Plainville Ready Mix Concrete Co.

National Labor Relations Board - Board Decisions

Nov 27, 1992

309 N.L.R.B. 581 (N.L.R.B. 1992)

578
311 NLRB No. 90
PLAINVILLE READY MIX CONCRETE CO.
1 On June 30, 1992, Administrative Law Judge Robert W. Leiner
issued the attached decision. The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
1 The underlying unfair labor practice charges, filed by Truck-
drivers, Chauffeurs and Helpers Local Union No. 100, I.B.T. (the
Union), were served, respectively, on August 29, 1989 (Case 9–CA–
26777) and March 1, 1990 (Case 9–CA–27320).
Plainville Ready Mix Concrete Co. and Truck-
drivers, Chauffeurs and Helpers Local Union
No. 100, affiliated with the International Broth-
erhood of Teamsters, AFL–CIO. Cases 9–CA–
26777 and 9–CA–27320
November 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case involves the issue of whether the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
implementing, after impasse, portions of its final offer
regarding wages and medical benefits.1
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Plainville Ready Mix Con-
crete co., Batavia, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Deborah Jacobson, Esq., for the General Counsel.
Raymond D. Neusch, Esq. (Frost & Jacobs), of Cincinnati,
Ohio, for the Respondent.
Bruce Pence, Esq. (Logothetis & Pence), of Dayton, Ohio,
for the Union/Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard on March 5, 1992, in Cincinnati,
Ohio, on the General Counsel’s consolidated complaint,
dated April 5, 1990,1 thereafter amended on April 13, 1990,
and at the instant hearing. The complaint, in substance, al-
leges that Respondent, in violation of Section 8(a)(1) and (5)
of the Act, following a lawful impasse, unlawfully imple-
mented certain mandatory subjects of bargaining which im-
plementations were changes in terms and conditions of em-
ployment not encompassed in Respondent’s prior offers
made to the Union during the negotiations and were imple-
mented without having afforded the Union an opportunity to
bargain on such changes. Respondent filed timely answer to
the complaint wherein Respondent admitted certain allega-
tions, denied others and denied the commission of unfair
labor practices.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses,
submit oral and written evidence, and to argue on the record.
At the close of the hearing, the parties waived final argument
and reserved the right to submit posthearing briefs.
Posthearing briefs were submitted by Respondent and the
General Counsel and have been duly considered in the light
of the record as a whole.
Upon the entire record, including the briefs, and from my
particular observation of the demeanor of the witnesses as
they testified, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges, Respondent admits, and I find that
at all material times Respondent, a corporation with a prin-
cipal office and place of business in Batavia, Ohio, has been
engaged in the manufacture, distribution, and sale of ready-
mix concrete. During the 12-month period ending April
1990, in the course and conduct of its business operations,
Respondent sold and shipped from its Batavia, Ohio facility
products, goods, and materials valued in excess of $50,000
directly to points outside the State of Ohio. Respondent con-
cedes, and I find, that it has been and is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find, that
at all material times Truckdrivers, Chauffeurs and Helpers
Local Union No. 100, affiliated with the International Broth-
erhood of Teamsters, AFL–CIO (the Union), has been and is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Following issuance of the April 5, 1990 consolidated com-
plaint and Respondent’s timely April 19, 1990 answer, the
parties, in January 1991, entered into a stipulation of facts
concerning the events surrounding the allegations of the com-
plaint. As a result of the execution of the stipulation of facts,
and a settlement agreement removing from the consolidated
complaint certain allegations of 8(a)(1) conduct, the parties,
on or about January 24, 1991, moved to submit the plead-
ings, the settlement of the 8(a)(1) allegations, and the stipula-
tion of facts, without oral testimony or hearing before an ad-
ministrative law judge, directly to the Board for findings of
fact, conclusions of law, and issuance of a Board Decision
and Order (G.C. Exh. 1(y)).
On March 14, 1991, the Board issued an order granting
the parties’ motion, approving the stipulation, and transfer-
ring the proceedings directly to the Board (G.C. Exh. 1(z)).
The parties thereafter submitted timely briefs to the Board
defining the issue presented as whether Respondent violated
Section 8(a)(5) of the Act by unilaterally implementing, after
impasse, only portions of its final offers.
579PLAINVILLE READY MIX CONCRETE CO.
On August 12, 1991, however, the Board issued an order
in which it revoked its prior approval of the stipulation and
directed a remand of the record to the Regional Director for
further appropriate action, ‘‘including direction of a hearing
before an administrative law judge’’ (G.C. Exh. 1(AA)). In
the remand order, the Board stated:
Specifically, the Board finds that further evidence re-
flecting Respondent’s contemporaneous objective mani-
festations of intent in making its proposals for em-
ployee compensation and medical insurance coverage is
necessary to determine whether the proposals on each
bargaining subject were put forth as separate items or
as a comprehensive, integrated whole.
Appended to the remand order is the Board’s direction to
‘‘contrast Presto Casting Co., 262 NLRB 346 (1982), with
Emhart Industries, 297 NLRB 215 (1989).’’ Although Mem-
ber Devany did not dissent from the Board’s decision to re-
voke and remand, he did not pass on the relevance of evi-
dence reflecting Respondent’s intent in making its proposals.
Following the Board’s remand order, the Acting Regional
Director for Region 9, on December 4, 1991, issued an order
rescheduling hearing to March 5, 1992, in Cincinnati, Ohio.
In presided at that hearing on that date.
At the hearing, the parties agreed, notwithstanding the
Board’s prior revocation of acceptance of the stipulation, to
continue their adherence to the stipulation of facts (Tr. 17–
18; R. Br. 3). In addition, at the hearing, the General Coun-
sel formally withdrew the 8(a)(1) allegations which had been
previously the subject of a settlement (Tr. 15).
Respondent’s answer to the consolidated complaint, con-
tradicting the General Counsel’s allegations concerning the
appropriate unit, concedes that the appropriate unit is that
which existed in the parties’ expired collective-bargaining
agreement (covering the period July 1, 1985, through January
31, 1988):
All ready mixed drivers, yard employees, and mechan-
ics, employed at the Employer’s ready mixed concrete
plants located [in Cincinnati, Ohio; Batavia, Ohio; and
Wilder, Kentucky] but excluding all office employees,
clerical employees, sales employees, guards, plant man-
agers, assistant plant managers and supervisors as de-
fined in the National Labor Relations Act.
Respondent further admits that for many years prior to
1985, the Union had been the exclusive collective-bargaining
representative in the aforesaid appropriate unit and had been
recognized as such by Respondent. Respondent further ad-
mits that the recognition of the Union was most recently em-
bodied in their collective-bargaining agreement effective July
1, 1985, through January 31, 1988. I find that the appropriate
unit is that which Respondent defines and concedes.
Lastly, Respondent’s answer admits that on or about May
1, 1989, following good-faith impasse, Respondent made the
following changes in the terms and conditions of employ-
ment of its unit employees: (a) eliminated the ‘‘gain shar-
ing’’ and ‘‘incentive pay’’ plans; and (b) implemented a dif-
ferent medical insurance plan.
B. The Stipulation of Facts
The stipulation of facts, executed by the parties on and be-
tween January 3 and 9, 1991, to which, as above noted, the
parties expressly adhered at the hearing, provides:
1. Truck Drivers, Chauffeurs & Helpers Local Union 100,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO (the Union) has represented a unit of ready-mix drivers,
yard employees, and mechanics employed by Plainville
Ready Mix Concrete Co. (the Employer) at the Employer’s
locations since the 1960s. Currently, the unit is composed of
approximately 40 employees who work at the Employer’s lo-
cations in Batavia, Ohio, and Wilder, Kentucky. The most
recent collective-bargaining agreement between the parties
expired by its terms on January 31, 1988. There has been no
collective-bargaining agreement between the parties since
that date.
2. Under the most recent agreement, class A mechanics
with 2 or more years’ service were paid $11.27 per hour ef-
fective June 1, 1987. Class A mechanics with fewer than 2
year’s service were paid $11 per hour effective June 1, 1987.
All other employees with 2 or more years’ service were paid
$10.27 per hour effective June 1, 1987, and all other employ-
ees with fewer than 2 years’ service were paid $10 per hour
effective June 1, 1987.
3. Prior to the expiration date of the agreement, the parties
met on January 12, 19, 22, and 25, 1988, to negotiate a new
agreement. During these negotiations, the Employer proposed
a reduction in the hourly wage rate for all classifications.
The Employer also proposed gain sharing and incentive pay
plans which were not terms of the existing collective-bar-
gaining agreement. The proposed gain sharing and incentive
plans were offered in conjunction with the proposed reduc-
tion in the hourly wage rate for all classifications.
4. On February 10, 1988, in its proposal 5, the Employer
made its final offer to the Union. That offer provided for an
hourly wage rate of $9.23 in each year of a 3-year contract
for all employees with fewer than 2 years’ service and an
hourly wage rate of $9.50 per hour in each year of a 3-year
contract for employees, except for class ‘‘A’’ mechanics,
with 2 years or more of service. The Employer’s final offer
also included the gain sharing and incentive pay plans. The
Union rejected the Employer’s final offer and an impasse in
bargaining was reached at the meeting on February 10, 1988.
On March 7, 1988, the Employer implemented its final offer.
5. The parties met again on April 22 and May 25, 1988.
During the April 22, 1988 meeting, in its proposal 6, the
Employer proposed improvement in its medical insurance
plan and the institution of a prescription drug card in addi-
tion to the items offered in its proposal 5. During the May
25, 1988 meeting, in its proposal 7, the Employer proposed
an improvement in holiday pay, in addition to the items of-
fered in its proposal 6. All of these proposals were rejected
by the Union.
6. On April 21, 1989, the parties met again for further ne-
gotiation. At that meeting, the Employer offered its proposal
8, which included an increase in the hourly wage rate imple-
mented on March 7, 1988. The higher wage rate proposal
was offered by the Employer in conjunction with the pro-
posal to eliminate the gain sharing and incentive pay plans
implemented on March 7, 1988. Under this proposal, class
A mechanics with more than 2 years’ service would earn an
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hourly rate of $10.50 for the period from May 1, 1989,
through January 31, 1992. All other employees with more
than 2 years of service would earn $9.75 per hour effective
May 1, 1989, $10 per hour effective September 1, 1989, and
$10.25 per hour effective January 1, 1990. Class A mechan-
ics with fewer than 2 years’ service would earn $10.23 per
hour during the terms of the agreement and all other employ-
ees with fewer than 2 years’ service would earn $9.48 per
hour effective May 1, 1989, $9.73 per hour effective Septem-
ber 1, 1989 and $9.98 per our effective January 1, 1990. The
Employer also proposed changes to the existing health plan
and the addition of a prescription drug card. The new agree-
ment would expire on January 31, 1992. The Union rejected
the Employer’s proposal 8 and impasse was reached at the
meeting on April 21, 1989. The Union indicated to the Em-
ployer at the meeting that it would not submit the proposal
to the membership for a vote. The Union requested that the
gain sharing be paid to the employees on a pro rata basis for
1989 and the Employer agreed to this request and has made
such payments.
7. On May 1, 1989, the Employer implemented portions
of the offer made at the April 21, 1989 meeting. Hourly
wage rates remained as implemented by the Employer on
March 7, 1988. The Employer did not pay the May 1 and
September 1, 1989, and January 1, 1990 pay raises as pro-
posed in its offer on April 21, 1989. The Employer elimi-
nated the gain-sharing and incentive pay plans as proposed
in its offer on April 21, 1989. The agreement to pay the gain
sharing on a pro rata basis or 1989 was implemented. The
Employer implemented certain of the changes in the health
plan it had proposed to the Union on April 21, 1989, but did
not implement other provisions of the plan, including the
prescription drug card, voluntary vision care plan and emer-
gency care plan as proposed at the meeting.
8. (The parties attached to the stipulation the following
documents which they believed to be relevant to the disposi-
tion of this matter):
a. The collective-bargaining agreement between the Em-
ployer and the Union, effective dates June 1, 1985, to Janu-
ary 31, 1988.
(b) Employer proposal 5 dated February 10, 1988, with at-
tachments on Gain Sharing, Incentive Pay, and Retirement
Savings Plan.
(c) Employer’s letter to employees dated March 7, 1988,
titled Important Changes in Working Conditions.
(d) Employer proposals 6, dated April 22, 1988, with at-
tachment on Changes to New Health Plan.
(e) Employer proposal 7, dated May 25, 1988, with attach-
ment on Holidays.
(f) Employer proposal 8, dated April 21, 1989, with at-
tachments on Health Insurance.
(g) Employer letter to employees dated May 1, 1989, titled
Important Changes in Working Conditions.
C. Testimony at the Hearing
Although most of the testimony taken at the hearing was
merely repetitive of that which appeared in the above stipula-
tion, there is no dispute that the central issue regarding
wages and Respondent’s implementations related to unit em-
ployees (particularly drivers) with more than 2 years of serv-
ice. Little, if any, testimony was directed towards mechanics
(whether class ‘‘A’’ or class ‘‘B’’) or employees with less
than 2 years of service with Respondent.
Thus on five occasions prior to the January 31, 1988 expi-
ration of the existing 3-year collective-bargaining agreement,
the parties negotiated for a new agreement. On these occa-
sions and thereafter, Respondent made no secret of its desire
to reduce unit employees’ fixed wages in order to compete
successfully in the market. As early as the January 22, 1988
meeting, however, when Respondent proposed a reduction in
the hourly rate of drivers (with 2 years’ service) to $9 per
hour in the first year of a new contract, it offered to include,
for the first time, ‘‘gain sharing’’ and ‘‘incentive pay’’ plans
as part of the remuneration delivered to unit employees. Re-
spondent told the Union that these plans would make it pos-
sible for employees to recoup some of the wage reduction
(R. Br. 3). The Union’s bargainer (General Counsel’s witness
at the hearing), Squire T. Griffin Jr., credibly testified (Tr.
42) that Respondent’s bargainer (Attorney James Lawrence)
used the expression ‘‘total package deal’’ in describing the
inclusion of ‘‘gain sharing’’ and ‘‘incentive pay’’ along with
wages. Respondent’s January 22, 1988 proposal on ‘‘wages’’
(G.C. Exh. 2, p. 2) defines the inclusion of gain sharing and
incentive pay as an amendment to the existing collective-bar-
gaining agreement’s section on ‘‘wages’’ (art. 22).
Gain Sharing is defined by Respondent (G.C. Exh. 2, p.
2) as a unitwide bonus system designed to reward eligible
participants for improved performance which exceeds estab-
lished standards. The fund out of which gain sharing divi-
dends (to full-time employees) would be paid would flow
from the Employer’s determination of the net savings and
losses from operations concerning (a) liability insurance, (b)
fleet maintenance, (c) plant maintenance, and (d) driver effi-
ciency. Any net savings would be shared between Respond-
ent and the employees annually on a 50-percent basis.
Incentive Pay is defined as a plan based on ‘‘yards of con-
crete’’ delivered compared to a standard determined by Re-
spondent. The employees who meet the standard would re-
ceive a 40-cent per hour increase in wages; and those em-
ployees who function 5, 10, or 15 percent above the standard
would receive hourly wage increases of 50, 60, and 75 cents
per hour on a weekly basis.
Respondent, as above noted, told the Union during 1988
bargaining (1) that the gain sharing and incentive plans were
methods by which the Respondent’s proposed decrease in
wages might at least, in part, be made up for if economic
conditions permitted (Tr. 124–125); and (2) attempted to
demonstrate to the Union that although the employees would
be working at a reduced fixed hourly rate, the total economic
proposal, including gain sharing, and incentive pay, would
‘‘equal or exceed’’ what the employees were then earning at
the fixed rate of $10.27 per hour (Tr. 42–43). In one of the
collective-bargaining sessions (Attorney Lawrence placed it
as the session of January 22, 1988 (Tr. 121)), Respondent
stated that the employees who were then earning $10.27 an
hour might earn as much as $10.67 or $10.70 per hour (Tr.
47). The Union said that it wanted a fixed wage rate instead
of the gain sharing and incentive plans especially in view of
a possible recession when building activity might slacken
(Tr. 57). In that situation, the Union realized that the em-
ployees would be working for no more than the fixed rate
of $9.50 per hour (Tr. 57).
581PLAINVILLE READY MIX CONCRETE CO.
At the same time, Respondent proposed a new, self-in-
sured health insurance plan. The Union continually proposed
a return to the Teamsters health insurance plan (Tr. 71).
By the bargaining session of February 10, 1988, the Re-
spondent was offering a wage rate of $9.50 per hour for the
period 1988 through 1990, the self-insured health insurance
plan the gain sharing plan, the incentive pay plan and a re-
tirement savings plan (Jt. Exh. 2). The Union rejected this
final offer and, on March 7, 1988, after impasse, Respondent
implemented the final offer and so notified the employees
(Jt. Exh. 3).
In bargaining on April 22, 1988, the employer offered to
make changes in the existing self-insured health insurance
plan including broadening coverage, a drug card to be used
by unit employees and elimination of the deductible for hos-
pital admissions. Notwithstanding an offer of a bonus of a
week’s pay for the union to accept the otherwise existing
terms, the union rejected this April 22 offer (Jt. Exh. 4).
On May 25, Respondent further sweetened its offer (main-
taining the $9.50 per hour fixed wage rate together with gain
sharing incentive pay, retirement plan, and a signing bonus)
by offering pay for the six holidays which the Company ob-
served and previously did not pay for (compare: Jt. Exh. 2,
art. 21, with Jt. Exh. 5, p. 2). The Union nevertheless re-
jected the May 25, 1988 offer.
Finally, on April 21, 1989, thus about a year after the last
prior negotiation, the parties met for further negotiations. At
that session, as the stipulation observes, Respondent offered
its proposal 8 which included an increase in the existing
$9.50 hourly wage rate. The Union had repeatedly rejected
Respondent’s wage offer containing the incentive plan and
the gain-sharing plan and insisted on a fixed rate. Respond-
ent’s new, higher fixed wage rate proposal, according to the
union bargainer, was offered by Respondent ‘‘in lieu of’’ the
gain sharing plan and the profit sharing (Tr. 62). Such testi-
mony is not inconsistent with the Stipulation which notes
that the ‘‘higher wage rate proposal was offered by the Em-
ployer in conjunction with the proposal to eliminate that gain
sharing incentive pay plan implemented on March 17, 1988
(stipulation, par. 6). In substance, the new, higher fixed wage
rate proposal would provide for employees with in excess of
2 years of service a series of 25-cent-an-hour increases with
a starting rate of $9.75 per hour (effective May 1, 1989); $10
per hour (effective September 1, 1989); and $10.25 per hour
(effective January 1, 1990). The face of company proposal
8, dated April 21, 1989 (Jt. Exh. 6) shows, in addition to the
25-cent-an-hour increase to $9.75 per hour, the elimination of
both the gain sharing plan and the incentive pay plan, effec-
tive April 30, 1989. Respondent also proposed changes in the
health plan, some of which were improvements in benefits
and some of which were disadvantageous to the employees.
Among the beneficial items in the proposed health plan
changes, were a vision care plan, a prescription card, and
emergency care benefits (Jt. Exh. 6, pp. 2–3).
During the April 21, 1989 bargaining, Respondent again
offered the paid holiday element which had been rejected in
the May 25, 1988 negotiations. The Union continued to insist
on the reestablishment of the Teamsters health plan but Re-
spondent rejected that proposal and insisted on continuing a
self-administered plan.
At no time during this bargaining session did Respondent
propose to eliminate gain-sharing plan and incentive pay plan
without proposing the increase in fixed wages (Tr. 62). The
Union inquired, during this session, whether Respondent
would pay the gain sharing on a prorata basis through April
30, 1989, regardless whether the employees voted to accept
this Respondent final offer. Respondent agreed to this re-
quest. Thereafter, the Union rejected Respondent’s final offer
and reached impasse on April 21, 1989.
On April 24, 1989, Respondent distributed to its employ-
ees a memorandum informing them of the terms of its April
21 final offer. It noted that the Union’s ‘‘primary concerns’’
were ‘‘a fixed wage increase in lieu of gain sharing and in-
centive pay, holiday pay and a better health plan’’ (G.C.
Exh. 3). The memorandum also notes that Respondent of-
fered three, 25-cent-per-hour wage increases commencing
May 1 and September 2, 1989, and January 1, 1990; the
dropping of gain sharing and incentive paid plans; the offer
to pay for six holidays; and improvements in the health plan
including a prescription drug card with small deductibles for
each prescription (G.C. Exh. 3).
Respondent then admits (R. Br. p. 4–5) that on May 1,
1989:
Respondent implemented . . . those parts of its final
offer that included the elimination of the gain sharing
and incentive pay plans and certain of the disadvanta-
geous changes in the health plan. Respondent did not
implement the wage increase it had proposed nor did it
implement certain improvements to the health plan that
it had proposed including a prescription drug card, vol-
untary vision care and emergency care.
As the General Counsel observes (Br. p. 4) the actual im-
plementation was the retention of the existing base hourly
rate of $9.50 per hour (the wage rate unilaterally imple-
mented in 1988 which had been accompanied by the gain
sharing and incentive pay plans) but elimination of both gain
sharing and incentive pay without granting the wage in-
creases it had proposed ‘‘in lieu of’’ those plans.
With respect to the implemented health care plan, as the
General Counsel observes, Respondent implemented portions
of its medical insurance package which represented addi-
tional cost to employees or limitations of benefits. Respond-
ent refers to these as ‘‘disadvantageous changes in the health
plan’’ (R. Br. pp. 4–5). These included increases in
deductibles and copayments, and employee contribution of
$10 a week for single coverage and limitations on the drug
and alcohol treatment and psychological treatment benefits
(G.C. Br. p. 4). Respondent did not implement those portions
of its health plan representing benefits to employees: the pre-
scription drug card, a voluntary vision care plan, and an
emergency care plan.
Discussion and Conclusions
The Board’s remand order is based on the Board’s view
that it required ‘‘further evidence’’ reflecting Respondent’s
contemporaneous objective manifestations of intent in mak-
ing its proposals for employee compensation and medical in-
surance coverage. The face of the remand order further dem-
onstrates that the purpose of any such ‘‘further evidence’’ is
to enable the Board to ‘‘determine whether the proposals on
each bargaining subject were put forth as separate items or
as a comprehensive, integrated whole.’’ If the latter, then a
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I agree with the General Counsel that I am, of course, bound by
the Board’s position regardless of lack of enforcement in the circuit
until such time as the Board may acquiesce in the circuit’s position.
Iowa Beef Packers, 144 NLRB 615 (1963).
3 The Supreme Court’s underlying formulation was originally that
there is no unfair labor practice where the unilateral change is the
same proposal as preimpasse but has been left unaccepted or re-
jected, NLRB v. Crompton-Highland Mills, 337 U.S. 217, 224
(1949). The ‘‘reasonably comprehended’’ standard derives form the
later NLRB v. Katz, 369 U.S. 736 (1962). There is no question, and
it is not in dispute, that in postimpasse implementation, an employer
need not implement all of its preimpasse proposals. Bi-Rite Foods,
147 NLRB 59 (1964), but the question of what may be implemented
persists. See NLRB v. McClatchy Newspapers, 140 LRRM 2249
(D.C. Cir. 1992).
fragmented implementation would be inconsistent with its
prior offers to the Union, thus not affording an opportunity
to bargain on the changes. If the former, then the implemen-
tation would be ‘‘reasonably comprehended’’ within the
preimpasse proposals. See generally NLRB v. Katz, 369 U.S.
736 (1962); compare: Winn-Dixie Stores v. NLRB, 567 F.2d
1343, 1349–1350 (5th Cir. 1978), with Emhart Industries v.
NLRB, 907 F.2d 372 (2d Cir. 1990).
D. Respondent’s May 1, 1989 Wage Implementation
Violated Section 8(a)(5) of the Act
Respondent cites Hi-Way Billboards, 206 NLRB 22, 23
(1973), for the following unassailable proposition (R. Br. p.
13):
Once a genuine impasse is reached, the parties can con-
currently exert economic pressure on each other, the
union can call for a strike, the employer can engage in
a lockout, make unilateral changes in working condi-
tions if they are consistent with the offers the Union
has rejected, or hire replacements to counter the loss of
striking employees [emphasis supplied].
Respondent further relies on Emhart Industries v. NLRB,
907 F.2d 372 (2d Cir. 1990). The Second Circuit in that case
denied enforcement of the Board’s underlying position in
Emhart Industries, 297 NLRB 215 (1989).2
In Emhart Industries v. NLRB, supra, the court (and the
Board) were concerned with an employer’s offer of a com-
prehensive reinstatement procedure for returning striking em-
ployees. Among the elements, if not the principal element,
of this procedure, was a provision relating to reinstatement
by plantwide seniority. In that case, the employer’s proposal
was rejected by the union and the employer unilaterally im-
plemented only so much of the offer as related to plantwide
seniority. Both the court and the Board found that the em-
ployer and the union had bargained to good-faith impasse
prior to unilateral implementation. The Board found, accord-
ing to the court, that reinstatement by plantwide seniority re-
flected only a relatively small part of the comprehensive
strike settlemment plan proposed by the employer prior to
impasse and differed significantly from both its own proposal
and its ultimate agreement with the Union. For these reasons,
the Board concluded that the reinstatement procedure was
not reasonably comprehended within the employer’s
preimpasse proposals, Emhart Industries v. NLRB, supra.
Not using the Hi-Way Billboard, supra, formulation that
the unilaterally implemented changes are lawful ‘‘if they are
consistent with the offers the union has rejected,’’ the court
invokes the NLRB v. Katz, supra, standard: that the proposal
must be ‘‘reasonably comprehended’’ within the earlier of-
fers to the union.3 The court, finding that Emhart’s plantwide
seniority reinstatement procedure was ‘‘an explicit part’’ of
its preimpasse proposal, rejected the Board’s finding that it
was only a ‘‘relatively small part of a comprehensive sys-
tem’’ and, refusing to enforce the Board’s finding, held that
plantwide seniority was ‘‘reasonably comprehended’’ within
the rejected offer and not unlawful. The court of appeals in
Emhart Industries v. NLRB, supra, further states:
This case thus differs significantly from cases in which
an employer unlawfully institutes a change that was not
included in its pre-impasse proposal, see Peerless Roof-
ing Co. v. NLRB, 641 F.2d 734 (9th Cir. 1981) or im-
poses a wage increase higher or lower than one pre-
viously offered. See Katz, 369 U.S. at 745 . . .; NLRB
v. Crompton-Highland Mills, Inc., 337 U.S. 217 (1949);
Winn-Dixie Stores, Inc. v. NLRB, 567 F.2d 1343, 1349–
50 (5th Cir. 1978), modified on other grounds, 575
F.2d 1107, cert. denied, 439 U.S. 985 (1978). Instead,
the case bears similarity to one in which an employer
lawfully implemented the wage portions but not the
benefit portions of its final pre-impasse offer. ‘‘In view
of the nature of an impasse,’’ the Board held in that
case, ‘‘there is no requirement that an employer who
implements some of its proposals, must implement his
entire proposal.’’ Presto Casting Co., 262 NLRB 346
(1982), enforced in part and denied in part on other
grounds, 708 F.2d 495 (9th Cir. 1983); cert. denied 464
U.S. 994 . . . .
Thus in Emhart Industries v. NLRB, supra, the court cites
Winn-Dixie Stores v. NLRB, 567 F.2d 1343 (5th Cir. 1978),
as an example of unlawful unilateral implementation; imple-
mented elements not included in the preimpasse proposal. In
Winn-Dixie Stores, supra, the unilaterally implemented wages
were both higher and lower than the offer which lead to im-
passe. Thus the implemented wage increases, according to
that court, Winn-Dixie Stores v. NLRB, supra, were thus
‘‘significantly different’’ from those proposed to and rejected
by the collective-bargaining representative. In Winn-Dixie
Stores, the employer went to impasse with the Union on a
proposed wage increase of 5.5 percent. It implemented, how-
ever, wage increases of 4.11 percent to 6.23 percent. The
Board, as the court noted, found that the ‘‘increases granted
by the company differed significantly from the 5.5% increase
the company had proposed to the union in their negotiating
sessions,’’ Winn-Dixie Stores v. NLRB, supra. Affirming the
Board, the court held that ‘‘implementing changes signifi-
cantly different from those proposed to and rejected by [the
union] is tantamount to implementing changes without noti-
fying the union of the proposed changes. Cf. NLRB v. Katz,
369 U.S. 736. ‘‘[With] respect to the changes actually imple-
mented, the union had neither notice nor an opportunity to
respond.’’
In the instant case, the Union demanded, and Respondent
offered, a ‘‘fixed wage increase in lieu of gain sharing and
incentive pay’’ (G.C. Exh. 3). The two supplementary plans,
on this record, were integral to the existing ‘‘wages’’ of unit
583PLAINVILLE READY MIX CONCRETE CO.
employees. In substance, Respondent offered $9.75 per hour
for the first 4 months, $10 per hour starting September 1,
1989, and $10.25 per hour commencing January 1, 1990, to-
gether with the elimination of gain-sharing and the incentive
pay plans commencing with the new contract. Respondent
implemented at the existing, retained hourly rate for drivers
at $9.50 per hour and eliminated the gain sharing and incen-
tive pay plans. The plans, on this record, were instituted as
a wage device to help escape the reduced fixed wage rate in
1988. The elimination of these plans in 1989 was, I find, ac-
cording to the intent of the parties, entirely conditional upon
the Union’s acceptance of a fixed rate. Respondent’s May
1989 implemented wage level ($9.50 per hour) was never of-
fered to, considered by, or even rejected by the Union. The
implemented rate of $9.50 an hour together with the elimi-
nation of the plans formed no part of any Respondent collec-
tive-bargaining offer and therefore played no part in any
union consideration or rejection and played no part in the im-
passe. In substance, therefore, rather than coming within the
line of cases, including Presto Casting Co., 262 NLRB 346
(1982), i.e., the lawful implementation of part but not all of
the preimpasse offer, this case comes within the forbidden
area of Peerless Roofing Co. v. NLRB, 641 F.2d 734 (9th
Cir. 1981), Winn-Dixie Stores v. NLRB, 567 F.2d 1343, and
ultimately NLRB v. Katz, 369 U.S. 736 because Respondent’s
offer herein was not ‘‘reasonably comprehended within its
pre-impasse proposals to the Union.’’ Precisely as in Winn-
Dixie, supra at 2870, with respect to the wage rate actually
implemented, the union ‘‘had neither notice nor an oppor-
tunity to respond.’’
The conclusions in Emhart Industries v. NLRB, supra, and
Presto Casting Co., supra, I find, have no application to the
instant facts. In both Emhart Industries and Presto Casting,
the implemented elements were recognizable pieces in the
impasse offers, unlike NLRB v. Winn-Dixie Stores where the
implemented wage increases were both higher and lower that
the impasse offer. The Winn-Dixie increases were ‘‘dif-
ferent’’ from the impasse offer. In Emhart Industries v.
NLRB, the court differed from the Board over whether the
plantwide seniority system, characterized by the Board as a
relatively ‘‘small part’’ of the impasse offer, was not in-
cluded in the employer’s implemented terms. Similarly, in
Presto Casting Co., supra, the actual, implemented wages
were part of the preimpasse money package proposal not-
withstanding that implementation did not include the pension
plan.
In the instant case, however, a wage rate of $9.50 per hour
never played any part in Respondent’s offer, the Union’s
consideration or rejection, or the impasse. In short, the
postimpasse $9.50 per hour implementation, notwithstanding
Respondent’s bargaining notification that the incentive plan
and the gain-sharing plan would be eliminated, was a wage
element not identifiable in its preimpasse proposals and thus
‘‘not included in its pre-impasse proposals.’’ as specified in
Emhart Industries v. NLRB, supra; see NLRB v. Katz, supra;
Winn-Dixie Stores v. NLRB, supra; and Peerless Roofing Co.
v. NLRB, supra. In particular, Respondent’s offer of a ‘‘fixed
increase in lieu of gain sharing and incentive pay’’ (G.C.
Exh. 3) never revealed $9.50 per hour as the ‘‘fixed wage
increase.’’ The implemented $9.50 fixed wage rate without
the plans was as ‘‘different’’ from the implemented offer
what the parties went to impasse on as that in NLRB v.
Winn-Dixie, supra. It was an implementation ‘‘higher or
lower than one previously offered,’’ Emhart Industries v.
NLRB, supra.
Furthermore, I necessarily agree with the General Coun-
sel’s argument that Respondent’s $9.50 per hour imple-
mented wage level increase is not included in the preimpasse
proposal notwithstanding that $9.50 per hour is a mathemati-
cally recognizable part of $9.75 per hour which was Re-
spondent’s fixed wage rate offer. To urge that the mathemati-
cal inclusion of the implemented offer ($9.50 per hour) is
within the rejected bargaining offer ($9.75 per hour) is so-
phistical. Any wage offer of a lesser amount of course is in-
cluded within the greater offer; but this is metaphysics not
collective bargaining. It seems moreover, that the Hi-Way
Billboards formulation for lawful unilateral implementations
(‘‘if they are consistent with the offer that the Union has re-
jected’’), 206 NLRB 22, 23, is no longer scrupulously fol-
lowed and may well have been an extension of the Katz
‘‘reasonably comprehended’’ standard. Nevertheless, there
must remain some substantial meeting of the minds as to
what the employer’s offer is, and what the Union’s con-
templation and rejection are, in order that the concept of im-
passe retain an intellegible position in the collective-bargain-
ing process, whether or not its bright-line has been obscured
by the ‘‘reasonably comprehended’’ rule (compared to an
‘‘offered and rejected’’ rule). Since a fixed rate of $9.50 per
hour was never offered by Respondent nor reasonably con-
sidered by the Union, Winn-Dixie Stores v. NLRB, supra, it
was not ‘‘reasonably comprehended’’ in Respondent’s
preimpasse offers, and its unilateral implementation, certainly
without the two supplementary plans, violated Section 8(a)(5)
and (1) of the Act as alleged.
E. The Evidence at the Hearing
At the hearing, the evidence, like the stipulation of facts,
showed that the Respondent’s intent was to offer an en-
hanced fixed wage rate ($9.75 per hour, progressively rising
to $10.25 per hour) and to eliminate both gain sharing and
incentive pay plans. This was in response to the Union’s his-
toric rejection of Respondent’s contract offers and Respond-
ent’s effort to secure the benefit of a collective-bargaining
agreement. The credited testimony of the General Counsel’s
witness, the union bargainer, was that during the bargaining,
Respondent earlier characterized the two supplementary plans
as part of the total wage package (Tr. 42) and proposed the
1989 increased hourly rate ($9.75/hour) ‘‘in lieu of’’ the gain
sharing and incentive pay plans (Tr. 62). As noted, this was
entirely consistent with Respondent’s vice president’s own
description of the function of the increased pay offer (a re-
sponse to the union’s concern for a ‘‘fixed wage increase in
lieu of [the plans].’’ (G.C. Exh. 3). Again, the $9.50 per hour
implemented wage rate was never mentioned in collective
bargaining by Respondent’s bargainer. Unlike the employer’s
plantwide seniority proposal in Emhart Industries, supra, it
was not even a part of a Respondent wage offer, the Union’s
rejection, or the impasse. For the reasons stated above, I find
that the implemented wage rate of $9.50 per hour was there-
fore ‘‘different than’’ and not included in its preimpasse pro-
posals. Peerless Roofing Co. v. NLRB, 641 F.2d 734 (9th
Cir.), Winn-Dixie Stores v. NLRB, 567 F.2d 1343, 1349–1350
(5th Cir.); modified on other grounds 575 F.2d 1107, cert.
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
denied 439 U.S. 985 (1978); Emhart Industries v. NLRB, 907
F.2d 372 (2d Cir.)
Respondent argues that a finding of a violation of Section
8(a)(5) of the Act would interfere with the historic basis of
bargaining in terms of the employer’s aims. Respondent as-
serts that its ability to implement less than the final offer, if
found unlawful:
would deprive employers of a valuable and widely ac-
cepted economic strategy to obtain an agreement . . .
[and] would mean that, in order to implement certain
changes they needed, employers would be required to
grant the benefits they proposed in an unsuccessful at-
tempt to get a complete agreement without getting com-
plete agreement that those proposed benefits were in-
tended to obtain [R. Br. p. 13].
It is unnecessary to reach this argument. As noted, Re-
spondent’s implemented wage level ($9.50 per hour) was
never part of any offer it made to the Union in 1989, was
never rejected by the Union and was never an element in the
impasse. Respondent must await for another day with other
facts to urge this broad-based policy argument to the Board.
Unlike Emhart Industries v. NLRB, supra, on which Re-
spondent relies, Respondent’s implemented wage rate was
not ‘‘an explicit part of its proposal.’’ (R. Br. p. 9.) Thus Re-
spondent may not now urge the above alleged interference
with free collective-bargaining strategy.
Respondent also argues that the Union recognized that the
gain sharing and incentive plans were going to be eliminated
whatever else happened at the bargaining table; and the
Union’s request for a pro rata distribution of earnings under
these plans which were to be discontinued as of April 30,
1989, constituted evidence that the plans were ‘‘separate and
apart from other elements in the [wage] proposal.’’ (R. Br.
p. 11). In fact, however, the elimination of the plans as part
of the compensation package was entirely conditional upon
Respondent’s proposed increase in the fixed wages. Indeed,
evidence adduced at the hearing demonstrated that this was
Respondent’s understanding (G.C. Exh. 3). The preimpasse
contemplation of the parties was that the two plans, already
integrated into ‘‘wages’’ were to be foresworn in exchange
for an increase in fixed wages. Thus distribution on a pro
rata basis, as I understand the facts, demonstrates a method
and a time of payment rather than an acknowledgement that
the Union would accept the elimination of these plans (and
the remuneration flowing from them) even if the wage rate
was to be maintained at the existing wage rate ($9.50 per
hour) or perhaps reduced even further. Moreover, even as-
suming that the Union’s request for pro rata distribution of
gain sharing constituted some evidence that gain sharing was
‘‘separate and apart’’ from other elements in the wage pro-
posal, I would nevertheless find that it was conditioned on
the assumption that the fixed wage would be increased ‘‘in
lieu of’’ the plans, as Respondent’s vice president correctly
characterized the Union’s objective (G.C. Exh. 3). Hence,
without a wage increase of some character, the implementa-
tion of the existing fixed rate of $9.50 per hour without the
plans would run counter to the manifested bargaining posi-
tions of both parties to the impasse.
E. The Health Plan Implemented May 1, 1989
The expired collective-bargaining agreement (1988) in-
cluded the ‘‘Choice Care’’ health plan for unit employees.
That health plan consisted of hospitalization and doctor bill
coverage, drug prescriptions and life insurance. Employees
with family coverage paid, under the contract, $36.45 per
month and Respondent paid all single employee premiums.
Employees however paid deductibles under the expired con-
tract.
By the time of Respondent’s April 21, 1989 offer (Jt. Exh.
6), married employees would pay $391.71 per month for
family coverage as opposed to $165 per month under the
‘‘Choice Care’’ plan. Proposed deductibles rose from $200
to $600 per family before the insurance coverage com-
menced. Under the expired plan, as noted, there were provi-
sions for payment of drug prescriptions and eyeglasses.
The Union continually proposed reinstitution of the Team-
sters’ health plan which had been in effect under prior con-
tracts; Respondent continually rejected that proposition. Ac-
cording to the union bargainer, in the last bargaining session,
April 21, 1989, Respondent, in reviewing its health plan pro-
vision (Jt. Exh. 6) told the Union that this was going to be
the plan; that this was what they were going to get. Respond-
ent’s attorney, Lawrence, denied this testimony and, instead,
testified that he told the Union bargainers that the Company
was willing to make some changes in the health plan from
its existing proposal (Jt. Exh. 6 p. 2) (compare Tr. 169 with
Tr. 71–72). In any event, the union bargainer (Griffin) testi-
fied that with regard to the April 21, 1989 bargaining on the
health plan, the 10 items appearing on the Respondent’s offer
(Jt. Exh. 6) were each read by the parties and compared in
cost to the Teamsters plan; but there was no discussion of
the items. Rather they were just read by Respondent’s law-
yer. Upon the Union’s objection to some of the items, the
objections were discussed and then dismissed by the Re-
spondent’s bargainer who would not agree with the Union’s
objections (Tr. 101). The Union admitted that prior to the
Company’s April 21, 1989 offer, the employees had no drug
prescription card (Tr. 102–103).
Following impasse resulting from the Union’s objection to
the wages and health plan in Respondent’s April 21, 1989
offer, Respondent, on May 1, 1989, implemented only a cer-
tain number of the 10 items appearing on its offer. In par-
ticular, it implemented the increase in deductibles (for indi-
viduals $200 per calendar year; for family, $600 per calendar
year); it now required single employees to contribute $10 per
week; it increased the cost of family plan coverage to $19
per week plus 50 percent of any increase in premium over
the current premium of $391.71 per month. It did not imple-
ment the beneficial elements in its offer which included the
prescription drug card, the voluntary vision care plan and an
emergency care plan.
The General Counsel argues that the April 21, 1989 health
plan proposal was ‘‘a package’’: that Respondent established
the cost and told the employees, without permitting actual
dissent, that that would be the coverage they would receive.
The evidence showed, however, that regardless of whether
Respondent presented the health plan on a take it or leave
it basis, as the union bargainer testified, there was at least
discussion of each element of the plan that the Union raised.
The General Counsel urges that, as in the underlying Board
position in Emhart Industries, 297 NLRB 215, Respondent’s
585PLAINVILLE READY MIX CONCRETE CO.
4 The complaint fails to allege that Respondent’s implementation
of the disadvantageous parties of the plan were retaliatory, punitive,
or were in any way unlawfully motivated.
health plan proposal was part of a ‘‘comprehensive system’’
or part of ‘‘an integrated whole.’’ Respondent argues that
since each element of the health plan was discussed consist-
ent with the issues raised by the Union, the plan could hardly
be characterized as entirely integrated and one without
‘‘seams.’’ Similarly, Respondent argues (Br. 12) that merely
because of the negotiations of April 21, 1989, failed to
produce any change in the health plan proposed by Respond-
ent, that fact alone does not establish that all the elements
of the plan were inextricably linked. Respondent argues that
there were no changes only because the Union offered no al-
ternative to a health plan other than the reinstitution of the
Teamsters plan to which Respondent was consistently op-
posed.
Finally, the General Counsel observes that Respondent im-
plemented only those elements unfavorable to the employees
including deductibles, limitations on the drug and alcohol
treatment and psychological treatment benefits. It did not im-
plement those portions of the health plan which represented
benefits to employees: the prescription drug card, the vol-
untary vision care plan and the emergency care plan. Re-
spondent concedes that it did not implement certain improve-
ments in the health plan that it had proposed including the
prescription drug card, the voluntary vision care and the
emergency care elements (R. Br. pp. 4–5; stipulation of facts,
pars. 6–7). Indeed, Respondent concedes (Br. pp 4, 5) that
it implemented only those parts of its final health plan offer
which were disadvantageous changes and did not implement
the improvements that it had proposed: the prescription drug
card, voluntary vision care and emergency care.
Discussion and Conclusions
The General Counsel argues that the health plan was en-
tirely integrated and was part of a single health plan package,
the parts of which could not be separated. Thus the General
Counsel argues that under the instant facts, as in Emhart In-
dustries, 297 NLRB 215, Respondent could not implement
merely elements of its integrated health plan, all part of a
comprehensive health plan system. The General Counsel fur-
ther argues, a fortiori, it could not lawfully implement only
those sections which were not beneficial to the employees.
In particular, the General Counsel argues, citing Seattle-First
National Bank, 241 NLRB 753 (1979), that the distinct ele-
ments in the instant health plan, unlike those in situations
where each unilaterally implemented element ‘‘stands on
their own,’’ cannot stand on their own. In the instant case,
each element of the drug plan is interrelated and a part of
comprehensive whole.
Respondent argues that each of the elements in the health
plan was separately discussed and that the Respondent re-
jected the Union’s positions only because it presented no al-
ternatives to that which Respondent offered and particularly
stuck only to the reinstitution of the Teamsters plan. I do not
credit the General Counsel’s witness insofar as he testified
that Respondent offered the health plan on a ‘‘take it or
leave it’’ basis. That may have been a reasonable conclusion
but it was not literally offered on that basis.
It seems to me vain and unprofitable to argue whether the
separate elements of Respondent’s April 21, 1989 health plan
are so interrelated as to form part of a single integrated
whole the implementation of only parts of which, whether
beneficial or detrimental to the employees, would be unlaw-
ful under the Board and court precedents.
The evidence adduced at the hearing did not show an in-
tentional integration of the elements of the plan. The ele-
ments were severably spoken of. Whether notation is the
same as discussion is a matter of degree. Respondent did not
lay the plan on the table and say take it or leave it. Unlike
its wage offer, its health plan elements are individually iden-
tifiable in the preimpasse offer. The evidence adduced at the
hearing concerning the health plan as might be expected, was
not reliable in determining the parties’ ‘‘contemporaneous
manifestations of intent’’ under the Board’s remand. I would
find, in any event, that the separate elements of the health
plan are no more nor less integrated than those parts of the
strike settlement plan before the Board and the court of ap-
peals in Emhart Industries, 907 F.2d 327. It is clearly and
reasonably arguable that any part of Respondent’s proffered
medical insurance plan was ‘‘an explicit part’’ of the plan as
was the plantwide seniority element in Emhart Industries v.
NLRB, supra. I will not attempt to distinguish the facts in
Emhart Industries from the instant facts either as to which
is more integrated than the other or whether, like plantwide
seniority, it was central in the offer. An overall strike settle-
ment plan is no different than an overall health insurance
plan. Nothing in the testimony at the hearing clarified the re-
manded issue; the testimony of both witnesses was self-serv-
ing, geared to conclusions on what their intent was in mak-
ing and rejecting the health plan. The hearing shed no
discernable light on the parties’ objective contemporaneous
manifestation of intent on the integration of the proposal.
In view of my findings that the cases present a legally in-
distinguishable problem, I must necessarily find, as an agent
of the Board, consistent with the Board’s position, that the
plan was presented as a health insurance plan; that the ele-
ments of the plan do bear an economic and functional rela-
tionship to each other; and that to implement only parts of
the plan, a fortiori those parts of the plan principally det-
rimental to the employees,4 is an unlawful implementation
within the meaning of NLRB v. Katz, supra, and Winn-Dixie
v. NLRB, supra. The fact that the court of appeals in Emhart
Industries v. NLRB, supra, might well take a view inconsist-
ent with the above finding, does not affect my obligation as
an agent of the Board to follow the Board rule in Emhart
Industries, 297 NLRB 215. I therefore conclude, consistent
to the General Counsel’s argument and Board precedent, that
the implementation of only portions of the health plan vio-
lates Section 8(a)(5) and (1) of the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit of Respondent’s employees con-
stitutes a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
All ready mixed drivers, yard employees, and mechan-
ics, employed at Respondent’s ready mix concrete
plants located at Cincinnati, Ohio, Batavia, Ohio,, and
Wilder, Kentucky, but excluding all office employees,
clerical employees, sales employees, guards, plant man-
agers, assistant plant managers and supervisors as de-
fined in the National Labor Relations Act.
4. At all material times since 1985, the Union has been
and is the designated exclusive collective-bargaining rep-
resentative of the employees in the above unit within the
meaning of Section 9(a) of the Act and since such date has
been so recognized by Respondent.
5. Respondent, on or about May 1, 1989, in violation of
Section 8(a)(5) and (1) of the Act, implemented provisions
of a wage proposal and a health plan which were not in-
cluded in, and are inconsistent with, its preimpasse proposals
to the Union which the Union rejected.
6. Respondent has not violated the National Labor Rela-
tions Act and any other fashion.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act,
it is recommended that Respondent be ordered to cease and
desist therefrom and take the following affirmative action
which is designed to effectuate the policies of the Act.
Affirmatively, I will recommend to the Board that Re-
spondent should reinstitute the wage plan, including incentive
pay and gain sharing plans, and the health plan as they ex-
isted preimpasse. I shall further recommend to the Board that
the unit employees affected be made whole for any losses
they may have sustained by virtue of Respondent’s unlawful
implementation of both the health plan and the wage plan.
I shall therefore recommend Respondent rescind its unlawful
implementations, restore the status quo ante, and make whole
those employees who may have suffered by virtue of Re-
spondents unlawful unilateral implementations. In particular,
Respondent’s failure to support the preimpasse health plan
shall cause the employees to be made whole for any losses
sustained thereby. Kraft Plumbing & Heating, 252 NLRB
891 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). Interest shall
be computed pursuant New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Plainville Ready Mix Concrete Co., Bata-
via, Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Truck Drivers,
Chauffeurs and Helpers Local Union No. 100, affiliated with
the International Brotherhood of Teamsters, AFL–CIO, in the
below-described appropriate unit, by unilaterally implement-
ing provisions of its wage plan and its health insurance plan
offers, substantially and significantly different from its
preimpasse bargaining proposals made to the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reinstate Respondent’s wage plan, including fixed
wage rates, gain sharing and incentive pay plans, and its
health insurance plan as they existed prior to May 1, 1989,
and thereafter, upon the Union’s request, bargain in good
faith with the Union in the appropriate unit:
All ready mixed drivers, yard employees, and mechan-
ics, employed at Respondent’s ready mix concrete
plants located at Cincinnati, Ohio, Batavia, Ohio,, and
Wilder, Kentucky, but excluding all office employees,
clerical employees, sales employees, guards, plant man-
agers, assistant plant managers and supervisors as de-
fined in the National Labor Relations Act.
(b) Make whole all employees in the above-described ap-
propriate unit for any loss of earnings or other economic loss
they may have suffered as a result of the unlawful unilateral
changes in the wage plan and health insurance plan com-
mencing May 1, 1989, together with interest as computed as
described in the remedy section of this order.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its places of business in Batavia, Ohio, Licking
Pike, Kentucky, Cincinnati, Ohio, and all other places of
business copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Regional Di-
rector for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
587PLAINVILLE READY MIX CONCRETE CO.
WE WILL NOT refuse to bargain in good faith with Truck
Drivers, Chauffeurs and Helpers Local Union No. 100, affili-
ated with the International Brotherhood of Teamsters, AFL–
CIO, in the below-described appropriate unit, by unilaterally
implementing provisions of our wage plan and health insur-
ance plan offers substantially and significantly different from
our preimpasse bargaining proposals made to the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL reinstate our wage plan, including fixed wage
rates, gain sharing and incentive pay plans, and our health
insurance plan as they existed prior to May 1, 1989, and
thereafter, upon the Union’s request, bargain in good faith
with the Union in the appropriate unit:
All ready mixed drivers, yard employees, and mechan-
ics, employed at Respondent’s ready mix concrete
plants located at Cincinnati, Ohio, Batavia, Ohio,, and
Wilder, Kentucky, but excluding all office employees,
clerical employees, sales employees, guards, plant man-
agers, assistant plant managers and supervisors as de-
fined in the National Labor Relations Act.
WE WILL make whole, with interest, all employees in the
above-described appropriate unit for any loss of earnings or
other economic loss they may have suffered as a result of
the unlawful unilateral changes in our wage plan and health
insurance plan commencing May 1, 1989.
PLAINVILLE READY MIX CONCRETE CO.