Aggregate Industries US

National Labor Relations Board - Administrative Judge Opinions

Jun 6, 2011

28-CA-023220 (N.L.R.B. Jun. 6, 2011)

JD(SF)-13-11
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
AGGREGATE INDUSTRIES
and Cases 28-CA-23220
28-CA-23250
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS,
LOCAL 631, affiliated with INTERNATIONAL,
BROTHERHOOD OF TEAMSTERS
John Giannopoulos, Esq. and Pablo A. Godoy, Esq.,
of Las Vegas, Nevada, for the General Counsel.
James T. Winkler, Esq. (Littler, Mendelson, P.C.)
of Las Vegas, Nevada, for the Respondent.
Richard G. McCracken, Esq. (McCracken, Stemerman &
Holsberry) and Patrick Domholdt, Esq.,
of Las Vegas, Nevada, for the Charging Party.
DECISION
Statement of the Case
Burton Litvack: Administrative Law Judge. The unfair labor practice charge in Case
28-CA-23220 was filed by Teamsters, Chauffeurs, Warehousemen and Helpers, Local 631,
affiliated with International Brotherhood of Teamsters, herein called the Union, on
October 13, 2010. The original and first amended unfair labor practice charges in Case 28-CA-
23250 were filed by the Union on November 9 and December 22, 2010, respectively. After
investigations, on December 29, 2010, the Acting Regional Director for Region 28 of the
National Labor Relations Board, herein called the Board, issued a consolidated complaint,
alleging that Aggregate Industries, herein called Respondent, engaged in, and continues to
engage in, acts and conduct violative of Section 8(a)(1) and (5) of the National Labor Relations
Act, herein called the Act. Respondent timely filed an answer, denying the commission of the
alleged unfair labor practices and asserting certain affirmative defenses. Based upon a notice
of hearing, on February 15 through 17, 2011, a trial on the merits of the alleged unfair labor
practices was conducted before the above-named administrative law judge in Las Vegas,
Nevada. At the said hearing, all parties were afforded the opportunity to call witnesses on their
respective behalves, to cross-examine witnesses, to offer into the record relevant documentary
evidence, to argue legal positions orally, and to file post-hearing briefs. Each party filed a post-
hearing brief, and each brief has been carefully considered. Accordingly, based upon the entire
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record herein,1 including the post-hearing briefs and my observations of the credibility of the
several witnesses, I make the following:
FINDINGS OF FACT
I. Jurisdiction
At all times material herein, Respondent, a State of Delaware corporation, with offices
and places of business in various states of the United States, including offices and facilities
located in Las Vegas, Nevada, has engaged in the business of producing construction
materials. During the 12-month period ending October 13, 2010, in conducting its business
operations described above, Respondent, through subsidiary corporations, purchased and
received, at its Las Vegas, Nevada facilities, goods and materials, valued in excess of
$50,000,,directly from suppliers located outside the State of Nevada. Respondent admits that,
at all times material herein, it has been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
Respondent admits that, at all times material herein, the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
III. The Issues
The consolidated complaint alleges that Respondent changed the scope of the work of
its so-called construction bargaining unit employees by moving delivery of materials work form
the construction bargaining unit employees to its ready-mix bargaining unit employees; that
Respondent changed the terms and conditions of employment of construction bargaining unit
employees by requiring them to work under the terms of its ready-mix collective-bargaining
agreement; that Respondent the terms and conditions of employment of two sweeper driver
employees by moving the work of the sweeper drivers from the terms and conditions of its
construction collective-bargaining agreement to the terms and conditions of its Laborers’
collective-bargaining agreement; that Respondent changed the scope of the work of its
construction bargaining unit employees by removing mechanical sweeper driving work form the
construction bargaining unit and assigning such work to the bargaining unit covered by the
Laborers’ collective-bargaining agreement; and that Respondent violated Section 8(a)(1) and (5)
of the Act by engaging in the aforementioned acts and conduct without prior notice to the Union
and without affording the Union an opportunity to bargain with it concerning said acts and
conduct or the effects of said acts and conduct on the construction bargaining unit employees.
The consolidated complaint further alleges that Respondent engaged in acts and conduct
violative of Section 8(a)(1) and (5) of the Act by bypassing the Union and dealing directly with its
construction bargaining unit employees by meeting with its said employees for the purpose of
changing their terms and conditions of employment and requiring said employees to agree in
writing to the terms and conditions of employment of its ready-mix collective-bargaining
agreement as a condition of continuing to be employed by Respondent; by denying employment
opportunities to construction bargaining unit employees who refused to agree to work under the
terms and conditions of its ready-mix collective-bargaining agreement; and by dealing directly
with sweeper drivers for the purpose of changing the terms and conditions of their employment
by Respondent.

1 I grant counsel for the Acting General Counsel’s motion to correct the record.
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In addition to generally denying the commission of any of the above-alleged unfair labor
practices, Respondent affirmatively alleges that the allegations of the consolidated complaint
are barred by Section 10(b) of the Act; that Respondent’s actions are privileged by the most-
favored nations clause of its ready-mix collective-bargaining agreement; that Respondent’s Las
Vegas area subsidiary corporations have, at all times material herein, constituted a single
employer and that there exists one bargaining unit covering two collective-bargaining
agreements with the Union; and that the actions of Respondent with regard to its sweeper
drivers involve a jurisdictional work dispute which is not subject to unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act.
IV. The Alleged Unfair Labor Practices
The Material Haul Drivers
Respondent, a State of Delaware corporation, is a subsidiary of the Holcim Group, a
Switzerland-based company, which, through subsidiary companies located throughout the
world, is engaged in business as a manufacturer and supplier of construction industry building
supplies including ready-mix concrete and rock, sand, and gravel aggregates. The record
establishes that, commencing in 2003, Respondent began operating in the Las Vegas, Nevada
area by purchasing existing companies, who were engaged in business in different segments of
the building and construction industry. Thus, in November of said year, Respondent purchased
the business of Southern Nevada Paving, Inc., herein called SNP, a State of Nevada
corporation, which, for several years, had been engaged in the building and construction
industry as an excavation, paving, and grading contractor on private road and large building
projects such as shopping centers, hotels, and casinos. Subsequent to the acquisition, until
2010, while a corporate subsidiary of Respondent, SNP continued to operate as a legal entity
under its same name, performing the same work with the same work force. Then, in May 2004,
Respondent purchased the business of Frehner Construction Company, Inc., herein called
Frehner, a State of Nevada corporation, which, since 1970, had been engaged as a general
contractor on large public works construction projects such as highways, bridges, and dams.
Thereafter, until 2010, while a corporate subsidiary of Respondent, Frehner continued to
operate as a legal entity under its own name, performing the same work in the building and
construction industry. At the time of the purchase and continuing thereafter, Frehner owned a
50 percent interest in a quarry located in Sloan, Nevada; the other half interest in the quarry,
herein called the Sloan Quarry, was, and continues to be, owned by Aggregate Industries--
WCR, a State of Colorado corporation. At the Sloan Quarry, the owners mine aggregate
materials, processing the rock through various crusher machines in order to create different
sizes of aggregates for sale. Also in May 2004, Respondent, which owned the corporate name
Regal Materials, purchased two Las Vegas area business entities, Regency Ready-Mix, a
ready-mix concrete manufacturer, and Bradstone Pavers, which manufactured decorative
pavers and blocks for driveways, roads, and highways, combined both under the corporate
name, Regal Materials, and began engaging in the ready-mix concrete business under the
fictitious name, Regal Ready-Mix. At the time of purchase, Regal Materials, Inc. d/b/a Regal
Ready-Mix, herein called Regal, operated only one Las Vegas area ready-mix concrete
production facility, termed a batch plant, which was located in Summerlin, and employed
approximately 18 full time and regular part-time ready-mix concrete delivery drivers and
mechanics. In 2006, the Union was victorious in a representation election amongst Regal’s
drivers and mechanics and was certified as their exclusive representative for purposes of
collective bargaining. In late 2007, after a year of contract bargaining between the parties,
Regal’s bargaining unit employees filed a decertification petition, and after a decertification
election, the Board again certified the Union as the exclusive bargaining representative of
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Regal’s employees in the same bargaining unit.2 Subsequently, in early February 2008, while
retaining its delivery trucks, Regal closed its Summerlin batch plant and laid off its ready-mix
concrete drivers and mechanics; however, in March or April, Respondent reconsidered its
earlier actions, decided to become a competitor in the Las Vegas area ready-mix concrete
business, reopened its Summerlin batch plant, and began construction of two other batch
plants-- one on the grounds of the Sloan Quarry and another in North Las Vegas, known as the
Delhi batch plant. Thereafter, until 2010, Respondent operated its Las Vegas area ready-mix
concrete business under the name, Regal Materials, Inc. d/b/a Southern Nevada Ready-Mix,
herein called SNRM. The record further establishes that, while, through August 2010,
Respondent wholly owned SNP, Frehner, and SNRM, Sean Stewart worked as the general
counsel of each business entity, Steve Jensen was the human resources director for each, and
there was an “overlap” of supervision on identical work performed by SNP and Frehner, each
was held out as a separate business entity, negotiating collective-bargaining agreements with
the Union and bidding for and performing work in the Las Vegas area building and construction
industry under its own name. Then, on or about August 7, 2010, Respondent merged SNP and
Regal into Frehner and, on the same date, renamed the business Aggregate Industries-- SWR,
Inc.3 In this regard, while subsequent to the merger, Respondent replaced the names on its
equipment with Aggregate Industries--SWR and bargained with the Union under the latter
name, at least through the start of the hearing, Respondent’s website continued to list SNP,
Frehner, and SNRM, by name, as separate divisions of Aggregate Industries—SWR,
Respondent retained the names, SNP, Frehner, and SNRM as fictitious company names, and
Sean Stewart4 admitted that, prior to the merger, he informed the Union that, thereafter,
Aggregate Industries-- SWR would continue to exist as “. . . separate divisions that would
operate construction and operate ready-mix . . . .”
The record establishes that the Union has had a long history of representing certain
employees of both Frehner and SNP pursuant to the terms of successive construction master
labor agreements between the Union and Nevada Contractors Association and Associated
General Contractors, herein called AGC. Thus, through 2010, Frehner and SNP were each
members of the AGC, which negotiates collective-bargaining agreements on behalf of its
members with the Union and other unions, including the Operating Engineers Union and the
Laborers Union, and, thereby, parties to the aforementioned successive collective-bargaining
agreements,5 the most recent of which, herein called the Construction Agreement, was effective

2 There is no dispute that the decertification petition and the subsequent certification
involved the ready-mix delivery drivers and mechanics, who were based at Regal’s Summerlin
plant.
3 Apparently, the merger was an aspect of Respondent’s nation-wide plan to limit the
number of affiliated corporations and to make its business enterprise more manageable.
4 Under initial questioning by counsel for the Acting General Counsel, Stewart denied that
Respondent continues to hold Aggregate Industries-- SWR as operating as three separate
divisions.
5 Apparently, on occasion, Frehner would execute a proxy for AGC to represent it during
contract negotiations with the Union and be bound to the master labor agreement. On other
occasions, Frehner would withdraw its proxy and, by itself, negotiate a collective-bargaining
agreement with the Union, the terms of which would be virtually identical to the master labor
agreement.
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from July 1, 2007 through June 30, 2010.6 Two months prior to the start of negotiations for a
successor Construction Agreement, in June 2010, SNP and Frehner each withdrew its proxy
from the AGC to represent it during bargaining and, after the Union demanded to bargain with
both companies, each commenced bargaining with the Union along with the AGC but on a
separate basis.7 However, subsequent to August 7, SNP and Frehner continued negotiating
with the Union but under the new corporate name, Aggregate Industries-- SWR. Basically, the
Union represents each signatory employer’s material haul dump and transit truck drivers, water
and fuel truck drivers, forklift drivers, off road equipment drivers, sweeper truck drivers
employed by the signatory contractors8 and covers both on-site and off-site work by the
bargaining unit employees of each signatory contractor.9
At some point in early 2008, following the Union’s certification as the exclusive
bargaining representative of Regal’s drivers and mechanics and the latter’s layoff of its
bargaining unit employees and closure of its Summerlin facility and upon becoming aware that
Regal was considering reopening its existing batch plant and constructing two others,
representatives of the Union approached Regal, and the parties commenced discussions on
Regal’s future plans.10 Then, when the latter reopened its Summerlin batch plant, their
discussions morphed into negotiations for a collective-bargaining agreement. Wayne King, the
secretary/treasurer, Dewaine (Dewey) Darr, a business agent, and an attorney primarily

6 In part, Article 3 of the Construction Agreement states:
It is further agreed and understood that employees covered by this Agreement shall
continue to be assigned all work which they have historically or customarily been
assigned by the Employer to perform. The Employer agrees that such work
assignments under this Agreement are to be awarded to employees under this
Agreement as opposed to any other represented or unrepresented employees of the
Employer and that if there is any dispute or claim raised by any other employees of the
Employer as to such work assignments, the Employer agrees to assign the work to the
employees covered by this Agreement.
Article 43 of said agreement is entitled “Supplemental Agreements” and states “Supplemental
Agreements may be negotiated covering Signatory Employers engaged in commercial sand and
gravel operations to allow for competitive wage/fringe amounts prevailing in that industry . . . .”
Dana Wiggins, a former director of labor relations for AGC, testified that said provision “. . .
gives the contractor the right to negotiate a rock, sand , and gravel agreement for his trucking so
he’s not competing against people at a lesser rate.”
7 Frehner and SNP made initial contract proposals to the Union, which, among other
requests, would have decreased wage rates significantly.
8 Frehner did not employ drivers, who transported materials to its jobsites and, instead,
relied upon SNP material haul drivers or drivers of outside vendors to deliver construction
material to its jobsites. On the other hand, SNP employed a complement of approximately 60
material haul drivers, who operated such equipment as 10-wheel dump trucks, double belly
dump trucks, double side dump trucks, and end dump trucks, to deliver construction materials to
its jobsites. Neither company employed drivers, who drove ready-mix concrete delivery trucks.
9 The record establishes that the Construction Agreement bargaining unit material haul
drivers deliver aggregates and other materials, including asphalt, from quarries to construction
sites, drive dump trucks on construction sites, and haul trash from construction sites to dump
sites.
10 At some point during the bargaining, Regal informed the Union that it would thereafter be
known as SNRM, and I shall refer to said entity as SNRM hereinafter.
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represented the Union during bargaining, and representing SNRM were Stewart, Jensen, and
Pat Ward, Respondent’s regional president. At the time, the Union had existing collective-
bargaining agreements with two other ready-mix concrete manufacturers, Nevada Ready-Mix
and Rinker Materials, which, in 2007, was purchased by Cemex, and Darr informed SNRM that
the Union desired the collective-bargaining agreement with SNRM to “. . . mostly . . . mirror the
other two contracts . . . .” According to Stewart, there were three distinct aspects to the
bargaining-- the ready-mix concrete delivery drivers, who had been laid off from the Summerlin
plant prior to the contract negotiations and rehired during the discussions,11 nine off-road
equipment operators who were employed by Frehner at the Sloan Quarry and working under
the terms and conditions of employment set forth in the Construction Agreement, and the
hauling of aggregate materials. As to the ready-mix concrete delivery drivers, the record
evidence is that the parties eventually agreed upon terms and conditions of employment
virtually identical to those of the Union’s collective-bargaining agreements with Nevada Ready-
Mix and Cemex, memorializing them in a collective-bargaining agreement, herein called the
Ready-Mix Agreement,12 effective from July 1, 2008 through May 31, 2012. Regarding the nine
Frehner employees, who worked under the terms of the Construction Agreement at the Sloan
Quarry, the record discloses that three drove water trucks and water pulls and six operated
large rock hauling vehicles, which hauled material around the site and “the farthest they would
go would be ready-mix plants that are set up within a mile where they don’t have to go on main
roads;”13 that SMRM wanted them to be covered under its contract with the Union rather than
Frehner’s collective-bargaining agreement with the Union; that the Union viewed SNRM’s
request as reasonable as the latter was going to assume responsibility for operating the quarry,
and that the parties eventually entered into a Memorandum of Understanding, agreeing that the
nine employees would thereafter work for SNRM under the terms of its contract with the Union
with implementation delayed until January 2009.14
The third aspect of the parties’ bargaining is most relevant to the instant matters and a
point of contention between them. While agreeing to accept almost all of the terms and
conditions of employment of the Nevada Ready-Mix and Cemex collective-bargaining
agreements demanded by the Union, SNRM insisted that the Appendix A of said agreements
also be incorporated in the parties’ eventual collective-bargaining agreement. Said appendices
set forth wage rates for ten classifications of bargaining unit employees including, transport
driver (bulk) and transport driver (S&G), the latter of which covers aggregates material haul

11 At the time and through August 2010, SNRM employed no material haul drivers. When
SNRM reopened its Summerlin plant and began production at its Delhi batch plant, it utilized
SNP’s material haul drivers to transport material from the Sloan Quarry to the said batch plants.
12 At the hearing, witnesses and attorneys referred to this agreement as the Ready-Mix
Agreement or the Rock, Sand, and Gravel Agreement. I shall refer to it as the former.
13 Three ready-mix concrete batch plants, including that owned by SNRM, are located within
a mile of the quarry.
14 The Union’s new administration, which assumed office in January 2009, initially
challenged the implementation of the parties’ agreement on the nine employees but, upon
becoming aware of the terms of the Memorandum of Understanding, withdrew its objections.
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drivers,15 and a similar appendix were eventually included in the parties’ Ready-Mix
Agreement.16 According to Darr, fully cognizant that SNRM did not own any aggregate
transport trucks but, rather, utilized SNP’s equipment17 and drivers18 for material hauls, Union
representatives asked why the company was insisting upon inclusion of the transport driver
(S&G) classification in the collective-bargaining agreement, and Ward replied “. . . that, if we
needed equipment for the ready-mix, we would obtain [trucks] through Colorado . . . . and that
would be ready-mix trucks and material trucks.” Stewart testified that, in response to Darr’s
question, the parties actually “. . . discussed . . . how we would truck materials under the
[Ready-mix] Agreement. . . . We weren’t sure how to do it. We had construction trucks doing
both. . . . The same guy was doing . . . material deliveries” to batch plants and working on
construction sites, and “. . . we needed the flexibility to be competitive and we delivered
materials. We tried to figure out how to do that at that time.” Darr testified that he responded,
mentioning that, during visits to the Sloan Quarry, he noticed between10 to 15 SNP ‘non-
utilized” trucks always parked daily and asking Ward “. . . if he had extra [SNP] trucks, why
wouldn’t you just paint them [SNRM] and . . . utilize those trucks as you plant haul, why would
you be using construction trucks to haul your material into all three of your plants at construction
wages.” Stewart testified that Darr went further, saying “`. . . you’ll have an advantage because
you’ll be able to truck your materials under the [ready-mix collective-bargaining agreement].’”
While Darr insisted that he referred only to plant hauls (material hauls from the Sloan Quarry to
SNRM’s batch plants), Stewart recalled Darr saying “it would have been our plant hauls and
then materials that we made at Sloan Quarry that we sold both to outside customers, internal
customers, ourselves and to other ready-mix customers.”19 While he specifically denied stating

15 The record establishes that material haul drivers, employed by ready-mix concrete
companies, deliver aggregates, in the form of so-called plant mix, from quarries to batch plants,
deliver aggregates, of various sizes, to construction projects under subcontract arrangement
with contractors signatory to the Construction Agreement, and, pursuant to retail sales
agreements, deliver aggregates to customers on construction sites or elsewhere. In this regard,
Larry Miller, the corporate administrator for Nevada Ready-Mix Corporation, testified that his
company owns a quarry site at which it mines, crushes, screens, and washes concrete
aggregates and other building materials, and “we haul the material ourselves . . .” to customers
on construction sites or ready-mix concrete batch plants in dump trucks, transfer trucks, and
other road haul trucks.
16 Analysis of Article 34 of the Construction Agreement and Appendix A discloses that,
effective July 1, 2009, the wage rates for construction material haul drivers ranged between
$30.29 and $31.28 per hour, while ready-mix material haul drivers were paid either $24.50 or
$23 per hour.
17 While “primarily” engaged in paving and excavation operations, SNP also was in the
business of hauling aggregate materials around the Las Vegas area. In doing so, SNP utilized
so-called “dual use trucks,” with the same equipment being used on jobsites and for material
hauls.
18 In using SNP’s drivers for its material hauls, SNRM was required to pay Construction
Agreement wage rates.
19 Stewart testified, “. . . Dewey said specifically to me . . . that they would be able to transfer
the Sloan Quarry to the Ready-Mix and that also we’d be able to run material trucks under
SNRM. Now, he did have the stipulation that if we did that, we would have to change the name
on the door so there was a distinction between SNP trucks and SNRM trucks. And we
discussed that in detail and it wasn’t something that we were willing to do at that point . . . .”
The record reveals that, unlike Nevada Ready-Mix, SNRM did not own or produce its own
aggregate for its ready-mix concrete business.
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that, after Respondent transferred material haul trucks from SNP to SNRM, the latter would be
able to haul aggregate materials to construction projects at ready-mix agreement wage rates,
Darr later contradicted himself. Thus, after noting that Nevada Ready-Mix and Cemex drivers
haul aggregates to jobsites on a subcontract basis and for direct retail sales, he conceded that
“what [SNRM] did with their trucks that had to [have] SNRM on them was up to them . . . . [the
trucks] had to say SNRM on them to haul plant mix but they were allowed to use those trucks
just like [Cemex] and [Nevada] Ready-Mix. It was never our intent to stop that.”20 In any event,
Stewart testified that he responded to Darr that the latter’s suggestion was not feasible at the
time because SNP was utilizing its trucks on construction for four days a week and for material
hauling just one day a week-- “my heartburn was we weren’t ready to take [such a step].” Thus,
following Darr’s suggestion, “we would’ve had to have taken the SNP truck, relicensed it,
registered it under [Regal] . . . so that we could put SNRM on the door. In addition, we would’ve
had to . . . laid off the driver . . . and redispatched him under the [ready-mix] list . . . .”21 Finally,
asked whether, during the 2008 negotiations,22 Darr referred to trucks or people, Stewart

20 There does not seem to be any dispute that material haul drivers, employed by a
signatory to a ready-mix agreement, may haul aggregates to a job site whether on a subcontract
basis for a Construction Agreement contractor or on a direct retail sale basis to a Construction
Agreement contractor. In such a circumstance, the driver must drop his load at a designated
stockpile site. If delivering to a job site on a subcontract basis, a ready-mix agreement signatory
must pay its material haul drivers at the prevailing or Construction Agreement wage rate; while,
if doing so on a retail sale basis, the contractor may pay its drivers at the ready-mix agreement
wage rate. Finally, on either basis, if the material haul driver is utilized for work on the job site
(for example, delivering aggregates from the stockpile to the work site), he or she must be paid
at the Construction Agreement wage rate.
21 Stewart testified that Darr told the SNRM negotiators that, after the foregoing steps,
pursuant to the Construction Agreement rules, a truck could no longer be utilized for
construction work if no ready-mix work was available. Indeed, Article 4 of said agreement sets
restrictions on the use of non-signatory contractors for material hauling work-- the signatory
contractor must have utilized all of its equipment and no other signatory contractors have
available equipment.
22 Respondent contends that Darr, on behalf of the Union, agreed that, by entering into the
Ready-Mix agreement, Respondent would have the right to transport aggregates from the Sloan
Quarry to construction sites just as Cemex and Nevada Ready-Mix did, and to pay its material
haul drivers at the Ready-Mix Agreement wage rate for doing so. In this regard, I note that, in
2008, SNRM did not employ any material haul drivers and did not own its own rock. Moreover,
if such an agreement was reached, the parties failed to enter into a Memorandum of
Understanding, memorializing their said agreement. In this regard, Sean Stewart testified that
there was no such document as “we were not willing to commit to transferring material driver
trucks at that time because of the type of work that we were doing. So there was no definite
date set for any transfer [of] material drivers,” Further, when asked why Respondent failed to
implement the Union’s agreement at any time after July 2008, Stewart testified that there were
two reasons. First, in 2008, SNP had a great deal of construction work, and its trucks were “. . .
tied up on projects.” Next, the Union was specific that, if SNRM was going to operate material
haul trucks, its logo would have to be on the doors of the vehicles-- “So that would have
required us to take assets that were busy on construction sites and put new names on the doors
and send them out with [SNRM],” and doing so would have been “silly.”
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conceded that the former “. . . was talking about trucks . . . about assets” and that he knew that
if SNRM wanted drivers for its trucks, it was required to seek dispatches from the Union.23
SNRM and the Union completed negotiations and entered into their Ready-Mix
Agreement on July 11, 2008, and from that date until the merger of SNP, SNRM, and Frehner in
August 2010,24 SNRM owned and operated only ready-mix concrete delivery trucks from its
three batch plants and employed drivers and mechanics under the terms of its aforementioned
collective-bargaining agreement with the Union.25 For deliveries of aggregate materials from
the Sloan Quarry to its three batch plants or to retail purchasers of its aggregates, SNRM
continued to utilize SNP’s material haul trucks and drivers, who were paid pursuant to the terms
of the Construction Agreement. The record establishes that SNP’s and Frehner’s combined
construction revenues began declining in 2009; such revenues had been approximately
$350,000,000 in that year and were projected to be only $120,000,000 in 2010. Conversely, as
a consequence of its expansion in operations during 2008 and 2009, SNRM’s revenues
substantially increased. Also, according to Sean Stewart, two business developments occurred
during the summer of 2010, which necessitated changes in its material hauling operations.
First, two major construction projects were scheduled to end in or about September, and
Respondent anticipated that “. . . a substantial number of trucks would be returning to Las
Vegas that had been dedicated to those projects.” Such meant that Respondent “. . . would
have to find a way to use [the trucks] delivering materials or selling materials . . . .” Fortuitously,
Stewart testified, in June 2010, Cemex, which purchased all of its aggregates from the Sloan
Quarry and utilized its own trucks and drivers to haul said material to its local batch plants,
approached Respondent “. . . about the possibility of not only making the material for them but
delivering [the aggregate] to their [batch] plants, which for us was a good idea since they’re one
of our major competitors.” Stewart estimated that SNRM would need 15 to 20 trucks to deliver
the aggregate material for Cemex to the latter’s ready-mix concrete manufacturing facilities.
In the foregoing circumstances (on-going negotiations between the Union and SNP and
Frehner for a successor to their Construction Agreement, the possible parking of several
material haul trucks, a decline in Respondent’s construction business offset by an increase in its
ready-mix concrete business possibly aided by gaining work for Cemex, and the pending

23 As set forth above, whatever agreement may have been reached by the parties regarding
any transfer of trucks from SNP to SNRM, the transfer of the material haul drivers to coverage
under the Ready-Mix Agreement, and the usage of the material haul drivers, it is clear that the
parties failed to draft a memorandum of understanding on the issues. Thus, Stewart admitted
that “other than the [language of the Ready-Mix Agreement], there is nothing” in writing,
permitting Respondent to transfer drivers from coverage under the Construction Agreement to
coverage under the Ready-Mix Agreement.
24 The record evidence is that, between July 2008 and August 2010, SNP, Frehner, and
SNRM each had stable workforces, with SNP’s and Frehner’s employees being dispatched to
work for said employers by the Union pursuant to the terms of the Construction Agreement and
SNRM’s employees being dispatched to it by the Union pursuant to the terms of the Ready-Mix
Agreement.
25 In January 2009, a new administrative assumed the governing positions of the Union.
Thus, the secretary-treasurer was John Phillipenas, Wayne Dey became the business agent
responsible for servicing the Construction Agreement, and Johnny Gonzalez became the
business agent in charge of servicing the ready-mix agreements with Nevada Ready-Mix,
Cemex, and SNRM.
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merger of Frehner, SNP, and SNRM), on July 9, 2010,26 Wayne Dey, the Union’s business
agent, telephoned Stewart27 and asked whether he could come to the latter’s offices to discuss
a possible grievance situation.28 Upon arriving, Dey was met by Stewart29 and five of
Respondent’s managers. After discussing the incident, which involved the grievance, one of the
managers raised “. . . the issue we had with the trucks coming back . . . and the fact that we did
not anticipate a very good year in construction . . . .” Then, Stewart explained that Respondent
was undertaking a corporate “reorganization” and gave to Dey “a kind of timeframe.”
Continuing, Stewart told Dey “. . . that we were moving to Aggregate Industries as a name and
we would have separate divisions that would operate construction and operate ready-mix and
rock, sand, and gravel but it would be under one name.” Then, Stewart asked Dey if the latter
was aware that Respondent was signatory to a ready-mix collective-bargaining agreement, and
Dey said he “did know” Respondent was a ready-mix signatory. Stewart then “. . . told him that
we were planning to move the trucks that we were bringing back to town under the [Ready-Mix]
Agreement” and that “. . . we wanted to do all of our material hauls under the [Ready-Mix
Agreement]. We understand there’s going to be jobs for onsite work, and we’re willing to keep a
group of trucks for that. That’s when we got into a discussion where Wayne said that’s hard to
do because if you need more in a day, you can’t just transfer a driver back and forth.” Dey also
said that he had “anticipated” Respondent would like to operate its material haul trucks under
that agreement, and that “. . . he didn’t think there was anything he could do to stop that.”
According to Stewart, he and Dey next discussed SNP’s material haul drivers, who had returned
with the material haul trucks, and Respondent’s intent to move the drivers from the Construction
Agreement to the Ready-Mix Agreement,30 and “I asked Wayne if there’s any way that we can
keep our same drivers . . . . Wayne informed me that there was no call by name out of the
[hiring halls] anymore so it’d be impossible for us to call them out by name.”31 Also, Dey told
Stewart that he did not think Johnny Gonzalez, the business agent, who operated the ready-mix
driver hiring hall dispatch list, would permit construction drivers to “jump” over other ready-mix
drivers on the ready-mix driver out-of-work list and that he needed to speak to Gonzalez.
Finally, Dey suggested we look at how Cemex does it, where Cemex has everyone under the
[ready-mix] collective-bargaining agreement, and, if the company does construction work, they
have to pay a higher rate. Finally, Stewart testified that Dey’s “. . . concern was he didn’t think

26 The record establishes that, as of July 2010, other than the nine quarry drivers, SNRM
employed 20 ready-mix concrete drivers who hauled ready-mix from batch plants to customers
in large bubble trucks; Frehner employed no truck drivers; and SNP employed approximately 60
material haul drivers, water truck drivers, and sweeper truck drivers.
27 The following account of the meeting, and, indeed, of all the conversations and meetings
thereafter is taken from the uncontroverted testimony of Sean Stewart. Neither counsel for the
Acting General Counsel called Wayne Dey as a witness during the hearing.
28 Dey asserted that SNP appeared to be using a third party for material deliveries when
some of its equipment was parked.
29 While aware of Dey’s reason for desiring to meet, Stewart testified that his intent was “. . .
we wanted to start doing all of our material hauls that we had done previously under the
construction agreement under the [ready-mix} agreement.”
30 This was the first time Respondent had informed the Union of its plan to move the
material haul drivers from SNP and representation under the Construction Agreement to SNRM
and representation under the Ready-Mix Agreement.
31 Under the Union’s administration prior to January 2009, call-by-names from the Union’s
hiring halls was permitted. The new administration discontinued this hiring hall procedure.
Thus, all dispatches were done in seniority order.
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there was any way to take drivers who had been driving . . . under construction and move [them]
to ready-mix.”32
Stewart testified that there was no further contact between Respondent and the Union
on the subject of the material haul drivers until August 1333 when, on said date, Wayne Dey
telephoned him and said “. . . we’re going to have to object to [Respondent’s stated intent to
move its material haul drivers from coverage under the Construction Agreement to coverage
under the Ready-Mix Agreement]. The attorney had looked into it, and we’re going to object to
it. I said, so we’re not going to be able to keep our own drivers, we’re going to have to lay them
off. He said, no, you’re not going to be able to transfer trucks because that work has always
customarily been done under the Construction Agreement.”34 After speaking to Dey, Stewart
drafted the following letter, and sent it to the Union by facsimile:
As discussed with the Union in prior meetings, Aggregate Industries is
reorganizing its business structure in the Las Vegas area. As part of the reorganization,
[SNP and Regal are being merged into Frehner, and Frehner’s name will be changed to
Aggregate Industries—SWR, Inc.
In conjunction with the name changes, Aggregate Industries—SWR, Inc. will be
adjusting the size and application of its trucking fleet to meet market demand. Material
hauls for the company will be performed by Teamster employees under the rules and
regulations of the [Ready-Mix Agreement]. The contracting division will continue to
utilize teamsters under the Construction [Agreement] for on site material hauls, water
trucks, and equipment transfers.
Two days later, by letter, Wayne Dey responded to Stewart, writing that “the delivery of
materials to job sites . . . must continue to be done under the construction agreement. Material
deliveries to job sites have historically been performed only under the construction agreement.
This is part of the bargaining unit work under the construction agreement and may not be done
under any other agreement.”
Stewart further testified that, for the next 21 days, he and Dey exchanged several letters
concerning the material haul drivers, “and we had come to a stalemate that the Union was not
going to allow us to lay off drivers and rehire them” after dispatch from the Union. Then, on
September 24, Respondent, by facsimile, submitted a dispatch request to the Union for 64
drivers in four job classifications (22 transfer drivers, 20 double belly drivers, 12 double-side

32 According to Stewart, his discussion with Dey, regarding retaining SNP’s existing material
haul drivers but placing them under the terms and conditions of employment of the Ready-Mix
Agreement, was about not having to go through the process of laying them off and then hiring
them after dispatch from the Union’s hiring hall. Asked whether, during his meeting with Dey,
they discussed merely transferring the material haul drivers from the Construction Agreement
bargaining unit to the Ready-Mix Agreement bargaining unit, Stewart responded, “No, no, not at
all.” What Stewart wanted was to be able to call for the drivers “by name” from the Union’s
ready-mix drivers hiring hall, “. . . but I knew that the procedure had changed and I was asking
Wayne if there’s any way to get around it so we could keep our same drivers.”
33 According to Stewart, at this point, “we hadn’t talked to the drivers at all . . . . We had just
talked to Wayne about [transferring] trucks to [ready-mix] and we wanted to man them with our
existing drivers . . . .”
34 Stewart denied ever stating to Dey that Respondent would just transfer the material haul
drivers from one bargaining unit to the other, thereby bypassing the hiring hall procedure of the
collective-bargaining agreements.
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dump drivers, and 10 end dump drivers) covered under the terms of the Ready-Mix Agreement.
The Union failed to act upon Respondent’s dispatch request, and, two days later, on September
26, Stewart and Dey spoke, with Stewart asking “. . . if we were going to get drivers, and [Dey]
said, no, there would be no drivers coming from the hall” inasmuch as “. . . he didn’t agree that
we had the right to transfer the trucks and the work under the {Ready-Mix] collective-bargaining
agreement.” That same day, pursuant to Article 3 of the Ready-Mix Agreement, which permits a
signatory employer to procure employees from other sources if the Union fails to dispatch
workers, Respondent “. . . started to look for outside sources to fill our trucks. . . . We put an
advertisement in the newspaper.” Also, “. . . we put the word out on the street” and solicited
company employees as to whether they knew anyone looking for material haul work. The next
day, September 27, by facsimile, Stewart sent a letter to the Union, disagreeing with the latter’s
view “. . . that delivery of materials had always been covered under the construction contract.”
Continuing, Stewart asserted that a signatory contractor to the Construction Agreement always
has a “freedom of choice in the purchase of materials and that, during bargaining for the Ready-
Mix Agreement,
[T]he Union agreed that, in order for [Respondent] to remain competitive in the
materials business, [Respondent] had to be allowed to compete under the same terms
and conditions as other competitors who were signatory to a [ready-mix] agreement. . . .
In June of 2008, [the Union and Respondent] entered into a [ready-mix]
agreement which covers, among other things, the delivery of materials. At the time of
signing, [the Union] encouraged [Respondent] to transfer trucks to the [ready-mix]
division so that [Respondent] could compete directly with other signatory material
suppliers. At that time, [Respondent’s] construction divisions were so busy that the
trucks were needed for construction work on site more than they were needed for
material deliveries from the commercial plant. As a result, [Respondent] chose not to
immediately make changes but to wait for a more appropriate time.
[The Union] was aware of [Respondent’s] plans to reclassify work under the
current Teamsters labor agreement, and, in fact, [the Union] assisted [Respondent] in
the process of doing so. In late December of 2008 and early January of 2009
[Respondent] transferred all Teamster workers at its commercial site from the
construction agreement to the [ready-mix] agreement. Prior to the change, [the Union’s]
representatives met with the affected drivers and explained the need and reasoning
behind the changes. . . .
The next day, September 28, Stewart and other managers for Respondent met with
Union officials including Dey and its attorney. Stewart testified that the discussion during the
meeting that day was “. . . whether or not we had the right to move trucks and call for drivers
under the [Ready-Mix Agreement]. Both parties were pretty entrenched in their position[s].” He
added that “the meeting was very heated and very short. There was no discussion on how we
would [gain the dispatch of drivers] or if we would do it.” At one point, a company representative
raised the possibility that Respondent could no longer afford to continue operating its material
haul trucks under the Construction Agreement, and “. . . we discussed the possibility of
downsizing . . . .” According to Stewart, at the end of the meeting, “. . . as we were leaving . . .
their attorney asked the parties if we’d ever discussed a transition rate . . . . We said we hadn’t;
they said we hadn’t, and so we were both supposed to go home and think about it.” Shortly
after the conclusion of the above meeting, assertedly taking the Union attorney’s remark as a
suggestion, Stewart drafted Acting General Counsel’s Exhibit No. 26, entitled “Proposal for
Existing Drivers interested in Transferring to Active Agreement,” in which he set forth a proposal
for any SNP material haul driver who was interested in continuing to work for Aggregate
Industries--SWR after Monday, October 4, 2010 under the terns and conditions of employment
of the Ready-Mix Agreement. Under said proposal, a material haul driver would be paid a
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$27.83 hourly wage rate between October 4 and December 31, 2010, a $24.50 hourly wage
rate from January 1 through March 31, 2011, and a wage rate commensurate with the Ready-
Mix Agreement wage rate after April 1, 2011. In addition, Respondent proposed that each
material haul driver would receive the latter agreement’s benefits package after
October 4, 2010.
Two days later, on September 30, Stewart telephoned Dey and asked “. . . if we were
going to have a chance to get together and talk about transition rates. Wayne indicated that he
had nothing for me and that the Union wouldn’t be putting together transition rates.”
Nevertheless, Stewart asked Dey to come to Respondent’s offices and pick up a copy of the
former’s draft proposal. Later that day, Dey did come to Respondent’s offices and “. . .
[reiterated that] the Union didn’t have any proposal for us and I asked him to . . . give [the draft]
to the driver[s at a] meeting that night and he said he would.” Subsequently, Dey telephoned
Stewart and told him that Respondent’s transition proposal was unacceptable and then warned
Stewart that, if Respondent implemented it, “. . . we would have a fight on our hands . . . .”35
With the parties unable to reach agreement on Respondent’s desire to have its material
haul drivers working within the former SNRM bargaining unit and under the terms and
conditions of the Ready-Mix Agreement and the Union declining to bargain over Respondent’s
transition wage rate proposal, Respondent scheduled a meeting with the SNP material haul
drivers on October 1 at SNRM’s Sloan Quarry truck yard, at which its material haul trucks were
based, and invited Union officials to attend. The meeting was held as scheduled, with
approximately 50 day shift material haul drivers attending. Representing Respondent were
Sean Stewart, Pat Ward, and Michael Kuck, the transportation manager for Aggregate
Industries-- SWR; Wayne Dey and other officials attended on behalf of the Union. According to
Dean Mulvaney,36 who, since 2008, had worked for SNP as a material haul driver37 under the
terms and conditions of employment embodied in the Construction Agreement, Stewart spoke
for Respondent about moving the drivers to employment under the terms of the Ready-Mix
collective-bargaining agreement. He explained “. . . what they wanted to offer us . . . as a
package . . . .” Additionally, “there was a lot of questions asked and . . . it was a little heated at
times. . . .” Mulvaney added that Sean Stewart “wasn’t sure” on some of the important issues,
saying that “. . . he didn’t have a detailed answer at that time” and that “. . . when we’re done,
you can ask . . . your [business agent] and he’ll be able to clarify maybe.”38 Stewart testified
that he told the attending material haul drivers that Respondent had requested the Union to
dispatch them under the terms of the Ready-Mix Agreement; that the Union had refused to do
so; that Respondent was now seeking drivers from other sources; that the Union had requested

35 Upon being confronted with Respondent’s attorney’s position statement to the above-
captioned unfair labor practice charges, Stewart conceded that, during his conversation with
Dey on August 13, the latter may have said the Union would “fight” Respondent over changing
the material haul drivers to the Ready-Mix Agreement.
36 Mulvaney testified that he has been a member of the Union since 1996.
37 Mulvaney transports aggregate materials to construction sites and drives trash from such
sites to dump sites.
38 Stewart refused to permit Dey to speak during the meeting; however, Dey did meet with
the attending drivers at the conclusion of Respondent’s meeting.
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Respondent to draft a phase-in agreement designed to minimize any impact on the drivers;39
and that, if they were interested in continuing to work for Respondent under the terms of the
Ready-Mix Agreement, they should inform Respondent’s dispatchers “and we would make
arrangements to get them on the list.” He further testified that he showed the drivers a copy of
Acting General Counsel’s Exhibit No. 26, and “I told them this had been given to Wayne Dey the
night before and there were multiple drivers that said they hadn’t seen it and so I had copies
made and we left copies at the front desk.”40 Further, Stewart admitted informing the attending
drivers that Respondent had proposed the above-described proposal to the Union; that
Respondent would honor the terms of Acting General Counsel’s Exhibit No. 26 for any
employees interested in working under the new wage rates and benefits structure; and that the
said changes were “imminent.”41
On Tuesday, October 5, by facsimile, Sean Stewart sent a letter to the Union, informing
the latter that, on the following Monday, October 11, Respondent would “. . . commence
performing material hauls under the terms and conditions of the [Ready-Mix Agreement]. All
new-hire Teamster material haulers will be paid the wage rate and benefits set forth in the CBA.
Stewart continued, writing that, “pursuant to discussions with Local 631 initiated by your
attorney, AI is offering current employees who desire to continue working under the terms and
conditions of the CBA a graduated pay scale . . . . designed to lessen the financial burden to
interested employees as they transition.” Two days later, Respondent placed a copy of Acting
General Counsel’s Exhibit No. 27 in the mail slot of each of the SNP material haul drivers. Said
document, entitled “Aggregate Industries-- SWR, Inc. Notice to Employees, states;
On Monday October 11th, 2010 Aggregate Industries-- SWR-Inc. . . . will
commence performing material hauls under the terms and conditions of the 2008-2012
collective bargaining agreement . . . . All new Teamster material haulers will be paid
under the terms of the CBA.
AI is offering current employees who desire to continue working under the terms
and conditions of the CBA a graduated pay scale. In order to qualify, current employees
must fill out and turn in this form to Dispatch no later than 3pm on Friday October 8th.
Following the foregoing, the document set forth wage rate and benefits packages for
employees virtually identical to those set forth in the document, which Respondent made
available for the SNP material haul drivers after the October 1 meeting. There is no dispute
that some of the former SNP material haul drivers agreed to continue working for Respondent
under the terms and conditions set forth in the above document. There is no record evidence
that, having been informed by Respondent of its intent to implement its plan to perform material

39 Stewart conceded that his statement was not true and testified that he meant to convey to
the attending material haul drivers that he had prepared Acting General Counsel’s Exhibit No.
26 “. . . at the request of [the Union’s] attorney. He also maintained that he did not imply that
the Union had agreed to it.
40 Stewart said that the document, which he made available to the drivers did not contain the
October 4 implementation date.
41 Asked by me whether he is contending that Respondent acted upon Darr’s suggestion in
2010 or is he contending that Union officials in 2008 actually agreed with him that you should be
able to transfer material haul drivers to coverage under the Ready-Mix Agreement, Stewart
answered “the latter” inasmuch as “. . . we negotiated for the classification of drivers and one of
those classifications was material hauls. And there was some discussions . . . on how to do that
without interrupting construction work.”
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hauls under the terms of the Ready-Mix Agreement six days later, the Union ever requested
Respondent to bargain.
Thereafter, on Monday, October 11, having implemented its transfer of material hauling
work to drivers working under the Ready-Mix Agreement, Respondent continued normal
operations but with limited crews working due to rain. On Tuesday, October 12, the Union
commenced picketing at the Sloan Quarry truck yard. Said picketing continued for two days at
which point the parties reached an agreement that the striking material haul drivers would return
to work under the terms of the Ready-Mix Agreement pending resolution of the instant unfair
labor practice charges.42 Dean Mulvaney testified that, subsequent to returning to work, he is
performing the same work as prior to the work stoppage. Likewise, material haul driver, Phillip
Willars, testified that, prior to October 2010, he hauled asphalt for SNP and that, subsequent to
the work stoppage, the scope of his work remains unchanged-- “I drive all kinds of different
trucks, but I still do the same work.”
With regard to Respondent’s material haul drivers, who had been working for SNP under
the terms and conditions of the Construction Agreement, the instant consolidated complaint
alleges, and counsel for the Acting General Counsel argues, that Respondent engaged in acts
and conduct, violative of Section 8(a)(1) and (5) of the Act, by, on or about October 1, 2010,
unilaterally, without initially affording notice to the Union or an opportunity to bargain, changing
the scope of the Construction Agreement bargaining unit by moving delivery of materials work
from said bargaining unit to the Ready-Mix Agreement bargaining unit43 and changing the terms
and conditions of employment of its above-described employees by requiring them to work
under the terms and conditions of the Ready-Mix Agreement. Further, as to said material haul
drivers, the consolidated complaint alleges that Respondent engaged in acts and conduct,
violative of Section 8(a)(1) and (5) of the Act, by bypassing the Union and dealing directly with
said employees by meeting with them on or about October 1, 2010 for the purpose of changing
their terms and conditions of employment and requiring said employees to agree in writing to
the terms and conditions of the Ready-Mix Agreement as a condition for continuing to be
employed by Respondent, and, by, from on or about October 11 through October 15, 2010,
denying employment opportunities to said material haul drivers who had not agreed to work
under the terms and conditions of the Ready-Mix Agreement. Initially, as to the foregoing
allegations, I note that almost the entirety of the relevant record evidence is not in dispute.
Thus, as opposed to his testimony regarding the 2008 negotiations for the Ready-Mix

42 There is no dispute that, when Respondent’s material haul drivers are working on job
sites as opposed to merely delivering aggregates to stockpile sites on job sites, they are paid at
the Construction Agreement wage rate.
43 While the consolidated complaint paragraph 7(a) alleges that Respondent unlawfully
changed “. . . the scope of the work of the Construction Unit . . . ,” in his post-hearing brief,
counsel for the Acting General Counsel describes Respondent’s alleged unfair labor practice as
changing the “scope (definition)” of the Construction Agreement bargaining unit by removing the
material haul drivers from coverage under said agreement and covering them under the Ready-
Mix Agreement. I shall consider counsel’s contention as the Acting General Counsel’s
allegation.
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Agreement,44 Sean Stewart’s testimony concerning the events of July through October 2010
was uncontroverted and, as he did not appear to be testifying in a disingenuous manner, I shall
credit his version of the events of that time period.45
Counsel for the Acting General Counsel and counsel for the Union contend that, on
October 11, by moving all of its material hauling work from the Construction Agreement
bargaining unit to the Ready-Mix Agreement bargaining unit, Respondent unilaterally changed
the scope of the Construction Agreement bargaining unit in violation of Section 8(a)(1) and (5)
of the Act. In this regard, of course, the general topics of bargaining fall into three broad
categories-- mandatory, permissive, and illegal. The mandatory subjects of bargaining are
those concerning the bargaining unit employees’ wages, hours, and other terms and conditions
of employment and are those over which the parties must bargain in good faith. Further, an
employer may not impose a unilateral change in a mandatory subject of bargaining unless it has
bargained in good faith to an impasse; upon such a deadlock in bargaining, the employer may
implement such a change without the consent of the labor organization. Hill-Rom Co, Inc. v.
NLRB, 957 F.2d 454, 457 (7th Cir. 1992). “Illegal subjects are simply those proscribed by
federal, or where appropriately applied, state law.” Id. The permissive subjects of bargaining
are those matters which fall outside the purview of Section 8(d) of the Act and are those over
which the parties may voluntarily engage in bargaining. However, in contrast to a mandatory
subject of bargaining, not only may neither party insist to impasse over a permissive subject but
also an employer may not implement its proposal without the consent of the labor organization.
Id.; Douds v. Longshoremen, 241 F.2d 278 (2nd Cir. 1957); Bozzuto’s Inc., 277 NLRB 977 at 977
(1985). Put another way, once a labor organization objects to a permissive subject of
bargaining, an employer may not implement its proposal. Finally, in this regard, and of utmost
significance herein, the scope of a contractual bargaining unit is such a permissive subject of
bargaining, and counsel for the Acting General Counsel therefore contends that Respondent
could not have unilaterally removed or modified a Construction Agreement bargaining unit
position without first obtaining the consent of the Union. Id.

44 What is in dispute is whether, during the 2008 negotiations for the Ready-Mix Agreement,
the Union’s main negotiator, Dewey Darr, agreed that, by entering into the said collective-
bargaining agreement, SNRM, which employed no material haul drivers and did not own or
produce its own aggregate, would have the right to pay its material haul drivers for hauling
aggregate materials not only from the Sloan Quarry to its batch plants but also from the Sloan
Quarry to construction job sites at the Ready-Mix Agreement wage rate. As to this, as between
Dewey Darr and Sean Stewart, notwithstanding his sometimes confusing and contradictory
testimony, I found the former to have been the more forthright witness regarding said
bargaining. Thus, I believe that Darr, in discussing the material haul driver classification and the
matter of transferring trucks from SNP to SNRM, was concerned only with hauls from the Sloan
Quarry to SNRM’s batch plants and that he would never have agreed to anything which would
have abrogated or diminished the terms of the Construction Agreement. Further, in this regard,
as I stated at the hearing, I find it telling that Respondent failed to demand that the Union enter
into a memorandum of understanding, similar to that which it negotiated for the nine Sloan
Quarry employees, concerning the rate of pay for any material haul drivers whom SNRM might
employ in the future for transporting aggregates to construction sites. Of course, such a
document would have memorialized any 2008 agreement between the parties, binding the
parties for an uncertain event at an unforeseen time, and would have certainly permitted
Respondent, if it had so desired, to immediately have taken advantage of a cost saving.
45 Likewise, Stewart was uncontroverted as to all of the background information herein, and
I shall rely upon such testimony.
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My quandary is that there exists another-- and equally compelling-- way to characterize
Respondent’s actions herein. Thus, putting aside the addling existence of the same group of
employees and the same labor organization, it may well be argued that Respondent’s actions
actually constituted a change in the assignment of work to employees in another bargaining unit
while leaving the Construction Agreement bargaining unit intact. The significance of such a
view of the facts is that, unlike altering the scope of a bargaining unit, the transfer of work out of
a bargaining unit constitutes a mandatory subject of bargaining, and, of course, after bargaining
to impasse or waiver by the Union, Respondent was then free to implement its assignment of
material hauling work to drivers, covered under the Ready-Mix Agreement, unilaterally. Id.
Distinguishing between these two views is not an easy task; however, contrary to
counsel for the Acting General Counsel and counsel for the Union, after consideration of the
record as a whole, I believe that the correct characterization of Respondent’s actions is that of a
transfer of material hauling work duties from drivers covered under the Construction Agreement
to drivers covered under the Ready-Mix Agreement. As to this, I note initially that neither
counsel for the Acting General Counsel nor counsel for the Union actually indentified in what
manner Respondent altered the scope of the Construction Agreement bargaining unit; in fact,
paragraph 7(a) of the consolidated complaint refers to the alleged unlawful unilateral change as
“. . . moving of delivery of materials work from the Construction Unit to the Ready-Mix Unit;” and
counsel for the Union refers to it as unilaterally moving all of its material hauling work from [the
Construction Agreement bargaining unit to the Ready-Mix Agreement bargaining unit].” Further,
there is no contention that Respondent eliminated the material driver position from the
Construction Agreement bargaining unit or eviscerated the position by creating a non-bargaining
unit position and assigning the work of bargaining unit employees to employees in the new job
classification. To the contrary, in his August 13 letter to the Union, Sean Stewart wrote that
Construction Agreement bargaining unit drivers would continue to perform construction site
material hauling work, and it is undisputed that Respondent’s drivers, who currently perform
material hauling work on construction sites, are paid at the Construction Agreement wage rate.
Moreover, Respondent and the Union bargained for and agreed to a Ready-Mix Agreement
bargaining unit job classification, transport drivers (S&G), in which material haul truck drivers
perform virtually the identical off site driving work46 as their driver counterparts covered by the
Construction Agreement. In these circumstances, I believe Respondent’s alleged unlawful act
must correctly be characterized as a transfer of work from Construction Agreement bargaining
unit employees to Ready-Mix bargaining unit employees. Therefore, as the record evidence
seems clear, and there is no real dispute, that Respondent acted unilaterally without the assent
of the Union, the issues are whether it did so after bargaining in good faith to impasse or, absent
impasse, after the Union waived its right to demand bargaining.
Regarding these issues, the governing legal principles are well established. Thus, with
regard to impasse, the Board law is that:
[A] genuine impasse exists only where the parties have exhausted all avenues for
reaching agreement and there is `no realistic possibility that continuation of discussion at
time would have been fruitful.’ There is no impasse when one of the parties makes
concessions that are not `trivial or meaningless. . ;’ for a concession by either party `on a
significant issue in dispute precludes a finding of impasse even if a wide gap between
the parties remains because under such circumstances there is reason to believe that

46 As the record clearly demonstrates, Construction Agreement bargaining unit material haul
drivers and Ready-Mix Agreement bargaining unit transport drivers each utilize the identical
equipment to transport aggregate and other materials to construction sites.
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further bargaining might produce additional movement.’ . . . The essential question is
whether there has been movement sufficient `to open a ray of hope with a real possibility
for agreement if explored in good faith in bargaining sessions.’
Rochester Telephone Corp., 333 NLRB 30, 30 at n. 3 (2001), quoting Hayward Dodge, 292
NLRB 434, 468 (1989). Concerning the issue of waiver, which, counsel for Respondent
contends, occurred, as stated above, prior to implementing a change in a mandatory subject of
bargaining, an employer is required to provide timely notice to a labor organization and a
meaningful opportunity for the latter to request bargaining. Then, upon receiving such notice,
the labor organization “. . . must act with due diligence to request bargaining or risk a finding
that it has waived its right to do so.” However, if the employer’s notice provides insufficient time
for negotiations before implementation or if the employer has made it otherwise clear that it has
no intention of bargaining about the issue, a labor organization may be excused from the
foregoing bargaining request requirement. Further, in these circumstances, a bargaining
request might well be futile as the employer’s notice “informs” the labor organization of nothing
more than a fait accompli. A latter finding requires objective evidence, and a labor
organization’s subjective impression of its bargaining partner’s intention is insufficient. KGTV,
355 NLRB No. 213 at slip. op. 2 (2010); Bell Atlantic Corp., 336 NLRB 1076, 1086 (2001).
While Respondent does not assert such a defense, it certainly appears that, as of
October 11, the parties were at impasse over Respondent’s stated desire to have its off site
material hauling performed by drivers working under the terms and conditions of employment
established by the Ready-Mix Agreement. Thus, from July 9 2010 through mid-September,
during face-to-face meetings and telephone conversations and in letters, Sean Stewart
continually informed the Union that Respondent intended to have its off-construction site
material hauls performed by drivers, who are working under the terms and conditions of
employment embodied in the Ready-Mix Agreement, and that it wanted its former SNP material
haul drivers to continue to perform said work. Likewise, Wayne Dey consistently—and
adamantly—maintained the Union’s position-- raising its “objection” to Respondent’s intended
course of action and demanding that the delivery of materials to job sites remain the domain of
drivers working under the terms and conditions of employment of the Construction Agreement.
Then, during their meeting on September 28, after Respondent had sought the dispatch of
material haul drivers from the Union’s ready-mix drivers hiring hall and the Union had refused to
honor the former’s requests, each party remained “entrenched” in its position regarding which
bargaining unit’s drivers should perform Respondent’s off-site material hauls. Further, on
September 30, after drafting Respondent’s planned continuation of employment offer to the
former SNP material haul drivers, by which, I believe, Respondent intended to effectuate the
transfer of its material hauling work to drivers in the Ready-Mix Agreement bargaining unit,
Stewart spoke to Dey, asking whether the Union desired to bargain over the terms of
Respondent’s employment offer to the former SNP material haul drivers; which included the
transition wage rate, and the latter, who, I believe, understood Stewart’s document as
implementing the transfer of material hauling work to drivers in the Ready-Mix Agreement
bargaining unit, initially told Stewart that “. . . he had nothing . . . and . . . the Union wouldn’t be
putting together transition rates,” later reiterated that the Union would have no proposal for
Respondent , and ultimately warned Stewart that, if Respondent implemented its planned
course of action, regarding assigning off-site material haul work to Ready-Mix Agreement
bargaining unit material haul drivers, the latter “. . . would have a fight on [its] hands.” The
foregoing establishes that, at no time between July 9 and October 11, did either Respondent or
the Union demonstrate any interest in making a concession from its intractably-held position,
and there is no reason to believe that further meetings would have resulted in movement by
either party. In these circumstances, given their intransigence, I think impasse may well have
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existed as of October 11 when Respondent implemented its unilateral change. Rochester
Telephone Corp., supra.
Nevertheless, assuming the parties had failed to meaningfully bargain to impasse, I also
think the Union waived its right to bargain regarding implementation of Respondent’s plan to
transfer its off-site material hauling work from drivers in the Construction Agreement bargaining
unit to drivers in the Ready-Mix Agreement bargaining unit. In this regard, on September 30,
Dey rebuffed Respondent’s offer to bargain regarding the latter’s continuation of employment
offers for the former SNP material haul drivers-- an offer to bargain which, I think Dey
understood, would have opened the entire transfer of work issue for discussion. Then, on
October 5, four days after Stewart had informed the former SNP material haul drivers regarding
Respondent’s terms for them to remain employed by Respondent, he formally provided notice to
the Union that the drivers’ new terms and conditions of employment, which included working
pursuant to the Ready-Mix Agreement, would be implemented on October 11. Notwithstanding
having, at least, six days notice prior to implementation by Respondent, presumably bent upon
maintaining its legal position regarding the transfer of the driving work, the Union failed to
request bargaining, and Respondent implemented its announced change on October 11.
Counsel for the Union contends that there can be no finding of acquiescence by his
client as it had been presented with a fait accompli by Respondent; therefore, it would have
been futile for the Union to have requested that the former engage in bargaining. I disagree. At
the outset, counsel may not justifiably assert that Respondent’s October 5 notice left insufficient
time prior to implementation for the Union to engage in meaningful bargaining. In this regard, I
note that the Union had been aware since July 9 that Respondent was determined to move
material hauling work to drivers, who were working under the terms and conditions of
employment embodied in the Ready-Mix Agreement, and that, from July 9 through the August
28 meeting, rather than engaging in meaningful bargaining, Wayne Dey merely objected and
remained intransigent in the Union’s position that Respondent’s off-site material hauls must
continue to be done by Construction Agreement bargaining unit drivers. Then, on September
30, after Stewart asked whether the Union desired to bargain over the terms of its proposed
continuation of employment offer to the material haul drivers, Dey rejected Stewart’s offer,
stating that the Union had nothing to offer and warned it would “fight” implementation. Finally,
on October 5 when informed by Respondent that the terms of its continuation of employment
offer would be implemented six days later, apparently maintaining its legal position, the Union
responded with silence, failing to exercise its right to demand that Respondent bargain with
regard to the above issues. In these circumstances, the Union had in excess of 90 days in
which to bargain over Respondent’s stated desire to have its material hauling work performed
by its drivers working under the terms of the Ready-Mix Agreement and, at most, ten and, at
least, six days in which to demand bargaining prior to Respondent’s implementation of its
continuation of employment offers to its material haul drivers,47 by which Respondent
effectuated the transfer of its material hauling work, and, other than protesting,48 and failed to

47 In Jim Walter Resources, 289 NLRB 1441, 1442 (1988), an employer provided a union
with ten days notice of a change and, during said time period, the union failed to request
bargaining. The Board concluded that the ten days provided a “meaningful opportunity” for the
union to have requested bargaining and noted that it has, on occasion, found as few as two
days adequate notice.
48 The Board has held that “mere protest” is not sufficient to satisfy the requirement that a
union must request bargaining after receipt of notice of an intended change in terms and
conditions of employment or risk a finding of waiver. KGTV, supra, at n. 7; Medicenter, Mid-
South Hospital, 221 NLRB 670, 673, 678 (1975).
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do so. Furthermore, there is no record evidence that Stewart’s September 30 invitation to
bargain was insincere or that Respondent indicated it would not bargain in good faith
concerning its desire that its off-site material haul work be performed by Ready-Mix Agreement
bargaining unit drivers and to have its former SNP material haul drivers perform the work.
Based upon the foregoing, I find that the Union had timely notice of Respondent’s intent to
implement its transfer of off-site material haul driving work to drivers in the Ready-Mix
Agreement bargaining unit on October 11 and, presumably maintaining its entrenched legal
position, failed to diligently request bargaining. The Union thereby waived its right to bargain,
and Respondent’s implementation of the transfer of work did not constitute an unlawful
unilateral change. Therefore, I shall recommend dismissal of paragraph 7(a) of the
consolidated complaint. KGTV, supra; Bell Atlantic Corp., supra, at 1087; Jim Walter
Resources, supra. 49
I now turn to the second consolidated complaint allegation pertaining to the material haul
drivers-- that Respondent unlawfully, unilaterally changed the terms and conditions of
employment of its former SNP material haul drivers by requiring them to work under the terms
and conditions of employment embodied in the Ready-Mix Agreement-- and note that this issue
is but a variant of the initial issue raised by the consolidated complaint. Thus, there is no
dispute that, by virtue of its continuation of employment offers to its material haul drivers, whose
terms and conditions of employment were embodied in the Construction Agreement, which
became effective on October 11, Respondent unilaterally changed their terms and conditions of
employment, requiring, as a condition for being retained as an employee, that said drivers agree
to work under the terms embodied in the Ready-Mix Agreement and be paid at transition wage
rates until the said collective-bargaining agreement’s wage rate became effective for them. As
with Respondent’s reassignment of off-site material hauling work from Construction Agreement
bargaining unit drivers to Ready-Mix Agreement bargaining unit drivers, I believe that whether
Respondent’ violated Section 8(a)(1) and (5) of the Act by unilaterally changing the terms and
conditions of employment of its former SNP material haul drivers depends upon whether the
parties were at impasse or whether the Union waived its right to engage in bargaining. In these
regards, irrespective of the question of impasse, as above, there can be no doubt that the
Union’s inaction constituted a waiver. Thus, Stewart gave notice to Dey on September 30 of
Respondent’s intent to implement its continuation of employment offer and inquired as to
whether the Union wanted to bargain about the terms of said offer, and Dey inexplicably
spurned Stewart’s offer. Subsequently, on October 5, Stewart gave notice to the Union that
Respondent would implement its offer of continued employment on October 11, and, the Union
failed to request bargaining. Moreover, I do not believe that Respondent’s implementation on
September 11 was a fait accompli. Thus, the Union had, at least, six days prior to the
October 11 implementation date to request bargaining but failed to act. Furthermore, there
exists no record evidence establishing that Stewart’s offer to bargain on September 30 was
disingenuously stated or that Respondent would not thereafter have agreed to bargain
concerning the terms of its employment offers. Therefore, I must, and do, conclude that the
Union had timely notice of Respondent’s intent to implement its continuation of employment
offer to its former SNP material haul drives and that the Union failed to do so, thereby waiving

49 Two Board decisions, which are cited by counsel for the Union, are distinguishable. In
Bohemian Club, 351 NLRB 1065, 1066 (2007), the Board found that a change was a fait
accompli as “the union learned of the change1 week after it happened.” Likewise, in Ciba-Geigy
Pharm. Div, 264 NLRB 1013, 1018, the Board found that a union was faced with a fait accompli
when it futilely requested bargaining as “. . . the new program had already been implemented.”
Herein, of course, I believe the Union had ample time to have requested bargaining prior to
Respondent’s implementation of its continuation of employment offer to its material haul drivers.
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its right to bargain. Id. In these circumstances, Respondent’s unilateral change was not
unlawful, and I shall recommend that paragraph 7(b) of the consolidated complaint be
dismissed.
Next, with regard to the former SNP material haul drivers, I consider the allegation that,
in meeting with its said employees on October 1, Respondent bypassed the Union, its
employees’ bargaining representative, and engaged in direct dealing in violation of Section
8(a)(1) and (5) of the Act. The Board law is clear that an employer is obligated to bargain
exclusively with the designated bargaining representative of its employees with regard to their
terms and conditions of employment, and, by dealing directly with employees, who are
represented by a labor organization, or with any representative other than the exclusive
bargaining representative regarding such matters, an employer violates Section 8(a)(1) and (5)
of the Act. SPE Utility Contractors, LLC, 352 NLRB 787, 791 (2008). The crux of this violation
of the Act is that dealing directly with represented employees undercuts the labor organization’s
ability to function as the bargaining representative and interferes with the employees’ right to
union representation. “This is true whether it concerns a decision which is contemplated or
whether it concerns a decision . . . that has already been made by an employer.” Master
Plastering Co., 314 NLRB 349, 351 (1994); Ad-Art, Inc., 290 NLRB 591, 606 (1988). Finally,
“an element of direct dealing with employees is the lack of consent by the designated bargaining
representative to these employee contacts.” Kansas Education Assn., 275 NLRB 638, 640
(1985).
In assessing the merits of this unfair labor practice allegation, I note that, for some
reason unknown to me, counsel for the Acting General Counsel failed to present any underlying
theory or supporting legal argument in his post-hearing brief, and, given the context, I do not
believe that Respondent engaged in direct dealing. Thus, on September 30, the day before the
meeting, Wayne Dey had adamantly rejected Sean Stewart’s offer to bargain over the terms of
Respondent’s continuation of employment offers to its former SNP material haul drivers and had
held a meeting for the said drivers during which he presumably presented the terms of said
offers to them. Further, rather than in order to bypass the Union and to bargain with its former
SNP material haul drivers, Respondent used the October 1 meeting with them merely to
disclose its plan to transfer its material hauling work to those drivers, who agreed to work
pursuant to the terms of the Ready-Mix Agreement, and to announce implementation of its
continuation of employment offers. In this regard, during the meeting, Stewart set forth
Respondent’s intent to have its material hauling work performed pursuant to the terms of the
above collective-bargaining agreement and the Union’s refusal to consent, presented the terms
of the continuation of employment offers to the attending drivers, and answered their angry
questions. Moreover, rather than being excluded, Dey and other Union representatives were
invited and, in fact, attended the meeting, and, while not being allowed to speak during
Respondent’s meeting, they met with the drivers immediately after it concluded. Perhaps, in
other circumstances, a meeting, such as conducted by Respondent on October 1, might be
categorized as unlawful direct dealing but not on the instant facts. Accordingly, I shall
recommend that paragraph 7(c) of the consolidated complaint be dismissed.
Finally, concerning the former SNP material haul drivers, the consolidated complaint
alleges that Respondent unlawfully denied employment opportunities to those former SNP
material haul drivers who refused to agree to work under the terms and conditions of the Ready-
Mix Agreement. Contrary to the Acting General Counsel, I have found that the Union waived its
right to bargain regarding Respondent’s transfer of material hauling work to Ready-Mix
Agreement bargaining unit drivers and concerning the terms of its continuation of employment
offer to the above employees. Consequently, Respondent’s implementation of neither of said
changes in the terms and conditions of employment of the said material haul drivers may be
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found unlawful, including Respondent’s requirement that each driver sign a document, agreeing
to continue working under the terms of the Ready-Mix Agreement. In these circumstances, I
find no merit to the above allegation and shall recommend dismissal of paragraph 7(d) of the
consolidated complaint.
The Sweeper Truck Drivers
The record next reveals that, in addition to material haul trucks, Respondent utilizes
sweeper trucks at its constructions sites and vehicle yards and employs sweeper truck drivers to
operate said vehicles. Thus, prior to the August merger, SNP utilized three mechanical
sweeper trucks, which have brooms that push aside the dirt, on its construction sites and at its
truck yard, and Frehner utilized two vacuum sweepers, which vacuum up dirt and dust, on its
job sites. SNP employed members of the Union to operate its equipment, and Frehner utilized
members of the Operating Engineers Union, whose collective-bargaining agreement with AGC
contains a sweeper driver job classification, to operate its equipment.50 According to Sean
Stewart, in 2004, during its contract negotiations with AGC, after presenting evidence to AGC
that it had successfully organized three sweeper companies, Laborers International Union of
North America, Local 872, herein called the Laborers, demanded and was granted a sweeper
driver job classification in its new collective-bargaining agreement. Then, in 2005, after the
Laborers filed a grievance against either SNP or Frehner for contracting with a non-union
sweeper company, the parties settled the matter, “and, from that point forward, if we needed
additional sweeper help, we would hire the [Laborers-represented] sweeper companies.51
The record further reveals that two of SNP’s sweeper truck drivers, Andrew Barnum and
Mike Crane, continued to work for Aggregate Industries-- SWR, Inc. after the merger, operating
the same mechanical sweepers on job sites and in the truck yard at Sloan Quarry. According to
Barnum, he and Crane had often discussed withdrawing from the Union, and, “. . . mostly due to
the fact that . . . our benefits package was being reduced,” during a telephone conversation with
Michael Kuck in October about a job, “I finally just asked him . . . with the situation that’s going
on . . . is it possible that [we] might be able to withdraw from the Teamsters-- still maintain [our
jobs] here at AI-- and be able to join another union or transfer into a different union.” Kuck
replied that “. . . he didn’t know but he would look into it and he would get back to me.”
Subsequently, Barnum testified, he spoke to Wayne Dey, and he told Dey he wanted to switch
to another union; Dey replied that he wouldn’t let that happen. Then, after the Union
commenced its picketing against Respondent and while it continued, Barnum encountered Kuck
and asked what was going on with his earlier request about switching unions. Kuck said he was
“looking into it” and would get back to Barnum.
Michael Kuck confirmed that, in early October, Barnum spoke to him regarding his and
Crane’s desire to no longer be represented by the Union and asked what options were available
to them for continuing to work for Respondent. Barnum asked whether Respondent would be

50 According to Michael Kuck, any available operating engineer employee on a jobsite could
operate a sweeper truck.
51 Apparently, there no longer are any Teamsters Union or Operating Engineers Union-
represented sweeper truck companies.
Asked if the Laborers Union had ever demanded to represent either SNP’s or Frehner’s
sweeper drivers, Stewart testified that, “on numerous occasions” during 2010, the Laborers
Union secretary/treasurer had requested that the sweeper driving work be assigned to the
Laborers Union. On this point, Kuck contradicted Stewart, denying that the Laborers had ever
demanded or claimed the sweeper driver work.
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willing to switch them to another union, either the Operating Engineers or the Laborers. Kuck
said he would speak with his supervisors but would have to also hear from Crane. Then,
“I spoke to Sean about it and what our options were, and he said that we could switch over to
the Laborers . . . .’52 Kuck then telephoned Barnum, and, according to the latter, said Barnum
had two options-- “. . . because most of the trucks had already been in the [Operating
Engineers], they could probably switch us into Operators and . . . he said that it looked like we
could switch into [the Laborers Union].” Barnum told Kuck he would think about it and get back
to him. Thereafter, Barnum testified, he spoke to Crane, and they discussed their problem “in
detail” and reached a decision. He then telephoned Kuck, and told him that, after he and
Crane53 had looked over “. . . everything that was going on with the pension and the Operators,
[they would] rather go with the Laborers due to the fact that their . . . benefits were strong.”
Kuck said he would take care of it and would call Barnum and let him know when their
dispatches would be available. Some time later, Kuck telephoned Barnum and “. . . let me know
that dispatch is available for me at the Laborers hall and I just needed to go down and get
signed up with the Laborers to be redispatched out.” Thereafter, on October 29, he and Crane
went to the Laborers’ hiring hall, joined that labor organization,54 and were dispatched to
Respondent,55 performing the same sweeper work utilizing the same equipment and some
additional laborer work.
Pertaining to the two sweeper truck drivers, the consolidated complaint alleges that
Respondent engaged in acts and conduct, violative of Section 8(a)(1) and (5) of the Act, by
dealing directly with said employees for the purpose of changing their terms and conditions of
employment, and by unilaterally, without notice to the Union or affording it an opportunity to
bargain, changing said employees’ terms and conditions of employment by moving the work of
sweeper drivers from coverage under the Construction Agreement to coverage under its
collective-bargaining agreement with the Laborers Union, and by changing the scope of the
work of the Construction Agreement bargaining unit employees by moving the sweeper drivers
from the Construction Agreement bargaining unit and assigning such work to the bargaining unit
covered by the Laborers Union collective-bargaining agreement. In these regards, I note that
the facts are not in dispute and that, on all but one issue discussed below, the three witnesses,
who testified regarding the issues, Stewart, Michael Kuck, and Andrew Barnum, were mutually
corroborative. Initially, turning to Respondent’s alleged unlawful assignment of its mechanical
sweeper driving work to drivers in the Laborers’ bargaining unit, I have previously stated that a
transfer of work out of a bargaining unit by an employer constitutes a mandatory subject of
bargaining. Hill-Rom Company, Inc., supra. Further, when an employer unilaterally, without
affording notice or an opportunity to bargain to the labor organization, which represents certain
of its employees, assigns bargaining unit work to employees outside the bargaining unit and the
job duties and functions remain essentially the same, such acts and conduct violate Section
8(a)(1) and (5) of the Act. McDonnell Douglas Corp., 312 NLRB 373, 377 (1993); cf. Hanson

52 Stewart testified that, after Kuck spoke to him, he initially did nothing, hoping the matter
would “blow over.” Then, when the request was renewed to Kuck, “I sent a letter of assignment
to the Laborers 872, explaining our current situation. Then, I made a call to the {Laborers] to
see if they would be willing to dispatch these drivers.” Stewart admitted he undertook the
foregoing without notice to the Union or affording it an opportunity to bargain.
53 Barnum said that this was a “joint” decision by Crane and him.
54 According to Barnum, while the nominal initiation fee was $500, he and Crane were each
required to pay only $90.
55 Both sweeper drivers then went to the Union’s office and were given “honorable’
withdrawals from the labor organization.
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SJH Construction, 342 NLRB 967, 969 (2004). Herein, Respondent admits that it assigned
mechanical sweeper truck driving duties, which had been previously been performed by
Construction Agreement bargaining unit drivers, to sweeper truck drivers, represented by the
Laborers, and that it did so without notice to or affording the Union an opportunity to bargain.
Moreover, I have found that, since changing their union affiliations, employees Barnum and
Crane have continued to perform the same sweeper truck duties utilizing the same equipment.
In its defense, citing J.L. Allen Co., 199 NLRB 675 (1972) and Brady-Hamilton, 198
NLRB 147 (1972), Respondent contends that it engaged in the above-described acts and
conduct in the context of a work jurisdictional dispute between the Union and the Laborers and
that, therefore, it was insulated from any asserted violations of Section 8(a)(1) and (3) and
Section 8(a)(1) and (5) of the Act. Contrary to counsel, I do not believe that there existed herein
any work jurisdictional dispute between the Union and the Laborers over which group of
bargaining unit employees should perform Respondent’s mechanical sweeper truck job duties.
In this regard, there is no evidence that drivers, represented by the Laborers, have ever
performed mechanical sweeper truck work for Respondent. Moreover, in agreement with
counsel for the Acting General Counsel, I also do not believe that the record warrants the
conclusion that the Laborers ever demanded that said work be assigned to employees
represented by it or ever claimed the work. On this point, Michael Kuck, who is Respondent’s
transportation manager and obviously in a position to have such knowledge, contradicted Sean
Stewart and denied that the Laborers have ever demanded that its members perform
Respondent’s sweeper driver job duties or claimed said work for its members. Surely, Stewart
would have alerted Kuck to the Laborers’ repeated requests to perform the mechanical sweeper
truck driving work for Respondent. In these circumstances, I find that Respondent engaged in
acts, violative of Section 8(a)(1) and (5) of the Act, by unilaterally, without notice to or affording
the Union an opportunity to bargain, assigning sweeper truck driving work to employees, who
are in the bargaining unit represented by the Laborers. McDonnell Douglas Corp., supra.56
Finally, with regard to the allegation of the consolidated complaint that Respondent
bypassed the Union and engaged in unlawful direct dealing with its Construction Agreement
bargaining unit employees, Andrew Barnum and Mike Crane, I have found that, upon being
informed by Barnum that said employees desired to join another labor organization, Mike Kuck
and him discussed the employees’ options and other labor organizations whose collective-
bargaining agreements covered the same work and which they might join. Respondent failed to
inform the Union of said conversations. There can be no doubt that any change in the
employees’ bargaining representative would directly impact their terms and conditions of
employment, and I think that Kuck and, later, Stewart clearly were aware of this. Further, after
Barnum stated that he and Crane desired to join the Laborers, Respondent apparently
facilitated their membership in the said labor organization. As an employer is obligated to
bargain only with the representative of its employees, the foregoing patently establishes
unlawful direct dealing, and it makes no difference that employees initiated the contacts.

56 Clearly, Respondent also changed Barnum’s and Crane’s terms and conditions of
employment by recognizing the Laborers as their representative for purposes of collective
bargaining and treating them as employees in the bargaining unit covered by the Laborers’
collective-bargaining agreement. Inasmuch as Respondent concedes it failed to give notice to
the Union or afford it an opportunity to bargain when it assigned mechanical sweeper truck work
to the Laborers, I find merit to the consolidated complaint allegation that Respondent violated
Section 8(a)(1) and (5) of the Act by unilaterally changing the sweeper truck drivers’ terms and
conditions of employment. LTD Ceramics, 341 NLRB 86, 87 (2004); Bouille Clark Plumbing,
337 NLRB 743 (2002).
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Kansas Education Assn., supra, at 640 and 640, n. 11. Accordingly, Respondent engaged in
conduct violative of Section 8(a)(1) and (5) of the Act.
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. In or about October 2010, during conversations with two mechanical sweeper truck
drivers, by bypassing the Union and dealing directly with said employees regarding their
respective terms and conditions of employment, Respondent engaged in acts and conduct
violative of Section 8(a)(1) and (5) of the Act.
4. In or about October 2010, by unilaterally, without affording notice to the Union or
affording it an opportunity to bargain, assigning mechanical sweeper truck driving job duties to
employees in the bargaining unit represented by the Laborers Union when such work had
previously been done by Construction Agreement bargaining unit employees, Respondent
engaged in acts and conduct violative of Section 8(a)(1) and (5) of the Act.
5. In or about October 2010, by unilaterally, without affording notice to the Union or
affording it an opportunity to bargain, changing the terms and conditions of employment of two
mechanical sweeper truck drivers by treating them as members of the Laborers’ bargaining unit,
Respondent engaged in acts and conduct violative of Section 8(a)(1) and (5) of the Act.
6. Respondent’s unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
7. Unless specifically set forth above, Respondent engaged in no other unfair labor
practices.
REMEDY
I have found that Respondent has engaged in serious unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act. Accordingly, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative actions designed to effectuate the
purposes and policies of the Act. Specifically, I shall recommend that Respondent be ordered
to cease and desist from bypassing the Union and directly dealing with its Construction
Agreement bargaining unit sweeper truck drivers. Further, I shall recommend that Respondent
be ordered to cease and desist from unilaterally, without affording notice to the Union or
affording the latter an opportunity to bargain, assigning mechanical sweeper truck work to
bargaining unit employees, who are represented by the Laborers, when said work had always
been performed by drivers included in the Construction Agreement bargaining unit and that
Respondent be ordered to restore the status quo ante by returning said work to Construction
Agreement bargaining unit sweeper truck drivers and by making sweeper truck drivers Barnum
and Crane whole for any lost wages57 and other benefits, with interest as prescribed in New

57 Back pay shall be computed in the manner set forth in Ogle Protection Service, Inc., 183
NLRB 682, 683 (1970).
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Horizons for the Retarded, 283 NLRB 1173 (1987),58 caused by its unlawful unilateral
change.59 Moreover, I shall recommend that Respondent be ordered to post a notice, setting
forth its above obligations.60
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended61
ORDER
The Respondent, Aggregate Industries, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Bypassing the Union and dealing directly with its mechanical sweeper truck
drivers in the Construction Agreement bargaining unit with regard to their terms and conditions
of employment;
(b) Unilaterally, without notice to the Union or affording the latter an opportunity to
bargain, assigning mechanical sweeper truck driving work to drivers, who are represented by
the Laborers Union, when such work had previously been performed by drivers, who were
included in the Construction Agreement bargaining unit;
(c) Unilaterally, without notice to the Union or affording the latter an opportunity to
bargain, changing the terms and conditions of its mechanical sweeper truck drivers by treating
them as employees in the bargaining unit covered by the Laborers’ collective-bargaining
agreement;

58 Interest shall be compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
59 By recommending that Respondent be required to restore the status quo ante, I recognize
that, as the Union would have the right to refer two new sweeper truck drivers to Respondent to
operate its mechanical sweeper trucks, Laborers-represented employees Barnum and Crane
may be left without jobs. However, within the parameters of the alleged unfair labor practices
and in the absence of an allegation that Respondent’s acts and conduct were violative of
Section 8(a)(1) and (2) of the Act, I have no jurisdiction to require either employee to again
change his union affiliation or to require Respondent to utilize either Barnum or Crane to
perform the sweeper truck duties.
60 I shall not require Respondent to disseminate the notice electronically to its employees.
Thus, in J. Picini Flooring, 356 NLRB No. 9 (2010), the Board required that the notice therein be
transmitted electronically to the respondent’s employees as it customarily communicated to its
employees in such a manner. There is no record evidence in these matters to suggest that
Respondent regularly communicates with its employees via e-mail or other electronic means. In
fact, each employee has an actual mail slot in which Respondent inserts mail or other
employment-related documents.
61 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended 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.
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(d) In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Restore the status quo ante by returning and assigning the work of driving its
mechanical sweeper trucks to employees who are represented by the Union and employed in
the Construction Agreement bargaining unit;
(b) Make sweeper truck drivers, Andrew Barnum and Mike Crane, whole for any
wages and other benefits suffered as a result of its unilateral change in the manner set forth in
the Remedy section
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its facility in Las Vegas,
Nevada and its truck yard in Sloan, Nevada, copies of the attached notice marked “Appendix.”62
Copies of the notice, on forms provided by the Regional Director for Region 28, after being
signed by the Respondent’s authorized representative, 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 Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since October 1, 2010
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

62 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.”
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IT IS HEREBY FURTHER ORDERED that the consolidated complaint be dismissed
insofar as it alleges that Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally,
without notice to the Union or affording it an opportunity to bargain, changing the scope of the
Construction Agreement bargaining unit, transferring work from the Construction Agreement
bargaining unit employees to the Ready-Mix Agreement bargaining unit employees, and
changing the terms and conditions of employment of its former SNP material haul drivers and by
directly dealing with said employees and denying employment opportunities to Construction
Agreement bargaining unit employees, who refused to work under the terms and conditions of
the Ready-Mix Agreement.
Dated, Washington, D.C., June 6, 2011
_______________________
Burton Litvack
Administrative Law Judge
Appendix
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT bypass Teamsters, Chauffeurs, Warehousemen and Helpers Local 631,
affiliated with International Brotherhood of Teamsters, herein called the Union, and deal directly
with our mechanical sweeper truck drivers in the Construction Agreement bargaining unit with
respect to their terms and conditions of employment.
WE WILL NOT unilaterally, without affording notice to the Union or affording it an opportunity to
bargain, assign the work of driving our mechanical sweeper trucks, which had previously been
performed by sweeper truck drivers in the Construction Agreement bargaining unit, to drivers,
who are represented by Laborers International Union of North America, Local 872, herein called
the Laborers.
WE WILL NOT unilaterally, without affording notice to the Union or affording it an opportunity to
bargain, change the terms and conditions of our mechanical sweeper truck drivers by treating
them as members of the bargaining unit covered by the Laborers’ collective-bargaining
agreement.
WE WILL NOT, in any like or related manner, restrain or coerce our employees in the exercise
of the rights guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL restore the status quo ante by returning and assigning the work of driving our
mechanical sweeper trucks to drivers who are represented by the Union and employed in the
Construction Agreement bargaining unit.
WE WILL make sweeper truck drivers, Andrew Barnum and Mike Crane, whole for any lost
wages and other benefits, with interest as a result of our unlawful unilateral changes.
Aggregate Industries
(Empoyer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, 602-640-2146.