Virginia Concrete Co.

National Labor Relations Board - Board Decisions

Feb 8, 1995

316 N.L.R.B. 261 (N.L.R.B. 1995)

261
316 NLRB No. 55
VIRGINIA CONCRETE CO.
1 Citing Manhattan Eye Ear & Throat Hospital v. NLRB, 942 F.2d
151 (2d Cir. 1991), the Respondent contends that an order requiring
it to make payments to fringe benefit funds for any losses they may
have suffered as a result of the unilateral modification of the collec-
tive-bargaining agreement exceeds the Board’s remedial power under
Sec. 10(c) of the Act because it goes beyond making employees
whole. We find Manhattan to be factually distinguishable. Unlike
here, the employees in Manhattan were compensated by substitute
benefit plans and prior to the Board’s decision had disclaimed any
present or future interest in being covered by union funds. Further,
the union in Manhattan had disclaimed any interest in representing
the employees in question. The employees here continue to be rep-
resented by the Union and have an interest in the viability of the
funds. Accordingly, we find no merit to the Respondent’s contention
and shall require payments to the fringe benefit funds as part of our
status quo ante remedy. See Ron Tirapelli Ford, 304 NLRB 576 fn.
2 (1991), remanded 987 F.2d 433, 443–445 (7th Cir. 1993).
2 All dates hereinafter refer to 1992, unless otherwise indicated.
3 The judge determined unit size as follows: 128 employees work-
ing when the petition was received, 97 replaced strikers, 11 laid-off
employees who had been recalled at the commencement of the
strike, 5 shop employees, 2 individuals who were on disability leave,
and 2 additional plant maintenance employees.
Virginia Concrete Company, Inc. and Drivers,
Chauffeurs and Helpers, Local 639, Inter-
national Brotherhood of Teamsters, AFL–CIO.
Case 5–CA–23018
February 8, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On April 21, 1994, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party filed a brief addressed to the judge.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings as modi-
fied, and conclusions and to adopt the recommended
Order.1
The judge found that an August 13, 19922 petition
bearing 116 employee signatures did not rebut the
Union’s presumed majority status because there were
at least 245 eligible voters in the unit. The Respondent
contends that the unit consists of 221 individuals.
For the following reasons, we find that the unit con-
sists of at least 237 eligible voters:3
(a) The judge found that the method of counting re-
placed strikers used by Respondent’s personnel man-
ager, Glen Rupert, who counted 97, was more reliable
than that used by Vice President Diggs Bishop, who
counted 93. We assume arguendo the Respondent is
correct that there were 93 (rather than 97) replaced
strikers working at the commencement of the strike.
(b) We agree with the judge that the 11 laid-off em-
ployees who were recalled on June 4 and who indi-
cated they were honoring the strike should be included
in the unit. We reject the Respondent’s argument that
these 11 individuals’ jobs had been eliminated prior to
the strike. A respondent bears the burden of establish-
ing that the jobs of economic strikers otherwise eligi-
ble to vote have been eliminated. Lamb-Grays Harbor
Co., 295 NLRB 355, 357 (1989).
We find that the Respondent did not sustain its bur-
den of showing that the 11 jobs had been eliminated.
Although the record indicates that the Respondent en-
countered a downturn of business and the Respondent
speculates that this downturn resulted in the loss of
jobs, we find that the Respondent failed to come forth
with sufficient evidence to establish that all, or any as-
certainable number, of the positions of the laid-off em-
ployees were eliminated.
Further, although Bishop testified that the Respond-
ent had made the decision to eliminate the jobs in Jan-
uary 1991, at the time the employees were laid off, the
Respondent’s January 1991 letter advising the employ-
ees of the layoff did not indicate that their jobs were
eliminated. And, in fact, in a July 4, 1992 letter, the
Respondent ‘‘recall[ed]’’ the employees. We find this
evidence to be inconsistent with the Respondent’s con-
tention that the jobs were eliminated in January 1991.
The Respondent contends that 1 of the 11, mixer
driver Dennis Browne, should be excluded because he
obtained a permanent full-time job with another em-
ployer. The record shows that Browne was employed
at a different locale while on strike, that he was paid
$3 an hour less than his prestrike wage, and that he
intended to return to work for the Respondent after the
strike. Rather than indicating that Browne abandoned
an interest in his job with the Respondent, the record
supports the presumption in favor of Browne’s contin-
ued voter eligibility. See Marchese Metal Industries,
313 NLRB 1022, 1031 (1994).
(c) We agree with the judge, for the reasons he stat-
ed, that the Respondent failed to show that the five
striking shop employees’ jobs had been eliminated and
that therefore they should be included in the unit.
(d) We agree with the Respondent that the judge in-
correctly counted two plant maintenance employees
twice. The judge found that Bishop’s notations on the
April seniority list showed that five plant maintenance
employees went on strike, but that Bishop counted
only three as replaced strikers and neglected to count
the two others. The judge therefore added the two
plant maintenance employees to the Respondent’s list
of replaced strikers. In fact, the record shows that the
2 employees abandoned the strike and therefore were
correctly counted by Bishop as part of the 128 employ-
ees working at the time the petition was received.
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Because we find that there were at least 237 voters in the unit,
with only 116 signatures on the petition, we find it unnecessary to
pass on the Respondent’s exceptions to the judge’s inclusion in the
unit of B. F. Lambert and E. J. Kemp, who were on disability
leave.
5 Because we conclude that the Respondent did not have a good-
faith doubt of the Union’s continued majority status, we find it un-
necessary to decide whether the Respondent was required to bargain
with the Union pursuant to the parties’ informal settlement of 8(a)(5)
charges.
1 The unit, admitted to be appropriate for the purposes of collec-
tive bargaining within the meaning of Sec. 9(b) of the Act, is de-
scribed as follows:
All mixer truck drivers, master electricians, ready-mix mechan-
ics and mechanic helpers, equipment operators, tractor-trailer
and ten wheel dump drivers, shop mechanics and welders, shop
mechanic and welder helpers, tire maintenance men and helpers
employed by Respondent at its operations in the City of Alexan-
dria, and the counties of Arlington, Caroline, Fairfax, Loudoun,
and Prince William, and elsewhere where the Union has orga-
nizing jurisdiction, excluding all other employees, executives,
administrative, professional, office and clerical employees,
guards and supervisors as defined in the Act. Each category of
employees (i.e., ready-mix drivers, plant employees, dump truck
drivers, and repair shop employees) is covered by a separate
contractual addendum and seniority list.
It is undisputed that there were 128 unit employees
when the petition was received. Thus, with the 93 re-
placed strikers, 11 recalled employees, and 5 shop em-
ployees, the unit size is at least 237.4
Accordingly, the 116 signatures on the petition the
Respondent received did not constitute a majority of
voters. We also find, in agreement with the judge, that
the Respondent did not have a good-faith doubt of the
Union’s majority status.5 The Respondent therefore
violated Section 8(a)(5) and (1) of the Act by with-
drawing recognition from the Union and changing the
terms and conditions of employment agreed on by the
parties.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Virginia Concrete Com-
pany, Inc., Springfield, Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Washington, D.C., on January 19 and Feb-
ruary 1 and 2, 1994, based upon a charge filed by Drivers,
Chauffeurs, and Helpers, Local 639, International Brother-
hood of Teamsters, AFL–CIO (the Union), and a complaint
issued by the Regional Director for Region 5 of the National
Labor Relations Board (the Board), on May 26, 1993, as
amended at hearing. The complaint alleges that Virginia
Concrete Company, Inc. (Respondent or the Employer) vio-
lated Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act (the Act) by improperly withdrawing recognition
from the Union, unilaterally changing terms and conditions
of employment, and by failing to consider economic strikers
as being among those entitled to preferential recall or rehire.
Respondent’s timely filed answer denies the commission of
any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by all parties, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS
Preliminary Conclusions of Law
The Respondent, a corporation, with its principal office in
Springfield, Virginia, is engaged in the production and non-
retail sale and delivery of ready-mix concrete in northern
Virginia. During the 12 months preceding issuance of com-
plaint, Respondent purchased and received at its various fa-
cilities located within the State of Virginia goods and mate-
rials valued in excess of $50,000 directly from points located
outside the State of Virginia. The complaint alleges, the Re-
spondent admits, and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The complaint alleges, Respondent admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates 12 concrete plants in northern Vir-
ginia, providing ready-mix concrete to concrete subcontrac-
tors and builders in the construction industry in that area.
Not all 12 plants are necessarily open or in production at the
same time.
Since at least 1970, the Union has represented Respond-
ent’s ready-mix and dump truckdrivers and plant and repair
shop employees.1 The term of the most recent collective-bar-
gaining agreement ran from May 15, 1988, to May 15, 1991.
B. The Layoffs
On January 4, 1991, Respondent laid off 56 unit employ-
ees, including some from each of the separate addenda other
than the tractor-trailer drivers. Thirteen more ready-mix driv-
ers were laid off on January 24, 1992; 9 or 10 were recalled
in April 1992. The layoffs were economically motivated, fol-
lowing substantial diminution of the Employer’s business.
The volume of business Respondent does in a year is
closely tied to the fortunes of the construction industry, par-
ticularly commercial construction. During the years of the
mid-1980s, commercial construction was booming in the
Washington, D.C. area, including northern Virginia. Re-
263VIRGINIA CONCRETE CO.
2 Respondent operates on an October 1 through September 30 fis-
cal year.
3 All dates hereinafter are in 1992 unless otherwise indicated.
4 I credit the testimony of these employees, noting that it is essen-
tially uncontradicted and is, in fact, corroborated by Rupert’s sum-
mary of the calls and by the telephone messages. While I find noth-
ing particularly sinister in Rupert’s transfer of information to such
a summary and his destruction of the original notes of the conversa-
tions, such as might warrant an adverse inference, I cannot credit
Rupert’s assertion that his notation, ‘‘strike,’’ meant only that the in-
dividual was not coming back and did not mean that caller had said
that he was going to honor the strike.
spondent’s volume, measured in yards of concrete delivered,
doubled from 1982 to 1986,2 from about 600,000 yards per
year to more than 1.3 million. It remained at about that level
through 1989 when it began to decline, slipping 20 percent
to under 1 million in 1990. Additional reductions were pro-
jected for 1991 and, in fact, business decreased by 30 percent
or more, to about 570,000 yards. The decline has continued
into 1992 and 1993, leveling off at about 480,000 yards.
Respondent attributes the growth of commercial construc-
tion in the 1980s to advantageous tax laws and generous
lending practices by banks and savings and loans. In 1986,
however, the advantages granted by the tax code were elimi-
nated. Lending institutions ceased to lend and many went
‘‘belly’’ as a result of bloated portfolios of real estate and
other loans. As the work in progress was completed, and the
market became glutted with vacant commercial space, con-
struction work dried up. With it went the ready-mix business.
According to John McMahon, a witness proffered by Re-
spondent with long and extensive experience in the industry
within this geographical area, the industry was going through
more than a normal business cycle. What had occurred was
a ‘‘classic down-sizing.’’ McMahon opined that the industry
would not return to the boom days of the 1980s within any
reasonable period of time.
Additionally impacting upon Respondent’s business,
George Hossenlopp, its president, suggested, was increased
competition from new entrants into the field during the 1980s
and changes in zoning regulations in northern Virginia limit-
ing building density.
In addition to the 2 layoffs of unit employees, Respond-
ent’s salaried complement was reduced by 19 during 1991.
By June 1992, its fleet of trucks had been reduced by 44.
In January 1991, Respondent was only operating at 7 of its
12 plants; as of the end of that year, 7 plants were closed.
Respondent still retained those facilities and could reopen
them as needed.
At hearing, the Employer contended that the employees
had not been merely laid off but had actually been termi-
nated in 1991. However, neither the Union nor the employ-
ees were ever told that the job separations were permanent.
Respondent had removed the names of the 56 laid off in Jan-
uary 1991 from its payroll register after 1 year, in January
1992. However, under the collective-bargaining agreement,
those employees retained job rights for 18 months, through
June 1992, and their names had not been removed from the
seniority lists through at least April 1992. The layoff letters
in both January 1991 and again in January 1992 stated that
the layoffs were for an ‘‘indefinite’’ period, that the em-
ployee might be called back to work when business condi-
tions improved and that management hoped that the eco-
nomic climate turned around for everyone’s benefit. In a
second letter dated January 28, 1991, the laid-off employees
were told to apply for unemployment compensation and
instructed as to the steps necessary to extend their health
coverage. It was also suggested that they seek employment
elsewhere so as to reduce the Employer’s unemployment tax
liabilities.
C. The Strike and the Recall Letters
Collective bargaining toward a new agreement began in
April 1991; it was still continuing on June 4, 1992,3 when
the Union began an economic strike. On that same date, Re-
spondent sent letters to 52 of the laid-off ready-mix drivers
and plant maintenance employees, offering to recall them to
work. Those letters also advised them of the labor dispute
and the picketing. The employees were asked to call dispatch
to notify the Employer of their ‘‘intention to return to work’’
or whether they ‘‘elect[ed] to participate in the strike.’’ No
recall letters issued to any of the laid-off shop employees.
At least 26 of those who received recall letters called
Glenn Rupert, Respondent’s personnel manager. Rupert took
notes of those calls; he subsequently transferred those notes
to a summary sheet, listing the names and, in most cases, ab-
breviated comments. The comment appearing next to 15 of
the names is simply ‘‘strike.’’ On three others, the comments
are: ‘‘abandon job; strike,’’ ‘‘Strike (that’s the way I feel),’’
and ‘‘no supporter of the union—strike.’’ Rupert had little or
no recollection of the individual conversations. He claimed
that he wrote ‘‘strike’’ next to those names only to signify
that they were not going to return to work, denying that his
notation indicated that the individual had stated that he was
joining the strike. He wrote ‘‘abandon’’ next to one name;
by this he claimed to signify that the individual never in-
tended to return to Virginia Concrete.
Rupert also received messages relating calls from five laid-
off employees, two of whom (Sutton and Reynolds) had also
spoken with him. Three of those messages stated that the
caller would not cross the picket line but would like to come
back when the strike was over (Reynolds, Foglio, and Sut-
ton). One related that Browne would not be returning. The
fifth (Blakey) indicated that he would be honoring the picket
line.
Fourteen laid-off employees testified as to their commu-
nications with Rupert. Ten (Gustavo Risso, James Foglio,
Christopher Quartro, Bobbie Anderson, David Langhorne,
Jesse Smith, Donald Taylor, Kenneth Norman, Sam L.
Smith, and Neddie Vernon) told Rupert that they would like
to return but intended to honor the strike. One, Bobbie An-
derson, wrote Rupert a letter indicating his intention to return
but for his fear for his safety if he crossed the line; orally,
Anderson told Rupert that he would honor the picket line.
Four others (Lynn, Browne, Manning, and Ofsonka) told Ru-
pert that they would honor the picket line without expressly
stating they that would otherwise return. In his conversation
with Ofsonka, Rupert asked which way the employee was
going to go, ‘‘union or nonunion?’’4
All of the above-named employees except for Quartro,
Jesse Smith, and Ofsonka picketed one or more of Respond-
ent’s plants during the strike, participating in such activities
on an occasional basis for some (Norman) to between three
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 They so testified and that testimony was corroborated by the tes-
timony of others who observed them at the picket line. Neither Jesse
Smith nor Quartro picketed; Ofsonka’s testimony that he did is con-
tradicted by his testimony that he only picketed after he got the re-
call letter, which did not occur until after the strike ended. The testi-
mony of Foglio and Union Representative James Woodward identi-
fying Quartro, Jesse Smith, and Ofsonka as being among those who
picketed is thus contradicted by the facts and, to that extent, cannot
be credited.
6 Two additional laid-off employees, Richard Honse and William
Proctor, were identified by Woodward as having picketed. Both of
these individuals had called Rupert and indicated their support for
the strike. However, given Woodward’s mistaken identification of
others at the picket lines, I can not give this testimony any weight.
7 One name, Decaire, was struck from both the petition and the
payroll list inasmuch as he had quit between the time he had signed
the petition and Bishop’s receipt of it.
and five times a week for most of them.5 They identified
some supervisors, such as Rupert, Hossenlopp, Richard
Charles, Clarence Pender, and a Mr. Pedigo as seeing them
on the lines. They were also apparently caught on videotape
by the employees of a security firm hired by Respondent
during the strike. Respondent’s witnesses denied viewing any
such tapes and Hossenlopp and Charles denied seeing any of
these individuals at the picket lines. I find the testimony of
the employees as to their presence more reliable to establish
such presence than those denials are to negate it.6
The strike ended on July 1 with the Union’s unconditional
offer to return to work ‘‘on behalf of all the striking employ-
ees.’’ The Employer responded on July 2, stating that it
would be calling some employees back to work and would
place the remaining ‘‘strikers for whom we do not presently
have positions available’’ on a preferential rehire list.
Respondent never actually created a list of employees enti-
tled to preferential rehire. According to Rupert, that list ex-
isted as a concept only. As conceptualized, it consisted of
those employees who had been working prior to the strike
who had been replaced. It did not include any of the laid-
off employees, even if they had been sent recall letters and
responded by indicating that they would return but for the
strike.
At hearing, counsel for the General Counsel moved to
amend the complaint to allege, as an 8(a)(3) and (1) viola-
tion, Respondent’s failure to place the laid-off employees on
the preferential rehire list. In response, the Employer, without
conceding that they were countable as members of the unit
on August 13, agreed to consider those laid-off employees
who had joined the strike as entitled to preferential rehire.
On July 20, in response to a union request, Rupert in-
formed the Union that there were 131 jobs existing in the
unit, consisting of 87 ready-mix driver positions, 18 positions
for plant employees, 10 for tractor-trailer drivers, and 16 for
employees in the repair shop. None of these positions, Re-
spondent’s letter related, were ‘‘presently available.’’ At-
tached to the letter was a list of 98 permanent replacements.
On August 12, Respondent updated that list; the new list
named 97 replacements.
D. Withdrawal of Recognition—Unilateral Action
On August 13, two employees gave Respondent’s vice
president for operations, Diggs Bishop, a petition stating that
its 117 employee signatories no longer wished to be rep-
resented by Local 639 or any other union. Bishop, together
with George Hossenlopp, Respondent’s president, and Rupert
confirmed that these were employee signatures, spot checked
a couple against known signatures on employment applica-
tions and then compared the petition against the current pay-
roll, including replaced strikers. He concluded that there
were 116 valid signatures7 on the petition, more than a ma-
jority of the 221 he deemed to be employees at that time.
On August 14, Respondent withdrew recognition from the
Union, asserting that ‘‘a substantial majority of our unit em-
ployees’’ had indicated that they no longer desired union rep-
resentation.
The complaint alleged and, at hearing, Respondent admit-
ted, that after it withdrew recognition, it changed the unit
employees’ terms and conditions of employment. Those
changes involved work scheduling for ready-mix drivers, the
scheduling and payment of overtime, wage rates for certain
classifications, and restrictions on working out of classifica-
tion. It also ceased making payments to the Union’s health,
welfare, and pension trusts. All of these changes, it admitted,
involved mandatory subjects of bargaining, and would violate
the Act if its withdrawal of recognition was faulty. It was
stipulated that if any of these acts was found to involve a
monetary remedy, the amount of that remedy would be deter-
mined in a separate backpay proceeding.
III. ANALYSIS
A. Section 8(a)(5)—Withdrawal of Recognition and
Unilateral Action
1. General principles
‘‘It is well settled that an employer may rebut an incum-
bent union’s presumption of majority status by demonstrat-
ing, at an appropriate time, that the union in fact no longer
enjoys majority support or that the employer has a good faith
and reasonably grounded doubt of the union’s majority sta-
tus.’’ Such a good-faith doubt must be grounded upon objec-
tive factors. Laidlaw Waste Systems, 307 NLRB 1211
(1992); NLRB v. Curtin Matheson Scientific, 494 U.S. 775
(1990). Voter eligibility is equatable to presence in the unit
for determining majority status upon a withdrawal of rec-
ognition and Section 9(c)(3) provides that replaced economic
strikers remain eligible to vote for 12 months following the
conclusion of an strike. Sanderson Farms, 271 NLRB 1477
(1984); Pioneer Flour Mills, 174 NLRB 1202, 1203 (1969).
Unreplaced economic strikers lose their employee status if,
prior to the election, they secure permanent employment
elsewhere or the employer demonstrates that it eliminated
their jobs for economic reasons. Lambs-Grays Harbor Co.,
295 NLRB 347, 357 (1989); Gulf States Paper Corp., 219
NLRB 806 (1975).
The voting eligibility of laid-off employees, however, de-
pends on whether they were laid off permanently, in which
case they are not eligible to vote, or merely temporarily, re-
maining eligible voters. The test is whether or not they have
a reasonable expectation of recall. Apex Paper Box Co., 302
NLRB 67, 68 (1991).
The instant case brings together the foregoing principles.
265VIRGINIA CONCRETE CO.
8 There was no explanation as to why the July seniority list for
the shop included the names of laid-off employees while the ready-
mix drivers seniority list for the same period did not.
9 G. E. Bowler and M. A. Pinion, equipment operators with hire
dates of October 21 and February 3, 1985, respectively, and mechan-
ics first class A. Hall and R. Clark, hired on July 1 and June 22,
respectively.
2. The size of the unit
In determining the size of the unit, Bishop worked from
the April and July 1992 separate seniority lists for each of
the four addenda (i.e., the ready-mix drivers, the shop or
plant employees, the ready-mix plant maintenance employ-
ees, and the dump or tractor-trailer drivers addenda). He
made certain changes, purportedly to reflect his understand-
ing of the status of various individuals, in order to determine
who was working and who were replaced strikers. Bishop
did not consider any of the laid-off employees to be unit em-
ployees, excluding even those who had received the June 4
recall letter and signified their support for the strike. Neither
did he utilize the Rupert’s July 20 response to the Union’s
questions concerning existing unit positions nor Rupert’s lists
of strike replacements of that date or of August 12.
There were 86 names on the July seniority list of ready-
mix drivers, all of whom where strike replacements, includ-
ing 2 laid-off employees who had accepted the recall offer
and 84 hired after the strike began. To this, Bishop added
one name, Lazarus Thomas, who started work in July, for a
total of 87. This number agrees with the numbers shown on
Rupert’s July 20 and August 12 lists of strike replacements.
From the July seniority list of 23 purportedly working
under the shop addendum, Bishop struck 8 names. One,
Tucker, had quit in April. The other seven were mechanics
who had been laid off in January 1991.8 He concluded that
there were only 15 employees in the shop. That is three
fewer positions than Rupert had told the Union existed in the
shop on July 20.
Bishop added 1 name to, and struck another from, the
dump truck (tractor-trailer) drivers seniority list, leaving 10,
a count identical with both Rupert’s count on July 20 and
the payroll register (department 50) covering the critical date.
From the July seniority list for the ready-mix plant mainte-
nance employees, Bishop struck 3 names, W. Crabtree and
F. R. Keith, both of whose names appear in the payroll reg-
ister with the designation ‘‘ES’’ in place of hours worked,
and R. W. Decaire, who had quit, leaving a total of 16 who
were still working on August 13. His count of employees on
that seniority list agreed with Rupert’s.
Bishop concluded that there were 128 employees in the
unit when the petition was received.
To the 128 working employees, Bishop added 93 consid-
ered by him to be the replaced strikers, based upon the April
1992 seniority lists as he adjusted them, as follows:
There were 134 names on the April ready-mix drivers’ list.
Bishop struck the name of B. F. Lambert, whom he knew
to be terminally ill, H. B. Kinard, who was permanently dis-
abled, 43 drivers who had been laid off in January 1991 and
2 who had been laid off in 1992. One of the latter, S. kE.
Stiltner, was also on a medical disability which rendered him
unable to work. He concluded that there were 87 replaced
ready-mix drivers.
The shop seniority list for April contained 28 names. Five
of these employees participated in the strike. However,
Bishop deemed that none of them were to be counted as ei-
ther replaced or unreplaced strikers inasmuch as he had no
jobs for them; he contended that their jobs had been perma-
nently eliminated. Neither did he count any of the shop em-
ployees who were on layoff status.
Bishop determined that only three of the employees from
the plant maintenance department were replaced strikers, not-
withstanding that what appear to be his notes on the list indi-
cate that five or six went on strike. Rupert’s July 20 and Au-
gust 12 lists of strike replacements indicates that there were
four strike replacements employed in the plant maintenance
department on those dates.9 Bishop considered 6 of 10 of the
employees listed on the dump truckdrivers seniority list to be
replaced strikers, consistent with the lists of replacements
sent to the Union by Rupert.
Based on the above, Bishop concluded that there was a
total of 93 replaced strikers. Adding these to the 128 em-
ployees he deemed to be working on August 13, he deter-
mined that there were 221 employees who had to be counted
for majority purposes as of that date. The 116 valid names
on the petition, he concluded, was a majority of those prop-
erly counted.
Counsel for the General Counsel and for the Union dispute
Bishop’s methods and conclusions. Their principal argument,
based upon Rockwood & Co., 281 NLRB 862 (1986), is that
the laid-off employees who received recall letters and joined
the strike must be counted as being within the unit for major-
ity purposes. In Rockwood, supra, 54 employees had been on
layoff status for an undisclosed period due to the recession-
ary state of the employer’s industry when an economic strike
began. In an effort to maintain production, the employer so-
licited the laid-off employees to cross the picket line and
come to work. At least 20 of the laid-off workers rejected
that offer and joined the picket line. Sometime after the end
of the strike, the employer terminated the recall rights of the
laid-off employees. The Board found that those laid-off em-
ployees who had received the employer’s offer to return to
work and joined the strike assumed the status of economic
strikers entitled to reinstatement to any available job for
which he or she was qualified. The statements of those laid-
off employees, when asked if they would return to work, to
the effect that they were supporting the strike, and their par-
ticipation in that strike, were sufficient to clarify any ambi-
guity in their employee status while on layoff whether or not
the employer actually knew that they had joined the strike.
See also Brinkerhoff Signal Drilling Co., 264 NLRB 348,
349 fn. 5 (1982).
In this case, Respondent solicited 52 laid-off employees to
return to work. Of these, at least 29 replied. Based upon the
notes Rupert made (as he transposed those notes to a sum-
mary) and the telephone messages taken of calls from the
others, at least 20 indicated support for the strike. The tele-
phone messages and their testimony establishes that 12 spe-
cifically stated that they would like to come back to work
but for the strike and others indicated support for the strike.
No less than 11 actively joined the picket lines. I find, based
upon the authority of Rockwood, supra, and Brinkerhoff,
supra, that their presence on the picket lines, taken together
with their conversations with Rupert or others answering the
telephones and taking messages in Respondent’s personnel
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Indeed, Bishop’s failure to utilize the very current (July 20 and
August 12, 1992) lists of strike replacements and unit positions
which his personnel manager had just prepared suggests an effort to
manipulate the numbers so as to arrive at a desired conclusion. I
note that Rupert was present with Bishop and Hossenlopp when the
counts were made.
11 Shanholtzer, Pownell, Jewell, Muterspaw, and Wood.
12 Compare the cited cases with Meridian Plastics, 108 NLRB
203, 205–206 (1954), where the company had sold one machine on
which 10 of the strikers had worked and permanently subcontracted
the work of 13 others and E. J. Kelly Co., 98 NLRB 486, 488
(1952), where the record established that jobs had been eliminated
or consolidated for efficiency.
department, was overt action sufficient to put Respondent on
reasonable notice of their strike support. It is irrelevant that
Respondent disclaims actual notice of their picket line activ-
ity, even if that disclaimer was deemed credible.
Contrary to Respondent’s contentions, I conclude that the
overt actions of those who joined the picket line established
not only their right to preferential rehire (which Respondent
conceded) but is also determinative of their voter eligibility.
If they are economic strikers entitled under Laidlaw Corp.,
171 NLRB 1366 (1968), to preferential rehire, they are, per-
force, economic strikers eligible to vote for at least 12
months under Section 9(c)(3) unless they had secured other
employment or their jobs were eliminated. Lambs-Grays
Harbor, supra.
Respondent argues, however, that these laid-off employees
had no reasonable expectation of recall, and that, in fact,
their jobs had been eliminated for reasons unrelated to the
strike. Even assuming that their voter eligibility is deter-
mined by their status as laid-off employees rather than as
strikers, I must reject these contentions. The record estab-
lishes that these employees retained contractual rights to re-
call at the time of the strike, were still carried on the senior-
ity rosters and were, in fact, offered recall when a need for
labor, albeit strike related, arose. Neither the employees nor
their representatives were ever informed that these jobs had
been eliminated and the Respondent was still employing
workers in the same classifications. Moreover, while Re-
spondent had closed some of its concrete plants and sold
some trucks, those plants could be and were opened and
closed as business conditions warranted and trucks can gen-
erally be acquired by purchase or lease as needed. And, most
of those laid off in January 1992 had been recalled in April.
At most, it can be said that the status of these laid-off em-
ployees was ambiguous. Respondent’s offers to recall them,
their responses to those offers and their strike-related activi-
ties, resolved the ambiguities in favor of their continued em-
ployee status. Rockwood, supra; Brinkerhoff, supra.
If, as I find, there were at least 11 laid-off employees who,
by virtue of having responded to the Employer’s recall offer
and then joining the picket line activity, clarified their em-
ployee status, the 116 names on the petition represents a bare
50 percent of those eligible to vote on August 13, even using
Bishop’s other numbers. He assumed a unit of 221; adding
11 brings the unit to 232.
Moreover, I am compelled to conclude that Bishop’s count
of those within the unit falls short in several other respects.
Utilizing an April seniority list, he concluded that there were
but 93 replaced strikers. Yet, Rupert had determined that
there were 97 strike replacements as of August 12, the day
before Bishop made his calculations and his list names them.
The difference, it would appear, was that Rupert counted
those who had been hired as strike replacements while
Bishop counted those he deemed replaced. Rupert’s method
is clearly the more reliable.10 Utilizing the number of 97 as
the correct number for replaced strikers, the unit complement
thus becomes 236 as of the critical date.
Bishop also excluded the five shop employees who were
working when the strike began and joined the strike from his
count of those strikers remaining eligible to vote,11 contend-
ing that their jobs had been eliminated. He testified that Re-
spondent’s fleet of trucks had been reduced by ‘‘almost 25
percent’’ and was further reduced by the time of trial. He did
not claim, however, that any such reductions had occurred
during the month that these employees were on strike. Nei-
ther was there any evidence of any management determina-
tions that these jobs should be permanently eliminated. Re-
spondent bears the limited burden of establishing permanent
job elimination for substantial nonstrike-related reasons.
Lambs-Grays Harbor, supra. The mere fact that these em-
ployees were not replaced during the strike or recalled imme-
diately thereafter is insufficient evidence to sustain that bur-
den.
Thus, in Gulf States Paper, supra, economic conditions
had resulted in a lessened need for employees and would
have resulted in layoffs had not the employees gone on
strike. The employer replaced only 43 of 78 employees (out
of 124 in the unit) who remained on strike after nearly 13
months. The Board held that such facts do not ‘‘suffice to
show that the jobs of the [35] unreplaced strikers have been
permanently eliminated or abolished so as to terminate the
strikers’ employment status and render them ineligible to
vote.’’ See also Globe Molded Plastics Co., 200 NLRB 377
(1972), where despite depressed conditions in the employer’s
industry precluding any reasonable anticipation of increased
business in the foreseeable future, the otherwise eligible vot-
ers were not disenfranchised in the absence of evidence that
the strikers’ work had been permanently abolished. In both
Gulf States, supra, and Globe Molded Plastics, the Board
cited NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967),
for the proposition that ‘‘a striker’s basic right to a job can-
not depend upon job availability as of the moment he applies
for reinstatement.’’12
I note, moreover, that Bishop’s view of how many jobs
existed under the shop addendum differed from what Rupert
had told the Union on July 20. At that time, Rupert told the
Union that there were 18 positions ‘‘existing’’ under the
plant or shop addendum. Bishop would have struck from the
April 1992 plant seniority list of 28 names all those who
were on layoff (7), plus Tucker, who had quit, as well as the
5 named strikers, leaving only 13. It seems that the personnel
manager’s view of the employee complement differed from
that of his vice president for operations. Had the jobs of
these five shop employees been eliminated, the personnel
manager would have known of it. That Rupert believed the
shop complement remained at 18 indicates to me that no de-
cision to eliminate these 5 positions had ever been made.
267VIRGINIA CONCRETE CO.
13 For the same reason, it would appear appropriate to add at least
two striking employees from the plant maintenance seniority list for
April. Bishop indicated that at least five went on strike but he only
counted three as replaced strikers. There was no evidence that the
jobs of the others had been eliminated. To add these individuals as
replaced strikers would raise the unit total to 245.
14 While reference was made at the hearing to several other indi-
viduals, either as employees who should have been counted and
were not or as employees who were counted but should not have
been, this decision will address only those argued in the General
Counsel’s brief.
15 The doctor’s parenthetical notation following ‘‘Indefinite’’ read
‘‘(probably 6 months).’’ This might have referred to either a possible
return to work after that much time or to an anticipated life expect-
ancy. In fact, Lambert passed away in October 1992.
Accordingly, I would add the 5 striking shop employees
to the list of eligible voters, bringing that list to at least
241.13
Further, the General Counsel urges that certain additional
employees must be added to Respondent’s list of those work-
ing in the unit on the critical date and that others, counted
by Respondent, must be excluded.
The General Counsel would include two summer employ-
ees, Kodi Killion and Scott Hossenlopp. They were college
students; the sons of Respondent’s managers. They had
worked for several successive summers, loading ice on the
cement trucks, doing general yard maintenance and cleanup,
and what was described as odd jobs. For one summer prior
to 1992, Killion had served as a plant manager at the Dum-
fries plant; the record does not indicate whether this was a
true managerial or supervisory position. They were paid $8
or $9 per hour, several dollars per hour less than was paid
under any of the four addenda. Their employment records re-
flect that they received no pension, insurance, or other bene-
fits under the agreement. The Union asserted that the work
they did was unit work and denied that it had ever agreed
to the employment of nonunit part-time or summer help
when unit members were on layoff. The contract contains no
job title or description which would include the work these
two did but Woodward claimed that the unit members were
required to do whatever work was assigned to them and had
done such work in the past.
Given the relationship of these two employees to Respond-
ent’s management, the limited tenure of their employment
coinciding with the school vacation and (most probably) the
final completion of their studies, the fact that they did not
receive contractual wage rates or benefits, the additional fact
that the work which they performed was not specifically en-
compassed in any of the contract’s job titles, and the sparse
state of the record with respect to them, I must conclude that
Kodi Killion and Scott Hossenlopp were not eligible voters
on the critical date. They were temporary summer help lack-
ing a community of interest with the unit employees. Jakel
Motors, 288 NLRB 730, 743 (1988) (Petermeyer); Comet
Corp., 261 NLRB 1414, 1438 (1982) (Winebrenner).
The General Counsel would also add to the total of those
in the unit on August 13 four employees who were on work-
men’s compensation, disability, or sick leave at that time,
F. R. Keith, H. J. Kemp, B. F. Lambert, and S. E.
Stiltner.14
In Red Arrow Freight Lines, 278 NLRB 965 (1986), the
Board stated:
The fundamental rule governing the eligibility of an
employee on sick or maternity leave is that he or she
is presumed to continue in such status unless and until
the presumption is rebutted by an affirmative showing
that the employee has been discharged or has resigned.
It further held that the ‘‘reasonable expectation of employ-
ment’’ test, applicable to laid-off employees, was not appli-
cable to employees on medical leave. Id. at fn. 5, where the
Board referred to its prior use of the ‘‘reasonable expectation
of employment test’’ in ‘‘isolated cases’’ as inadvertent. See
also Edward Waters College, 307 NLRB 1321 (1992).
F. R. Keith was still carried on the April and July 1992
plant maintenance addenda seniority rosters. However, he
was not carried on the payroll register as of August. Accord-
ing to Woodward, he suffered from a work-related lung con-
dition but had not been ruled totally disabled as of August
13. Company records indicate that he was disabled and that
a retirement party had been held for him in April, at which
time a plaque honoring his years of service was awarded
him. The presumption of his continued employment has been
rebutted by this evidence of his retirement and he was prop-
erly excluded from the list of employees counted in the unit.
Woodward testified that E. J. Kemp had been off work
due to an injury for perhaps 5 to 8 years. However, his status
had never been resolved and, although his name appears on
neither of the seniority lists nor on the payroll, the General
Counsel argues for his inclusion. Respondent has failed to
rebut the presumption of his continued employment and he
must be counted.
Bishop had struck B. F. Lambert’s name from the April
roster of ready-mix drivers because Lambert had not worked
since December 1991. Lambert had been diagnosed as con-
tinuously totally disabled for an ‘‘indefinite’’ period of time
following December 7, 1991.15 Bishop knew Lambert to be
suffering from cancer and, when they spoke in the spring of
1992, Lambert acknowledged the terminal nature of his con-
dition. Respondent was not carrying him on the payroll reg-
ister as of August. Woodward acknowledged Lambert’s con-
dition but contended that he intended to return to work.
Woodward related that Lambert had stopped by the picket
line on one occasion and, in phone conversations, had told
Woodward that he was fighting his disease and intended to
get well and return to work. I am compelled to conclude that
Respondent has failed to rebut the presumption of his contin-
ued employee status.
Sam Stiltner had been out on a work-related injury since
December 1991. He was also one of the ready-mix drivers
laid off in January 1991 and he had received a recall letter
in June to which he did not respond. As of May 1992, he
was considered permanently disabled from lifting more than
20 pounds and Respondent’s ready-mix trucks require that a
driver lift more than that weight. He had been listed on the
April seniority roster but he was not listed on the August
payroll register. His compensation claim was subsequently
settled, as a permanent disability. Given both the recall letter
and the determination of his disability as permanent,
Stiltner’s employment status was ambiguous. His failure to
respond to the recall letter, I believe, is sufficient to resolve
that ambiguity and requires a conclusion that he was no
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
longer an active employee and/or that he had no reasonable
expectation of returning to work as a laid-off employee.
The General Counsel would exclude from the unit two
strike replacements whom Respondent counted as both unit
members and card signers, Joe Cockerile and Clint Rayfield.
The record reveals that Cockerile worked until August 11.
He was absent thereafter and, according to Respondent’s
records and Bishop’s testimony, was placed on a medical
leave of absence on August 14. He never returned to work
and was terminated in June 1993 when it was discovered that
he had taken other employment. The Union, however, con-
tended, based upon an unsworn statement, that Cockerile had
quit Respondent’s employ in mid-July and asked that the
record be held open for an additional day to take his testi-
mony. That request was denied in view of this judge’s opin-
ion that the inclusion or exclusion of one more card signing
employee would not affect the result in this case. Noted, too,
was the conflict between Cockerile’s statement and the Em-
ployer’s records. That ruling is maintained and no conclusion
as to Cockerile is made herein.
Rayfield was hired and began working as a strike replace-
ment in late June. He had an extensive absentee record, in-
cluding ‘‘no shows.’’ He had called in on August 10 and
was absent as a ‘‘no show’’ for some days thereafter. He did,
however, return to work in August and remained employed
at the time of this hearing. He was never terminated. He can-
not be excluded from the list of eligible voters because he
could or should have been discharged.
Accordingly, I find that Lambert and Kemp must be added
to the list of eligible voters, bringing the total to 243 (242
if Cockerile were to be excluded, 244 or 245 if the additional
strikers from the plant maintenance department are added in).
The petition, bearing only 116 valid signatures (115 without
Cockerile’s) falls short of negating the Union’s presumed
majority support.
3. Good-faith doubt
Respondent contends that even if the Union had actually
maintained its presumed majority support among those eligi-
ble to vote in the unit, the Employer had a good-faith and
reasonably grounded doubt, founded upon a sufficient objec-
tive basis, of that majority status to warrant its withdrawal
of recognition, citing NLRB v. Curtin Matheson, supra. In so
arguing, Respondent asserts that it had a reasonable good-
faith belief, supported by objective considerations as to each
group of individuals who, it believed, were not in the bar-
gaining unit. I must reject this contention.
In order to reach the conclusion that the Union was longer
the majority representative, Respondent had to disenfranchise
a sizable portion of that unit. Its conclusion that various per-
sons were not eligible voters or employees, reached through
faulty reasoning, does not support a claim of a reasonable
good-faith doubt. Hollaender Mfg. Co., 299 NLRB 466
(1990), enfd. 942 F.2d 321 (6th Cir. 1991); Superior Bakery,
294 NLRB 256, 263–264 (1989); Pioneer Flour Mills, supra,
enfd. 427 F.2d 983 (5th Cir. 1970). Moreover, under the cir-
cumstances here, where Bishop ignored the lists and numbers
prepared by his personnel manager immediately prior to the
withdrawal of recognition, so as to reach a conclusion that
there were fewer unit employees, one must question the good
faith with which he approached the count.
The Union further contended that Respondent was not
privileged to withdraw recognition when it did because it had
recently entered into an informal settlement of 8(a)(5)
charges. The General Counsel neither urged nor disavowed
this theory of the case and the issue was fully aired at the
hearing and upon briefs. I find that this matter was raised at
the hearing, was fully litigated, and is thus before the Board
notwithstanding that the General Counsel did not propound
this theory. See Electrical Workers IUE Local 444 (Paramax
Systems), 311 NLRB 1031 fn. 5 (1993); Castaways Hotel,
284 NLRB 612 fn. 5 (1987).
The settlement was approved, without the Union’s agree-
ment, on March 12, 1992, and its notice was posted from
about April to June. It provided that Respondent would not
refuse to bargain with the Union by unilaterally changing its
overtime policies, would bargain with the Union upon re-
quest with respect to all issues related to rates of pay, hours
of employment, and other terms and conditions of employ-
ment and would sign an agreement reached in such bargain-
ing if requested. Following approval of the settlement, Re-
spondent met with the Union for collective bargaining until
July 8. At that time, the Employer withdrew whatever pro-
posals it had on the table and no further meetings were held
before it withdrew recognition on August 14, canceling the
meeting scheduled for that date. The Union argued, and I
agree, that it was entitled to a reasonable time for bargaining
which it was not accorded in this case. King Soopers, Inc.,
295 NLRB 35 (1989).
4. Conclusions as to the 8(a)(5) allegations
It follows from the foregoing conclusions that Respond-
ent’s withdrawal of recognition from, and its cessation of
bargaining with, the Union violated Section 8(a)(5) of the
Act.
As noted, supra, Respondent admitted that after it with-
drew recognition, it changed the unit employees’ terms and
conditions of employment. Those changes involved work
scheduling for ready-mix drivers, the scheduling and pay-
ment of overtime, wage rates for certain classifications, and
restrictions on working out of classification. It also ceased
making payments to the Union’s health, welfare, and pension
trusts. All of these changes, it admitted, involved mandatory
subjects of bargaining. I find, as I must, that these unilateral
changes violated the Section 8(a)(5) of the Act.
B. Section 8(a)(3)
As noted, supra, the complaint was amended to allege, as
an 8(a)(3) and (1) violation, Respondent’s failure to place the
laid-off employees who joined the strike on the preferential
rehire list. In response to that amendment, the Employer
agreed to consider those laid-off employees who had joined
the strike as entitled to preferential rehire. They were, of
course, entitled to such consideration. Rockwood, supra.
Prior to the hearing, no preferential hiring list was ever as-
sembled or published. No eligible employees have been of-
fered recall and none have been refused recall to any avail-
able position. When the violation was alleged, it was imme-
diately and publicly remedied with the acknowledgment that
those employees would be considered as being entitled to
preferential rehire if and when there were recalls. Moreover,
this decision makes clear which employees are entitled to be
269VIRGINIA CONCRETE CO.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
given preferential hire. If ever there was a situation calling
for no formal remedial action, this is it. I shall, therefore,
recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. At all material times and continuing to date, the Union
has been the exclusive collective-bargaining representative of
all of Respondent’s employees employed in the unit de-
scribed below, which is appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act:
All mixer truck drivers, master electricians, ready-mix
mechanics and mechanic helpers, equipment operators,
tractor-trailer and ten wheel dump drivers, shop me-
chanics and welders, shop mechanic and welder help-
ers, tire maintenance men and helpers employed by Re-
spondent at its operations in the City of Alexandria, and
the counties of Arlington, Caroline, Fairfax, Loudoun,
and Prince William, and elsewhere where the Union has
organizing jurisdiction, excluding all other employees,
executives, administrative, professional, office and cleri-
cal employees, guards and supervisors as defined in the
Act.
2. By withdrawing recognition from and refusing to bar-
gain with the Union as the exclusive collective-bargaining
representative of the employees in the above-described unit,
and by unilaterally changing terms and conditions of employ-
ment of the employees in that unit, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
3. Respondent’s conduct did not, in any other manner as
alleged by the General Counsel, violate the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I will recommend to the
Board that the Respondent be required to recognize and bar-
gain collectively and in good faith with the Union as the ex-
clusive bargaining representative of the unit employees and
that it be required, on agreement, to embody the terms of the
agreement in a signed, written contract.
Having found that Respondent unlawfully and unilaterally
changed the wages and other terms and conditions of em-
ployment, I find that it must be ordered to cease and desist
from unilaterally changing wages and other terms and condi-
tions of employment, to restore the wages and other terms
and conditions of employment which were in effect as of
August 13, 1992, make all employees whole for any loss of
earnings, pension credits and all other benefits they may
have suffered as a result of the unlawful changes, including
reimbursement for any medical, dental or, other expenses re-
sulting from Respondent’s failure to make required contribu-
tions, Kraft Plumbing & Heating, 252 NLRB 891 (1980),
and make whole all fringe benefit funds for any losses they
have suffered as a result of Respondent’s unilateral modifica-
tion of the terms and conditions of the collective-bargaining
agreement. Merryweather Optical Co., 240 NLRB 1213
(1979). Backpay is to be computed as prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), with interest as
set forth in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Virginia Concrete Company, Inc.,
Springfield, Virginia, its officers, agents, successors, and
assings, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain collec-
tively in good faith with Drivers, Chauffeurs, and Helpers
Local 639, International Brotherhood of Teamsters, AFL–
CIO as the exclusive collective-bargaining representative of
the employees in the above-described unit.
(b) Failing and refusing to bargain collectively in good
faith with Drivers, Chauffeurs, and Helpers Local 639, Inter-
national Brotherhood of Teamsters, AFL–CIO as the exclu-
sive collective-bargaining representative of the employees in
the above-described unit by unilaterally changing terms and
conditions of employment of its employees without comply-
ing with the requirements of Section 8(d)(3) and without
having first bargained to impasse with respect to the terms
and conditions which it implemented.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All mixer truck drivers, master electricians, ready-mix
mechanics and mechanic helpers, equipment operators,
tractor-trailer and ten wheel dump drivers, shop me-
chanics and welders, shop mechanic and welder help-
ers, tire maintenance men and helpers employed by Re-
spondent at its operations in the City of Alexandria, and
the counties of Arlington, Caroline, Fairfax, Loudoun,
and Prince William, and elsewhere where the Union has
organizing jurisdiction, excluding all other employees,
executives, administrative, professional, office and cleri-
cal employees, guards and supervisors as defined in the
Act.
(b) Restore, to the extent requested by the Union, all terms
and conditions of employment which were in effect as of
August 12, 1992, before the unilateral changes were made,
as embodied in the collective-bargaining agreement.
(c) Make whole any employees who may have been det-
rimentally affected by the changes in terms and conditions of
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
employment, with interest on any monetary losses the em-
ployees may have suffered.
(d) Make whole all fringe benefit funds for any losses they
may have suffered as a result of the unilateral modification
of terms and conditions of the collective-bargaining agree-
ment.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its office in Springfield, Virginia, and at its var-
ious cement plants in northern Virginia, copies of the at-
tached notice marked ‘‘Appendix.’’17 Copies of the notice,
on forms provided by the Regional Director for Region 5,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail and refuse to recognize and bargain col-
lectively in good faith with Drivers, Chauffeurs, and Helpers,
Local 639, International Brotherhood of Teamsters, AFL–
CIO as the exclusive collective-bargaining representative of
the employees in the following unit:
All mixer truck drivers, master electricians, ready-mix
mechanics and mechanic helpers, equipment operators,
tractor-trailer and ten wheel dump drivers, shop me-
chanics and welders, shop mechanic and welder help-
ers, tire maintenance men and helpers employed by Re-
spondent at its operations in the City of Alexandria, and
the counties of Arlington, Caroline, Fairfax, Loudoun,
and Prince William, and elsewhere where the Union has
organizing jurisdiction, excluding all other employees,
executives, administrative, professional, office and cleri-
cal employees, guards and supervisors as defined in the
Act.
WE WILL NOT fail and refuse to bargain collectively in
good faith with Drivers, Chauffeurs, and Helpers, Local 639,
International Brotherhood of Teamsters, AFL–CIO as the ex-
clusive collective-bargaining representative of the employees
in the above-described unit by unilaterally changing terms
and conditions of employment of our employees without
complying with the requirements of Section 8(d)(3) and
without having first bargained to impasse with respect to the
terms and conditions which it implemented.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the exclu-
sive representative of the employees in the above-described
appropriate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement.
WE WILL restore, to the extent requested by the Union, all
terms and conditions of employment which were in effect as
of August 12, 1992, before the unilateral changes were made,
as embodied in the collective-bargaining agreement.
WE WILL make whole our employees for any losses they
may have suffered because of our changes in terms and con-
ditions of employment, with interest on any monetary losses
they may have suffered.
WE WILL make whole all fringe benefit funds for any
losses they may have suffered as a result of our unilateral
modification of terms and conditions of the collective-bar-
gaining agreement.
VIRGINIA CONCRETE COMPANY, INC.