Hendrickson Trucking Company

National Labor Relations Board - Administrative Judge Opinions

May 16, 2014

07-CA-086624 (N.L.R.B. May. 16, 2014)

JD(ATL)–16–14
Jackson, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
HENDRICKSON TRUCKING COMPANY
and Cases 07–CA–086624
07–CA–095591
LOCAL 164, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS (IBT)
Patricia A. Fedewa, Esq.,
for the Acting General Counsel.
Timothy J. Ryan, Esq., Linda L. Ryan, Esq.,
and Katherine J. Donohue, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
DONNA DAWSON, Administrative Law Judge. This case was tried in Detroit, Michigan,
on May 21-22, 2013. The Acting General Counsel1 issued the complaint in the first case on
November 21, 2012, and an order consolidating the cases and a consolidated amended complaint
on March 27, 2013 (the complaint). The complaint alleges that Hendrickson Trucking Company
(Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by
unilaterally implementing the terms in its last collective-bargaining agreement offer without
bargaining with the Union to a good-faith impasse. It also alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by subsequently failing and refusing to bargain collectively
towards a new collective-bargaining agreement and failing and refusing to respond to
information requested by the Union. Finally, the complaint alleges that bargaining unit strikers
engaged in an unfair labor practice strike and Respondent violated Section 8(a)(3) and (1) of the
Act by failing and refusing to reinstate those strikers after they made an unconditional offer to
return to work. Respondent filed its answer and amended answer denying all essential

1 For brevity purposes, the Acting General Counsel and counsel for the Acting General Counsel will be
referred to as the “General Counsel.”
JD(ATL)–16–14
2
allegations in the complaint. Respondent also raised an affirmative defense which will also be
addressed later in this decision.
On the entire record, including my observation of the demeanor of all witnesses, and
consideration of the briefs filed by the General Counsel and Respondent, I make the following5
FINDINGS OF FACT
I. JURISDICTION10
Respondent, a Michigan corporation, is engaged in the interstate transportation of
aggregate materials, and maintains an office and facility in Jackson, Michigan. During the
calendar year ending December 31, 2011, Respondent derived gross revenues in excess of $1
million for the transportation of freight in interstate commerce under arrangements with and as 15
an agent for common carriers, including Michigan Materials and Aggregates Company, d/b/a
Stoneco of Michigan, Inc., an entity which operates to and from points outside the State of
Michigan. I find, and Respondent admits, 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. 20
II. ALLEGED UNFAIR LABOR PRACTICES
The Facts
25
A. The Parties
Respondent is a trucking company which transports aggregate materials (such as sand,
gravel, large rocks, stone, etc.). It operates as a seasonal employer that generally employs most
of its employees from April 1 (when business picks up) through December 1 (when business30
slows down/winter slow down). Therefore, between about December 1 of each year and April 1
of the next year, Respondent lays off a number of its employees, including drivers, mechanics
and parts/utility workers. On or shortly after April 1 of each year, Respondent normally re-hires
the laid-off employees. The layoff and re-hire times might vary from year-to-year, based on the
amount of work available (e.g., the slow season may begin the end of November), and 35
Respondent has historically used a seniority list to determine who is laid off and re-hired. (Tr.
44, 406.) At all times material, Respondent’s primary agents and/or supervisors have been:
James (Jim) Hendrickson, owner; Thomas James Hendrickson (T. J. Hendrickson), vice
president and in-house counsel; Jack Durbrow (Durbrow), chief financial officer/treasurer; and
Ryan Hendrickson (R. Hendrickson), mechanic supervisor. T. J. Hendrickson, Jack Durbrow,40
and R. Hendrickson served as Respondent’s bargaining representatives for the current
negotiations at issue in this case.
Since about 1977, Respondent has recognized the Union as the exclusive collective-
bargaining representative of the bargaining unit (the unit): consisting of: 45
JD(ATL)–16–14
3
All drivers, mechanics, mechanics helpers, and parts/utility employees employed by
Respondent at or out of its facility located at 1077 South Toro, Jackson, Michigan, but
exclusive of all guards and supervisors as defined in the Act.
(GC Exhs. 1(s) and 4.)2 During the relevant time period,3 the unit included approximately 20-21 5
employees. (Tr. 161; R. Exh. 12.)
In recent bargaining history, the parties have reached successive collective-bargaining
agreements in 2002, 2005, and 2008, the most recent of which was effective from April 1, 2008
to March 31, 2012. (GC Exh. 4.) Prior to this complaint, the parties have not been involved in 10
an unfair labor practice dispute with or before a third party since 2002 when they appeared
before the Aggregate Carrier Association, pursuant to their collective-bargaining agreement at
the time. This association was an aggregate trucking/transportation industry organization that
included arbitration services in its member dues for employers and unions.
15
During most of the relevant time period, Alan Sprague (Sprague) served as the Union’s
president and chief negotiator until the Union removed him from this position on or about
January 30, 2013. (Tr. 34.) Thomas Mathews (Mathews) served during the same time period as
the Union’s steward and recording secretary (Tr. 247-248). Subsequently, a trustee was
appointed for the local Union.20
B. Overview of the Expired Collective-Bargaining Agreement- Key Provisions
As stated, the last collective-bargaining agreement expired on March 31, 2012. It
covered a broad range of terms and conditions, but several areas (employee health and welfare 25
insurance, employee 401(k) retirement plan, overtime calculations, and dispute resolution)
proved to be main issues of contention when the parties began negotiating for a successor
agreement in February 2010. To a lesser extent, the parties also discussed other issues during
their negotiations for a new collective-bargaining agreement, such as a continued freeze on wage
rates, voluntary lay offs during the off season, and use of earned vacation, which will be 30
discussed in this decision. (GC Exh. 4.) Several of the key areas or provisions addressed during
bargaining are set forth below.
The health and welfare section of the expired agreement required Respondent to make
contributions, specified by the expired agreement (ranging from $242.75 to $267.85 per week 35
per employee), into the Michigan Conference of Teamsters Welfare Fund (the MCTW Fund) for
each unit employee who had been on the payroll 90 days or more. Generally, Respondent was to
make all healthcare insurance contributions for each employee for each week worked by that
employee. Respondent paid lower contributions (for a certain number of weeks based on the
number of weeks worked) into a separate plan (the “ENN-NN Plan”) for seasonally laid-off 40
employees based on a formula set forth in the provision. The expired agreement also allowed
employees to opt out of the plans covered by the Fund provided they submitted proper proof of

2 Abbreviations used in this decision are as follows: “Tr.” For Transcript; “GC Exh.” for General Counsel’s
Exhibit; “R. Exh.” for Respondent’s Exhibit; “GC Br.” for General Counsel’s Brief; and “R. Br.” for
Respondent’s Brief.
3 The relevant time period is 2012, unless otherwise specified.
JD(ATL)–16–14
4
other healthcare coverage pursuant to the Fund’s requirements. Employees who opted out would
receive $1-per-hour increase in pay. (GC Exh. 4, art. 14.)
Regarding the retirement plan, the expired agreement called for Respondent to match
dollar-for-dollar each unit employee’s contribution up to a certain percentage of gross wages, 5
pursuant to a formula set forth in the agreement. (GC Exh. 4, art. 15.)
The expired agreement described overtime pay as, “[a]ll time worked in excess of forty
(40) hours in any one (1) week and/or eight (8) hours in any one (1) day, shall be paid at the rate
of one and one-half (1 ½) times the regular hourly rate.” (GC Exh. 4, schedules A and B.) It is 10
undisputed that unit employees were paid overtime at 1-1/2 times the regular hourly rate after
working in excess of 8 hours a day (vs. 40 hours).
The Agreement required the parties to resort to arbitration if a disputed matter was not
settled during step 3 of the grievance process. Pursuant to step 3, the matter would be submitted 15
to a Federal mediator assigned to the area, and if not settled, “[t]o arbitration where the arbitrator
shall be a person or procedure mutually agreed upon by both the Employer and the Union.” If
the parties did not agree on either an arbitrator or arbitration process within 5 days, then the
dispute/grievance would be submitted to the “Joint State’s Committee.” The fees and expenses
of the arbitrator would be shared equally by the parties. (GC Exh. 4, art. 5.) However, the 20
parties had never utilized arbitration under the expired agreement. As stated above, the last time
the parties submitted a dispute to a third party was in 2002.
According to the expired agreement, during the period from December 1 through April 1
(each year) in the succeeding year, Respondent could reduce the size of its work force (during 25
the slow season discussed above), and give up to 10 employees the opportunity to voluntarily
take a layoff from employment. This “voluntary layoff” was offered by seniority, allowing the
most senior to the least senior employee on the list to take a voluntary layoff. Recall of those
laid off, on April 1, was also based on seniority. (GC Exh. 4, art. 11.)
30
Finally, regarding vacation, employees were allowed up to 3 weeks of vacation,
depending on their tenure (1 week for 1-3 years; 2 weeks for 3-10 years; and 3 weeks for 10-15
years). The selection for vacation was done from April 1-30 each year based on seniority. Any
requests made thereafter had to be made 4 weeks prior to the time requested off, and would be
granted on a first come, first serve basis, “contingent with the efficient operation of the 35
business.” It is undisputed that Respondent rarely allowed employees to take off more than 1
week during the busy season. Although vacation time was unpaid, Respondent agreed to pay
employees “$1.00 per hour for all hours worked for vacation and Holidays.” (GC Exh. 4, art.
13.)
40
C. February Through June – Negotiations for Successor Collective-Bargaining Agreement
On January 4, Respondent notified the Union of its intent to terminate the Agreement on
April 1. On January 20, the Union advised Respondent of its desire to continue the existing
agreement and to negotiate changes to it. (GC Exhs. 5-6.) In summary, bargaining began on 45
February 27 and ended on June 13 (after seven in-person sessions) after Respondent declared the
parties had reached an impasse, and subsequently implemented its second final offer. There is
JD(ATL)–16–14
5
no real dispute about what areas the parties did and did not agree upon. There is, however, some
factual dispute as to whether the Union requested, on several occasions during the negotiation
sessions, a breakdown of cost savings associated with several of Respondent’s economic
proposals, and whether Respondent provided the Union with additional cost saving information.
5
1. 1st bargaining session- February 274
On February 27, the parties’ respective negotiating teams met to begin bargaining for a
new/successor collective-bargaining agreement. As previously stated, Respondent’s team
consisted of T. J. Hendrickson, Durbrow, and R. Hendrickson. The Union’s team included 10
Sprague and Mathews.5 During this first session, the parties spent most of their time exchanging
and explaining their initial proposals. The parties used the expiring collective-bargaining
agreement as a framework for their proposed changes. In summary, Respondent was concerned
about saving money, claiming that its expenses were increasing and that it had been losing
money. Its mantra, repeated throughout negotiations, was “we need to stop the bleeding.” By 15
contrast, the Union believed that it had sacrificed wages and many other benefits in past years in
attempts to help Respondent save money. Accordingly, its goal was to restore some of those lost
wages and benefits in the new agreement.
Respondent proposed the following changes: eliminating payroll dues deduction (art. 1); 20
increasing the probationary period from 90 days to 1 year, with no placement on the seniority list
until after 1 year (art. 1, 11); eliminating layoffs for those employees with the highest seniority
during the off-season (December 1-April1) (art. 11, sec. 5); eliminating the equipment list (art.
11); reducing vacation time to 1 week during the busy period, and reducing vacation pay from $1
per hour to $.50 per hour (art. 13); requiring all employees to pay 25 percent of their health 25
insurance premiums, eliminating the formula to pay insurance in the off-season and increasing
the time an employee must be employed before healthcare would be provided from 90 days to
180 days (art. 14); and eliminating pay for travel time (of 50-60 miles) “in the morning from the
shop to the jobsite and/or pit.” (Art. 28.)6 Additionally, Respondent proposed that it eliminate its
match to employees’ 401(k)/retirement plans (art. 15). It also recommended that overtime 30
calculations be changed from daily overtime beginning after 8 hours to weekly overtime to begin
after 40 hours. Regarding disputes, Respondent offered that in the event step 3 failed to
resolve conflicts, the dispute would be referred to “TRIAL,” upon the request of either party
(rather than to arbitration or the Joint State’s Committee) (art. 5). (GC Exh. 7.) Finally,
Respondent recommended the elimination of a practice not included in the expiring agreement-35
“pick’n’pass,” which allowed senior employees to decline work so that it would be passed down
to a less senior employee (Tr. 43).

4
The bargaining sessions refer to in-person negotiation meetings, and not intermittent exchanges of
proposals, telephone conversations, or other correspondence between the parties. There were seven of
these in-person sessions between February 27 and June 13, 2012.
5
These individuals represented the negotiating teams for Respondent and the Union, and were present for all
of the in-person bargaining sessions through the June 13 session.
6
“Article” and “Schedule” refer to the article numbers and schedules in the parties’ most recent contract
which expired on March 31, 2012, and also correspond to those set forth in the proposals exchanged during
bargaining.
JD(ATL)–16–14
6
The Union proposed the following: a 3-year contract; eliminating the super seniority
provision which places the chief union steward at the top of the seniority list (art. 2); amending
the contract so as not to allow Respondent to deny any time off for vacation requested before
April 30; increasing regular hourly wage rates ($1 in year one, $.75 in year 2, and $.50 in year
3); increasing the hourly wage rates of new hires (from $10 to $12 the first 31 days, from $12 to 5
$14 days 32 to 60, $14 to $16 days 61 to 180, and the full rate after 180 days (schedule A);
instituting employer provided health insurance coverage yearround (and not just based on the
number of days an employee worked) (art. 14); implementing a tool allowance for mechanics of
$500 per year (schedule A); and revising the arbitration provision to require hearings before the
Western Michigan Industrial Board (Industrial Board) (art. 5). (Tr. 256-258; GC Exh. 8.) 10
At this meeting, Respondent explained that it needed to save money through its
proposals, and that, “according to the papers, everybody [was] paying,” referring to a reported
trend that most or all employees were now contributing to their healthcare insurance costs. In
response to Respondent’s claim that it desperately needed to save money, Sprague requested that 15
the Union be allowed to review Respondent’s “books,” referring to its financial records.
Respondent agreed.
2. Union accountant’s report on Respondent’s financial status
20
On March 27, the Union’s accountant, Gary Kushner (Kushner) and his assistant met
with Durbrow to go over Respondent’s books. Kushner reviewed Respondent’s tax returns for
years 2008 through 2010, and discussed Respondent’s financial situation with its managers.7 On
March 13, he sent Sprague his report, which Sprague did not share with Respondent or his union
membership.8 This report reflects that Respondent made a small profit in 2008 ($6843), a small 25
loss in 2009 ($18,072), and larger profit in 2010 ($136,573).9 Its total assets decreased
somewhat over the 3 years analyzed, but the liabilities decreased as well, and the stockholder’s
equity remained fairly constant in 2008 and 2009, but rose significantly (from an average of
$80,000 to $209,000) in 2010. Current assets decreased slightly over this 3-year period, but
current liabilities decreased significantly. Working capital was down from $83,664 in 2008 to 30
$67,014 in 2009, but rose sharply in 2010 to $215,553. Of note, stockholder’s equity also rose
dramatically in 2010 to $209,494 (from $72,921), and retained earnings rose to $207,494 in 2010
(from $70,000 in 2009). Management shared its concerns about needing to replace aging
equipment, increasing fuel costs, having received 45 percent of its 2011 business from one
customer, and having to significantly reduce its administrative staff. Kushner also reported 35
related-party transactions including real estate and trucks owned by related companies, such as
The Hendrickson Brothers, LLC and leased to Respondent for fair market value or less, and four
acres of land purchased by its real estate entity for Respondent’s use. This report was not
controverted at the hearing. (GC Exh. 27.)

7
Kushner reported that since Respondent did not use a certified public accountant, the only documents
available were the corporate income tax returns. Respondent provided several past years’ worth of returns,
but Kushner focused on those for 3008-2010. At that time, Respondent had not filed tax returns for the
2011 tax year. (GC Exh. 27.)
8
There is no evidence, however, that Respondent asked to see this report.
9
Sales from 2008 to 2009 took a downward turn ($4,381,198 to $2,392,395), but turned back upward in
2010 (to $3,108,682). Kushner also referred to a 2001 analysis previously prepared by his office for
comparison purposes. (Tr. 32, 318, 332-333; GC Exh. 27.)
JD(ATL)–16–14
7
Sprague testified, and the evidence supports, that he essentially told his membership and
Mathews that Respondent had made a profit in 2008 and 2010, and lost money in 2009.
3. 2d bargaining session - April 105
When the parties met for a second session on April 10, Respondent initially presented the
same February 27 proposal with an April 10 date and cover letter. (GC Exh. 9.) The parties
reached several tentative agreements at this meeting, albeit many of them involved only
grammatical, spelling, and contextual language changes that Respondent had already made in its 10
initial proposal.10 However, Respondent agreed to withdraw its provision recommended on
February 27, relating to selection and notice of vacation days, and a decrease from $1 to $.50 per
hour paid to employees for all hours worked for vacation and holidays (i.e., the parties kept the
vacation selection provision in art. 13 of the expired agreement). (See also GC Exhs. 4 and 10,
art. 13.)15
As in the first bargaining session, Respondent continued to assert that it was not
profitable, and needed to save money with its proposals. On the other hand, the Union expressed
its frustration that it had made numerous concessions with previous contracts in recent years- it
“[hadn’t] had any wage increases . . . [had] taken reductions in insurance . . . changed the 20
insurance plan . . . done everything to help [Respondent].” According to Sprague, since
Respondent had not provided tax returns for 2011, and since tax returns for 2008 and 2010
reflected profits, he asked Respondent how much money it expected to save with its various
proposals, including overtime calculation changes and elimination of the 401(k) match. Sprague
also asked Respondent’s bargaining team, “. . . when you say you need to save . . . [h]ow much -25
- what do you need? $25,000, $50,000, $175,000?” In response, Durbrow said, “[Y]eah, 75; 75
sounds good, $75,000.” Sprague recalled that when he asked for specific numbers, Durbrow said
that Respondent would probably save about $20,000 on the 401(k) match, about $25,000 for the
overtime revision, and about $40,000 with employee healthcare contributions. Sprague believed
that Durbrow was “just throwing out numbers,” and asked for documentation and the underlying 30
numbers to support those figures. Regarding the 401(k) program, Sprague did not know how
many unit employees participated, but did not believe that many did since there had been
“problems” with the retirement plan.11 (Tr. 209-211.)
Mathews’ testimony generally corroborated Sprague’s testimony that Sprague repeatedly 35
asked Respondent’s representatives for documentation to support their estimated cost savings
totals of $75,000 to $100,000. The only differences were that Mathews recalled Durbrow giving
them a $26,000 total for cost savings on the new overtime calculations, and that Durbrow did not
respond with estimated savings for individual proposals until May. For reasons addressed
below, I credit the testimony of Sprague and Mathews that Sprague began asking how much 40
Respondent expected to save with its proposals early on in the bargaining process.

10
The tentative agreements/provisions had the initials “TA” circled and next to them. (Tr. 86.) The parties
kept these tentative agreements through all of the subsequent proposals.
11
Sprague explained that many of the unit employees stopped participating in the 401(k) program after policy
change several years ago which precluded them from withdrawing all contributions (theirs and
Respondent’s contributions) from their accounts at the end of each season.
JD(ATL)–16–14
8
There is no dispute that Sprague believed that Respondent had not been trying to generate
business, and asked Respondent’s team when they were going to “get off [their] duff and go out
and get some work,” referring to the fact that he had recently helped Respondent get an oil field
contract that had generated about half a million dollars in revenue. Furthermore, Sprague
thought that Respondent might be trying to recoup $100,000 that it had paid for a piece of 5
property in the previous year.12 (Tr. 69-71.)
Sprague also recalled that he first recommended an opt-out provision in which
Respondent would pay unit members $1 more an hour if they opted out of the health and welfare
plan. Respondent did not dispute that it rejected the opt-out option because Durbrow thought it 10
would be “too complicated” and involve too much paperwork to process employees who
volunteered to opt out. In fact, Respondent had offered an opt-out option for employees in the
expired agreement, but encountered problems with bargaining unit employees being approved
for opt out by the MCTW Fund.13 There is no evidence that Respondent specifically addressed
or provided any counteroffers to the Union’s initial proposals. According to Respondent’s 15
witnesses they considered and summarily rejected them.
4. Post-April 10 communications
On about April 13, Sprague faxed an offer to Respondent for a 1-year contract; freeze on 20
wages; Respondent paid health care premium increases starting on April 1; and agreed to
changes (tentative agreements) made on April 10. It is undisputed that Sprague’s intention was
to otherwise maintain the status quo, or rather, extend the expired agreement for 1 year, with the
aforementioned changes. He testified that the busy season was fast approaching, and he wanted
to reach an agreement that would buy additional time for the Union to receive and review 25
Respondent’s 2011 income tax returns, get the information on the cost savings associated with
Respondent’s economic proposals, and find out how profitable (or not) Respondent really was.
He explained that he was not abandoning the Union’s original proposals, but wanted “to get
[Respondent] off the dime . . . to try to get negotiations going. . . .” (Tr. 75-77; GC Exh. 10.)14
30
5. 3d bargaining session - April 25
During the third session, Respondent gave the Union an updated proposal. (GC Exh. 11.)
In this proposal, Respondent withdrew most of its initial proposed changes (provided on
February 27) such as: eliminating payroll deductions (art. 1); increasing the probationary period 35
from 90 days to 1 year and not being placed on the seniority list until after 1 year (arts. 1, 11);

12
There is no dispute that Sprague helped Respondent pick up this oil field contract. However, evidence
revealed that a company connected to Respondent, Hendrickson Brothers, LLC, had purchased the
$100,000 piece of property that Respondent had been renting from a prior owner, and that Respondent was
now renting it from Hendrickson Brothers, LLC.
13
This health and welfare fund was the provider of health, life, short and long-term disability, dental and
vision benefits for the unit members. Respondent claimed that when it offered this option in the past, only
four of five bargaining unit members were initially approved, and the Fund reversed approval for the fifth
applicant due to some kind of error in processing the application. (Tr. 74.)
14
Respondent’s counsel objected to the admission of GC Exh. 10 because he did not believe that it was ever
sent to Respondent. I overruled the objection since the document contained the fax confirmation time and
date stamp showing that it was sent to Respondent’s fax number. None of Respondent’s witnesses refuted
receiving this proposal, and Respondent did not raise the matter further in its brief.
JD(ATL)–16–14
9
eliminating the formula to pay health and welfare insurance in the off season (art. 15); and
eliminating payment to employees for “travel time in the morning from the shop to the jobsite
and/or pit” (art. 28). Respondent also agreed to the Union’s proposal to eliminate the super
seniority provision for the union steward (art. 2). Additionally, under the health and welfare
provision, Respondent amended its initial provision to reduce the employee premium 5
contributions to 20 percent for each driver and 15 percent for each mechanic (art. 14), as opposed
to the initial recommendation of 25-percent contribution from all unit members. Respondent also
introduced a formula to pay insurance in the off-season (which it had done in the former
contract), with the employees contributing the aforementioned percentages. Regarding the
retirement plan, Respondent refused to add back the 401(k) match contributions, but added the 10
following language: “The Employer match will be suspended until Hendrickson Trucking
Company returns to profitability.” Respondent maintained its stance on the revised overtime
calculations. (Id.)
Respondent noted under article 5, grievance and arbitration procedure, that it was waiting 15
for additional information about the Industrial Board (as a method for resolving grievances) and
wanted to attend an Industrial Board hearing.
Sprague testified that he once again asked Respondent for documentation to show
estimated cost savings relating to elimination of the 401(k) match; revision of the overtime 20
calculations; and employee contributions to the healthcare plan. He said that Durbrow responded
with, “stop the bleeding,” and asked what the Union was going to do to help save money. (Tr.
80-81; 265.) The parties did discuss the Union’s offers to the extent of the contract length of 1
year and to explore opt-out language for health care insurance, as well as the 401(k) match, but
did not reach an agreement. At that point, T. J. Hendrickson suggested that the parties obtain a 25
mediator to assist with negotiations. Sprague said that he would get the rules of procedure for
the Industrial Board for arbitration of disputes, and to try to set up a time when Respondent could
observe one of the Board’s meetings.15
6. The Union rejects Respondent’s recent proposals and holds ratification and strike votes30
On about April 27, Respondent sent the Union another updated proposal with no
recognizable changes, except an attached addendum to a MCTW Fund participation agreement.
This addendum stated, in pertinent part, that for the period April 1, 2012, through March 31,
2015, employer contributions to the MCTW Fund “are to be made for each week on behalf of a 35
participant who worked, or is compensated for any portion of two or more days in the
contribution week. . . .” The addendum contained signature lines for Respondent, the Union, and
the board of trustees for the MCTW Fund. (GC Exh. 12.)
On about April 29 or 30, the bargaining unit met and voted on several items. The first 40
was a vote rejecting Respondent’s recent proposals. The second was a vote on a ratified union
proposal to present to Respondent. This ratified proposal included a 1-year contract, acceptance
of the status quo with a freeze on wages, and unit members’ offer to pay for the annual increase
in healthcare insurance premiums of about $15 per employee each week on a pretax basis. The
third vote was a “secret ballot strike vote,” which passed overwhelmingly. Sprague and Mathews 45

15
Due to scheduling issues, a meeting was never set up.
JD(ATL)–16–14
10
explained that the “secret ballot strike vote” was a tool that it commonly used at the beginning of
or during negotiations to determine if the bargaining unit would be willing to strike if necessary.
According to Sprague, the Union believed this strike vote would get Respondent to seriously
consider the Union’s proposals, and get the parties through the busy season and give them time
to explore “where they were during the year.” . 5
Respondent claimed to have considered and rejected all of the Union’s proposals,
including this one. There is no evidence that the parties sat down and discussed the Union’s
preratified proposal. (Tr. 87-92; 267-268.)
10
Thus far, the Union had presented three counterproposals to Respondent’s initial
proposals, including the opt-out option for healthcare insurance, employee contributions of $15
per week towards increased healthcare premiums, and use of the Industrial Board for dispute
resolution. Respondent agreed to one of the Union’s initial proposals- to eliminate the super
seniority for the union steward. It had also withdrawn several of its initial provisions, reduced 15
the amount of employee contributions toward the health and welfare insurance premiums, and
added that the employer 401(k) match would be suspended (instead of indefinitely eliminated)
only until Respondent reached profitability.
7. 4th bargaining session – May 1620
The parties re-convened on May 16, meeting for the first time with Federal mediator,
Kevin Brahaney (Brahaney). Brahaney explained his role and met with the parties individually.
Mostly, the parties brought him up to date on their various proposals; they did not exchange any
new ones. 25
According to Durbrow and T. J. Hendrickson, Durbrow provided everyone, including
Sprague and Mathews, with copies of a spreadsheet reflecting 8 years of Respondent’s finances,
with an understanding that they would return all copies to him at the end of the meeting.
According to Durbrow, this spreadsheet also included projected figures generated by 30
Respondent’s accounting system for 2011, including a $138,000 loss for 2011, in lieu of the yet
to be completed and filed 2011 tax returns. Of note, this was a huge contrast to Respondent’s
actual profit in 2010 of over $136,000, and to the projected sales in 2011 of over $3.3 million.
Durbrow admitted that this data was not a complete income or profit and loss statement. (Tr.
369-370; R. Exh. 31.) T. J. Hendrickson testified that it was his practice to write the dates on 35
undated documents before they are distributed, as he did with this spreadsheet on May 16.
Sprague and Mathews, however, had no recollection of seeing or receiving this document prior
to the hearing.
Contrary to assertions by Sprague and Mathews, Durbrow testified that Sprague only 40
requested cost saving information related to Respondent’s proposals on only one occasion during
their contract negotiations- at this May 16 bargaining session. He maintained that this
spreadsheet was provided to show why Respondent needed to save at least $100,000, and that the
information contained therein supported the figures he had verbally provided to Sprague.
Durbrow finally admitted, however, that this spreadsheet did not show how much (or an estimate 45
of how much) each of the economic provisions (the elimination of the 401(k) match, overtime
JD(ATL)–16–14
11
after 40 hours, and employee contributions to healthcare) would save. Of note, he also did not
recall that this was the first meeting with the mediator. (Tr. 173-174, 208-209, 345-347.)
Respondent asserts that affidavits provided by both Sprague and Mathews to the NLRB,
as well as notes provided by Mathews, support Durbrow and T. J. Hendrickson’s testimony that 5
they gave Sprague and Mathews copies of this spreadsheet on May 16, and that May 16 was the
only date on which the Union requested or mentioned cost savings specific to each of their
economic provisions.16 I disagree. As previously stated, I credit Sprague’s and Mathew’s
testimony on these points over that of Durbrow and T. J. Hendrickson. Neither Mathews nor
Sprague claimed to recall all of the details and dates regarding the bargaining sessions, and they 10
both credibly testified that their affidavits and notes did not represent all that was said or done
during the negotiation meetings. In fact, notes taken by Sprague at a later session, and entered
into evidence, were sparse and clearly did not include all that was discussed when compared to
the testimony of all witnesses. (GC Exh. 28.) Sprague also provided more detail regarding the
bargaining sessions than Respondent’s witnesses. Furthermore, testimony revealed that 15
Mathews’ bargaining notes and affidavit and Sprague’s affidavit, indicated that the Union
brought up the issue of cost savings on May 30, and not May 16 as claimed by Durbrow and T. J.
Hendrickson. There was no evidence that these affidavits or notes mentioned or indicated that
Respondent had ever provided the union representatives with a spreadsheet or any other
documentation showing total or proposal specific cost savings. If Respondent’s argument is 20
accepted, then anything that took place or was said during a bargaining session would have been
included in these affidavits and notes. Nevertheless, Respondent admits that the Union requested
cost savings information to support its proposals at least once during negotiations for a new
contract.
25
Respondent’s witnesses implied that this spreadsheet was an adequate response to the
Union’s questions about cost savings. If Respondent prepared and presented this document to
Mathews and Sprague on May 16, or even on May 30, in response to questions by the Union, it
is unbelievable that May 16 was the first session during which the union representatives
mentioned or asked for cost savings or documentation in support thereof (other than during the 30
first bargaining session when the Union asked for accounting information). There is no evidence
of Respondent providing any financial information without a request by the Union. Likewise, it
is simply not plausible that Sprague would not have requested cost savings documentation
regarding Respondent’s economic propositions. These proposals were central to most of the
bargaining discussions, and represented a drastic change from similar provisions in the expired 35
agreement.
Thus, the evidence supports my crediting the testimony of Sprague and Mathews that
Sprague requested cost savings numbers and documentation on several occasions during the
bargaining process.1740

16
Mathews’ notes were not introduced into evidence.
17
Additionally, I note here my observation that Durbrow waivered in his testimony, and was not entirely
forthcoming.
JD(ATL)–16–14
12
8. 5th bargaining session – May 21
The parties met again on May 21, with the mediator, Brahaney, present. Respondent
presented a new proposal in which it reverted back to its former recommendation that the parties 5
use the Federal District Court to resolve grievances. (GC Exh. 13.) However, Respondent
further reduced the employees’ contributions to healthcare insurance to 15 percent towards the
cost of each driver’s premium (instead of 20 percent) and 13 percent towards each mechanic’s
and/or mechanic helper’s premium (instead of 15 percent), but new hires would not be eligible
until 180 days. This was the extent of the revised May 21 proposal. Sprague told Respondent it 10
was “ridiculous” for the parties to resort to Federal District Court for dispute resolution, instead
of arbitration or the Industrial Board. He pointed out that the parties had not taken disputes to a
third party in years. At that point, Durbrow said, “[W]ell, if that’s all it’s going to take to get a
contract, I’m sure that that can be taken care of, I’m sure that can be handled,” and Sprague
responded that there were still a lot of other issues on the table. (Tr. 97.) 15
During this session, Sprague submitted information from the MCTW Fund about the opt-
out option, and advised Respondent that the Fund representatives were willing to assist
Respondent with the opt-out process and requirements “step by step.” Sprague also explained
that he knew of two unit members who were interested in opting out, which would save $240 per 20
week times two. T. J. Hendrickson reiterated his belief that there was too much paperwork
involved, and that Respondent was not interested in revisiting the opt-out option. Sprague
testified that he reminded Respondent that it had not provided information showing cost savings
for these provisions. He further explained that the Union needed this information so that it could
see how the parties might save money through changes in other parts of the contract. (Tr. 96-97, 25
101, 114, 164, 174, 282, 318.) For the reasons previously set forth, I credit Sprague’s testimony
that he requested this information. Regarding the 401(k) match issue, Sprague maintained his
belief that only a very small percentage of unit members participated in the plan.
According to Durbrow, about half or a little over half of the bargaining unit employees 30
participated in the 401(k) plan, including Mathews, but provided no evidence that he had
provided cost savings calculations or documentation to the Union. (Tr. 362-363.) He also
explained that the elimination of the employer 401(k) match, as well as the requirement that
employees share in the costs of the healthcare and welfare premiums and overtime calculations,
applied to all employees, and not just the bargaining unit. He did not, however, furnish any of 35
this information or a breakdown of how much savings was attributable to the bargaining unit
versus nonbargaining unit employees to the Union during negotiations for a new agreement.
9. Respondent’s May 23 proposals
40
On May 23, Respondent faxed the Union a proposal with two options for the Union to
consider: (GC Exh. 14.) This proposal only included revised health and welfare and retirement
contribution provisions. The first option required employee contributions at the previously
proposed 15 percent towards each driver’s premium and 13 percent towards each
mechanic/mechanic helper’s premium. This also included employer and employee contributions 45
into an ENN-NN plan for laid-off employees from the layoff until April 1 or recall at the start of
the new season. As an example, this would result in Respondent paying from $240.08-$294.14
JD(ATL)–16–14
13
of the weekly premiums for drivers and drivers contributing from $42.37 to $51.91 of the weekly
premiums during the work season. The second option did not include percentages for employer
and employee contributions toward healthcare premiums. Instead, it recommended set dollar
amounts for Respondent’s contributions of $265.45-$275.50 and drivers’ contributions of $17 to
$32, with increases over the life of the agreement. Option two only offered laid-off employees 25
weeks of insurance after layoff. Additionally, the second option included an employer match of
“$0.50 cents for every dollar the employee contributes up to 3% of the [employee’s] gross
wages,” with the employer agreeing to “match $0.25 cents for every dollar the employee
contributes up to 2% percent of the [employee’s] gross wages after the first 3% percent of the
employees’ contributions.” This reduction in the employer match (from the match included in 10
the expired contract) would be effective “until the [e]mployer returns to profitability.” About 1
or 2 days later, the bargaining unit rejected these options. (Tr. 102-103.)
10. 6th bargaining session – May 30 – Respondent presents its last, best offer
15
During the parties’ sixth bargaining session, with Brahaney present, Respondent
submitted its “LAST BEST OFFER” to become effective on Monday, June 4. This last best
offer essentially incorporated Respondent’s option 1 regarding employer/employee contributions
to the health and welfare premiums presented to the Union on May 23, and the provisions
included in its May 21 proposed contract. (GC Exh. 15.) Brahaney caucused with each party, 20
but the parties did not reach any agreements during this session. Mathews recalled that Durbrow
again stated that Respondent would save $20,000 by not matching the 401(k) plan contributions;
$26,000 with overtime begin paid after 40 hours instead of after 8 hours; and about $40,000 with
the employee healthcare contributions. Durbrow did not, however, provide any documentation
to support these numbers as requested by the Union. According to Sprague and Mathews, 25
Respondent’s representatives continued their mantra that they needed the Union to help them
save money and to “stop the bleeding.” (Tr. 106-108, 272-274.)
When the Union rejected this last best offer at this meeting, T. J. Hendrickson said, “. . .
it looks like we’re at impasse.” Sprague objected to Respondent’s declaration, saying that “I’ve 30
never said we’re at impasse. I don’t know where you get we’re at impasse. I didn’t use that
word. We still have a lot of stuff on the table here.” (Tr. 108-109.)18
11. Respondent presents its “Revised Proposal and Last, Best, and Final Offer” on June 4
35
The Union did not implement its last best offer dated May 30. Rather, on June 4, it faxed
and mailed a “Revised Proposal and Last, Best, and Final Offer,” to be effective on Monday,
June 11. (GC Exh. 16.) In the cover letter, T. J. Hendrickson stated that Respondent understood
that the Union’s basis for rejection of its last offer on May 30 was that it was unwilling to agree
to the proposals on the elimination of the 401(k) match, health insurance contributions, overtime 40
calculations, and the grievance procedure. T. J. Hendrickson also asserted its belief that

18
After this negotiating session, union membership voted to reject Respondent’s May 30 last best offer and to
strike if Respondent implemented its offer. (Tr. 284.) Sprague attempted to meet one-on-one with R.
Hendrickson, with whom he had most dealings in the past, to try to make some headway on the
negotiations, and to get Respondent to address some of its proposals. At first, R. Hendrickson agreed to
meet with Sprague, but then declined saying that he could not meet with him without the rest of his
negotiating team. (Tr. 110-111.)
JD(ATL)–16–14
14
“throughout our negotiations you have maintained your position that you are insisting that the
language of the most recently expired agreement be continued on all of those subjects.” The
only change in this last offer was to article 5 (grievance and court procedure), from the parties
going to Federal District Court to each party resorting to “whatever judicial remedies” that might
be available after exhausting the grievance procedure. (Id.) 5
12. The Union votes against Respondent’s last, best, and final offer
By letter dated June 8, Sprague advised Respondent that his membership had rejected
Respondent’s last, best, and final offer dated June 4, and reminded Respondent that the Union 10
had counteroffered to pay weekly healthcare insurance premium contributions of about $15 on a
pretax basis. Sprague also noted that the Union had “TA’d” nine of Respondent’s contract
proposals on April 10, but that Respondent “[had] not TA’d one Union proposal.” He pointed
out that the revised grievance provision still required the parties to go to court rather than
advance to arbitration. Finally, Sprague said that he and his team would be available to meet 15
again on June 13 if Respondent was interested in a new contract. (GC Exh. 17.) At this point,
communications between the parties establish that the parties differed in their opinions as to
whether they had reached impasse.
Prior to the next meeting, Sprague attempted to meet privately with Ryan Hendrickson, 20
with whom he had dealt in the past , since he felt he was not getting anywhere at the bargaining
table. He explained that he ran into and talked to Ryan Hendrickson because Ryan worked with
the employees on a daily basis. At first, Ryan agreed to meet, but then canceled.
13. 7th bargaining session – June 13- the union presents its “Final Proposal”25
Despite its alleged impasse declaration, Respondent met with the Union on June 13.
Although the mediator was not available for this meeting, the parties met because Sprague was
about to have surgery on about June 15. Sprague submitted what was entitled the Union’s “Final
Proposal.” This proposal included three options. The first two options required a 1-year contract 30
extension (of the expired contact), but with employees contributing $15 (on a pretax basis) per
week towards healthcare premiums. The second option included the first option plus the
healthcare opt-out alternative (with an attached copy of the parties’ 2008 agreement for Fund
participation opt outs). The second option also provided that the parties utilize the Industrial
Board’s arbitration and grievance process rather than going to court. The third option simply 35
read, “Work Stoppage.” (GC Exh. 18.)
The attached copy of the recommended grievance procedure stated that:
Step 3 In the event that Step 2 does not settle the complaint, it shall be referred to 40
the Western Michigan Industrial Board (WMIB), unless either party objects to the
use of the WMIB. In the event of an objection by either party to the use of the
WMIB, the grievance may be presented to the American Arbitration Association
(AAA) upon the request of the Union or the Company. The President or the
Executive Board of the Local Union shall have the right to determine whether or 45
not the grievance is qualified to be submitted for arbitration by the Union.
JD(ATL)–16–14
15
(Id.) There, this proposal did not restrict or limit the parties to the Industrial Board, but allowed
them to also pursue arbitration with the AAA upon request by either party.
Regarding the Fund requirements for opting out, Sprague admitted that it would require a
new memorandum of understanding between Respondent and the Union; proof that the 5
employees who applied had other (adequate) insurance; and the Fund’s approval of each
application. Respondent pointed out the materials supplied by the Union did not include the
criteria by which the Fund approved applicants, and that Sprague had not provided the number of
interested employees as promised. Initially, Sprague said that he did not recall making this
promise. However, when he was shown his affidavit, he acknowledged that he said he would get 10
a count of those interested, but decided not to since Durbrow had said that it would “be a waste
of his time to see what the cost savings would be on opting out.” As previously mentioned,
Sprague had informally polled members at a recent union meeting, and learned that two unit
members were interested in volunteering to opt out of the health plan coverage. It is undisputed
that he communicated this to Respondent’s negotiating team, and that Durbrow had immediately 15
expressed his disinterest with the opt-out option. Thus, I credit Durbrow’s reasons as to why he
did not poll the remainder of his membership. (Tr. 204-206, 208, 212-213.)
During this meeting, Sprague told Respondent’s team “that there was no way that . . .
their offer was going to be accepted,” and that he needed some feedback on the Union’s 20
economic proposals since Respondent had not provided any guidance or anything in writing. He
also warned Respondent that his membership might strike in order to push negotiations.
Respondent’s representatives caucused and returned to say that they were not going to change or
discuss their proposals any further. Respondent’s negotiating team met and returned to say that
they were not interested in changing their minds or discussing anything further. (Tr. 120-123.) 25
Nevertheless, neither Sprague nor Mathews said that they viewed the Union’s
final proposal as its absolute last offer. Instead, they testified their proposal was in response to
Respondent’s last, best, and final offer, and that they still hoped and intended that the parties
would continue to work towards an agreement. I credit Sprague’s and Mathews’ testimony that 30
they did not intend to end negotiations with their final offer. Their testimony is supported by the
fact that they voiced objection to Respondent’s implementation letters and tried to resume
bargaining.
D. Respondent’s Implementation of Its Last, Best, and Final Offer and the Strike35
1. Decision to strike
Later that evening or the next day, Sprague met with his membership to inform them that
Respondent would not change its mind about implementing their last offer. At that time, they 40
decided not to strike, but to wait to see if Respondent would actually implement its last, best, and
final offer. Sprague claimed that he told his membership that if Respondent implemented its
offer, he would contact the Federal mediator to see if the parties could resume negotiations. I
credit this undisputed testimony regarding the discussions with the membership before the strike.
They are further supported by the fact that the Union did not strike after the initial strike vote in 45
April, nor did the Union strike immediately after the Respondent’s first or second final offers on
June 4 and 11. (Tr. 124-125.)
JD(ATL)–16–14
16
According to Sprague and Mathews, the Union learned that Respondent had implemented
its offer on about June 23 when some of the bargaining members received their paychecks which
reflected that Respondent had begun calculating their overtime pay after 40 hours a week versus
8 hours a day. Sprague, who was at home recuperating from surgery, left the decision to strike to 5
Mathews and Bill Bernard, Jr. (Bernard), the Union’s vice president, and the membership. The
Union went on strike the following Monday, June 25. (Tr. 124-127. 232-233. 240. 242. 284-
285.)
2. Poststrike bargaining meeting on July 26th10
Bernard handled the strike/picket lines while Sprague was out on sick leave in June and
July, but continued to consult with Sprague by telephone. According to Sprague, Bernard called
him to say he had heard that Respondent had been telling employees that the Union was not
willing to meet concerning when they would return to work. He then instructed Bernard to set 15
up a meeting with the mediator present.19
On July 26, the parties met with the mediator, Brahaney. Sprague, Bernard, and
Mathews attended the July 26 meeting on behalf of the Union, and the same representatives
attended for Respondent. Neither of the parties presented any new proposals, and Respondent’s 20
representatives asked, “[W]hat are you willing to give us?” While the Union wanted to discuss
pending issues, Respondent only wanted to know if the Union had any new proposals or
concessions. Although it appears that the parties mostly caucused with Brahaney, they briefly
discussed several pending issues. It is undisputed, and corroborated by Mathews, however, that
Respondent was not really interested in further discussion or movement on these matters. 25
In Sprague’s notes, he indicated with one star issues on which he felt there could be some
movement (health care, fuel costs, term of contract) and with two stars issues about which the
membership was more resistant (arbitration vs. court, elimination of the 401(k) match, voluntary
layoff, and overtime after 40 hours). (GC Exh. 28.) He testified that he believed that the Union 30
might have agreed to a reduction in the match if Respondent had provided the cost savings
numbers he had requested. Thus, the meeting ended with Respondent maintaining its impasse
stance and the Union wanting to further negotiate and move on the issues previously discussed
and on those not yet addressed. (Tr. 131-132, 287-288, 292-294, 298.)
35
E. The Union Files a Grievance and Request for Information on July 31
Shortly after the strike began, Respondent changed the name on some of its trucks from
Hendrickson Trucking to “AGG Trucking, LLC” (AGG). On July 31, Sprague, on behalf of the
Union, sent Respondent a letter constituting a grievance, stating that the basis for it was:40
[T]hat it appeared to us that [AGG] . . . is nothing more than a disguised
continuance of [Respondent], performing work historically covered by our labor

19
There was some confusion or disagreement as to who wanted or initiated this meeting, but both parties
ultimately agreed to meet. Of note, Respondent states in its brief that the Union requested this meeting.
(R. Br. pp. 18-19.)
JD(ATL)–16–14
17
agreement, and/or that [Respondent] has improperly and unlawfully transferred
bargaining unit work to AGG without notice to Local 164 and without bargaining
over the decision and its effects. In order that we may process this grievance and
prepare for bargaining about any transfers of work and the effects . . . Local 164
needs information about both entities . . . to understand more fully the relationship 5
between the two operations.
(GC Exh. 20.)20 Included in this letter were the Union’s 48 requests for information, as follows:
1. Who made the decision to open AGG? When was this decision made? 10
Why was it decided to open it as a non-union operation in the middle of a
strike?
2. Who owns the premises from which AGG is performing work? What is
the relationship of AGG to Hendrickson Trucking?
3. How large is AGG eventually expected to be in terms of employment and 15
productive capacity?
4. In what geographic area does AGG do business? In what geographic area
does Hendrickson Trucking do Business?
5. Where is the office work for AGG performed?
6. Identify all managers or supervisors who have performed any work at or 20
on behalf of AGG, the dates on which they have performed such work, the
amounts of time which they have spent, and the types of work which they
have done.
7. Identify the banking institution, branch location, and account number of
all bank accounts for both AGG and Hendrickson Trucking.25
8. Identify the person or company who performs the accounting function for
AGG, and the names of the accountants. Provide the same information for
Hendrickson Trucking.
9. Identify where and by whom the corporate and general business records
for AGG are kept. Provide the same information for Hendrickson 30
Trucking.
10. Identify where any by whom any other business records of AGG are kept.
Provide the same information for Hendrickson Trucking.
11. Identify the principal bookkeeper for AGG. Provide the same information
for Hendrickson Trucking35
12. Identify the principal payroll preparer for AGG. Provide the same
information for Hendrickson Trucking; and identify the bank account used
to pay employees truck drivers.
13. Identify . . . health insurance program available at AGG, by carrier and
policy number. Provide the same for Hendrickson Trucking.40
14. Identify AGG’s federal or state taxpayer identification number. Provide
the same for Hendrickson Trucking.

20
The Union filed unfair labor charges and amended charges on August 3, 16, and 30, alleging various
violations, including, but not limited to, Respondent’s failure to respond to these July 31 information
requests, implementation of its last, best, and final offer without bargaining to impasse, and failure to
provide requested cost savings information during the negotiation sessions. (GC Exhs. 1(a), (b), (e).)
JD(ATL)–16–14
18
15. Identify where and by whom the state or federal tax returns for AGG are
kept. Provide the same for Hendrickson Trucking.
16. Identify any other state or federal taxpayer identification numbers for
AGG. Provide the same for Hendrickson Trucking.
17. Identify where and by whom other federal or state reports for AGG are 5
kept. Provide the same for Hendrickson Trucking.
18. Identify whether AGG and Hendrickson Trucking have the same worker’s
compensation insurance carrier, the same worker’s compensation
insurance policy, the same unemployment compensation insurance carrier,
and any other common insurances or fringe benefits. Identify all such 10
policies, carrier and fringe benefits.
19. Identify who supplied the money to purchase AGG or to begin its
operations, along with the names or identification of persons who
furnished the money to purchase the equipment, materials, supplies, etc.
which are located at AGG.15
20. Identify whether AGG is operating under a line of credit from
Hendrickson Trucking, or has its debt or operations in any way guaranteed
by or supported by Hendrickson Trucking.
21. Identify the dates, reasons for and amounts of any transfers of funds or
work between AGG and Hendrickson Trucking.20
22. Identify whether AGG rents, leases, or otherwise provides office space or
any other services to Hendrickson Trucking.
23. Identify whether Hendrickson Trucking rents, leases or otherwise provides
office space or any other services to AGG.
24. Identify all building or office suppliers for AGG. Provide the same for 25
Hendrickson Trucking.
25. Identify any tools, materials, equipment including trucks or trailers, or
supplies purchased by Hendrickson Trucking which are now used or have
been used at or by AGG.
26. Identify any tools, materials, equipment (including trucks or trailers) or 30
supplies purchased by AGG which are not used or have been used at or by
Hendrickson Trucking.
27. Identify any lease arrangements or purchase agreements for any materials
supplies or equipment (including trucks or trailers) between AGG and
Hendrickson Trucking.35
28. Identify whether any of the following services are provided to AGG by or
at Hendrickson Trucking.
administrative
bookkeeping
clerical40
detailing
estimating or costing
managerial
any other service
29. Identify the customer of AGG. Provide the same for Hendrickson 45
Trucking.
JD(ATL)–16–14
19
30. Identify any customers which have been referred by Hendrickson
Trucking to AGG, or vice-versa.
31. Identify any persons who have authority to negotiate, sell or bid jobs for
Hendrickson Trucking.
32. Identify whether those same persons have authority to negotiate, sell or 5
bid jobs for AGG.
33. Identify where AGG has advertised for employees/truck drivers, the
persons who interviewed the employees/truck drivers of AGG, the persons
who made the hiring decision, and any criteria which were used. Provide
the same information for Hendrickson Trucking.10
34. Identify by job title or craft position that employees employed by AGG
and the skills which they possess.
35. Identify by job title or craft position and respective employment dates any
employees of AGG who are or who have been employees of Hendrickson
Trucking.15
36. Identify any supervisors, superintendents, floor persons, or other
supervisory persons of Hendrickson Trucking who have authority to, or
have in fact exercised such authority, at AGG.
37. Identify any supervisors, superintendents, floor persons, or other
supervisory persons of AGG who at any time worked for Hendrickson 20
Trucking.
38. Identify any managerial personnel of Hendrickson Trucking who have
authority to, or have in fact exercised such authority, at AGG.
39. Identify any managerial personnel of AGG who at any time worked for
Hendrickson Trucking.25
40. Identify any representatives or employees who are actively involved with
day-to-day management or operations of Hendrickson Trucking who have
authority to, or have in fact exercised such authority, at AGG.
41. Identify any representative or employee who are actively involved with
day-to-day management or operations of AGG who at any time worked 30
for Hendrickson Trucking
42. Describe the compensation program, including wage rates and fringe
benefits at AGG. Who pays the employees/truck drivers at AGG, and
from what bank account are their wage/compensation paid?
43. Describe the labor relations policy of AGG, and identify who established, 35
controls or determines that policy.
44. Identify any labor relations representatives of AGG. Provide the same
information for Hendrickson Trucking.
45. Identify the officers of ACC. Provide the same information for
Hendrickson Trucking.40
46. Identify the directors of AGG. Provide the same information for
Hendrickson Trucking.
47. Identify the owners and stockholders of AGG, along with the amount of
Hendrickson Trucking. Also include copies of any reports or forms filed
with the State of Michigan related to ownership or status as a corporate 45
LLC of any kind.
JD(ATL)–16–14
20
48. Identify places and dates of meetings of the board of directors or other
governing body of AGG for the last 12 months. Provide the same
information for Hendrickson Trucking.
(Excerpt from GC Exh. 20.) Sprague asked that Respondent furnish this information, in writing, 5
within 10 days, and provide any subsequent information as it became available. In unrebutted
testimony, Sprague said that the Union wanted to know how AGG came about, and if it meant
that Respondent was about to go out of business or be replaced by AGG. (Tr. 137-141.) There
is no evidence that Respondent furnished the Union with any of this requested information. It
did provide some limited information about its relationship to AGG in response to a subsequent 10
information request made by the December 27 (not at issue in this case).
F. The Union’s Unconditional Request to Return Strikers to Work, Request to Bargain, and
Other Correspondence Between the Parties in Late November and Early December
15
On November 30, Sprague, for the Union, sent Respondent three separate letters. The
first was an unconditional request to return to work on December 3, which read in relevant part:
Effectively immediately, Local 164 has ceased all picketing and strike activity.
On behalf of all members of the bargaining unit, Local 164 unconditionally offers 20
to return to work immediately. . . . Our members are prepared to return to work on
Monday morning…Please contact the members directly to inform them of their
appropriate report times. . . . If necessary, I am available to help you coordinate
and facilitate that return to work process.
25
(GC Exh. 21.) The second identified ten bargaining unit members who planned to take the
voluntary layoff.21 (Tr. GC Exh. 22.) The third letter stated that the Union was “prepared to
meet and bargain in good faith in an effort to achieve a collective bargaining agreement for
[their] membership,” and requested Respondent to provide available dates for bargaining. The
Union further requested that, 30
[i]n preparation for such bargaining . . . your Company rescind any and all
unilaterally-implemented changes to employees’ terms and conditions of
employment (referenced in your June 8, 2012 letter, as well as in paragraphs 12
and 14 of the NLRB Complaint). This includes, but is not limited to, changes in 35
wages and employees’ medical insurance contributions. Local 164 also requests
your Company to return to the status quo prior to making these changes and to
make all employees whole for any financial losses suffered as a result of your
unilateral implementation of those changes with interest, in accordance with the
NLRB Complaint. . . .40
In further preparation for bargaining, Local 1614 again requests that your
Company furnish the information which we have requested since on or about July
31, 2012 (see paragraphs 9 and 10 of the NLRB Complaint). Once we have

21
This voluntary layoff notification further stated that the ten employees should be recalled by lowest senior
employee first. (Id.)
JD(ATL)–16–14
21
received and analyzed that information, Local 164 may have further information
requests.
(GC Exh. 23.)
5
On November 30, R. Hendrickson, designated as Respondent’s president (also the
mechanics supervisor), responded that “[t]here will be no work available for any returning
strikers on Monday morning. We will be evaluating our work loads and manpower needs and
will get back to you in the very near future.” (GC Exh. 24.)
10
On December 10, T. J. Hendrickson advised Sprague, via letter, that its permanent
replacement employees, hired during the strike, would be able to handle any available work
during the winter slow down. He further stated that “[t]he employees who were striking have
been placed on a preferential hire/recall list. When business picks up we will call them for
available work by seniority. If you prefer a different order of recall, please let us know.” (GC 15
Exh. 25.)
On December 11, Sprague wrote to Respondent, stating that his November 30 letter was
“clear that our members were prepared to return to work on Monday, December 3, 2012,” and
that the “Collective-Bargaining Agreement, Article II, should be followed when recalling 20
employees and your referred to ‘replacement employees’ should be placed on the bottom of the
seniority list for recall.” Sprague further stated that “[t]o clarify, the first time I have ever heard
that the Company hired replacement employees was in your letter of December 10, 2012.”
Copies of the seniority list and the December 10 letter hand-delivered to R. Hendrickson were
enclosed. (GC Exh. 26.) 25
Respondent’s counsel, Timothy Ryan (Ryan), testified that in early December, he
contacted Sprague, by telephone, to set up a bargaining meeting. He was not certain as to
whether he called Sprague to discuss bargaining in this case, or whether it came up during a
conversation about another case in which he and Sprague were involved. He said that he told 30
Sprague that Respondent was willing to bargain, but would not be returning the strikers to work
or returning to the status quo under the expired contract as requested by the Union in its
November 30 letters. Ryan further testified that, Sprague responded, “Well, then just forget
about it. We’ll let the Labor Board figure it out.” Ryan said that he interpreted this to mean that
the Union did not want to bargain unless Respondent met those conditions. Sprague, on the 35
other hand, did not recall this conversation taking place, and thought that Ryan may have talked
to Bernard instead. I credit Sprague on this matter. Although he did not recall speaking to Ryan,
Ryan, who made this assertion, did not recall the circumstances under which he spoke to
Sprague. More troubling is Ryan’s subsequent testimony that he tried to contact Sprague in
January 2013 to try to get back to the bargaining table, and later pursued Sprague’s replacement 40
bargaining agent in March and April, for bargaining dates (see below). Ryan said that
Respondent was now ready to bargain because it was the slow season. This is simply contrary to
his reasons for not trying to resume bargaining in December 2012. Prior, undisputed testimony
reveals that Respondent’s slow season began in late November/early December. Although, I
credit Sprague here, I will address in my analysis below whether this statement, had it been 45
made, would have relieved Respondent of its obligation to resume bargaining. (Tr. 177-182;
385-386.)
JD(ATL)–16–14
22
G. Union’s December 27 Grievance and Requests for Information
On December 27, Sprague sent a letter to Respondent asking that the letter be accepted as
a grievance in accordance with the collective-bargaining agreement, and stating that, 5
[t]he reason for our grievance is that it appeared to us that Hendrickson Trucking
Inc. has hired permanent replacement drivers who are performing work
historically covered by our labor agreement, and/or Hendrickson Trucking has
improperly and unlawfully transferred bargaining unit work to those permanent 10
replacement drivers without notice to Local 164 and without bargaining over the
decision and its effects. In order that we may process this grievance and prepare
for bargaining about any transfers of work and the effects of such transfers on the
bargaining unit . . . [w]e need to understand more fully the relationship between
the permanent replacement drivers and Hendrickson Trucking, Inc.15
(R. Exh. 11.) This letter also included a detailed request for information regarding the permanent
replacement drivers, including but not limited to, their status, names, and a number of requests
regarding Respondent’s business relationship with the replacements, as well as information about
Respondent’s financial records. Since this particular request for information was not included in 20
the complaint or in the General Counsel’s request for remedy in its brief, I will not set forth the
specific requests.
By letter dated January 9, 2013, Timothy Ryan responded on Respondent’s behalf,
asserting that the Union’s grievance lacked merit and would be denied. He explained that25
“[u]nder federal labor law, when the Union began its strike, Hendrickson was entitled to utilize
replacement employees to continue its business, and to do so without any requirement that it
engage in decision or effects bargaining.” He also denied that Respondent had any contractual
obligation to bargain since “neither the expired contract nor Hendrickson’s last proposal included
any requirement that Hendrickson engage in any decision or effects bargaining when hiring 30
strike replacements.”
Although he asserted his belief that the Union had no need for the information requested,
Ryan stated that “in an effort to avoid any further controversy,” he was providing information
about the permanent replacement workers. He advised that T. J. Hendrickson made the decision 35
to hire replacement drivers after the strike because drivers were needed, and that Respondent
hired seven replacement drivers between July 18 and 31, 2012 ,and three more between
September 4 and October 20, 2012. He also furnished the unit employee seniority list naming
the 21 strikers, and named the supervisors who had performed various work during the strike.
Ryan also noted that the Union had been aware of replacement drivers since the Union’s 40
representatives “repeatedly chased Hendrickson’s vehicle[s].” (R. Exh. 12.) Ryan did not
provide additional information as he did not believe that questions 7 through 45 were relevant.
However, he did provide that
45
[i]tems 7 through 45 of your request do not appear to have any relevance to any
legitimate obligation you have concerning representation of the bargaining unit.
JD(ATL)–16–14
23
If the purpose of those questions is to gain evidence to establish that Hendrickson
Trucking and AGG Trucking are a single employer, you should know that
Hendrickson Trucking does not dispute that they are. Whether replacement
drivers operated a truck that stated AGG or a truck that stated Hendrickson, they
were always employed by Hendrickson and they were always paid by 5
Hendrickson, so it appears that there cannot be any legitimate issue about the
relationship between those two entities.
(Id.) It is noted here that Respondent has claimed that this information about AGG was also
sufficiently responsive to the Union’s July 31 and November 30 requests. 10
By letter to Ryan on January 22, 2013, Sprague replied that Respondent had no right to
hire permanent replacement employees since its unfair labor practices caused the strike, and that
the former strikers should therefore be reinstated. Sprague explained that he needed the
information requested to process the grievance filed on December 27 (claim that it hired 15
replacements); to determine the nature of Respondent’s payroll and other practices with respect
to replacement employees; and to determine the nature and extent of any subcontracting work
which occurred during the strike.”22 He also requested the following additional information:
“copies of any applications filed by the replacement employees; copies of any letters or
communications by and between Hendrickson Trucking and these employees; and copies of any 20
documents which relate to or show the status of these employees.” (R. Exh. 13.)
H. Union Replaces Sprague and Parties Meet One Last Time
On or about January 30, 2013, Sprague was relieved of his duties for the Union. 25
According to Ryan, Respondent was now ready to meet with the Union in an attempt to “to
resolve the outstanding contract and ULP issues.” (R. Exh. 30, p. 1.) He finally learned from an
NLRB representative that he should contact John Canzano(Canzano), an attorney and/or trustee
for the Union. However, it was not until March 25 that Ryan began a series of email exchanges
with Canzano in attempt to set up a meeting with the Union.23 The parties finally met on April 30
10. (R. Exh. 30.)
During the April 10 meeting, Canzano and his assistant, Mike McElmury (McElmury),
represented the Union, and T. J. Hendrickson, R. Hendrickson, and Durbrow represented
Respondent. According to Ryan, Respondent, submitted proposals, but the Union did not. (Tr. 35
393.) However, Respondent did not submit any such proposals during the hearing, and Ryan and
Canzano agreed in writing on that day that “these are rule 408 settlement discussions.” After this
meeting, Canzano and Ryan attempted to meet again, but were unable to do so before the hearing
in this case. (Id.)
40

22
More specifically, Sprague renewed the Union’s request for responses to items 1-6, 13-14, 18, 20-28, and
39-40 (of the December 27 request), to be provided in 10 days. He also said that Respondent could defer
answers to the remaining questions pending receipt and review of these specific questions.
23
It was evident from the email exchanges that Ryan was familiar with Canzano and that they had been
working on another case together. (R. Exh. 30, p. 1.)
JD(ATL)–16–14
24
III. DISCUSSION AND ANALYSIS24
A. Respondent’s Failure to Provide Information During Bargaining Precluded Impasse
The General Counsel alleges that Respondent failed to furnish it requested financial 5
documentation to show how it reached its estimated cost savings totals for its newly proposed
formula for employee contributions to health and welfare premiums, elimination of the 401(k)
employer match, and revision of overtime calculations. The General Counsel claims that this
information was (and is) necessary for the Union to formulate and evaluate bargaining proposals,
and that since Respondent never provided this information to the Union, no good-faith impasse 10
occurred during the bargaining process. Respondent argues that although it had no obligation to
provide this information to the Union, it provided sufficient information to enable the Union to
bargain. Respondent also asserts that it engaged in good-faith bargaining to impasse.
1. The information requested by the Union is necessary and relevant to the bargaining process15
An employer is in violation of Section 8(a)(5) and (1) of the Act when it refuses to turn
over to a union information that is relevant and necessary to the union in carrying out its
collective-bargaining responsibilities. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956); Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979). 20
When the information requested pertains to bargaining unit employees represented by a union,
e.g., wages and benefits, it is presumptively relevant and necessary to the union’s bargaining
obligation. Disneyland Park, 350 NLRB 1256, 1257 (2007). However, when a union seeks
information concerning matters outside the bargaining unit, such information is not
presumptively relevant, and it is the union’s burden to show relevancy. See, e.g., Public Service 25
Electric & Gas Co., 323 NLRB 1182, 1186 (1997), enfd. 157 F.2d 222 (3d Cir. 1998). This
burden to show relevancy “is not exceptionally heavy. ” Rather, it is a “liberal discovery-type
standard,” and “the sought-after evidence need not be necessarily dispositive of the issue
between the parties,” but only have some bearing upon it, and be of “probable use to the labor
organization in carrying out its statutory responsibilities.” Sands Hotel & Casino, 324 NLRB 30
1101, 1109 (1997), enfd. 172 F.3d 57 (9th Cir. 1999); Caldwell Mfg. Co., 346 NLRB 1159, 1160
(2006); Shoppers Food Warehouse, Corp., 315 NLRB 258, 259 (1994).
While bargaining for a new contract in this case, the Union requested that Respondent
furnish it with the calculations and financial information showing how it arrived at its cost saving 35
totals for each of its proposals for the reduction in employer paid health and welfare premiums,
elimination of the 401(k) employer match, and reduction in wages (overtime recalculated to
begin after 40 hours rather than 8 hours). Since this information involves financial data, it is not
presumptively relevant. It is, nevertheless, relevant as it regards the specific economic proposals

24 In its answer, the Company alleged that the Board and all of its agents or delegates in these proceedings
lack authority to proceed (in every stage) in this case because the Board lacks a quorum required by the
NLRA. Consistent with Board precedent, I reject the Company’s Noel Canning v. NLRB, 705 F.3d 490
(D.C. Cir. 2013) (petition for certiorari filed April 25, 2013), and NLRB v. New Vista Nursing &
Rehabilitation, 719 F.3d 203 (3d Cir. 2013), defense. The Board has rejected similar contentions in
numerous cases, see, e.g., Bloomingdale’s, Inc., 359 NLRB No. 113 (2013). Further, I note that the Board
now has a full complement of five members nominated by the President and confirmed by the Senate, and
could, if they deemed appropriate, reaffirm the earlier Board’s actions. Accordingly, I reject this
affirmative defense.
JD(ATL)–16–14
25
regarding the bargaining unit employees’ wages and benefits. See National Extrusion & Mfg.
Co., 357 NLRB No. 8, slip op. at 2 (2011) (an employer’s duty to bargain includes “a duty to
provide information that would enable the bargaining representative to assess the validity of
claims the employer has made in contract negotiations”); Wilshire Plaza Hotel, 353 NLRB 304,
305 (2008) (detailed calculations for the cost savings that respondent expected from its wage and 5
benefit proposals were admittedly relevant to ongoing bargaining). Since it is relevant,
Respondent had an obligation to provide it to the Union.
Respondent claims that it has no duty to provide any financial information to the Union
because it has not asserted an inability to pay wages or benefits.25 However, the Board has 10
rejected the argument that an employer never has a duty to provide any financial information at
all to the union where the employer has not asserted an inability to pay. While recognizing that
an employer generally is not obligated to open its books/financial records to a union unless the
employer has claimed an inability to pay, the Board has held that a union is entitled to financial
records when the request is based on specific claims on which the employer has based its 15
bargaining proposals. Caldwell Mfg., supra at 1160; National Extrusion, supra, slip op. at 2.
Thus, the employer violates Section 8(a)(5) and (1) when it fails to provide the requested
information.
In Caldwell, Mfg., supra, the employer maintained during negotiations that certain 20
concessions were necessary to improve its competitive standing. In response to those specific
assertions, the union requested information on which the employer relied, including material,
labor and manufacturing costs, productivity calculations, and competitor data. The Board found
that the union was entitled to that information, explaining that the employer, “in the course of
bargaining, made the information relevant and created the obligation to provide the requested 25
data.” 346 NLRB at 1160. The Board further affirmed that a union is entitled in these instances
to request information to evaluate and verify the respondent’s assertions and develop its
bargaining positions.” Id. In National Extrusion, supra, the employer also cited rising
production costs, falling production and loss/potential loss of customers as reasons for
demanding significant wage decreases. The Board found that “the Union had a legitimate claim 30
to information that it could use to understand, evaluate, and possibly rebut the Respondent’s
assertions.” 357 NLRB No. 8, slip op. at 4.
The Board also recognized that although National Extrusion did not involve an inability-
to-pay claim, its holdings in that case and in Caldwell Mfg., are consistent with the Supreme 35
Court’s observation in Truitt that, ‘if . . . an argument is important enough to present in the give
and take of bargaining, it is important enough to require some sort of proof of its accuracy.’”
National Extrusion, supra, slip op. at 3, citing Truitt, 351 U.S. 149, 152-153 (1956).
Although I agree that this is not an inability-to-pay claim, I disagree that Respondent did 40
not have an obligation to provide the Union with the requested cost savings information because
it did not claim an inability to pay. As in National Extrusion, supra, and Caldwell Mfg., supra.
Respondent, during bargaining, created its own duty to respond to the Union’s information
requests through its claims it was not profitable and demands to save money through its various

25
(R. Br. p. 36, fn. 6.) Respondent did, however, repeatedly assert its need to save money because it had not
been profitable in the past, and did not expect to be so in 2011.
JD(ATL)–16–14
26
proposals. Thus, the Union here also had a legitimate claim for underlying financial data so that
it could understand, evaluate, and possibly develop counterproposals.
Respondent’s reliance on Paperworkers Union, 981 F.2d 861 at fn.1 (6th Cir. 1992), is
misplaced here. In this case, the Sixth Circuit found that the Union was not entitled to financial 5
information because the company had not asserted an inability to pay. (981 F.2d at 865-866 fn.
1) (obligation to provide financial information arises only if the employer claims an inability to
pay). The Board has distinguished similar court opinions such as this as set forth above.26
Respondent asserts that since it allowed the Union access to its accounting “books” and 10
spreadsheet, “detailing its profit and losses to support its need for cost savings,” the Union’s
claim that it needed additional financial information is false. (R. Br. p. 33, fn. 6.) I disagree.
For reasons set forth in the factual findings, I have credited Sprague’s and Mathew’s testimony
that they were never provided with the spreadsheet on May 16 or at any other time during the
bargaining process. Instead, Durbrow verbally told Sprague that Respondent needed to save 15
about $75,000. Subsequently, after Sprague requested a breakdown and documentation,
Durbrow said that it expected to save about $20,000 from the overtime calculation changes,
about $24,000-$25,000 from elimination of the 401(k) employer match, and about $40,000 or the
remainder from the employee healthcare cost contributions, without providing any data to
support how Respondent arrived at these estimates. Further, as stated earlier, had the Union 20
received this spreadsheet, it would have been an insufficient response as it did not include cost
savings calculations or data for each of those economic proposals. During the hearing, Durbrow
gave examples of the financial data on which he relied to determine the estimated cost savings,
including: financial data for the prior 2 years regarding payroll records for overtime, 401(k)
employer matching history maintained on spreadsheets showing how much was paid, and data 25
showing history of health insurance premium costs. He also explained how all employees were
affected by the cost savings proposals, and not just the bargaining unit. (Tr. 341-344.) There is
no evidence, however, that Durbrow or any other of Respondent’s representatives provided the
Union with this explanation or supporting information during the negotiations for the new
contract.30
It is understandable that the Union did not trust the inexact, rather random and ambiguous
cost saving totals thrown out at the bargaining table. In similar cases, the Board has made it
clear that “[w]hile the sum of each year’s savings would be of use to the Union, it left no way to
see the basis of the Company’s conclusion, no way to evaluate the accuracy of the claim, or what 35
the impact of alternative proposals would be.” See National Extrusion & Mfg., Co., supra, slip
op. at 54, citing Wilshire Plaza Hotel, 353 NLRB at 325 (it is an “unfair labor practice for
respondent to respond to union’s request for ‘detailed’ calculations of respondent’s
concessionary economic proposals by providing only ‘flat amounts’ to [the] union”).
40
Further regarding the implication that the Union should have been able to calculate
savings for the specific proposals from information it may have already had, “a union is entitled
to have a calculation from the employer so that it can verify the validity of its own calculation.

26
The Board in National Extrusion, supra, distinguished NLRB v. Harvstone Mfg. Corp., 785 F.2d 570 (7th
Cir.1986), denying enf. of Harvstone Mfg. Corp., 272 NLRB 939 (1984), and Nielsen Lithographing Co. v.
NLRB, 854 F.2d 1063, 1066 (7th Cir. 1988), denying enf. of Nielsen Lithographing Co., 279 NLRB 877
(1986) (Nielsen I).
JD(ATL)–16–14
27
See National Extrusion, supra, slip op. at 54, citing Mary Thompson Hospital v. NLRB, 943 F.2d
741, 747 (7th Cir. 1991) (“need for verification makes it immaterial that union can secure desired
information” by other means). See also Albertson's, Inc., 310 NLRB 1176, 1187 (1993)
(employer's assertion that the union could ascertain the amount of trust fund contributions from
plan documents did not excuse the employer’s failure, and obligation, to give the union its own 5
documentation of the actual contributions made where this data would allow the union to verify
the plan information). Here, the Union may have initially received Respondent’s tax returns and
other financial information for several years through 2010, but the 2010 financial data showed
Respondent had been profitable, as it also had been in 2008. This information appeared to be
contrary to Respondent’s mantra that it was not profitable and needed to save money with its 10
economic proposals. In fact, there was no evidence that the Union should have been able to
deduce, or make its own cost savings calculations from this information, much less determine
whether or not Respondent was profitable in 2011 or during negotiations in 2012. Thus, this
information is not a substitute for the cost savings documentation requested by the Union.
15
Additionally, I find that Respondent not only had an obligation to provide the Union with
the requested cost saving calculations, but it also had an responsibility to provide the 2011
income tax returns once it received them.27 Respondent argues it had no responsibility to open
its books to the Union, but the fact remains that it already opened that door in order to show the
status of its profitability, or lack thereof, and need to save money. 20
Finally, Respondent argues in its brief that the Union only asked for cost savings
information once during negotiations. I reject this argument since the Union is not required to
repeat its request. Nor, does the request have to be in writing. Bundy Corp., 292 NLRB 671
(1989); Harvstone Mfg. Corp., 272 NLRB939 (1984), enfd in part 785 F.2d 570 (7th Cir.), cert 25
denied 479 U.S. 821 (1986). Respondent’s outright failure to furnish the Union with the
requested information is of particular concern given the division between the parties on the
issues of health and welfare cost employee contributions, elimination of the 401(k) match, and
revision of the overtime calculations. Here, Respondent neither requested clarification nor
requested information on relevancy. Nor did it claim the request to be unduly burdensome or 30
unavailable. Rather, Respondent simply failed to provide the information. It is well established
that the Act does not permit an employer to simply refuse to respond to a request, even when
thought to be ambiguous or overbroad, but requires the employer to either request clarification or
comply with the extent the request asks for necessary and relevant information. See Keaubou
Beach Hotel, 298 NLRB 702, 702 (1990). 35
All said, I conclude that Respondent violated Section 8(a)(5) and (1) of the Act when it
failed to respond to the Union’s request for information when bargaining for the new contract.
2. Respondent’s failure to provide requested cost savings information during the 40
bargaining process precludes a valid impasse and unilateral implementation
of its last, best, and final offer
The Board has consistently found that the failure to provide information that is important
to ongoing bargaining will preclude a valid impasse. See E. I. du Pont & Co., 346 NLRB 553, 45

27
Durbrow testified that he received the 2011 income tax information. This was not provided to the Union.
JD(ATL)–16–14
28
558 (2006) (the Board affirmed that “[i]t is well settled that a party’s failure to provide requested
information that is necessary for the other party to create counterproposals and, as a result,
engage in meaningful bargaining, will preclude a lawful impasse”), enfd. 489 F.3d 1310 (D.C.
Cir. 2007) (recognized Board principle that “a finding of valid impasse is precluded where the
employer has failed to supply requested information relevant to the core issues separating the 5
parties.” (quoting Caldwell Mfg. Co., 346 NLRB at 1170). See also Decker Coal Co., 301
NLRB 729, 740 (1991) (“[a] legally recognized impasse cannot exist where the employer has
failed to satisfy its statutory obligation to provide information needed by the bargaining agent to
engage in meaningful negotiations”). Consequently, an employer may not implement a final
offer in the absence of a lawful, good-faith impasse. Bottom Line Enterprises, 302 NLRB 373, 10
374 fn. 9 (1991) (citing NLRB v. Katz, 369 U.S. 736 (1962); White Oak Coal, 295 NLRB 567,
568 (1989); and Lawrence Livermore National Security, LLC, 357 NLRB No. 23, slip op. at 3
(2011). Since I have found that Respondent’s failure to furnish the Union with information to
show how it determined its projected cost savings totals precluded a valid good-faith impasse
and therefore bargained in bad faith, it follows that Respondent further violated Section 8(a)(5) 15
and (1) when it implemented its last, best, and final offer.
B. Totality of the Circumstances
Assuming, arguendo, that Respondent’s refusal to provide requested information alone 20
did not prevent a lawful impasse, I also find, after considering the facts above under the totality
of circumstances standard, that the parties did not reach a valid impasse. The Board defines
impasse as the point in time during negotiations when the parties are warranted in assuming that
further bargaining would be futile and where both parties believe that they are “at the end of their
rope.” A.M.F. Bowling Co., 314 NLRB 969 (1994), enf. denied 63 F.3d 1293 (4th Cir. 1995). In 25
Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968), the
Board enumerated some of the factors it considers in determining if the parties have reached
impasse, including the bargaining history, the good faith of the parties in negotiations, the length
of the negotiations, the importance of the issue or issues as to which there is disagreement, and
the contemporaneous understanding of the parties as to the state of negotiations are all relevant 30
factors in deciding whether an impasse in bargaining existed. The Board has held that where a
party declares an impasse, the burden of proof rests with the party claiming the impasse. L.W.D.
Inc., 342 NLRB 965 (2004); CalMat Co., 331 NLRB 1084, 1097-1098 (2000), CJC Holdings,
Inc., 320 NLRB 1041 (1996).
35
I will primarily address the factors as outlined in Taft Broadcasting Co., supra, to the
extent that both parties mention or refer to them in their respective posthearing briefs.
1. Bargaining history
40
The record establishes that the parties had a history of not only successful collective
bargaining, but of ratifying contracts before and after the prior agreement expired. The Union
also had a history of making concessions, and it was not the first time that the Union stood its
ground before finally agreeing to make concessions in order to save Respondent money.
Likewise, it was undisputed that the Union historically used the strike vote and/or threat of strike 45
as a strategy during the bargaining process with Respondent, without evidence of impasse or
JD(ATL)–16–14
29
failure to ratify a new contract. This is by no means dispositive on the issue, but it appears that
Respondent declared impasse without much regard to this past bargaining history.
2. Lack of good-faith bargaining
5
I find that Respondent’s failure to provide the requested cost savings information to the
Union, in violation of the Act, indicative of a lack of good faith during the bargaining process.
“A failure to supply information relevant and necessary to bargain constitutes a failure to bargain
in good faith in violation of Section 8(a)(5), and no genuine impasse could be reached in these
circumstances.” Pertec Computer Corp., 284 NLRB 810 (1987). The Board in Decker Coal Co., 10
supra at 740, recognized that as in Pertec, most cases applying this principle are ones where the
employer has unlawfully refused, altogether, to provide the information. Such is the case here.
The General Counsel alleges that this failure, along with Respondent’s insistence on
requiring the parties to go to Federal district court, rather than to arbitration, to settle all disputes
reflects a lack of good-faith bargaining on Respondent’s part. Respondent, on the other hand, 15
argues that it acted in good faith throughout the entire process. There is certain conduct that has
been deemed to be indicative of lack of good-faith bargaining, which includes: unreasonable
bargaining demands, delay tactics, unilateral changes in mandatory subjects of bargaining,
efforts to bypass the Union, withdrawal of previously agreed-upon provisions, failure to
designates agents with sufficient authority to bargain, and arbitrary scheduling of meetings. 20
Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). A determination that a party has not
bargained in good faith does not, however, require a finding that an employer has engaged in all
of these activities. Altorfer Machinery Co., 332 NLRB 130, 148 (2000).
Here, there is no evidence that Respondent employed delay tactics, implemented 25
unilateral changes in mandatory subjects of bargaining before declaring an unlawful impasse,
tried to bypass the Union, or failed to designate agents with authority to bargain. Indeed, as
Respondent claims, it participated in the process, recommended the parties have a mediator,
offered up several proposals, albeit one or two contained few if any significant changes.
However, I agree with the General Counsel that Respondent made an unreasonable bargaining 30
demand that the parties utilize Federal or other courts to settle their labor disputes.
Throughout bargaining, Respondent went back and forth on this provision. Respondent
initially proposed, under article 5, “Grievances and Legal Challenges,” that after the parties
exhaust their grievance procedures, the matter will be referred to “TRIAL” upon the request of 35
either party. The same provision also stated that after certain approvals by the Union, the
“grievance may be submitted . . . [t]o TRIAL or procedure mutually agreeable [emphasis added]
to by both the [e]mployer and the [u]nion,” with the parties being bound if they go to trial with
certain limitations also set forth therein. (GC Exh. 6.) In its April 25 and 27 proposals,
Respondent removed the initial language and noted that it was waiting for more information 40
regarding the Western Michigan Industrial Board, including procedures on attending a hearing.
(GC Exh. 11.) However, on May 21, Respondent changed its proposal to reflect that if all
disputed matters were not settled through steps 1 and 2 of the grievance procedure, or step 3
submission to the Federal Mediation and Reconciliation Service, then the matter would be filed
as a complaint in the United States District Court, Eastern District of Michigan. (GC Exh. 13.) 45
Finally, in its last, best, and final offer of June 4, Respondent changed step 4 of its grievance and
JD(ATL)–16–14
30
court procedure article 5 to read that “[i]f no settlement has been made pursuant to Steps 1, 2,
and 3, and the aforementioned grievance procedure fails, then either party may pursue its judicial
remedies.” There was no language to explain what “judicial remedies” meant, or examples of
such remedies, but Respondent made it clear that it still intended for the parties to bypass the
arbitration process and go to court. (GC Ex. 16.) On its face, this may appear to be a part of 5
Respondent’s bargaining strategy, but upon closer look, it seems Respondent went to great
lengths to hold onto this provision.
Respondents offered several reasons for wanting to go to court versus arbitration, most of
which defied logic. First, Respondent said that arbitration would be far more costly and less 10
efficient than going to court. T. J. Hendrickson said that arbitration was more costly because
they would have to “fly people in from all over the place,” and that as in-house counsel it would
be part of his job to go to court. He indicated that he had more court experience, but offered no
reason he could not handle arbitration. He also admitted on further questioning that the cost for
using the AGGregate Carriers Association in the past was fairly minimal (included in the 15
membership fees). Second, T. J. Hendrickson, expressed his concern that he learned that the
Industrial Board would not allow him, as an in-house counsel, to represent Respondent unless he
was also an officer. Finally, T. J. Hendrickson explained that based on his past experience with
the AGGregate Carriers Association, he believed that the Industrial Board’s procedures would
favor or be biased towards the Union. However, the parties had not utilized or required 20
arbitration or use of such a board, association or panel for arbitration services in over 10 years,
despite its provision for such a process in its prior collective-bargaining agreements. In addition,
the Union countered in one of its proposals that in the event that either party would object to the
use of the Industrial Board for resolving grievances, they could be presented to the America
Arbitration Association (AAA). Respondent did not provide evidence that T. J. Hendrickson 25
could not have represented Respondent before the AAA or before a similar arbitration forum.
Further, the proposal for a trial in court in lieu of arbitration is not only contrary to
Respondent’s goal to control costs, but it goes against generally accepted opinion that it is
normally far less costly and expeditious to go to arbitration than to take a dispute into any type of 30
court. The Board has recognized that arbitration usually costs less and is more efficient than
litigation, and the Supreme Court and Congress have certainly found arbitration to be the
preferred process for settling labor disputes. See Collyer Insulated Wire, 192 NLRB 837, 843
(1971); Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 578 (1960). Since arbitration has
been deemed an essential part of collective bargaining, Respondent’s demand to remove it, along 35
with its refusal to supply requested information, taints and frustrates the bargaining process.
Thus, I reject Respondent’s argument and reliance on Phelps Dodge Specialty Copper Products
Co., 337 NLRB 455, 457 (2002), that even if its proposals appear regressive or reasons for them
unpersuasive, they are not “so illogical as to warrant an inference that” it intended to avoid
reaching an agreement or frustrate the process. 40
Respondent’s insistence that any and all disputes between the parties arising out of the
contract (i.e., relating to all of employees’ terms and conditions of employment) go from the
internal grievance process straight to court is also troubling because it appears that Respondent
was implicitly attempting to limit or bar the exercise of individual bargaining unit employees’ (or 45
their agents’) statutory right to file charges with the Board as well as to pursue the full grievance
and arbitration process. See Athey Products Corp., 303 NLRB 92, 96 (1991); Isla Verde Hotel
JD(ATL)–16–14
31
Corp., 259 NLRB 496 (1981), enfd. 702 F.2d 268 (1st Cir. 1983); Reichold Chemicals, 288
NLRB 69 (1988). The Board has consistently held that an employer violates the Act when it
requires employees to waive their right (explicitly or implicitly) to file charges with the Board.
Athey Products, supra; Retlaw Broadcasting Co., 310 NLRB 984 (1993). I am not finding a per
se violation regarding this matter, but rather that Respondent’s insistence and inclusion of such a 5
provision supports a finding that Respondent did not engage in good-faith bargaining.
In support of its bargaining to a good-faith impasse argument, Respondent also points out
that it made numerous concessions and/or engaged in progressive bargaining by agreeing to
withdraw a number of its initial proposals; reaching tentative agreements; agreeing to only 10
eliminate its 401(k) match until it became profitable; decreasing its initial proposed employees’
contributions to health and welfare premiums; and changing the dispute resolution option from
filing in Federal district court to the parties’ choice of judicial remedies. However, I find that
Respondent’s refusal to provide information on the critical issues to which the Union was
entitled plus its unreasonable demand that the parties bypass arbitration tainted the bargaining 15
process and constituted a lack of good-faith bargaining.
3. Contemporaneous understanding of the parties
In order to establish the existence of impasse, Respondent must prove that there was a20
contemporaneous understanding by both sides that they had reached impasse. Monmouth Care
Center, 354 NLRB 11, 57 (2009). It is clear that the Union did not believe that the parties were
at impasse in May or June 2012, and that Sprague strongly voiced his objection and
disagreement with Respondent’s assessment and declaration that it had they had. Although the
Union believed it had made enough concessions in prior years, and did not receive the requested 25
information, it still countered Respondent’s health and welfare proposals by offering to pay
employee contributions of $15 per employee per week on a pretax basis and to reinstate the opt-
out option. The Union also proposed maintaining the status quo except for the tentative
agreements made on April 10 and the $15 employee contributions to health care, so that the
parties could determine whether or not Respondent was actually profitable from 2011-2012. 30
Indeed, the Union’s position throughout negotiations was that further negotiations might
be fruitful, especially if Respondent would provide it with the requested cost savings
information. In such circumstances, it is clear that an impasse cannot be found to have
existed on July 1. S e e Newcor Bay City, 3 4 5 N L R B 1 1 2 9 , 1238–1239 (2005) (union’s35
continued assertion that movement is possible in future, depending in part on what information
respondent provided, substantial evidence of finding no impasse). Despite the fact that the
Union had not offered concessions and counterproposals on overtime and the 401(k) match, it
maintained its intention to be flexible and desire to continue bargaining. See Grinnell Fire
Systems Co., 328 NLRB 585, 585–586 (1999) (no impasse where employer expressed40
unwillingness to move from its position and union had not offered specific concession, but had
declared its intention to be flexible and sought further bargaining). Given the record as a whole,
I conclude that as of June 13, the parties had not exhausted prospects of reaching an agreement.
The Union had certainly not reached the end of its negotiating rope. PRC Recording Co., 280
NLRB 615, 635 (1986).45
JD(ATL)–16–14
32
Overall, despite having conflicting goals, the parties were able to work out several
tentative agreements at their April 10 session. Further, in this and later sessions, Respondent
also withdrew several of its own initial proposals, including limiting employees to 1 week of
vacation during the busy season, reducing vacation pay (back to $1 per hour from $.50 per hour),
implementing a tool allowance of $200 (versus 0), increasing the eligibility time for health care 5
coverage (back to 90 days from 180 days), and agreed to the Union’s proposal to eliminate the
super seniority provision placing the chief steward at the top of the seniority list. Respondent
also agreed to eliminate the 401(k) employer match until it became profitable (versus
indefinitely). The Union, on the other hand agreed to continue the freeze on wage rate increases,
a huge concession after years with no raises. Respondent reduced its initial proposed employees’ 10
contributions to health and welfare premiums from 25 percent to 20 percent for drivers and 15
percent for mechanics/mechanic helpers, and then down to 15 percent for drivers and 13 percent
for mechanics/mechanic helpers. At one point, it offered a second option with flat employee
contributions which increased each year over the life of the agreement. The Union, in turn,
agreed to have members pay $15 each per week towards the health and welfare insurance costs, 15
and sought to allow the opt-out option. In addition, Respondent eliminated the super seniority
provision for chief stewards as initially recommended by the Union, the only concession actually
made by Respondent in response to the Union’s initial proposals. Indeed, contrary to
Respondent’s contention, the Union had shown flexibility on several significant issues just as it
had. This is true even though Respondent had also declined to compromise on several critical 20
issues and been unwilling to provide financial documentation that might very well have helped
further progress towards a new agreement. Newcor, supra. Respondent may have been
frustrated with the Union’s pace in agreeing to concessions, this did not mean that the Union was
ready to abandon negotiations. Id.
25
I am not persuaded by Respondent’s arguments that impasse is demonstrated by the fact
that the Union held a ratification vote rejecting its offers and even presented a final proposal with
three options, including a strike. The Board has held that a ratification vote rejecting such an
offer does not in itself show that the parties are at impasse-instead, one must still consider
whether further bargaining would be futile because both parties are at the end of their rope. Ead 30
Motors Eastern Air Devices, 346 NLRB 1060, 1063 (2006) (considering the customary factors
used to determine whether the parties are at impasse). Here, the evidence shows that after the
Union’s first vote rejecting Respondent’s proposals and strike vote, the Union readily returned to
the bargaining table, pursued counter proposals and continued to request more information about
Respondent’s proposals. Just because the Union was not willing to roll over and accept 35
Respondent’s offers does not mean that it believed further negotiations would not be fruitful. In
light of these facts, Respondent did not carry its burden of showing that the parties were at a
good-faith impasse when Respondent unilaterally implemented the terms of its last, best, and
final offer. Additionally, Respondent did not implement its last, best offer on June 4, but instead
sent the Union another last, best, and final offer to implement on June 11. 40
4. Number of bargaining sessions
The parties only had six bargaining sessions before Respondent declared they had
reached impasse and implemented its last, best, and final offer, one of which was the first 45
meeting with the Federal mediator which did not involve any negotiating or exchange of
proposals. I do find that intermittent correspondence and exchange of proposals without any
JD(ATL)–16–14
33
discussion or meeting with the bargaining representatives constitute bargaining sessions.
Although the parties need not participate in a set number of sessions, the Board has found six
sessions insufficient to support an impasse. See U.S. Testing Co., 324 NLRB 854, 860-861
(1997); see also Taft Broadcasting Co., supra (finding no impasse after 23 sessions).
5
All of these factors taken together show that the parties had not reached a good-faith
impasse, and therefore, unlawfully implemented its last, best and final offer on June 11.
C. The Strike was an Unfair Labor Practice Strike
10
The General Counsel alleges that the strike in which the bargaining unit engaged was an
unfair labor practice strike because of unlawful impasse and implementation of Respondent’s
last, best, and final offer. Respondent argues that it was an economic strike because it did not
engage in any unfair labor practices. If an employer’s unfair labor practice was a contributing
cause of a strike, the Board has determined that the strike is an unfair labor practice strike. 15
Executive Management Services, 355 NLRB 185 (2010); New Brunswick General Sheet Metal
Works, 326 NLRB 915, 915 (1998); C-Line Express, 292 NLRB 638 (1989). Likewise, the
Board need not find that such a strike would not have occurred “but for” the unfair labor
practice. Decker Coal Co., 301 NLRB 729, 746 (1991). Rather, as long as it finds that the
unfair labor practice has “anything to do with” causing the strike, the strike will be considered an 20
unfair labor practice strike. Child Development Council of Northeastern Pennsylvania, 316
NLRB 1145 fn. 5 (1995), quoting NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir. 1972),
cert. denied 419 U.S. 850 (1974); see also General Drivers & Helpers Union Local 662 v. NLRB,
302 F.2d 908, 911 (D.C. Cir.), cert. denied 371 U.S. 827 (1962). Thus, such unfair labor practice
need not be the primary goal of the strikers. See, e.g., Northern Wire v. NLRB, 887 F.2d 1313, 25
1319-1321 (7th Cir. 1989) (“A strike caused in whole or in part by an employer's unfair labor
practices is an unfair labor practice strike.”); NLRB v. Moore Business Forms, 574 F.2d 835, 840
(5th Cir. 1978) (“The employer's unfair labor practice need not be the sole or even the major
cause or AGGravating factor of the strike; it need only be a contributing factor.”). In the instant
case, even though the union membership took a strike vote in late April, and Sprague threatened 30
Respondent with a strike, there is no dispute that the Union did not go out on strike until it
realized and had proof that Respondent had implemented its last, best offer. Indeed, after
Respondent declared impasse and submitted a last, best offer to be implemented on June 4, and
then a last, best, and final offer to be implemented on June 11, the Union did not initiate a strike.
Since I have determined that Respondent’s implementation of its last, best, and final offer 35
constituted an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act, I find that
the evidence sufficiently supports a finding that the unfair labor practice was a contributing
factor to the Union’s strike.
I reject Respondent’s argument that the reasons for the initial strike vote should prevail in 40
determining how to characterize the strike in this case. It is without merit, as is its reliance on
case law regarding union membership’s discussions at strike vote meetings. In Mobil Homes
Estates, Inc., 259 NLRB 1384, 1397, 1402 (1982), enfd. on other grounds 707 F.2d 264 (6th Cir.
1983), the Board affirmed that a strike was economic despite an employer’s unlawful statements
the day before the strike began since the union had previously held three strike votes. In a 45
second case on which Respondent relies, Facet Enterprises, 290 NLRB 152, 154 (1988), enfd.
on other grounds 907 F.2d 963 (10th Cir. 1990), the Board found that in requesting a strike vote,
JD(ATL)–16–14
34
the only grounds offered or ever discussed by the union representatives dealt with the economic
proposals. In another, Christopher Construction Co., 288 NLRB 1272, 1276 (1988), the Board
found that an economic strike was not converted into an unfair labor practices strike since there
was no evidence that the strikers ever discussed or considered unlawful discharges as a reason to
prolong the strike. In Reichhold Chemicals, 288 NLRB 69 (1988), revd. 906 F.2d 719 (D.C. Cir. 5
1990), on remand 301 NLRB 706 (1991), the Board concluded a strike was economic because
the union employees went on strike following two strike votes, without mentioning the unlawful
waiver of access to the Board by union members. Respondent relies on Reichhold Chemicals to
argue that “information on which the employees acted when they voted to strike is what is
crucial in determining if there is a causal connection” between the employer’s unlawful labor 10
practice and their “determination to strike.” Id. at 73.
I find that these cases are distinguishable from the instant case. Here, the unlawful
impasse and implementation occurred prior to the strike. I have credited the testimony that on
June 13 or 14, union representatives (one of whom- Mathews- was also an employee as well as 15
union officer) not only met with and discussed Respondent’s unwillingness to move forward
with negotiations based on the impasse declaration and two notices of implementation, but also
talked about and decided not to strike unless Respondent actually implemented its second last
offer. Moreover, there is no dispute that the Union continued to negotiate and did not strike after
the strike vote in April, nor did the Union strike immediately after Respondent’s first or second 20
final offers on June 4 and 11. It is well established that a causal connection between the
unlawful conduct and the strike may be inferred from the record as a whole. In re Post Tension
of Nevada, Inc., 352 NLRB 1153, 1163 (2008); Child Development Council, supra at 1145.
Thus, it is quite reasonable, based on the evidence, to find a causal connection here between
Respondent’s unlawful acts (impasse and implementation) and the strike. 25
Moreover, it matters not that the Union initially voted to strike in order to show that it
was serious about its proposals, and to pressure Respondent into considering and accepting some
of them since the evidence shows that the actual strike was primarily motivated, or least partly
motivated, by Respondent’s unlawful impasse and implementation of its last, best, and final 30
offer. This is not a case where the Union and/or its membership never considered unfair labor
practices before striking. General Drivers & Helpers Union Local 662 v. NLRB, supra.
Additionally, Respondent cautions that since the Union might know that its articulated
reasons for striking will determine its members’ recall rights, that I should “carefully distinguish 35
facts demonstrating true motivation from efforts by the union at revisionist history.” (See R. Br.
at 45, citing C-Line Express, 292 NLRB 638 (1989), and Pirelli Cable Corp. v. NLRB, 141 F.3d
503 (4th Cir. 1998)). I reject this argument as well as I have considered, and there is no
evidence that the Union skillfully contrived its reasons for initiating the strike, or served up “self-
serving rhetoric of sophisticated union officials . . . inconsistent with the true factual context.” 40
C-Line, supra at 638.
D. Respondent’s Failure to Reinstate the Strikers Following their Unconditional
Request to Return to Work also Violated the Act
45
An employer violates Section 8(a)(3) and (1) of the Act when it fails or refuses to
reinstate unfair labor practice strikers immediately after they have submitted their unconditional
JD(ATL)–16–14
35
offer to return to work. In re Post Tension of Nevada, Inc., supra, citing Sproule Construction
Co., 350 NLRB 774 fn. 2 (2007); Mastro Plastics v. NLRB, 350 U.S. 270, 278 (1956) (unfair
labor practice strikers are entitled to immediate reinstatement to their former positions even if
replacements have been hired). Respondent offered no other argument on this issue other than
its assertion that the strike was an economic in nature, which I rejected. Therefore, I find that 5
Respondent violated Section 8(a) (3) and (1) of the Act when it treated the unfair labor practice
strikers like economic strikers, and failed to immediately reinstate them after the Union, on their
behalf, served Respondent with its November 30 unconditional offer to return to work.
E. The July 31 and November 30 Information Requests10
The standards set forth above regarding information requests are applicable here as well.
As stated earlier, an employer’s duty to bargain includes a general duty to provide relevant and
necessary information requested by the Union to carry out its statutory duties as its employees’
bargaining. Crittenton Hospital, 343 NLRB 717, 719 (2004), citing NLRB v. Acme Industrial 15
Co., 383 U.S. 432 (1967). The union need only show that it had a reasonable belief, based on
objective facts, that the requested information here is relevant. Disneyland Park, 350 NLRB
1256, 1257-1258 (2007). Respondent has a duty to respond, and if it does not, it violates Section
8(a) (5) of the Act. See Columbia University, 298 NLRB 941, 945 (1990). Information sought
pertaining to nonunit employees, including the employer and its managers and operations, are 20
not presumptively relevant as is that requested about bargaining unit employees. The Board has
held, however, that an exception to this rule is that “information regarding temporary [nonunit]
workers performing bargaining unit work is presumptively relevant.” Pavilion At Forrestal
Nursing & Rehabilitation, 346 NLRB 458, 466 (2006), citing United Graphics, 281 NLRB 463
(1986); Phoenix Coca-Cola Bottling Co., 337 NLRB 1239, 1244-1245 (2002). Under either 25
circumstance, the General Counsel met its burden of showing that the Union’s requests were
relevant and necessary.
Respondent claims that it hired permanent, and not temporary workers, and that the
Union knew this because it saw and allegedly followed the AGG trucks and replacement drivers. 30
However, there is no evidence that the Union knew whether these replacements were temporary,
permanent, or subcontractors. Respondent certainly did not furnish the Union with this
information.
As set forth in the factual background, on July 31, the Union requested 48 pieces of 35
information pertaining to AGG and its relationship to Respondent, as well as information about
AGG’s employees and truckdrivers potentially performing the strikers’ work. Sprague explained
that the union membership did not know if AGG was Respondent’s alter ego, if it would be
replacing Respondent, or if Respondent was preparing to close its doors. The Union requested
this information again on November 30. The Board has held that a union has no obligation to 40
disclose the objective facts on which its belief that an alter ego existed was based at the time of
the requests, nor is the union responsible for showing that these facts were either accurate or
ultimately reliable. Instead, the General Counsel must only demonstrate that at the time of the
requests, the Union had a reasonable belief based on the objective evidence that an alter ego
relationship existed. McCarthy Construction Co., 355 NLRB 50, 52 (2010); see also Piggly 45
Wiggly Midwest, LLC, 357 NLRB No. 191, slip op. at 1, 14 (2012).
JD(ATL)–16–14
36
Here, it is undisputed that the union members observed that Respondent had painted the
AGG name on its truck normally driven by bargaining unit employees. The Union also saw on
the internet that AGG appeared to be one of Respondent’s companies. These factual
observations reasonably led to the Union’s reasonable belief that AGG might be Respondent’s
alter ego, and also that others were performing the work of the strikers. Indeed, Respondent later 5
admitted that it and AGG were in fact one in the same company, and that it allegedly formed
AGG and painted the name on its truck to hide the trucks from union members who had been
following the trucks. Therefore, information about AGG, its business operations and
relationship to Respondent, as well as information about the workers driving the trucks, was
relevant and necessary for the Union to carry out its representative function. 10
On November 30, the Union submitted its second request for this information in
connection with its request to Respondent to meet to continue to bargain for a new collective-
bargaining agreement. (GC Exh. 23.) Still, Respondent failed to respond. Instead, it argues that
it was absolved of its responsibility to respond since on January 9, it advised Sprague, in 15
connection with a separate information request (that of December 27), that if its purpose was to
learn whether Hendrickson Trucking and AGG Trucking are a single employer, “you should
know that Hendrickson Trucking does not dispute that they are.” Respondent also advised that it
always employed and paid the replacement employees. (R. Exh. 12.) The Board has
consistently held that an unreasonable delay in furnishing such information is as much of a 20
violation of Section 8(a)(5) and (1) of the Act as a refusal to provide the information. Monmouth
Care Center, 354 NLRB 11, 51 (2009), reaffirmed and incorporated by reference 356 NLRB No.
29 (2010), enfd. 672 F.3d 1085 (D.C. Cir. 2012); Overnight Transportation Co., 330 NLRB
1275 (2000). Here, the evidence shows that Respondent’s January 9 response is not only an
unreasonable delay in furnishing information, but an in adequate response to the July 31 and 25
November 30 requests. Further, the time delay of over 6 months far exceeds the delays found
acceptable by the Board. See Postal Service, 308 NLRB 547, 550 (1992) (delay of 5 weeks and
2 months excessive), Postal Service, 310 NLRB 530, 536 (1993) (1-month delay excessive); El
Paso Electric Co., 355 NLRB 428, 478 (2010) (a 3-month delay found to be in violation of Sec.
8(a) (5)). And, as the General Counsel points out, the delay in this case far exceeds the 1-month 30
delay that the Board found reasonable in Woodland Clinic, 331 NLRB 735, 737 (2000).
Therefore, I find that Respondent’s failure to respond to the Union’s July 31 request for
information violated Section 5(a) and (1) of the Act.
35
F. Respondent Violated the Act when it Refused to Resume Bargaining in 2012
On November 30, Sprague also notified Respondent that it was prepared to resume
bargaining in order to achieve a collective-bargaining agreement, and asked for available dates
for bargaining. (R. Exh. 23.) Sprague further requested that Respondent, in preparation for 40
bargaining, rescind any and all unilaterally implemented changes, return to the status quo prior to
making the changes, make all employees whole for any financial losses resulting from these
changes, and respond to the July 31 information requests. Ryan, Respondent’s outside counsel,
testified that based on a telephone conversation he had with Sprague shortly thereafter, he did not
pursue bargaining per the written request. As discussed earlier, Ryan claimed that when he told 45
Sprague that Respondent would not rescind its implemented changes or return to the status quo,
or make employees whole, or reinstate employees, that Sprague said to “forget it,” he would just
JD(ATL)–16–14
37
let the NLRB decide it. Sprague did not recall this conversation, and believed that Ryan may
have talked to another union representative, Bernard. Ryan swore he spoke to Sprague, but did
not recall when or under what circumstances–i.e., whether he called him directly about this case
or whether he spoke to him after discussions about another case on which they represented the
parties. I credited Sprague’s account over Ryan’s, but even if Ryan had this conversation with 5
Bernard, it did not absolve Respondent of its responsibility to resume bargaining on a new
contract when requested by the Union. I conclude that it was Respondent who refused to bargain
when Ryan said it definitely not meet the requested prerequisites to bargaining. Respondent also
argued that Sprague never requested bargaining dates in any of his subsequent letters to
Respondent, but neither did Respondent until of course Respondent decided that it was ready to 10
resume bargaining on a new agreement.
Indeed, Ryan, on behalf of Respondent, did not have any problem sending numerous
emails to Canzano in March and April 2013 in an attempt to set dates for bargaining and FRE
408 discussions. Ryan explained this was because Respondent was ready to get back to the 15
bargaining table during the slow season. However, witnesses testified that the slow season
usually began in late November/early December, so this testimony is inconsistent with Ryan’s
failure to give Sprague bargaining dates in December 2012.
I find, therefore , that Respondent continued to fail to bargain with the Union between November 20
30 and his first attempt on March 25, 2013. (R. Exh. 30), in violation of the Act.28
CONCLUSIONS OF LAW
1. Respondent, Hendrickson Trucking Company, is an employer engaged in 25
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union, Local 164, International Brotherhood of Teamsters (IBT), is a labor
organization within the meaning of Section 2(5) of the Act.
30
3. The Union is, and, at all material times, was the exclusive collective bargaining
representative of the following appropriate units at Respondent’s Jackson, Michigan facility.
All drivers, mechanics, mechanic helpers and parts/utility
employees employed by us at or out of its facility located at 1077 35
South Toro, Jackson, Michigan, but excluding all guards and
supervisors as defined in the National Labor Relations Act (the
Act).
4. By unilaterally implementing the terms of its last, best, and final collective-40
bargaining agreement offer without bargaining with the Union to a good-faith impasse,
Respondent violated Section 8(a) (5) and (1) of the Act.

28
Of note, Respondent and the Union met to bargain on July 26, but Respondent refused to discuss any of the
issues because the Union did not have anything new. Even if a union has nothing new, the Board has held
that a respondent has an obligation to bargain. Carey Salt Co., 358 NLRB No. 124, slip op. at 26 (2012).
JD(ATL)–16–14
38
5. By failing and refusing to provide the Union with the information it requested on
July 31, and again on November 30, which was relevant and necessary to the Union to carry out
its collective-bargaining representative responsibilities, Respondent violated Section 8(a)(5) and
(1) of the Act.5
6. By failing and refusing, on November 30, 2012, to immediately reinstate
bargaining unit employees who had engaged in an unfair labor practice strike, beginning on June
25, 2012, and had made an unconditional offer to return to work, Respondent violated Section
8(a)(3) and (1) of the Act. 10
7. By failing and refusing to resume bargaining collectively towards a new
collective-bargaining agreement on or after November 30, 2012, Respondent violated Section
8(a)(5) and (1) of the Act.
15
REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.20
Specifically, I shall order Respondent to rescind the unlawful unilateral changes
contained in its last, best and final offer and unlawfully implemented/made on about July 11,
2012, regarding the unit employees’ terms and conditions of employment, if the Union requests,
and to restore the status quo ante, if the Union requests, that existed prior to the changes until 25
such time as Respondent begins to bargain with the Union in good faith to a collective-
bargaining agreement or good-faith impasse. This obligation also includes that Respondent
immediately begin to bargain in good faith with the Union to a new collective-bargaining
agreement or bona fide impasse.
30
I shall also order Respondents to make whole any unit employees affected by the
unlawful unilateral changes. This includes reimbursing the employees for any loss of earnings or
benefits resulting from the changes. Similarly, I shall also order Respondent to make whole the
unfair labor practice strikers who were denied immediate reinstatement on November 30, 2012,
for any loss of earnings and other benefits suffered as a result of Respondent’s failure to reinstate 35
them. Backpay shall be computed in the manner set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest at the rate prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010). It also includes making any benefit
contributions on behalf of eligible unit employees that have not been made since the date of the 40
unlawful changes, plus any additional amounts due and health and welfare and other funds in
accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). It further
includes reimbursing the unit employees for any expenses ensuing from Respondent’s failure to
make the required contributions to such benefit funds, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be 45
computed in the same manner as backpay described above. Respondent shall file a report with
the Social Security Administration allocating backpay to the appropriate calendar quarters, and
JD(ATL)–16–14
39
shall compensate the affected employees for the adverse tax consequences, if any, of receiving
one or more lump-sum backpay award award(s) covering periods longer than one year. Latino
Express, Inc., 359 NLRB No. 44 (2012).
I shall also order Respondent, within 14 days of the below Order, to offer all of the unit 5
employees who engaged in the unlawful labor practice strike on June 25, 2012, and who were
not immediately reinstated upon unconditional request made on November 30, 2012, recall to
their former positions, terminating, if necessary, any replacements who occupy those positions,
or if those positions no longer exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously enjoyed. This includes reimbursing 10
said employees for any loss of earnings or benefits resulting from this failure to reinstate on or
about November 30 in the manner as set forth above.
I shall also order Respondent to provide the information requested by the Union on July
31, and again on November 30.15
Finally, I shall order Respondent to each post a notice to their employees regarding their
respective violations in accordance with J. Picini Flooring, 356 NLRB No. 9 (2010).
Accordingly, consistent with the foregoing, and based on the above findings of fact and 20
conclusions of law and the entire record, I issue the following recommended29
ORDER
Respondent, Hendrickson Trucking Company, Jackson, Michigan, its officers, agents, 25
successors, and assigns, shall
1. Cease and desist from
(a) If requested by the Union, implementing the unilateral changes contained in its 30
last, best, and final offer and unlawfully implemented/made on about July 11, 2012, regarding
the unit employees’ terms and conditions of employment, without bargaining (and until it begins
to bargain) in good faith with the Union to a new collective-bargaining agreement or bona fide
impasse.
35
(b) Failing and refusing to immediately reinstate employees who engage in an
unfair labor practice strike, upon their unconditional offer to return to work made on November
30, 2012.
(c) Failing and refusing to timely provide relevant and necessary information 40
requested by the Union on July 31 and November 30, 2012.
(d) Failing to bargain in good faith with the Union towards a new collective-

29
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)–16–14
40
bargaining agreement or bona fide impasse. The Union is the exclusive collective-bargaining
representative of the following appropriate bargaining unit at Respondent’s Jackson, Michigan
facility:
All drivers, mechanics, mechanic helpers and parts/utility 5
employees employed by us at or out of its facility located at 1077
South Toro, Jackson, Michigan, but excluding all guards and
supervisors as defined in the National Labor Relations Act (the
Act).
10
(e) In any like or related manner interfering with, retraining 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.15
(a) Within 14 days of this Order, if the Union requests, rescind the unlawful
unilateral changes contained in its last, best, and final offer and unlawfully implemented/made
on about July 11, 2012, regarding the unit employees’ terms and conditions of employment, and
to restore the status quo ante, if the Union requests, that existed prior to the changes until such 20
time as Respondent begins to bargain with the Union in good faith to a collective-bargaining
agreement or bona fide impasse.
(b) Make whole, with interest, all bargaining unit employees affected by the
unlawful unilateral changes contained in its last, best, and final offer and unlawfully 25
implemented/made on about July 11, 2012, regarding the unit employees’ terms and conditions
of employment, in the manner set forth in the remedy section of this decision.
(c) Within 14 days of this Order, offer all of the unit employees who engaged in
the unlawful labor practice strike on June 25, 2012, and who were not immediately reinstated 30
upon unconditional request made on November 30, 2012, recall to their former positions,
terminating, if necessary, any replacements who occupy those positions, or if those positions no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
35
(d) Make the unfair labor practice strikers whole for any loss of earnings and
other benefits, with interest, suffered as a result of the discrimination against them in the manner
set forth in the remedy section of this decision.
(e) Respondent shall file a report with the Social Security Administration 40
allocating backpay to the appropriate calendar quarters, and shall compensate the affected
employees for the adverse tax consequences, if any, of receiving one or more lump-sum backpay
award award(s) covering periods longer than one year.
45
JD(ATL)–16–14
41
(f) Provide the Union with all of the information it requested on July 31 and again
on November 30, 2012.
(g) Bargain collectively and in good faith with the Union as the exclusive
collective-bargaining representative of the unit employees.5
(h) Within 14 days after service by Region 7, post at the Hendrickson Trucking
Company facility in Jackson, Michigan, a copy of the attached notice marked “Appendix.” 30
Copies of the notice, on forms provided by the Regional Director for Region 7, after being
signed by the Respondent’s authorized representative, shall be posted by the Respondent and 10
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are 15
not altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since June 11, 2012. 20
(i) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
25
Dated, Washington, D.C., May 16, 2014
30
__________________________
Donna N. Dawson
Administrative Law Judge

30 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT unilaterally implement unilateral changes affecting the terms and condition of
unit employees’ employment (wages, hours and working conditions), without good-faith
bargaining with the Local 164, International Brotherhood of Teamsters (IBT) (the Union) and
reaching an overall good-faith impasse.
WE WILL NOT fail and refuse to immediately reinstate employees who engage in an unfair
labor practice strike, upon their unconditional offer to return to work.
WE WILL NOT refuse to respond to and provide to the Union information that is relevant and
necessary to its role as your bargaining representative in the following appropriate unit :
All drivers, mechanics, mechanic helpers and parts/utility employees employed
by us at or out of its facility located at 1077 South Toro, Jackson, Michigan, but
excluding all guards and supervisors as defined in the National Labor Relations
Act (the Act).
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL restore the status quo that which existed prior to any unilateral changes implemented
without bargaining to a good-faith impasse until such time as we begin to bargain with the Union
to a collective-bargaining agreement or good-faith impasse.
WE WILL, if requested by the Union, rescind any and all changes to your terms and conditions
of employment made without bargaining with the Union to a good-faith impasse.
WE WILL pay bargaining unit employees for the wages and other benefits lost because of the
changes to terms and conditions of employment that we made without bargaining with the Union
to a good-faith impasse.
WE WILL bargain collectively and in good faith with the Union as the exclusive collective-
bargaining representative of our unit employees.
WE WILL make offers of immediate and full reinstatement, pursuant to the Union’s
unconditional offer to return to work, to all employees who were on strike at any point since June
25, 2012, to the positions that they held prior to our unlawful discrimination against them, and
offer recall rights in the event we failed or refused to properly reinstate employees, without
prejudice to their seniority rights or other rights and privileges previously enjoyed, and to make
them whole for any loss of wages and benefits they may have suffered as a result of the
discrimination, with interest computed in accordance with National Labor Relations Board (the
Board) policy.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
HENDRICKSON TRUCKING COMPANY
(Employer)
Dated______________________By_______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-086624 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST
REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING
THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (410-962-2864).