Tarmac America, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 2004

342 N.L.R.B. 1049 (N.L.R.B. 2004)

TARMAC AMERICA, INC.
342 NLRB No. 107
1049
Tarmac America, Inc. and International Union of
Operating Engineers, Local 487, AFL–CIO.
Cases 12–CA–22501 and 12–CA–22595
September 15, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
On December 5, 2003, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief and a motion to
strike the Respondent’s exceptions and brief,1 the Re-
spondent filed a memorandum in opposition to the mo-
tion to strike, and the General Counsel filed a reply brief
to the Respondent’s opposition to the motion to strike.
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,2 and conclusions and
to adopt the recommended Order for reasons set forth
below.
Introduction
The issue presented is whether the yard person/forklift
operator position at Respondent’s newly created Ft.
Pierce block distribution facility should be included
within the existing collective-bargaining unit. The Gen-
eral Counsel alleged that the new position was included
in the unit, and that therefore Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to recognize
and bargain with the Union as the representative of the
employee working in the position. The Respondent, in
turn, asserted that the new position did not belong in the
unit. We agree with the General Counsel, and find that
the position is included in the existing collective-
bargaining unit, and that Respondent violated Section

1 The General Counsel has moved to strike the Respondent’s excep-
tions and brief on the grounds that they were untimely under Section
102.111(b) of the Board’s Rules and Regulations. We deny the Gen-
eral Counsel’s motion because the Board’s records do not establish that
the exceptions were filed late.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
8(a)(5) and (1) of the Act by refusing to recognize the
Union as the bargaining representative of the employee
working in that position. We also find that the Respon-
dent violated Section 8(a)(5) and (1) by failing to provide
the Union with relevant requested information, for the
reasons given by the judge.
Factual Background
The facts, as set forth more fully in the judge’s deci-
sion, are as follows.
Respondent Tarmac America, Inc. manufactures and
distributes building materials such as cement, aggregate,
and concrete block at several facilities in Florida.
As of June 1999, the Operating Engineers, Local 487
(the Union) represented all forklift operators at Respon-
dent’s plants located in Dade, Broward, Palm Beach,
Martin, and St. Lucie counties. On August 30, 2001, the
Respondent and the Union entered into a new collective-
bargaining agreement, effective through June 30, 2004,
in which the Respondent agreed to recognize the Union
as the exclusive bargaining representative for:

all Operating Engineers at [the Respondent’s] plants in
the Counties of Dade, Broward, Palm Beach, Martin
and St. Lucie, Florida, and other employees coming
under their craft jurisdiction . . . .

The wage schedule, appendix A of the agreement, identifies
six classifications of unit employees, including “yard per-
son.” It is undisputed that the Respondent used the terms
“yard person” and “forklift operator” interchangeably, to
refer to the same position.
As of 2001, the Respondent employed forklift opera-
tors at three block manufacturing facilities within the
Union’s geographic jurisdiction. In the summer of 2002,
the Respondent decided to set up a block distribution
operation at its Ft. Pierce facility, located in St. Lucie
County. Because blocks were not manufactured at Ft.
Pierce, the Respondent arranged to have blocks shipped
by rail or truck from other of the Respondent’s facilities
so that customers could pick the blocks up at Ft. Pierce
using private trucking companies or their own vehicles.
To staff this new operation, the Respondent transferred
Tom Hendrickson, a forklift operator from a nonunion
block manufacturing facility outside of the Union’s geo-
graphic jurisdiction, to Ft. Pierce.
In August 2002, the Union learned of Hendrickson’s
new position and informed the Respondent that Hen-
drickson belonged within the established collective-
bargaining unit. The Respondent has refused to recog-
nize the Union as the collective-bargaining representative
for Hendrickson.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1050
The Judge’s Decision
The judge concluded, inter alia, that the Respondent
violated Section 8(a)(5) and (1) by failing and refusing to
recognize the Union as the bargaining representative of
the yard person/forklift operator employed at the Ft.
Pierce block distribution facility. We agree with the
judge’s conclusion for the reasons set forth below.
Analysis
In deciding that Hendrickson’s position belongs within
the existing collective-bargaining unit, we focus on the
bargaining unit description contained in the parties’ col-
lective-bargaining agreement, including appendix A of
the agreement, which includes “yard persons” within St.
Lucie County.
It is undisputed that the parties used the terms “forklift
operator” and “yard person” interchangeably. It is fur-
ther undisputed that the Respondent’s new Ft. Pierce
block distribution operation is located in St. Lucie
county. In addition, despite the Respondent’s assertions
to the contrary, it is clear that Hendrickson’s position
was that of a forklift operator, performing essentially the
same work performed by the forklift operators at the Re-
spondent’s other facilities.3 In fact, the Respondent, in
its position statement filed with the Board, repeatedly
referred to the position at issue as that of “forklift opera-
tor.”4 Accordingly, because forklift operators within the
Union’s geographic jurisdiction are included in the bar-
gaining unit, Hendrickson’s position at the Ft. Pierce
facility is included in the existing bargaining unit.
Therefore, the Respondent violated Section 8(a)(5) and
(1) by failing and refusing to recognize the Union as the
collective-bargaining representative of Hendrickson.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Tarmac America Inc., Deer-
field Beach, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Order and

3 We agree with the judge that any additional duties Hendrickson
may have are incidental to his job as a forklift operator.
4 The judge reasonably discredited as “self-serving” the Respon-
dent’s job description for the position, which was created after the
charges were filed in the instant case and which described the position
at issue as a “customer service/dispatch/forklift operator.”
5 We agree with the judge that this case does not present a scenario
in which an accretion analysis would be appropriate. In addition, be-
cause we find that Hendrickson’s position is covered by the parties’
collective-bargaining agreement, we find it unnecessary to pass on the
judge’s analysis under The Sun, 329 NLRB 854 (1999), Premcor, Inc.,
333 NLRB 872 (2001), and Developmental Disabilities Institute, Inc.,
334 NLRB 1166 (2001).
substitute the attached notice for that of the administra-
tive law judge.
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize International
Union of Operating Engineers, Local 487, AFL–CIO, the
Union, as the exclusive collective-bargaining representa-
tive of yard person/forklift operator(s) we employ at our
Ft. Pierce, Florida facility.
WE WILL NOT fail and refuse to apply the terms of our
collective-bargaining agreement with the Union to yard
person/forklift operator(s) employed at Ft. Pierce, Flor-
ida.
WE WILL NOT fail and refuse to furnish the Union, upon
request, with all information relevant to, and necessary
for, the Union to represent you.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.
WE WILL recognize, and upon request, bargain with the
Union as the collective-bargaining representative of yard
person/forklift operator(s) employed at the Ft. Pierce
facility.
WE WILL apply the terms of our current collective-
bargaining agreement with the Union to that position and
WE WILL make the employee occupying that position
whole for any wages and benefits lost as a result of our
failure to apply the collective-bargaining agreement since
August 1, 2002.
WE WILL furnish the Union with the information it re-
quested in a letter to us dated October 18, 2002.

TARMAC AMERICA, INC.

TARMAC AMERICA, INC. 1051
John F. King, Esq., for the General Counsel.
Arturo Ross, Esq. (Fisher & Phillips, LLC), Ft. Lauderdale,
Florida, for the Respondent.
Osnat K. Rind, Esq. (Phillips, Richard & Rind, P.A.), Miami,
Florida, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Miami, Florida, on July 7 and 8, 2003. Inter-
national Union of Operating Engineers, Local 487, AFL–CIO
(the Union or Local 487), filed the charges in Cases 12–CA–
22501 and 12–CA–22595 on September 26 and November 4,
2002, respectively. On January 29, 2003, an order consolidat-
ing cases, consolidated complaint, and notice of hearing issued
alleging that Tarmac America, Inc., the Respondent, violated
Section 8(a)(1) and (5) of the Act. Specifically, the complaint
alleges that the Respondent has unlawfully refused to recognize
and bargain with the Union as the representative of the forklift
operator/yardman employed at the Respondent’s Ft. Pierce,
Florida facility, and has failed and refused to apply the parties’
collective-bargaining agreement to that employee since in or
about August 2002; and has failed and refused to furnish the
Union with information it requested on October 18, 2002 re-
garding the disputed position. On February 12, 2003, the Re-
spondent filed its answer to the complaint, denying the unfair
labor practice allegations and asserting several affirmative de-
fenses. Specifically, the Respondent asserted that the position
in dispute was a new classification and not a proper accretion to
the unit; that the Union had never been designated or selected
by a majority of unit employees as their bargaining representa-
tive; and that the Union was not a valid successor to the certi-
fied union.1
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following:

1 Although the Respondent pursued the latter two defenses with
vigor during the hearing, it failed to address the issues raised by these
defenses in its brief. To the extent that the Respondent still contests the
Union’s authority to represent the employees in the unit, I adhere to my
rulings at the hearing that any challenge to the Union’s representative
status is barred by Section 10(b) of the Act because the Respondent had
recognized and bargained with the Union for more than 6 months be-
fore any charge was filed. Route 22 Auto Sales, 337 NLRB 84 (2001).
See also Local Lodge 1424, IAM, AFL–CIO (Bryan Mfg. Co.) v. NLRB,
362 U.S. 411 (1960).
2 In its brief, the Respondent renews its objection to receipt into evi-
dence of a position letter submitted by counsel for the Respondent
during the investigation of the charges, relying upon certain language in
the letter intended to limit its use. I shall adhere to my ruling based
upon well-established Board precedent that such letters are admissible
as admissions by a party, unless the party has disavowed the statement
before the hearing. Masillon Community Hospital, 282 NLRB 675 fn.
5 (1987). Accord: McKenzie Engineering Co., 326 NLRB 473, 485 fn.
6 (1998); Hogan Masonry, 314 NLRB 332, 333 fn. 1 (1994).
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with its principal office in
Deerfield Beach, Florida, manufactures and distributes building
materials such as cement, aggregate, and concrete block at sev-
eral facilities in the State of Florida, including the facility in Ft.
Pierce involved in this proceeding. The Respondent annually
purchases and receives at its Florida facilities goods and mate-
rials valued in excess of $50,000 directly from points outside
the State of Florida. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
As noted above, the Respondent manufactures cement,
ready-mix concrete, aggregate, and concrete blocks used in
construction and sells and distributes these products along with
sand, mortar, and other related products used primarily in build-
ing construction. The Respondent operates manufacturing and
distribution facilities throughout the State of Florida, some of
which have only ready-mix operations while others have both
ready-mix and block operations. The Respondent’s main ad-
ministrative office is located in Deerfield Beach, Florida.
On September 12, 1997, the Union’s predecessor, Interna-
tional Union of Operating Engineers, Local 675, AFL–CIO,
was certified by the Board as the 9(a) representative of a unit of
“all full-time and regular part-time operating engineers includ-
ing mechanic 1s, mechanic 2s, crew persons, yard persons,
laborers, terrascape yard persons, terrascape plant workers em-
ployed by [the Respondent] at its plants located in the counties
of Dade, Broward, Palm Beach, Martin and St. Lucie, Florida,
excluding all other employees, office clerical employees,
guards and supervisors as defined in the Act.” In June 1999,
Local 675 was merged into the Charging Party Union, Local
487, by the International Union. The Respondent was informed
of the merger by letter dated June 15, 1999. Thereafter, the
Union assumed representation of the unit employees, adminis-
tering the existing collective-bargaining agreement, filing
grievances and negotiating with the Respondent.
On August 30, 2001, the Respondent and the Union executed
a new collective-bargaining agreement, effective by its terms
from July 1, 2001 through June 30, 2004. At article I of the
contract, the Respondent agreed to recognize the Union as the
exclusive bargaining representative for:

all Operating Engineers at [the Respondent’s] plants located
in the Counties of Dade, Broward, Palm Beach, Martin and
St. Lucie, Florida, and other employees coming under their
craft jurisdiction excluding all other employees, executives,
administrative, professional office, plant clerical employees,
office clerical employees, guards and supervisors, as defined
in the N.L.R.A. [Emphasis added.]

The wage schedule at appendix A of the contract identifies six
classifications of unit employees: Mechanic 1, Mechanic 2,
Crew Person, Yard Person, Laborer, and Plant Utility Worker.
There is no dispute that the yard person classification in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
Respondent’s block plants is also referred to as a forklift opera-
tor.
When the current contract was negotiated in 2001, the Re-
spondent had the following facilities within the geographic
jurisdiction of the Union: cement, ready-mix, aggregate, and
block operations at the Pennsucco plant in Dade County; ready-
mix and block operations at Pompano Beach in Broward
County; ready-mix and block operations at Mangonia in Palm
Beach County; and a ready-mix and aggregate operation at Ft.
Pierce in St. Lucie County. In addition, the Respondent had
several exclusively ready-mix facilities within the counties
covered by the contractual recognition clause. There is no dis-
pute that the Union represented all employees performing work
described in the contract’s recognition clause and wage sched-
ule, within those counties, except for a group of 12 employees
at the Respondent’s Mangonia block operation. For some rea-
son, these employees had historically been excluded from the
unit even though the Mangonia block operation is identical to
that at Pompano Beach and Pennsucco and the employees per-
form the same work as unit employees.3 The Union unsuccess-
fully sought to include these employees in the unit by filing a
grievance and unfair labor practice charges in October 2001.
The Union ultimately withdrew the charges in February 2002
and has, apparently, not pursued the grievance. In any event, at
the time of the hearing, the Mangonia block plant employees
were still not covered by the collective-bargaining agreement.
There is no dispute that, prior to August 2002,4 all employ-
ees in the Respondent’s ready-mix and aggregate operation at
the Ft. Pierce facility were included in the unit and covered by
the collective-bargaining agreement. There is also no dispute
that, prior to August, the Respondent did not have any block
operation at this facility. The closest block plants were in Mel-
bourne, Florida, which is outside the Union’s geographic juris-
diction and coverage of the contract, and Mangonia. Steve
Kramer, the Respondent’s area operations manager responsible
for the block plants in Pompano and Mangonia, testified that
the Respondent decided in the summer of 2002 to set up a
block distribution operation in Ft. Pierce to try to tap a growing,
but previously unserved market, for the Respondent’s concrete
blocks. Rather than manufacture blocks at Ft. Pierce, Kramer
set up the operation so that blocks would be shipped by rail or
truck primarily from the Pennsucco plant in Miami. Customers
in the Ft. Pierce area who purchased blocks could pick them up
at the Ft. Pierce facility using their own vehicles or private
trucking companies. In order to staff this operation, Kramer
transferred Tom Hendrickson, a forklift operator from the non-
unit Melbourne block plant, to Ft. Pierce.
There is no dispute that Kramer set the wages for the em-
ployee transferred from Melbourne to Ft. Pierce without discus-
sion with the Union. The Respondent’s payroll records show
that, when first transferred, Hendrickson received the same rate

3 The Union’s business manager, Gary Waters, and business repre-
sentative, John Mullen, testified that they believed these employees had
been excluded because they were represented by the Teamsters Union
at some point in the past. Neither witness had any firsthand knowledge
of these facts and I shall not rely upon their speculation as to the cause
of this historical exclusion.
4 All dates hereafter are in 2002, unless otherwise indicated.
of pay he had been receiving at Melbourne, i.e., $13.60/hour.
This was less than the contractual wage rate for yard person or
forklift operator. The Respondent’s payroll records show that,
in January 2003, Hendrickson was given a raise to $14.51/hour.
Kramer testified that he determined the amount of Hendrick-
son’s pay by looking at the wage scales for the block employ-
ees at Melbourne and Mangonia, the closest facilities with simi-
lar operations, and by adding.a 50-cent leadman’s pay to com-
pensate for additional duties assigned to Hendrickson. It is also
undisputed that Hendrickson continued to receive the same
package of benefits he had received at the nonunit facility in
Melbourne after his transfer to Ft. Pierce. These benefits dif-
fered from those contained in the collective-bargaining agree-
ment.
Mullen, the Union’s business representative, testified that he
first saw Hendrickson working at the Ft. Pierce facility during a
visit to the ready-mix plant there in August. He observed Hen-
drickson operating a forklift in the southeast corner of the yard,
loading and unloading block from trucks. Mullen testified that
he had never seen anyone loading or unloading blocks at this
facility before the August visit. According to Mullen, Hen-
drickson was performing work no different than what forklift
operators at other block plants in the unit do. Mullen ap-
proached Hendrickson, introduced himself as the Union’s rep-
resentative, and asked about Hendrickson’s wages and benefits.
When Hendrickson told Mullen what he was being paid,
Mullen told him that was not the correct rate under the contract.
Mullen also asked Hendrickson if he was in the Union’s pen-
sion plan and Hendrickson answered in the negative. Mullen
recalled that, when he asked Hendrickson where he came from,
Hendrickson replied either Vero Beach or Melbourne.
Mullen testified further that, after finishing his visit, he
called Waters on his cell-phone as he was driving south from
Ft. Pierce and told Waters what he had seen and learned from
speaking to Hendrickson. After speaking to Waters, Mullen
called Kramer, whom he knew to be the area manager in charge
of that facility. According to Mullen, he told Kramer that Hen-
drickson falls under the contract and that he was not being paid
the proper rate. Kramer told Mullen that he would talk to his
boss and get back to Mullen. When he didn’t hear from
Kramer after a couple weeks, Mullen called him again and
asked what was going to be done about the operator in Ft.
Pierce. Mullen testified that Kramer told him he had spoken to
his boss and they were going to leave things as they were.
Mullen testified further that he has visited Ft. Pierce at least a
half-dozen times since speaking to Kramer and that he has al-
ways observed Hendrickson performing the same function, i.e.,
using the forklift to load, unload, and otherwise move blocks
around the yard.
Waters testified that, after Mullen advised him that Hen-
drickson was not being paid the correct rate under the contract,
and that Mullen had been unable to resolve the matter with
Kramer, he submitted a grievance by fax on September 23 to
the Respondent’s human resources director, Max Hoynacki.
Hoynacki responded to the grievance the same date with a letter
claiming that the issue was not arbitrable. Hoynacki stated in
his letter that the block distribution operation at Ft. Pierce was
“a non-union operation and the position of fork truck operator,
TARMAC AMERICA, INC. 1053
for this location, is not part of the bargaining unit.” On October
18, Waters sent a letter to Hoynacki requesting information
regarding the forklift operator at Ft. Pierce. Specifically, Wa-
ters requested the employee’s name, address, telephone num-
ber, date of hire, classification, rate of pay, and benefits pro-
vided by the Respondent. Waters stated in the letter that this
information was necessary for the Union to properly administer
the contract and to assess the Respondent’s refusal to apply the
grievance procedure to this dispute and its position that the
dispute was not arbitrable. When Waters did not receive a
response to his request, he wrote another letter to Hoynacki, on
October 25, again seeking the information. The Respondent
admitted, in its answer to the complaint, that the Union re-
quested, and that it has refused to supply, this information.
In addition to the testimony of Waters and Mullen, the Gen-
eral Counsel also called as witnesses two unit employees who
work as yardmen in the Respondent’s ready-mix and aggregate
operation at Ft. Pierce, Joshua Melton and Randy Brown. Mel-
ton and Brown, who spend almost their entire day moving ma-
terial in the yard, using wheelers, loaders, and other equipment,
testified that they have observed Hendrickson using a forklift to
load and unload trucks and rail cars and stack blocks in the
yard. According to Melton and Brown, they have not seen him
do any other work. They testified further that they have as-
sisted Hendrickson with his work, when he or their supervisor,
Bill Sherman, asks, by moving the railcars into position for him
to unload them, or crushing defective block, or cleaning out the
sand bins. Brown, who has worked in other facilities of the
Respondent having block operations, also testified that the
work performed by Hendrickson is similar to what forklift op-
erators do at these facilities. Both witnesses acknowledged that
they do not watch Hendrickson every minute of the day and
that they do not know what he does when they are not watch-
ing. Melton and Brown testified that Hendrickson uses the
same timeclock to punch in and out of work and Brown testi-
fied that Hendrickson uses the same breakroom as other em-
ployees at the facility. On cross-examination, both witnesses
acknowledged that the amount of time they spend moving rail
cars for Hendrickson or assisting him with other tasks is a small
part of their work.
Kramer testified as an adverse witness for the General Coun-
sel under Rule 611(c) of the Federal Rules of Evidence and as
the Respondent’s main witness. He testified that the position at
the Ft. Pierce block distribution operation, occupied by Hen-
drickson, is different from the yard person/forklift operator
position at Pompano and Pennsucco that is included in the bar-
gaining unit.5 According to Kramer, the unit employees spend
virtually their entire time operating a forklift, with about half
the day spent clearing the production lines inside the block
manufacturing plant and the remainder of the day spent loading
and unloading trucks in the yard. In contrast, according to
Kramer, Hendrickson spends only 25 percent of his day loading
and unloading trucks. Because blocks are not manufactured at
Ft. Pierce, he does not spend any time clearing production lines.

5 Presumably, the position at Ft. Pierce is also different from the
yard person position at the Mangonia plant which has historically been
excluded from the unit.
From Kramer’s testimony, it would appear that most of Hen-
drickson’s day is spent dealing with customers, handling spot
transactions, accepting payment for deliveries, processing pa-
perwork associated with the sale of block from that facility and
ordering material from Pennsucco or one of the other block
manufacturing facilities to meet customer needs. In support of
this testimony, the Respondent introduced a number of docu-
ments purported to have been handled by Hendrickson in carry-
ing out these job functions. However, few of the documents
bore a signature or other objective evidence that Hendrickson
was involved in the transaction. For the most part, the only
evidence that a particular document was one used by Hendrick-
son to conduct a transaction was Kramer’s testimony. In addi-
tion, all of the documents offered by the Respondent were dated
in 2003, several months after Hendrickson began working at
the Ft. Pierce facility, and after the Union had made an issue of
his unit placement.
In further support of its position that Hendrickson’s job was
a nonunit position, the Respondent offered into evidence a job
description for a “Customer Service/Dispatch/Forklift Opera-
tor” at the Ft. Pierce Block facility. Sarah Fain, a human re-
sources representative employed in the Respondent’s Deerfield
Beach office, testified that she prepared this job description in
November as part of a package of job descriptions she was
instructed to complete. She used a software program contain-
ing canned language and supplemented it with information
provided by Kramer regarding the “essential duties and respon-
sibilities” of the position. The job description itself does not
show the date it was prepared, although there is a line on the
form for this information. Fain acknowledged that the job de-
scription was never approved, explaining the blank spaces for
“approved by” and “approved date.” Kramer testified that this
job description, by itself, does not accurately represent Hen-
drickson’s position. According to Kramer, the new job descrip-
tion together with the existing job description for the unit yard
person (forklift operator) is an accurate representation of Hen-
drickson’s duties and responsibilities. The Respondent’s pay-
roll records in evidence show that, notwithstanding the title on
the job description introduced at the hearing, Hendrickson is
classified as a “forklift operator” in the Respondent’s records.
A comparison of the two job descriptions reveals a number
of similarities, which were acknowledged by Kramer. Thus,
the unit forklift operators are also responsible for assisting cus-
tomers in selecting inventory, performing last quality control
inspection on inventory leaving the yard, maintaining a high
level of customer service, and conducting physical inventory, in
addition to the more routine loading and unloading of trucks for
customers, clearing of production lines, and moving block
around within the yard. According to Kramer, the difference
between the unit position and the position at Ft. Pierce is in the
amount of time spent doing these customer related and other
duties. Because Hendrickson is the only block employee at Ft.
Pierce, he is the contact person for customers, dispatch, and
sales staff in the area serviced by the Ft. Pierce facility. At
Pompano and Pennsucco, there are supervisors, a plant man-
ager, and dispatch personnel on site to deal with customers and
to handle the paperwork responsibilities related to sales and
dispatch that Hendrickson is responsible for in Ft. Pierce.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
Kramer testified regarding other differences between Hen-
drickson’s job and the unit position. According to Kramer,
Hendrickson has an office at the Ft. Pierce facility with a com-
puter, copier, and fax machine where he transmits orders placed
by customers who come to the facility to the dispatch office and
receives the carbon tickets from dispatch which he uses to col-
lect payment and deliver the material to the customer.6 Hen-
drickson also maintains in this office files containing the pa-
perwork documenting the transactions. Kramer testified further
that Hendrickson is responsible for maintaining daily cash re-
ports for moneys received from customers, doing the monthly
physical inventory of all block products at the facility, and or-
dering block and other material to meet orders to be filled from
the Ft. Pierce facility. According to Kramer, these tasks are
handled by supervisors, sales or dispatch employees at the
Pompano and Pennsucco facilities. In quantifying the amount
of time spent by Hendrickson on nonforklift duties, Kramer
testified that Hendrickson spends 20 percent of his day per-
forming inventory-related tasks, which includes ordering mate-
rial, 10 percent of the day dealing with customers who come to
the facility to purchase and receive products, 5 percent of the
day tracking cash receipts, and 25 percent of the day physically
loading and unloading trucks and rail cars.7 In describing Hen-
drickson’s job, Kramer admitted that the position has evolved
over time since Hendrickson was first transferred to Ft. Pierce.
According to Kramer, because this was the Respondent’s first
foray into the Ft. Pierce market and the first block operation
that was exclusively a distribution facility, he did not have a
specific job description in mind when the operation started.
Over time, Kramer has defined the position to meet whatever
needs arose in carrying out the operation.
It is undisputed that Hendrickson’s wages and benefits differ
from those of unit employees in most respects.8 Although the
Respondent attempted to show that Hendrickson, as a nonunit
employee, was subject to different rules regarding discipline
and attendance, the parties’ collective-bargaining agreement in
fact provides that unit employees are subject to companywide
rules. As previously noted, Hendrickson, like unit employees,
is hourly paid, and punches the same timeclock as unit employ-
ees. Because he is treated as a nonunit employee by the Re-
spondent, however, he receives overtime pay only for hours
worked in excess of 40 in a week. Unit employees receive
overtime when they work more than 8 hours in a day, regard-
less of the number of hours for the week. Kramer testified that,
unlike unit employees, Hendrickson sets his own work sched-

6 It is undisputed that the dispatchers prepare the paperwork, includ-
ing determining the price to be paid by the customers. When Hendrick-
son receives the ticket, he merely fills the order and collects payment
from the customer.
7 Kramer also testified that Hendrickson spends 15–20 percent of his
day handling paperwork related to customer orders, 5 percent handling
C.O.D. sales, and 15–20 percent ordering block from other facilities. It
appears that at least some of this is already included in the estimates
quoted above for dealing with customers, tracking cash and maintaining
inventory. Otherwise, Kramer’s testimony would amount to more than
100 percent of Hendrickson’s day.
8 Unit and nonunit employees do have some benefits in common,
most notably health insurance.
ule, dictated by the needs of customers and the scheduling of
orders each day. Unlike unit employees, Hendrickson has no
immediate supervisor on site. According to Kramer, Hendrick-
son reports directly to him. Bill Sherman, the Respondent’s
supervisor in charge of the Ft. Pierce ready-mix and aggregate
operation, has no direct authority over Hendrickson. As previ-
ously noted, Kramer’s testimony that Hendrickson does not use
the breakroom that unit employees use at Ft. Pierce was contra-
dicted by Brown, who works at Ft. Pierce and testified that
Hendrickson in fact uses the breakroom. Brown was corrobo-
rated on this point by Sherman, who testified for the Respon-
dent. It is undisputed that, when Hendrickson took a vacation,
around the time of the hearing, he was replaced by a forklift
operator from the Mangonia block operation. According to
Kramer, the replacement was not responsible for any of Hen-
drickson’s nonforklift operator duties during this period. In-
stead, Kramer spent more time at the facility, or the sales and
dispatch employees handled these other duties.
The position letter submitted by counsel to the Board’s Re-
gional Office on November 23, during the investigation of
these charges, is inconsistent with some of Kramer’s testimony.
For example, the Respondent’s counsel referred to Hendrickson
in the letter as a forklift operator. In addition, counsel de-
scribed Hendrickson’s job as less complicated than that of the
union-represented forklift operators, stating that Hendrickson
spent most of his day in the yard, moving block, occasionally
going into the “shack” to retrieve orders from dispatch off the
computer. Counsel also reported in November that most of the
block distributed from the Ft. Pierce facility came from the
nonunit Melbourne facility. Both Kramer and Javier Acevedo,
the Pennsucco plant manager, testified at the hearing that it is
the Pennsucco plant that supplies most of the product for Ft.
Pierce customers. According to Acevedo, this is the way the
operation was set up from the beginning, with Pennsucco in-
tended as the primary source of block sold in Ft. Pierce.9
Although Kramer gave the most extensive testimony regard-
ing Hendrickson’s duties and responsibilities, he acknowledged
that he is not physically present at the Ft. Pierce facility on a
daily basis. He usually visits the facility once a week. His
testimony was based more on his vision of what the job in-
volved as the individual who set up the Ft. Pierce block distri-
bution facility. Other witnesses who testified for the Respon-
dent were also not in a position to physically observe Hendrick-
son on a daily basis. Although Acevedo did have telephone
contact with Hendrickson when he placed orders for block, he
had not been to the facility and relied upon Kramer’s descrip-
tion regarding how the Ft. Pierce operation worked. Sherman,
even though he is physically present at Ft. Pierce on a daily
basis, acknowledged that he spends his day in the ready-mix
plant with his back toward the yard where block is stored and
where Hendrickson works. In fact, of all the witnesses, Melton
and Brown, the yard persons in the Ft. Pierce ready-mix and
aggregate operation, were probably in the best position to
physically observe Hendrickson since they spent most of their

9 When counsel asked Acevedo if he knew Hendrickson, Acevedo
candidly answered, “he’s the guy who unloads the block we ship to
him” in Ft. Pierce.
TARMAC AMERICA, INC. 1055
day in the ready-mix and aggregate yard within sight of Hen-
drickson’s block operation. Kramer, the incumbent of the dis-
puted position, who would have been the best witness regarding
his duties, responsibilities, and daily activities, was not called
as a witness in this proceeding. In fact, on June 18, 2003,
Kramer approved Hendrickson’s request to take a vacation that
coincided with the hearing dates.
The issue in this case, as framed by the pleadings, is whether
the Respondent violated Section 8(a)(5) by refusing to apply
the collective-bargaining agreement to the position occupied by
Hendrickson at the Ft. Pierce facility and by refusing to furnish
the Union with information regarding that position. Because
the Respondent essentially admits that it has not applied the
contract to this position and has not provided the requested
information to the Union, the case boils down to whether the
block operation employee at Ft. Pierce, Hendrickson, should be
included in the unit, an issue typically addressed in initial rep-
resentation case proceedings or post-certification unit clarifica-
tion proceedings.10 There is no question that the block distribu-
tion operation at Ft. Pierce was a new operation and that the
position occupied by Hendrickson was new to the facility.11
The General Counsel emphasizes the similarities between the
work Hendrickson was doing and that done by unit yard per-
sons while the Respondent emphasize the differences. Whereas
the General Counsel contends that Hendrickson was just an-
other forklift operator, the Respondent argues that he was more
of a customer service/dispatch employee, lacking a community
of interest with other employees in the unit. In the General
Counsel’s view, because Hendrickson was performing work
traditionally done by unit employees, the burden is on the Re-
spondent to prove there is a sufficient dissimilarity to exclude
him from the unit. In the Respondent’s view, the issue here is
one of accretion and the Board’s policy against adding employ-
ees to a unit without an election, unless the new group of em-
ployees share an overwhelming community of interest with unit
employees, should apply.
In Developmental Disabilities Institute, Inc.,12 the Board
held that, once it is established that a new classification is per-
forming the same basic function as a unit classification histori-
cally had performed, the new classification is properly viewed
as belonging in the unit rather than being added to the unit by
accretion. Even where there are some differences between the

10 On the second day of the hearing, the Respondent proposed, as a
basis for settling the case, that it would furnish the information to the
Union and accept deferral of the charges to arbitration. Because this
case raises issues as to unit placement and/or accretion, it is not appro-
priate for deferral, even assuming the Respondent was now willing to
furnish the information and arbitrate the Union’s grievance. See Twed-
dle Litho, Inc., 337 NLRB 686 (2002); Williams Transportation Co.,
233 NLRB 837 (1977).
11 The situation here is thus markedly different from that at the Man-
gonia plant. It is well-established that, where the parties to a bargaining
relationship have historically excluded a group of employees from an
established bargaining unit, even by mistake, the Board will not clarify
the unit to include those employees unless substantial changes have
occurred creating a real doubt whether the excluded employees should
now be included in the unit. Gitano Group, Inc., 308 NLRB 1172,
1173–1174 (1992).
12 334 NLRB 1166 (2001).
old and new jobs due to technological advances, the new posi-
tion is part of the unit where the functions performed are essen-
tially the same. Premcor, Inc., 333 NLRB 1365 (2001). See
also Gourmet Award Foods, Northeast, 336 NLRB 872 (2001)
(employees newly hired into classifications plainly included in
the unit do not raise accretion issues). In The Sun,13 the Board
adopted the standard to be applied in unit clarification proceed-
ings involving bargaining units defined by the work performed.
If the new employees perform job functions similar to those
performed by unit employees, as defined in the unit description,
the Board will presume that the new employees should be
added to the unit, unless the unit functions they perform are
merely incidental to their primary work functions or are other-
wise an insignificant part of their job. The Board placed the
burden on the party seeking to exclude such employees to show
that the new group is sufficiently dissimilar from the unit em-
ployees that the existing unit, if it included the new employees,
would no longer be appropriate. Id. at 849. This test is differ-
ent from the traditional test in accretion cases. In a typical
accretion case, the Board considers a number of factors, includ-
ing the integration of operations, centralization of management
and administrative control, geographical proximity, similarity
of working conditions, skills and functions, common control of
labor relations, collective bargaining history and employee
interchange, to determine whether the new group of employees
share a sufficient community of interest with the existing unit
to be included without an election. In a typical accretion case,
the burden is generally on the party seeking to include the new
group to show that the new group has little or no separate group
identity. Gitano Group, Inc., supra at 1174. Accord: Archer
Daniels Midland Co., 333 NLRB 673 (2001) (Board distin-
guished The Sun, supra, on basis that unit at issue was not func-
tionally defined).
I find initially that the parties have agreed to a functionally
defined bargaining unit and that the test adopted by the Board
in The Sun, supra, is applicable. The contractual recognition
clause, which modified the language in the certification, defines
the unit as “all Operating Engineers . . . and other employees
coming under their craft jurisdiction.” In contrast to the Un-
ion’s certification, the unit defined by the contract no longer
enumerates specific job classifications. The parties’ intent,
obvious from the face of the contract, is to include in the unit
any employee performing work which is defined as Operating
Engineers work within the geographic jurisdiction of the Un-
ion.14 Because operation of a forklift has historically been con-
sidered the work of operating engineers, and because the em-
ployee transferred to Ft. Pierce to work in the block distribution
operation admittedly operates a forklift at least 25 percent of
his time, I shall presume that this position should be added to
the unit, absent a showing by the Respondent that Hendrick-
son’s operation of the forklift is merely incidental to his pri-
mary work function or an insignificant part of his work.

13 329 NLRB 854 (1999).
14 The historic exclusion of those operating engineers working in the
Respondent’s block operation at Mangonia, whether by agreement or
acquiescence, predated the contract and does not affect its application
to new groups of employees that come into existence during the term of
the contract or in the future.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
The only witness to testify that Hendrickson performs func-
tions other than operating a forklift was Kramer. The General
Counsel’s witnesses testified that the only thing they’ve ever
seen Hendrickson do is operate the forklift. Acevedo, who only
knows Hendrickson as the guy who unloads the block shipped
to Ft. Pierce from Pennsucco, has never seen Hendrickson at
work. Although he has spoken to Hendrickson on the phone
occasionally regarding orders for blocks or customer concerns
about block shipped from Pennsucco, Acevedo was not in a
position to say how much of Hendrickson’s job would be spent
on such duties. Sherman, the on-site supervisor at Ft. Pierce,
admitted he is not in a position to observe what Hendrickson
does all day. The only person who was in a position to tell me
what he does all day, Hendrickson, was conveniently absent on
a vacation approved by the Respondent at a time when it knew
the hearing on this issue was scheduled. While not drawing
any adverse inference from his absence, I shall weigh the Re-
spondent’s choice not to offer this testimony in evaluating
Kramer’s testimony.
As the individual who established the block distribution op-
eration at Ft. Pierce and decided to transfer Hendrickson to staff
it, Kramer certainly was a witness with knowledge as to the
duties and responsibilities of the position. However, his testi-
mony was not entirely credible. I note that his testimony was
not consistent with the statements made by the Respondent’s
counsel during the investigation. In the position statement, in
contrast to Kramer’s testimony, the Respondent sought to
downplay the additional responsibilities Hendrickson had, indi-
cating that his position was not as complex as a unit position.
In contrast to Kramer’s description, suggesting that the bulk of
Hendrickson’s time was spent in the office handling paperwork,
counsel advised the Region that Hendrickson spent most of the
day in the yard, moving block, and only occasionally went into
“the shack” to retrieve orders from dispatch. This earlier ad-
mission by the Respondent is consistent with the testimony of
the General Counsel’s witnesses and more reliable than
Kramer’s testimony developed after the complaint had issued in
this case.
In finding Kramer’s testimony unreliable, I also note that the
documents introduced at the hearing to show Hendrickson’s
involvement in taking orders from customers, collecting pay-
ments, ordering supplies, etc. all post-date the dispute that arose
over Hendrickson’s unit placement by several months. I find it
significant that no documents were offered from August
through November 2002, showing Hendrickson’s involvement
in these nonforklift operator duties. In addition, many of the
documents do not bear Hendrickson’s name or signature and
those that do show no more than that he signed for a delivery of
product. Even assuming these documents and Kramer’s testi-
mony were sufficient to establish that Hendrickson dealt with
customers who came to the facility to buy block, signed for
deliveries, ordered additional blocks or other material needed to
fulfill orders, these additional duties were incidental to his pri-
mary function, as the only employee in the block department at
Ft. Pierce, of loading and unloading blocks for the Respon-
dent’s customers and moving block within the yard.
I also found Kramer’s testimony regarding the percentage of
time spent by Hendrickson on different tasks to be exaggerated.
There is no dispute that the Respondent has a central dispatch
operation and a separate sales force that handles most orders
from customers, whether at Ft. Pierce, Mangonia, Pompano, or
Pennsucco. Kramer himself testified that only about 10 percent
of the orders at Ft. Pierce came from customers walking in off
the street. It is dispatch which generates the paperwork for the
orders, establishes the amount of payment to be collected and
tells Hendrickson how much to load and for whom. Dispatch is
also in a better position than Hendrickson to know how much
block is needed at Ft. Pierce to satisfy customer orders because
they have access to all the orders that have been received by the
Respondent, whether through a sales rep., over the phone, or by
Hendrickson on the spot. Even though Hendrickson may col-
lect payment from customers who pay C.O.D., he does no more
with these payments than record them on a form and turn them
over to the sales department to process and deposit in the bank.
In light of the limited nature of these additional duties Hen-
drickson has as the only on-site block employee, it is incon-
ceivable that he would be spending 75 percent of his time in
nonforklift operations.
Accordingly, based on the above and the record as a whole, I
find that Hendrickson was primarily a yard person/forklift op-
erator and that the additional duties identified by Kramer are
only incidental to the performance of this job.15 Because I find
that the Respondent has not met his burden of proof under The
Sun, supra, I conclude that the Ft. Pierce block distribution
employee should be included in the contractually recognized
unit. I would reach the same result, even if the unit were not
found to be functionally defined, under the Board’s holding in
Developmental Disabilities Institute, Inc., supra. The credible
evidence in the record convinces me that Hendrickson is per-
forming the same basic functions as the yard persons/forklift
operators in the unit have historically performed and that he
should be included in the unit. Based on these findings, I con-
clude that the accretion analysis urged by the Respondent is
inapposite. I also note that, unlike a typical accretion case,
Hendrickson is not working in a new job classification,16 or at a
new facility, nor is he part of a historically unrepresented group
of employees. The Union has always represented employees at
Ft. Pierce, including ready-mix employees who work in the
yard, and has always represented yard persons in other block

15 As noted previously, Kramer acknowledged that the job descrip-
tion for the unit classification includes many of the same customer
service, inventory, and other responsibilities he described for Hendrick-
son. Thus, the difference between the unit position and Hendrickson’s
job was more a quantitative than a qualitative difference in the work
performed.
16 I attach no weight to the job description for a “customer ser-
vice/dispatch/forklift operator” introduced into evidence by the Re-
spondent. This document, admittedly prepared after the Union sought
inclusion of Hendrickson in the unit, and never approved, is nothing
more than a self-serving document prepared to bolster the Respondent’s
claim of exclusion. Moreover, Kramer admitted that the job description
was not accurate because the incumbent of this “new” position also had
to perform the duties described in the existing job description for the
unit position.
TARMAC AMERICA, INC. 1057
operations.17 Thus, the transfer of Hendrickson from Mel-
bourne to Ft. Pierce is not a true accretion.
In reaching my conclusion, I have considered the fact that
not all yard persons/forklift operators employed by the Respon-
dent in the Union’s geographic jurisdiction have been included
in the unit. However, I find that the historical exclusion of
similar employees at Mangonia is nothing more than a red her-
ring. The fact that the Union had allowed the Respondent, by
mistake or otherwise, to exclude from the unit a group of em-
ployees who are covered by the contractual recognition clause
does not establish that the Respondent can create new positions,
assign them bargaining unit work, and unilaterally exclude
them from the unit. By doing so here, the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act, as alleged in the com-
plaint and I so find.
Having found that the yard person/forklift operator employed
in the Ft. Pierce block distribution operation is a unit position, I
find further that the information requested by the Union on
October 18 is presumptively relevant and necessary for the
performance of the Union’s representational functions. Ohio
Power Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381
(6th Cir. 1976). Even if there were any ambiguity or doubt as
to the unit placement of this position, the Union would be enti-
tled to the information to determine whether the contract had
been violated. In the face of the information Mullen had, i.e.,
an individual was seen operating a forklift similar to the work
done at other unit facilities, and the individual told Mullen that
he was receiving wages and benefits other than those provided
by the collective-bargaining agreement, the Union was entitled
to investigate for itself whether the Respondent was violating
the agreement. The information sought by Waters in his letter
was relevant to such an investigation and was necessary for the
Union to determine whether to file or pursue a grievance.
Phoenix Coca-Cola Bottling Co., 337 NLRB 1239 (2002);
United Graphics, Inc., 281 NLRB 463 (1986). Because the
Respondent admits that it did not furnish the requested informa-
tion, I find that the Respondent has violated Section 8(a)(5) and
(1) of the Act as alleged in the complaint.
CONCLUSIONS OF LAW
1. By failing and refusing to recognize the Union as the bar-
gaining representative of the yard person/forklift operator(s)
employed by the Respondent at its Ft. Pierce, Florida block
distribution facility and by failing and refusing to apply the
parties’ collective-bargaining agreement to that employee, since
August 2002, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and (5) and Section 2(6) and (7) of the Act.
2. By failing and refusing to furnish the Union, since Octo-
ber 18, 2002, with the information requested by the Union re-
garding the yard person/forklift operator working at Ft. Pierce,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the Act.

17 As the Board recently reaffirmed, there is nothing inherently inap-
propriate in including batch plant (ready-mix) employees and block
plant employees in a single unit. See Ready-Mix USA, Inc., 340 NLRB
No. 107 (2003).
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, I shall recommend that
the Respondent be ordered to recognize and bargain with the
Union as the representative of any employee working as a yard
person/forklift operator at the Ft. Pierce block distribution facil-
ity and to apply the terms and conditions of the collective-
bargaining agreement to such employees retroactive to the date
in August 2002 that Hendrickson began working in that posi-
tion. The Respondent shall also be required to make the em-
ployee whole for any loss of wages and benefits he suffered as
a result of the Respondent’s unilateral exclusion of his position
from the unit, plus interest, in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979); Kraft Plumb-
ing & Heating, 252 NLRB 891 fn. 2 (1980) enfd. mem. 661
F.2d 940 (9th Cir. 1981); Ogle Protection Service, 183 NLRB
682 (1970) enfd. 444 F.2d 502 (6th Cir. 1971); and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). I shall also
recommend that the Respondent be ordered to furnish the re-
quested information to the Union so that it may police the Re-
spondent’s compliance with the collective-bargaining agree-
ment.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
The Respondent, Tarmac America, Inc., Deerfield Beach,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize International Union of
Operating Engineers, Local 487, AFL–CIO (the Union) as the
bargaining representative of the yard person/forklift operator(s)
employed by the Respondent at its Ft. Pierce, Florida block
distribution facility.
(b) Failing and refusing to apply the collective-bargaining
agreement between the Respondent and the Union to the yard
person/forklift operator(s) employed by the Respondent at its
Ft. Pierce, Florida block distribution facility.
(c) Failing and refusing to furnish the Union, upon request,
with the information that is relevant to, and necessary for, the
performance of its statutory functions as the employees’ collec-
tive-bargaining representative.
(d) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Recognize and, upon request, bargain collectively in
good faith with the Union concerning the wages, hours, and

18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
terms and conditions of employment of the yard person/forklift
operator(s) at the Ft. Pierce facility.
(b) Apply all the terms of the collective-bargaining agree-
ment, including but not limited to the grievance arbitration
provision and wage and benefits provisions, to the yard per-
son/forklift operator(s) at the Ft. Pierce facility.
(c) Make whole the employee(s) in the yard person/forklift
operator position at Ft. Pierce for any wages and benefits lost as
a result of the failure to apply the contract to this position since
August 2002, in the manner set forth in the remedy section of
this decision.
(d) Furnish the Union with all the information it requested in
its October 18, 2002 letter.
(e) 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
or its agents, all payroll records, social security payment re-
cords, 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.
(f) Within 14 days after service by the Region, post at its fa-
cilities in the Counties of Dade, Broward, Palm Beach, Martin,
and St. Lucie, Florida, where employees represented by the
Union are employed, copies of the attached notice marked
“Appendix.”19 Copies of the notice, on forms provided by the
Regional Director for Region 12, after being signed by the Re-
spondent’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. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 1, 2002.
(g) 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.

19 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.”