, first-out again, unless
Respondent had orders from other customers, to which only
unit employees were dispatched. Leased drivers were sent
home if no Warehouse Project work was available.
Davidson also intermittently utilized drivers from Spurlino
Ohio, as well as two or three nonunit employees at the Indiana
facilities, to make such deliveries. They were used in lieu of
leased drivers, again, after unit drivers who had volunteered
were first assigned.
7. Respondent’s contacts with the Union
The first notice the Union had of Respondent’s intention to
use subcontracted trucks was on June 7, when Jones returned
Weissman’s phone message from the previous day. The fol-
lowing facts are based on Weissman’s unrebutted testimony,
which I credit. She explained that Respondent was getting
ready to pour concrete at the Warehouse Project, starting on
Monday, June 11 at 12:01 a.m. She stated that this job was one
that had been bid on and awarded in October or November, but
the scheduled start date had been repeatedly postponed. Be-
cause of the time of year and number of (unit) drivers that Re-
spondent had, Respondent needed additional drivers but did not
have adequate time to hire any. Therefore, Respondent was
going to contract with someone (Buster’s) from whom it had
previously leased trucks and drivers.
Jones asked a number of questions, including whether all
unit drivers would work that day and whether the call-in proce-
dure would be changed. Weissman replied that the drivers
would have the option of going out on the job but would not be
required to work so early. She also stated that the work would
start at 12:01 a.m. and go until 6 or 7 a.m, and then Respon-
dent’s drivers would have to service regular customers, nor-
mally starting at between 5 and 7 a.m. Thus, the drivers who
volunteered for the slab pour would also work the day shift.
Moreover, the first drivers to stop working would be the leased
drivers.
Jones asked about drivers at Respondent’s plants other than
Kentucky Avenue. She replied that Respondent would post for
volunteers at all three facilities. He said that would be good.
He told her that the Union dealt with this type of situation all
the time, and he would think about it. She suggested that she
document Respondent’s proposals, incorporating some of his
suggestions, and he replied that would be helpful. She did so.71
During their conversation, Jones did not agree to anything.
Gath responded to Weissman by a letter dated and faxed
June 8.72 In sum, he stated that Jones had not agreed to the
proposed assignment of work to lease drivers or the scheduling
arrangements for unit employees, that the Union objected to the
use of nonbargaining unit employees, and that unit employees

70 See GC Exhs. 32–33, invoices. The drivers reported to Kentucky
Avenue prior to midnight, in order to make the delivery at the Ware-
house Project at 1 a.m. the following day.
71 GC Exh. 25, memorandum from Weissman to Jones dated June 7.
72 GC Exh. 26.
SPURLINO MATERIALS, LLC 1217
should be referred to the job in accordance with Respondent’s
normal dispatch procedures.
Weissman called Gath that afternoon. Their testimony about
the conversation was substantially similar. Gath again objected
to Respondent’s proposed use of leased drivers and system for
“referral” of drivers to the job, as unilateral changes in the
status quo. Weissman replied that Respondent did not believe
it had an obligation to bargain but was simply notifying the
Union and was willing to listen to their ideas. Further, Respon-
dent would proceed with its proposals on Monday, because
otherwise all of the unit drivers would not be able to work. She
suggested a meeting, and the conversation ended with the an
agreement to try to arrange a time and place for such, over the
weekend or on Monday morning, depending on when union
representatives could be present.
Over the weekend, Weissman and Gath had e-mail corre-
spondence concerning the logistics of the meeting.73 Through a
telephone call on June 10 at about 4 p.m., they ultimately
agreed that such a meeting would be held at Kentucky Avenue
on Monday, June 11 at 9 a.m. Gath told Weissman that he
would attend. Weissman at no time expressly stated that she
would be present, although certain statements she made by
phone and e-mail implied that she would personally attend.
Regardless, I do not draw any negative inferences against Re-
spondent by virtue of the fact that she did not. Gath made it
clear in his communications with her that the scheduled meet-
ing was only for the purpose of conferring, not bargaining per
se.
Gath testified without controversion, and I find, that in one
of his telephone conversations with Weissman, he asked if
Respondent was claiming some kind of “dire financial emer-
gency” for having to use leased drivers, and she replied,
“No.”74 See also paragraph 4 of Gath’s e-mail to Weissman of
June 9 at 2:34 p.m., in which he stated, “Spurlino has never
asserted that [sic] existence of such a financial emergency in
any telephone conversation or written communication with the
Union.” Respondent has provided no evidence that it ever
raised such a justification.
Davidson was the only management representative to meet
with Gath, Green, and Jones on June 11 at 9 a.m., after
McIntire and Buster’s drivers had already started delivering
Respondent’s cement to the Warehouse Project. Eversole later
joined the meeting. Davidson’s, Gath’s, and Green’s versions
of what was said were similar, and I find the following.
Consistent with what he had told Weissman, Gath made it
clear that the purpose of the meeting was “informational” and
that the Union was there only to hear Davidson out, not to en-
gage in any bargaining. No proposals were exchanged. David-
son set out Respondent’s contentions for why it needed to use
leased drivers and stated that without them, Respondent would
have been unable to do the job. Gath voiced objections to the

73 See GC Exh. 27. In one of the e-mails, Gath made a request for
certain information regarding the slab pour job, which Weissman an-
swered in e-mail form (GC Exh. 28). The General Counsel has not
alleged that the Company’s response violated the Act, and I need not go
into further details thereon.
74 Tr. 1180.
way the Union had been notified of the subcontracting and
contended it violated the law. Davidson was asked about Re-
spondent’s plans for slab deliveries and how dispatching was to
be handled. Green asked how the work was being assigned to
unit employees, to which Davidson replied there was a volun-
teers’ list. Davidson could not recall whether Gath asked for a
copy of the list, and I credit Gath’s and Green’s testimony that
he did so but was not provided it. The meeting ended with
Green telling Davidson he would get back to him about
whether the Union would agree to the changes. Green later
called Davidson and said no.
Analysis and Conclusions
A. Alleged Violations of Section 8(a)(5)
1. Unilateral changes
An employer violates Section 8(a)(5) and (1) of the Act
when it unilaterally makes substantial changes on subjects of
mandatory bargaining; to wit, employees’ wages, hours, or
other terms and conditions of employment, without first afford-
ing notice and a meaningful opportunity to bargain to the union
representing the employees. NLRB v. Katz, 369 U.S. 736
(1962); United Cerebral Palsy of New York City, 347 NLRB
603, 608 (2006).
2. The stadium project
Creation of Portable Plant Driver and Alternate
Driver Positions
Prior to the Stadium Project, Respondent did not have the
positions of portable plant driver or alternate driver. It is un-
disputed that Respondent never gave the Union notice the latter
position would be created or the opportunity to bargain over
either of them.
Respondent’s defense is that the portable plant drivers were
governed exclusively by the terms of the PLA, which gave
Respondent the unfettered discretion to hire whomever it chose
to be such drivers, to decide how they should be selected, and
to treat them however it saw fit. Respondent, however, has
refused to arbitrate a grievance the Union filed under the PLA
regarding the way it assigned drivers to the Stadium, thus, fore-
closing a neutral third party from analyzing the validity of its
interpretation of the PLA.
In any event, Respondent’s argument ignores the critical fact
that unit employees who performed work at the portable plant
never lost their status as unit employees and were never as-
signed exclusively to work at the Stadium. Indeed, there were
days that the portable plant was not in operation, and the port-
able plant drivers were assigned to other jobs from the regular
call-in list at Kentucky Avenue, albeit they were at the bottom
of the list instead of in their normal order. On other days, non-
portable plant drivers were dispatched to the batch plant to fill
in for regular portable plant drivers or because of the volume of
work. The alternate drivers were dispatched to the batch plant
only as needed and lost even less of their status as unit employ-
ees working at one of three regular plants.
I note also that the portable plant and alternate drivers re-
mained under the same dispatchers and supervisors, and that
their performance at the Stadium clearly had the potential to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1218
impact on their overall employment. Further, the Stadium port-
able plant was never contemplated as being permanent, and it
was always management’s expectation that the four portable
plant drivers and three alternate drivers would return to their
regular assignments. Finally, that unit employees were as-
signed to the Stadium on a regular basis also had an impact on
the remaining unit employees.
The portable plant assignments clearly were new positions
rather than merely transfers to another facility since they en-
tailed different rates of pay and different benefits. Even accept-
ing Respondent’s characterization of the portable plant driver
as a “transfer,” rather than a new position, Respondent still had
the obligation to notify the Union and afford it the opportunity
to bargain, because the transfer of a unit employee is a manda-
tory subject of bargaining. United Cerebral Palsy of New York
City, above (elimination of seniority as a consideration when
selecting employees for involuntary transfers); Industrial
Lechera de Puerto Rico (Indulac, Inc.), 344 NLRB 1075 (2005)
(transfer from one shift to another).
Based on the above, I conclude that the creations of the posi-
tions of portable plant and alternate drivers, which overlapped
the drivers’ functions at their home plants, did impact on the
drivers’ wages, hours, or other terms and conditions of em-
ployment as unit employees and ergo constituted mandatory
subjects of bargaining.
Therefore, I conclude that Respondent violated Section
8(a)(5) and (1) by creating the positions of portable plant driver
and alternate driver without affording the Union notice of the
latter or an opportunity to bargain over either.
3. Implementation of a new evaluation system
It is undisputed that Respondent did not utilize any kind of
formal evaluation system or testing procedure prior to the Sta-
dium Project.
Since management’s use of these rating devices obviously
had the potential for affecting unit employees at their perma-
nent home plants and apart from the matter of temporary as-
signment to the Stadium, I conclude that they were mandatory
subjects of bargaining.75 I note that the ratings were retained in
the Company’s records after the portable plant was shut down.
Respondent thus had an obligation to provide the Union notice
and an opportunity to bargain before it implemented a new
evaluation system, which included driving tests. See Bridon
Cordage, Inc., 329 NLRB 258 (1999); Safeway Stores, 270
NLRB 193 (1984).
Weissman’s statement at negotiations that “driving criteria”
would be used in selection did not amount to notice that driving
tests would be given, and her stating that selection would be
based on performance did not equate to notice that formal
evaluations would be prepared on applicants.
Thus, I conclude that Respondent violated Section 8(a)(5)
and (1) by implementing a new evaluation system, including

75 Inasmuch as the evaluations and tests were imposed on existing
employees who had applied for new positions, rather than applicants
for hire, Respondent cannot rely on cases holding that administering
drug and alcohol tests for applicants is not a mandatory subject of bar-
gaining. See, e.g., Finch, Pruyr & Co., 349 NLRB 270 (2007); Star
Tribune, 295 NLRB 543 (1989).
implementation of a driving test, without affording the Union
notice and an opportunity to bargain.
4. Bypassing the Union
The General Counsel further alleges that Davidson bypassed
the Union and engaged in direct dealing with employees when
he offered drivers alternative portable plant driver positions in
July 2007.
The obligation to bargain collectively requires than an em-
ployer deal exclusively with the collective-bargaining represen-
tative and not directly with the employees it represents. Medo
Photo Supply Co. v. NLRB, 321 U.S 678, 683 (1944); Georgia
Power Co., 342 NRB 192, 192 (2004).
Here, Davidson did not solicit drivers’ input on the terms and
conditions of employment of alternative portable plant drivers,
or otherwise engage in any kind of “bargaining” with them.
Instead, he conveyed to them as a fait accompli a predeter-
mined company decision that there would be such a position
and what it would entail. This did not amount to unlawful “by-
passing” of the Union and direct dealing with employees. See
Friendly Ford, 343 NLRB 1058 (2004); Huttig Sash & Door,
154 NLRB 811, 817 (1965); contrast, United Cerebral Palsy of
New York City, supra, in which the employer required repre-
sented employees to affirmatively agree to future unilateral
changes. I therefore recommend that this allegation be dis-
missed.
B. The Warehouse Project
1. Subcontracting work
Subcontracting of bargaining unit work that does not consti-
tute a change in the scope, nature, or direction of the enterprise
but only substitution of one group of workers for another to
perform the same work is clearly a mandatory subject of bar-
gaining. Hospital Espanol Auixilio Mutuo de Puerto Rico, 342
NLRB 458, 459 (2004); Overnite Transportation Co., 330
NLRB 1275, 1276 (2000); Torrington Industries, 307 NLRB
809 (1997). Unless an employer can demonstrate “compelling
economic reasons,” it violates Section 8(a)(5) by subcontract-
ing unit work that constitutes a mandatory subject of bargain-
ing. Hospital Espanol, supra at 458.
Since Respondent did not establish the existence of any kind
of past practice of using subcontractors or Spurlino Ohio em-
ployees to perform unit work, I conclude that its doing so for
the Warehouse Project slab pours constituted a change in its
operations.
Respondent has never contended the existence of financial
emergency or shown that the use of subcontractors or Spurlino
Ohio employees was based on compelling economic reasons.
In any event, Respondent would be hard pressed to make such
an argument when it knew for months (as far back as October
2006) that it would at some point perform major concrete slab
work at the Warehouse Project yet waited until only a few days
before the work started to even notify the Union.
It is undisputed that Respondent never offered to bargain
over the use of subcontractors; rather, Weissman and Davidson
merely answered questions about the subcontracting and how
unit employees would be dispatched vis-à-vis leased drivers.
The June 11 meeting between Davidson and union representa-
SPURLINO MATERIALS, LLC 1219
tives was seen as “informational” in nature by both parties and,
in any event, took place after the subcontracting had already
started.
Respondent has emphasized that the subcontracted drivers
only supplemented unit employees, that all unit employees who
volunteered for the slab pour work received it with priority over
nonunit drivers, and that no unit employees suffered lost work
as a result.
Respondent’s arguments ignore the fact that both existing
and potential unit employees might have been adversely af-
fected by the subcontracting of unit work. First, unit employ-
ees might otherwise have been given overtime pay to perform
the work that was subcontracted. Second, in the absence of
subcontracting, Respondent might have hired additional unit
employees, resulting in jobs for them and benefits for the Union
and current unit employees in having an expanded unit. A
Board majority in Overnite Transportation Co., supra at 1776,
clearly recognized the possible harm of subcontracting even
when no unit employees have lost regular work:
At issue here is the decision to deal with an increase in what
was indisputably bargaining unit work by contracting work to
outside subcontractors rather than assigning it to unit employ-
ees. We think it plain that the bargaining unit is adversely af-
fected whenever bargaining unit work is given away to non-
unit employees, regardless of whether the work would other-
wise have been performed by employees already in the unit or
by new employees who would have been hired into the unit.
In any event, it is not clear in this case that respondent’s unit
employees did not, themselves, lose work opportunities.
The Board went on to discuss Acme Die Casting, 315 NLRB
202, 207 (1994), Therein, the Board rejected an employer’s
argument that no violation should be found because unit em-
ployees had not lost any hours, instead concluding that such
employees might have lost the opportunity to be paid overtime
for performing the additional work.
Therefore, I conclude that Respondent violated Section
8(a)(5) and (1) by failing to afford the Union notice and an
opportunity to bargain over the use of subcontractors and
Spurlino Ohio employees for the Warehouse Project slab pours,
bargaining unit work.
2. Requesting volunteers
Respondent, prior to June 2007, did ask drivers to volunteer
for Saturday and early morning work; accordingly, its seeking
of volunteers for the Warehouse Project slab pours that were to
be delivered at 1 a.m. each morning was not a departure from
past practice. It follows that such conduct did not constitute a
change in working conditions that triggered an obligation to
provide the Union with notice and an opportunity to bargain.
As an aside, I cannot see how Respondent’s checking with
drivers to see if they wanted to work early morning hours—
which some might have found onerous and undesirable—
amounted to any kind of failure to honor the usual call-in list
procedures that were in place. Drivers who volunteered were
sent out in the normal call-in list order to the Warehouse Pro-
ject, and those who did not volunteer were sent out on other
jobs as per regular dispatch order. Additionally, drivers are not
required to be available for dispatch at all times but have the
option to remove themselves from consideration for reasons
such as taking sick leave or vacation. Determining ahead of
time which drivers wanted the assignments was both reasonable
and efficient from the standpoint of good business and common
sense.
Accordingly, I recommend that this allegation be dismissed.
3. Response to information request
An employer must supply information requested by a collec-
tive-bargaining representative that is relevant and necessary to
the latter’s performance of its responsibilities to the employees
it represents. NLRB v. Acme Industrial Co., 385 U.S. 432
(1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
The law is well settled that an employer’s remittance of un-
ion dues deducted from employee paychecks is a mandatory
subject of bargaining. See, e.g., Do Group Systems, Inc., 347
NLRB No. 44 (2007) (not reported in Board volumes); Victor
Specialty Packaging, Inc., 331 NLRB 935 (2000); Metro En-
terprises, 331 NLRB No. 112 (2000) (not reported in bound
volume). I conclude, therefore, that the information requested
by the Union pertaining to such was presumptively relevant.
Respondent has never claimed otherwise. Indeed, after receiv-
ing the request, Weissman responded that she would supply it
to the Union as soon as she had the opportunity to review and
compile the relevant records.
The General Counsel alleges that Respondent did not furnish
the information in a timely fashion and therefore violated Sec-
tion 8(a)(5) and (1). See Beverly California Corp., 326 NLRB
153, 157 (1991). Interstate Food Processing, 283 NLRB 303,
306 (1987).
The fact that Respondent furnished the information in
slightly under a month does not rule out a conclusion that its
conduct was untimely, since a union is entitled to relevant in-
formation at the time of its request. Woodland Clinic, 331
NLRB 735, 737 (2000) (7-week delay unlawful); Pennco, Inc.,
212 NLRB 677, 679 (1974) (6-week delay a violation). The
standard is not the length of time alone. Rather, in evaluating
whether a response was untimely, the Board looks at the totality
of circumstances, including the complexity and extent of the
information sought, its availability, and the difficulty in retriev-
ing it. West Penn Power Co., 339 NLRB 585, 587 (2003);
Samaritan Medical Center, 319 NLRB 392, 398 (1995). The
ultimate determination is whether the employer made a good-
faith effort to respond to the request “as promptly as circum-
stances allow.” West Penn Power, id.; Good Life Beverage
Co., 312 NLRB 1060, 1062 fn. 9 (1993).
I conclude that Respondent here did not satisfy this obliga-
tion. The documents provided to the Union on September 22,
2006, nearly 1 month after the Union’s request of August 24,
were on their face generated on September 5 and simply
showed union dues that Respondent had withheld per unit em-
ployee. Even assuming Respondent required almost 2 weeks to
compile the data, I fail to see why Weissman would have
needed another 2-1/2 weeks for “review” before transmitting
the information. I deem noteworthy the fact that Respondent
did not furnish the information until after the Union had filed
ULP charges on the matter. See Pennco, Inc., supra at 678, in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1220
which the Board mentioned this as a consideration in finding
information was untimely furnished. I also note that during the
period in question, the parties were still in the process of nego-
tiating an initial collective-bargaining agreement.
Accordingly, I conclude that Respondent violated Section
8(a)(5) and (1) by not timely furnishing the Union with infor-
mation that was relevant and necessary to the Union’s perform-
ance of its collective-bargaining duties.
4. Discrimination against Bales, Eversole, and Stevenson
The framework for analyzing alleged violations of Section
8(a)(3) is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel must make a prima facie
showing sufficient to support an inference that the employee’s
protected conduct motivated an employer’s adverse action. The
General Counsel must show, either by direct or circumstantial
evidence, that the employee engaged in protected conduct, the
employer knew or suspected the employee engaged in such
conduct, the employer harbored animus, and the employer took
action because of this animus.
Under Wright Line, if the General Counsel establishes a
prima facie case of discriminatory conduct, it meets its initial
burden to persuade, by a preponderance of the evidence, that
protected activity was a motivating factor in the employer’s
action. The burden of persuasion then shifts to the employer to
show that it would have taken the same adverse action even in
absence of such activity. NLRB v. Transportation Corp., 462
U.S. 393, 399−403 (1983) Kamtech, Inc. v. NLRB, 314 F.3d
800, 811 (6th Cir. 2002); Serrano Painting, 332 NLRB 1363,
1366 (2000); Best Plumbing Supply, 310 NLRB 143 (1993).
To meet this burden, “an employer cannot simply present a
legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Serrano
Painting, supra at 1366, citing Roure Bertrand Dupont, Inc.,
271 NLRB 443 (1984).
At the time the first alleged discrimination occurred (in Feb-
ruary 2006), Respondent had knowledge that Bales, Eversole,
and Stevenson had engaged in union activity, because they
were the Union’s observers at the election on January 13 and
present on the Union’s behalf at the first negotiations session
on about February 12. The first two elements of Wright Line
are therefore established.
Animus is demonstrated by Matney’s numerous statements
to various employees between the time the petition was filed
and the time of the election, and what he stated to Cox and
Stevenson after the election.
I now turn to the element of action. First is the allegation
that Respondent loaded around Bales, Eversole, and Stevenson
in Stadium assignments, in the months prior to the operation of
the portable batch plant. General Counsel’s Exhibit 19 reflects
that for the period from February 16–March 24, 2006, Mooney,
Kiefer, and Cox were given the most assignments to the Sta-
dium. Bales, one of the alleged discriminatees was number
four in assignments. General Counsel’s Exhibit 4 shows that
from May 1 through June 9, Mooney worked the most hours at
the Stadium, followed by Eversole, Kiefer, Bales, and Steven-
son. On the call-in list, Eversole was first, with Stevenson and
Bales fourth and fifth, respectively (and ahead of Kiefer).
Respondent did not select Bales, Eversole, and Stevenson to
be portable batch plant drivers or alternate drivers. Similarly,
Respondent indefinitely suspended Stevenson on August 26,
2006, and terminated him on about February 22, 2007.
Accordingly, I conclude that the General Counsel has estab-
lished a prima facie case of unlawful discrimination with regard
to bypassing Bales, Eversole, and Stevenson for assignments to
the Stadium prior to the portable batch plant, not selecting them
for portable batch plant, and also in suspending and terminating
Stevenson.
5. Bypassing Bales, Eversole, and Stevenson
Respondent gave priority in Stadium dispatches to Mooney,
Kiefer, and Cox because they were driving new trucks and
Respondent wanted to make a good impression at a high-profile
job. Both Bales and Eversole testified that only Mooney, Cox,
and Kiefer were initially dispatched to the Stadium around
them. I note Eversole’s testimony that after the initial period of
Stadium dispatches, Bales was the fourth driver to be loaded
around him. Since Bales was also a known union adherent and
is also an alleged discriminatee, any such bypassing of Eversole
in Bales’ favor cannot be attributed to union animus. The
documents of record do not establish a clear pattern of using
drivers other than Mooney, Kiefer, and Cox ahead of the al-
leged discriminatees.
I therefore conclude that Respondent has rebutted the pre-
sumption that Bales, Eversole, and Stevenson were bypassed
for assignments to the Stadium in the period before the portable
plant began operations because of their union activities, and
recommend dismissal of this allegation.
6. Nonselection of Bales, Eversole, and Stevenson
for portable plant/alternate driver positions
Respondent’s problem in rebutting the General Counsel’s
prima facie case is that Davidson’s testimony about why they
were not selected was laced with inconsistencies, contradicted
by driver testimony, and unsupported by any underlying docu-
ments or even specifics. Thus, Davidson did not offer a well-
based, logical explanation of why Eversole (number one on the
call-in list), Stevenson (number four), and Bales (number five)
were bypassed in favor of new drivers Pinatello and Thomer-
son. Indeed, he did not present a cohesive account of how he
rated any drivers or the system he used to grade them. I will
not reiterate here all of the numerous defects in his testimony
but will only highlight the most glaring.
First, Davidson recited no specific reasons for not selecting
Eversole and furnished no details or supporting documentation
to back up his testimony that Stevenson had a “horrible” record
keeping up his truck and attendance problems and that Bales
had had accidents that allegedly impacted on how he was rated
on safety. Interestingly enough, at one point, Davidson at one
point did concede that he considered Eversole and Bales “quali-
fied” but not as the “best qualified.”
Second, he never offered an explanation of how he deter-
mined that new drivers Pinatello and Thomerson were the “best
qualified” and had the experience he claimed was important.
SPURLINO MATERIALS, LLC 1221
Third, he gave conflicting accounts of how he graded appli-
cants and what criteria were the most important.
Fourth, his testimony that the results of the driving test
played a role in the selection of the four successful applicants
was contradicted by two of them. Mooney refused to take the
test, and Kiefer, by his own testimony, did poorly. Moreover,
Bales and Eversole were not even offered the test, and Steven-
son performed well.
Finally, Davidson testified that the only documents he could
recall reviewing were job applications and attendance records
(none of which were offered as evidence). He did not interview
the applicants themselves, claimed he spoke “casually” to the
applicants who were selected yet could not recall any by name,
and could not recall if he talked to any dispatchers.
That Davidson’s whole system of ratings may have been
subjective and unquantifiable cannot serve to obviate the con-
clusion that Respondent has failed to rebut the General Coun-
sel’s prima facie case that Bales, Eversole, and Stevenson were
discriminated against in selection.
Accordingly, I conclude that Respondent violated Section
8(a)(3) and (1) by not selecting Bales, Eversole, and Stevenson
for the position of portable batch plant driver. When Davidson
later offered Bales and Eversole the position, and they declined,
Respondent’s liability to them ceased.
I now turn to the alternate portable batch plant driver posi-
tion that Davidson did not offer to any of the three alleged dis-
criminatees. His reason for not offering it to Bales and Ever-
sole, was that they had declined the portable plant driver posi-
tion, and he assumed they would be uninterested in the alternate
position. This ignores a critical fact. Both Bales and Eversole
had turned down the portable batch plant driver position be-
cause they would have been placed at the bottom of the senior-
ity list at both Kentucky Avenue and the batch plant. However,
Davidson made the decision that the alternate drivers would
keep their call-in list positions at their home plants, thus elimi-
nating a primary reason that Bales and Eversole had declined
the portable plant driver position. This important difference
was not communicated to either of them at the time that David-
son created the alternate driver position and offered it to other
employees. As to Stevenson, since Davidson failed to demon-
strate valid grounds for not offering him the portable plant posi-
tion, it follows that Respondent has also failed to establish such
for not offering him the alternate position.
Therefore, I conclude that Respondent violated Section
8(a)(3) and (1) by not offering Bales, Eversole, and Stevenson
the alternate portable plant driver position.
7. Stevenson’s suspension and discharge
Stevenson’s suspension and discharge resulted solely from
the incidents occurring on August 25, 2006.
Stevenson’s conduct on that date was no doubt unwise and
constituted a ground for some kind of disciplinary action: he
admittedly lied about having the documents with the SSNs in
his possession. The real issue is whether, but for Stevenson’s
union activities, Respondent have indefinitely suspended him
on August 26, 2006, and ultimately terminated him on February
22, 2007.
Respondent has no formal progressive disciplinary system,
and there is no evidence that it has ever issued oral or written
warnings to bargaining-unit employees, or that any bargaining-
unit employees besides Stevenson have been suspended. Re-
spondent has discharged three others—for attendance, blatant
theft of concrete, and threats to drive a truck into the building.
Here, Stevenson first told the batch man that he did not have
the documents. He repeated this initially to Davidson but got
caught in inconsistencies and then handed them over. Respon-
dent thus received the documents in question the same day that
Stevenson was asked to surrender them in exchange for re-
dacted versions. In contrast to the detrimental impact that at-
tendance problems, theft, and driving a truck into the building
could create for Respondent, I fail to see how Respondent was
prejudiced in any way by Stevenson’s conduct. Moreover,
although Stevenson behaved imprudently, perhaps childishly,
as a result of being upset over the inclusion of the SSNs, his
concern was certainly understandable. Indeed, Respondent
determined that it had committed a serious error in breaching
drivers’ privacy rights when it failed to redact the SSNs.
In these circumstances, I must conclude that the discipline
imposed on Stevenson was out of proportion to the gravity of
the offense, which was relatively minor—one act of lapse of
judgment that resulted in no harm to Respondent. The insub-
stantial nature of the misconduct is appropriately considered in
determining whether the discipline was legitimate or pretextual.
Detroit Paneling Systems, 330 NLRB 1170 (2000); Neptune
Water Meter Co. v. NLRB, 551 F.2d 568, 570 (4th Cir. 1977).
In concluding that Respondent would not have taken the
same action against Stevenson but for his union activity, I also
take into account Spurlino’s (and Weissman’s) evasiveness in
answering the simple question of who decided to suspend and
then terminate him. I again note Spurlino’s shifting testimony
on this point and that he was contradicted by both Matney and
Davidson. This further leads me to believe that the discipline
was pretextual and not bona fide.76
Accordingly, I conclude that Respondent violated Section
8(a)(3) and (1) by indefinitely suspending and later terminating
Stevenson.
8. Stevenson’s August 25, 2006 interview with Davidson
An employer violates Section 8(a)(1) when it denies an em-
ployee’s request to have a union representative present at an
investigatory interview that the employee reasonably believes
might result in disciplinary action. NLRB v. J. Weingarten, 420
U.S. 251 (1971). What is a “reasonable” ground for such belief
is measured by objective standards under all of the circum-
stances present. Quality Mfg. Co., 195 NLRB 197, 198 fn. 3
(1972); see also Consolidated Edison Co. of New York, 323
NLRB 910, 910 (1997). Once such a request is made, the em-
ployer must grant the request, discontinue the interview, or
offer the employee the option of continuing the interview with-
out the representative of discontinuing it. Montgomery Ward &

76 On the other hand, Weissman offered a reasonable explanation for
the delay between the time of her telephone interview with Stevenson
and his actual termination—settlement efforts that proved unsuccessful
by early 2007. I therefore do not draw any negative inferences against
Respondent on the basis of the delay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1222
Co., 254 NLRB 826, 831 (1981), enfd. in relevant part 664 F.2d
1095 (8th Cir. 1981).
Stevenson’s interview was clearly investigatory—Davidson
questioned him about what he done with the documents con-
taining the SSNs. Since Davidson expressly threatened him
with “further action” if the documents were not produced, there
is no question but that Stevenson had an objectively reasonable
belief that disciplinary action might result.
The only remaining issue is whether Stevenson made a re-
quest under Weingarten to have a union representative “pre-
sent” at the interview, since he stated that he wanted to contact
his representative to see if he should give the documents back.
I conclude in the affirmative. The employee should not bear the
burden of articulating a Weingarten request with legal preci-
sion, and Stevenson’s words were reasonably construed as a
request to have a representative present to assist him. This
comports with Board decisions holding that an employee need
not recite the exact language that he or she wants a union repre-
sentative present to trigger the employee’s Weingarten rights;
rather, the employee’s request may be more general, so long as
it places the employer on notice of the desire for such represen-
tation. See Bodolay Packaging Equipment, 263 NLRB 320,
325–326 (1982) (employee asked whether he needed “a wit-
ness”); Southwest Bell Telephone Co., 227 NLRB 1223, 1223,
1227 (1977) (employee stated he wanted “someone” present).
In any event, Davidson did not give Stevenson an opportunity
to even call and consult with the Union but instead proceeded
with the interview.
Therefore, I conclude that Respondent, through Davidson,
violated Section 8(a)(1) by violating Stevenson’s Weingarten
rights.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(5) and
(1) of the Act:
(a) Created the position of portable dispatch plant driver
without first affording the Union an opportunity to bargain, and
created the position of alternate dispatch plant driver without
first affording the Union notice and an opportunity to bargain.
(b) Implemented a formal evaluation system, including a
driving test, to select employees for the position of dispatch
plant driver, without first affording the Union notice and an
opportunity to bargain.
(c) Subcontracted unit work and used employees from a re-
lated company to perform unit work, without first affording the
Union notice and an opportunity to bargain.
(d) Failed to timely furnish the Union information that was
relevant and necessary to the Union’s role as exclusive bargain-
ing representative of unit employees.
4. By the following conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(3) and
(1) of the Act:
(a) Failed to select Matthew Bales, Ron Eversole, and Gary
Stevenson for the position of portable batch plant driver.
(b) Failed to select these employees for the position of alter-
nate batch plant driver.
(c) Indefinitely suspended and then terminated Gary Steven-
son.
5. By the following conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated (1) of the Act:
(a) Denied Gary Stevenson’s request to have a union repre-
sentative present and continued to question him at a meeting in
which he had a reasonable fear that discipline could result.
REMEDY
Because I have found that Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The General Counsel seeks rescission of Respondent’s uni-
lateral changes as part of the remedy. However, the portable
batch plant at the Stadium has ceased operations, and the slab
pours for the Warehouse Project have been completed, with no
indication that either work will at any point be resumed in the
future. Respondent maintained no records of the driving “tests”
it implemented. Accordingly, rescission would serve no pur-
pose with respect to these violations.
In contrast, Respondent has retained the employee “evalua-
tions.” Even though nothing in the record indicates that they
have ever been used for any reason other than selection for the
portable plant, they could potentially adversely affect unit em-
ployees in the future. In these circumstances, I will order that
they be rescinded.
Since Respondent unilaterally implemented a new evaluation
system, including a driving test, for selecting employees as
portable batch plant drivers, and it then unilaterally created the
position of alternate batch plant driver, Respondent shall be
ordered to make any employees, including Matthew Bales, Ron
Eversole, and Gary Stevenson, whole for any loss of pay they
may have suffered as a result of Respondent’s failure to comply
with the preexisting procedure that governed how drivers were
dispatched. This shall be done in the manner prescribed in
Ogle Protective Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), plus interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Since Respondent failed to select employees Matthew Bales,
Ron Eversole, and Gary Stevenson for the positions of portable
batch plant driver and alternate driver, in violation of Section
8(a)(3), it must make them whole on this basis as well, in the
manner described above. Since these positions no longer exist,
reinstatement is not applicable.
Since Respondent suspended and then terminated Gary Ste-
venson, in violation of Section 8(a)(3), it must offer him rein-
statement and make him whole for any loss of earnings and
other benefits, in accordance with F. W. Woolworth Co., above,
with interest computed as provided in New Horizons for the
Retarded, above.
SPURLINO MATERIALS, LLC 1223
In the absence of any evidence that Respondent had a prac-
tice of having unit employees perform overtime work, I do not
deem a make-whole remedy appropriate for Respondent’s fail-
ure to provide the Union with notice and an opportunity to bar-
gain over the use of subcontractors and Sprurlino Ohio employ-
ees for Warehouse Project slab pours. Contrast, Clear Channel
Outdoor, Inc., 344 NLRB No. 66 (2006) (not reported in bound
volumes).
The General Counsel seeks a special remedy under Mar-Jac
Poultry Co., 136 NLRB 785 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 329 U.S. 817 (1964), more specifically
that Respondent be ordered to bargain in good with the Union,
on request, for an 8-month period. Under the Mar-Jac doctrine,
the Board may extend the 1-year certification period to com-
pensate for the failure of an employer to bargain in good faith
during that year. The union’s majority status cannot be ques-
tioned during the period of extension. In essence, the employer
is not permitted to benefit from its own unlawful conduct.
The record must support the need for an extension and its
appropriate length. American Medical Response, 346 NLRB
1004, 1005 (2006). In determining such, the Board considers
the nature of the violations; the number, extent, and dates of the
collective-bargaining sessions; the impact of the ULP’s on the
bargaining process; and the conduct of the Union during nego-
tiations. Ibid; Northwest Graphics, Inc., 342 NLRB 1288, 1289
(2004).
I conclude that an 8-month Mar-Jac extension is indeed ap-
propriate in all the circumstances present. Most significantly
(1) Respondent committed a number of violations of Section
8(a)(5) and (3) that extended from May 2006, 4 months after
the Union was certified, until June 2007, over 1 year later;
(2) the entire bargaining unit was affected by Respondent’s
unilateral changes in May 2006 and again in June 2007; (3) the
unilateral changes in June 2007 occurred after the hearing on
the original charges contained in the amended consolidated
complaint. Such conduct must be considered to reflect
Spurlino’s disregard for his obligations under the law to bargain
with the Union, and it would have had the natural effect of
diminishing unit employees’ faith that the Union could protect
their interests.
I also note Matney’s statements to three employees (Bales,
Eversole, and Mooney) prior to the election that Spurlino had
gone through union organizing before and deliberately pro-
longed bargaining in an effort to get the union to give up trying
to negotiate a contract. This suggests that Respondent went
through the motions of engaging in good-faith negotiations
with the Union but had no intention of reaching an agreement.
[Recommended Order omitted from publication.]