Hanson Aggregates BMC, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2008

353 N.L.R.B. 287 (N.L.R.B. 2008)

HANSON AGGREGATES BMC, INC.
353 NLRB No. 28
287
Hanson Aggregates BMC, Inc. and International Un-
ion of Operating Engineers, Local 542, AFL–
CIO. Cases 4–CA–33330, 4–CA–33508, 4–CA–
33547, 4–CA–34290, 4–CA–34362, 4–CA–34363,
and 4–CA–34378
September 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On October 23, 2006, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
General Counsel and the Respondent each filed excep-
tions and a supporting brief. The Charging Party filed
exceptions with supporting argument. The Respondent
filed an answering brief to the General Counsel’s and the
Charging Party’s exceptions. The General Counsel filed
an answering brief to the Respondent’s exceptions and a
reply brief to the Respondent’s answering brief.
The National Labor Relations Board1 has considered
the decision and record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings,
findings,2 and conclusions,3 except as modified below,

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the of the terms of Members
Kirsanow and Walsh on December 31, 2007. Pursuant to this delega-
tion, Chairman Schaumber and Member Liebman constitute a quorum
of the three-member group. As a quorum, they have the authority to
issue decisions and orders in unfair labor practice and representation
cases. See Sec. 3(b) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 1083 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 Contrary to the judge, we find that the General Counsel met his ini-
tial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), of proving that
union activity was a motivating factor in the Respondent’s decision to
discharge employee Glen Peabody. However, we agree with the
judge’s alternative finding that the Respondent met its rebuttal burden
of proving that it would have discharged Peabody on September 3,
2004, even in the absence of his union activity. On that date, the Re-
spondent reasonably believed that Peabody created a serious safety
hazard by falling asleep in his truck with the engine running and the
wheels unblocked. The Respondent’s work rules provide for immedi-
ate termination for employees caught sleeping on duty, and at least one
employee had previously been discharged for that offense alone. After
being confronted about his conduct, Peabody exacerbated the situation
by speeding through the Respondent’s quarry in his truck. In sum, the
Respondent has shown that it would have discharged Peabody in any
event for his misconduct on September 3.
There are no exceptions to the judge’s findings that the Respondent
committed numerous violations of Sec. 8(a)(1) in July and August
2004, that the Respondent did not violate Sec. 8(a)(1) when Supervisor
and to adopt the recommended Order as modified and set
forth in full below.
As fully described in the judge’s decision, the Respon-
dent and the Union met in 26 bargaining sessions from
October 2004 to January 2006 in an unsuccessful attempt
to conclude an initial collective-bargaining agreement.4
The complaint alleges that during this period the Re-
spondent violated Section 8(a)(5) of the Act by failing to
respond to several information requests from the Union.
For the reasons set forth below, we reverse the judge’s
findings with respect to three of those information re-
quests.5
A. The Request for Blue Cross Information
By letter dated July 1, 2005,6 the Union requested 12
items of information regarding the Respondent’s pro-
posal to continue its current health care plan, adminis-
tered by HighMark Blue Cross. The letter stated that the
information was necessary for the Union to investigate
the proposed plan and its administration, and to deter-
mine whether the Union would agree to the plan. Re-
quest item 7 sought “copies of all claims, working docu-
ments and any documents showing the final disposition
of those claims for the health care plan during the last
year.” Item 12 sought a list of “all procedures which you

Shawn Gorg noncoercively questioned an employee concerning the
Union’s prospects, and that the Respondent did not violate Sec. 8(a)(3)
by issuing attendance and tardiness warnings to 17 employees. We
need not pass on the General Counsel’s exceptions to the judge’s fail-
ure to find additional 8(a)(1) violations based on statements by Super-
visor Doug Chilson to Peabody. Any such findings would be cumula-
tive to violations found and would not materially affect the remedy or
our analysis of Peabody’s discharge.
4 We affirm the judge’s findings that the Respondent did not violate
Sec. 8(a)(5) by refusing to meet more frequently from October 19,
2004, to February 24, 2005, but that the Respondent did violate Sec.
8(a)(5) by refusing to bargain about implementation of a premium
holiday for dental insurance coverage. The judge further found that the
Respondent violated Sec. 8(a)(5) by implementing seven bargaining
proposals in the absence of a good-faith impasse in overall negotia-
tions. He found that there were numerous bargaining issues, as well as
information requests, outstanding when the Respondent declared im-
passe. In affirming the judge we find it unnecessary to rely on his find-
ing that the outstanding information requests precluded the possibility
of impasse.
We affirm the judge’s finding that the Respondent did not refuse to
bargain about its safety incentive program and, in the absence of excep-
tions, we affirm his finding that the Respondent did violate Sec. 8(a)(5)
by its untimely and incorrect response to the Union’s request for infor-
mation about safety awards.
5 With regard to the Union’s request for information about the Re-
spondent’s dental premium holiday, we affirm the judge’s finding that
the Respondent unlawfully failed to provide information requested in
items 6 and 7 of the Union’s request. Both the General Counsel and the
Respondent agree that the information requested in item 8 has already
been provided; therefore, we dismiss the allegation as to that item.
6 Unless otherwise stated, all subsequent dates are in 2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD288
have determined not to be covered because they are ex-
perimental during the last 10 years.”
With regard to item 7, the Respondent stated, “claims
and disposition of claims are handled by HighMark Blue
Cross. Furthermore, under federal law, that information
may not be disclosed to the Company or to other par-
ties.” With regard to item 12, the Respondent stated,
“claims are handled by HighMark Blue Cross and the
specifics of those claims may not be released by federal
law.” The Respondent reiterated this position at the par-
ties’ July 12 bargaining session, and provided no infor-
mation or documentation responsive to item 7 or 12.
The Union sent a second request on July 14, repeating
that the information was necessary for the Union to
evaluate the proposed plan. The request asked the Re-
spondent to provide the information in items 7 and 12
stripped of any information that might identify individual
employees.
The Respondent replied by letter of July 20, stating
that it did not handle claims and had no knowledge of
how claims were paid. The letter also stated that the Re-
spondent would look into whether a summary of claims
could be obtained from HighMark Blue Cross. However,
the Respondent did not subsequently provide any infor-
mation responsive to the requests.
The judge dismissed the allegation that the Respon-
dent’s handling of information request items 7 and 12
violated Section 8(a)(5). He stated that the Respondent
had provided the Union with a list of exclusions in Octo-
ber 2004, and that the claims information was provided
in the Respondent’s letter of July 20. We disagree.
First, contrary to the judge, we find that the specific in-
formation requested in items 7 and 12 of the Union’s
letter was not provided in either the October 2004 sub-
mission or the Respondent’s July 20 letter. In particular,
a general list of exclusions such as the one provided in
October 2004 does not suffice as a response to the re-
quest for more detailed information about health care
claims experience and experimental procedures.
We also find that the Union established the relevance
of the requested information as to the claims experience
of nonunit employees under a health plan shared by the
unit employees.7 The Union stated in both its initial re-
quest and its followup letter that the requested informa-
tion was necessary to allow the Union to evaluate the
Respondent’s proposed health care plan. It is reasonable
to assume that some nonunit employees have submitted
claims based on medical conditions that no unit em-

7 Information about the claims experience of unit employees is pre-
sumptively relevant. North American Soccer League, 245 NLRB 1301,
1306 (1979); Nestle Co., 238 NLRB 92, 94 (1978).
ployee has experienced. Information about the disposi-
tion of those claims would provide guidance as to how
HighMark Blue Cross would handle similar claims for
unit employees. We therefore find that the Union has
met its burden of proving the requested nonunit informa-
tion was relevant and necessary to gaining a complete
understanding of the overall Blue Cross plan’s admini-
stration in order to bargain intelligently about it.
We reject the Respondent’s contention that it was not
required to provide the requested information because it
was confidential. The party asserting a claim of confi-
dentiality has the burden of proof. Pennsylvania Power
Co., 301 NLRB 1104, 1105 (1991), citing Washington
Gas Light Co., 273 NLRB 116, 116 (1984). The Union’s
followup letter requested the information with employ-
ees’ names redacted and, consistent with the Health In-
surance Portability and Accountability Act (HIPAA),
limiting the disclosure of protected individually identifi-
able health information. We find that the Respondent
has failed to show that it had a legitimate and substantial
confidentiality interest in the information requested, as
clarified. Cf. Goodyear Atomic Corp., 266 NLRB 890,
891–892 (1983) (Federal Privacy Act does not support
employer’s confidentiality defense to requested disclo-
sure of unit personnel medical information in a form that
is not individually identifiable), enfd. 738 F.2d 155 (6th
Cir. 1984).
Finally, although the information sought by the Union
was not in the Respondent’s possession, the Respondent
had a duty “to make a reasonable effort to secure the
requested information and, if unavailable, explain or
document the reasons for the asserted unavailability.”
Rochester Acoustical Corp., 298 NLRB 558, 563 (1990),
enfd. mem. 932 F.2d 955 (2d Cir. 1991), quoting Good-
year Atomic Corp., supra, 266 NLRB at 896. See also
Garcia Trucking Service, 342 NLRB 764, 764 fn. 1
(2004). The Respondent’s July 20 letter to the Union
stated that the Respondent would look into obtaining a
summary of claims from HighMark Blue Cross, but there
is no evidence that the Respondent did so.
For the above-stated reasons, we reverse the judge and
find that the Respondent violated Section 8(a)(5) by re-
fusing to provide the requested information.
B. Request for Aetna Documents
The Respondent notified the Union on October 25,
2005, that, effective January 1, 2006, Aetna would re-
place Blue Cross as the Respondent’s health care plan
administrator. By letter dated December 1, 2005, the
Union requested copies of all administrative manuals,
rules, or regulations with respect to the proposed Aetna
health plan. At the parties’ December 1 bargaining ses-
sion, the Respondent informed the Union that Aetna did
HANSON AGGREGATES BMC, INC. 289
not publish a separate administrative manual, rules, or
regulations. By letter of December 5, the Respondent
further replied to the information request, stating that the
only change to the existing plan was that of the adminis-
trator and the providers, and that documents previously
provided to the Union were applicable to the new plan.
Relying on this statement, the judge found no violation.
We reverse.
Information concerning the administrator of the unit
employees’ health plan is as presumptively relevant as
the description of the plan itself. Honda of Hayward,
314 NLRB 443 (1994). Consequently, the Respondent
bears the burden of showing that the requested relevant
bargaining information does not exist. Harmon Auto
Glass, 352 NLRB 152, 153 (2008). A bare assertion,
unsupported by testimony or documentary evidence, is
insufficient. Assuming that the Respondent did not pos-
sess any Aetna administrative manuals, rules, or regula-
tions as a result of business discussions leading to the
selection of Aetna to replace Blue Cross, the Respondent
had a duty to seek the requested information from Aetna
and, if the information did not exist, to provide documen-
tation to that effect. Rochester Acoustical Corp., supra,
298 NLRB at 563.
Accordingly, we find that the Respondent violated
Section 8(a)(5) by failing to meet its obligation with re-
spect to this information request.8
C. Request for Information About Dual Health
Care Coverage
Under both the current Blue Cross plan and the Re-
spondent’s proposed Aetna plan, only single and family
coverage were available, requiring employees who de-
sired health plan benefits for themselves and only one
dependent to select family coverage. At the parties’ No-
vember 9 bargaining session, the Union suggested that
health care costs could be reduced if the Respondent
adopted a plan with an additional option for dual (i.e.,
two-person) coverage. The Union orally requested that
the Respondent either check employees’ health care en-
rollment records or poll employees to provide informa-
tion about how many employees would be interested in

8 For the reasons set forth in the judge’s decision, we affirm his find-
ing that the Respondent violated Sec. 8(a)(5) by failing to provide
requested information about medical providers participating in Blue
Cross- and Aetna-administered plans.
To remedy the 8(a)(5) violations found in this section and the pre-
ceding section, we shall order the Respondent to make a reasonable
effort to secure the information from HighMark Blue Cross and Aetna,
and, if any information remains unavailable, to explain and document
the reasons for its continued unavailability.
or qualify for dual health care coverage.9 The Respon-
dent expressed doubt as to whether it had or could get the
requested information.
In its December 1 information request letter, the Union
asked for “a breakdown of the Unit’s demographics per-
taining to elected insurance coverage if the category of
‘Dual’ coverage was available.” During bargaining on
that date, Union Representative Frank Bankard volun-
teered to poll the employees on this issue. By letter
dated December 5, the Respondent stated, “[T]he Com-
pany does not have information on who would, if avail-
able, choose two person coverage. We have suggested
that you canvas the employees.”
Bankard testified that, at some unspecified time, the
Respondent’s chief negotiator, Jeffrey Carey, denied him
permission to poll employees about dual coverage at the
Respondent’s facility. However, the Union’s typed bar-
gaining notes for December 1 and a letter from Bankard
to Carey on December 7 state only that the Respondent
failed to respond to this offer. Bankard testified that he
had previously conducted off-site meetings where he
polled employee sentiment about other bargaining pro-
posals. Inasmuch as such meetings were voluntary, and
those who did not support the Union were unlikely to
attend, he preferred to poll employees about dual cover-
age at the jobsite, where they had to be present for work.
Bankard admitted that he made no attempt to canvas em-
ployees after receiving the Respondent’s December 5
letter suggesting he do so.
The judge found that the requested information was
necessary and relevant for the Union to formulate bar-
gaining proposals with specific cost savings. He also
found that it was not unreasonable for the Union to re-
quest permission to poll employees at the Respondent’s
facility, to ask the Respondent itself to speak with 13
employees who had family plan coverage, or to review
the employees’ personnel files. The judge therefore con-
cluded that the Respondent’s failure to provide the re-
quested information violated Section 8(a)(5). We re-
verse.
The Union requested a “breakdown of the Unit’s
demographics.” When the parties discussed the issue,
union negotiator Bankard volunteered to settle the ques-
tion by polling the employees. He did not, however,
follow through.10

9 At some point, the Union suggested that the Respondent needed to
interview or examine the enrollment records for only the 13 unit em-
ployees with current family plan coverage.
10 Contrary to the judge, the record does not support a finding that
the Respondent refused to let the Union conduct a poll at the jobsite.
Accordingly, there is no need to decide whether the Respondent would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD290
To the extent the judge reasoned that it was unlawful
for the Respondent to refuse to conduct such a poll itself,
we disagree. The Respondent’s statutory bargaining ob-
ligation does not include the duty to poll unit employees
about their receptivity to a hypothetical proposal from
their union representative.11
Based on the foregoing, we find that the Respondent
did not violate the Act by refusing to provide the dual
health care coverage information requested by the Union.
AMENDED REMEDY
The judge’s recommended remedy provides that em-
ployees adversely affected by the Respondent’s unlawful
unilateral changes be made whole in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950). However,
to the extent that those changes did not result in employ-
ees being separated from employment, any make-whole
remedy shall be in accordance with Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971). See, e.g., Raven Government Services, 336 NLRB
991, 992 (2001), enfd. 315 F.3d 499 (5th Cir. 2002).
We shall also order the Respondent to offer any em-
ployees who may have been discharged pursuant to the
unlawful unilateral changes in the Respondent’s atten-
dance policy full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed. However,
the Respondent is entitled to show, at compliance, that it
would have discharged those employees under a preex-
isting attendance policy, avoiding as to those employees
any backpay and reinstatement obligation.12
The Respondent shall also be ordered to rescind and
remove from employees’ files all discipline issued to
them as a result of the unlawful unilateral changes in its
attendance policy. Although the Respondent is required
to remove any record of its discharge or discipline of an
employee under a changed new policy, should the Re-
spondent establish at compliance that it would have dis-
charged or disciplined the employee under a preexisting
policy, it may maintain a record of the employee’s failure
to comply with such policy. See Uniserv, supra.13

have any statutory obligation to permit Union access to its premises for
this purpose.
11 See Warner Press, 301 NLRB 1161 (1991) (Board expressly en-
dorses judge’s statement that the employer is under no obligation “to do
[the Union’s] research . . . merely to help the Union decide whether to
seek those benefits.”).
12 Uniserv, 351 NLRB 1361, 1361 fn. 1 (2007); Allied Aviation Fu-
eling of Dallas, LP, 347 NLRB 248 fn. 3 (2006), enfd. 490 F.3d 374
(5th Cir. 2007).
13 Because, as stated above, the Respondent will have the opportu-
nity at compliance to show that it would have discharged or disciplined
employees even absent the unilateral change in attendance policy, the
ORDER
The National Labor Relations Board orders that the
Respondent, Hanson Aggregates BMC, Inc., Penns Park,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
International Union of Operating Engineers, Local 542,
AFL–CIO (the Union) as the exclusive collective-
bargaining representative of employees in the unit de-
scribed below, by unilaterally changing the terms and
conditions of employment of those employees without
having first bargained with the Union in good faith to
impasse.
(b) Failing and refusing to bargain collectively with
the Union by failing and refusing to furnish relevant in-
formation requested by the Union and by failing to fur-
nish relevant requested information in a timely manner.
(c) Interrogating employees concerning their union
sympathies, soliciting employees’ complaints and griev-
ances and promising employees improved terms and
conditions of employment, threatening employees with
unspecified reprisals, and telling employees it would be
futile to select the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify and give the Union an opportunity to bar-
gain before making any change in the terms and condi-
tions of employment of employees in the following ap-
propriate unit:
All full-time and regular part-time Motor Operators,
Plant Operators, Truck Drivers, Laborers, Welders and
maintenance employees employed by the Employer at
its 852 Swamp Road, Penns Park, Pennsylvania facil-
ity; but excluding all other employees, including tem-
porary employees, Laboratory Technicians, office
clerical employees, managers, guards and supervisors
as defined in the Act.
(b) On request, rescind the changes to terms and condi-
tions of employment unilaterally implemented on Octo-
ber 24, 2005, and January 1, 2006.
(c) Offer to any employees discharged under the uni-
laterally implemented attendance policy who would not
have been discharged under the preexisting attendance

Order and notice shall not include the requirement that the expunction
or reinstatement offers be completed “within 14 days of the date of the
Board’s Order.” Allied Aviation Fuel, supra, 347 NLRB 248 fn. 3.
HANSON AGGREGATES BMC, INC. 291
policy full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(d) Make employees whole for any loss of earnings
and other benefits suffered as a result of its unilateral
changes, in the manner set forth in the remedy section of
the judge’s decision, as amended in this Decision.
(e) Rescind and remove from employees’ files any dis-
cipline issued to them as a result of the unilaterally-
implemented attendance policy, and within 3 days there-
after notify the affected employees that this has been
done and that the discipline will not be used against them
in any way.
(f) In a timely manner, furnish the Union with the nec-
essary and relevant information it requested, including a
list of medical providers for its proposed Aetna health
plan and the information requested regarding the dental
premium holiday requested in items 6 and 7 of the Un-
ion’s December 1, 2005 letter.
(g) Request from HighMark Blue Cross claims exclu-
sions and experimental procedures information sought by
the Union in its July 1, 2005 letter, as clarified in its July
14 letter, and provide that information to the Union. If
that information is unavailable, explain or document the
reasons for this unavailability.
(h) Request from Aetna copies of all administrative
manuals, rules, or regulations requested by the Union on
December 1, 2005. If that information is unavailable,
explain or document the reasons for this unavailability.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(j) Within 14 days after service by the Region, post at
its facility in Penns Park, Pennsylvania, copies of the
attached notice marked “Appendix.”14 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since July 21,
2004.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
with the International Union of Operating Engineers,
Local 542, AFL–CIO (the Union) as the exclusive col-
lective-bargaining representative of our employees in the
unit described below, by unilaterally changing the terms
and conditions of employment of those employees with-
out having first bargained with the Union in good faith to
impasse.
WE WILL NOT fail and refuse to bargain collectively
with the Union by failing and refusing to furnish relevant
information requested by the Union and by failing to
furnish relevant requested information in a timely man-
ner.
WE WILL NOT interrogate employees concerning their
union sympathies, solicit employees’ complaints and
grievances and promise employees improved terms and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD292
conditions of employment, threaten employees with un-
specified reprisals, or tell employees it would be futile to
select the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL notify and give the Union an opportunity to
bargain before making any change in the terms and con-
ditions of employment of employees in the following
appropriate unit:
All full-time and regular part-time Motor Operators,
Plant Operators, Truck Drivers, Laborers, Welders and
maintenance employees employed by us at our 852
Swamp Road, Penns Park, Pennsylvania facility; but
excluding all other employees, including temporary
employees, Laboratory Technicians, office clerical em-
ployees, managers, guards and supervisors as defined
in the Act.
WE WILL, on request, rescind the changes to terms and
conditions of employment unilaterally implemented on
October 24, 2005, and January 1, 2006.
WE WILL offer to any employees discharged under the
unilaterally implemented attendance policy who would
not have been discharged under the preexisting atten-
dance policy full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make employees whole for any loss of earn-
ings and other benefits suffered as a result of our unilat-
eral changes, with interest.
WE WILL rescind and remove from employees’ files
any discipline issued to them as a result of the unilater-
ally-implemented attendance policy and, WE WILL, within
3 days thereafter, notify the affected employees that this
has been done and that the discipline will not be used
against them in any way.
WE WILL, in a timely manner, furnish the Union with
the necessary and relevant information it requested, in-
cluding a list of medical providers for our proposed
Aetna health plan and the information regarding the den-
tal premium holiday requested in items 6 and 7 of the
Union’s December 1, 2005 letter.
WE WILL request from HighMark Blue Cross claims
exclusions and experimental procedures information
sought by the Union in its July 1, 2005 letter, as clarified
in its July 14 letter, and provide that information to the
Union. If that information is unavailable, WE WILL ex-
plain or document the reasons for this unavailability.
WE WILL request from Aetna copies of all administra-
tive manuals, rules, or regulations requested by the Un-
ion on December 1, 2005. If that information is unavail-
able, WE WILL explain or document the reasons for this
unavailability.
HANSON AGGREGATES BMC, INC.
Margaret M. McGovern, Esq. and Elana R. Hollo, Esq., for the
General Counsel.
Karl A. Fritton, Esq. and Jonathan R. Nadler, Esq., of Phila-
delphia, Pennsylvania, for the Respondent-Employer.
Louis Agre, Esq., of Fort Washington, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on May 18 and 19 and July 17 through 20,
2006, in Philadelphia, Pennsylvania, pursuant to a consolidated
complaint and notice of hearing in the subject cases (the com-
plaint) issued on April 3, 2006, by the Regional Director for
Region 4 of the National Labor Relations Board (the Board).
The underlying charges were filed on various dates in 2004,
2005,1 and 2006 by International Union of Operating Engi-
neers, Local 542, AFL–CIO (the Charging Party or the Union)
alleging that Hanson Aggregates BMC, Inc. (the Respondent or
the Employer) has engaged in certain violations of Section
8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act). The Respondent filed a timely answer to the complaint
denying that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent engaged in a
number of independent violations of Section 8(a)(1) of the Act
including coercive interrogation, threats of unspecified repri-
sals, and the solicitation of grievances and complaints while
promising improved terms and conditions of employment in
order to discourage employees from supporting the Union. The
complaint further alleges the Respondent terminated an em-
ployee and issued written attendance and tardiness warnings to
employees in violation of Section 8(a)(1) and (3) of the Act.
Additionally, the complaint alleges that the Respondent refused
to provide necessary and relevant information to the Union and
unilaterally implemented a number of mandatory subjects of
bargaining in violation of Section 8(a)(1) and (5) of the Act
without notice or affording the Union an opportunity to bargain
absent an overall impasse in good-faith bargaining.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel2 and the Respondent, I make the fol-
lowing

1 All dates are in 2005, unless otherwise indicated.
2 The General Counsel’s motion to correct the transcript attached to
its brief, is granted. I note, however, that the change from Ms.
McGovern at p. 365, L. 10, should be to Mr. Nadler.
HANSON AGGREGATES BMC, INC. 293
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in extracting and
processing crushed stone and manufacturing bituminous asphalt
at its quarry in Penns Park, Pennsylvania, where it annually
sold and shipped goods and materials valued in excess of
$50,000 directly to customers located outside the Common-
wealth of Pennsylvania. The Respondent admits and I find that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a United Kingdom based operator of quarries
throughout the world. It employs approximately 9000 workers,
many of whom are represented by labor organizations.
Respondent took over operations of the quarry in Penns
Park, Pennsylvania, from a predecessor employer in the sum-
mer of 2003. Around that time, the Union commenced an or-
ganizing campaign and filed a representation petition. An elec-
tion was held in July 2003 which the Union lost. The following
year the Union again attempted to organize the Respondent’s
employees. After a petition was filed, an election was held on
August 31, 2004. The Union won the election and was certified
by the Board on September 9, 2004 (GC Exh. 3).
At all material times, Tom Spellman was Respondent’s op-
eration manager for South Eastern Pennsylvania and New Jer-
sey, Shawn Gorg served as the plant manager, and Doug Chil-
son held the position of assistant plant manager. Manager of
Labor Relations Jeffrey Carey served as the Respondent’s chief
negotiator during the parties’ collective-bargaining negotia-
tions.
Union Organizer Frank Bankard attended each of the 26 col-
lective-bargaining sessions held between the parties and served
as the primary note taker while employee Glen Peabody was
one of the Union’s leading adherents who worked on the night
shift at the Respondent’s quarry. International Representative
Joseph Giacin served as the Union’s chief negotiator from Feb-
ruary 2005 to January 2006.
The parties commenced collective-bargaining negotiations
for an initial contract in the fall of 2004 but have been unable to
reach an agreement to date. The Respondent proffered its last
and best contract offer to the Union on or about September 2
that was rejected by the union membership on September 28.
B. The 8(a)(1) Allegations
1. Allegations concerning Doug Chilson
The General Counsel alleges in paragraphs 6(a)–(e) of the
complaint that Chilson in July and August 2004, interrogated
employees concerning their union sympathies, solicited em-
ployee’s complaints and grievances in order to discourage em-
ployees from supporting the Union, and threatened employees
with unspecified reprisals if they continued to support the Un-
ion.
The Board has held that interrogation is not a per se violation
of Section 8(a)(1) of the Act. Rossmore House, 269 NLRB
1176, (1984), affd. sub nom. HERE Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). In determining whether an interro-
gation is unlawful, the Board examines whether, under all the
circumstances the questioning reasonably tends to interfere
with, restrain, or coerce employees in the exercise of their Sec-
tion 7 rights. Rossmore House, 269 NLRB at 1177–1178.
Emery Worldwide, 309 NLRB 185, 186 (1992). Under the
totality of circumstances approach, the Board examines factors
such as whether the interrogated employee is an open and ac-
tive union supporter, the background of the interrogation, the
nature of the information sought, the identity of the questioner,
and the place and method of interrogation. Rossmore House,
269 NLRB at 1178 fn. 20; Bourne v. NLRB, 332 F.2d 47, 48
(2d Cir. 1964); Sunnyvale Medical Clinic, 277 NLRB 1217,
1218 (1985).
a. Conversation in mid-July 2004 at the quarry
Employee Darlene Foerster testified that she was aware of
the Union’s organizing campaign in the summer of 2004.
Sometime in mid-July 2004, while she was working in the
batch plant control room, Chilson asked her, “What do you
think about unions.” Foerster replied, “I have not had any bad
experiences.” Foerster further testified that Chilson asked her
if we treat you ok here and stated that we have done good
things for you by whenever you were out sick you could use a
vacation day. According to Foerster, Chilson said a number of
negative things about the Union and ended the conversation by
stating, “It may be for your best interests not to vote for a Un-
ion.”
Employee Frederick Goodman testified that in mid-July
2004, while in Chilson’s truck, he was asked by Chilson, “What
do you think about this Union thing and do you need a mouth
piece or need somebody to talk for you.” Goodman replied, “I
can speak for myself.”
While Chilson testified during the course of the hearing, the
Respondent did not ask him any questions about his conversa-
tions with Foerster or Goodman.
Foerster impressed me as a credible witness whose testimony
has a ring of truth to it. Her straight forward recitation of what
Chilson stated in there conversation convinces me that Chilson
made the statements alleged in the complaint. Likewise, I note
a pattern with Chilson asking and making the same statements
to a number of different employees.
For all of these reasons, and particularly noting that the Re-
spondent did not rebut the testimony of the General Counsel’s
witnesses regarding this allegation, I find that Chilson’s state-
ments violated Section 8(a)(1) of the Act as alleged in para-
graph 6(a) of the complaint. Goya Foods of Florida, 347
NLRB 1118 (2006).
b. Conversation on July 21 in Chilson’s office
Peabody testified that while he was in the office when Chil-
son was going over some records of absenteeism, Chilson
asked him, “What do you think about this Union drive,” and
“What could the Union do for you that the Company can’t do
for you.” Chilson further stated during the conversation that “I
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD294
hope that you will change your mind and vote for the company
and give the company a chance.”
The conversation and the questions asked are not unlike the
same exchange that Chilson had with Foerster and Goodman.
The conversation with Peabody took place prior to the repre-
sentation election and is consistent in all respects with the
method that Chilson followed when engaging employees in
conversations about the union campaign.
Under these circumstances, and noting that Chilson did not
rebut Peabody’s testimony supporting this allegation, I con-
clude that the statements made by Chilson are threatening and
coercive. Therefore, I find that they violate Section 8(a)(1) of
the Act.
c. Conversations on July 21 and mid-August 2004
in Chilson’s truck
James Hall currently works for the Union as an organizer
and was terminated by the Respondent on September 3, 2004.
During his tenure of employment, he testified that he had sev-
eral conversations with Chilson when the Union was discussed.
In the first conversation that occurred on or about July 21,
2004, while he was working in the asphalt plant, Hall got into
Chilson’s truck. According to Hall, Chilson asked him,
“Whether he was going to vote ‘yes or no’ for the Union.” Hall
replied that he had been in the Union for 21–22 years and never
had a problem with it.
In the second conversation that occurred in mid-August
2004, Hall was talking to employee Sharon Orrick near the
scale house, and was trying to convince her to vote for the Un-
ion. According to Hall, Chilson came around the corner and
said in the presence of both employees, “You guys are going to
vote no, aren’t you.” Hall replied, “[N]o, I am going to vote
yes.”
Chilson did not rebut the statements attributed to him by
Hall. The Respondent challenges Hall’s credibility and argues
that he is biased because of his termination and affiliation with
the Union. I am convinced that Chilson made the statements in
his conversations with Hall. Once again, these statements are
consistent with the testimony of three other employees who
also had conversations with Chilson about the Union.
Under these circumstances, I conclude that the statements are
coercive and therefore, find that the Respondent violated Sec-
tion 8(a)(1) of the Act as alleged in paragraphs 6(c) and (e) of
the complaint.
d. Conversation in mid-August 2004 in
Chilson’s truck
Peabody testified that in or around mid-August 2004 while
working at the quarry he had an occasion to get into Chilson’s
truck. The topic of the union election came up and Chilson
made a number of statements about the Union. He first asked
Peabody, “How he was leaning towards the vote.” Peabody
replied that he was always for the Union. Chilson said, “I was
hoping that you would change your mind that the Union can’t
do anything for you. I hope you think real hard and hopefully
you change your mind about voting for the Union and give the
company a second chance.” Peabody replied that we gave the
Company a chance in 2003 and they didn’t do anything so that
is why we are going to have another vote.
Chilson did not rebut the statements that Peabody attributed
to him.
I am convinced that Peabody’s recitation of the conversation
is accurate. Chilson consistently interrogated a number of em-
ployees about there sympathies for the Union and how they
intended to cast their vote.
For all of these reasons, I find that Chilson made the state-
ments alleged in paragraph 6(d) of the compliant. Therefore,
they are violative of Section 8(a)(1) of the Act.
2. Allegations concerning Shawn Gorg
The General Counsel alleges in paragraph 7 of the complaint
that Gorg interrogated an employee concerning the employee’s
union sympathies.
a. Facts
Employee George Benneman testified that sometime in July
2004, but definitely before the August 31, 2004 representation
election, he had a conversation with Gorg near the shop. Ben-
neman admitted that he initiated the conversation with Gorg by
stating to him, “that he did not believe these people really knew
what a union is all about.” Gorg replied, “What do you think.”
Benneman replied, “I think the Union will be voted in.”
b. Analysis
Although Gorg did not testify at the hearing, I am not con-
vinced that the above recitation violates the Act. In this regard,
Benneman initiated the conversation and Gorg’s reply in no
way can be considered coercive or threatening that rises to the
level of interrogation under the Act.
Therefore, I recommend that paragraph 7 of the complaint be
dismissed.3
3. Allegations concerning Tom Spellman
The General Counsel alleges in paragraph 8 of the complaint
that Spellman interrogated an employee concerning the em-
ployee’s union sympathies.
Foerster testified that while working at the quarry in August
2004, she had a conversation with Spellman in her truck.
Spellman asked Foerster, “What she thought about Unions.”
Foerster replied that she never had a problem with one before.
Spellman asked Foerster to give the Company another chance
to prove itself and asked her to think about it.
Although Spellman testified during the course of the hearing
he did not rebut the statements attributed to him by Foerster.
I am convinced that Spellman made the statement alleged in
paragraph 8 of the complaint. First, as I found above, Foerster
is a credible witness who testified under subpoena and articu-
lated her recitation of the conversation in a clear, concise, and
forthright manner. Second, the timing of the conversation was
proximate to the scheduled representation election on August
31, 2004. Lastly, the question raised by Spellman was consis-
tent with the conversations that Chilson had with Foerster ear-
lier in July 2004. I note that Chilson admitted that in either
June or July 2004, he informed Plant Manager Gorg of the

3 The General Counsel, in its posthearing brief, concedes this issue.
HANSON AGGREGATES BMC, INC. 295
Union’s distribution of organizing cards at the quarry. If both
Chilson and Gorg knew about the Union distributing authoriza-
tion cards, I infer that Spellman, as there superior, was also
aware of the organizing campaign. I base this on Chilson’s
testimony that Gorg told him he would pass the information on
and Chilson’s testimony that on September 2 and 3, 2004, he
telephoned Spellman on three occasions to inform him of inci-
dents that occurred at the quarry during the night shift.
For all of these reasons, I find that Spellman interrogated Fo-
erster about her union sympathy which is violative of Section
8(a)(1) of the Act.
C. The 8(a)(1) and (3) Allegations
1. Allegations concerning written attendance and
tardiness warnings
The General Counsel alleges in paragraph 9 of the complaint
that Respondent issued written attendance and tardiness warn-
ings to 17 employees because they were seeking union repre-
sentation and selected the Union as their collective-bargaining
representative.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). In Manno Electric, 321
NLRB 278 fn. 12 (1996), the Board restated the test as follows.
The General Counsel has the burden to persuade that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in the protected activity.
a. Facts
The Respondent, in its answer, admits that it issued written
attendance and tardiness warnings to seventeen employees on
or about the dates alleged in the complaint but denied that the
warnings were in any way related to the employee’s union ac-
tivities.
The General Counsel offered limited evidence to link the
warnings with the employee’s union activities. Indeed, some of
the employees that testified on behalf of the General Counsel
including Peabody, Foerster, and James Lamb, all admitted that
they were late or absent from work for which they received
written warnings. For example, Lamb admitted that he was late
ten times before receiving the July 24, 2004 written warning
and was verbally warned about his tardiness on a number of
occasions before he received the disciplinary warning. I also
note that the General Counsel introduced an exhibit into evi-
dence that showed the absenteeism and tardiness written warn-
ings between November 2002 and September 2004 of those
employees listed in paragraph 9 of the complaint (GC Exh. 16).
b. Analysis
Since the General Counsel did not establish its Wright Line
burden or show any nexus between the employee’s union ac-
tivities and the written warnings, it has not proven the allega-
tions in paragraph 9 of the complaint. Although, I previously
found that respondent representatives interrogated three em-
ployees about there union sympathies who are listed in para-
graph 9 of the complaint, the General Counsel did not conclu-
sively establish that these employees received the written warn-
ings because of their union activities. Indeed, the three em-
ployees admitted that they were late or absent and that is why
they received the written warnings. In fact, of the remaining 14
employees listed in the complaint, the General Counsel did not
submit any evidence that these individuals were involved in
union activities other then the mere allegation that they re-
ceived the written warnings because they selected the Union as
their collective-bargaining representative.4
Under these circumstances, I recommend that this allegation
be dismissed.
2. The termination of Glen Peabody
The General Counsel alleges in paragraph 10 of the com-
plaint that on or about September 7, 2004, the Respondent dis-
charged its employee Glen Peabody because he was active on
behalf and supported the Union.
a. Facts
Peabody commenced employment with the Respondent’s
predecessor in March 2002, and remained employed when the
Respondent took over in July 2003 until his termination on
September 7, 2004.
Peabody performed maintenance and truck operator duties
that included carrying rock and crushed stone in his assigned
haul truck. Peabody primarily worked the evening shift with
hours of work from 4:30 p.m. to 4 a.m. He was directly super-
vised by Chilson.
Peabody has been a union member since 1990 and partici-
pated in the two union organizing campaigns at the Respondent
in July 2003 and July 2004. Peabody, during the July 2004
campaign, actively distributed and collected union authoriza-
tion cards from fellow employees and passed out union pam-
phlets in the breakroom. During the same campaign, Peabody
frequently wore shirts at work with the union logo and it was
common knowledge throughout the quarry that Peabody was an
ardent union supporter.
Peabody’s work history and record while employed both
with the Respondent and its predecessor was not without inci-
dent. For example, in his relatively short term of employment,
Peabody has been issued both verbal and written warnings for
excessive absenteeism and tardiness, careless disregard for
equipment, leaving work without completing the job, and was

4 I note that many of the written attendance and tardiness warnings
predated the filing of the representation petition on July 21, 2004, and
no evidence was introduced by the General Counsel that the Respon-
dent was aware of the Union’s organizing activity before that date.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD296
involved in a truck accident that cost the Respondent in excess
of $6000 to repair.
On September 3, 2004, Peabody was working in the quarry
cleaning up waste materials. Earlier that morning, a female
employee suffered an injury that required Chilson to leave the
jobsite to accompany her to the hospital. During Chilson’s
absence from the quarry, one of the employees contacted him to
state that the men were running out of work. Chilson told the
employee to inform the men to hold tight until he returned to
the quarry. Accordingly, the employees including Peabody
filled there trucks with gasoline and waited for Chilson to re-
turn to the jobsite. Peabody, after filling his truck with gasoline
and visiting the restroom, returned to his assigned haul truck.
He took several aspirin due to experiencing a headache, turned
on the truck engine, and put his head back while listening to the
truck stereo. Employee Mathew Williams testified that Chilson
returned to the quarry around 3:30 a.m.
Peabody next remembers a knock on his truck window by
Chilson around 3:45 a.m. Chilson informed Peabody that he
was going to be written up for sleeping on the job. Peabody
responded that he was not sleeping but admitted that he had his
eyes closed.
Chilson testified that when he returned to the quarry after
taking the female employee home from the hospital he did not
remember seeing Peabody near the lunchroom. He asked a
number of employees if they knew where Peabody was and
attempted to call him on the radio. None of the employees
knew where Peabody was located. Chilson then walked to-
wards the haul truck that Peabody normally drove and observed
that the engine was running. Chilson climbed up the ladder to
look in the cab window and observed Peabody leaning back in
his seat. He knocked loudly on the window four or five times
while calling Peabody’s name in a loud voice. Finally, Pea-
body jumped out of his seat and Chilson instructed him to ac-
company him to the office. When they arrived at the office,
Chilson testified that Peabody admitted to him that he was
asleep in the truck. Peabody categorically denies that he was
asleep in the truck. Because Chilson could not locate the cor-
rective action forms in the office, he telephoned Spellman to
inform him of the problem. Spellman instructed Chilson to
write up the incident on a note pad. Chilson informed Peabody
that they would handle the matter on September 7, 2004, when
Gorg was expected to return form vacation, but gave Peabody a
statement that he prepared summarizing what took place earlier
that morning including the fact that he found Peabody asleep in
his haul truck (GC Exh. 4). After Peabody and Chilson signed
the statement, Chilson instructed Peabody to clock out and go
home.
Chilson proceeded to the lunchroom and observed Peabody
driving the haul truck towards the shop at an excessive rate of
speed. Chilson got into his pickup truck and chased Peabody
traveling around 30 miles per hour, while attempting to call
Peabody on the radio to tell him to slow down. When Chilson
finally caught up with Peabody at the shop, he informed him
that he needed to slow down when driving on the quarry prem-
ises. According to Chilson, Peabody admitted to him that he
was driving around 28 miles per hour, a speed in excess of the
posted 15-mile-per-hour limit. Peabody denies that he in-
formed Chilson that he was driving approximately 28 miles per
hour. Both Chilson and Peabody engaged in a heated conversa-
tion regarding this incident and Chilson informed Peabody that
it would be handled on September 7, 2004, when Gorg returned
to work. Chilson memorialized the speeding incident on the
bottom of the written statement that noted Peabody was asleep
in his truck earlier that morning (GC Exh. 4).
Spellman telephoned Peabody at home on Friday afternoon,
September 3, 2004, just before he was about to leave for work,
and informed him that he was being placed on temporary sus-
pension until Gorg returned to work. Spellman told Peabody
that if he was cleared of these incidents, he would be paid for
his lost time. Spellman testified that Peabody told him during
the telephone conversation that he did fall asleep in his haul
truck and that he was driving faster than he should have when
he was bringing the truck back to the shop area. Peabody de-
nies that he informed Spellman that he was asleep in the truck
or was driving the haul truck at an excessive rate of speed.
On Tuesday morning, September 7, 2004, Spellman tele-
phoned Peabody early in the morning and told him to report to
work that day. Peabody, upon reporting to work, was told by
Chilson to see Gorg. After Peabody arrived at the office, Gorg
informed him that he was being terminated and read him the
reasons for the termination (GC Exh. 5).
b. Analysis
I am not persuaded under Wright Line, that the General
Counsel has made a strong showing that the Respondent was
motivated by antiunion considerations when it terminated Pea-
body.
There is no disagreement that the Respondent knew that
Peabody was an ardent union supporter and exhorted fellow
employees to vote for the Union in the August 31, 2004 repre-
sentation election. Likewise, I previously found that Chilson
interrogated Peabody about his union activities and threatened
him with unspecified reprisals if he continued to support the
Union.
The Respondent asserts that the termination was for legiti-
mate business reasons due to Peabody’s past work record cul-
minating with the two incidents that occurred on September 3,
2004.
In balancing the equities in this case, I am mindful of the fact
that the Respondent has approximately 9000 employees
throughout its worldwide operations and in many of its facili-
ties the employees are represented by labor organizations in-
cluding two in the immediate Philadelphia, Pennsylvania area.
Thus, the Respondent is accustomed to dealing with a number
of different labor organizations in its daily operations. Like-
wise, it is noted that the General Counsel has not alleged in the
complaint that any other employee of Respondent was termi-
nated because of their union activities despite the Union’s vic-
tory in the representation election.
It strikes me that if the Respondent really wanted to termi-
nate Peabody because of his union activities it stands to reason
it would have done so prior to the representation election so as
to prevent him from casting a vote and to show other union
supporters that the same fate could happen to them. It was
during this period that the Respondent became aware of his
HANSON AGGREGATES BMC, INC. 297
vocal support for the Union based on a number of conversa-
tions that occurred between Peabody and Chilson. In these
conversations, Chilson gleaned further evidence that Peabody
was an ardent union supporter. Likewise, it does not withstand
scrutiny that Peabody signed the statement on September 3,
2004, that specifically charged him with the dischargeable of-
fense of sleeping on the job but testified that he informed Chil-
son on the same day that he was not asleep. If Peabody denied
he was asleep, despite recognizing that he could be terminated,
it seems logical to me that he would have noted this on the
statement that he signed.5
The inescapable conclusion is that the termination on Sep-
tember 7, 2004, was solely based on the two incidents that oc-
curred on September 3, 2004, in addition to Peabody’s past
work record rather then his earlier involvement and support of
the Union. I also note that Peabody admitted in his testimony
that he was going over the speed limit when he left the break-
room in his haul truck on his way to the shop. Significantly,
the General Counsel dismissed another unfair labor practice
charge filed by the Union in which the Respondent asserted that
an employee was terminated for sleeping in her truck on work-
time (R. Exhs. 30 and 31).6 Thus, there is no question that
sleeping on the job is a dischargeable offense for a first infrac-
tion (R. Exh. 29).
For all of the above reasons, I recommend that the allega-
tions in paragraph 10 of the complaint be dismissed.7
D. The 8(a)(1) and (5) Allegations
1. Allegations concerning frequency of bargaining
The General Counsel alleges in paragraph 11 of the com-
plaint that since on or about October 19, 2004, the Respondent
and the Union have met at various times for the purposes of
negotiating their initial collective-bargaining agreement. Since
on or about November 11, 2004, the Union has requested that
the Respondent meet with it more frequently, however, from
December 9, 2004, until February 24, the Respondent failed
and refused to meet at reasonable times to negotiate a collec-
tive-bargaining agreement.

5 While there is a direct credibility conflict between the testimony of
Spellman and Chilson when compared with Peabody concerning the
issues of sleeping in the haul truck and driving at an excessive rate of
speed when leaving the quarry premises, I need not resolve it due to my
finding that the General Counsel did not conclusively establish that
Peabody was terminated because of his activities on behalf of the Un-
ion.
6 I note that the dismissal letter states that the Employer has dis-
charged another employee for the same reason and its policy states that
employees are subject to discharge for this behavior. The other em-
ployee referred to in the dismissal letter is Peabody.
7 If others disagree with my finding that the General Counsel did not
establish a prima facie case under Wright Line, I would still find that
the Respondent would have terminated Peabody even in the absence of
his protected activities. See, e.g., Yuker Construction Co., 335 NLRB
1072 (2001) (discharge of employee based on mistaken belief does not
constitute unfair labor practice, as employer may discharge an em-
ployee for any reason, whether or not it is just, so long as it is not for
protected activity).
a. Facts
By letter dated November 11, 2004, Bankard requested
Carey to provide four dates for bargaining between December
9, 2004, and January 14, by November 15, 2004 (GC Exh. 13).
By letter dated November 15, 2004, Carey responded and noted
that the parties were presently scheduled to meet on December
7, 2004. By agreement of the parties, that meeting was can-
celed and rescheduled for December 14, 2004 (GC Exh. 14).
Carey, in that letter, proposed the dates of January 12, 13, or 20
for negotiation sessions. Bankard testified that Carey informed
him that he intended to negotiate once every 3 or 4 weeks be-
cause of his busy schedule and he could not meet back to back
or more frequently. During the parties’ negotiation session on
December 14, 2004, the Union asked Carey for additional bar-
gaining dates. Carey replied that because of scheduled vaca-
tions and the Christmas and New Year’s holidays, the next
possible available date was January 12 (GC Exh. 15).
b. Analysis
I note that the parties engaged in 26 bargaining sessions be-
tween October 19, 2004, and January 6, 2006 (GC Exh. 11).
They met once in October, November, and December 2004,
once in January and February 2005, twice in March 2005, four
times in April 2005, twice in May 2005, three times in August
2005, once in September 2005, twice in November 2005, once
in December 2005, and once in January 2006. It is also noted
that the General Counsel has not alleged that the Respondent
refused to meet with more reasonable frequency at any time
after February 24. Indeed, I find that the degree of frequency in
months after February 24 is not unlike the span of time between
bargaining sessions held between December 9, 2004, and Feb-
ruary 24.
During the critical period, the evidence discloses that Bank-
ard went to the Respondent’s facility on December 21, 2004, to
review certain items of information. Likewise, the Respondent
continued to respond to a number of the Union’s information
requests during that period (R. Exhs. 11 and 14).
Based on the forgoing, and particularly noting that the Re-
spondent negotiated with the Union on four occasions during
the critical period in addition to responding to requests for in-
formation, I am not convinced that the Act was violated.
Moreover, the critical period fell during scheduled employer
vacations and over the Christmas and New Year’s holiday.
Accordingly, I recommend that the allegations in paragraph
11 of the complaint be dismissed.8
2. The July 1, 2005 information request
The Board explained in Asarco, Inc., 316 NLRB 636, 643
(1995), enfd. in relevant part 86 F.3d 1401 (5th Cir. 1996), that:

8 I also note that the Regional Director in her July 29 dismissal letter
in Case 4–CA–33886 involving the same parties rejected the Union’s
allegation that the Respondent failed to meet at reasonable times and
stated that “since January 12, 2005, the parties have met on 14 occa-
sions, exchanged proposals and counterproposals, reached agreements
in some areas and narrowed their differences in others. Accordingly, I
find that the Employer has not violated its obligation to bargain with
the Union.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD298
In dealing with a certified or recognized collective-
bargaining representative, one of the things which em-
ployers must do, on request, is to provide information that
is needed by a bargaining representative for the proper
performance of its duties. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967). Following an appropriate request,
and limited only by considerations of relevancy, the obli-
gation arises from the operation of the Act itself. Ells-
worth Sheet Metal, 224 NLRB 1506 (1976). In each case,
the inquiry is whether or not both parties meet their duty to
deal in good faith under the particular facts of the case.
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1973). The legal
standard concerning just what information must be pro-
duced is whether or not there is “a probability that such
data is relevant and will be of use to the union in fulfilling
its statutory duties and responsibilities as the employees’
exclusive bargaining representative.” Bohemia, Inc., 272
NLRB 1128 (1984).
The General Counsel alleges in paragraph 12 of the com-
plaint that the Union by letter dated July 1, sought information
concerning employee claims for the incumbent health care plan
and the medical exclusions under that plan.
a. Facts
By letter dated July 1, the Union requested 12 items of in-
formation to evaluate the Respondents bargaining proposal to
continue its current health care plan in effect (GC Exh. 23).
The complaint alleges that the Respondent refused to supply the
information for items 7 and 12 in the July 1 letter. By letter
dated July 12, the Respondent replied to the Union and stated
that it previously gave them the summary plan description
(SPD) and other requested information for the requests noted in
items 7 and 12 (GC Exh. 24). Likewise, during the parties’
July 12 negotiation session, the Respondent informed the Union
that it believed it had given them the requested information in
October 2004 (GC Exh. 25). By letter dated July 14, the Union
further explained why it needed the 12 items of information and
its relevancy (GC Exh. 26). By letter dated July 20, the Re-
spondent replied to the Union’s information requests (GC Exh.
27).
b. Analysis
The evidence discloses that the Respondent provided the Un-
ion a large packet of materials in October 2004 in response to a
comprehensive request for information in anticipation of com-
mencing initial contract negotiations (R. Exhs. 1(a)–(zz)). Con-
tained in those materials was a copy of the current Blue
Cross/Blue Shield medical plan for bargaining unit employees.
My review of the medical plan shows that a list of exclusions is
contained therein (R. Exh. 1(vv)).
With respect to the Union’s request for claims information
for the current health plan, I note that the Respondent replied to
the Union’s request on July 20 and provided the information to
the Union.
Under these circumstances, and particularly noting that the
Union received the information alleged in paragraph 12 of the
complaint, I recommend that those allegations be dismissed.
3. The November 3, 2005 information request
The General Counsel alleges in paragraph 13 of the com-
plaint that the Union orally on November 3, and by letter dated
December 1, requested that the Respondent provide a list of
medical providers which are currently in your plan and not in
your new proposed plan. The complaint alleges that the Re-
spondent refused to provide this information.
a. Facts
In August 2005, the Respondent distributed a bulletin to bar-
gaining unit employees announcing that Aetna would become
its health care provider effective in 2006 (GC Exh. 28). This
bulletin was not provided to the Union at the time it was dis-
tributed to employees. By letter dated October 25, the Respon-
dent officially notified the Union of the change from Blue
Cross/Blue Shield to Aetna (GC Exh. 31). By letter dated Oc-
tober 26, the Union requested to negotiate over the Respon-
dent’s change of health care providers (GC Exh. 32).
The record discloses that during the November 3 bargaining
session, the Union orally requested that the Respondent provide
it with a list of medical providers for the new proposed plan
and whether those providers have changed form the former
health care plan (GC Exh. 33). Discussions of the need for the
providers continued at the parties’ November 9 bargaining
session (GC Exh. 34). By letter dated December 1, the Union
in item 7 renewed its request for a list of all medical providers
which currently are in your old plan but not in your new pro-
posed plan (GC Exh. 35). The Union sought the information
to assist employees in the transition of care and to negotiate
whether certain providers from the former medical plan could
be included in the new health care plan.
b. Analysis
Carey testified that he informed the Union that the SPD was
the same for the former health care plan and the new Aetna
plan. Therefore, the Respondent argues that it provided the list
of medical providers in response to the Union’s request.
Carey admitted in his testimony, however, that some of the
health care providers changed when the Respondent obtained a
new health care plan.
The Respondent further argues that it provided an 800 tele-
phone number to the Union in order to contact Aetna along
with their computer website. Additionally, the Respondent
provided the name and telephone number of the plans adminis-
trator that the Union could contact if it had questions about the
plan and the medical providers that it included.
Both Giacin and Bankard credibly testified that they never
received a list of medical providers from the Respondent in
response to the information request. While both union repre-
sentatives acknowledge that Carey provided them with alterna-
tive methods of contacting Aetna to obtain the information,
they were unsuccessful in doing so. For example, Bankard
attempted to access the website and was not able to pinpoint the
information he was seeking. Likewise, calling the 800 tele-
phone number did not achieve the desired results as the cus-
tomer service representative refused to provide the information
to the Union because they were not subscribers in the plan.
HANSON AGGREGATES BMC, INC. 299
Lastly, Bankard left several telephone and fax messages for the
plan administrator but none were returned.
Based on the forgoing, I conclude that an Employer owes a
greater duty to give necessary and relevant information to an
exclusive bargaining representative then providing a website or
an 800 telephone number especially when it admits that some
medical providers did change when the Respondent changed its
health care plan. Indeed, I am of the opinion that Carey should
have independently obtained the information from the website
or the customer service 800 number and given it to the Union.9
Likewise, I believe Carey should have personally contacted the
plan administrator and either obtained the information for the
Union or made arrangements for the Union to meet with the
administrator.
Accordingly, I find that the General Counsel sustained the
allegations in paragraph 13 of the complaint and therefore, the
Respondent violated Section 8(a)(1) and (5) of the Act.
4. Premium holiday for dental coverage
The General Counsel alleges in paragraph 14 of the com-
plaint that from October 24 to December 31, the Respondent
implemented a premium holiday for dental coverage for bar-
gaining unit employees without notice or affording the Union
an opportunity to bargain absent an overall impasse in good-
faith bargaining for a collective-bargaining agreement.
a. Facts
By letters dated October 12 and 25, the Respondent informed
the Union and its employees that there will be a premium holi-
day beginning October 24 through December 31. This meant
that the employees would not be required to make contributions
to the plan for there dental coverage for the holiday period.
The Respondent informed the Union that the insurance com-
pany was distributing moneys to their current and former poli-
cyholders and they had decided to return the money to the em-
ployees in the form of a premium holiday (GC Exhs. 31 and
37). By letter dated October 26, the Union requested to negoti-
ate over the premium holiday for dental coverage (GC Exh.
32). By letter dated October 28, the Union renewed its request
to negotiate and sought separate dates to address the premium
holiday for dental coverage exclusive of their regular bargain-
ing sessions (GC Exh. 38). The Union did not receive a reply
to its October 28 request to negotiate. During the parties No-
vember 3 and 9 bargaining sessions, the Union asked questions
about whether the money from the insurance company was in
the form of an overpayment or a refund. Carey discussed the
issue with the Union during the course of negotiations but in-
terchanged the term overpayment and refund which prompted
the Union to press for negotiations over this issue. The bar-
gaining minutes confirm that the Respondent wanted to move
onto other subjects such as management rights and was unwill-
ing to set up separate bargaining sessions to address this matter
(GC Exhs. 33 and 34).

9 While I note that Carey did provide the website and directions to
Bankard on how to obtain the information and testified that he was able
to extract the names of pertinent medical providers, I find that Carey
had a duty to print this information and provide it to the Union in re-
sponse to there information request (R. Exh. 41; GC Exh. 57).
b. Analysis
There is no dispute that the Respondent notified the Union in
advance of the premium holiday for dental coverage and the
Union immediately requested to negotiate. Bankard credibly
testified that had the Union been able to negotiate they were
interested in exploring a different method of how the overpay-
ment of the dental premiums could be rebated to the bargaining
unit employees. Likewise, the Union wanted to negotiate over
whether the overpayment could be distributed to former em-
ployees who participated in the dental plan during the year but
had since retired or left the Employer. Instead of entertaining
negotiations, the Respondent unilaterally determined the man-
ner in which the overpayment would be returned to bargaining
unit employees without any input from the Union.
I conclude that the Union, as the exclusive bargaining repre-
sentative of the unit employees, had the right to negotiate the
method of how the overpayment would be distributed to Re-
spondent’s employees. Since the Respondent steadfastly re-
fused to negotiate despite several attempts by the Union, I find
that they violated Section 8(a)(1) and (5) of the Act.10
5. Information regarding the safety incentive program
The General Counsel alleges in paragraph 15 of the com-
plaint that the Union requested information concerning the
criteria the Respondent applied in administering its safety in-
centive program for 2004 and 2005. It further asserts that while
the Respondent provided some information it was not accurate
and it delayed in providing all of the information until on or
about January 6, 2006.
a. Facts
During the parties’ November 9 bargaining session, Bankard
asked Carey what safety awards were given out in the past year.
He also sought information on the dollar amount of the bonuses
that employees received and whether it was distributed to one
or more separate groups of employees. The Respondent sub-
mits that it provided the Union information on the safety incen-
tive program when it gave them a voluminous amount of mate-
rial in October 2004 prior to the commencement of collective
bargaining for the parties’ initial contract (R. Exh. 1(w)). By
letter dated December 22, the Union requested additional in-
formation concerning “Safety Bonuses” as it recently learned
that bonuses were just distributed to bargaining unit employees
(GC Exh. 43). By letter dated January 6, 2006, Carey re-
sponded to the Union’s December 22 request and included the
same information that it had provided the Union in October
2004 in addition to the safety incentive reports for the period
ending September 30 broken down into separate groups with
the amount of the bonus awarded to each bargaining unit em-
ployee. The Respondent also provided the Union information
regarding a safety meeting schedule and training documentation
forms from its recent December 21 safety training meeting (GC
Exh. 44).

10 Under these circumstances, I reject the Respondent’s argument in
its posthearing brief that the suspension of the dental insurance premi-
ums was a gift that did not require negotiations with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD300
b. Analysis
Based on the forgoing exchange of documents, I conclude
that the Union received sufficient information responsive to its
request to satisfy the requirements of the Act. On the other
hand, I note that Carey informed the Union during the Novem-
ber 9 bargaining session that the facility’s employees consti-
tuted a single group for safety incentive purposes. While this
information was ultimately corrected, it was not done so until
January 6, 2006. The Board has held that unreasonable delay in
furnishing such information is as much a violation of the Act as
a refusal to furnish any information at all. Bundy Corp., 292
NLRB 671 (1989) (violation of Act to ignore or delay supply-
ing the union with necessary information for 2/12 months).
Under these particular circumstances, while I conclude that
the Respondent did respond and provide the Union with rele-
vant and necessary information responsive to their request, it
did not do so in a timely manner with respect to the composi-
tion of the safety groups. Indeed, the information that the Re-
spondent originally provided to the Union was incorrect.
Therefore, I find that the Respondent violated Section 8(a)(1)
and (5) of the Act by not timely responding to the Union’s re-
quest for information and providing incorrect information on
the composition of the safety groups.
6. Information for premium holiday for dental coverage
The General Counsel alleges in paragraph 16 of the com-
plaint that the Union by letter dated December 1, requested
certain information related to the Respondent’s premium holi-
day for dental coverage.
a. Facts
By letter dated December 1, the Union requested nine items
of information regarding the Respondent’s previously an-
nounced premium holiday for dental coverage (GC Exh. 39).
The complaint alleges in paragraph 16 that the Respondent
refused to provide necessary and relevant information as it
concerned items 5–8 of the December 1 letter.
By letter dated December 5, the Respondent replied to the
Union’s December 1 letter (GC Exh. 40). The response an-
swered the Union’s question as it concerned item 5 but for
items 6–8, the Respondent stated that “this question is irrele-
vant since only employees on the payroll at the time of the
‘holiday’ and contributing to dental insurance were affected.”
By letter dated December 7, the Union reiterated its need for
the information and noted that the Respondent’s December 5
response was incomplete in that it did not provide all of the
requested information (GC Exh. 41).
b. Analysis
While the Respondent responded in a timely manner to the
Union it did not specifically provide the information in items
6–8. As previously discussed above, the Union was interested
in representing the interests of those employees who left the
Employer prior to the announcement of the premium holiday
regarding whether they were due refunds for premiums that
they had previously paid. Thus, the request for information
was necessary and relevant to formulate bargaining proposals
for presentation to the Respondent. As noted above, the Re-
spondent refused to negotiate over the premium holiday for
dental coverage.
Under these circumstances, I conclude that the Respondent
did not fully provide necessary and relevant information that
the Union had requested on December 1.
Therefore, I find that the Respondent violated Section 8(a)(1)
and (5) of the Act.
7. Request for administrative manuals
The General Counsel alleges in paragraph 17 of the com-
plaint that by letter dated December 1, the Union requested
copies of all administrative manuals, rules, or regulations with
respect to the Respondent’s new proposed health care plan.
a. Facts
As discussed above, the Respondent officially notified the
Union on October 25, that effective January 1, 2006, Aetna will
replace Blue Cross/Blue Shield as the Employer’s medical
insurance carrier (GC Exh. 31). By letter dated October 26, the
Union requested to negotiate over the change in medical insur-
ance carriers (GC Exh. 32). The parties discussed the issue of
the new proposed health care plan at their bargaining sessions
of November 3 and 9 (GC Exhs. 33 and 34). By letter dated
December 1, the Union requested information with respect to
nine items relating to the new health care provider (GC Exh.
35). The allegation in paragraph 17 of the complaint only con-
cerns item 5 in the December 1 letter. By letter dated Decem-
ber 5, the Respondent replied to the Union and informed them
that the only change to the existing plan is that of the adminis-
trator and the providers and that the documents previously
given to them are applicable.
b. Analysis
The Respondent repeatedly informed the Union that unlike
Blue Cross/Blue Shield, Aetna did not publish a separate ad-
ministrative manual, rules or regulations and therefore, it could
not supply the Union with such information. This was specifi-
cally discussed at the parties’ December 1 negotiation session
which is confirmed in the Union’s notes of that meeting (GC
Exh. 36). Those notes specifically reflect Carey referencing
item 5 of the Union’s December 1 request for information.
Under these circumstances, and particularly noting that the
Respondent responded to the Union’s request for information
that is alleged in paragraph 17 of the complaint, I find that the
Act has not been violated. Therefore, I recommend that para-
graph 17 of the complaint be dismissed.
8. Information for a dual health care plan
The General Counsel alleges in paragraph 18 of the com-
plaint that by letter dated December 1, the Union requested
information concerning the number of unit employees who
would qualify for a dual health care plan.
a. Facts
By letter dated July 1, the Union confirmed that the Respon-
dent proposed to continue its current Blue Cross/Blue Shield
health care plan for bargaining unit employees and sought
twelve items of information (GC Exh. 23). At the parties July
13 bargaining session, the Union made a proposal that the Em-
HANSON AGGREGATES BMC, INC. 301
ployer provide health, dental, and vision insurance coverage to
all bargaining unit employees. It further proposed that the Em-
ployer shall have the right to change insurance plans during the
life of the agreement, provided that the replacement insurance
is substantially equal or greater to the present coverage (R. Exh.
2).11 As discussed above, the Respondent distributed a bulletin
to employees in August 2005 announcing that it intended to
change health care plans from Blue Cross/Blue Shield to Aetna
(GC Exh. 28). While the Union was not provided this bulletin
by the Respondent, Bankard received a copy from one of the
employees. It was not until October 25 that the Respondent
officially notified the Union that it intended to change health
care plans effective in January 2006.
The next negotiation session after the Union became aware
of the intended change in health care plans occurred on August
11. The Union proposed that the Employer maintain its current
health care plan with Blue Cross/Blue Shield. During the par-
ties August 30 bargaining session the Respondent rejected the
Union’s proposal.
On November 3, during their bargaining session, the Union
proposed a 542 Health and Welfare plan to substitute for the
Employer’s newly proposed Aetna health care plan. This plan
was sponsored by the Union and was presently in effect at an-
other of Respondent’s facilities whose employees were repre-
sented by a sister local of the Union. The Respondent consid-
ered the Union’s proposal during a caucus but determined that
the 542 Health and Welfare plan was more costly per employee
then the newly proposed Aetna health care plan and so in-
formed the Union.
At the next bargaining session held on November 9, the Un-
ion suggested that costs could be decreased if the Respondent
would consider adopting a health care plan that provided for
single coverage, dual coverage, and family coverage. The Un-
ion pointed out that the current and newly proposed health care
plan at the Respondent only provided for single and family
coverage. The Union opined that a number of the families
presently in the Respondent’s health care plan were required to
select family coverage even if only two family members com-
prised the family. The Union suggested that if a number of the
families were able to switch to dual coverage, a plan only cov-
ering two people, the health care costs for both the Respondent
and the employees could be substantially reduced. Accord-
ingly, the Union orally and subsequently by letter dated De-
cember 1, requested that the Respondent either poll there em-
ployees or check their health care records to provide them this
information (GC Exh. 39). The Union informed Carey that
upon information and belief only thirteen employees were pres-
ently enrolled in their family plan. Bankard volunteered to poll
the employees at the facility but this was rejected by Carey.
During the bargaining session Carey promised to look into the
Union’s request (GC Exh. 34). By letter dated December 5, the
Respondent replied to the Union’s request for information relat-
ing to dual coverage by stating in pertinent part: “As we have
answered you on several occasions, you are aware that the

11 The July 1 correspondence and the union proposal were made
prior to the Respondent’s notice to the Union and its employees that it
intended to change its health insurance provider to Aetna.
Company offers only single or family coverage and the Com-
pany does not have information on who would, if available,
choose two person coverage; We have suggested that you can-
vas the employees” (GC Exh. 40).
b. Analysis
There is no dispute that health care coverage was a signifi-
cant component in the parties discussions for an initial collec-
tive-bargaining agreement. Both the Union and the Respondent
made a number of proposals involving different types of health
care plans during the course of there protracted negotiations. In
seeking information for a dual health care plan, the Union was
attempting to convince the Respondent that such changes could
potentially save both the Respondent and the employees money
on there health care costs. In my opinion, such a request for
information was necessary and relevant for the Union to formu-
late concrete bargaining proposals with specific cost savings.
The Union’s request to Carey for permission to poll the em-
ployees at the facility was not unreasonable. Nor was it unrea-
sonable for the Union to request the Employer to speak to the
thirteen employees and inquire how many family members
were enrolled under the family plan or for the Employer to
review the 13 employees’ personnel files for the specific infor-
mation. Rather, the Respondent rejected each of these emi-
nently reasonably suggestions and never provided the requested
information to the Union.
Under these circumstances, I find that the Respondent re-
fused to provide the Union with necessary and relevant infor-
mation and therefore, violated Section 8(a)(1) and (5) of the
Act.
9. Bargaining over the safety incentive program
The General Counsel alleges in paragraph 19 of the com-
plaint that the Union orally requested on November 9 to negoti-
ate over the Respondent’s safety incentive program and since
that date the Respondent has refused to do so.
a. Facts
The parties met to negotiate on November 9. I have re-
viewed the Union’s bargaining notes for that date and while
Bankard sought information concerning the safety bonuses that
were given to bargaining unit employees, no request to negoti-
ate over the safety incentive program is found therein (GC Exh.
34). The Respondent argues that since there were no changes
made to the safety incentive program since 1999, there was no
obligation to negotiate even if a request to bargain had been
made (GC Exh. 44, item c). I note that the Union’s notes for
January 6, 2006 (GC Exh. 45), reflect that Bankard requested to
negotiate over safety awards but no mention of the safety in-
centive program is found therein.
b. Analysis
Based on the forgoing, and particularly noting that the Un-
ion’s notes do not confirm that an independent request was
made by the Union to negotiate on November 9 over the safety
incentive program, I find that the General Counsel has not sus-
tained the allegations alleged in paragraph 19 of the complaint.
Under those circumstances, I recommend that the allegations be
dismissed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD302
10. The January 1, 2006 implementation of conditions
of employment
The General Counsel alleges in paragraph 20 of the com-
plaint that the Respondent unilaterally implemented seven con-
ditions of employment listed therein without prior notice or
affording the Union an opportunity to bargain concerning this
conduct and absent an overall impasse in good-faith bargaining
for a collective-bargaining agreement as a whole.
a. Facts
At the parties December 1, 2005 negotiation session, Carey
informed the Union that the parties were at impasse. Giacin
asked Carey if there were no open issues. Carey replied that
there were a lot of open issues. Bankard asked Carey whether
he was going to implement the terms of the contract, Carey
replied no. Bankard asked Carey whether the Respondent
would continue to negotiate and Carey said no, we are at im-
passe (GC Exh. 36).
By letter dated December 7, the Union confirmed that there
were still numerous open issues that needed to be negotiated
and many outstanding requests for information that had not
been provided or responded to. The Union also vigorously
contested the Respondent’s statement that the parties were at
impasse. In fact, Bankard asserts in the letter that there were
approximately 37 outstanding issues that needed resolution (GC
Exh. 41).
By letter dated December 9, the Respondent updated all bar-
gaining unit employees on the status of collective-bargaining
negotiations (GC Exh. 46). It apprised the employees that on
September 2, it presented its final offer to the Union. On or
about September 28, however, the union membership rejected
the final offer. Thereafter, the parties resumed collective-
bargaining negotiations and met four additional times in an
effort to achieve an agreement. The letter further apprised the
employees that the Respondent was of the opinion that it had
reached a bargaining impasse and it intends to implement many
of the provisions contained in its final offer. The seven provi-
sions that it specifically intended to implement are set forth in
paragraph 20 of the complaint and include lump-sum wage
increases, the elimination of skill points and wage level sys-
tems, the continuation of the Employer’s health care and re-
tirement plans, and an attendance policy.
b. Analysis
In Bottom Line Enterprises, 302 NLRB 373 (1991), the
Board held that during negotiations, “an employer’s obligation
to refrain from unilateral changes extends beyond the mere duty
to give notice and an opportunity to bargain, it encompasses a
duty to refrain from implementation at all, unless and until an
overall impasse had been reached in bargaining as a whole.”
In Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd.
sub. nom. Television Artists AFTRA v. NLRB, 395 F.2d 622
(D.C. Cir. 1968), the Board defined an impasse as a situation
where “good-faith negotiations have exhausted the prospects of
concluding an agreement.” See also Newcor Bay City Division,
345 NLRB 1229, 1238 (2005). This principle was restated by
the Board in Hi-Way Billboards, Inc., 206 NLRB 22, 23 (1973),
enf. denied on other grounds 500 F.2d 181 (5th Cir. 1974), as
follows:
A genuine impasse in negotiations is synonymous with a
deadlock; the parties have discussed a subject or subjects in
good faith, and, despite their best efforts to achieve agreement
with respect to such, neither party is willing to move from its
respective position.
The burden of demonstrating the existence of impasse rests
on the party claiming impasse. The question of whether a valid
impasse exists is a “matter of Judgment” and among the rele-
vant factors are “[t]he bargaining history, the good faith of the
parties in negotiations, the length of the negotiations, the im-
portance of the issue or issues as to which there is disagree-
ment, [and] the contemporaneous understanding of the parties
as to the state of negotiations.” Taft Broadcasting Co., supra at
478.
I find that the Respondent has not met its burden to establish
a valid impasse. The Respondent did not inform the Union that
impasse was reached over any specific issue. Rather, it appears
that the Respondent determined that the parties were at impasse
based on the totality of its final proposal.
As discussed above, there were numerous bargaining issues
and information requests outstanding when the Respondent
prematurely declared impasse. Indeed, a number of those in-
formation requests were directly related to the health care plan.
The Union, once being officially informed on October 25 that
the Respondent intended to change health care plans, made it
very clear that it wanted to negotiate over the newly proposed
plan and even proposed its own plan for consideration by the
Employer. Further, I note that after the Respondent declared
impasse, the parties participated in another negotiation session
on January 6, 2006, and Carey responded on that date to out-
standing information requests previously submitted by the Un-
ion on November 11, December 22 and 24, and January 3, 2006
(GC Exh. 44). Such actions by the Respondent belie its decla-
ration of impasse.12
Likewise, I am in agreement with the General Counsel’s ar-
gument that under the Board’s holding in Decker Coal, 301
NLRB 729 (1991), the Respondent’s failure to provide neces-
sary and relevant information precluded impasse, and therefore,
prevented lawful implementation of a final contract offer. In-
deed, the refusal of the respondent to specifically provide
health care information to the Union directly impacts on the
core issues separating the parties in this case. See Caldwell
Mfg. Co., 346 NLRB 1159 (2006). Accordingly, I reject the
Respondent’s arguments to the contrary in its post hearing brief
including its position that the information requests were made
solely for tactical reasons of avoiding impasse and delay.
Based on the forgoing, I find that the Respondent has failed
to meet its burden of establishing the existence of a valid im-

12 In contrast to the Board’s holding in Sierra Bullets, LLC, 340
NLRB 242 (2003), the record in the subject case contains all of the
parties bargaining notes during their 26 bargaining sessions which
spanned approximately 16 months and there was extensive testimony
by representatives of the union and the respondent on the course of
bargaining throughout the negotiation period.
HANSON AGGREGATES BMC, INC. 303
passe. Accordingly, the Respondent violated Section 8(a)(1)
and (5) of the Act when it unilaterally implemented new terms
and conditions of employment on January 1, 2006.
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. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by interrogating employ-
ees concerning their union sympathies, soliciting employee’s
complaints and grievances and promising employees improved
terms and conditions of employment, threatening employees
with unspecified reprisals, and telling employees it would be
futile to select the Union.
4. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act by refusing to
furnish the Union with necessary and relevant information re-
garding a current list of medical providers that is not in the new
proposed health plan, information concerning the premium
holiday for dental coverage, information concerning a dual
health care plan, not providing the Union with information in a
timely manner, by unilaterally implementing and refusing to
negotiate in good faith with the Union concerning the premium
holiday for dental coverage, and unilaterally implementing on
January 1, 2006, without notice or bargaining and absent an
overall impasse in good-faith bargaining, wage increases and
lump-sum payments to employees, the elimination of skill point
and wage level systems, the continuation of the Employer’s
health care and retirement plans and the implementation of an
attendance policy.
5. Respondent did not violate Section 8(a)(1) of the Act
when Shawn Gorg interrogated an employee concerning the
employee’s union sympathies.
6. Respondent did not violate Section 8(a)(1) and (3) of the
he Act by issuing written attendance and tardiness warnings to
seventeen employees and when it terminated its employee Glen
Peabody.
7. Respondent did not violate Section 8(a)(1) and (5) of the
Act by refusing to negotiate over the safety incentive program,
by refusing to meet at reasonable times with the Union to nego-
tiate a collective-bargaining agreement, by refusing to provide
necessary and relevant information regarding all claims and
exclusions of the Respondent’s 2005 health care plan, by refus-
ing to provide copies of all administrative manuals, rules and
regulations for the new proposed health care plan, and by refus-
ing to provide information concerning the criteria applied in
administering its safety incentive program for 2004 and 2005.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Since the Respondent refused to bargain with the Union
about the premium holiday for dental coverage and the imple-
mentation of wage increases and lump-sum payments to em-
ployees, the elimination of the skill point and wage level sys-
tems, the continuation of the Employer’s health care and re-
tirement plans and the implementation of an attendance policy,
I shall order it to cease and desist from engaging in such con-
duct and to bargain on request with the Union about these mat-
ters. In regard to the wage increases and lump-sum payments
in addition to the other unilateral changes, the Union may use
its discretion as to whether the changes should be rescinded.
The Respondent shall also make whole any employee for any
loss of earnings and other benefits suffered as a result of its
unlawful action. Backpay shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest to be computed in the manner set forth in New Horizons
for the Retarded, 283 NLRB 1173 (1987). The Respondent
shall rescind and remove from employees’ files all discipline
issued to them as a result of Respondent’s unilateral implemen-
tation of the attendance policy and make employees whole for
any loss they may have suffered as a result of such discipline in
the manner set forth in the above cases.
[Recommended Order omitted from publication.]