Minteq International, Inc., and Specialty Minerals, Inc., wholly owned subsidiaries of Mineral Techn

National Labor Relations Board - Board Decisions

Jul 29, 2016

364 NLRB No. 63 (N.L.R.B. 2016)

364 NLRB No. 63
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.
Minteq International, Inc., and Specialty Minerals
Inc., Wholly Owned Subsidiaries of Mineral
Technologies, Inc. and International Union of
Operating Engineers, Local 150, AFL–CIO.
Case 13–CA–139974
July 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On December 23, 2015, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions and
supporting briefs, answering briefs, and reply briefs. The
Charging Party filed an answering brief to the Respond-
ent’s exceptions.
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,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
We find that Minteq International, Inc. (the Respond-
ent) violated Section 8(a)(5) and (1) of the Act by requir-

1 We reject the Respondent’s argument that Regional Director Peter
Ohr was not validly appointed. See NLRB v. Bluefield Hospital Co.,
LLC, 821 F.3d 534, No. 15–1203, 2016 WL 2609605 (4th Cir. May 6,
2016); Lifeway Foods, 364 NLRB No. 11, slip op. at 2 (2016). On
December 7, 2011, a Board comprised of a quorum of three validly
appointed members appointed Peter Ohr as Regional Director for Re-
gion 13. Additionally, we find no merit in the Respondent’s argument
that the unfair labor practice complaint here is invalid. On November
4, 2013, General Counsel Richard F. Griffin Jr. took office after Senate
confirmation. The unfair labor practice charge was filed on October
30, 2014. The charge allegations were thus investigated by the Region
and the complaint issued by the Regional Director under the undisputed
authority of General Counsel Griffin.
In its answering brief to the General Counsel’s exceptions, the Re-
spondent, for the first time, argues that enforceability of the Non-
Compete and Confidentiality Agreement (NCCA) is a state law con-
cern. We decline to address this argument because the Respondent did
not raise the issue in a timely filed exception. See Manno Electric, 321
NLRB 278, 278 fn. 10 (1996), enfd. 127 F.3d 34 (5th Cir. 1997).
2 It is undisputed that the Respondent and Specialty Minerals, Inc.
are wholly-owned subsidiaries of Minerals Technology, Inc. The Re-
spondent answered the complaint on behalf of all three companies, but
later argued that it, alone, was the proper Respondent. We find it un-
necessary to determine the precise identity of the Respondent, as we
shall limit our Order to the Respondent’s facility in Gary, Indiana. The
evidence is insufficient to show that employees of either Specialty
Minerals, Inc. or Minerals Technology, Inc. were required to sign or
otherwise became subject to the NCCA.
ing new employees to sign a Non-Compete and Confi-
dentiality Agreement (NCCA) as a condition of em-
ployment without giving the Union notice and the oppor-
tunity to bargain about the NCCA.3 We also find that the
Respondent maintained two unlawfully overbroad rules
in the NCCA in violation of Section 8(a)(1), specifically
an “Interference with Relationships” rule and an “At-
Will Employee” rule. Contrary to the judge, we find that
the “Confidential Information” rule and the “Remedy”
rule in the NCCA were not unlawfully overbroad.4
I. FACTS
The Respondent provides monolithic and pre-cast re-
fractory products and related services to the steel indus-
try. One of the services it provides is patching the inside
of furnaces by spraying its monolithic (liquid state)
product into the furnace. Employees who perform this
task are called “gunners” and are represented by the Un-
ion. The Respondent and the Union were parties to a
collective-bargaining agreement (CBA) in effect from
January 1, 2011, to December 31, 2014.
Since 2012, the Respondent has required new employ-
ees to sign the NCCA. By its terms, the NCCA binds
employees to most of its provisions from the date the
NCCA is signed until at least 18 months after their em-
ployment ends with the Respondent.5

3 We find it unnecessary to pass on the judge’s finding that the Re-
spondent violated Sec. 8(a)(5) and (1) by dealing directly with new
employees in requiring that they sign the NCCA because the remedy
for that violation would not materially differ from the remedy for the
8(a)(5) unilateral change violation. See, e.g., United Parcel Service,
327 NLRB 317, 317 fn. 4 (1998), enfd. 228 F.3d 772 (6th Cir. 2000).
4 We agree with the judge that the complaint is not barred by the 6-
month statute of limitations in Sec. 10(b). It is well settled that the 6-
month limitations period prescribed by Sec. 10(b) begins to run only
when a party has clear and unequivocal notice, either actual or con-
structive, of the violation of the Act. Art’s Way Vessels, Inc., 355
NLRB 1142, 1147 (2010); Salem Electric Co., 331 NLRB 1575, 1576
(2000). The burden of showing such clear and equivocal notice is on
the party raising Sec. 10(b) as a defense. Broadway Volkswagen, 342
NLRB 1244, 1246 (2004), enfd. sub nom. 483 F.3d 628 (9th Cir. 2007).
Although the Respondent started requiring new employees to sign the
NCCA in 2012, it is undisputed that the Respondent never notified the
Union of the requirement. Further, the credited testimony shows that
the Union first learned of the NCCA in October 2014, after the Re-
spondent invoked it against former employee Charles Spear. The Un-
ion thereafter promptly filed a charge with the Board. Although the
Respondent argues that the Union would have known of the NCCA had
it exercised reasonable diligence which, it claims, “requires inquiries
about a company’s hiring practices,” it cites no precedent for this prop-
osition. We find that the Respondent has not shown that the Union
failed to exercise reasonable diligence. The Respondent therefore has
failed to meet its burden of showing that the complaint is time-barred.
5 The complete NCCA is appended as Appendix B to this decision.
Although all employees at issue here were employed by Minteq Inter-
national, Inc., some of the NCCAs signed by employees stated that the
agreement was with Specialty Minerals, Inc., another subsidiary of
Mineral Technologies, Inc.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Charles Spear began employment with the Respondent
as a gunner on March 21, 2013. During 2 days of paid
orientation, Spear filled out forms, including the NCCA,
and underwent training. Spear was employed by the Re-
spondent until the fall of 2014, when he left to work for
one of the Respondent’s competitors.
Soon after leaving the Respondent’s employ, Spear re-
ceived letters from the Respondent reminding him of his
obligation, pursuant to the NCCA, to keep the Respond-
ent’s business information and proprietary technology
confidential, and stating that Spear was prohibited from
working for a competitor for 18 months after terminating
his employment with the Respondent. After Spear re-
ceived these letters, he met with Union Business Agent
Michael Simms in October 2014. On October 30, 2014,
the Union filed an unfair labor practice charge with the
Board.
In November and December 2014, the Respondent and
the Union negotiated a new CBA, effective from January
1, 2015, to December 31, 2019. The CBA contains a
management-rights clause which gives the Respondent
the right to, among other things, “hire employees, deter-
mine their qualifications . . . ,” “issue, amend and revise
work rules and Standards and of Conduct . . . and to take
whatever action is either necessary or advisable to man-
age and fulfill the mission of the Company . . . .” The
CBA also contains a zipper clause which states that each
party had the unlimited right and opportunity to make
demands and proposals with respect to any subject matter
as to which the Act imposes an obligation to bargain.6
Neither the Respondent nor the Union raised the NCCA
or requested bargaining over its implementation during
negotiations.
II. DISCUSSION
A. The Respondent’s Unilateral Implementation of
the NCCA
For the reasons that follow, we conclude that the judge
erred in failing to determine whether the Respondent’s
unilateral implementation of the NCCA was unlawful.
There is no due process obstacle to addressing that alle-
gation. Accordingly, as explained below, we find that:
(1) the NCCA was a mandatory subject of bargaining;
(2) the Respondent failed to give the Union notice and
the opportunity to bargain prior to implementing the re-
quirement that new employees sign the NCCA; and (3)
the Union did not waive its right to bargain over imple-
mentation of the NCCA.

6 The 2011–2014 CBA between the parties contained identical man-
agement rights and zipper clauses.
1. The unilateral-implementation issue is properly
before the board
The judge analyzed whether four provisions in the
NCCA were overbroad rules maintained by the Re-
spondent in violation of Section 8(a)(1). The General
Counsel excepts, arguing that the judge erred in failing to
additionally address the allegation that the NCCA itself
is a mandatory subject of bargaining and that the Re-
spondent violated Section 8(a)(5) and (1) by unilaterally
implementing it. The General Counsel contends that this
theory was alleged in the complaint and litigated at the
hearing. We find merit in the General Counsel’s excep-
tions.
The complaint alleged, among other things, that the
NCCA was a mandatory subject of bargaining and that
the Respondent had failed and refused to bargain with
the Union by implementing, maintaining, and enforcing
the NCCA without prior notice to the Union and without
affording the Union an opportunity to bargain. Counsel
for the General Counsel’s opening statement at the hear-
ing included this allegation7 and Counsel thereafter did
nothing to suggest she was abandoning the theory that
the Respondent was required to bargain before imple-
menting any and all provisions of the NCCA.8 Finally,
the General Counsel’s posthearing brief to the judge ar-
gued that the Respondent violated 8(a)(5) and (1) by im-
plementing the NCCA without giving the Union notice
and the opportunity to bargain. See Central States
Southeast, 362 NLRB No. 155, slip op. at 2 fn. 4 (2015).
In these circumstances, the Respondent received “a
clear statement of the theory on which [the Board] will
proceed with the case,” and the General Counsel did not
“change theories in midstream without giving [the Re-
spondent] reasonable notice of the change.” Lamar Ad-
vertising of Hartford, 343 NLRB 261, 265 (2004) (inter-
nal quotations and citations omitted). As a result, the
Respondent’s due process rights of notice and the oppor-
tunity to be heard have been respected. Thus, the judge
should have made a finding on the allegation that the
Respondent violated the Act by failing to bargain with
the Union before implementing the NCCA. We turn to
the merits of that allegation next.

7 Indeed, counsel for the General Counsel specifically stated “we are
here today . . . to talk about a five-page document [the NCCA] and
whether the respondent has a duty to bargain over this document.”
8 Although, as the Respondent points out, counsel for the General
Counsel stated that the General Counsel “does not argue that the non-
compete language by itself violates the law,” this statement is con-
sistent with the complaint allegations; that is, the specific noncompete
provision in the NCCA is not challenged under Sec. 8(a)(1) as an un-
lawful rule.
MINTEQ INTERNATIONAL, INC. 3
2. The NCCA is a mandatory subject of bargaining
Sections 8(a)(5) and 8(b)(3) of the Act, in conjunction
with Section 8(d), require that employers and designated
collective-bargaining representatives bargain in good
faith with each other about wages, hours, and other terms
and conditions of employment. A unilateral change to a
mandatory subject violates the statutory duty to bargain.
NLRB v. Katz, 369 U.S. 736, 743 (1962). Mandatory
subjects of bargaining include “issues that settle an as-
pect of the relationship between the employer and the
employees.” First Nat. Maintenance Corp. v. NLRB, 452
U.S. 666, 676 (1981), citing Allied Chemical & Alkali
Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157,
178 (1971). “[M]anagement decisions, such as . . . pro-
duction quotas, and work rules, are almost exclusively
‘an aspect of the relationship’ between the employer and
employee.” Id. (citations omitted). See also Ford Motor
Co. v. NLRB, 441 U.S. 488, 498 (1979) (holding that
mandatory subjects of bargaining are matters “plainly
germane to the working environment” and not among
those “managerial decisions, which lie at the core of en-
trepreneurial control”) (internal quotes and citations
omitted).
We find that the NCCA here is a mandatory subject of
bargaining.
First, we find that the NCCA settles an aspect of the
relationship between the Respondent and its employees.
The NCCA applies to individuals both while they are
employed by the Respondent and after their employment
with the Respondent has ended. As to the former, the
NCCA includes rules governing employees’ conduct that
have the potential to affect the employees’ continued
employment.9 It is well established that employee work
rules are mandatory subjects of bargaining. First Nat.
Maintenance Corp., supra, 452 U.S. at 676. See also,
King Soopers, Inc., 340 NLRB 628, 628 (2003).10 In

9 The Respondent argues that the NCCA is not a mandatory subject
of bargaining and its provisions are not work rules because no provi-
sion of the NCCA expresses or implies a threat of discipline for its
breach. The judge rejected this argument with respect to the provision
that he found unlawful. He explained that because that provision for-
bids certain conduct by employees during their employment, an em-
ployee could be disciplined or fired for violating that provision. We
agree with the judge’s rationale, and we find it extends to all of the
NCCA provisions that apply while an individual is employed by the
Respondent. Because agreeing to comply with the requirements of the
NCCA is a term of employment, implicit in the NCCA is the threat of
discipline or discharge for failing to comply with its provisions.
10 As discussed below, among the work rules in the NCCA that em-
ployees are required to follow is an unlawfully overbroad rule that
restricts employees’ right to engage in Sec. 7 activity, namely employ-
ees’ ability to communicate with customers about matters affecting
their terms and conditions of employment. Any binding agreement that
precludes individual employees from pursuing protected concerted
activity amounts to an unlawful prospective waiver of Section 7 rights.
addition, the provisions of the NCCA clearly affect em-
ployees’ terms and conditions of employment in ways
that extend beyond work rules governing employees’
conduct in the workplace. The provisions have a clear
and direct economic impact on employees—and thus
represent precisely the sort of matters suitable for collec-
tive bargaining. For example, the “Competitive Activi-
ties” provision of the “Covenant Not to Compete,” Sec-
tion 1.2 of the NCCA, prohibits an employee from work-
ing for another company that might have any connection
to the Respondent’s business both during his employ-
ment and for 18 months afterward, effectively imposing
a cost in lost economic opportunities on employees as a
consequence of working for the Respondent.11 Likewise,
the “Inventions” provision imposes economic opportuni-
ty costs on employees by broadly restricting their ability
to benefit from their discoveries, inventions, and ac-
quired knowledge related to working for the Respondent.
It states, for example, that all “know-how” the employee
obtained related to “designs . . . manufacturing tech-
niques [and] improvements and ideas” must be reported
to the Company and any rights the employee may have to
such ideas must be assigned to the Employer. Because
employment is conditioned on the employees’ ac-
ceptance of these provisions, they clearly affect employ-
ees’ terms and conditions of employment and thus “set-
tle[]an aspect of the relationship between the employer
and the employees” about which the Respondent is re-
quired to bargain. First Nat. Maintenance v. NLRB, su-
pra, 452 U.S. at 676.12

See, e.g., On Assignment Staffing Services, 362 NLRB No. 189, slip op.
at 6–8 (2015) (finding mandatory arbitration agreements that required
employees to waive the right to engage in concerted legal activity un-
lawful); Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001)
(finding settlement agreement overbroad where it conditioned employ-
ee’s receipt of separation payments on employee refraining from pro-
tected concerted activities for one year), enfd. 354 F.3d 534 (6th Cir.
2004); Mandel Security Bureau, 202 NLRB 117, 119 (1973) (finding
employee’s agreement to “forbearance from future charges and con-
certed activities” unlawful because the “future rights of employees as
well as the rights of the public may not be traded away in this man-
ner”).
11 It is easy to recognize the serious impact on employees of the
“Covenant Not to Compete” if, for example, employees were assigned
fewer hours of work due to a reduction in business or were locked out
by the Respondent during a labor dispute. In such circumstances, em-
ployees would be prohibited by the NCCA from replacing their lost
income by pursuing the type of work that they had been performing for
the Respondent.
12 We reject the Respondent’s argument that it had no obligation to
bargain over the NCCA because the requirement that individuals sign
the NCCA applies to “applicants” and is a “hiring practice” excluded
from the bargaining obligations imposed by the Act. The provisions of
the NCCA do not become effective until, at the earliest, individuals
become employees. As a result, the NCCA is not the equivalent of a
drug test, a qualifications requirement, or a “method of processing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
The decision to implement the NCCA is not among
that class of managerial decisions at the core of entrepre-
neurial control that the Respondent is not required to
bargain over. That is, it is not a “management decision”
that has “only an indirect and attenuated impact on the
employment relationship” or that involves “a change in
the scope and direction of the enterprise.” Id. at 677.
The Respondent’s decision to require employees to sign
the NCCA does not involve the commitment of invest-
ment capital and cannot be characterized as a decision
reflecting a change in the scope or nature of the Re-
spondent’s enterprise. Rather, it affects important facets
of employees’ terms and conditions of employment by
limiting employees’ use of information gained at work
and restricting their ability to work elsewhere, as well as
imposing rules (some of them unlawful) that govern em-
ployees’ conduct while they are employed by the Re-
spondent.
Having determined that the NCCA was a mandatory
subject of bargaining,13 we must now consider whether
the Union waived the right to bargain over its implemen-
tation.
3. The Union did not waive its right to bargain over im-
plementation of the NCCA
The Respondent argues that the Union waived its right
to bargain over implementation of the NCCA under ei-
ther the “clear and unmistakable” waiver standard or the
“contract coverage” approach.14 In support, the Re-

applications” that affects prospective employees as “applicants” with-
out having any impact on terms and conditions once the applicants
become employees. See Postal Service, 308 NLRB 1305 (1992), enf.
denied 18 F.3d 1089 (3d Cir. 1994); Star Tribune, 295 NLRB 543
(1989). While individuals must agree to sign the NCCA in order to
become and remain employees, agreement to the NCCA is the equiva-
lent of agreement to all of the other terms and conditions of employ-
ment offered by the employer, all of which are mandatory subjects of
bargaining. Because the NCCA applies to active bargaining-unit em-
ployees, the “vitally affects” test of Allied Chemical & Alkali Workers
Local I v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971) (held that as
retirees’ benefits do not vitally affect terms and conditions of current
employees, they are not mandatory subjects of bargaining), is inappli-
cable.
13 Our conclusion is consistent with prior Board precedent. See
Government Employees (IBPO), 327 NLRB 676, 684 fn. 8 (1999)
(affirming judge’s finding that employer violated 8(a)(5) and (1) by
requiring employees to sign an “Employment Agreement” that con-
tained non-compete clause), enfd. 205 F.3d 1324 (2d Cir. 2000); Bol-
ton-Emerson, Inc., 293 NLRB 1124, 1127, 1130–1131 (1989) (affirm-
ing judge’s finding that employer violated 8(a)(5) and (1) by withdraw-
ing recognition from the union and unilaterally imposing a requirement
that employees sign a non-compete agreement), enfd. 899 F.2d 104 (1st
Cir. 1990).
14 The Board has declined to adopt the contract-coverage standard
and instead has consistently applied the “clear and unmistakable” waiv-
er standard. See Provena St. Joseph Medical Center, 350 NLRB 808
(2007); see also Columbia College Chicago, 360 NLRB No. 122, slip
spondent primarily points to the CBA’s management-
rights clause, which gives it the right to take action it
deems necessary to fulfill the mission of the Company,
and asserts that implementing the NCCA was such an
action.
Contrary to the Respondent’s arguments, we find that
the Union did not clearly and unmistakably waive its
right to bargain about the implementation of the NCCA.
The management-rights clause in the 2011–2014
CBA,15 which the Respondent relies on, is not sufficient-
ly specific to show that the Union “clearly and unmistak-
ably” waived its right to bargain over implementation of
the NCCA. It is well established that the Board will not
infer the waiver of a statutory right from general contrac-
tual provisions, including generally worded manage-
ment-rights clauses. See, e.g., California Offset Printers,
349 NLRB 732, 734 (2007). The management-rights
clause at issue makes no reference to non-compete/non-
disclosure agreements and thus does not constitute an
“express, clear, unequivocal, and unmistakable waiver by
the Union of its statutory right to bargain about the Re-
spondent’s implementation of the [NCCA] requirement.”
Johnson-Bateman Co., 295 NLRB 180, 185 (1989) (find-
ing management-rights clause that gave the employer the
right to issue, enforce and change company rules was too
general to constitute waiver of union’s right to bargain
about drug/alcohol testing requirement). Compare Alli-
son Corp., 330 NLRB 1363, 1365 (2000) (finding clear
and unmistakable waiver over subcontracting decision
where management-rights clause specifically granted
respondent the right “to subcontract” without re-
striction).16 Although the management-rights clause
states that the Respondent retains the right to “amend and

op. at 2 fn. 8 (2014). Cf. Chicago Tribune Co. v. NLRB, 974 F.2d 933
(7th Cir. 1992); NLRB v. Postal Service, 8 F.3d 832 (D.C. Cir. 1993).
Even under the “contract coverage” analysis adopted by the Seventh
Circuit and the District of Columbia Circuit, the Respondent’s argu-
ment would fail. The language of the management-rights clause, con-
sidered in light of the complete absence of relevant bargaining history,
cannot fairly be read to cover the NCCA and the specific, significant
restrictions it unilaterally imposes on employees.
15 Because the Respondent began requiring employees to sign the
NCCA in 2012, we examine the language of the 2011–2014 CBA. We
note, however, that the 2015–2019 CBA contained an identical man-
agement rights clause and zipper clause, and for the reasons we explain
are likewise insufficient to establish a clear and unmistakable waiver.
16 The zipper clause is also not sufficient to show a clear and unmis-
takable waiver of the Union’s right to bargain over implementation of
the NCCA. Again, there is no mention of the right to implement a non-
compete/non-disclosure agreement in the zipper clause, and the clause
alone does not waive the Union’s specific right to bargain over a
change to the Respondent’s practice. See Michigan Bell Telephone
Co., 306 NLRB 281, 282 (1992) (“[t]he clear and unmistakable waiver
test applies equally to alleged waivers contained in zipper clauses as it
does to those contained in other contractual provisions”).
MINTEQ INTERNATIONAL, INC. 5
revise work rules,” we find this reference too vague to
constitute a waiver of the Union’s statutory right to bar-
gain over imposition of the requirement that employees
sign and agree to the NCCA. See Murtis Taylor Human
Services Systems, 360 NLRB No. 66, slip op. at 4 (2014)
(reference to “rules and regulations” in management-
rights clause does not clearly cover new signature policy
implemented by the respondent). Accordingly, as the
language in the managements-rights clause makes no
reference to the NCCA, rules affecting the right of em-
ployees to communicate with customers over their terms
and conditions of employment, or rules restricting the
employees’ use of knowledge obtained while working
for the Respondent, the clause does not establish a clear
and unmistakable waiver of the Union’s right to negoti-
ate over these matters.17
Additionally, there is nothing in the parties’ bargaining
history to support a finding that the management-rights
clause was intended by the parties to encompass the im-
plementation of the NCCA. See Johnson-Bateman, su-
pra, 295 NLRB at 185 (“Waiver of a statutory right may
be evidenced by bargaining history, but the Board re-
quires the matter at issue to have been fully discussed
and consciously explored during negotiations and the
union to have consciously yielded or clearly and unmis-
takably waived its interest in the matter.”). The NCCA
was not raised by the Respondent in negotiations for the
2011–2014 contract that took place a year before it im-
plemented the NCCA, nor was the NCCA discussed in
negotiations for the 2015–2019 CBA.
Finally, we reject the Respondent’s argument that the
Union waived its right to bargain over implementation of
the NCCA by failing to request bargaining during nego-
tiations for the 2015–2019 CBA. The Respondent never
gave the Union notice that it was requiring new employ-
ees to sign the NCCA. By the time the Union learned of
the requirement from an employee in 2014, the NCCA
had already been unlawfully implemented for more than
2 years. Thus a request to bargain would have been fu-
tile. See Smith & Johnson Construction Co., 324 NLRB
970, 970 (1997) (no obligation to request bargaining
where such a request would be futile). Nonetheless,
when the Union learned of the NCCA, it promptly filed a

17 The Respondent also points to testimony by Simms, one of the
Union’s negotiators, claiming that it shows the Union agreed that the
Respondent had the contractual right to implement the NCCA. The
Respondent relies on an exchange in which Simms acknowledged that
the management-rights clause gave the Respondent the right to make
work rules without bargaining. As discussed, the management-rights
clause is not sufficient to show that the Respondent could implement
the NCCA without bargaining with the Union. And, contrary to the
Respondent’s argument, Simms’ testimony does not otherwise demon-
strate a clear and unmistakable waiver of the Union’s right to bargain.
charge with the Board,18 undercutting any argument that
it acquiesced in the implementation of the NCCA. See
Allen W. Bird II; Caravelle Boat Co., 227 NLRB 1355,
1358 (1977) (finding that union did not waive right to
bargain or acquiesce in changes where union learned of
unilateral changes during negotiations and union filed
charges with the Board but did not request bargaining).
By filing a charge asserting that the NCCA was unlaw-
fully implemented and should be rescinded, the Union
clearly did not lead “the Respondent to believe that the
Union did not object” to its conduct. American Diamond
Tool, 306 NLRB 570, 571 (1992).
For these reasons, we find that the Union did not clear-
ly and unmistakably waive its right to bargain about the
implementation of the NCCA, and therefore that the Re-
spondent violated Section 8(a)(5) and (1) as alleged.
B. 8(a)(1) Allegations
The complaint alleges that the Respondent violated
Section 8(a)(1) by maintaining four specific provisions
of the NCCA that constituted facially overbroad rules.
Because the Respondent imposed the four challenged
NCCA provisions on new employees as a condition of
employment, they are properly treated as the Board treats
other unilaterally implemented workplace rules. See D.
R. Horton, Inc., 357 NLRB 2277, 2280 (2012), enf. de-
nied in part, 737 F.3d 344 (5th Cir. 2013).
The Board has held that an employer violates Section
8(a)(1) of the Act if it maintains workplace rules that
would reasonably tend to chill employees in the exercise
of their Section 7 rights. See Lafayette Park Hotel, 326
NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir.
1999). The analytical framework for assessing whether
maintenance of rules violates the Act is set forth in Lu-
theran Heritage Village-Livonia, 343 NLRB 646 (2004).
Under Lutheran Heritage, a work rule is unlawful if “the
rule explicitly restricts activities protected by Section 7.”
Id. at 646 (emphasis in original). If the work rule does
not explicitly restrict protected activities, it nonetheless
will violate Section 8(a)(1) if “(1) employees would rea-
sonably construe the language to prohibit Section 7 activ-
ity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.” Id. at 647.
The rules at issue here are not alleged to explicitly re-
strict protected activities or to have been promulgated in
response to union activity or applied to restrict Section 7
activities. Thus, the relevant inquiry is whether employ-
ees would reasonably construe the challenged rules to

18 The Union filed the charge on October 20, 2014; negotiations for a
successor CBA began in November 2014.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
prohibit Section 7 activity, under the first prong of the
Lutheran Heritage test.
We examine each of the allegedly unlawful provisions
below.
1. “Confidential Information” rule
Section 2 of the NCCA, entitled “Confidential Infor-
mation,” states in relevant part:
Confidential Information refers to any information not
generally known in the relevant trade or industry which
was obtained from the Company, or which was
learned, discovered, developed, conceived, originated,
or prepared by me in the scope of my employment.
Such Confidential Information includes, but is not lim-
ited to, software, technical, and business information
relating to the Company inventions or products, re-
search and development, production processes, manu-
facturing and engineering processes, machines and
equipment, finances, customers, marketing, and pro-
duction and future business plans and any other infor-
mation which is identified as confidential by the Com-
pany. . . . (emphasis added)
Applying Lutheran Heritage, the judge found that em-
ployees would reasonably interpret Section 2 as prohibit-
ing protected activity because the phrase “any other in-
formation which is identified as confidential by the
Company” is so ambiguous that it could reasonably be
read to include wages and benefits.
Viewed in isolation, a prohibition on releasing “any . .
. information which is identified as confidential by the
Company” would clearly be overbroad, since it would
allow the Respondent to designate any information—
including information about employees’ wages, benefits,
or other terms and conditions of employment—as confi-
dential and thus restrict employees’ exercise of their Sec-
tion 7 rights. See, e.g., Cintas Corp., 344 NLRB 943,
943 (2005) (finding rule’s unqualified prohibition of the
release of “any information” regarding employees unlaw-
ful), enfd. 482 F.3d 463 (D.C. Cir. 2007).
However, the phrase containing this prohibition does
not stand alone and must be read in context. See Luther-
an Heritage, supra, 343 NLRB at 646 (“In determining
whether a challenged rule is unlawful, the Board must
. . . refrain from reading particular phrases in isolation . .
. .”). Here, Section 2 defines “confidential information”
as “any proprietary or confidential information or know-
how belonging to the company,” that is “not generally
known in the relevant trade or industry,” and which the
employee “obtained from the Company . . . in the scope
of [his or her] employment.” This definition is followed
by examples of confidential information which illustrate
its scope and meaning: “software, technical and business
information relating to the Company inventions or prod-
ucts, research and development, production processes,
manufacturing and engineering processes, machines and
equipment, finances, customers, marketing, and produc-
tion and future business plans. . . .” Considered in this
context, we find that employees reading the concluding
phrase, “any other information which is identified as
confidential by the Company,” would reasonably under-
stand it to refer to the preceding examples of proprietary
information and trade secrets, not information related to
employees’ wages or working conditions. See Lafayette
Park, supra, 326 NLRB at 826 (employer rule prohibit-
ing “divulging Hotel-private information to employees or
other individuals or entities that are not authorized to
receive that information” found lawful).
Accordingly, we reverse the judge and dismiss this al-
legation of the complaint.
2. “Remedy” rule
Section 13 of the NCCA, entitled “Remedy,” states
that, in the event of a breach or violation of the NCCA,
“employee agrees the Company shall be entitled to pro-
ceed directly to court to obtain the remedies of specific
performance and injunctive relief without the necessity
of posting a bond or other undertakings therewith.”
The judge found that the “Remedy” rule would restrain
employees in the exercise of their Section 7 rights be-
cause it “threatens employees with punishment for any-
thing Minteq decides is confidential.”
Contrary to the judge, we find that the “Remedy” pro-
vision is not unlawful on its face. This rule makes no
reference to terms and conditions of employment or em-
ployees’ exercise of their Section 7 rights, and employ-
ees therefore would not read the “Remedy” rule as an
independent restriction on their Section 7 rights.19 Ac-
cordingly, we reverse the judge and dismiss this allega-
tion of the complaint.
3. “Interference with Relationships” rule
Section 4 of the NCCA, entitled “Interference with Re-
lationships,” states:
During the Restricted Period [starting the date the
NCCA is signed and ending eighteen months following
termination of Employee’s employment with the Com-
pany for whatever reason], Employee shall not, directly
or indirectly, as employee, agent, consultant, stock-

19 We find it unnecessary to reach whether the “Remedy” rule is
nevertheless unlawful to the extent that it may be invoked in response
to violations of other provisions of the NCCA that we find unlawful
below. As our remedy for these unlawful rules requires that those
provisions be rescinded, the “Remedy” rule could not be invoked in
response to alleged violations of those provisions.
MINTEQ INTERNATIONAL, INC. 7
holder, director, partner or in any other individual or
representative capacity intentionally solicit or encour-
age any present or future customer or supplier of the
Company to terminate or otherwise alter his, her, or its
relationship with the Company in an adverse manner
. . . .
The judge found that employees would not construe
the “Interference with Relationships” rule to prohibit
Section 7 activity. The General Counsel excepts, arguing
that the “Interference with Relationships” rule would
reasonably be read by employees to prohibit lawful Sec-
tion 7 conduct such as, for example, asking customers to
boycott the Respondent’s products in support of a labor
dispute with the Respondent. We agree.
The ability of employees to communicate with cus-
tomers about terms and conditions of employment for
mutual aid or protection is a right protected by Section 7
of the Act. See generally Eastex, Inc. v. NLRB, 437 U.S.
556, 565–566 (1978); Edward J. DeBartolo Corp. v.
Florida Gulf Coast Bldg. Trades Council, 485 U.S. 568,
578–579 (1988); Allied Aviation Service Co. of New Jer-
sey, 248 NLRB 229, 230–231 (1980), enfd. 636 F.2d
1210 (3d Cir. 1980); Richboro Community Mental
Health Council, 242 NLRB 1267, 1268 (1979). The
“Interference with Relationships” rule clearly places re-
strictions on employees’ ability to communicate with the
Respondent’s customers and restricts employee efforts to
“improve terms and conditions of employment or other-
wise improve their lot as employees through channels
outside the immediate employee-employer relationship.”
Eastex, supra, 437 U.S. at 565. These efforts could in-
clude asking customers to boycott the Respondent’s
products or services, as the General Counsel argues, but
they could also encompass other forms of appeals to the
Respondent’s customers. A prohibition on this type of
conduct is an unlawful restriction of employees’ Section
7 rights. See, e.g., Battle’s Transportation, 362 NLRB
No. 17, slip op. at 3 (2015) (finding prohibition against
discussion of “any [] company business” with clients
unlawful).
For these reasons, we find that the “Interference with
Relationships” rule violates Section 8(a)(1).
4. “At-Will Employee” rule
The CBA provides that employees are probationary for
their first 6 months of employment and that the Re-
spondent’s discipline, layoff or discharge of a probation-
ary employee “shall not be a violation of this Agree-
ment.” After 6 months, the CBA imposes on the Re-
spondent a “just cause” standard (as defined in the CBA)
for any discipline, suspension, and discharge. The CBA
further provides that disciplinary action that is not for
“just cause” can be challenged under the grievance and
arbitration procedure.
Section 12 of the NCCA is entitled “At-Will Employ-
ee” and states, “Employee acknowledges that this
Agreement does not affect Employee’s status as an em-
ployee-at-will and that no additional right is provided
herein which changes such status.” The judge found that
employees would not construe this provision to prohibit
Section 7 activity since it merely advises new hires that
they are at-will employees and that nothing in the NCCA
affects that status.
Contrary to the judge, we find that the “At-Will Em-
ployee” rule is unlawfully broad. Initially, we note that
there is nothing in Section 12, or the NCCA more broad-
ly, that suggests that the rule applies only to new, proba-
tionary employees. Indeed, the NCCA explicitly states
that its provisions are effective from the date the NCCA
is signed until 18 months after the end of the employee’s
employment with the Respondent. As a result, the “At-
Will Employee” rule purports to give all employees at-
will status, contrary to the parties’ agreement in the
CBA.
We find that employees thus would reasonably doubt
whether the CBA’s “just cause” provision remains in
effect. Thus, the “At-Will” rule has a reasonable tenden-
cy to discourage employees from engaging in conduct
that would be protected by the CBA’s “just cause” provi-
sion and by Section 7 of the Act, including the exercise
of rights under the collective-bargaining agreement and
other protected, concerted activity (such as, for example,
communicating among themselves or with the Respond-
ent’s customers concerning their terms and conditions of
employment), for fear that they could be discharged
without the contractual “just cause” protection. Similar-
ly, the conflict between the “At-Will” provision and the
“just cause” provision would reasonably discourage em-
ployees from engaging in the Section 7 activity of utiliz-
ing the contractual grievance and arbitration procedures
to challenge disciplinary actions they believe were not
for “just cause”. Because the rule has a reasonable ten-
dency to chill employees’ exercise of their Section 7
rights, we find that it is unlawful as written.
In sum, we find that the Respondent violated Section
8(a)(5) and (1) by implementing a requirement that em-
ployees sign the NCCA without giving the Union notice
and the opportunity to bargain and that the Respondent
violated Section 8(a)(1) by maintaining the “Interference
with Relationships” and “At-Will Employee” rules in the
NCCA.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ORDER
The National Labor Relations Board orders that the
Respondent, Minteq International, Inc., Gary, Indiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Requiring employees in the bargaining unit repre-
sented by the Union to sign a Non-Compete and Confi-
dentiality Agreement (NCCA) without first notifying the
Union and giving it an opportunity to bargain.
(b) Maintaining an “Interference with Relationships”
rule that prohibits or would reasonably be read to prohib-
it conduct protected by Section 7 of the Act.
(c) Maintaining an “At-Will Employee” rule that pro-
hibits or would reasonably be read to prohibit conduct
protected by Section 7 of the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the NCCA that was unilaterally imple-
mented in 2012.
(b) Notify all current and former employees who were
required to sign the NCCA that it has been rescinded.
(c) 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
employees in the following bargaining unit:
All full-time and regular part-time SMS gunners who
are engaged in the application of refractory materials,
including the repair and servicing of application
equipment, employed by the Company at USX Gary
#2, USX Gary #1 Caster, and Mittal Indiana Harbor
East and West, in the mill areas specifically defined in
Article 1 of the contract, excluding all other craft em-
ployees, all office clerical employees and supervisors
as defined by the National Labor Relations Act.
(d) Rescind the overly broad “Interference with Rela-
tionships” and “At-Will Employee” work rules and noti-
fy employees in writing that it has done so.
(e) Within 14 days after service by the Region, post at
its Gary, Indiana facility, copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms
provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized representa-

20 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading, “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
tive 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, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable 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 proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since April 30, 2014.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. July 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
MINTEQ INTERNATIONAL, INC. 9
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain an “Interference with Relation-
ships” rule in our NCCA that prohibits or would reason-
ably be read to prohibit conduct protected by Section 7 of
the Act.
WE WILL NOT maintain an “At-Will Employee” rule in
our NCCA that prohibits or would reasonably be read to
prohibit conduct protected by Section 7 of the Act.
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 NCCA that was unilaterally im-
plemented in 2012.
WE WILL notify all current and former employees who
were required to sign the NCCA that it has been rescind-
ed.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions, notify and,
on request, bargain with the Union as the exclusive col-
lective-bargaining representative of employees in the
following bargaining unit:
All full-time and regular part-time SMS gunners who
are engaged in the application of refractory materials,
including the repair and servicing of application
equipment, employed by the Company at USX Gary
#2, USX Gary #1 Caster, and Mittal Indiana Harbor
East and West, in the mill areas specifically defined in
Article 1 of the contract, excluding all other craft em-
ployees, all office clerical employees and supervisors
as defined by the National Labor Relations Act.
WE WILL rescind the overly broad “Interference with
Relationships” and “At-Will Employee” work rules and
notify employees in writing that we have done so.
MINTEQ INTERNATIONAL, INC.
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-139974 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.
APPENDIX B
NON-COMPETE AND CONFIDENTIALITY
AGREEMENT
1. Covenant Not to Compete.
1.1 Employee’s Acknowledgement. Employee agrees
and acknowledges that in order to assure the Company
that it will retain its value as a going concern, it is
necessary that Employee undertake not to utilize Em-
ployee’s special knowledge of the Business (as de-
fined below) and Employee’s relationships with cus-
tomers and suppliers to compete with the Company.
Employee further acknowledges that:
(a) the Company is and will be engaged in the
business of developing, producing and marketing
performance-enhancing minerals, mineral-based
and synthetic mineral products for the paper, poly-
mer, healthcare and other manufacturing industries
on a worldwide basis (the “Business”);
(b) the agreements and covenants contained in this
Section 1 are essential to protect the Company and
the goodwill of the Business; and
(c) Employee’s employment with the Company
has special, unique and extraordinary value to the
Company and the Company would be irreparably
damaged if Employee were to provide services to
any person or entity in violation of the provisions of
this Agreement.
1.2 Competitive Activities. Employee hereby agrees
that for a period commencing on the date hereof and
ending eighteen months following termination of Em-
ployee’s employment with the Company for whatever
reason, (the “Restricted Period”), Employee will not,
directly or indirectly, as employee, agent, consultant,
stockholder, director, co-partner or in any other individ-
ual or representative capacity, own, operate, manage,
control, engage in, invest in or participate in any manner
in, act as a consultant or advisor to, render services for
(alone or in association with any person, firm, corpora-
tion or entity), or otherwise assist any person or entity
(other than the Company) that engages in or owns, in-
vests in, operates, manages or controls any venture or en-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
terprise that directly or indirectly engages or proposes to
engage in the business of the manufacturing, distribution or
sale of (i) products or services manufactured, distributed,
sold or licensed by the Company at the time of termination
or (ii) products or services proposed at the time of such
termination to be manufactured, distributed, sold or li-
censed by the Company, in any country where the Compa-
ny is conducting business, or can demonstrate it is actively
planning to conduct business, at the time of Employee’s
termination of employment with the Company (the “Terri-
tory”), without the Company’s prior written consent given
wholly in its own discretion; provided, however, that noth-
ing contained herein shall be construed to prevent Employ-
ee from investing in the stock of any competing corpora-
tion listed on a national securities exchange or traded in the
over-the-counter market, but only if Employee is not in-
volved in the business of said corporation and if Employee
and Employee’s “associates” (as such term is defined in
Regulation 14(A) promulgated under the Securities Ex-
change Act of 1934, as in effect on the date hereof), collec-
tively, do not own more than an aggregate of two percent
of the stock of such corporation (“Permitted Investments”).
With respect to the Territory, Employee specifically
acknowledges that the Company has conducted the Busi-
ness throughout those areas comprising the Territory and
the Company intends to continue to expand the Business
throughout the Territory. The foregoing notwithstanding,
after termination but during the Restricted Period, Employ-
ee may accept employment in the Territory with an other-
wise restricted potential new employer whose business is
diversified and, which as to the part of such employer’s
business in which Employee is proposed to be engaged, is
not in competition with the Company, provided that the
Company, prior to Employee accepting such employment,
shall have received separate written representations satis-
factory to the Company from such potential new employer
and from Employee, representing that Employee will not
render services, directly or indirectly, in connection with
any product or service of such potential new employer that
is competitive with any product or service of the Company
and that Employee will not and will not be asked to breach
any of the provisions of this Agreement.
1.3 Solicitation of Employees. Employee hereby agrees
that during the Restricted Period Employee will not (ex-
cept on behalf of the Company or otherwise as permit-
ted in Section 1.2), directly or indirectly, solicit or par-
ticipate as employee, agent, consultant, stockholder,
director, partner or in any other individual or representa-
tive capacity in any business which solicits business
from any person, firm, corporation or other entity which
is or was a customer or supplier of the Company during
the two-year period preceding the date of this Agreement
and/or during the term of this Agreement, or from any
successor in interest to any such person, firm, corpora-
tion or other entity for the purpose of securing business
or contracts related to the Business.
2. Confidential Information. Employee will maintain
in confidence and will not disclose or use, either during
or after the term of his or her employment, any proprie-
tary or confidential information or know-how belonging
to the Company “Confidential Information”), whether
or not in written form, except to the extent required to
perform duties on behalf of the Company. Confidential
Information refers to any information not generally
known in the relevant trade or industry which was ob-
tained from the Company, or which was learned, discov-
ered, developed, conceived, originated or prepared by
me in the scope of my employment. Such Confidential
Information includes, but is not limited to, software,
technical and business information relating to the Com-
pany inventions or products, research and development,
production processes, manufacturing and engineering
processes, machines and equipment, finances, custom-
ers, marketing, and production and future business plans
and any other information which is identified as confi-
dential by the Company. Upon termination of Employ-
ee’s employment, or at the request of the Employee’s
supervisor before termination, Employee will deliver to
the Company all written and tangible material in Em-
ployee’s possession incorporating Confidential Infor-
mation or otherwise relating to the company’s business.
These obligations with respect to Confidential Infor-
mation extend to information belonging to customers
and suppliers of the Company which may have been
disclosed to the Company or to Employee as the result of
his or her status as an employee of the Company.
3. Inventions
3.1 Definition of Inventions. As used in this Agree-
ment, the term “Inventions” means any new or useful
art, discovery, contribution, finding or improvement,
whether or not patentable, and all related know-how.
Inventions include, but are not limited to, all designs,
discoveries, formulae, processes, manufacturing tech-
niques, computer software, inventions, improvements
and ideas.
3.2 Disclosure and Assignment of Inventions.
(a) Employee will promptly disclose and describe
to the Company all Inventions which Employee
may solely or jointly conceive, develop or reduce to
practice during the period of my employment with
the Company (i) which relate at the time of concep-
tion, development or reduction to practice of the
MINTEQ INTERNATIONAL, INC. 11
Invention to the Company’s business or actual or
demonstrably anticipated research or development,
(ii) which were developed, in whole or in part, on
the Company’s time or with the use of any of the
Company’s equipment, supplies, facilities or trade
secret information, or (iii) which resulted from any
work Employee performed for the Company (all of
(i), (ii), and (iii) are hereinafter referred to as
“Company Inventions”). Employee assigns all his
or her right, title and interest worldwide in Compa-
ny Inventions and in all intellectual property rights
based upon Company Inventions. This Agreement
shall not apply to any inventions which Employee
made prior to his or her employment by Company.
A list of any prior inventions is attached hereto as
Exhibit A.
(b) Employee agrees that (s)he will, upon termina-
tion of employment from Company, sign an affida-
vit, acknowledging that (s)he has disclosed all inven-
tions relating to his/her activities while working for
Company and conceived or made by Employee,
alone or with others, prior to his/her termination.
3.3 Further Acts. Employee agrees to perform, dur-
ing and after his or her employment, all acts deemed
necessary or desirable by the Company to permit and
assist it, at its expense, in perfecting and enforcing the
full benefits, enjoyment, rights and title throughout the
world in the Company Inventions. Such acts may in-
clude, but are not limited to, execution of documents
and assistance or cooperation in the registration and
enforcement of applicable patents and copyrights or
other legal proceedings.
3.4 Appointment of Attorney-In-Fact. In the event
that the Company is unable for any reason whatsoever
to secure Employee’s signature.to any lawful and
necessary document required to apply for or execute
any patent, copyright or other applications with re-
spect to any Company Inventions (including im-
provements, renewals, extensions, continuations, di-
visions or continuous in part thereof), Employee here-
by irrevocably appoints the Company and its duly
authorized officers and agents as Employee’s agents
and attorneys-in-fact to execute and file any such ap-
plication and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copy-
rights or other rights thereon with the same legal
force and effect as if executed by Employee.
4. Interference with Relationships. During the Re-
stricted Period Employee shall not, directly or indirect-
ly, as employee, agent, consultant, stockholder, direc-
tor, partner or in any other individual or representa-
tive capacity intentionally solicit or encourage any
present or future customer or supplier of the Company
to terminate or otherwise alter his, her or its relation-
ship with the Company in an adverse manner.
5. Return of Company Materials Upon Termination.
Employee acknowledges that all price lists, sales manu-
als, catalogs, binders, customer lists and other cus-
tomer information, supplier lists, financial infor-
mation, and other records or documents containing
Confidential Information prepared by Employee or
coming into Employee’s possession by virtue of Em-
ployee’s employment by the Company are and shall
remain the property of the Company and that upon ter-
mination of Employee’s employment hereunder, Em-
ployee shall return immediately to the Company all such
items in Employee’s possession, together with all copies
thereof.
6. Preamble: Preliminary Recitals. The Preliminary
Recitals set forth in the Preamble hereto are hereby in-
corporated and made part of this Agreement.
7. Entire Agreement. Except as otherwise expressly set
forth herein, this Agreement sets forth the entire under-
standing of the parties, and supersedes and preempts all
prior oral or written understandings and agreements
with respect to the subject matter hereof. No modifica-
tion, termination or attempted waiver of this Agreement
shall be valid unless in writing and signed by the party
against whom the same is sought to be entered.
8. Waiver. Either party’s failure to enforce any provi-
sion or provisions of this Agreement shall not in any
way be construed as a waiver of any such provision or
provisions as to any future violations therefore, nor pre-
vent that party thereafter from enforcing each and every
other provision of this Agreement. The rights granted
the parties herein are cumulative and the waiver by a
party of any single remedy shall not constitute a waiver
of such party’s right to assert all other legal remedies
available to him or it under the circumstances.
9. Additional Obligations . Both during and after the
Restricted Period, Employee shall, upon reasonable no-
tice, furnish the Company with such information as may
be in Employee’s possession, and cooperate with the
Company, as may reasonably be requested by the Com-
pany (and, after the Restricted Period, with due consider-
ation for Employee’s obligations with respect to any
new employment or business activity) in connection
with any litigation in which the Company or any affiliate
is or may become a party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
10. No Conflict. Employee’s performance of the
Agreement and as an employee of the Company does not
and will not breach any agreement to keep in confidence
proprietary information, knowledge or data acquired by
Employee prior to employment with the Company.
Employee will not disclose to the Company, or induce
the Company to use, any confidential or proprietary in-
formation or material belonging to any previous employ-
er or other person or entity. Employee is not a party to
any other agreement which will interfere with Employ-
ee’s full compliance with this Agreement. Employee
will not enter into any agreement, whether written or
oral, in conflict with the provisions of this Agreement.
11. Assignment. This Agreement may be assigned by
the Company to any of its affiliates or to any successor to
all or part of the Business of the Company. Employee
may not assign or delegate Employee’s duties under this
Agreement. For all purposes of this Agreement, the
term “Company” shall include the Company, its subsidi-
aries, affiliates, and assignees and any successors in
interest of the company and its subsidiaries and/or affil-
iates. This Agreement shall be binding upon Employ-
ee’s heirs, successors, and assignees.
12. At-Will-Employee. Employee acknowledges that
this Agreement does not affect Employee’s status as an
employee-at-will and that no additional right is provided
herein which changes such status.
13. Remedy. Any breach or violation by Employee of
the Agreement will result in immediate and irreparable
injury to the Company in amounts difficult to ascertain.
Therefore in the event of such breach or violation, em-
ployee agrees the Company shall be entitled to proceed
directly to court to obtain the remedies of specific per-
formance and injunctive relief without the necessity of
posting a bond or other undertakings therewith.
14. Employee Acknowledgement. Employee acknowl-
edges that Employee has received a copy of this agree-
ment, has read and understands its provisions, has been
given an opportunity to have legal counsel review it, and
has signed it on the date first shown above.
15. Governing Law. This Agreement shall be construed
and enforced in accordance with, and all questions con-
cerning the construction, validity, interpretation and per-
formance of this Agreement shall be governed by the
laws of the State of New York, without giving effect to
provisions thereof regarding conflict of laws.
Christina B. Hill, Esq., for the General Counsel.
Jonathan O. Levine and Adam-Paul Tuzzo, Esqs. (Littler
Mendelson, LLC, Milwaukee, Wisconsin), for the Respond-
ent.
Charles R. Kiser, Esq. (Local 150 Legal Department, Country-
side, Illinois), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Chicago, Illinois, on October 26, 2015. Operating
Engineers Local 150 filed the charge on October 20, 2014. The
General Counsel issued the complaint on July 31, 2015, and an
amended complaint on October 9, 2015. The General Counsel
alleges that Respondent violated Section 8(a)(5) and (1) of the
Act by directly dealing with represented employees by requir-
ing them to sign a Non-Compete and Confidentiality Agree-
ment (NCCA) as a condition of their continued employment
and implementing, maintaining and enforcing the Agreement
without prior notice to the Union and affording it the opportuni-
ty to bargain about this Agreement or its effects.
The General Counsel also alleges that Respondent is violat-
ing Section 8(a)(1) by maintaining Sections 2, 4, 12, and 13 of
the NCCA.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent,2 a Delaware corporation, has an office and
place of business in Gary, Indiana. It is engaged in the business
of providing monolithic and pre-cast refractory products and
related systems and services to the steel industry. Respondent
annually purchases and receives goods valued in excess of
$50,000 directly from places outside of Indiana. 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, International Union of Operating Engineers,
Local 150, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent works as a contractor at ArcelorMittal’s Burns

1 The list of exhibits at the beginning of the transcript and the bound
exhibits themselves incorrectly indicate that GC Exh. 6, Jt. Exh. 5 and
Jt. Exh. 6 were not received into evidence. These exhibits were re-
ceived at Tr. 154–56.
The General Counsel’s joint motion to correct the transcript is grant-
ed.
2 Although Respondent answered the initial complaint on behalf of
Minteq International, Inc., Specialty Minerals, Inc. and Minerals Tech-
nology, Inc., it later contended that only Minteq was the correct Re-
spondent. I reject this contention. The Joint Exhibits showed that some
unit employees signed the Non-Compete and Confidentiality Agree-
ments with Minteq and others signed such an Agreement with Specialty
Minerals.
MINTEQ INTERNATIONAL, INC. 13
Harbor, Indiana Steel Mill, as well as the USX mills in Gary,
Indiana. One of the services it provides is patching the inside
of the furnaces. Minteq does this by spraying its monolithic
(liquid state) product into the furnace. The employees who
perform this task are called “gunners.” They spray Minteq’s
product into the mouth of the furnaces with a long galvanized
pipe mounted on a forklift. “Gunners” must undergo several
months of on-the-job training before they can perform their
tasks on their own. Minteq’s product is proprietary and confi-
dential.
The “gunners” are represented by the Charging Party Union,
Operating Engineers Local 150. Respondent and the Union had
a collective bargaining agreement that ran from January 1,
2011, to December 31, 2014 (Jt. Exh. 3). In November and
December 2014, they negotiated a new contract which runs
from January 1, 2014, to December 31, 2019 (Jt. Exh. 1).
ArcelorMittal and perhaps prior owners of the mill have
switched back and forth between a number of contractors doing
this furnace patching work. Minteq had the subcontract to
patch all three furnaces at Burns Harbor from about 1999 to
2009. Later a company named Nucon had the contract for the
three furnaces. Then Minteq recaptured the work for one fur-
nace and then for all 3. In the fall of 2014 ArcelorMittal gave
the work on one furnace to a company named Magnesita, on a
trial basis. Several of Minteq’s ”gunners,” Charles Spear, Den-
nis and Dustin Sharp and Nicholas Carrillo, went to work for
Magnesita.3
On or about September 29, 2014, Spear received a letter
from Minteq.4 It said in pertinent part that Minteq, Minerals
Technologies and its subsidiaries possess a great deal of confi-
dential business information and proprietary technology. It
gave as examples: data, formulas, know-how and processes.
The letter states that during Spear’s employment he had been
provided, or had access to, such information.
The letter stated further:
Both the law and any agreement you signed when you came
to work for the Company prohibit any use or disclosure of
such information after you leave. If you take employment
with a competitor of the company, it is especially important
that you take care not to violate your obligations to keep any
information confidential.
Minteq stated that it considers the material described in the
letter as its intellectual property and that it would not hesitate to
take legal action to protect it.
The letter did not specifically state that Spear was prohibited
from working for a competitor and was very unspecific as to
what he must not do to avoid being sued by Minteq.
However, Minteq sent Spear another letter on October 23,
2013 in which it stated:
By this letter we remind both you and MAGNESITA of your
obligation to refrain from working for a competitor of

3 Magnesita subsequently lost the contract and all 4 employees were
apparently laid off.
4 Spear does not recall the September 29 letter. However, it appears
that Respondent sent him a similar letter on October 17, followed by
the October 23 letter, which is discussed below.
MINTEQ for a period of eighteen months following the ter-
mination of your employment with MINTEQ. A copy of the
Non-Compete and Confidentiality Agreement you signed in
that regard is attached for your reference.
. . . This obligation means that you cannot work for
MAGNESTIA in any capacity in the areas of refractory or
metallurgical products or services until April 1, 2016.5
Spear applied for work with Minteq and Specialty Minerals
on January 24, 2013. Respondent offered Spear employment
on March 19, 2013, subject to drug screening, a physical and a
background check. He accepted the offer on Thursday, March
21 and reported to Minteq’s Portage, Indiana office for orienta-
tion the same day. During the two days of orientation, Spear
filled out forms, such as his W-4 and I-9 and underwent train-
ing on such matters as the OSHA requirements relevant to his
job. One of the forms he signed was the Non-Compete and
Confidentiality Agreement (NCCA) which contains the lan-
guage quoted above. Respondent did not explain or discuss the
agreement with Spear, it merely had him sign it.
Respondent paid Spear for the 17 hours he spent in orienta-
tion at the Portage office (Jt. Exh. 2). Minteq recorded Spear’s
time manually. On Monday, March 25, Spear reported to the
Arcelormittal Mill, clocked in and began his training in
Minteq’s procedures for “gunning” the blast furnaces. He re-
mained a probationary employee for 6 months (Jt. Exh. 1 and
3). Under the parties’ collective bargaining agreements, the
discharge, discipline or lay-off of a probationary employee was
not, and is not, a violation of the collective bargaining agree-
ment.
Although, the parties appear to believe that Spear’s status
when he signed the agreement to be important to this case (em-
ployee or job applicant), Minteq is apparently suing or threaten-
ing to sue other employees at common law who went to work
for Magnesita, for breach of their fiduciary duties to Minteq.
These employees began working for Minteq prior to 2012 and
therefore never signed a NCCA.
Respondent maintains the following rules and since 2012 has
required new employees to sign a Non-Compete and Confiden-
tiality Agreement that contains the following provisions that
allegedly violate the Act.

5 This prohibition emanates from Section 1.2 of the NCCA, which
was not the focus of the instant litigation (not mentioned in paragraph
V of the complaint; but possibly encompassed by paragraph VII). 1.2
entitled “competitive activities,” states that for 18 months following the
termination of his or her employment, an employee will not as an em-
ployee render services for any person or entity which engages in the
business of manufacturing, distribution or sale of products manufac-
tured, distributed or manufactured by the company at the time of the
employee’s termination . . . (elsewhere described as refractory prod-
ucts and application methods).
There is no evidence in this record that Minteq employees who were
hired by Magnesita, but whose employment with Minteq predated 2012
and the NCCA, received letters like that October 23 letter to Spear.
They apparently did not receive letters advising them that they were
prohibited from working for a competitor for 18 months. They received
letters dated October 17, which advised them that Respondent expected
them to maintain the confidentiality of much of the information they
had acquired while working for Minteq, R. Exhs. R3a –R3c.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
"Section 2: CONFIDENTIAL INFORMATION. Employee
will maintain in confidence and will not disclose or use, either
during or after the term of his or her employment, any propri-
etary or confidential information or know-how belonging to
the Company ("Confidential Information"), whether or not in
written form except to the extent required to perform duties
on behalf of the Company. Confidential Information refers to
any information not generally known in the relevant trade or
industry which was obtained from the Company, or which
was learned, discovered, developed, conceived, originated, or
prepared by me in the scope of my employment. Such Confi-
dential Information includes, but is not limited to, software,
technical, and business information relating to the Company
inventions or products, research and development, production
processes, manufacturing and engineering processes, ma-
chines and equipment, finances, customers, marketing, and
production and future business plans and any other infor-
mation which is identified as confidential by the Company.
Upon termination of Employee's employment, or at the re-
quest of the Employee's supervisor before termination, Em-
ployee will deliver to the Company all written and tangible
material in Employee's possession incorporating Confidential
Information or otherwise relating to the Company's business.
These obligations with respect to Confidential Information
extend to information belonging to customers and suppliers of
the Company which may have been disclosed to the Compa-
ny or to Employee as the result of his or her status as an em-
ployee of the Company...
Section 4: INTERFERENCE WITH RELATIONSHIPS Dur-
ing the Restricted Period [a period commencing on the date
hereof and ending eighteen months following termination of
Employee's employment with the Company for whatever rea-
son], Employee shall not, directly or indirectly, as employee,
agent, consultant, stockholder, director, partner or in any other
individual or representative capacity intentionally solicit or
encourage any present or future customer or supplier of the
Company to terminate or otherwise alter his, her, or its rela-
tionship with the Company in an adverse manner...
Section 12: AT- WILL -EMPLOYEE. Employee acknowl-
edges that this Agreement does not affect Employee's status
as an employee-at-will and that no additional right is provided
herein which changes such status.
Section 13: REMEDY. Any breach or violation by Employee
of the Agreement will result in immediate and irreparable in-
jury to the Company in amounts difficult to ascertain. There-
fore in the event of such breach or violation, employee agrees
the Company shall be entitled to proceed directly to court to
obtain the remedies of specific performance and injunctive re-
lief without the necessity of posting a bond or other undertak-
ings therewith.
Analysis
There are no material facts in dispute in this case. However,
there are a number of legal issues upon which Respondent takes
a markedly different view than the General Counsel and the
Union. These include whether the NCCA constitutes a manda-
tory subject of bargaining, whether the complaint is time barred
pursuant to Section 10(b) of the Act, whether Charles Spear
was an “employee” or “bargaining unit employee” when he
signed the NCCA, whether Respondent violated Section 8(a)(5)
and (1) by dealing directly with employees by insisting they
sign the NCCA during their new employee orientation and
whether Respondent violated Section 8(a)(1) in maintaining
certain sections (2, 4, 12, and 13) of the NCCA,
Also at issue is whether the Union waived its bargaining
rights with regard to the NCCA, by not demanding bargaining
about it in its November and December 2014 collective-
bargaining negotiations with Respondent.
Sections 2 and 13 of the NCCA are mandatory subjects of bar-
gaining
In some situations, I would conclude that a confidentiality
pledge is not a mandatory subject of bargaining and is exempt
from bargaining even if it arguably impacts the employment
relationship pursuant to First National Maintenance Corp. v.
NLRB, 452 U.S. 666, 679 (1981). This is the case, for example,
when the burden placed on the conduct of the employer’s busi-
ness far outweighs the benefit for labor-management relations
and the collective bargaining process.
An example would be if employees of Coca Cola (assuming
they were represented), who had knowledge of a new formula
for Coke, were required to sign a document promising not to
divulge that formula to anyone not authorized to know it—upon
pain of termination. Similarly, if Respondent were to inform its
employees and/ or job applicants that the formula for its “mon-
olithic product” is a trade secret and is not to be disclosed to
anyone outside the company, I believe that would be exempt
from bargaining. Such decisions would lie at the core of entre-
preneurial control and thus would not be mandatory subjects of
bargaining, Fibreboard Products v. NLRB, 379 U.S. 203
(1964).
However, in the instant case, I find that it is the ambiguity of
Respondent’s confidentiality rules that makes it a mandatory
subject of bargaining. Under the principles in Dubuque Pack-
ing Company, Inc., 303 NLRB 386 (1991), the issue of a bar-
gaining obligation focuses on whether the employer’s decision
is amenable to bargaining.6 While in some cases, such as the
Coca Cola example, the decision is clearly not amenable to
bargaining; in others it is. In the instant case the ambiguity of
the NCCA renders it particularly amenable to bargaining. It is
difficult to determine from the NCCA and the letters sent to
former Minteq employees what exactly they are prohibited
from doing. Bargaining with the Union might help to clarify
what Section 2 of the NCCA actually prohibits.
Section 2 forbids the new employee (or job applicant) to dis-
close confidential information during and after the term of his
or her employment. Thus, I assume an employee could be dis-
ciplined or fired for disclosing any information the Respondent
considers confidential or proprietary. Thus, section 2 clearly
impacts a term and condition of employment. The parties’
focus on whether Charles Spear or other persons were employ-

6 The Dubuque Packing decision is limited to employer decisions to
relocate work. However, it is useful to this case by analogy.
MINTEQ INTERNATIONAL, INC. 15
ees or merely applicants when they signed the NCCA is beside
the point—given the consequences of violating the terms of
section 2 during their employment with Minteq.7
Due to the ambiguity of Section 2, Section 13 could be rea-
sonably read to inflict punishment on an employee for engaging
in protected conduct. Thus, I conclude that Section 13 affects
terms and conditions of employment. Therefore, I find Section
13 is also a mandatory subject of bargaining. The Union and
employees are entitled to know just what sort of disclosures
will subject employees to injunctive relief.
Sections 4 and 12 of the NCAA are not mandatory subjects
of bargaining
The General Counsel appears to contend that all the provi-
sions of the NCCA are mandatory subjects of bargaining. I
conclude that Sections 4 (interference with relationships) and
12 (at-will employment) must be analyzed independently of
Sections 2 and 13. The issue of whether Sections 4 and 12 are
mandatory subjects of bargaining is closely related to whether
they are overly broad, i.e., could be reasonably interpreted to
chill employees’ section 7 rights. As I discuss below, I find
they cannot be so reasonably interpreted. Therefore, I find that
they do not pertain to the wages, hours and other terms and
conditions of employment of Minteq employees. As I result I
find these sections are not mandatory subjects of bargaining.
Moreover, as to section 12, the Union and Employer have bar-
gained over its subject matter and have agreed that new em-
ployees are probationary employees to whom the grievance
procedures of the collective bargaining agreement do not apply.
Thus, even if Section 12 were a mandatory subject of bargain-
ing, I conclude Respondent met its bargaining obligations.
With regard to section 4, the Board found in Mental Health
Services, Northwest, 300 NLRB 926 (1990), that an employer
violated the Act in insisting to impasse in bargaining on a per-
missive subject of bargaining. The proposal in question was a
provision prohibiting the Union from lobbying for measures
that would adversely affect the employer’s funding from Ham-
ilton County, Ohio. The provisions of Section 4 of the NCCA
are analogous to that in Mental Health Services, Northwest.
Unless section 4 “interference with relationships” is read to
affect section 7 rights, which I do not, I find that it a permis-
sive, rather than mandatory subject of bargaining.
The 10(b) issue
I conclude there is absolutely no merit to Respondent’s 10(b)
defense. Respondent began requiring new employees to sign
the NCCA during the new employee orientation in 2012.
Charles Spear signed the NCCA during his new employee ori-
entation in March 2013. The initial charge in this matter was
not filed until October 30, 2014, well beyond the 6-month peri-
od prescribed in Section 10(b). However, the six-month limita-
tion period does not begin to run until the party adversely af-

7 Additionally, by prohibiting employees from working for a com-
petitor under any condition in section 1.2, Respondent may have also
markedly compromised the bargaining power of its employees while
they worked for Minteq. However, since Section 1.2 was not fairly
litigated before me, I do not reach the issue of whether Respondent
violated the Act in unilaterally implementing it.
fected receives actual or constructive notice of the unfair labor
practice, Leach Corp., 312 NLRB 990 (1990). In this case, the
Union did not receive actual or constructive notice until Octo-
ber 2014, when Charles Spear brought the NCCA to the Un-
ion’s attention.
There is no evidence that any union official, including union
stewards, were aware of the NCCA prior to October 2014.
There was no reason for any union official to suspect the exist-
ence of the NCCA. The only employees who knew of its exist-
ence were the new employees who signed the NCCA. Even
those employees are likely not to have read the document or
have had any understanding of its significance.
Was Charles Spear an “employee” or “job applicant” when he
signed the NCCA?
In Star Tribune, 295 NLRB 543 (1989), the Board held that
applicants for employment are not employees with the meaning
of the collective bargaining obligations of the Act.8 Thus, the
Board found that the applicants for employment in that case
were not bargaining unit employees and thus the employer did
not have to offer the Union an opportunity to bargain about pre-
employment drug and alcohol testing. In Postal Service, 308
NLRB 1305 (1992), the Board held that the employer was not
required to bargain with its union over its hiring practices.
Whether or not Charles Spear was a bargaining unit employ-
ee when he signed the NCCA is not dispositive of this case.
Section 2 of the NCCA governed his conduct throughout his
employment with Minteq.
Waiver
Respondent argues that the Union waived its bargaining
rights by not requesting bargaining over the NCCA in the par-
ties’ November and December contract negotiations. I reject
this contention in that Respondent had presented the Union
with a fait accompli. It required a number of employees to sign
the NCCA prior to commencement of these negotiations. An
employer cannot implement a change and then claim that a
union waived its right to bargain by failing to do so retroactive-
ly, Intersystems Design Corp., 278 NLRB 759 (1986). “To be
timely, the notice must be given sufficiently in advance of actu-
al implementation of the change to allow a reasonable oppor-
tunity to bargain,” Ciba-Geigy Pharmaceuticals Division, 254
NLRB 1013, 1017 (1982), Pontiac Osteopathic Hospital, 336
NLRB 1021, 1023–1023 (2001).
The Alleged Overbroad Rules in Sections 2, 4, 12, and 13 of
the NCCA
The Board has held that an employer violates Section 8(a)(1)
when it maintains a work rule that reasonably tends to chill
employees in the exercise of their Section 7 rights, Lafayette
Park Hotel, 326 NLRB 824, 825 (1998). A rule is unlawful if
it explicitly restricts activities protected by Section 7. If this is
not true, a violation is established by a showing that 1) employ-
ees would reasonably construe the language to prohibit Section
7 activity; 2) that the rule was promulgated in response to pro-

8 However, job applicants are clearly “employees” within the mean-
ing of Sec. 2(3) of the Act. It is a violation of the Act to discriminate
against job applicants for engaging in protected activity,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
tected activity or 3) that the rule has been applied to restrict the
exercise of Section 7 rights, Lutheran Heritage Village-Livonia,
343 NLRB 646, 647 (2004).
Sections 2, 4, 12, and 13 of the NCCA do not explicitly re-
strict protected activity and were not applied to restrict protect-
ed activity. Since they were not promulgated in response to
protected activity, these sections could only be considered vio-
lative if an employee could reasonably construe them to prohib-
it Section 7 activity. While it is possible that an employee
could construe Sections 4 and 12 to inhibit protected activity,
such a reading would not be reasonable.
Sections 2 and 13, however, are in an entirely different cate-
gory. Section 2 is so ambiguous that an employee could rea-
sonably read it to prohibit protected activity. The catchall
phrase “any other information which is identified as confiden-
tial by company” could reasonably be read to include wages
and benefits. Given the fact that Section 13 threatens the em-
ployee with punishment for anything Minteq decides is confi-
dential, I find that Sections 2 and 13 restrain employees in the
exercise of their Section 7 rights and violate Section 8(a)(1).
On the other hand, it would be quite an extrapolation from
Section 4 to conclude that employees were prohibited, for ex-
ample, from striking, because it would interfere with Minteq’s
relationship with suppliers or customers. Similarly, if any em-
ployee, or employees, seeks the aid of a customer or supplier in
a labor dispute, they are not seeking to get that company to
terminate or alter that company’s relationship with Minteq.
The employees would be seeking rather to enlist the support of
the customer or supplier in altering the relationship between
Minteq and the employees.
Section 12 merely advises the new hire that he or she is an
at-will employee and that nothing in the NCCA affects that
status. Under the collective bargaining agreement, an employ-
ee is an at-will employee for the first 6 months of his or her
employment with Minteq. There is nothing in Section 12 that
reasonably would lead an employee to conclude that he or she
is waiving his or her Section 7 rights (assuming that he or she is
aware that they have such rights). Even employees who are at-
will employees throughout their employment retain their Sec-
tion 7 rights.
Direct Dealing
An employer violates Section 8(a)(5) and (1) by dealing di-
rectly with represented employees under the following condi-
tions: (1) the employer communicates directly with union-
represented employees; (2) the communication concerned es-
tablishing wages, hours and/or other terms and conditions of
employment, or undercutting the Union’s role in collective
bargaining; and 3) such communication was made to the exclu-
sion of the Union, El Paso Electric Co., 355 NLRB 544 (2010).
As the first condition, whether or not individuals were bargain-
ing unit employees when they signed the NCCA is irrelevant.
That is because the NCCA impacted their rights while they
were covered by the parties’ collective bargaining agreement.
As to condition number 2, signing the NCCA subjected the
individual to discipline or termination during his employment.
As to condition (3) Respondent excluded the Union in its com-
munications with employees concerning the NCCA. Finally,
by imposing a condition of employment on bargaining unit
members of which the Union was unaware, Respondent under-
cut the Union’s role as these employees’ collective-bargaining
representative. Thus, Respondent engaged in unlawful direct
dealing in requiring new employees to sign the NCCA.
CONCLUSION OF LAW
Respondent violated Section 8(a)(5) and (1) by unilaterally
requiring new employees to sign Sections 2 and 13 of its non-
compete confidentiality agreement and dealing directly with
new employees in imposing this requirement.
Respondent is violating Section 8(a)(1) and the Act in main-
taining the rules set forth in Sections 2 and 13 of the NCCA.
REMEDY
Having found that the Respondent has violated the Act by
failing to notify and offer the Union an opportunity to bargain
concerning the imposition of the requirement that all new em-
ployees sign and abide by Sections 2 and 13 of its non-compete
and confidentiality agreement, it shall cease and desist and take
certain affirmative action necessary to effect the policies of the
Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, Minteq, International, Inc., and Specialty
Minerals, wholly owned subsidiaries of Mineral Technologies,
Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally announcing and implementing Sections 2
and 13 of its Non-Compete and Confidentiality Agreement
(NCCA).
(b) Bypassing the Union and dealing directly with employ-
ees in the “gunner” bargaining unit regarding the terms and
conditions of their employment.
(c) Maintaining the rules set forth in Sections 2 and 13 of
the NCCA.
(d) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind Sections 2 and 13 of its Non-Compete and Con-
fidentiality Agreement.
(b) Upon request, bargain with the Union over Sections 2
and 13 of the Non-Compete and Confidentiality Agreement.
(c) Make whole all employees adversely affected by the un-
lawful implementation of Section 2 and 13 of the Non-Compete
and Confidentiality Agreement
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
MINTEQ INTERNATIONAL, INC. 17
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at all its
subject to the non-compete and confidentiality agreement cop-
ies of the attached notice marked “Appendix.”10 Copies of the
notice, on forms provided by the Regional Director for Region
13, after being signed by the Respondent’s authorized repre-
sentative, 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, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent customarily communicates 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. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent 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 January 1, 2012.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., December 23, 2015.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT bypass the Union and deal directly with
represented employees regarding their wages or other
terms and conditions of employment.
WE WILL NOT unilaterally and without bargaining with the
Union impose and require as a condition of employment that
employees or job applicants sign a Non-Compete and Confi-
dentiality Agreement that contains language similar to Section
2 and 13 of our current Non-Compete and Confidentiality
Agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind the unilateral changes in Sections 2 and 13
of our current Non-Compete and Confidentiality Agreement.
WE WILL, on request, bargain with the Union about our deci-
sion and effects of our decision to implement Sections 2 and 13
of current Non-Compete and Confidentiality Agreement.
MINTEQ INTERNTIONAL, INC., AND SPECIALTY
MINERALS, INC., WHOLLY OWNED SUBSIDIARIES OF
MINERAL TECHNOLOGIES, INC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/13-CA-108215 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.