Aggregate Industries US

AGGREGATE INDUSTRIES 879 Aggregate Industries and Teamsters, Chauffeurs, Warehousemen and Helpers, Local 631, Affiliat- ed with International Brotherhood of Team- sters. Cases 28–CA–023220 and 28–CA–023250 October 31, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND SCHIFFER On July 8, 2013, the Board issued a Decision and Or- der in this proceeding, which is reported at 359 NLRB 1419. Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the Dis- trict of Columbia Circuit. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally in- firm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appoint- ments to the Board were not valid. Thereafter, the Board issued an order setting aside the Decision and Order, and retained this case on its docket for further action as ap- propriate. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the judge’s decision and the record in light of the exceptions and briefs. We have also considered the now-vacated Decision and Order, and we agree with the rationale set forth therein.1 Accordingly, we affirm the judge’s rul- ings, findings, and conclusions and adopt the judge’s recommended Order to the extent and for the reasons stated in the Decision and Order reported at 359 NLRB 1419, which is incorporated herein by reference. The judge’s recommended Order, as further modified herein, is set forth in full below.2 1 In finding that the Respondent presented the Union with a fait ac- compli, we do not rely on Dresser-Rand Co., 358 NLRB 854 (2012), cited in the vacated decision. In addition, in finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by changing the scope of the Construction unit, a permis- sive subject of bargaining, without the Union’s consent, we do not rely on Walt Disney World Co., 359 NLRB 648 (2013), cited in the vacated decision. Instead, we rely on Wackenhut Corp., 345 NLRB 850, 852 (2005) (elimination of unit position and transfer of the relevant duties to non-unit positions was a change in unit scope requiring consent of the union), and Holy Cross Hospital, 319 NLRB 1361, 1361 fn. 2 (1995) (virtual elimination of a unit position was a change in the scope of the unit requiring the union’s consent). 2 We shall modify the Order in accordance with our recent decision in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). We shall also substitute a new notice in accordance with Tor- ORDER The National Labor Relations Board orders that the Respondent, Aggregate Industries, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Changing the scope of the Construction Bargaining Unit by moving off-site material haul drivers from the Construction Bargaining Unit to the Ready-Mix Bargain- ing Unit without the Union’s consent. (b) Unilaterally moving off-site material haul work from coverage under the Construction Agreement to coverage under the Ready-Mix Agreement without giv- ing the Union sufficient notice and an opportunity to bargain about the change. (c) Changing the terms and conditions of employment of Construction Bargaining Unit employees by requiring them to work under the terms of its Ready-Mix Agree- ment. (d) Bypassing the Union and dealing directly with its Construction Bargaining Unit employees, and denying employment opportunities to Construction Bargaining Unit employees who refuse to agree to work under the terms and conditions of its Ready-Mix Agreement. (e) Bypassing the Union and dealing directly with its mechanical sweeper truck drivers in the Construction Bargaining Unit with regard to their terms and conditions of employment. (f) Unilaterally, without notice to the Union or afford- ing the Union an opportunity to bargain, assigning me- chanical sweeper truck driving work to drivers who are represented by the Laborers Union, when such work had previously been performed by drivers who were included in the Construction Bargaining Unit. (g) Unilaterally, without notice to the Union or afford- ing the Union an opportunity to bargain, changing the terms and conditions of its mechanical sweeper truck drivers by treating them as employees in the bargaining unit covered by the Laborers’ collective-bargaining agreement. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Restore the status quo ante with respect to both the Construction Bargaining Unit and the Ready-Mix Bar- gaining Unit, by returning the employees performing off- site material haul work back to the Construction Bargain- ing Unit from the Ready-Mix Unit, rescinding all unilat- tillas Don Chavas, supra, and Durham School Services, 360 NLRB 694 (2014). 361 NLRB No. 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880 eral changes in the employees’ terms and conditions of employment, and continuing in effect all the terms and conditions of the Construction Agreement for those em- ployees. (b) Make former Construction Bargaining Unit em- ployees performing off-site material haul work under the Ready-Mix Agreement whole for any loss of wages and other benefits suffered as a result of its unlawful actions, in the manner set forth in the Amended Remedy section of this decision. (c) Reimburse former Construction Bargaining Unit employees for any expenses resulting from the Respond- ent’s failure to make any required contributions to bene- fit funds, in the manner set forth in the Amended Reme- dy section of this decision. (d) Within 14 days from the date of this Order, offer any former Construction Bargaining Unit employee who lost employment for refusing to work under the terms and conditions of the Ready-Mix Agreement full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or any other rights or privileges previously enjoyed. (e) Make any former Construction Bargaining Unit employee who lost employment for refusing to work under the terms and conditions of the Ready-Mix Agreement whole for any loss of earnings and other ben- efits suffered as a result of the unlawful action against them, in the manner set forth in the Amended Remedy section of this decision. (f) Compensate former Construction Bargaining Unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters for each employee. (g) Within 14 days from the date of this Order, remove from its files any reference to the loss of employment opportunities for any former Construction Bargaining Unit employee who lost employment for refusing to work under the terms and conditions of the Ready-Mix Agreement, and within 3 days thereafter, notify them in writing that this has been done and that the unlawful ac- tion will not be used against them in any way. (h) Restore the status quo ante by returning and assign- ing the work of driving its mechanical sweeper trucks to employees who are represented by the Union and em- ployed in the Construction Bargaining Unit. (i) Make sweeper truck drivers Andrew Barnum and Mike Crane whole for any loss of wages and other bene- fits suffered as a result of its unilateral change, in the manner set forth in the Remedy section of the judge’s decision. (j) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (k) Within 14 days after service by the Region, post at its facility in Las Vegas, Nevada and its truck yard in Sloan, Nevada, and distribute in the employees’ mail slots, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notic- es are not altered, defaced, or covered by any other mate- rial. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since October 1, 2010. (l) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this Notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union 3 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.” AGGREGATE INDUSTRIES 881 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 change the scope of the Construction Bargaining Unit by moving off-site material haul drivers from the Construction Bargaining Unit to the Ready-Mix Bargaining Unit without the Union’s consent, or unilat- erally move off-site material haul work from coverage under the Construction Agreement to coverage under the Ready-Mix Agreement without giving the Union suffi- cient notice and an opportunity to bargain about the change. WE WILL NOT change the terms and conditions of em- ployment of Construction Bargaining Unit employees by requiring them to work under the terms of our Ready- Mix Agreement. WE WILL NOT bypass the Union and deal directly with our Construction Bargaining Unit employees, and WE WILL NOT deny employment opportunities to Construc- tion Bargaining Unit employees who refuse to agree to work under the terms and conditions of our Ready-Mix Agreement. WE WILL NOT bypass the Union and deal directly with our mechanical sweeper truck drivers in the Construction Bargaining Unit with regard to their terms and conditions of employment. WE WILL NOT unilaterally, without notice to the Union or affording the Union an opportunity to bargain, assign mechanical sweeper truck driving work to drivers who are represented by Laborers’ International Union of North America, Local 872 (Laborers), when such work had previously been performed by drivers who were in- cluded in the Construction Bargaining Unit. WE WILL NOT unilaterally, without notice to the Union or affording the Union an opportunity to bargain, change the terms and conditions of our mechanical sweeper truck drivers by treating them as employees in the bar- gaining unit covered by the Laborers’ collective- bargaining agreement. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights listed above. WE WILL restore the status quo ante with respect to both the Construction Bargaining Unit and the Ready- Mix Bargaining Unit, by returning the employees per- forming off-site material haul work back to the Construc- tion Bargaining Unit from the Ready-Mix Unit, rescind- ing all unilateral changes in the employees’ terms and conditions of employment, and continuing in effect all the terms and conditions of the Construction Agreement for those employees. WE WILL make former Construction Bargaining Unit employees performing off-site material haul work under the Ready-Mix Agreement whole for any loss of wages and other benefits suffered as a result of its unlawful ac- tions, plus interest compounded daily. WE WILL reimburse former Construction Bargaining Unit employees for any expenses resulting from the Re- spondent’s failure to make any required contributions to benefit funds, plus interest compounded daily. WE WILL, within 14 days from the date of the Board’s Order, offer any former Construction Bargaining Unit employees who lost employment for refusing to work under the terms and conditions of the Ready-Mix Agreement full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any oth- er rights or privileges previously enjoyed. WE WILL make any former Construction Bargaining Unit employees who lost employment for refusing to work under the terms and conditions of the Ready-Mix Agreement whole for any loss of earnings and other ben- efits suffered as a result of the unlawful action against them, less any net interim earnings, plus interest com- pounded daily. WE WILL compensate former Construction Bargaining Unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file a report with the Social Security Administration allocat- ing the backpay awards to the appropriate calendar quar- ters for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the loss of employment opportunities for any former Construction Bargaining Unit employees who lost employment for refusing to work under the terms and conditions of the Ready-Mix Agreement, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the unlawful action will not be used against them in any way. WE WILL restore the status quo ante by returning and assigning the work of driving our mechanical sweeper trucks to employees who are represented by the Union and employed in the Construction Bargaining Unit. WE WILL make sweeper truck drivers Andrew Barnum and Mike Crane whole for any loss of wages and other benefits suffered as a result of our unilateral change, plus interest compounded daily. AGGREGATE INDUSTRIES DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882 The Board’s decision can be found at – www.nlrb.gov/case/28–CA-023220 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.