Hanson Aggregates B.M.C., Inc.

National Labor Relations Board - Unpublished Board Decisions

Mar 19, 2013

04-CA-033330 (N.L.R.B. Mar. 19, 2013)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
HANSON AGGREGATES BMC, INC.
and Cases 04-CA-033330
04-CA-033508
INTERNATIONAL UNION OF 04-CA-033547
OPERATING ENGINEERS, 04-CA-034290
LOCAL 542, AFL-CIO 04-CA-034362
04-CA-034363
04-CA-034378
ORDER
The Charging Party’s Request for Review of the Acting General Counsel’s
decision sustaining the Regional Director’s compliance determination is granted, and
the case is remanded to the Regional Director for further appropriate action, as
described below.
On September 30, 2008, the Board issued a Decision and Order in this case,
finding, among other things, that the Respondent violated Section 8(a)(5) and (1) of the
National Labor Relations Act by implementing certain changes without bargaining with
the International Union of Operating Engineers Local 542 (the Union).1 As part of the
remedy, the Board, in paragraph 2(b) of its Order, directed the Respondent, upon
request of the Union, to “rescind the changes to terms and conditions of employment
unilaterally implemented on October 24, 2005 and January 1, 2006.”2 The Board did
not specifically discuss these changes, but in the underlying Administrative Law Judge
Decision, the judge found that the Respondent had implemented one unlawful change
on October 24 and seven others on January 1, including implementation of a new

1 353 NLRB 287.
2 Id. at 290.
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compensation system. Under the former compensation system, employees were paid
according to their classification and job level, and they could also receive small raises
by earning skill points. The new compensation system eliminated skill points and
introduced a new system of job classifications that sets a single base wage for each
classification with set yearly wage increases.
By letter dated October 8, 2008, the Union, tracking the Board’s September 30,
2008 Order, demanded that the Respondent “rescind the changes to terms and
conditions of employment unilaterally implemented by the Employer on October 24,
2005 and continuing, as referenced at paragraph 2(b) of the Board’s Order.” By letter
dated November 5, 2008, the Union again demanded that the Respondent “restore
conditions to 2005.” The Union appears to have made a similar demand during a
December 24, 2008 bargaining session.
Despite these seemingly straightforward demands, the Respondent claimed that
the Union’s requests were not clear and asked the Union to list the specific changes it
wanted rescinded. On March 20, 2009, the Union again advised the Respondent that it
wanted to return to “conditions as they existed on October 2005” but also provided a
non-exclusive list of specific changes it wanted rescinded. One specific request was for
restoration of skill points, but the Union did not mention the wage increases associated
with the new compensation system.
Following this exchange, the Respondent advised the Region that the Union was
seeking only restoration of skill points and not rescission of the new compensation
system or the associated wage increases. The Respondent argued that because of the
structure of the former compensation system—something not fully explored by the
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Board or the administrative law judge—the Union was not entitled to restoration of skill
points without asking for rescission of the new compensation system and the associated
wage increases. After investigating the matter, the Region agreed with the Respondent.
At that point, the Region asked the Union whether it in fact wanted the wage
increases rescinded. According to the Region, the Union wavered from its general
position and indicated that it was not asking for rescission of the wage increases but
was asking for restoration of skill points. Subsequently, on March 16, 2010, Union
organizer Frank Bankard gave the Region an affidavit in which he stated that, although
the Union had previously said it was not asking for rescission of the wage increases,
“the Union has always been asking to have everything restored to October 2005,
including wages,” and that this included rescission of the wage increases “if that’s what
needs to be done in order to restore skill points.” Even so, based on the Union’s
perceived shift in position on the wage increases, the Region directed the Union to
expressly request rescission of the wage increases from the Respondent in writing. The
Union’s communications with the Respondent after the Region’s directive do not clearly
include such a request, although a letter dated November 15, 2011 asks the
Respondent why wage rates have not been returned to 2005 levels.
On December 20, 2011, the Regional Director for Region 4 issued a compliance
determination letter, finding that the Respondent had fully complied with the Board’s
Order and closing the cases. In that letter, the Regional Director found, among other
things, that the Union had not made a clear request for rescission of the wage
increases. In so finding, the Regional Director found that (1) the Union had not
specifically requested rescission of the wage increases in the March 20, 2009 letter; (2)
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the Union had told the Region it was not seeking rescission of the wage increases; (3)
the Union subsequently failed to request rescission of the wage increases in writing;
and (4) the Union did not clarify its position on the wage increases when prompted to do
so by the Respondent in August 2011.
On January 26, 2012, the Union filed with the Acting General Counsel an appeal
of the Regional Director’s determination. By letter dated June 26, 2012, the Acting
General Counsel denied the Union’s appeal. In denying the appeal, the Acting General
Counsel essentially adopted the reasoning set forth in the Regional Director’s
compliance determination letter.
Thereafter, on July 7, 2012, the Union filed the instant request for review of the
Acting General Counsel’s decision pursuant to Section 102.53 of the Board’s Rules and
Regulations. See also Ace Beverage Co., 250 NLRB 646 (1980). In requesting review
of the Acting General Counsel’s decision, the Union contends, among other things, that
the Regional Director should not have closed the case on compliance because the
Union had requested rescission of the wage increases, both in its repeated requests for
rescission of all unilateral changes and in its November 5, 2011 letter. The Region filed
a response to the Union’s request for review, the Union filed a reply, the Region filed
two further responses, and the Union filed four further replies.3
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.4 Having duly considered the matter, we grant the Union’s
request for review.

3 The Respondent has not filed a response to the Union’s request for review.
4 Member Griffin, who is a member of the present panel, has recused himself and took
no part in the consideration of this case.
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The Union’s initial request expressly demanded that the Respondent rescind the
changes “as referenced at paragraph 2(b)” of the Board’s Order, which itself refers to
the changes (eight in total) that the judge, adopted by the Board, found unlawful. Since
that initial request, the Union has consistently demanded rescission of all unlawful
changes. The Union’s demands have not always been phrased identically or with
lawyerly precision, but those demands all indicate that the Union desired rescission of
all eight unlawful changes.
The Region, however, imposed a further requirement that the Union expressly
request rescission of the wage increases in writing. Both the Regional Director’s
compliance determination and the Region’s briefs opposing the Union’s request for
review acknowledge the Union’s broad requests for restoration of the status quo to
October 2005, but both reject these requests as insufficient without further explanation.
It is true that the Board requires an affirmative request for rescission of potentially
beneficial unilateral changes,5 but the Board has never indicated that such an
affirmative request must contain the degree of specificity the Region demanded here.
Nor does anything in the Board’s Order indicate that the Union was obligated to set
forth, by name, each of the specific changes it wanted rescinded.
We acknowledge that some confusion was introduced when the Region asked
the Union if it wanted the wage increases rescinded. The Region did so, however, after
nearly a year during which the Union had clearly and repeatedly requested rescission of
all changes. Moreover, the origin of the confusion appears to have been the
Respondent’s request for a list of the specific changes that the Union wanted rescinded,

5 See, e.g., McClatchy Newspapers, Inc., 339 NLRB 1214, 1216 fn. 6 (2003).
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combined with the Respondent’s interpretation of the Union’s March 2009 (non-
exclusive) list as demanding restoration of skill points without rescission of the wage
increases. Accordingly, based on the information before us, the confusion that led to
the Region’s directive for a specific written request resulted from the Respondent’s
claim that the Union’s original, general requests were not adequately clear. Once
again, the Board’s Order does not require the Union to provide a list of the specific
changes it wants rescinded, nor are we aware of any precedent stating that an
affirmative, general request for the rescission of multiple unlawful changes is not
adequate. Under these circumstances, we think that the Union’s general requests
make its intent clear enough: it wanted all unilateral changes, including the new
compensation system, rescinded. Any subsequent confusion over the particulars of the
new compensation system, occasioned by the Respondent’s request for clarification of
the Union’s already-clear demand, does not, in our view, detract from the Union’s
general demands, which encompass rescission of that system. Moreover, the Board’s
usual policy is to resolve any ambiguities or uncertainties that occur during compliance
against the wrongdoer, not the wronged party. See Ferguson Electric Co., 330 NLRB
514, 515-516 (2000), enfd. 242 F.3d 426 (2d Cir. 2001), overruled on other grounds, Oil
Capitol Sheet Metal, Inc., 349 NLRB 1349, 1353 (2007). Thus, without further
explanation of why the Union’s general requests—particularly its direct request that the
Respondent rescind all changes referenced in paragraph 2(b) of the Board’s Order—
were not sufficiently clear, we cannot determine whether the Regional Director
appropriately closed compliance proceedings.
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Accordingly, we remand this case to the Regional Director for Region 4 for
further action consistent with this Order. If, after reviewing this matter in light of the
above considerations, the Regional Director again determines that the Respondent has
fully complied with the Board’s Order, the Regional Director shall issue an amended
compliance determination containing a more detailed explanation of the evidence and
precedent he relies on to determine that the Union’s general requests for rescission of
all changes were not sufficient to invoke the remedial duties set forth in paragraph 2(b)
of the Board’s Order.6 The Union will be entitled to appeal such determination to the
Acting General Counsel pursuant to Section 102.53(a) of the Board’s Rules and
Regulations, and subsequently to file with the Board a request for review of the Acting
General Counsel’s decision on appeal, pursuant to Section 102.53(c) of the Board’s
Rules and Regulations.
Dated, Washington, D.C., March 19, 2013.
MARK GASTON PEARCE, CHAIRMAN
SHARON BLOCK, MEMBER

6 We note that the Region appears to assume that restoration of the former
compensation system (with attendant skill points) would require wage reductions for
those employees who receive more pay under the new compensation system than they
would under the restored former compensation system. The Regional Director’s
determination shall include an explanation of why this is so, assuming that there are in
fact employees who are better off under the new compensation system than they would
be under the restored former compensation system.