Atlas Concrete Construction

National Labor Relations Board - Board Decisions

Sep 1, 1999

329 N.L.R.B. 5 (N.L.R.B. 1999)

ATLAS CONCRETE CONSTRUCTION CO. 5
Atlas Concrete Construction Co., Inc., and General
Drivers, Warehousemen and Helpers Union, Lo-
cal Union No. 89, an affiliate of the International
Brotherhood of Teamsters, AFL–CIO. Cases 9–
CA–35198–2 and 9–CA–35410
September 1, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On July 22, 1998, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Atlas
Concrete Construction Co., Inc., Crestwood, Kentucky,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its Crestwood, Kentucky facility copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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, 1997.”

1 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.
The judge rejected the Respondent’s argument that it had made a
conditional offer to the Union. In its exceptions, the Respondent claims
that the Union was fully aware, during bargaining, that the Company
had received a petition raising a doubt about the Union’s continued
majority status and that the Company’s statement that its offer was
contingent upon its ability to continue negotiations was linked to the
petition. The judge found, however, based on credibility resolutions,
that the Respondent informed the Union only that a “paper” had been
served on it, and did not reveal the reasons for the contingency it placed
on its offer. We adopt the judge’s findings.
In adopting the judge’s finding that the Respondent unlawfully re-
fused to furnish requested information, we do not rely on the judge’s
finding that the Union needed the information to assess its bargaining
position. Rather, we find that the information was necessary for the
Union to perform its duties as collective-bargaining agent.
Finally, we shall modify par. 2(e) of the judge’s recommended Order
in accordance with Excel Container, 325 NLRB 17 (1997).
2 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.”

Andrew L. Lang, Esq., for the General Counsel.
Edwin S. Hopson, Esq. (Wyatt, Tarrant & Combs), of Louis-
ville, Kentucky, for the Respondent.
Alton D. Priddy, Esq. (Hardy, Logan & Priddy), of Louisville,
Kentucky, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried on April 7, 1998, in Louisville, Kentucky, upon a
complaint issued on December 8, 1997. The charges filed by
General Drivers, Warehousemen and Helpers Union, Local No.
89 accuse the Company, Atlas Concrete Construction Com-
pany, Inc., with refusing to execute a collective-bargaining
agreement and with withdrawing its recognition of the Union as
the employees’ bargaining representative and with refusing to
furnish the Union with information about its replacement em-
ployees. The Respondent’s answer, timely filed, admitted all
the jurisdictional allegations in the complaint, but it denied the
substantive allegations that the Company had violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act).
Upon consideration of the entire record in this case and hav-
ing observed the demeanor of the witnesses, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the manufacture and sale of
concrete at its Crestwood, Kentucky facility. With purchases of
goods valued in excess of $50,000 from points outside the State
of Kentucky, the Respondent is admittedly an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Union is admittedly a labor organization within the
meaning of Section 2(5) of the Act.
II. THE FACTS
Atlas Concrete Construction Company and the Union were
parties to a collective-bargaining agreement effective August 1,
1994, to March 31, 1997 (G.C. Exh. 2). The contract was ex-
tended during the subsequent negotiations. Following several
unsuccessful bargaining sessions, the Company with the help of
a mediator submitted to the Union a verbal proposal on July 28,
1997, contingent upon its ability to continue negotiations. The
mediator, Larry Roberts, continued his efforts to mediate the
329 NLRB No. 1
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6
negotiations, and on August 1, 1997, the Respondent submitted
a written offer contingent on the Company’s continued ability
to make an offer (G.C. Exh. 3). Upon receiving the company
proposal, John Wientjes, the Union’s negotiator, promised Tom
Forshee, the Company’s negotiator, that he would submit the
proposal to the union membership for ratification. Forshee
gave Wientjes the beeper number of Mike Fowler, a company
representative, in order to inform the Company of the outcome
of the ratification meeting. Forshee made it clear to the Union
that “we’ll see you on Monday” if the offer would be ratified
(Tr. 24). The union membership voted to accept the Company’s
offer on August 1, 1997. Wientjes promptly informed Mike
Fowler, the company operations manager, that the contract
proposal had been accepted and that the employees would re-
port for work on Monday. Fowler did not object. The Union
also informed Larry Roberts that the offer had been accepted.
However, when the employees reported for work on Monday,
the Company refused to put them to work because it claimed
that there was no work for them.
The Respondent did not disclose to the Union the reason for
the contingency offers, although it had made a reference to a
paper, which had been served on the Company. However, the
Company refused to elaborate on the significance of the paper
and the Union was kept in the dark about the fact that the paper
was a petition from the employees, which ultimately provided
the Company with a good-faith doubt about the Union’s con-
tinued majority status.
The Respondent admittedly withheld certain information re-
quested by the Union about the hiring of replacement workers.
Analysis
The General Counsel argues that the company offer of Au-
gust 1, 1997, was accepted and ratified by the Union and effec-
tive on that date, even though the Respondent had made it clear
that its offer was contingent upon its continued ability to con-
tinue the negotiations. The Company’s refusal to honor the
agreement, as well as its refusal to furnish certain information
requested by the Union constitute, so argues the General Coun-
sel, violations of Section 8(a)(1) and (5). The Respondent natu-
rally argues that its offer was conditional based upon the con-
tinued majority status of the Union among the employees.
When the Union was no longer supported by the majority of the
employees, the Company did not have the capacity to enter into
a collective-bargaining agreement.
The record is clear and the parties stipulated that the Re-
spondent had a good-faith doubt as to the Union’s continued
majority status as of August 5, 1997, based upon a petition of
employees (Tr. 8). It is also clear that the Company when mak-
ing its verbal offer on July 28, 1997, and the written offer of
August 1, 1997, had expressed through the mediator that the
proposals were conditioned “on the Company’s ability to con-
tinue negotiations with the Union” (Tr. 17, 42).
Although the Company had received a petition from the em-
ployees on July 28, 1997, it did not verify the accuracy of the
signatures and the number of the employees on the petition
until August 5, 1997, well after the Union had accepted the
contract proposal.
The Respondent did not disclose to the Union during the ne-
gotiations on July 28 and August 1 that it had received a peti-
tion from the employees, even though the union negotiator,
Wientjes, had inquired about the so-called paper. The Com-
pany reacted to the petition by merely telling the Union that the
offer was contingent upon its continued ability to negotiate.
Parenthetically, I find that the record does not support the Re-
spondent’s argument that the Company had referred to its “le-
gal” ability to continue negotiations. The testimony of Tom
Forshee and Carol Fowler, Respondent’s chief financial officer,
was initially consistent with Wientjes’ version of the statement,
although they subsequently testified that the Company has con-
ditioned its offer on the legal ability to negotiate. I have cred-
ited the more reliable and consistent testimony of the three
witnesses. The conclusions reached herein would not have
been different even if the Respondent had had used the term
“legal ability.”
Both parties rely upon Auciello Iron Works v. NLRB, 517
U.S. 781 (1996), where the Court upheld the validity of a bar-
gaining agreement which was negotiated while the union’s
majority status was an issue. The Court observed that when the
collective-bargaining agreement has expired, the union is enti-
tled to a rebuttable presumption of majority status. An em-
ployer may overcome the presumption of majority status by
showing that at the time of its refusal to bargain “either (1) the
union did not in fact enjoy majority support or (2) the employer
had a ‘good faith’ doubt, founded on a sufficient objective basis
of the union’s majority.” Auciello Iron Works, supra at 786–
787. There, as well as in this case, the Respondent argued that
the latter defense can be raised even after a collective-
bargaining contract period has begun to run upon the Union’s
acceptance of the Employer’s offer. The Court, however, held
“that the Board reasonably found an employer’s precontractual,
good-faith doubt inadequate to support an exception of the
conclusive presumption arising at the moment a collective bar-
gaining contract offer has been accepted.”
The Court further stated that an employer faced with a good-
faith doubt has three alternatives, it could have withdrawn the
outstanding offer and petition for a representation election, it
could have withdrawn the offer and refuse to bargain leaving it
to the union to charge the employer with unfair labor practice
or it could have withdrawn the offer and to allow it time to
investigate the issue. The Respondent, however, did not rely
upon any of the three options. It made its offer contingent upon
its ability to continue negotiations, and argues that it is not
bound by the contract even though the Union’s acceptance
preceded the Company’s confirmed doubt of the Union’s ma-
jority status. Whether a contingency offer adds in effect a
fourth option to those enumerated above and renders an accep-
tance void once the contingency is met, would be the issue
here, had the Respondent expressed such a contingency. The
record, however, shows that the Respondent made its offer
contingent upon an overly broad and vague notion, i.e., its con-
tinued ability to negotiate or to make an offer, without any
further elaboration or clarification, leaving the other party in
doubt whether such a contingency was met or not. It goes
without saying that any offer made assumes the party’s contin-
ued ability to negotiate or to make an offer. When a company
is dissolved or a party dies, it no longer has the ability to nego-
tiate and the capacity to make a contact no longer exists. There
are a myriad of possibilities why a party to contract negotia-
tions could loose its ability to negotiate. Any offer so condi-
tioned would permit a party to negotiate a contract with the
unilateral option to cancel it based upon a subsequent claim that
lacked the ability to negotiate. I, accordingly, find that the
Respondent’s expressed condition was overly broad and vague
and therefore not binding upon the parties. The Company’s
expression of contingency did not amount to an effective “con-
ATLAS CONCRETE CONSTRUCTION CO. 7
dition subsequent” to void the contract. In accordance with the
decision in Auciello Iron Works, supra, I, accordingly, find that
the Respondent’s refusal to honor and execute the collective-
bargaining agreement and its withdrawal of recognition of the
Union violated Section 8(a)(1) and (5) of the Act.
The final issue is the Respondent’s refusal to furnish the in-
formation requested by the Union in its letter dated August 19,
1997, i.e., “the names and dates of all replacement workers . . .
hired during the strike of Atlas Concrete” (G.C. Exh. 1,A). The
Respondent admitted in its answer its refusal to furnish the
requested information (G.C. Exh. 1(S)). The Union explained
the need for the information. That information was needed for
the Union to assess its bargaining position during the negotia-
tions and to enable the Union to contact the replacement work-
ers to inform them about the union benefits.
It is axiomatic that the Union is entitled to the information,
which is reasonably necessary and relevant to the performance
of its duties as a collective-bargaining representative. The Re-
spondent has not contested the issue and I find that its failure to
furnish the requested information violated Section 8(a)(1) and
(5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Atlas Concrete Construction Co., Inc., is
an employer engaged in commerce within the meaning of Sec-
tion 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. Since about August 1, 1994, the Union has been the exclu-
sive collective-bargaining representative of the following unit
appropriate for the purposes of collective bargaining:

All ready mix drivers, batchmen/loader operators, yardmen,
conveyor employees, beltmen, mechanics and lead mechanics
employed at [Respondent’s] Crestwood, Kentucky facility,
excluding office clerical and professional employees, guards
and supervisors as defined in the Act.

4. On August 1, 1997, the Union and Respondent reached an
agreement on terms and conditions of employment of the unit
in a collective-bargaining agreement.
5. The Respondent’s failure and refusal to execute and abide
by the agreement constitutes a violation of Section 8(a)(1) and
(5) of the Act.
6. During the term of the collective-bargaining agreement the
Union is entitled to a conclusive presumption of majority
status, so that the Company’s withdrawal of recognition of the
Union constitutes a violation of Section 8(a)(1) and (5) of the
Act.
7. The Respondent’s failure to provide the information re-
quested by the Union which is necessary for its duties as collec-
tive-bargaining agent violates Section 8(a)(1) and (5) of the
Act.
8. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in the unfair la-
bor practices, the Employer must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
To rectify the Employer’s unlawful failure to sign and im-
plement a collective-bargaining agreement, and its withdrawal
of recognition, is necessary to order the Employer, upon the
Union’s request, to reduce to writing, sign, and retroactively
implement the collective-bargaining agreement effective Au-
gust 1, 1997.
The Employer must make whole all employees to whom the
aforesaid collective-bargaining agreement applies for any loss
of wages and other benefits suffered as a result of the Em-
ployer’s failure to sign and implement the agreement. Those
wages and benefits, if any, shall be computed in accordance
with the Board’s formula in Ogle Protection Service, 183
NLRB 682 (1970), with interest computed under New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Further, the order will require the Employer to refrain from,
in any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights which the Act
guarantees.
Finally, the Employer will be ordered to post an appropriate
notice to employees.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Atlas Concrete Construction Co., Inc.,
Crestwood, Kentucky, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Withdrawing recognition of the Union as the exclusive
collective-bargaining representative of employees in the bar-
gaining unit found appropriate.
(b) Failing and refusing to sign and implement the collective-
bargaining agreement which has been found to have been cre-
ated on August 1, 1997.
(c) Failing and refusing to furnish the information requested
by the Union.
(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) Furnish the Union the information requested by letter of
August 19, 1997.
(b) On the Union’s request, reduce to writing, sign, and im-
plement retroactively to August 1, 1997, the collective-
bargaining agreement which the Union accepted on that date.
(c) Make whole all employees to whom the August 1, 1997
collective-bargaining agreement applies, including such em-
ployees who may have left the payroll since that date, for any
loss of wages or other benefits suffered by reason of the Em-
ployer’s failure to sign that collective-bargaining agreement
and its withdrawal of recognition from the Union. Moneys due
under this make-whole provision are to be computed according
to the formulas described in the remedy section above.
(d) Preserve and, within 14 days of a 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
and relevant to determine the amounts owing under the terms of
this Order.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8
(e) Within 14 days after service by the Region post at its
Crestwood, Kentucky facility copies of the attached notice
marked “Appendix.” Copies of the notice, on forms provided
by the Regional Director for Region 1, 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. 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.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT withdraw recognition of the Union as the ex-
clusive collective-bargaining representative of employees in the
bargaining unit found appropriate.
WE WILL NOT fail and refuse to sign and implement the col-
lective-bargaining agreement, which has been found to have
been created on August 1, 1997.
WE WILL NOT fail and refuse to furnish the information re-
quested by the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL furnish the Union the information requested by let-
ter of August 19, 1997.
WE WILL on the Union’s request, reduce to writing, sign, and
implement retroactively to August 1, 1997, the collective-
bargaining agreement, which the Union accepted on that date.
WE WILL make whole all employees to whom the August 1,
1997 collective-bargaining agreement applies, including such
employees who may have left the payroll since that date, for
any loss of wages or other benefits suffered by reason of the
Employer’s failure to sign that collective-bargaining agreement
and its withdrawal of recognition from the Union. Moneys due
under this make-whole provision are to be computed according
to the formulas described in the remedy section above.

ATLAS CONCRETE CONSTRUCTION CO., INC.