IMI SOUTH, LLC, D/B/A IRVING MATERIALS, INC.

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 97 (N.L.R.B. 2016)

364 NLRB No. 97
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
IMI South, LLC, d/b/a Irving Materials and General
Drivers, Warehousemen and Helpers, Local Un-
ion No. 89 affiliated with the International Broth-
erhood of Teamsters. Case 09–CA–073769 and
09–CA–080462
August 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On December 18, 2012, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The General
Counsel and the Charging Party filed exceptions and sup-
porting briefs, the Respondent filed an answering brief,
and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
The complaint alleges that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by unilaterally transferring
a portion of bargaining unit work from union-represented
employees at the Respondent’s facility in Louisville, Ken-
tucky, to unrepresented employees at its facility in New
Albany, Indiana. The judge found no violation. For the
reasons set forth below, we reverse the judge and find that
the Respondent’s unilateral transfer of bargaining unit
work did violate Section 8(a)(5) and (1). We also reverse
the judge and find that the Respondent violated Section
8(a)(3) and (1) by failing to reinstate any of the mechanics
who engaged in an economic strike.
I. FACTS
The Respondent produces and distributes ready-mix
concrete from a number of facilities, including one in Lou-
isville and another in New Albany, about 15 miles away.
Teamsters Local 89 has represented a unit of employees,
including truck drivers and truck mechanics, at the Louis-
ville facility since at least 1993. By the express terms of
the parties’ collective-bargaining agreement, the Louis-
ville mechanics maintain and repair the Respondent’s
trucks operating in Kentucky. Since at least 1993, those

1 The territory covered was “Kentucky territory defined as Louisville
and Middletown. . . .”
2 The three bridges are the Kennedy Bridge, the Sherman Minton
Bridge, and the Second Street Bridge. Only the Kennedy Bridge and the
Sherman Minton Bridge are open to commercial traffic. As of May
mechanics have also maintained and repaired trucks oper-
ating in southern Indiana, although the parties’ collective-
bargaining agreement did not expressly cover that work.1
In May 2011, the Respondent began preparing to open
a maintenance shop in New Albany, Indiana, in anticipa-
tion of the expected closure of one of three Ohio River
bridges connecting Louisville and southern Indiana.2 The
Respondent initially planned to open this shop at the start
of 2012. At no time did the Respondent inform the Union
of its plans, let alone indicate whether the operation of this
shop was intended to be a temporary or a permanent meas-
ure.
When the Sherman Minton Bridge unexpectedly closed
on September 9, 2011, the Respondent decided to open the
maintenance shop in New Albany as soon as possible, and
the shop was operational by mid-October. But the Re-
spondent still did not notify the Union of the existence of
the shop.
Meanwhile, negotiations for a successor to the existing
Louisville collective-bargaining agreement had begun on
June 13, 2011.3 One of the Union’s initial proposals was
to “Define area for the shop and Drivers.” The Union
orally explained that this proposal was an attempt to ex-
pressly incorporate the parties’ past practice of the Louis-
ville mechanics performing maintenance and repair work
on trucks operated in southern Indiana. The Respondent
did not then (or ever) inform the Union of its plan to oper-
ate the New Albany maintenance shop, but instead re-
jected the proposal, stating only that the company “main-
tained our rights to service [Southern Indiana] in the most
flexible way that we need to.” The proposal to modify the
agreement’s geographic scope was not discussed again at
any bargaining sessions, which continued into 2012.
The Union commenced a strike at the Louisville facility
on September 7, 2011. By mid-October, the Respondent
had hired two new mechanics at the New Albany shop to
perform maintenance and repair work on the Respond-
ent’s trucks in southern Indiana, work that Louisville me-
chanics had historically performed prior to the strike. The
Respondent also hired two mechanics in Louisville during
the strike to continue servicing trucks operating in Ken-
tucky.
At some point after January 1, 2012, but prior to the
conclusion of negotiations, the Union’s lead negotiator,
Jeffrey Cooper, became aware of the New Albany mainte-
nance operation from sources other than the Respondent.
Cooper contacted the Union’s New Albany steward and
2011, the State of Kentucky had announced plans to close the Kennedy
Bridge for repair work, but the State had not announced when the antic-
ipated closure would take place.
3 By its terms, the most recent collective-bargaining agreement was
effective from July 1, 2008 to June 30, 2011.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
asked for the names of the New Albany mechanics.4
Cooper never made any additional inquiries regarding the
New Albany shop during the strike or in subsequent nego-
tiations.
On February 16, 2012, the parties entered into a new
collective-bargaining agreement (2012 agreement). The
agreement’s geographic scope provision was identical to
the corresponding provision in the prior agreement. The
agreement also contained a “zipper clause,” set forth be-
low, identical to the one in the prior agreement:
ARTICLE XV
EXTENT AND NATURE OF AGREEMENT
Section 1: This Agreement expresses the com-
plete understanding of the parties on subjects of
wages, hours of employment and working conditions.
During the term of this Agreement neither party
hereto will make any demands upon the other with re-
spect to any and all matters not covered herein.
Section 2: This Agreement embraces in their en-
tirety all the terms and conditions imposed on and the
benefits granted to the parties and shall be strictly
construed. The rights, duties, and privileges are
strictly limited to the terms stated.
Section 3: [omitted due to irrelevance]
Section 4: By the execution of this Agreement,
the parties hereto have annulled any prior Agreement
or understanding, whether written, verbal or implied,
which may have existed between Irving Materials,
Inc. and Truck Drivers Local Union No. 89, or any
member of either organization.
The Union made an unconditional offer to return to
work on April 29, 2012. The Respondent did not reinstate
any of the six mechanics who had been working at the
Louisville facility prior to the strike. The Respondent,
however, retained the two mechanics hired in Louisville
during the strike as well as the two mechanics hired in
New Albany. After the strike, the Respondent continued
to perform maintenance and repair work for southern In-
diana at its New Albany facility.
II. JUDGE’S DECISION
The judge found that the Respondent had a longstanding
practice of assigning maintenance work in southern Indi-
ana to bargaining unit mechanics at its Louisville facility,
and that it was obligated to bargain with the Union over
any change to that practice. The judge further found that

4 Local 89 represented some of the employees at the New Albany fa-
cility, but not the mechanics.
5 The Respondent argues that the facts show that it has no obligation
to assign southern Indiana work to the Louisville mechanics under the
the Respondent never notified the Union that it was plan-
ning to transfer, or had transferred, bargaining unit work
to the New Albany facility. Nevertheless, the judge con-
cluded that the Respondent’s actions did not violate Sec-
tion 8(a)(5) and (1) of the Act because the Union had ac-
tual notice of the transfer and waived its right to bargain
through a lack of diligence. The judge based his waiver
finding on four factors: (1) the Union’s acquiescence in
the Respondent’s rejection of its proposal to incorporate
the parties’ established past practice of performing south-
ern Indiana repair work in Louisville into their collective-
bargaining agreement; (2) the Union’s inaction at the bar-
gaining table when it learned that the Respondent had
transferred unit work to New Albany; (3) the geographical
scope provision in the 2012 agreement; and (4) the zipper
clause in the 2012 agreement, which the judge read to ne-
gate any past practice not memorialized in the new agree-
ment. The judge also rejected the General Counsel’s
claim that the transfer of work was a fait accompli by the
time the Union learned of it. The judge reasoned that be-
cause bargaining was ongoing, the Union had an oppor-
tunity to inquire about the New Albany shop and demand
bargaining before the change affected unit employees.
III. ANALYSIS
A. Transfer of bargaining-unit work
We agree with the judge, for the reasons he stated, that
the Respondent’s longstanding assignment of southern In-
diana maintenance work to bargaining unit mechanics at
the Louisville facility had become an implied term and
condition of employment, and that the Respondent there-
fore had an obligation to give the Union notice and an op-
portunity to bargain over changes to that practice. See
Lafayette Grinding Corp., 337 NLRB 832, 832 (2002).5
Contrary to the judge, however, we find that the Respond-
ent has not shown that the Union waived its right to bar-
gain over the change at issue here. As a result, we find
that the Respondent’s unilateral transfer of work violated
Section 8(a)(5) and (1) of the Act.
The Board’s waiver principles are well established.
Waiver is not lightly inferred and must be “clear and un-
mistakable.” See Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708 (1983); Georgia Power Co., 325 NLRB
420, 420–421 (1998), enfd. 176 F.3d 494 (11th Cir. 1999),
cert. denied 528 U.S. 1061 (1999). Thus, the party assert-
ing waiver must establish that the parties “unequivocally
and specifically express[ed] their mutual intention to per-
mit unilateral employer action with respect to a particular
2012 agreement. The Respondent does not, however, dispute that it had
a past practice of assigning this work to Louisville bargaining-unit me-
chanics.
IMI SOUTH, LLC, D/B/A IRVING MATERIALS 3
employment term, notwithstanding the statutory duty to
bargain that would otherwise apply.” Provena St. Joseph
Medical Center, 350 NLRB 808, 811 (2007).6 Such a
showing may be based on an express provision in the con-
tract, the conduct of the parties (including past practice,
bargaining history, and action or inaction), or a combina-
tion of the two. See, e.g., American Diamond Tool, 306
NLRB 570, 570 (1992); Chesapeake & Potomac Tele-
phone Co. v. NLRB, 687 F.2d 633, 636 (2d. Cir. 1982),
enfg. 259 NLRB 225 (1981).
1. Contractual language does not establish waiver
Contrary to the judge, we find that the Respondent has
not established waiver based on any contractual language.
The judge relied on two provisions in the 2012 agreement
to find that the Union had agreed to waive its right to bar-
gain over the Respondent’s transfer of bargaining-unit
maintenance and repair work from Louisville to New Al-
bany: the zipper clause, quoted above, and the geographic
scope provision stating that the territory covered by the
agreement was “Kentucky territory defined as Louisville
and Middletown.” Both of these clauses were unchanged
carryovers from the predecessor agreement. Neither,
however, establishes a “clear and unmistakable” waiver.
The judge’s reliance on the zipper clause fails for sev-
eral reasons. The zipper clause does not mention, or in
any way refer to, the transfer of unit work. It is, in fact,
simply a generally worded zipper clause, which the Board
has squarely held is not sufficient to demonstrate that a
union has waived its statutory right to bargain over a spe-
cific subject. See Ohio Power Co., 317 NLRB 135, 136
(1995), citing Johnson-Bateman Co., 295 NLRB 180, 184
(1989). Accord Michigan Bell Telephone Co., 306 NLRB
281, 282 (1992).
Moreover, the judge’s view conflicts with the settled
principle that the “normal function” of zipper clauses is
“to maintain the status quo, not to facilitate unilateral
changes.” Murphy Oil USA, 286 NLRB 1039, 1039
(1987). The status quo here was that the Respondent had,
since at least 1993, continually assigned southern Indiana
maintenance and repair work to Louisville mechanics.
Significantly, that practice had continued uninterrupted
under the 2008–2011 agreement which contained the
identical zipper clause. Those circumstances provide fur-
ther evidence that the zipper clause in the 2012 agreement
was not intended to change the existing practice. See Ohio
Power, supra, 317 NLRB at 136; Aeronca, Inc., 253
NLRB 261, 265 (1980), enf. denied 650 F.2d 501 (4th Cir.
1981).

6 The party asserting waiver bears the burden of proof. See TCI of
New York, 301 NLRB 822, 824 (1991).
To be sure, there may be circumstances in which a zip-
per clause does establish a waiver, such as when the scope
of the clause is significantly expanded or is discussed dur-
ing bargaining. See, e.g., TCI of New York, supra, 301
NLRB at 824–825 (finding zipper clause was clear and
unmistakable waiver where the employer had sought, and
obtained, broader language than was in the prior zipper
clause); Columbus & Southern Ohio Electric Co., 270
NLRB 686 (1984), enfd. sub nom. Electrical Workers Lo-
cal 1466 v. NLRB, 795 F.2d 150 (D.C. Cir. 1986) (finding
waiver of bargaining over elimination of a holiday bonus
where extensive bargaining over zipper clause demon-
strated the union’s knowledge of its consequences). But
there are no such circumstances in the present case. As
discussed, the zipper clause in the 2012 agreement was
unchanged from prior agreements; there is no evidence
that the parties ever proposed, let alone bargained over,
any changes to the specific language in the zipper clause.
Nor is there any evidence that the parties ever discussed
the zipper clause as it related to past practices, either in
general terms or in relation to the specific practice of as-
signing southern Indiana maintenance and repair work to
the Louisville shop.
For those reasons, we find that the zipper clause in the
2012 agreement does not support the Respondent’s waiver
defense. Compare Sykel Enterprises, 324 NLRB 1123,
1123 (1997) (no waiver where respondent did not give
clear notice of intended change during negotiations); Ohio
Power, supra, 317 NLRB at 136 (finding that generally
worded zipper clause was not clear and unmistakable
waiver of union’s right to bargain over a longstanding
practice that was not mentioned in the parties’ contract,
where the parties had discussed the practice during nego-
tiations for a successor collective-bargaining agreement
but the employer never advised the union that it intended
to terminate the practice).
We reach the same conclusion with respect to the un-
changed geographical scope clause in the 2012 agreement.
As noted, that provision stated that “[t]he territory covered
by this Agreement shall be the Kentucky territory defined
as Louisville and Middleton.” Although referring to “the
Kentucky territory,” it is undisputed that the parties had
interpreted this provision to cover southern Indiana
maintenance and repair work performed by the Louisville
shop. The Respondent did not make any proposal to alter
that understanding in the negotiations leading to the 2012
agreement.
As described, in a single exchange the Union proposed
to expressly incorporate the parties’ understanding in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
2012 agreement, and the Respondent rejected that pro-
posal. But that simply left the status quo in place. Neither
party ever indicated that it was abandoning that practice,
nor did either party give any indication that the assignment
of southern Indiana work was a subject left to the Re-
spondent’s sole discretion. See Ohio Power, supra, 317
NLRB at 136. We thus disagree with the judge’s conclu-
sion that the geographic scope clause supports a finding of
waiver here.
2. Extrinsic evidence does not establish waiver
Likewise, we do not find that extrinsic evidence, includ-
ing the relevant bargaining history, establishes a clear and
unmistakable waiver of the Union’s bargaining rights over
the relocation of work. With respect to the parties’ bar-
gaining, it is the Respondent’s burden to establish that the
parties fully discussed and consciously explored the sub-
ject and that the Union “consciously yielded” its right to
bargain over the issue. See Georgia Power, supra, 325
NLRB at 420–421; see also Provena St. Joseph, supra,
350 NLRB at 811. The record does not support such a
finding in this case.
In negotiating the 2012 agreement, the parties never
once discussed the Respondent’s authority to relocate bar-
gaining-unit work. The only exchange even remotely re-
lated to this subject occurred when, as described, the Un-
ion proposed on the first day of negotiations to modify the
geographic scope provision to expressly include the south-
ern Indiana maintenance and repair work that Louisville
mechanics were already performing. Although the Re-
spondent rejected the proposal, it did not indicate that it
objected to the continuation of the past practice, even
though, at this point, the Respondent had already made its
(undisclosed) decision to open a new maintenance shop in
New Albany. The Union’s proposal was never discussed
again.

7 In context, the Respondent’s statement that it wanted to “maintain[]
our rights to service [Southern Indiana] in the most flexible way that we
need to” would not have put the Union on notice that the Respondent had
decided to abandon the parties’ established practice or was seeking the
discretion to do so. From the Union’s perspective, incorporating the past
practice would have enhanced its position by precluding the Respondent
from changing the practice without the Union’s consent for the term of
the contract. As things stood, the Respondent had the right to impose a
new practice after bargaining to a good-faith impasse, even over the Un-
ion’s objections. See Provena St. Joseph, supra, 350 NLRB at 811 fn.
16. In that context, we find that the Union reasonably would have con-
cluded that the Respondent’s statement was merely a reference to that
right.
8 This case is distinguishable from Radioear Corp., 214 NLRB 362
(1974), relied on by the judge, where the Board found that a union had
waived its right to bargain over the elimination of an extracontractual
benefit. In Radioear, there was no history of the benefit having been
granted notwithstanding apparently conflicting language in the zipper
Those facts simply do not establish that the parties “un-
equivocally and specifically express[ed] their mutual in-
tention” to permit the Respondent to unilaterally transfer
bargaining-unit work from Louisville to New Albany.
Provena St. Joseph, supra, 350 NLRB at 811. The Un-
ion’s acceptance of the Respondent’s refusal to change the
contract language did not express its willingness to jetti-
son past practice but instead shows only that the parties
agreed to maintain the status quo. See id.; Ohio Power
Co., supra, 317 NLRB at 137.7 Maintaining the status quo
meant continuing to assign southern Indiana maintenance
and repair work to Louisville mechanics, at least until the
Respondent gave notice that it wished to do otherwise and
gave the Union an opportunity to bargain before effectu-
ating the change.8
Nor are we persuaded by the fact that the Union inde-
pendently learned, at some point after January 1, 2012,
that some maintenance and repair work was being per-
formed at New Albany. Initially, we emphasize again that
the Respondent had an affirmative duty to give notice of
its decision to discontinue the parties’ established practice.
This was no minor procedural matter. It was a necessary
step in the Respondent’s statutory duty to bargain with the
Union “in a meaningful manner and at a meaningful time.”
See, e.g., Metropolitan Teletronics, 279 NLRB 957, 959
(1986), enfd. 819 F.2d 1130 (2d Cir. 1987), quoting First
National Maintenance Corp. v. NLRB, 452 U.S. 666, 681–
682 (1981). See also Defiance Hospital, 330 NLRB 492,
492 (2000), citing Ciba-Geigy Pharmaceuticals Division
v. NLRB, 722 F.2d 1120, 1126 (3d Cir. 1983). The Re-
spondent’s persistent failure to satisfy that obligation not
only ignored the representative status of the Union, see
Defiance, supra, at 493, but, as we now show, significantly
diminishes the weight to be given the Union’s knowledge
that some unit work was being performed in New Albany.
The Respondent began preparing to open the New Al-
bany shop in May 2011, before the parties had even begun
clause. Further, the Board found that the parties had fully explored the
change, and the union had “conscious[ly], knowing[ly]” waived its stat-
utory rights. Id. at 364. The employer also had not engaged in any “con-
cealment” of existing benefits. Id.
The complaint alleges that the violation occurred when the Respond-
ent actually transferred bargaining unit work (about September 26, 2011,
while employees were on strike). We note, however, that the Respondent
unilaterally made the decision to open a shop in Southern Indiana in May
2011. Even if the Respondent had informed the Union of its decision to
relocate work, its presentation of the proposed change as a fait accompli
would have relieved the Union of its obligation to request bargaining.
See Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023 (2001) (“[A]
finding of fait accompli will prevent a finding that failure to request bar-
gaining is a waiver.”); Intersystems Design Corp., 278 NLRB 759, 759
(1986) (“Notice of a fait accompli is simply not the sort of timely notice
upon which the waiver defense is predicated.”), citing Gulf States Mfg.
v. NLRB, 704 F.2d 1390 (5th Cir. 1983).
IMI SOUTH, LLC, D/B/A IRVING MATERIALS 5
negotiations for a successor collective-bargaining agree-
ment. It never informed the Union of its plans or that it
opened the shop. The Union only learned of the shop’s ex-
istence by chance. When the Union first gained that
knowledge, the strike was underway. Thus, the transfer
had no immediate impact on the bargaining unit. And be-
cause the Respondent was continuing operations during
the strike, the Union reasonably could have thought that
the New Albany shop was a temporary, stopgap measure
to weather the strike, over which the Respondent had no
obligation to bargain. See, e.g., Titan Tire Corp., 333
NLRB 1156, 1156 fn. 7 (2001) (no duty to bargain over
temporary subcontracting to continue operations during
strike). Further, the record establishes that some bargain-
ing-unit work was still being performed at the Louisville
facility at all relevant times, including during the strike,
raising the question whether the Respondent had made a
permanent change or was simply improvising a solution to
get through the work stoppage. Last, although not essen-
tial to our analysis, we observe that the Respondent, which
was in possession of all the material facts at all material
times, reasonably should have known that the Union could
misapprehend the meaning of its actions, yet the Respond-
ent remained silent throughout.9 In those circumstances,
we find that the record does not warrant a finding that the
Union “consciously yielded” its right to bargain over the
Respondent’s decision to permanently transfer unit
work.10
Finally, even if the Union could be charged with
knowledge that the Respondent had made a permanent
change, the Respondent had unlawfully implemented the
transfer by the time the Union learned of it, making the
change a fait accompli. In these circumstances, it was rea-

9 The Respondent’s failure to communicate the change to the Union
was not the result of an inadvertent oversight or a belief that the Union
knew about, and did not object to, the change. Compare American Dia-
mond Tool, supra, 306 NLRB 570.
10 In reaching this conclusion, we acknowledge that the Union might
have achieved more in collective bargaining had it confronted the Re-
spondent with its conduct, but that is not the issue here. The question is
whether the Respondent established that the Union, by not acting, clearly
and unmistakably waived its statutory rights. On that question, we find
the Respondent’s case lacking.
11 The Respondent’s consistent position has been that it has no obli-
gation to assign Southern Indiana work to Louisville mechanics, that
even if such a practice existed the Respondent and the Union did bargain
over moving the work and, finally, that the Union waived any right to
bargain over the opening of the New Albany maintenance shop.
12 303 NLRB 386 (1991), enfd. 1 F.3d 24 (D.C. Cir. 1993), cert. de-
nied 511 U.S. 1138 (1994). Dubuque Packing set forth the test for de-
termining whether an employer’s decision to relocate a portion of its op-
erations is a mandatory subject of bargaining. The Board held that:
Initially, the burden is on the General Counsel to establish that the em-
ployer’s decision involved a relocation of unit work unaccompanied by
sonable for the Union to believe that any attempts to bar-
gain would be futile, and its failure to request bargaining
does not indicate its consent to the change. See, e.g., Bo-
hemian Club, 351 NLRB 1065, 1067 (2007) (finding re-
quest for bargaining would have been futile where union
learned of unilateral change one week after change was
implemented); Tri-Tech Services, 340 NLRB 894, 903
(2003) (“A Union does not waive its right to bargain over
unilateral changes by failing to engage in the futile act of
trying to turn back the clock and bargain over an action
the employer has already taken.”), citing Gulf States Mfg.
v. NLRB, 704 F.2d 1390 (5th Cir. 1983).
In sum, the Respondent has failed to present any com-
pelling reasons for failing to fulfill its statutory duty to
give the Union notice of, and the opportunity to bargain
over, changes to existing terms and conditions of employ-
ment. The Respondent also has not demonstrated that the
Union waived its right to bargain over the relocation or
transfer of work, either through the provisions of the 2012
agreement, the conduct of the parties, or any combination
of the two. We therefore reverse the judge and find that
the Respondent violated Section 8(a)(5) and (1) of the Act.
Our dissenting colleague nonetheless argues that the
Respondent had no obligation to bargain over its decision
to open a maintenance shop in New Albany because the
decision was not a mandatory subject of bargaining. The
Respondent has never made this argument, either to the
judge or in exceptions,11 and we will not consider it now.
See, e.g., Enterprise Leasing Co. of Florida v. NLRB,—
F.3d.—(D.C. Cir. Aug. 5, 2016); Trailmobile Trailer,
LLC, 343 NLRB 95, 96 (2004); Avne Systems, Inc., 331
NLRB 1352, 1354 (2000).
But even accepting our dissenting colleague’s view that
Dubuque Packing Co. applies,12 we do not agree with him
a basic change in the nature of the employer’s operation. If the General
Counsel successfully carries his burden in this regard, he will have es-
tablished prima facie that the employer’s relocation decision is a man-
datory subject of bargaining. At this juncture, the employer may pro-
duce evidence rebutting the prima facie case by establishing that the
work performed at the new location varies significantly from the work
performed at the former plant, establishing that the work performed at
the former plant is to be discontinued entirely and not moved to a new
location, or establishing that the employer’s decision involves a change
in the scope and direction of the enterprise. Alternatively, the employer
may proffer a defense to show by a preponderance of the evidence: (1)
that labor costs (direct and/or indirect) were not a factor in the decision
or (2) that even if labor costs were a factor in the decision, the union
could not have offered labor costs concessions that could have changed
the employer’s decision to relocate.
Id. at 391.
Our dissenting colleague does not dispute that the General Counsel
established a prima facie case that the Respondent’s decision to open the
New Albany shop was a mandatory subject of bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
that the Respondent has shown that its decision to open a
maintenance shop in New Albany and relocate bargaining
unit work there was “completely unrelated” to labor costs
and that the Union could not have offered concessions that
could have changed the Respondent’s decision. It is the
Respondent’s burden to establish this defense. Id. at 391.
While the Respondent’s witnesses testified that they were
concerned about anticipated future bridge closures13 and
associated congestion in crossing the river,14 this cursory
testimony is insufficient to show that direct or indirect la-
bor costs, such as, for example, increased overtime costs
resulting from traffic delays, did not factor in the Re-
spondent’s decision. Moreover, the Respondent never as-
serted that the Union could not have offered concessions
that could have changed the Respondent’s decision. This
failure of proof is unsurprising, given that the Respondent
never raised or litigated this defense.
Finally, although the dissent would find that the Re-
spondent had an obligation to bargain over the effects of
its decision, he would find that the Union waived this right
by failing to request bargaining after learning of the open-
ing of the New Albany shop. For the reasons fully dis-
cussed above, we reject that defense.
B. Failure to recall striking employees
As mentioned, the Union made an unconditional offer
to return to work on behalf of striking employees on April
29, 2012. Despite this offer, the Respondent refused to
reinstate any of the striking mechanics formerly employed
at its Louisville facility. Contrary to the judge and our
dissenting colleague, we find this failure unlawful.15
It is well settled that an employer violates Section
8(a)(3) and (1) of the Act if it fails to reinstate strikers on
their unconditional offers to return to work, unless the em-
ployer can establish a “legitimate and substantial business
justification” for failing to do so. See NLRB v. Fleetwood

13 We note that, at all material times, there was at least one bridge
open and available to commercial traffic.
14 Our dissenting colleague asserts that the Respondent decided to
open a maintenance shop in New Albany, Indiana for “logistical reasons”
related to the unexpected shutdown of the Sherman Minton Bridge in
September 2011, as well as the expected future closure of the Kennedy
Bridge. This assertion, however, is not supported by the record. The
Respondent made the decision to open a new maintenance shop and be-
gan preparations in May 2011, four months before the closure of the
Sherman Minton Bridge. The closure of the Sherman Minton Bridge
simply led the Respondent to open the new shop sooner than early 2012,
as it originally planned.
15 We reject the Respondent’s argument that the Union and the Gen-
eral Counsel are attempting to “expand the scope of the charge” by re-
questing that we order the Respondent to reinstate mechanics who par-
ticipated in the economic strike. This allegation has been a part of this
case at all relevant times. The charge filed by the Union on May 4, 2012,
alleged both that the Respondent had failed to bargain in good faith and
that the Respondent had refused to immediately reinstate bargaining unit
employees to their positions upon their unconditional offer to return to
Trailer Co., 389 U.S. 375, 378 (1967). The employer
bears the burden of proving such a justification. See id.
The Respondent claims that it permanently replaced the
strikers in order to continue operations during the strike
which, if true, would constitute a legitimate and substan-
tial business justification. See, e.g., NLRB v. Mackay Ra-
dio & Telegraph Co., 304 U.S. 333, 345–346 (1938). The
employer, however, bears the burden of proving the per-
manent status of the replacements. See, e.g., Consolidated
Delivery & Logistics, 337 NLRB 524, 526 (2002), enfd.
63 Fed. App’x 520 (D.C. Cir. 2003). To meet that burden,
the employer must show that there was a mutual under-
standing between the employer and the replacements that
the nature of their employment was permanent. Id. The
Respondent’s own intent to employ the replacements per-
manently is insufficient. See Hansen Bros. Enterprises,
279 NLRB 741, 741–742 (1986), enfd. 812 F.2d 1443
(D.C. Cir. 1987), cert. denied 484 U.S. 845 (1987).
Here, the Respondent made no showing that it shared
any “mutual understanding” with any replacement em-
ployees about the nature of their employment; its bare as-
sertion that strikers were permanently replaced does not
suffice.16 As the Respondent has asserted no alternative
legitimate and substantial business justification,17 we find
that the Respondent’s refusal to reinstate the strikers upon
their unconditional offer to return to work violated the
Act. Compare Ford Bros., 294 NLRB 107, 132–133
(1989) (affirming judge’s finding that respondent failed to
show legitimate and substantial business justification
where it offered no evidence to support its president’s un-
corroborated testimony of lost business).18
CONCLUSIONS OF LAW
1. IMI South, LLC, d/b/a Irving Materials, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
work. The complaint also included an allegation that the Respondent’s
refusal to reinstate two striking employees was a violation of Sec. 8(a)(3)
and (1) of the Act, and the Respondent specifically replied to this allega-
tion in its answer, admitting that it has refused to return strikers to work,
but denying that its refusal was a violation of the Act.
16 The Respondent claims that the parties acknowledged that the Re-
spondent had hired permanent replacements at Louisville and at New Al-
bany. We find no such acknowledgement in the record, however, and,
as the complaint and exceptions show, it is clear that the General Counsel
disagrees.
17 Contrary to our dissenting colleague, we do not find the Respond-
ent’s bare assertion that it needed fewer mechanics because of a reduc-
tion in its fleet sufficient to establish a legitimate and substantial business
justification for refusing to reinstate striking mechanics.
18 We shall leave to compliance the determination of the precise num-
ber of strikers to be reinstated.
The judge remanded Case 09-CA-073769 to the Regional Director to
process an informal settlement that the judge approved on the record dur-
ing the hearing.
IMI SOUTH, LLC, D/B/A IRVING MATERIALS 7
2. General Drivers, Warehousemen and Helpers, Local
Union No. 89 affiliated with the International Brotherhood
of Teamsters, is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all material times, the Union has been, and is, the
exclusive representative of the employees in the following
appropriate collective-bargaining unit within the meaning
of Section 9(a) of the Act:
All truck and garage operation employees including, all
ready mix truck drivers, ready mix batch and yard labor-
ers and ready mix truck mechanics employed by [Re-
spondent] at its facilities in Louisville, Middletown,
Shelbyville and Shepherdsville, Kentucky, excluding
office clerical employees, superintendents, assistant su-
perintendents, foremen, dispatchers, watchmen, and
professional employees, guards, and supervisors as de-
fined in the Act.
4. On April 29, 2012, the Union made an unconditional
offer on behalf of unit employees to return to work from
an economic strike which began on September 7, 2011.
5. By failing and refusing to immediately reinstate the
employees described in paragraph 4 above, on their un-
conditional offer to return to work to their former posi-
tions, or substantially equivalent positions if those posi-
tions were no longer available for legitimate and substan-
tial business reasons, the Respondent has violated Section
8(a)(3) and (1) of the Act.
6. By failing to notify the Union of its decision to trans-
fer bargaining-unit work to its facility in New Albany, In-
diana, and by failing to give the Union an opportunity to
bargain over the decision and its effects, the Respondent
has violated Section 8(a)(5) and (1) of the Act.
7. The unfair labor practices listed above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent violated Section
8(a)(5) and (1) by unilaterally transferring unit work to
New Albany, Indiana, we shall order the Respondent to
rescind the unlawful unilateral transfer and restore the sta-
tus quo ante by transferring the relocated work back to
Louisville, Kentucky, and to provide the Union with no-
tice and an opportunity to bargain regarding any future
proposed changes and their effects. At the compliance

19 For the reasons stated in his separate opinion in King Soopers, su-
pra, slip op. at 9–16, our dissenting colleague would adhere to the
stage of the proceedings, the Respondent may introduce
evidence that was not available prior to the unfair labor
practice hearing, if any, to demonstrate that restoring the
business transferred to New Albany would be unduly bur-
densome. See St. Vincent Medical Center, 349 NLRB
365, 368 fn. 5 (2007); Lear Siegler, Inc., 295 NLRB 857,
861–862 (1989).
Having found that the Respondent violated Section
8(a)(3) and (1) by failing to immediately reinstate eco-
nomic strikers upon the Union’s unconditional offer on
their behalf to return to work, we shall order that they be
reinstated to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges. We
shall further order the Respondent to make them whole for
any loss of earnings or other benefits suffered as a result
of the Respondent’s unlawful actions against them. Back-
pay shall be computed in accordance with F.W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010).
Additionally, we shall order the Respondent to compen-
sate affected employees for the adverse tax consequences,
if any, of receiving a lump-sum backpay award and to file
with the Regional Director for Region 9, within 21 days
of the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay
awards to the appropriate calendar years for each em-
ployee. See AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016).
In accordance with our recent decision in King Soopers,
Inc., 364 NLRB No. 93 (2016), we shall also order the Re-
spondent to compensate affected employees for their
search-for-work and interim employment expenses re-
gardless of whether those expenses exceed interim earn-
ings. Search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay,
with interest at the rate prescribed in New Horizons, supra,
compounded daily as prescribed in Kentucky River Medi-
cal Center, supra.19
Further, the Respondent shall be required to remove
from its files all references to the refusal to reinstate strik-
ing mechanics. The Respondent shall notify employees in
writing that this has been done and that the unlawful re-
fusal to reinstate them will not be used against them in any
way.
Board’s former approach, treating search-for-work and interim employ-
ment expenses as an offset against interim earnings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ORDER
The National Labor Relations Board orders that the Re-
spondent, IMI South, LLC, d/b/a Irving Materials, Louis-
ville, Kentucky, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Transferring any bargaining-unit work from Louis-
ville, Kentucky to New Albany, Indiana, without first no-
tifying the Union and giving it an opportunity to bargain
regarding the decision and its effects.
(b) Failing or refusing to reinstate striking employees to
their former or substantially equivalent positions of em-
ployment in the absence of a legitimate and substantial
business justification.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the unlawful unilateral transfer of unit work
to the Respondent’s facility in New Albany, Indiana and
restore the status quo ante by restoring to the Respondent’s
Louisville facility all work previously performed by bar-
gaining-unit employees before being transferred to New
Albany.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of em-
ployees in the following bargaining unit:
All truck and garage operation employees including, all
ready mix truck drivers, ready mix batch and yard labor-
ers and ready mix truck mechanics employed by [Re-
spondent] at its facilities in Louisville, Middletown,
Shelbyville and Shepherdsville, Kentucky, excluding
office clerical employees, superintendents, assistant su-
perintendents, foremen, dispatchers, watchmen, and
professional employees, guards, and supervisors as de-
fined in the Act.
(c) Within 14 days from the date of this Order, offer em-
ployees who were refused reinstatement full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions without prejudice to
their seniority or other rights and privileges previously en-
joyed.
(d) Make employees who were refused reinstatement
whole for any loss of earnings and other benefits suffered

20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted and Mailed by Order of
as a result of the discrimination against them, in the man-
ner set forth in the remedy section of this decision, plus
reasonable search-for-work and interim employment ex-
penses.
(e) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 9,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusals to re-
instate and, within 3 days thereafter, notify employees in
writing that this has been done and that the refusals to re-
instate will not be used against them in any way.
(g) Within 14 days after service by the Region, post at
its Louisville, Kentucky, facility copies of the attached no-
tice marked “Appendix.”20 Copies of the notice, on forms
provided by the Regional Director for Region 9, after be-
ing signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If 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 em-
ployed by the Respondent at any time since September 26,
2011.
(h) Within 21 days after service by the Region, file with
the Regional Director for Region 9 a sworn certification
of a responsible official on a form provided by the Region
the National Labor Relations Board” shall read “Posted and Mailed Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.”
IMI SOUTH, LLC, D/B/A IRVING MATERIALS 9
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
The National Labor Relations Act (NLRA or Act) re-
quires bargaining over an employer’s decision to change
“wages, hours, and other terms and conditions of employ-
ment.”1 In a long line of cases, the Board and the courts,
including the Supreme Court, have established three im-
portant principles that are relevant here regarding the na-
ture and scope of the duty to bargain.
First, some decisions involving major business changes
are closely related enough to wages and working condi-
tions to require mandatory decision bargaining, but deci-
sion bargaining is not always required.2 In Fibreboard
Paper Products Corp. v. NLRB,3 the Supreme Court held
that a decision to engage in subcontracting was a manda-
tory subject of bargaining where the subcontracting con-
sisted of replacing an employer’s employees with those of

1 Sec. 8(d) (defining the duty “to bargain collectively”); Sec. 8(a)(5)
(making it an unfair labor practice for employers to refuse to bargain
collectively with the representatives of its employees, subject to the pro-
visions of Sec. 9(a)). See NLRB v. Katz, 369 U.S. 736, 748 (1962) (re-
quiring bargaining before an employer decides to implement changes in
mandatory bargaining subjects).
2 When decision bargaining is required over a particular change, the
Act normally requires that the employer provide the union notice and the
opportunity for bargaining over the potential decision while it remains
tentative, and the Board’s remedy for violations typically includes re-
quiring the employer to restore the status quo ante—i.e., to rescind the
implemented decision and reinstate and make whole the affected em-
ployees. When decision bargaining is not required, the Board and the
courts frequently require “effects” bargaining. That is, even if the em-
ployer is permitted to make a final decision without bargaining, it is typ-
ically required to provide the union notice and the opportunity for bar-
gaining over the decision’s effects before they have an impact on unit
employees. See generally First National Maintenance Corp. v. NLRB,
452 U.S. 666, 682 (1981) (describing the difference between bargaining
over a decision and bargaining over its effects). When an employer com-
mits an effects-bargaining violation, the remedy does not include a re-
quirement to rescind the underlying decision or otherwise restore the sta-
tus quo ante; rather, the employer is typically required to engage in ef-
fects bargaining and provide a limited backpay remedy (often called a
“Transmarine” remedy). See Transmarine Navigation Corp., 170 NLRB
389 (1968).
a subcontractor “to do the same work under similar condi-
tions of employment.” However, the Supreme Court
stated that its holding did not encompass “other forms of
‘contracting out’ or ‘subcontracting’ which arise daily in
our complex economy.”4 This limitation on the Fibre-
board decision was underscored in Justice Stewart’s well-
known concurring opinion,5 which stated: “Decisions con-
cerning the commitment of investment capital and the
basic scope of the enterprise are not in themselves primar-
ily about conditions of employment, though the effect of
the decision may be necessarily to terminate employ-
ment.” Justice Stewart continued:
If, as I think clear, the purpose of § 8(d) is to describe a
limited area subject to the duty of collective bargaining,
those management decisions which are fundamental to
the basic direction of a corporate enterprise or which im-
pinge only indirectly upon employment security should
be excluded from that area.6
Second, even if decision bargaining is not required re-
garding a major business change, an employer may be re-
quired to provide notice and the opportunity for bargain-
ing regarding the decision’s effects. According to the Su-
preme Court, effects bargaining, if required, must be con-
ducted “in a meaningful manner and at a meaningful
time.”7
Third, even when decision or effects bargaining is re-
quired, it is well established that a union waives its bar-
gaining rights if it fails to request bargaining after it be-
comes aware of a particular change.8 Thus, in U.S. Linge-
rie Corp., 170 NLRB 750, 751–752 (1968), there was no
3 379 U.S. 203, 211 (1964).
4 Id. at 215.
5 Commentators have stated that Justice Stewart’s concurrence in Fi-
breboard has “ultimately proved to be even more influential than the
opinion of the Court.” Robert A. Gorman & Matthew W. Finkin, LABOR
LAW ANALYSIS AND ADVOCACY 794 (Juris 2013).
6 Fibreboard, 379 U.S. at 217, 223 (Justice Stewart, concurring). See
also First National Maintenance Corp. v. NLRB, supra, 452 U.S. at 676
(finding that decision bargaining is not required over partial closing de-
cisions, and observing that Congress, in adopting the NLRA, “had no
expectation that the elected union representative would become an equal
partner in the running of the business enterprise in which the union’s
members are employed”); Dubuque Packing Co., 303 NLRB 386, 391
(1991), affd. sub nom. UFCW Local No. 150-A v. NLRB, 1 F.3d 24 (D.C.
Cir. 1993) (setting forth standards that govern whether decision bargain-
ing is required over work-relocation decisions).
7 First National Maintenance Corp. v. NLRB, supra, 452 U.S. at 682.
8 AT&T Corp., 337 NLRB 689, 691–693 (2000); Clarkwood Corp.,
233 NLRB 1172, 1172 (1977); The Emporium, 221 NLRB 1211, 1214
(1975); Medicenter, Mid-South Hospital, 221 NLRB 670, 679 (1975);
Kentron of Hawaii Ltd., 214 NLRB 834, 835 (1974); American Buslines,
Inc., 164 NLRB 1055, 1055–1056 (1967). The requirement that a union
must request bargaining to preserve its right to engage in bargaining is
not satisfied merely by protesting a particular change or filing a refusal-
to-bargain charge with the Board. See Ohio Edison Co., 362 NLRB No.
88, slip op. at 3–6 (Member Miscimarra, dissenting in part) (citing cases).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
unlawful failure to bargain over an employer's relocation
because, according to the Board, “the Union had sufficient
notice of Respondent's intended move to place upon it the
burden of demanding bargaining if it wished to preserve
its rights to bargain.” Id. at 752.
In this case, the Respondent operates ready-mix con-
crete facilities in Louisville, Kentucky and New Albany,
Indiana (among other locations), and its sole maintenance
shop for trucks operating out of both facilities was located
in Louisville. In September 2011, while the Respondent
and the Union were engaged in collective bargaining and
the unit employees were on strike, the State of Kentucky
shut down the Sherman Minton Bridge, which was one of
only two bridges over the Ohio River open to commercial
traffic between Louisville and southern Indiana. Ken-
tucky had previously announced plans to repair the Ken-
nedy Bridge, the second bridge open to commercial traffic
between Louisville and southern Indiana. For these logis-
tical reasons, which were clearly unrelated to wages and
other matters being negotiated between the Respondent
and the Union, the Respondent opened a maintenance
shop at its New Albany facility so that trucks operating in
Indiana could be serviced without requiring them to travel
over the heavily congested Kennedy Bridge, which was
itself slated for repair.
On these facts, I believe my colleagues misapply each
of the principles described above in finding that the Re-
spondent had, and breached, a duty to bargain.
Regarding the first principle, the Respondent had no ob-
ligation to bargain over the decision to open the mainte-
nance shop in New Albany. Even if this were considered
a partial relocation of bargaining-unit work from the Lou-
isville truck maintenance facility, wages were not a factor
in this decision, and controlling Board precedent estab-
lishes that decision bargaining is not required under these
circumstances. Dubuque Packing, supra.
Regarding the second and third principles, I agree that
the Respondent had a potential obligation to bargain over
the effects that the opening of the New Albany mainte-
nance shop might have on unit employees. However, any
failure by Respondent to satisfy its effects-bargaining ob-
ligation would not justify the remedy ordered by my col-
leagues, who require the Respondent to rescind the Louis-
ville-to-New Albany work relocation and provide backpay
and reinstatement to the affected employees.9 More im-
portantly, I agree with the judge’s finding that the Union

9 Even if the Respondent failed to satisfy its effects-bargaining obli-
gation, the appropriate remedy would include an order to engage in ef-
fects bargaining and a limited Transmarine backpay remedy. See Trans-
marine Navigation Corp., supra.
waived its right to bargain because it never requested bar-
gaining over the New Albany service center even though
it knew about the partial relocation of unit work for
months. Indeed, not only did the Union have the requisite
knowledge and the opportunity to request bargaining, it
was engaged in bargaining with Respondent over an array
of other issues, yet it never requested bargaining over the
opening the New Albany shop. Accordingly, I respect-
fully dissent from my colleagues’ decision.
1. The relocation of mechanic work from Louisville to
New Albany was not a mandatory subject of decision bar-
gaining. As stated above, employers may not unilaterally
decide to change wages, hours, or other terms and condi-
tions of employment without providing notice and the op-
portunity to request decision bargaining regarding the pro-
posed change. See NLRB v. Katz, supra, 369 U.S. at 743.
However, a decision to implement a major business
change, such as a closing, a shutdown, subcontracting, or
a work relocation, is not necessarily a mandatory subject
of bargaining. See, e.g., Fibreboard, supra; First National
Maintenance Corp., supra.
Regarding work relocations, the existence or nonexist-
ence of a decision-bargaining obligation turns on applica-
tion of the well-established standards set forth in Dubuque
Packing, supra, where the Board held as follows:
Initially, the burden is on the General Counsel to estab-
lish that the employer’s decision involved a relocation of
unit work unaccompanied by a basic change in the na-
ture of the employer’s operation. If the General Counsel
successfully carries his burden in this regard, he will
have established prima facie that the employer’s reloca-
tion decision is a mandatory subject of bargaining. At
this juncture, the employer may produce evidence rebut-
ting the prima facie case by establishing that the work
performed at the new location varies significantly from
the work performed at the former plant, establishing that
the work performed at the former plant is to be discon-
tinued entirely and not moved to a new location, or es-
tablishing that the employer’s decision involves a
change in the scope and direction of the enterprise. Al-
ternatively, the employer may proffer a defense to show
by a preponderance of the evidence: (1) that labor costs
(direct and/or indirect) were not a factor in the decision
or (2) that even if labor costs were a factor in the deci-
sion, the union could not have offered labor costs con-
cessions that could have changed the employer’s deci-
sion to relocate.10
10 Dubuque Packing, supra, 303 NLRB at 391. I am not an enthusi-
astic supporter of the multiple-step, burden-shifting standard articulated
in Dubuque Packing, which in my view resembles the type of “presump-
tion” analysis the Supreme Court rejected in First National Maintenance
as being “ill-suited” for practical application because parties would have
IMI SOUTH, LLC, D/B/A IRVING MATERIALS 11
Applying the above standards to the facts of this case, it
is apparent the Respondent had no obligation to bargain
over its decision to open the New Albany, Indiana truck-
maintenance facility. The record here establishes that this
decision was completely unrelated to “labor costs (direct
and/or indirect)” and that “the union could not have of-
fered labor costs concessions that could have changed the
employer’s decision.” Id. In early 2011, the Respondent
began preparing contingency plans in advance of the
planned repair of the Kennedy Bridge, one of only two
bridges over the Ohio River connecting Louisville and
southern Indiana that were open to commercial traffic. It
began preparing to open a maintenance shop in New Al-
bany to service its southern Indiana trucks without their
having to cross the sole remaining bridge open to commer-
cial traffic, the Sherman Minton Bridge, which would be-
come congested once repairs to the Kennedy Bridge com-
menced. On September 9, 2011, government inspectors
found a structural defect in the Sherman Minton Bridge
and immediately shut it down. At the time, the Union was
on strike, and no unit mechanics were servicing any of the
Respondent’s trucks. The Respondent quickly opened its
New Albany maintenance shop to service its southern In-
diana trucks. There is no evidence in the record that labor
costs are any different in New Albany than they are in
Louisville. Assuming the opening of the New Albany
maintenance shop resulted in a relocation of unit work,
this change did not involve labor costs. It was simply a

difficulty determining in advance whether decision bargaining would be
required over a particular work relocation. See First National Mainte-
nance, supra, 452 U.S. at 684–685. More generally, I believe the Board
would be well advised to adopt a more unified standard regarding deci-
sion-bargaining obligations in cases involving major business changes
that would be consistent with Fibreboard and First National Mainte-
nance without having different tests that depend on the characterization
or label attached to the decision. Compare Torrington Industries, 307
NLRB 809 (1992) (ostensibly addressing “Fibreboard subcontracting”
decisions), supplemented 316 NLRB 500 (1995), with First National
Maintenance, supra (dealing with “partial closing” decisions) and Dubu-
que Packing, supra (dealing with “relocation” decisions). Cf. Embarq
Corp., 356 NLRB 982, slip op. at 983–984 (2011) (Chairman Liebman,
concurring) (suggesting potential changes in the “Dubuque framework”
as it relates to union information requests regarding relocations). In the
instant case, however, I believe the precise standard is immaterial for two
reasons. First, the work transfer resulted from causes that undermine any
potential decision-bargaining obligation under any potential test. A truck
maintenance shop was opened in New Albany, Indiana because state of-
ficials had closed one of the two bridges commercial vehicles are per-
mitted to use to cross the Ohio River between Louisville and southern
Indiana and a second bridge was slated for repair, and these circum-
stances were obviously unrelated to wages, working conditions or other
matters potentially subject to negotiation between the parties. Second,
regardless of what standard is applied to determine whether the Respond-
ent had a decision-bargaining obligation, the Union’s failure to request
bargaining constituted a waiver of any bargaining obligation even as-
suming one existed. Accordingly, I rely on Dubuque Packing because
matter of logistics: trucks cannot cross rivers in the ab-
sence of bridges.11 Therefore, I believe the Board must
conclude that the reasons for any work relocation here had
nothing to do with labor costs, which precludes any find-
ing that bargaining was required over the Respondent’s
decision.12
2. The Union waived any effects-bargaining rights by
its failure to request bargaining. I agree with my col-
leagues that the Respondent had a potential duty to engage
in effects bargaining regarding any relocation of truck-
maintenance work to the New Albany facility. However,
as noted above, an effects-bargaining violation would not
warrant the remedy ordered by my colleagues, who re-
quire the Respondent to rescind the Louisville-to-New Al-
bany work relocation and provide backpay and reinstate-
ment to the affected employees. The appropriate remedy
for an effects-bargaining violation would include an order
to engage in effects bargaining and a limited Transmarine
backpay remedy.13
However, I believe there is a more fundamental issue,
which relates to the Union’s failure to request bargaining
over any effects associated with the opening of the New
Albany truck-maintenance shop. As the judge found, the
Union had actual notice of the opening of that shop. Ad-
ditionally, because bargaining-unit employees were on
strike at the time, several months passed before the partial
work relocation had any impact on unit employees. The
Union did not request effects bargaining, even though it
could have done so long before the change affected any
the Board has uniformly applied this standard in Sec. 8(a)(5) cases in-
volving work relocations. However, I believe the Board could develop
clearer standards in this important area consistent with Fibreboard and
First National Maintenance.
11 Although the Kennedy Bridge remained open when the Sherman
Minton Bridge was shut down, nothing in the record undermines the Re-
spondent’s expressed concern that congestion was likely to render im-
practical continuing to have Indiana trucks serviced in Kentucky, and the
reasonableness of this concern is reinforced by the fact that Kentucky
had previously announced plans to repair the Kennedy Bridge.
12 Both procedurally and on the merits, my colleagues reject my anal-
ysis under Dubuque Packing and my finding that the Respondent’s relo-
cation of truck-maintenance work from Louisville to Southern Indiana
was not a mandatory subject of bargaining. Procedurally, they say my
analysis is improper on the basis that the Respondent did not rely on
Dubuque Packing or argue that the work relocation was not a mandatory
subject. I believe that applicable law should be applied, regardless of
whether the parties have done so—and so does the Supreme Court. See
Kamen v. Kemper Financial Services, 500 U.S. 90, 99 (1991) (stating
that “the court is not limited to the particular legal theories advanced by
the parties, but rather retains the independent power to identify and apply
the proper construction of governing law”). On the merits, the majority
contends that the record does not establish that the decision to relocate
truck-maintenance work from Louisville to New Albany was unrelated
to labor costs. Again, trucks cannot cross rivers in the absence of
bridges, and no amount of money can alter that reality.
13 See Transmarine Navigation Corp., supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
unit employees. Moreover, as noted previously, the Union
was engaged in bargaining with the Respondent on an ar-
ray of other issues, and still it failed to request effects bar-
gaining.14 In these circumstances, as in U.S. Lingerie
Corp., supra, 170 NLRB at 752, there was no unlawful
failure to bargain because “the Union had sufficient notice
of Respondent's intended move to place upon it the burden
of demanding bargaining if it wished to preserve its rights
to bargain.”15 The Union’s failure to request bargaining
constituted a waiver of any effects-bargaining rights that
otherwise existed under Section 8(d) and 8(a)(5).16
For the foregoing reasons, I believe the Respondent had
no duty to bargain with the Union over the decision to
open its service center in New Albany, Indiana, the Union
waived its right to bargain over the effects of that decision,
and the majority’s remedy—rescission of any work relo-
cation and reinstatement of affected employees with back-
pay—is unwarranted even if there were an effects-bar-
gaining violation. Accordingly, I respectfully dissent.
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

14 It is also relevant that in bargaining for a successor agreement cov-
ering the unit employees at the Louisville facility, the Union proposed
extending the territory covered by the agreement to include truck me-
chanics in southern Indiana. (The bargaining unit in New Albany ex-
cluded truck mechanics, and no truck mechanics had worked at the New
Albany facility since 1993.) The Respondent rejected this proposal and
told the Union that it wished to preserve its flexibility regarding the ser-
vicing of its southern Indiana fleet. Respondent’s subsequent opening of
the New Albany maintenance shop, driven by the state-ordered bridge
closing and repair work, is consistent with its response to the Union’s
proposal, and the proposal reveals that the Union had some awareness of
the potential business considerations that might disfavor continuing to
have southern Indiana trucks serviced in Kentucky. Additionally, the
record leaves no doubt that the subsequent opening of the New Albany
truck-maintenance shop was precipitated by the sudden closing of the
Sherman Minton Bridge (after Kentucky had announced plans to repair
the Kennedy Bridge). For this reason, I do not believe my colleagues
can base the finding of a violation on Respondent’s failure to provide
earlier notice to the Union of the potential opening of a shop in New
Albany. See Willamette Tug & Barge Co., 300 NLRB 282 (1990) (re-
jecting the contention that, for purposes of effects bargaining, “an em-
ployer is obligated to provide notice to the union” whenever potential
changes are “under active consideration”).
15 See also the cases cited in fn. 8, supra.
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT transfer any bargaining-unit work from
Louisville, Kentucky, to New Albany, Indiana, without
first notifying the Union and giving it an opportunity to
bargain regarding the decision and its effects.
WE WILL NOT fail to reinstate striking employees to their
former or substantially equivalent positions in the absence
of a legitimate and substantial business justification.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the unlawful unilateral transfer of unit
work to New Albany, Indiana, and WE WILL restore the
status quo by restoring to our Louisville facility all work
previously performed by bargaining-unit employees.
16 Because, as explained above, the Respondent had no decision-bar-
gaining obligation regarding the relocation of service work to the New
Albany facility, and the Union’s failure to request bargaining waived any
effects-bargaining rights it otherwise had, I do not find it necessary to
pass on any “contract waiver” arguments discussed by my colleagues or
the judge (for example, pertaining to the “zipper clause” contained in the
parties’ collective-bargaining agreement), nor do the facts warrant dif-
ferentiating between waiver principles and the “contract coverage”
standard that has been applied by some courts (since no collective-bar-
gaining agreement was in effect when the New Albany service center
was opened). Cf. Tesoro Refining & Marketing Co., 360 NLRB No. 46,
slip op. at 3 fn. 10 (2014) (Member Miscimarra, concurring); NLRB v.
Postal Service, 8 F.3d 832 (D.C. Cir. 1993).
Finally, I disagree with my colleagues that the Respondent violated
Sec. 8(a)(3) by failing to reinstate striking mechanics at its Louisville
facility. Before the strike, the Respondent employed 6 mechanics at that
facility. It hired 2 mechanics in New Albany at its newly opened service
center, and as I have explained, the relocation of work to New Albany
was lawful. In his brief in support of cross-exceptions, the General
Counsel expressly concedes that the Respondent permanently replaced 2
striking mechanics in Louisville, and the Respondent states that 2 me-
chanics were all it needed due to a reduction in its fleet of trucks. Ac-
cordingly, there were no available mechanic positions in Louisville for
returning strikers to fill.
IMI SOUTH, LLC, D/B/A IRVING MATERIALS 13
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
All truck and garage operation employees including, all
ready mix truck drivers, ready mix batch and yard labor-
ers and ready mix truck mechanics employed by us at
our facilities in Louisville, Middletown, Shelbyville and
Shepherdsville, Kentucky, excluding office clerical em-
ployees, superintendents, assistant superintendents,
foremen, dispatchers, watchmen, and professional em-
ployees, guards, and supervisors as defined in the Act.
WE WILL, within 14 days from the date of this Order,
offer those employees who were refused reinstatement full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges
previously enjoyed.
WE WILL make employees who were refused reinstate-
ment whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of this decision,
plus reasonable search-for-work and interim employment
expenses.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 9, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee
WE WILL remove from our files any reference to our un-
lawful refusals to reinstate and WE WILL notify employees
in writing that this has been done and that the refusals to
reinstate will not be used against them in any way.
IMI SOUTH, LLC, D/B/A IRVING MATERIALS
The Board’s decision can be found at
www.nlrb.gov/case/09-CA-080462 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.

1 The complaint specifically alleges that Respondent refused to rein-
state Louisville mechanics Steve Sandbach and Simon Hodge. At the
hearing the General Counsel amended the complaint to allege a violation
for failing and refusing to reinstate any similarly situated employee (i.e.,
any unit mechanic who had gone on strike—in the event that Hodge
and/or Sandbach were unavailable or declined reinstatement).
Kevin Luken, Esq., for the General Counsel.
James U. Smith, III, Kevin M. Morris, Esqs. (Smith and Smith)
of Louisville, Kentucky, for the Respondent.
Robert Colone, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Louisville, Kentucky, on October 17 and 18, 2012.
Teamsters Local Union No. 89 filed the charge in Case 09–CA–
080462 on May 7, 2012. The General Counsel issued the com-
plaint in this matter on August 17, 2012. The General Counsel
alleges that Respondent violated Section 8(a)(5) and (1) by uni-
laterally transferring the bargaining unit work of its Louisville
mechanics to unrepresented mechanics working at New Albany,
Indiana. The General Counsel also alleges that Respondent vio-
lated Section 8(a)(3) and (1) by failing and refusing to reinstate
any of its Louisville mechanics after they had unconditionally
offered to return to work after the Union’s September 7, 2011, to
April 29, 2012 strike against Respondent.1
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, IMI South, d/b/a Irving Materials, is a cor-
poration which produces and distributes ready mix concrete from
a number of facilities in a number of states, including one in Lou-
isville, Kentucky, and another in New Albany, Indiana. Re-
spondent annually purchases and receives goods valued in ex-
cess of $50,000 from outside of the State of Kentucky at its Lou-
isville facility. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Teamsters Local 89 has represented employees at a number of
Respondent’s facilities for many years. At Respondent’s Louis-
ville facility, Local 89 has represented Respondent’s employees,
2 There are 2 exhibits designated as GC Exh. 1. One is the formal
papers. The other is a list of Respondent’s facilities at which Local 89
represents employees. Whenever I refer to GC Exh. 1, I am referring to
the list of facilities. At Tr. 42, line 2, 64 should be 65.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
including truck drivers, batch operators and truck mechanics at
least since 1993. Local 89 also represents employees, including
truck drivers and batch operators at several of Respondent’s fa-
cilities in Southern Indiana, including New Albany. Prior to
2009, Local 89’s bargaining unit at New Albany, Indiana in-
cluded truck mechanics despite the fact that there had not been
any truck mechanics working at that facility since about 1993.
Maintenance and repair work on Respondent’s trucks operating
in Southern Indiana was performed by members of the Louisville
bargaining unit, working out of the Louisville facility until Sep-
tember 7, 2011. They worked on the concrete trucks either on
the road or at the Louisville shop.
During negotiations for a 2009–2012 collective-bargaining
agreement in New Albany, truck mechanics were excluded from
the description of the bargaining unit. Despite the fact that driv-
ers and mechanics from Louisville worked in Southern Indiana,
the 2008–2011 collective-bargaining agreement for the Louis-
ville facility did not, on its face, cover most work in Southern
Indiana. The mechanics at Louisville serviced Respondent’s
trucks operating out of the following locations in Southern Indi-
ana: Corydon, Salem, Scottsburg, New Albany, Clarksville, and
Greenville.
Article I of the July 1, 2008—June 30, 2011 collective-bar-
gaining agreement covering unit employees at the Louisville fa-
cility, entitled Declaration of Intent, Section 2, Coverage, stated:
The territory covered by this Agreement shall be the Kentucky
territory defined as Louisville and Middletown, in addition to
driving personnel at the Shelbyville and Shepherdsville loca-
tions. The operations covered thereby are the hauling by truck
of any building materials, such as but not limited to, Ready-
Mix concrete, and related building supplies, reinforcing steel,
building specialties, and any other materials, customarily
classed and known as building materials.
In January 2011, Kevin Swaidner became the president of
IMI’s South Division. Soon afterwards, Christopher Holt, the
fleet maintenance director at the Louisville facility, discussed
with Swaidner his concern regarding the State of Kentucky’s
plans to repair the Kennedy Bridge, which spans the Ohio River
between Louisville and Southern Indiana. In 2011 and at the
present time, there are three bridges between Louisville and
Southern Indiana.3 They are the Kennedy Bridge, which is part
of Interstate 65 and takes traffic north in the direction of Indian-
apolis; the Sherman Minton4 Bridge, which is part of Interstate
64, taking traffic west towards St. Louis: and the Second Street
or George Rogers Clark5 Bridge. Commercial traffic is prohib-
ited from using the Second Street Bridge, thus leaving only one

3 There are plans to construct other bridges nearby in the future.
4 U.S. Senator from Indiana and Justice of the U.S. Supreme Court,
1949–1956.
5 Revolutionary War Hero, who captured the British fort at Vincennes
in 1779.
6 There was also some discussion at hearing about item 8, “out of town
pay to include all employees for any work performed outside of the con-
tract area.” Art. IX of the 2008–2011 contract covered out of town pay
in Section 24, GC 2, p. 23. That provision defines contract area with
reference to one location in Indiana; Clarksville (loading only). I assume
bridge available to Respondent’s trucks if either the Kennedy or
Minton Bridge closed. At the time Holt first discussed the repair
work on the Kennedy Bridge, the State had not indicated when
these repairs would take place.
In May 2011, Swaidner told Holt to prepare to open a mainte-
nance shop in Southern Indiana. Respondent initially planned to
operate this shop at the start of 2012. It did not inform the Union
of its plans, nor did it ever indicate whether the operation of this
shop was intended to be a temporary measure to address the ex-
pected bridge closings or a permanent measure. Respondent
hired an outside contractor to start work preparing a maintenance
shop at its New Albany, Indiana facility on June 8, 2011.
Collective-bargaining negotiations for a successor contract to
the July 1, 2008—June 30, 2011 contract commenced on June
13, 2011. At the initial session, the Union presented Respondent
a proposal consisting of a list of 12 items. Item 10 was, “Define
area for the shop and Drivers.”6 The Union thus sought to extend
the territory covered by the agreement, as written, to include
Southern Indiana for both the drivers and mechanics (Tr. 178–
179). In effect, what the Union attempted to do was to codify an
established past practice. The proposal was rejected by Re-
spondent, GC Exh. 6, 5th unnumbered page.
There is conflicting testimony as to what else was said about
item 10 during the negotiation session. I credit the following
testimony of Respondent’s human resources director, James
Janes:
Q. [by Respondent’s counsel] By Proposal Number 10 what
was, what did the Union tell you that they were attempting to
do?
A. They sought to increase their territory to include territory
for mechanics to include Southern Indiana, which would be the
Corydon, Salem, Scottsburg and Madison locations as well as
New Albany.
Q. Did Mr. Cooper [Jeffrey Cooper, the Union’s lead negotia-
tor] identify those particular areas in Southern Indiana or did
you just assume that those were the areas he was talking about?
A. I believe Southern Indiana was how he described it, all work
in Southern Indiana. . . . We understood it to be all IMI South
facilities in Southern Indiana, which is Madison, Salem, Scotts-
burg, Corydon, New Albany.
(Tr. 250—251).
After, the Union made this proposal, Respondent caucused
and rejected this proposal. It was not discussed again in collec-
tive-bargaining negotiations, which continued into 2012. Re-
spondent told the Union that it “maintained our rights to service
that [Southern Indiana] in the most flexible way that we need to,”
the reference in that Section to Lawrenceburg is to Lawrenceburg, Ken-
tucky, near Lexington, not Lawrenceburg, Indiana, a suburb of Cincin-
nati. The Union sought to obtain “out of town” pay for mechanics work-
ing in Southern Indiana, which drivers were entitled to under the 2008–
2011 agreement. Respondent rejected this proposal.
The company cites this proposal for the proposition that the Union
recognized that mechanics’ work in Indiana was not covered by the
2008–2011 agreement. The inclusion of an identical provision in the
2012 agreement is additional support for the company’s contention that
the Union waived its bargaining rights over the mechanics’ work in
Southern Indiana.
IMI SOUTH, LLC, D/B/A IRVING MATERIALS 15
(Tr. 117).7
Upon expiration of the 2008–2011 contract on June 30, 2011,
the parties agreed to extend the life of the contract. The Union
terminated this extension in late August 2011. On September 7,
2011, the Union went on strike against Respondent at the Louis-
ville facility. Union employees at the New Albany facility en-
gaged in a sympathy strike that lasted from about September 9,
until mid-November.
On September 9, government inspectors found a structural de-
fect on the Sherman Minton Bridge and shut it down immedi-
ately. This bridge was not reopened for about six months. As a
result, repair work on the Kennedy Bridge, the only remaining
bridge open to commercial traffic, was delayed. In response to
the closing of the Sherman Minton Bridge, Respondent decided
to open the maintenance shop in New Albany as soon as possible
(Tr. 50).
By mid October 2012, if not earlier, two mechanics working
out of the New Albany Shop were performing maintenance and
repair work on Respondent’s trucks in Southern Indiana. Re-
spondent never notified the Union of this fact. The Union’s lead
negotiator, Jeffrey Cooper, became aware of the New Albany
maintenance operation from other sources after January 1, 2011,
but prior to the conclusion of collective-bargaining negotiations.
Cooper contacted the Union’s New Albany steward soon there-
after and asked the steward for the names of the New Albany
mechanics (Tr. 134). There is no evidence that he asked the
steward for any other information about the shop.
Cooper had visited the New Albany facility for grievance
meetings between June and September 7, 2011, when the Re-
spondent was refurbishing the shop, on approximately 10 occa-
sions.8 There is no evidence that he made any other inquiry re-
garding the preparations regarding the New Albany shop prior to
the strike, or its operation afterwards. Respondent never advised
the Union whether the opening of the New Albany Shop was a
temporary measure to address the bridge closing and/or the
strike, or a permanent measure.9
On February 16, 2012, at a joint meeting of the Union and
Respondent, Respondent accepted the Union’s proposed collec-
tive-bargaining agreement (Exh. R-5).10 This agreement con-
tained a coverage provision that was identical to the 2008–2011
provision. It also contained a “zipper clause” that was also iden-
tical to that in the 2008–2011 contract (Exh. R-5, p. 30).
ARTICLE XV EXTENT AND NATURE OF AGREEMENT
Section 1: This Agreement expresses the complete un-
derstanding of the parties on subjects of wages, hours of
employment and working conditions. During the term of

7 I decline to credit the testimony of union witnesses Cooper and
Hodge that Respondent promised that the Louisville mechanics would
continue to service Southern Indiana. Respondent’s witnesses denied
that any such promise was made. There is no documentary corroboration
for this testimony. Moreover, even if such promises were made, they
would have been negated by Section 4 of the “zipper clause” of the par-
ties’ agreement of February 16, 2012. As set forth fully below, this pro-
vision annulled all prior agreements or understandings between Re-
spondent and the Union, which were not set forth in the agreement.
8 Cooper testified that on these visits he would not go into the facility
beyond the office just inside the gate, Tr. 165.
this Agreement neither party hereto will make any demands
upon the other with respect to any and all matters not cov-
ered herein.
Section 2: This Agreement embraces in their entirety
all the terms and conditions imposed on and the benefits
granted to the parties and shall be strictly construed. The
rights, duties, and privileges are strictly limited to the terms
stated.
Section 3: [omitted due to irrelevance]
Section 4: By the execution of this Agreement, the par-
ties hereto have annulled any prior Agreement or under-
standing, whether written, verbal or implied, which may
have existed between Irving Materials, Inc. and Truck Driv-
ers Local Union No. 89, or any member of either organiza-
tion.
The Union made an unconditional offer to return to work on
April 29, 2012, and informed its members to report to work on
April 30. The new collective-bargaining agreement was appar-
ently executed on May 1, 2012. Respondent did not reinstate
any of the 6 mechanics who had been working at Louisville prior
to the strike. It hired 2 permanent replacements in Louisville and
continued to perform the maintenance and repair work for South-
ern Indiana out of New Albany. The mechanics in New Albany
are not part of Local 89’s New Albany bargaining unit.
ANALYSIS
Generally, an employer has a statutory obligation to continue
to follow the terms and conditions of employment governing the
employer-employee relationship in an expired contract until a
new agreement is reached or good-faith bargaining leads to im-
passe, e.g., R.E.C. Corp., 296 NLRB 1292, 1293 (1989). During
negotiations, an employer’s obligation encompasses a duty to re-
frain from implementation of a change in such terms and condi-
tions unless or until an overall impasse has been reached, Bottom
Line Enterprises, 302 NLRB 373, 374 (1991). A longtime es-
tablished practice becomes an implied term and condition of em-
ployment by mutual consent of the parties—even if this practice
deviates from the letter of the parties’ written agreement, e.g,
Riverside Cement Co., 296 NLRB 840, 841 (1989); Intermoun-
tain Rural Electric Assn. v. NLRB, 984 F. 2d 1562 (10th Cir.
1993); Smith Industries, 316 NLRB 376 (1995); The Sacramento
Union, 258 NLRB 1074–1075 (1981); also see Lafayette Grind-
ing Corp., 337 NLRB 832 (2002).
There is no question that Respondent had a longtime estab-
lished practice of assigning the maintenance work in Southern
Indiana to bargaining unit mechanics at its Louisville facility.
9 An employer is not required to bargain over “nonpermanent, stop-
gap, or temporary measures to deal with a strike, Titan Tire Corp., 333
NLRB 1156 fn. 7 (2001); Land Air Delivery, 286 NLRB 1131, 1132 fn.
7 (1987).
10 This union proposal was virtually identical to a proposal made by
the Respondent on February 3, 2012. The company proposal contained
a strike settlement, which was rejected by the Union and then withdrawn
by Respondent. The 2012 contract was apparently ratified in late April
just prior to the Union’s unconditional offer to return to work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Thus, Respondent was obligated to bargain with the Union over
any change to that practice regardless of the fact that the lan-
guage of the collective bargaining agreement did not reflect this
practice. The limited exception provided by an economic exi-
gency compelling prompt action is not applicable in this case,
Bottom Line Enterprises, supra. Respondent began planning for
the transfer of mechanics work to New Albany months before
the emergency closure of the Sherman Minton Bridge. At that
time no firm date had been set for the repairs of the Kennedy
Bridge either.
Thus, when the Union proposed delineation of the geograph-
ical scope of the new contract on June 13, Respondent had the
opportunity to inform the Union of its plans and to engage in
bargaining over that plan, as well as other issues, in reaching a
final overall agreement or impasse. If the opening of the New
Albany Shop was a temporary measure to address the anticipated
bridge closings, or unanticipated closing of the Sherman Minton
Bridge, Respondent was obligated to so inform the Union.
Waiver of Bargaining Rights
A party can waive its statutory right to bargain over a manda-
tory subject of bargaining. To be effective, a waiver of statutory
bargaining rights must be clear and unmistakable. Waiver can
occur in any of three ways, by express provision in a collective-
bargaining agreement, by the conduct of the parties, (including
past practices, bargaining history and action or inaction) or by a
combination of the two, American Diamond Tool, 306 NLRB
570 (1992).
A Union does not generally waive its bargaining rights to a
change of which it has not received notice. It is uncontroverted
that Respondent never notified the Union that it was planning to
transfer bargaining unit work to a shop in Southern Indiana.
Moreover, Respondent failed to give the Union notice of this
change even after it had been effectuated. Nevertheless, when a
union has actual notice of a change in conditions of employment,
from a source other than the employer, it must take advantage of
that notice if it is to preserve its bargaining rights. Lack of dili-
gence by a union amounts to a waiver of its right to bargain,
Clarkwood Corp., 233 NLRB 1172 (1977); Hartman Luggage
Co., 171 NLRB 1254 (1968).
The General Counsel argues that by the time the Union knew
of the existence of the New Albany shop, the change in its past
practice had become a “fait accompli.” If so, this precludes a
finding that the Union waived its bargaining rights, Pontiac Os-
teopathic Hospital, 336 NLRB 1021, 1023–1024 (2001); UAW-
Daimler Chrysler National Training Center, 341 NLRB 431,
433–434 (2004).
However, the instant case is distinguishable from most or all
“fait accompli” situations in that when the unilateral change was
implemented and when the Union found out about it, bargaining
unit employees were not working, they were still on strike. The
Union therefore had the opportunity to inquire in subsequent col-
lective-bargaining sessions whether the establishment of the me-
chanic’s shop in New Albany was intended as a permanent trans-
fer of work, about which Respondent was obligated to bargain,
or a temporary measure to continue operations during the strike,
for which Respondent had no such obligation. One would think
that Cooper would have at least inquired as to whether Respond-
ent intended to move the mechanics’ work back to Louisville
when the strike and bridge work ended.
I conclude that under the circumstances, the transfer of me-
chanics’ work to New Albany was not a fait accompli. The Un-
ion had an opportunity to inquire about Respondent’s intentions
with regard to the New Albany maintenance shop before it im-
pacted unit employees. Had Respondent responded by admitting
that the transfer was intended to be a permanent change, the Un-
ion could have demanded bargaining over this change. By fail-
ing to make any inquiry during subsequent collective bargaining
sessions, agreeing to a contract that left the coverage provisions
and zipper clause unchanged, I find that the Union waived its
right to bargain over the transfer of mechanics’ work to New Al-
bany.
The inclusion of the zipper clause in the 2012 contract is far
more consequential than the zipper clause in the 2008–2011 con-
tract. The past practice of Louisville mechanics performing
Southern Indiana work continued throughout the term of the
2008–2011 agreement. However when the Union proposed and
the company accepted the zipper clause in the 2012 agreement,
Louisville mechanics were no longer performing this work due
to the strike and the Union knew this work was being performed
by nonunit mechanics in New Albany.
In a somewhat analogous case, the Board denied a union a
remedy for statutory violations outside the 6-month limits of
Section 10(b). In Moeller Brothers Body Shop, 306 NLRB 191
(1992), the Board held that the Union failed to exercise due dili-
gence to determine whether or not the employer was making the
fringe benefit payments required by its collective-bargaining
agreement.
I believe that placing a burden of inquiry on the Union in this
case is justified in part by the fact that the operation of the New
Albany shop was contrary to the Union’s June 13 proposal.
Christopher Holt’s testimony at Tr. 36 indicates that the New Al-
bany shop required considerable work to prepare it for operation.
In these circumstances, I conclude that the Union waived its bar-
gaining rights regarding the transfer of mechanics’ work both by
the terms of the new collective bargaining agreement and its con-
duct after it became aware of the existence of the Southern Indi-
ana shop. To summarize, I do so on the basis on the following
considerations:
1. The Union knew that mechanics’ work was being per-
formed in New Albany while collective bargaining negotia-
tions were ongoing;
2. The Union knew that Respondent had rejected its attempts
to codify established past practice in the new agreement at the
July 13, 2011 bargaining session.
The Union proposed and the company accepted an agreement
which left the geographical scope of the contract unchanged
from the 2008-11 agreement.
4. The Union proposed and the company accepted an agree-
ment containing a zipper clause which appears to negate any
past practice not memorialized in the new agreement.
As Respondent points out the Board reached the same conclu-
sion in a very similar case, Radioear, Corp., 214 NLRB 362
(1974).
IMI SOUTH, LLC, D/B/A IRVING MATERIALS 17
CONCLUSION OF LAW
Respondent did not violate Section 8(a)(5) and (1) by unilat-
erally transferring the work of the bargaining unit mechanics
from Louisville to Southern Indiana nor Section 8(a)(3) and (1)
in refusing to reinstate those bargaining unit mechanics who had
not been permanently and legally replaced.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The complaint is dismissed.
Dated, Washington, D.C. December 18, 2012

11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.